Exhibit 99.1
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Equity One ABS, Inc.
Depositor
Equity One, Inc. (DE)
A Seller and the Servicer
Equity One, Incorporated (PA), Equity One, Inc. (MN),
Equity One Consumer Loan Company, Inc. (NH),
and Popular Financial Services, LLC (DE)
Sellers
and
JPMorgan Chase Bank
Trustee
-----------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of March 31, 2002
----------------------------------
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-2
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT.....................................................................................1
ARTICLE I DEFINITIONS....................................................................................4
ADJUSTED MORTGAGE RATE................................................................................4
ADJUSTED NET MORTGAGE RATE............................................................................4
ADJUSTED NET WAC RATE.................................................................................4
ADVANCE...............................................................................................4
AGREEMENT.............................................................................................4
AMOUNT HELD FOR FUTURE DISTRIBUTION...................................................................4
APPLICABLE GROUP......................................................................................5
AVAILABLE FUNDS.......................................................................................5
BANKRUPTCY CODE.......................................................................................5
BENEFICIAL OWNER......................................................................................5
BOOK-ENTRY CERTIFICATES...............................................................................5
BUSINESS DAY..........................................................................................5
CALL OPTION DATE......................................................................................5
CERTIFICATES..........................................................................................5
CERTIFICATE ACCOUNT...................................................................................5
CERTIFICATE BALANCE...................................................................................6
CERTIFICATE FORMULA PRINCIPAL AMOUNT..................................................................6
CERTIFICATEHOLDER OR HOLDER...........................................................................6
CERTIFICATE REGISTER..................................................................................6
CERTIFICATE REGISTRAR.................................................................................6
CLASS.................................................................................................6
CLASS A CERTIFICATES..................................................................................6
CLASS AF AVAILABLE FUNDS SHORTFALL....................................................................7
CLASS AF CERTIFICATES.................................................................................7
CLASS AF-1 CERTIFICATE................................................................................7
CLASS AF-2 CERTIFICATE................................................................................7
CLASS AF-3 CERTIFICATE................................................................................7
CLASS AF-4 CERTIFICATE................................................................................7
CLASS AF DISTRIBUTABLE EXCESS SPREAD..................................................................7
CLASS AF DISTRIBUTABLE FUNDS..........................................................................7
CLASS AF OVERCOLLATERALIZATION RELEASE AMOUNT.........................................................7
CLASS AF OVERCOLLATERALIZATION TARGET AMOUNT..........................................................7
CLASS AF OVERCOLLATERALIZED AMOUNT....................................................................8
CLASS A-IO CERTIFICATES...............................................................................8
CLASS AV-1 AVAILABLE FUNDS SHORTFALL..................................................................8
CLASS AV-1 CERTIFICATE................................................................................8
CLASS AV-1 DISTRIBUTABLE EXCESS SPREAD................................................................8
CLASS AV-1 DISTRIBUTABLE FUNDS........................................................................8
CLASS AV-1 OVERCOLLATERALIZATION RELEASE AMOUNT.......................................................8
CLASS AV-1 OVERCOLLATERALIZATION TARGET AMOUNT........................................................9
CLASS AV-1 OVERCOLLATERALIZED AMOUNT..................................................................9
CLASS CERTIFICATE BALANCE.............................................................................9
CLASS INTEREST SHORTFALL..............................................................................9
CLASS R CERTIFICATES..................................................................................9
CLASS UNPAID INTEREST AMOUNTS.........................................................................9
CLASS X CERTIFICATE..................................................................................10
i
CLOSING DATE.........................................................................................10
CLOSING PLACE........................................................................................10
CODE.................................................................................................10
COLLATERAL...........................................................................................10
COLLATERAL VALUE.....................................................................................10
CORPORATE TRUST OFFICE...............................................................................10
CORRESPONDING CLASS..................................................................................10
COUNTERPARTY.........................................................................................10
CROSS-COLLATERALIZATION AMOUNT.......................................................................10
CUSTODIAL AGREEMENT..................................................................................10
CUSTODIAN............................................................................................11
CUT-OFF DATE.........................................................................................11
CUT-OFF DATE GROUP I PRINCIPAL BALANCE...............................................................11
CUT-OFF DATE GROUP II PRINCIPAL BALANCE..............................................................11
CUT-OFF DATE POOL PRINCIPAL BALANCE..................................................................11
CUT-OFF DATE PRINCIPAL BALANCE.......................................................................11
DEFECTIVE LOAN.......................................................................................11
DEFINITIVE CERTIFICATES..............................................................................11
DELETED LOAN.........................................................................................11
DENOMINATION.........................................................................................11
DEPOSITOR............................................................................................11
DEPOSITORY...........................................................................................11
DEPOSITORY PARTICIPANT...............................................................................11
DETERMINATION DATE...................................................................................12
DISTRIBUTION ACCOUNT.................................................................................12
DISTRIBUTION ACCOUNT DEPOSIT DATE....................................................................12
DISTRIBUTION DATE....................................................................................12
DUE DATE.............................................................................................12
DUE PERIOD...........................................................................................12
ELIGIBLE ACCOUNT.....................................................................................12
EQUITY ONE-DELAWARE..................................................................................12
EQUITY ONE-MINNESOTA.................................................................................13
EQUITY ONE-NEW HAMPSHIRE.............................................................................13
EQUITY ONE-PENNSYLVANIA..............................................................................13
ERISA................................................................................................13
ERISA QUALIFYING UNDERWRITING........................................................................13
ERISA-RESTRICTED CERTIFICATE.........................................................................13
ESCROW ACCOUNT.......................................................................................13
EVENT OF DEFAULT.....................................................................................13
EXCESS PROCEEDS......................................................................................13
EXPENSE RATE.........................................................................................13
FDIC.................................................................................................13
FHLMC................................................................................................13
FIRREA...............................................................................................14
FIRST STEPDOWN DATE..................................................................................14
FNMA.................................................................................................14
GROUP................................................................................................14
GROUP I FIXED WEIGHTED AVERAGE ADJUSTED NET MORTGAGE RATE............................................14
GROUP I LOANS........................................................................................14
GROUP II LOANS.......................................................................................14
GROUP I VARIABLE WEIGHTED AVERAGE ADJUSTED NET MORTGAGE RATE.........................................14
GROUP I WEIGHTED AVERAGE ADJUSTED NET MORTGAGE RATE..................................................14
ii
GROUP II WEIGHTED AVERAGE ADJUSTED NET MORTGAGE RATE.................................................14
GROUP PRINCIPAL BALANCE..............................................................................14
I&I PAYMENTS.........................................................................................15
INDIRECT PARTICIPANT.................................................................................15
INITIAL CERTIFICATE ACCOUNT DEPOSIT..................................................................15
INSURANCE AGREEMENT..................................................................................15
INSURANCE POLICY.....................................................................................15
INSURANCE PROCEEDS...................................................................................15
INSURED AMOUNT.......................................................................................15
INSURED EXPENSES.....................................................................................15
INSURER..............................................................................................15
INSURER DEFAULT......................................................................................15
INSURER'S MONTHLY PREMIUM............................................................................15
INTEREST ACCRUAL PERIOD..............................................................................15
INTEREST DISTRIBUTION AMOUNT.........................................................................16
INVESTMENT LETTER....................................................................................16
LATEST POSSIBLE MATURITY DATE........................................................................16
LIBOR................................................................................................16
LIBOR DETERMINATION DATE.............................................................................16
LIQUIDATED LOAN......................................................................................16
LIQUIDATION PROCEEDS.................................................................................16
LOANS................................................................................................17
LOAN LOSSES..........................................................................................17
LOAN SCHEDULE........................................................................................17
LOAN-TO-VALUE RATIO..................................................................................17
MAJORITY IN INTEREST.................................................................................18
MONTHLY STATEMENT....................................................................................18
MOODY'S..............................................................................................18
MORTGAGE.............................................................................................18
MORTGAGE FILE........................................................................................18
MORTGAGE NOTE........................................................................................18
MORTGAGE RATE........................................................................................18
MORTGAGED PROPERTY...................................................................................18
MORTGAGOR............................................................................................18
NET AVAILABLE FUNDS..................................................................................18
NET MONTHLY EXCESS INTEREST..........................................................................18
NET PREPAYMENT INTEREST SHORTFALLS...................................................................19
NET WAC CAP..........................................................................................19
NET WAC CAP ACCOUNT..................................................................................19
NET WAC CAP CARRYOVER................................................................................19
NET WAC CAP DEPOSIT AMOUNT...........................................................................19
NONRECOVERABLE ADVANCE...............................................................................19
NOTICE...............................................................................................19
NOTICE OF FINAL DISTRIBUTION.........................................................................19
NOTIONAL AMOUNT......................................................................................20
OFFERED CERTIFICATES.................................................................................20
OFFICER'S CERTIFICATE................................................................................20
OPINION OF COUNSEL...................................................................................20
OPTIONAL TERMINATION.................................................................................20
ORIGINAL LOAN........................................................................................20
OTS..................................................................................................20
OUTSTANDING..........................................................................................20
iii
OUTSTANDING LOAN.....................................................................................20
OVERCOLLATERALIZED AMOUNT............................................................................21
OVERCOLLATERALIZATION RELEASE AMOUNT.................................................................21
OVERCOLLATERALIZATION STEP-UP TRIGGER EVENT..........................................................21
OVERCOLLATERALIZATION TARGET AMOUNT..................................................................21
OWNERSHIP INTEREST...................................................................................21
PASS-THROUGH RATE....................................................................................21
PAYING AGENT.........................................................................................21
PERCENTAGE INTEREST..................................................................................21
PERMITTED INVESTMENTS................................................................................22
PERMITTED TRANSFEREE.................................................................................22
PERSON...............................................................................................23
POLICY...............................................................................................23
POOL PRINCIPAL BALANCE...............................................................................23
POPULAR FINANCIAL....................................................................................23
PREFERENCE CLAIM.....................................................................................23
PREPAYMENT INTEREST EXCESS...........................................................................23
PREPAYMENT INTEREST SHORTFALL........................................................................23
PREPAYMENT PERIOD....................................................................................24
PRIMARY MORTGAGE INSURANCE POLICY....................................................................24
PRINCIPAL PREPAYMENT.................................................................................24
PRINCIPAL PREPAYMENT IN FULL.........................................................................24
PROSPECTUS SUPPLEMENT................................................................................24
PURCHASE PRICE.......................................................................................24
PTCE 95-60...........................................................................................24
QUALIFIED INSURER....................................................................................24
RATE CHANGE DATE.....................................................................................24
RATING AGENCY........................................................................................24
RECORD DATE..........................................................................................25
REFERENCE BANKS......................................................................................25
REFINANCE LOAN.......................................................................................25
RELIEF ACT...........................................................................................25
RELIEF ACT REDUCTIONS................................................................................25
REMIC................................................................................................25
REMIC 1..............................................................................................25
REMIC 2..............................................................................................25
REMIC 3..............................................................................................25
REMIC 2 ACCRUAL CLASS................................................................................25
REMIC 2 ACCRETION DIRECTED CLASSES...................................................................25
REMIC CHANGE OF LAW..................................................................................25
REMIC PROVISIONS.....................................................................................26
REMITTANCE AMOUNT....................................................................................26
REO PROPERTY.........................................................................................26
RESERVE FUND.........................................................................................26
REQUEST FOR RELEASE..................................................................................26
REQUIRED INSURANCE POLICY............................................................................26
RESPONSIBLE OFFICER..................................................................................26
RULE 144A LETTER.....................................................................................26
SCHEDULED PAYMENT....................................................................................26
SECOND LIEN LOAN.....................................................................................26
SECURITIES ACT.......................................................................................26
SELLERS..............................................................................................26
iv
SERVICER.............................................................................................27
SERVICER ADVANCE DATE................................................................................27
SERVICING ADVANCES...................................................................................27
SERVICING AMOUNT.....................................................................................27
SERVICING FEE........................................................................................27
SERVICING FEE RATE...................................................................................27
SERVICING OFFICER....................................................................................27
S&P..................................................................................................27
STARTUP DAY..........................................................................................27
STATED PRINCIPAL BALANCE.............................................................................27
STEPDOWN DATE........................................................................................28
SUBSERVICER..........................................................................................28
SUBSTITUTE LOAN......................................................................................28
SUBSTITUTION ADJUSTMENT AMOUNT.......................................................................28
TAX MATTERS PERSON...................................................................................28
TAX MATTERS PERSON CERTIFICATE.......................................................................28
TRANSFER.............................................................................................28
TRANSFER AFFIDAVIT...................................................................................28
TRANSFEROR CERTIFICATE...............................................................................28
TRUSTEE..............................................................................................28
TRUSTEE FEE..........................................................................................29
TRUSTEE FEE RATE.....................................................................................29
TRUST FUND...........................................................................................29
UNDERWRITER EXEMPTION................................................................................29
VOTING RIGHTS........................................................................................29
YIELD MAINTENANCE AGREEMENT..........................................................................29
YIELD MAINTENANCE STATED TERMINATION.................................................................29
ARTICLE II CONVEYANCE OF LOANS; REPRESENTATIONS AND WARRANTIES...........................................29
SECTION 2.01. CONVEYANCE OF LOANS...................................................................29
SECTION 2.02. ACCEPTANCE BY TRUSTEE OF THE LOANS....................................................32
SECTION 2.03. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLERS AND THE SERVICER.............34
SECTION 2.03A. ADDITIONAL OBLIGATIONS OF EQUITY ONE-DELAWARE........................................36
SECTION 2.04. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR AS TO THE LOANS.......................36
SECTION 2.05. DELIVERY OF OPINION OF COUNSEL IN CONNECTION WITH SUBSTITUTIONS.......................36
SECTION 2.06. EXECUTION AND DELIVERY OF CERTIFICATES................................................37
SECTION 2.07. REMIC MATTERS.........................................................................37
SECTION 2.08. COVENANTS OF THE SERVICER.............................................................38
ARTICLE III ADMINISTRATION AND SERVICING OF LOANS........................................................38
SECTION 3.01. SERVICER TO SERVICE LOANS.............................................................38
SECTION 3.02. SUBSERVICING; ENFORCEMENT OF THE OBLIGATIONS OF SERVICERS.............................39
SECTION 3.03. RIGHTS OF THE DEPOSITOR AND THE TRUSTEE IN RESPECT OF THE SERVICER....................39
SECTION 3.04. TRUSTEE TO ACT AS SERVICER............................................................39
SECTION 3.05. COLLECTION OF LOAN PAYMENTS; CERTIFICATE ACCOUNT; DISTRIBUTION ACCOUNT................40
SECTION 3.06. PAYMENT OF TAXES, ASSESSMENTS, HAZARD INSURANCE PREMIUMS AND SIMILAR ITEMS;
ESCROW ACCOUNTS .................................................................................42
SECTION 3.07. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING THE LOANS...................42
v
SECTION 3.08. PERMITTED WITHDRAWALS FROM THE CERTIFICATE ACCOUNT AND DISTRIBUTION ACCOUNT...........43
SECTION 3.09. MAINTENANCE OF HAZARD INSURANCE; MAINTENANCE OF PRIMARY INSURANCE POLICIES............44
SECTION 3.10. ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS.............................45
SECTION 3.11. REALIZATION UPON DEFAULTED LOANS; REPURCHASE OF CERTAIN LOANS.........................46
SECTION 3.12. DOCUMENTS RECORDS AND FUNDS IN POSSESSION OF SERVICER TO BE HELD FOR THE TRUSTEE......48
SECTION 3.13. SERVICING COMPENSATION................................................................48
SECTION 3.14. ACCESS TO CERTAIN DOCUMENTATION.......................................................48
SECTION 3.15. ANNUAL STATEMENT AS TO COMPLIANCE.....................................................49
SECTION 3.16. ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING STATEMENT; FINANCIAL STATEMENTS......49
SECTION 3.17. ERRORS AND OMISSIONS INSURANCE; FIDELITY BONDS........................................49
SECTION 3.18. OPTIONAL REMOVAL OF SERVICER BY THE INSURER...........................................50
SECTION 3.19. DELINQUENT LOANS......................................................................50
ARTICLE IIIA POLICY; RESERVE FUND; AND net wac cap account..............................................50
SECTION 3A.01 POLICY................................................................................50
SECTION 3A.02 RESERVE FUND AND YIELD MAINTENANCE AGREEMENT..........................................51
SECTION 3A.03. NET WAC CAP ACCOUNT..................................................................53
ARTICLE IV DISTRIBUTIONS AND ADVANCES BY THE SERVICER...................................................53
SECTION 4.01. ADVANCES..............................................................................53
SECTION 4.02. PRIORITIES OF DISTRIBUTION............................................................54
SECTION 4.03. MONTHLY STATEMENTS TO CERTIFICATEHOLDERS..............................................57
SECTION 4.04. REPORTING..............................................................................59
SECTION 5.01. THE CERTIFICATES......................................................................59
SECTION 5.02. CERTIFICATE REGISTER; REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES...........60
SECTION 5.03. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.....................................64
SECTION 5.04. PERSONS DEEMED OWNERS.................................................................64
SECTION 5.05. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.............................64
SECTION 5.06. MAINTENANCE OF OFFICE OR AGENCY.......................................................64
ARTICLE VI THE DEPOSITOR AND THE SERVICER...............................................................65
SECTION 6.01. RESPECTIVE LIABILITIES OF THE DEPOSITOR AND THE SERVICER..............................65
SECTION 6.02. MERGER OR CONSOLIDATION OF THE DEPOSITOR OR THE SERVICER..............................65
SECTION 6.03. LIMITATION ON LIABILITY OF THE DEPOSITOR, THE SELLERS, THE SERVICER AND OTHERS........65
SECTION 6.04. LIMITATION ON RESIGNATION OF SERVICER.................................................66
SECTION 6.05. INDEMNIFICATION.......................................................................66
ARTICLE VII DEFAULT.....................................................................................66
SECTION 7.01. EVENTS OF DEFAULT.....................................................................66
SECTION 7.02. TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR..............................................68
SECTION 7.03. NOTIFICATION TO CERTIFICATEHOLDERS....................................................69
ARTICLE VIII CONCERNING THE TRUSTEE....................................................................69
SECTION 8.01. DUTIES OF TRUSTEE.....................................................................69
SECTION 8.02 CERTAIN MATTERS AFFECTING THE TRUSTEE..................................................70
SECTION 8.03. TRUSTEE NOT LIABLE FOR CERTIFICATES OR LOANS..........................................72
SECTION 8.04. TRUSTEE MAY OWN CERTIFICATES..........................................................72
vi
SECTION 8.05. TRUSTEE'S FEES AND EXPENSES...........................................................72
SECTION 8.06. ELIGIBILITY REQUIREMENTS FOR TRUSTEE..................................................73
SECTION 8.07. RESIGNATION AND REMOVAL OF TRUSTEE....................................................73
SECTION 8.08. SUCCESSOR TRUSTEE.....................................................................74
SECTION 8.09. MERGER OR CONSOLIDATION OF TRUSTEE....................................................74
SECTION 8.10. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.........................................74
SECTION 8.11. TAX MATTERS...........................................................................75
SECTION 8.12. PERIODIC FILINGS......................................................................77
SECTION 8.13. APPOINTMENT OF CUSTODIANS.............................................................77
SECTION 8.14. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF CERTIFICATES.........................77
SECTION 8.15. SUITS FOR ENFORCEMENT.................................................................78
ARTICLE IX TERMINATION..................................................................................78
SECTION 9.01. TERMINATION UPON LIQUIDATION OR PURCHASE OF ALL LOANS.................................78
SECTION 9.02. FINAL DISTRIBUTION ON THE CERTIFICATES................................................78
SECTION 9.03. ADDITIONAL TERMINATION REQUIREMENTS...................................................79
ARTICLE X MISCELLANEOUS PROVISIONS......................................................................80
SECTION 10.01. AMENDMENT............................................................................80
SECTION 10.02. RECORDATION OF AGREEMENT; COUNTERPARTS...............................................81
SECTION 10.03. GOVERNING LAW........................................................................81
SECTION 10.04. INTENTION OF PARTIES.................................................................81
SECTION 10.05. NOTICES..............................................................................83
SECTION 10.06. SEVERABILITY OF PROVISIONS...........................................................84
SECTION 10.07. ASSIGNMENT...........................................................................84
SECTION 10.08. LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS...........................................84
SECTION 10.09. INSPECTION AND AUDIT RIGHTS..........................................................85
SECTION 10.10. CERTIFICATES NONASSESSABLE AND FULLY PAID............................................85
SECTION 10.11. THE CLOSING..........................................................................85
SECTION 10.12. INTERPRETATION.......................................................................85
SECTION 10.13. RIGHTS OF THE INSURER................................................................86
SECTION 10.14. NO PARTNERSHIP.......................................................................86
SECTION 10.15. PROTECTION OF ASSETS..................................................................86
SECTION 10.16. EXECUTION OF YIELD MAINTENANCE AGREEMENT..............................................86
SCHEDULE I..............................................................................................I-1
SCHEDULE IIA..........................................................................................IIA-1
SCHEDULE IIB..........................................................................................IIB-1
SCHEDULE IIC..........................................................................................IIC-1
SCHEDULE IID..........................................................................................IID-1
SCHEDULE IIE..........................................................................................IIE-1
SCHEDULE IIX..........................................................................................IIX-1
SCHEDULE IIIA........................................................................................IIIA-1
SCHEDULE IIIB........................................................................................IIIB-1
vii
SCHEDULE IIIC........................................................................................IIIC-1
SCHEDULE IIID.......................................................................................III-D-1
SCHEDULE IIIE.......................................................................................III-E-1
SCHEDULE IV............................................................................................IV-1
SCHEDULE V..............................................................................................V-1
SCHEDULE VI............................................................................................VI-1
SCHEDULE VII..........................................................................................VII-1
EXHIBIT A-1...........................................................................................A-1-1
EXHIBIT A-2...........................................................................................A-2-1
EXHIBIT A-3 ..........................................................................................A-3-1
EXHIBIT B-1...........................................................................................B-1-1
EXHIBIT B-2 ..........................................................................................B-2-1
EXHIBIT C...............................................................................................C-1
EXHIBIT D...............................................................................................D-1
EXHIBIT E...............................................................................................E-1
EXHIBIT F...............................................................................................F-1
EXHIBIT G...............................................................................................G-1
EXHIBIT H...............................................................................................H-1
EXHIBIT I...............................................................................................I-1
EXHIBIT J...............................................................................................J-1
EXHIBIT K...............................................................................................K-1
EXHIBIT L...............................................................................................L-1
EXHIBIT M...............................................................................................M-1
vii
THIS POOLING AND SERVICING AGREEMENT, dated as of March 31, 2002, by and
among Equity One ABS, Inc., a Delaware corporation, as depositor (the
"Depositor"), Equity One, Inc., a Delaware corporation, as a seller (in such
capacity, "Equity One-Delaware") and as servicer (in such capacity, the
"Servicer"), Equity One, Incorporated, a Pennsylvania corporation ("Equity
One-Pennsylvania"), Equity One, Inc., a Minnesota corporation ("Equity
One-Minnesota"), Equity One Consumer Loan Company, Inc., a New Hampshire
corporation ("Equity One-New Hampshire"), Popular Financial Services, LLC, a
Delaware limited liability company ("Popular Financial" and, together with
Equity One-Delaware, Equity One-Pennsylvania, Equity One-Minnesota and Equity
One-New Hampshire, the "Sellers") and JPMorgan Chase Bank, a New York banking
corporation organized under the laws of the State of New York, as trustee (the
"Trustee").
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the parties
hereto agree as follows:
PRELIMINARY STATEMENT
The Trust Fund (exclusive of the Net WAC Cap Account and the Reserve Fund)
for federal income tax purposes will consist of three REMICs ("REMIC 1," "REMIC
2," and "REMIC 3"). The Certificates will represent the entire beneficial
ownership interest in the Trust Fund. The Loans will constitute the assets of
REMIC 1, and REMIC 1 will issue three uncertificated regular interests that will
constitute a portion of the assets of REMIC 2. The REMIC 1 regular interests
will constitute the assets of REMIC 2. REMIC 2 will issue six uncertificated
regular interests that will constitute the assets of REMIC 3. The Class R-1,
Class R-2, and Class R-3 Interests will be the residual interests in each of
REMIC 1, REMIC 2, and REMIC 3, respectively. The Class AF-1 Certificates
(exclusive of any right to receive Net WAC Cap Carryover) and Class AV-1
Certificates (exclusive of any right to receive Net WAC Cap Carryover or
payments from the Reserve Fund) and the Class AF-2, Class AF-3, Class AF-4,
Class A-IO and Class X Certificates will represent the "regular interests" in
REMIC 3 and the Class R Certificates will represent the single "residual
interest" in each of REMIC 1, REMIC 2, and REMIC 3. All interests created hereby
will be retired on or before the Latest Possible Maturity Date.
REMIC 1
The following table sets forth the class designation, the initial notional
balance, the pass-through rate, and the rate change date for each REMIC 1
regular interest.
-------------------- ------------------- ----------------- -------------------
Class Designation Initial Notional Pass-Through Rate Rate Change Date
Balance
-------------------- ------------------- ----------------- -------------------
Class 1A-A $19,000,000 (1) April 2004
-------------------- ------------------- ----------------- -------------------
Class 1A-B (2) (1) N/A
-------------------- ------------------- ----------------- -------------------
Class 1B-A (3) (4) N/A
-------------------- ------------------- ----------------- -------------------
(1) The Group I Weighted Average Adjusted Net Mortgage Rate.
(2) The Class 1A-B regular interest will have an initial notional balance equal
to the sum of the aggregate initial principal balances of all Group I Loans
less the initial notional balance of the Class 1A-A regular interest.
(3) The Class 1B-A Regular Interest will have an initial notional balance equal
to the sum of the aggregate initial principal balances of all Group II
Loans.
1
(4) The Group II Variable Weighted Average Adjusted Net Mortgage Rate.
All payments of principal and realized losses generated by the Group I
Loans shall be allocated first to the Class 1A-B regular interests (until
reduced to zero). Subsequent realized losses and payments of principal will be
allocated to the Class 1A-A regular interests (until reduced to zero). All
payments of principal and realized losses generated by the Group II Loans shall
be allocated to the Class 1B-A Regular Interests (until reduced to zero).
REMIC 2
REMIC 2 will be evidenced by the Class 2 Accrual Interest (the "REMIC 2
Accrual Class"), the Class 2-AF-1 Interest, Class 2-AF-2 Interest, Class 2-AF-3
Interest, Class 2-AF-4 Interest, Class 2-AV-1 Interest (the "REMIC 2 Accretion
Directed Classes"), and the Class 2-A-IO Interest, which will be uncertificated
and non-transferable, and are hereby designated as the "regular interests" in
REMIC 2 for federal income tax purposes and will have the following
designations, initial principal balances, pass-through rates, and Corresponding
Classes of REMIC 3 Certificates ("Corresponding Classes"):
- ---------------------- --------------------------------- ----------------------- -----------------
Corresponding
REMIC 2 Interests Initial Balance Pass-Through Rate Class
- ---------------------- --------------------------------- ----------------------- -----------------
Class 2-AF-1 (1/2initial Corresponding Class Adjusted Net WAC Rate AF-1
Certificate Balance)
- ---------------------- --------------------------------- ----------------------- -----------------
Class 2-AF-2 (1/2initial Corresponding Class Adjusted Net WAC Rate AF-2
Certificate Balance)
- ---------------------- --------------------------------- ----------------------- -----------------
Class 2-AF-3 (1/2initial Corresponding Class Adjusted Net WAC Rate AF-3
Certificate Balance)
- ---------------------- --------------------------------- ----------------------- -----------------
Class 2-AF-4 (1/2initial Corresponding Class Adjusted Net WAC Rate AF-4
Certificate Balance)
- ---------------------- --------------------------------- ----------------------- -----------------
Class 2-AV-1 (1/2initial Corresponding Class Adjusted Net WAC Rate AV-1
Certificate Balance)
- ---------------------- --------------------------------- ----------------------- -----------------
Class 2-A-IO (1) (1) N/A
- ---------------------- --------------------------------- ----------------------- -----------------
REMIC 2 Accrual Class (1/2Pool Principal Balance plus Adjusted Net WAC Rate N/A
1/2 Overcollateralized Amount)
- ---------------------- --------------------------------- ----------------------- -----------------
(1) The Class 2-A-IO interest will not have a principal balance but will have a
notional balance equal to the notional balance of the Class 1A-A Interest,
and will have a pass-through rate equal to (a) from the Startup Day through
the Rate Change Date, 6.00%, and (b) thereafter, 0%.
On each Distribution Date, 50% of any increase in the Overcollateralized
Amount will be payable as a reduction of the principal balances of the REMIC 2
Accretion Directed Classes (to each REMIC 2 Accretion Directed Class in an
amount equal to 1/2 of the amount paid in reduction of its Corresponding Class).
All payments of scheduled principal and prepayments of principal generated by
the Loans shall be allocated 50% to the REMIC 2 Accrual Class and 50% to the
REMIC 2 Accretion Directed Classes (to each REMIC 2 Accretion Directed Class in
an amount equal to 1/2 of the amount paid in reduction of its Corresponding
Class, until paid in full). Notwithstanding the above, principal payments that
are attributable to an Overcollateralization Release Amount shall be allocated
to the REMIC 2 Accrual Class (until paid in full). Realized losses shall be
applied such that after all distributions have been made on each Distribution
Date the principal balances of (a) each of the REMIC 2 Accretion Directed
Classes is equal to 50% of the Class Certificate Balance of its respective
Corresponding Class, and (b) the REMIC 2 Accrual Class is equal to 50% of the
aggregate principal balance of the Loans plus 50% of the
2
Overcollateralized Amount. On each Distribution Date, the Class 2-A-IO Interest
will have a notional balance equal to the notional balance of the Class 1A-A
Interest for such Distribution Date.
REMIC 3
The following table sets forth characteristics of the Certificates, each of
which, except for the Class R Certificates, is hereby designated a "regular
interest" in REMIC 3, together with the minimum denominations and integral
multiples in excess thereof in which such Classes shall be issuable (except that
one Certificate of each Class of Certificates may be issued in a different
amount and, in addition, one Class R Certificate representing the Tax Matters
Person Certificate may be issued in a different amount):
- ------------- ----------------------- --------------------------- ----------------- ----------------------
Initial Class Pass-Through Rate Minimum Integral Multiples in
Certificate Balance Denomination Excess of Minimum
- ------------- ----------------------- --------------------------- ----------------- ----------------------
Class AF-1 $89,800,000 LIBOR + 0.150% (1) $25,000 $1
- ------------- ----------------------- --------------------------- ----------------- ----------------------
Class AF-2 $32,200,000 5.025% (1) $25,000 $1
- ------------- ----------------------- --------------------------- ----------------- ----------------------
Class AF-3 $37,700,000 5.773% (1) $25,000 $1
- ------------- ----------------------- --------------------------- ----------------- ----------------------
Class AF-4 $30,282,000 6.539% (1)(2) $25,000 $1
- ------------- ----------------------- --------------------------- ----------------- ----------------------
Class AV-1 $97,570,000 LIBOR + 0.280% (1)(3) $25,000 $1
- ------------- ----------------------- --------------------------- ----------------- ----------------------
Class A-IO $19,000,000 (4) 6.000% (4) $25,000 $1
- ------------- ----------------------- --------------------------- ----------------- ----------------------
Class X (5) (6) N/A N/A
- ------------- ----------------------- --------------------------- ----------------- ----------------------
Class R $0 N/A $25,000 N/A
- ------------- ----------------------- --------------------------- ----------------- ----------------------
(1) As to any Distribution Date, this rate shall equal the lesser of (a) the
rate per annum set forth above and (b) the applicable Net WAC Cap.
(2) After the Optional Termination Date, this rate will increase to 7.039% per
annum.
(3) After the Optional Termination Date, this rate will increase to LIBOR +
0.560% per annum.
(4) The Class A-IO Certificates do not have a principal balance and are not
entitled to any principal payments, but will accrue interest at a rate of
6.0000% on a notional balance equal to (a) as to any Distribution Date
prior to and including the Distribution Date in April 2004, the lesser of
(i) $19,000,000 and (ii) the aggregate Stated Principal Balance of the
Group I Loans as of such Distribution Date, and (b) as to any Distribution
Date after the Distribution Date in April 2004, zero. The Class A-IO
Certificates are not entitled to distributions after the Distribution Date
in April 2004. For federal income tax purposes, the Class A-IO Certificates
will be entitled to 100% of the interest on the Class 2-A-IO Interest.
(5) On each Distribution Date, the Class X Certificates will have a notional
balance equal to the Pool Principal Balance.
(6) As to any Distribution Date, the Pass-Through Rate for the Class X
Certificates shall equal the excess of: (a) the Adjusted Net WAC Rate over
(b) the product of: (i) two and (ii) the weighted average Pass-Through Rate
of the REMIC 2 Regular Interests (excluding the Class 2-A-IO Interest),
where the REMIC 2 Accrual Class is subject to a cap equal to zero and each
REMIC 2 Accretion Directed Class is subject to a cap equal to the
Pass-Through Rate on its Corresponding Class.
All fixed interest rates set forth in this Agreement are calculated based
on a year consisting of twelve 30-day months (30/360). All adjustable interest
rates set forth in this Agreement are calculated based on a 360-day year and the
actual number of days elapsed in the related Interest Accrual Period.
3
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Adjusted Mortgage Rate
----------------------
As to each Loan, and at any time, the per annum rate equal to the
Mortgage Rate less the Servicing Fee Rate.
Adjusted Net Mortgage Rate
--------------------------
As to each Loan, and at any time, the per annum rate equal to the
Mortgage Rate less the related Expense Rate, and in the case of any Group II
Loan, less an additional 0.50% per annum.
Adjusted Net WAC Rate
---------------------
As to any Distribution Date, a rate equal to (a) the weighted average
Adjusted Net Mortgage Rate of all Outstanding Loans, less (b) a percentage equal
to the product of (x) 6.00% and (y) a fraction, the numerator of which is the
Notional Balance of the Class A-IO Certificates on such Distribution Date and
the denominator of which is the Pool Principal Balance of the Loans before
giving effect to any distribution on such Distribution Date, such rate to be
calculated based on the principal balances of such Outstanding Loans as of the
first day of the related Interest Accrual Period on the basis of either (a) a
360-day year and the actual number of days elapsed in the related Interest
Accrual Period or (b) a 360-day year made up of twelve 30-day months, as
applicable. For federal income tax purposes, the Adjusted Net WAC Rate will
equal the weighted average rate of the REMIC 1 regular interests where: (i) the
Class 1A-A Interest has a rate equal to (A) from the Startup Day to the Rate
Change Date, the Group I Weighted Average Adjusted Net Mortgage Rate minus
6.00%, and (B) from thereafter, the Group I Weighted Average Adjusted Net
Mortgage Rate, (ii) the Class 1A-B Interest has a rate equal to the Group I
Weighted Average Adjusted Net Mortgage Rate, (iii) the Class 1B-A Interest has a
rate equal to the Group II Weighted Average Adjusted Net Mortgage Rate.
Advance
-------
The payment required to be made by the Servicer with respect to any
Distribution Date pursuant to Section 4.01, the amount of any such payment being
equal to the aggregate of payments of principal and interest (net of the
Servicing Fee) on the Loans that were due on such Loans' respective Due Dates in
the related Due Period and not received as of the close of business on the
Determination Date in the month of such Distribution Date, other than the
aggregate amount of any such delinquent payments that the Servicer, in its good
faith judgment, has determined would not be recoverable out of Insurance
Proceeds, Liquidation Proceeds or otherwise from the related Loans.
Agreement
---------
This Pooling and Servicing Agreement, together with all of the
exhibits and schedules hereto, and all amendments or supplements of any of the
foregoing.
Amount Held for Future Distribution
-----------------------------------
As to any Distribution Date and the Offered Certificates, the
aggregate amount held in the Certificate Account relating to the Applicable
Group at the close of business on the related Determination Date on account of
(a) Principal Prepayments relating to the Applicable Group received after the
Prepayment Period corresponding to such Distribution Date and Liquidation
Proceeds relating to the Applicable Group received in the month of such
Distribution Date and (b) all Scheduled Payments due after the Applicable
Group's Loans' respective Due Dates in the related Due Period.
4
Applicable Group
----------------
Either the Group I Loans or the Group II Loans as the case may be, but
with respect to the Class AF Certificates and the Class A-IO Certificates, the
Group I Loans, and with respect to the Class AV-1 Certificates, the Group II
Loans.
Available Funds
---------------
As to any Distribution Date and either the Class AF Certificates and
Class A-IO Certificates or the Class AV-1 Certificates the sum of (a) the
aggregate amount held in the Certificate Account relating to the Applicable
Group at the close of business on the related Determination Date net of the
Amount Held for Future Distribution relating to the Applicable Group and net of
amounts permitted to be withdrawn from the Certificate Account pursuant to
clauses (i)-(viii), inclusive, of Section 3.08(a) relating to the Applicable
Group and amounts permitted to be withdrawn from the Distribution Account
pursuant to clauses (i)-(iii) inclusive of Section 3.08(b) relating to the
Applicable Group, (b) the amount of the related Advance, if any, relating to the
Applicable Group and (c) in connection with Defective Loans, as applicable, the
aggregate of the Purchase Prices and Substitution Adjustment Amounts relating to
the Applicable Group deposited in the Distribution Account on the related
Distribution Account Deposit Date, and (d) with respect to the initial
Distribution Date, the Initial Certificate Account Deposit.
Balloon Loans
-------------
Loans with balloon payments.
Bankruptcy Code
---------------
The United States Bankruptcy Reform Act of 1978, as amended, and
related rules promulgated thereunder.
Beneficial Owner
----------------
With respect to any Book-Entry Certificate, the Person who is the
beneficial owner of such Book-Entry Certificate.
Book-Entry Certificates
-----------------------
The Offered Certificates.
Business Day
------------
Any day other than (a) a Saturday or a Sunday or (b) a day on which
banking institutions in New York City, or in the city where the chief executive
office of the Servicer is located, are authorized or obligated by law or
executive order to be closed.
Call Option Date
----------------
The first Distribution Date following the date on which the Optional
Termination may be exercised by the Servicer.
Certificates
------------
The Offered Certificates, the Class R Certificates and the Class X
Certificates.
Certificate Account
-------------------
The separate Eligible Account created and maintained by the Servicer
pursuant to Section 3.05 with a depository institution in the name of the
Servicer for the benefit of the Trustee on behalf of Certificateholders and the
Insurer and designated "Certificate Account, Equity One, Inc., as trustee for
the registered holders of Equity One ABS, Inc., Mortgage Pass-Through
Certificates Series 2002-2."
5
Certificate Balance
-------------------
With respect to any Class A Certificate at any time, the maximum
dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the Denomination thereof minus all
distributions of principal previously made with respect thereto.
Certificate Formula Principal Amount
------------------------------------
As to any Distribution Date and with respect to either the Class AF or
Class AV-1 Certificates, the excess of (a) the sum of (i) the principal portion
of each Scheduled Payment due on each Loan in the Applicable Group on such
Loan's Due Date in the related Due Period, (ii) the Stated Principal Balance of
each Loan in the Applicable Group that was repurchased by a Seller or the
Servicer pursuant to this Agreement as of such Distribution Date, (iii) the
Substitution Adjustment Amount in connection with any Deleted Loan from the
Applicable Group received with respect to such Distribution Date, (iv) any
Insurance Proceeds or Liquidation Proceeds allocable to recoveries of principal
of Loans in the Applicable Group that are not yet Liquidated Loans received
during the related Due Period, (v) with respect to each Loan in the Applicable
Group that became a Liquidated Loan during the related Due Period, the amount of
Liquidation Proceeds allocable to principal received during the related Due
Period with respect to such Loan, (vi) all Principal Prepayments on Loans in the
Applicable Group received during the related Prepayment Period, and (vii) the
principal portion of any Loan Losses on Loans in the Applicable Group incurred
during the related Due Period, over (b) the Class AF Overcollateralization
Release Amount or the Class AV-1 Overcollateralization Release Amount, as
applicable, for such Distribution Date.
Certificateholder or Holder
---------------------------
The person in whose name a Certificate is registered in the
Certificate Register, except that, solely for the purpose of giving any consent
pursuant to this Agreement, any Certificate registered in the name of the
Depositor or any affiliate of the Depositor shall be deemed not to be
Outstanding and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage Interests
necessary to effect such consent has been obtained; provided, however, that if
any such Person (including the Depositor) owns 100% of the Percentage Interests
evidenced by a Class of Certificates, such Certificates shall be deemed to be
Outstanding for purposes of any provision hereof that requires the consent of
the Holders of Certificates of a particular Class as a condition to the taking
of any action hereunder. The Trustee is entitled to rely conclusively on a
certification of the Depositor or any affiliate of the Depositor in determining
which Certificates are registered in the name of an affiliate of the Depositor.
Certificate Register
--------------------
The register maintained pursuant to Section 5.02.
Certificate Registrar
---------------------
JPMorgan Chase Bank and its successors and, if a successor certificate
registrar is appointed hereunder, such successor.
Class
-----
All Certificates bearing the same class designation as set forth in
the Preliminary Statement.
Class A Certificates
--------------------
The Class AF Certificates and the Class AV-1 Certificates.
6
Class AF Available Funds Shortfall
----------------------------------
As to any Distribution Date, the amount, if any, by which the amount
of Available Funds relating to the Class AF and Class A-IO Certificates for such
Distribution Date is less than the sum of (a) the aggregate amount required to
be distributed to, or in respect of, the Class AF and Class A-IO Certificates
pursuant to Section 4.02 (a)(i)-(vi), and (b) the amount, if any, required to be
distributed on that Distribution Date to satisfy the Class AF
Overcollateralization Target Amount.
Class AF Certificates
---------------------
The Class AF-1, Class AF-2, Class AF-3 and Class AF-4 Certificates.
Class AF-1 Certificate
----------------------
Any Certificate executed and authenticated by the Trustee
substantially in the form attached hereto as Exhibit A-1 and designated as a
Class AF-1 Certificate.
Class AF-2 Certificate
----------------------
Any Certificate executed and authenticated by the Trustee
substantially in the form attached hereto as Exhibit A-1 and designated as a
Class AF-2 Certificate.
Class AF-3 Certificate
----------------------
Any Certificate executed and authenticated by the Trustee
substantially in the form attached hereto as Exhibit A-1 and designated as a
Class AF-3 Certificate.
Class AF-4 Certificate
----------------------
Any Certificate executed and authenticated by the Trustee
substantially in the form attached hereto as Exhibit A-1 and designated as a
Class AF-4 Certificate.
Class AF Distributable Excess Spread
------------------------------------
With respect to the Class AF Certificates and any Distribution Date,
the lesser of (a) the excess, if any, of the Class AF Overcollateralization
Target Amount for such Distribution Date over the Class AF Overcollateralized
Amount for such Distribution Date after giving effect to all other distributions
of principal on the Class AF Certificates on such Distribution Date and (b) Net
Monthly Excess Interest for the Class AF Certificates.
Class AF Distributable Funds
----------------------------
The sum of (a) the amount of Available Funds relating to the Class AF
Certificates and the Class A-IO Certificates and (b) any Insured Amounts for the
Class AF Certificates and the Class A-IO Certificates, in each case with respect
to the related Distribution Date.
Class AF Overcollateralization Release Amount
---------------------------------------------
With respect to any Distribution Date, the excess, if any, of (a) the
Class AF Overcollateralized Amount (assuming that the amount described in clause
(a) of the definition of Certificate Formula Principal Amount relating to the
Class AF Certificates was distributed to the Class AF Certificates), over (b)
the Class AF Overcollateralization Target Amount for such Distribution Date.
Class AF Overcollateralization Target Amount
--------------------------------------------
(a) on any Distribution Date occurring prior to the Stepdown Date and
as long as no Overcollateralization Step-Up Trigger Event is in effect, an
amount equal to the greatest of (i) 3.50% (provided, however, that if an
Overcollateralization Step-Up Trigger Event is in effect, the applicable
percentage shall be 5.50%) of the Cut-off Date Group I Principal Balance, (ii)
80% of the aggregate principal balance of Group I Loans that are Balloon Loans
with original terms less than or equal to 36 months which are 60 or more days
delinquent (including Group I Loans in foreclosure and REO
7
Properties), and (iii) the aggregate principal balance of the Group I Loans
which are 90 or more days delinquent (including Group I Loans in foreclosure and
REO Properties); and
(b) on any Distribution Date occurring on or after the Stepdown Date
and as long as no Overcollateralization Step-Up Trigger Event is in effect, an
amount equal to the greatest of (i) 7.00% (provided, however, that if an
Overcollateralization Step-Up Trigger Event is in effect, the applicable
percentage shall be 11.00%) of the Group Principal Balance of the Group I Loans
as of such Distribution Date, (ii) the sum of the outstanding principal balances
of the three largest Group I Loans as of such date, (iii) 0.50% of the Cut-off
Date Group I Principal Balance, (iv) 80% of the aggregate principal balance of
Group I Loans that are Balloon Loans with original terms less than or equal to
36 months which are 60 or more days delinquent (including Group I Loans in
foreclosure and REO Properties) and (v) the aggregate principal balance of the
Group I Loans which are 90 or more days delinquent (including Group I Loans in
foreclosure and REO Properties).
Class AF Overcollateralized Amount
----------------------------------
For any Distribution Date, the amount, if any, by which (a) the Group
Principal Balance of the Group I Loans on the last day of the immediately
preceding Due Period exceeds (b) the sum of the Class Certificate Balances of
all of the Classes of Class AF Certificates as of such Distribution Date after
giving effect to distributions to be made on all Classes of the Class AF
Certificates on such Distribution Date.
Class A-IO Certificates
-----------------------
Any Certificate executed and authenticated by the Trustee
substantially in the form attached hereto as Exhibit A-3 and designated as a
Class A-IO Certificate.
Class AV-1 Available Funds Shortfall
------------------------------------
As to any Distribution Date, the amount, if any, by which the amount
of Available Funds relating to the Class AV-1 Certificates for such Distribution
Date is less than the sum of (a) the aggregate amount required to be distributed
to, or in respect of, the Class AV-1 Certificates pursuant to Section
4.02(b)(i)-(vi), and (b) the amount, if any, required to be distributed on that
Distribution Date to satisfy the Class AV-1 Overcollateralization Target Amount.
Class AV-1 Certificate
----------------------
Any Certificate executed and authenticated by the Trustee
substantially in the form attached hereto as Exhibit A-2 and designated as a
Class AV-1 Certificate.
Class AV-1 Distributable Excess Spread
--------------------------------------
With respect to the Class AV-1 Certificates and any Distribution Date,
the lesser of (a) the excess, if any, of the Class AV-1 Overcollateralization
Target Amount for such Distribution Date over the Class AV-1 Overcollateralized
Amount for such Distribution Date after giving effect to all other distributions
of principal on the Class AV-1 Certificates on such Distribution Date and (b)
Net Monthly Excess Interest for the Class AV-1 Certificates.
Class AV-1 Distributable Funds
------------------------------
The sum of (a) the amount of Available Funds relating to the Class
AV-1 Certificates and (b) any Insured Amounts for the Class AV-1 Certificates,
in each case with respect to the related Distribution Date.
Class AV-1 Overcollateralization Release Amount
-----------------------------------------------
With respect to any Distribution Date, the excess, if any, of (a) the
Class AV-1 Overcollateralized Amount (assuming that the amount described in
clause (a) of the definition of
8
Certificate Formula Principal Amount relating to the Class AV-1 Certificates was
distributed to the Class AV-1 Certificates), over (b) the Class AV-1
Overcollateralization Target Amount for such Distribution Date.
Class AV-1 Overcollateralization Target Amount
----------------------------------------------
(a) on any Distribution Date occurring prior to the Stepdown Date and
as long as no Overcollateralization Step-Up Trigger Event is in effect, an
amount equal to the greatest of (i) 7.00% (provided, however, that if an
Overcollateralization Step-Up Trigger Event is in effect, the applicable
percentage shall be 9.00%) of the Cut-off Date Group II Principal Balance, (ii)
80% of the aggregate principal balance of Group II Loans that are Balloon Loans
with original terms less than or equal to 36 months which are 60 or more days
delinquent (including Group II Loans in foreclosure and REO Properties), and
(iii) the aggregate principal balance of the Group II Loans which are 90 or more
days delinquent (including Group II Loans in foreclosure and REO Properties);
and
(b) on any Distribution Date occurring on or after the Stepdown Date
and as long as no Overcollateralization Step-Up Trigger Event is in effect, an
amount equal to the greatest of (i) 14.00% (provided, however, that if an
Overcollateralization Step-Up Trigger Event is in effect, the applicable
percentage shall be 18.00%) of the Group Principal Balance of the Group II Loans
as of such Distribution Date, (ii) the sum of the outstanding principal balances
of the three largest Group II Loans as of such date, (iii) 0.50% of the sum of
the Cut-off Date Group II Principal Balance, (iv) 80% of the aggregate principal
balance of Group II Loans that are Balloon Loans with original terms less than
or equal to 36 months which are 60 or more days delinquent (including Group II
Loans in foreclosure and REO Properties) and (v) the aggregate principal balance
of the Group II Loans which are 90 or more days delinquent (including Group II
Loans in foreclosure and REO Properties).
Class AV-1 Overcollateralized Amount
------------------------------------
For any Distribution Date, the amount, if any, by which (a) the Group
Principal Balance of the Group II Loans on the last day of the immediately
preceding Due Period exceeds (b) the Class Certificate Balance of the Class AV-1
Certificates as of such Distribution Date after giving effect to distributions
to be made on such Class AV-1 Certificates on such Distribution Date.
Class Certificate Balance
-------------------------
With respect to any Class of Class A Certificates and as to any
Distribution Date, the aggregate of the Certificate Balances of all Certificates
of such Class as of such date. The Class Certificate Balance of the Class R
Certificates shall be zero.
Class Interest Shortfall
------------------------
As to any Distribution Date and any Class of Offered Certificates, the
amount by which the amount described in clause (a) of the definition of Interest
Distribution Amount for such Class exceeds the amount of interest actually
distributed on such Class on such Distribution Date pursuant to such clause (a).
Class R Certificates
--------------------
The certificates representing the single "residual interest" in each
of REMIC 1-A, REMIC 1-B, REMIC 2, and REMIC 3, in substantially the form
attached hereto as Exhibit B-1.
Class Unpaid Interest Amounts
-----------------------------
As to any Distribution Date and any Class of Offered Certificates, the
amount by which the aggregate Class Interest Shortfalls for such Class on prior
Distribution Dates exceeds the amount distributed on such Class on prior
Distribution Dates pursuant to clause (b) of the definition of Interest
Distribution Amount plus interest on such amount at the related Pass-Through
Rate.
9
Class X Certificate
-------------------
Any Certificate executed and authenticated by the Trustee
substantially in the form of attached hereto as Exhibit B-2 and designated as a
Class X Certificate.
Closing Date
------------
April 30, 2002.
Closing Place
-------------
The offices of Messrs. Stradley, Ronon, Stevens and Young, LLP, 2600
One Commerce Square, Philadelphia, Pennsylvania 19103.
Code
----
The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collateral
----------
The assets constituting the Loans, Mortgage Files and the Trust Fund,
and any and all contractual, legal, equitable or other rights in connection
therewith, and all proceeds thereof (but not including payments of interest and
principal due and payable with respect to the Loans on or before the Cut-off
Date).
Collateral Value
----------------
With respect to any Loan, other than Refinance Loans, an amount equal
to the lesser of (a) the appraised value of the related Mortgaged Property based
on an appraisal obtained by the originator from an independent fee appraiser at
the time of the origination of such Loan, and (b) if the Loan was originated
either in connection with the acquisition of the Mortgaged Property by the
borrower or within one year after acquisition of the Mortgaged Property by the
borrower, the purchase price paid by such borrower for the Mortgaged Property.
In the case of Refinance Loans, the Collateral Value is the appraised value of
the Mortgaged Property based upon the appraisal obtained at the time of
refinancing.
Corporate Trust Office
----------------------
The designated office of the Trustee in the State of New York at which
at any particular time its corporate trust business with respect to this
Agreement shall be administered, which office at the date of the execution of
this Agreement is located at 450 West 33rd Street, 14th Floor, New York, New
York 10001 (Attention: Institutional Trust Services, facsimile number:
212-946-8191) and which is the address to which notices to and correspondence
with the Trustee should be directed.
Corresponding Class
-------------------
As defined in the Preliminary Statement.
Counterparty
------------
Wachovia Bank, National Association, a national banking association.
Cross-Collateralization Amount
------------------------------
As to any Distribution Date and the Class AF and Class A-IO or Class
AV-1 Certificates, the amount to be distributed by the Trustee pursuant to
Section 4.02(a)(viii) or Section 4.02(b)(viii), respectively.
Custodial Agreement
-------------------
As defined in Section 8.13.
10
Custodian
---------
As defined in Section 8.13.
Cut-off Date
------------
March 31, 2002
Cut-off Date Group I Principal Balance
--------------------------------------
The aggregate of the Cut-off Date Principal Balances of the Group I
Loans on the Cut-off Date ($189,982,877.30).
Cut-off Date Group II Principal Balance
---------------------------------------
The aggregate of the Cut-off Date Principal Balances of the Group II
Loans on the Cut-off Date ($97,570,706.76).
Cut-off Date Pool Principal Balance
-----------------------------------
The sum of the Cut-off Date Group I Principal Balance and the Cut-off
Date Group II Principal Balance ($287,553,584.06).
Cut-off Date Principal Balance
------------------------------
As to any Loan, the Stated Principal Balance thereof as of the close
of business on the Cut-off Date.
Defective Loan
--------------
Any Loan which is required to be repurchased pursuant to Section 2.02
or 2.03.
Definitive Certificates
-----------------------
Any Certificate issued in lieu of a Book-Entry Certificate pursuant to
Section 5.02(e).
Deleted Loan
------------
As defined in Section 2.03(c).
Denomination
------------
With respect to each Offered Certificate, Class X Certificate or Class
R Certificate, the amount set forth on the face thereof as the "Initial
Certificate Balance of this Certificate," the "Initial Notional Amount of this
Certificate," or the Percentage Interest appearing on the face thereof.
Depositor
---------
Equity One ABS, Inc., a Delaware corporation, or its successor in
interest.
Depository
----------
The initial Depository shall be The Depository Trust Company, the
nominee of which is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(a)(5) of the Uniform Commercial Code of the State of
New York.
Depository Participant
----------------------
A broker, dealer, bank or other financial institution or other Person
for whom from time to time a Depository effects book-entry transfers and pledges
of securities deposited with the Depository.
11
Determination Date
------------------
As to any Distribution Date, the 21st day of each month or, if such
day is not a Business Day, the next preceding Business Day; provided, however,
that the Determination Date in each month will be at least two Business Days
preceding the related Distribution Date.
Distribution Account
--------------------
The separate Eligible Account created and maintained by the Trustee
pursuant to Section 3.05 in the name of the Trustee for the benefit of the
Certificateholders and the Insurer and designated "Distribution Account,
JPMorgan Chase Bank, as trustee for the registered holders of Equity One ABS,
Inc. Mortgage Pass-Through Certificates, Series 2002-2." Funds in the
Distribution Account shall be held uninvested in trust for the
Certificateholders and the Insurer for the uses and purposes set forth in this
Agreement.
Distribution Account Deposit Date
---------------------------------
As to any Distribution Date, 9:00 a.m. New York City Time on the
Business Day immediately preceding such Distribution Date.
Distribution Date
-----------------
The 25th day of each calendar month after the initial issuance of the
Certificates, or if such day is not a Business Day, the next succeeding Business
Day, commencing in May, 2002.
Due Date
--------
With respect to any Loan, the date on which scheduled payments of
interest and/or principal are due thereon, which date is a set day, but not
necessarily the first day, of each month.
Due Period
----------
With respect to any Distribution Date, the calendar month prior to the
month of such Distribution Date.
Eligible Account
----------------
Any of (a) an account or accounts maintained with a federal or state
chartered depository institution or trust company, the short-term unsecured debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the debt
obligations of such holding company) have the highest short-term ratings of each
Rating Agency at the time any amounts are held on deposit therein, or (b) an
account or accounts in a depository institution or trust company in which such
accounts are insured by the FDIC (to the limits established by the FDIC) and the
uninsured deposits in which accounts are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to the Trustee and to each Rating
Agency, the Certificateholders have a claim with respect to the funds in such
account or a perfected first priority security interest against any collateral
(which shall be limited to Permitted Investments) securing such funds that is
superior to claims of any other depositors or creditors of the depository
institution or trust company in which such account is maintained, or (c) a trust
account or accounts maintained with (i) the trust department of a federal or
state chartered depository institution or (ii) a trust company, acting in its
fiduciary capacity or (d) any other account acceptable to each Rating Agency and
the Insurer, as evidenced by a letter from such Rating Agency and Insurer to the
Trustee, without reduction or withdrawal of the then current ratings of the
Certificates. Eligible Accounts may bear interest, and may include, if otherwise
qualified under this definition, accounts maintained with the Trustee.
Equity One-Delaware
-------------------
Equity One, Inc., a Delaware corporation.
12
Equity One-Minnesota
--------------------
Equity One, Inc., a Minnesota corporation.
Equity One-New Hampshire
------------------------
Equity One Consumer Loan Company, Inc., a New Hampshire corporation.
Equity One-Pennsylvania
-----------------------
Equity One, Incorporated, a Pennsylvania corporation.
ERISA
-----
The Employee Retirement Income Security Act of 1974, as amended.
ERISA Qualifying Underwriting
-----------------------------
A best efforts or firm commitment underwriting or private placement
that meets the requirements (without regard to the ratings requirement or other
requirements that the securities or the investor must satisfy) of the
Underwriter Exemption, or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate
----------------------------
Any of the Class X Certificates or Class R Certificates; any
Certificate of a Class that ceases to satisfy the applicable rating requirements
of the Underwriter Exemption.
Escrow Account
--------------
The Eligible Account or Eligible Accounts established and maintained
by the Servicer pursuant to Section 3.06(a).
Event of Default
----------------
As defined in Section 7.01.
Excess Proceeds
---------------
With respect to any Liquidated Loan, the amount, if any, by which the
sum of any Liquidation Proceeds of such Loan received in the calendar month in
which such Loan became a Liquidated Loan, net of any amounts previously
reimbursed to the Servicer as Nonrecoverable Advance(s) with respect to such
Loan pursuant to Section 3.08(a)(iii), exceeds (i) the unpaid principal balance
of such Liquidated Loan as of the Due Date in the calendar month in which such
Loan became a Liquidated Loan plus (ii) accrued interest at the Mortgage Rate
from the Due Date as to which interest was last paid or advanced (and not
reimbursed) to Certificateholders up to the Due Date in the calendar month in
which such Loan became a Liquidated Loan.
Expense Rate
------------
As to each Loan, the sum of the related Servicing Fee Rate, the
Trustee Fee Rate and the rate at which the Insurer's Monthly Premium accrues.
FDIC
----
The Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC
-----
The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
13
FIRREA
------
The Financial Institutions Reform, Recovery, and Enforcement Act of
1989.
First Stepdown Date
-------------------
The earlier to occur of the Stepdown Date for the Class AF
Certificates or the Stepdown Date for the Class AV-1 Certificates.
FNMA
----
Fannie Mae, a federally chartered and privately owned corporation
organized and existing under the Federal National Mortgage Association Charter
Act, or any successor thereto.
Group
-----
Either the Group I Loans or the Group II Loans, as the case may be.
Group I Fixed Weighted Average Adjusted Net Mortgage Rate
---------------------------------------------------------
As to any Distribution Date and the Group I Loans, the weighted
average of the Adjusted Net Mortgage Rates of the Outstanding Loans in such
Group, such weighted average to be calculated based on the principal balances of
such Outstanding Loans as of the first day of the related Interest Accrual
Period on the basis of a 360-day year made up of twelve 30-day months.
Group I Loans
-------------
The mortgage loans identified as such on the Loan Schedule as of the
Closing Date.
Group II Loans
--------------
The mortgage loans identified as such on the Loan Schedule as of the
Closing Date.
Group I Variable Weighted Average Adjusted Net Mortgage Rate
------------------------------------------------------------
As to any Distribution Date and the Group I Loans, the weighted
average of the Adjusted Net Mortgage Rates of the Outstanding Loans in such
Group, such weighted average to be calculated based on the principal balances of
such Outstanding Loans as of the first day of the related Interest Accrual
Period on the basis of a 360-day year and the actual number of days elapsed in
the related Interest Accrual Period.
Group I Weighted Average Adjusted Net Mortgage Rate
---------------------------------------------------
As to any Distribution Date, the weighted average of the Group I Fixed
Weighted Average Adjusted Net Mortgage Rate and the Group I Variable Weighted
Average Adjusted Net Mortgage Rate, for such Distribution Date.
Group II Weighted Average Adjusted Net Mortgage Rate
----------------------------------------------------
As to any Distribution Date and the Group II Loans, the weighted
average of the Adjusted Net Mortgage Rates of the Outstanding Loans in such
Group, such weighted average to be calculated based on the principal balances of
such Outstanding Loans as of the first day of the related Interest Accrual
Period on the basis of a 360-day year and the actual number of days elapsed in
the related Interest Accrual Period.
Group Principal Balance
-----------------------
With respect to any Distribution Date and either the Group I Loans or
the Group II Loans, the aggregate of the Stated Principal Balances of the Loans
in such Group that were Outstanding Loans (including Loans in foreclosure and
REO Properties) on their Due Dates in the related Due Period.
14
I&I Payments
------------
Any payments due and owing to the Insurer under the Insurance
Agreement other than the Insurer's Monthly Premium.
Indirect Participant
--------------------
A broker, dealer, bank or other financial institution or other Person
that clears through or maintains a custodial relationship with a Depository
Participant.
Initial Certificate Account Deposit
-----------------------------------
As defined in Section 2.01(a).
Insurance Agreement
-------------------
The Insurance and Indemnity Agreement dated as of April 30, 2002,
among the Depositor, Equity One-Delaware (in its capacity as both a Seller and
the Servicer), the Trustee and the Insurer, including any amendments and
supplements thereto.
Insurance Policy
----------------
With respect to any Loan included in the Trust Fund, any insurance
policy, including all riders and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
Insurance Proceeds
------------------
Proceeds paid by an insurer (other than the Insurer) pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses.
Insured Amount
--------------
A payment by the Insurer under the Policy.
Insured Expenses
----------------
Expenses covered by an Insurance Policy.
Insurer
-------
Ambac Assurance Corporation, a stock insurance corporation organized
and created under the laws of the State of Wisconsin, and any successor thereto.
Insurer Default
---------------
Either (a) a continuance of any failure by the Insurer to make a
required payment under the Policy or (b) the existence of a proceeding in
bankruptcy by or against the Insurer.
Insurer's Monthly Premium
-------------------------
The premium payable to the Insurer on each Distribution Date in an
amount equal to one-twelfth of the product of the per annum rate specified in
the Insurance Agreement and the aggregate Class Certificate Balance of the Class
A Certificates on each Distribution Date (prior to giving effect to any
distributions of principal to be made on the Class A Certificates on such
Distribution Date).
Interest Accrual Period
-----------------------
With respect to the Class AF-1 and Class AV-1 Certificates and any
Distribution Date, the period commencing on the Distribution Date in the
calendar month prior to the month of such Distribution Date (or on the Closing
Date with respect to the first Distribution Date) and ending on the day
preceding such Distribution Date. With respect to the Class AF-2, Class AF-3,
Class AF-4 and Class
15
A-IO Certificates and any Distribution Date, the calendar month preceding the
month of such Distribution Date.
Interest Distribution Amount
----------------------------
With respect to any Distribution Date and each Class of the Offered
Certificates, the sum of (a) interest accrued during the related Interest
Accrual Period at the Pass-Through Rate for such Class on the related Class
Certificate Balance or Notional Amount, as applicable, reduced by such Class'
pro rata share of the amount of (i) Net Prepayment Interest Shortfalls and (ii)
Relief Act Reductions incurred on the Loans in the related Group during the
related Due Period (each such Class' pro rata share to be based on the amount of
interest to which such Class would have been entitled notwithstanding such Net
Prepayment Interest Shortfalls and Relief Act Reductions) and (b) any Class
Unpaid Interest Amounts for such Class.
Investment Letter
-----------------
As defined in Section 5.02(b).
Latest Possible Maturity Date
-----------------------------
The Distribution Date following the third anniversary of the scheduled
maturity date of the Loan having the latest scheduled maturity date as of the
Cut-off Date.
LIBOR
-----
As of any LIBOR Determination Date, the London interbank offered rate
for one-month United States dollar deposits which appears in the Dow Jones
Telerate Page 3750 as of 11:00 a.m., London time, on that date. If the rate does
not appear on Dow Jones Telerate Page 3750, the rate for that day will be
determined on the basis of the rates at which deposits in United States dollars
are offered by the Reference Banks at approximately 11:00 a.m. (London time), on
that day to prime banks in the London interbank market. The Trustee will request
the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two quotations are provided, the rate for
that day will be the arithmetic mean of the quotations (rounded upwards if
necessary to the nearest whole multiple of 1/16%). If fewer than two quotations
are provided as requested, the rate for that day will be the arithmetic mean of
the rates quoted by major banks in New York City, selected by the Trustee in
consultation with the Servicer and the Insurer, at approximately 11:00 a.m. (New
York City time) on that day for loans in United States dollars to leading
European banks.
LIBOR Determination Date
------------------------
With respect to any Interest Accrual Period for the Class AF-1 and
Class AV-1 Certificates, the second London business day preceding the
commencement of such Interest Accrual Period. For purposes of determining LIBOR,
a "London business day" is any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Liquidated Loan
---------------
With respect to any Distribution Date, a defaulted Loan (including any
REO Property) that was liquidated in a calendar month preceding the month of
such Distribution Date and as to which the Servicer has determined (in
accordance with this Agreement) that it has received all amounts it expects to
receive in connection with the liquidation of such Loan, including the final
disposition of an REO Property.
Liquidation Proceeds
--------------------
Amounts, including Insurance Proceeds, received in connection with the
partial or complete liquidation of defaulted Loans, whether through trustee's
sale, foreclosure sale or otherwise or amounts received in connection with any
condemnation or partial release of a Mortgaged Property and
16
any other proceeds received in connection with an REO Property, less the
Servicing Amount applicable to such defaulted Loans.
Loans
-----
The mortgage loans identified on the Loan Schedule.
Loan Losses
-----------
With respect to any Distribution Date, the aggregate amount, if any,
by which (a) the outstanding principal balance of each Loan that became a
Liquidated Loan during the related Due Period (such principal balance determined
immediately before such Loan became a Liquidated Loan) exceeds (b) the
Liquidation Proceeds allocable to principal received during the related Due
Period in connection with the liquidation of such Loan which have not
theretofore been used to reduce the Stated Principal Balance of such Loan.
Loan Schedule
-------------
As of any date, the list of Group I Loans and Group II Loans included
in the Trust Fund on such date, attached hereto as Schedule I (as from time to
time amended by the Servicer to reflect the addition of Substitute Loans to the
Applicable Group and the deletion of Deleted Loans from the Applicable Group
pursuant to the provisions of this Agreement), setting forth the following
information with respect to each Loan:
(a) an indication that such Loan is a Group I Loan or a Group II
Loan;
(b) the loan number;
(c) the Mortgagor's name and the state in which the Mortgaged
Property is located, including the zip code;
(d) the maturity date;
(e) the Cut-off Date Principal Balance;
(f) the first payment date of the Loan;
(g) lien position (either first or second);
(h) the Scheduled Payment in effect as of the Cut-off Date;
(i) the current Mortgage Rate; and
(j) the principal balance of the Loan at origination.
Such schedule shall also set forth the total of the amounts described
under (e) above for the Group I Loans, the Group II Loans and all of the Loans.
Loan-to-Value Ratio
-------------------
With respect to any Loan and as to any date of determination, the
fraction, expressed as a percentage, the numerator of which is the principal
balance of such Loan at the date of origination plus, in the case of a Second
Lien Loan, the outstanding principal balance of the related first lien mortgage
loan on the date of origination of such Second Lien Loan, and the denominator of
which is the Collateral Value of the related Mortgaged Property.
17
Majority in Interest
--------------------
As to each Class of Offered Certificates, the Holders of Certificates
of such Class evidencing, in the aggregate, at least 51% of the Percentage
Interests evidenced by all Certificates of such Class.
Monthly Statement
-----------------
The statement prepared by the Trustee pursuant to Section 4.03.
Moody's
-------
Moody's Investors Service, Inc., or any successor thereto. For
purposes of Section 10.05(b) the address for notices to Moody's shall be Moody's
Investors Service, Inc., 99 Church Street, New York, New York 10007, Attention:
Residential Mortgage Monitoring Department, or such other address as Moody's may
hereafter furnish to the Depositor or the Servicer.
Mortgage
--------
The mortgage, deed of trust or other instrument creating a first or
second lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
Mortgage File
-------------
The mortgage documents listed in Section 2.01 hereof pertaining to a
particular Loan and any additional documents delivered to the Trustee to be
added to the Mortgage File pursuant to this Agreement.
Mortgage Note
-------------
The original executed note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Loan, together with any
amendment or modification thereto.
Mortgage Rate
-------------
The annual rate of interest borne by a Mortgage Note as set forth
therein.
Mortgaged Property
------------------
The underlying property securing a Loan.
Mortgagor
---------
The obligor(s) on a Mortgage Note.
Net Available Funds
-------------------
As to any Distribution Date and either the Class AF Certificates and
the Class A-IO Certificates or the Class AV-1 Certificates, the amount equal to
Available Funds for such Class or Classes, less the amounts required to be
distributed on such Class or Classes on such Distribution Date pursuant to
Section 4.02(a)(i)-(iii) or 4.02(b)(i)-(iii), respectively.
Net Monthly Excess Interest
---------------------------
As to any Distribution Date and either the Class AF Certificates and
the Class A-IO Certificates or the Class AV-1 Certificates, the amount equal to
Available Funds for such Class or Classes less the amounts required to be
distributed on such Class or Classes on such Distribution Date pursuant to
Section 4.02(a)(i)-(vi) or 4.02(b)(i)-(vi), respectively.
18
Net Prepayment Interest Shortfalls
----------------------------------
As to any Distribution Date, the amount by which the aggregate of
Prepayment Interest Shortfalls during the related Due Period exceeds an amount
equal to the aggregate Servicing Fee for such Distribution Date before reduction
of the Servicing Fee in respect of such Prepayment Interest Shortfalls.
Net WAC Cap
-----------
As to any Distribution Date, the per annum rate equal to: (a) with
respect to the Class AF-2, Class AF-3 and Class AF-4 Certificates, the Group I
Fixed Weighted Average Adjusted Net Mortgage Rate as of the first day of the
related Due Period, reduced by a percentage equal to the product of (i) 6.00%
and (ii) a fraction, the numerator of which is the Notional Amount of the Class
A-IO Certificates on such Distribution Date and the denominator of which is the
Group Principal Balance of the Group I Loans before giving effect to any
distributions on such Distribution Date; (b) with respect to the Class AF-1
Certificates, the Group I Variable Weighted Average Adjusted Net Mortgage Rate
as of the first day of the related Due Period, reduced by a percentage equal to
the product of (i) 6.00% and (ii) a fraction, the numerator of which is the
Notional Amount of the Class A-IO Certificates on such Distribution Date and the
denominator of which is the Group Principal Balance of the Group I Loans before
giving effect to any distributions on such Distribution Date; and (c) with
respect to the Class AV-1 Certificates, the Group II Weighted Average Adjusted
Net Mortgage Rate as of the first day of the related Due Period.
Net WAC Cap Account
-------------------
The account established and maintained pursuant to Section 3A.03.
Net WAC Cap Carryover
---------------------
With respect to the Class AF-1 Certificates and the Class AV-1
Certificates and any Distribution Date, the sum of (a) the excess, if any, of
the Interest Distribution Amount for such Class for such Distribution Date,
calculated at its Pass-Through Rate (without regard to the applicable Net WAC
Cap), over the actual Interest Distribution Amount for such Class for such
Distribution Date, and (b) any related Net WAC Cap Carryover remaining unpaid
from prior Distribution Dates, together with one month of interest accrued
thereon at its Pass-Through Rate (without regard to the applicable Net WAC Cap).
Net WAC Cap Deposit Amount
--------------------------
As to any Distribution Date, an amount equal to the sum of (a) the
aggregate Net WAC Cap Carryover for such Distribution Date plus (b) the amount,
if any, needed to increase the aggregate amount on deposit in the Net WAC Cap
Account (after giving effect to all payments to be made pursuant to Section
4.02(c)) to $10,000.
Nonrecoverable Advance
----------------------
Any portion of an Advance previously made or proposed to be made by
the Servicer that, in the good faith judgment of the Servicer, will not be
ultimately recoverable by the Servicer from the related Mortgagor, related
Liquidation Proceeds or otherwise.
Notice
------
As defined in Section 3A.01.
Notice of Final Distribution
----------------------------
The notice to be provided pursuant to Section 9.02 to the effect that
final distribution on any of the Certificates shall be made only upon
presentation and surrender thereof.
19
Notional Amount
---------------
With respect to the Class A-IO Certificates and (a) as to any
Distribution Date prior to and including the Distribution Date in April 2004,
the lesser of (i) $19,000,000 and (ii) the aggregate Stated Principal Balance of
the Group I Loans as of such Distribution Date, and (b) as to any Distribution
Date after the Distribution Date in April 2004, zero.
Offered Certificates
--------------------
The certificates representing "regular interests" in REMIC 3, which
are designated as the Class A Certificates and the Class A-IO Certificates.
Officer's Certificate
---------------------
A certificate (a) signed by the Chairman of the Board, the Vice
Chairman of the Board, the President, a Managing Director, a Vice President
(however denominated), an Assistant Vice President, the Treasurer, the
Secretary, or one of the Assistant Treasurers or Assistant Secretaries of the
Depositor or the Servicer, or (b), if provided for in this Agreement, signed by
a Servicing Officer, as the case may be, and delivered to the Depositor and the
Trustee, as the case may be, as required by this Agreement.
Opinion of Counsel
------------------
A written opinion of counsel, who may be counsel for the Depositor or
the Servicer, including, in-house counsel, reasonably acceptable to the Trustee
and the Insurer; provided, however, that with respect to the interpretation or
application of the REMIC Provisions, such counsel must (a) in fact be
independent of the Depositor and the Servicer, (b) not have any direct financial
interest in the Depositor or the Servicer or in any affiliate of either, and (c)
not be connected with the Depositor or the Servicer as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions.
Optional Termination
--------------------
The termination of the trust created hereunder in connection with the
purchase of the Loans pursuant to Section 9.01(a) hereof.
Original Loan
-------------
The mortgage loan refinanced in connection with the origination of a
Refinance Loan.
OTS
---
The Office of Thrift Supervision.
Outstanding
-----------
With respect to the Certificates as of any date of determination, all
Certificates theretofore executed and authenticated under this Agreement except:
(a) Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(b) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to this
Agreement.
Outstanding Loan
----------------
As of any Due Date, a Loan with a Stated Principal Balance greater
than zero, which was not the subject of a Principal Prepayment in Full prior to
such Due Date and which did not become a Liquidated Loan prior to such Due Date.
20
Overcollateralized Amount
-------------------------
With respect to any Distribution Date, the sum of (a) the Class AF
Overcollateralized Amount and (b) the Class AV-1 Overcollateralized Amount for
such Distribution Date.
Overcollateralization Release Amount
------------------------------------
With respect to any Distribution Date, the sum of (a) the Class AF
Overcollateralization Release Amount and (b) the Class AV-1
Overcollateralization Release Amount for such Distribution Date.
Overcollateralization Step-up Trigger Event
-------------------------------------------
For any Distribution Date, the occurrence during the related Due
Period of an instance when the aggregate amount of cumulative Loan Losses on the
Loans exceeds the product of (a) the Cut-off Date Pool Principal Balance and (b)
the cumulative loss percentage in effect during such Due Period, as set forth in
the following table:
- ---------------------------------------- ---------------------------------------
Due Periods Cumulative Loss Percentage
- ---------------------------------------- ---------------------------------------
May 2003 - April 2004 0.75%
- ---------------------------------------- ---------------------------------------
May 2004 - April 2005 1.25%
- ---------------------------------------- ---------------------------------------
May 2005 - April 2006 2.00%
- ---------------------------------------- ---------------------------------------
May 2006 - April 2007 2.50%
- ---------------------------------------- ---------------------------------------
May 2007 and thereafter 3.00%
- ---------------------------------------- ---------------------------------------
Overcollateralization Target Amount
-----------------------------------
With respect to any Distribution Date, the sum of (a) the Class AF
Overcollateralization Target Amount and (b) the Class AV-1 Overcollateralization
Target Amount for such Distribution Date.
Ownership Interest
------------------
As to any Class R Certificate, any ownership interest in such
Certificate including any interest in such Certificate as the Holder thereof and
any other interest therein, whether direct or indirect, legal or beneficial.
Pass-Through Rate
-----------------
With respect to each Class of Certificates, as set forth in the
Preliminary Statement.
Paying Agent
------------
JPMorgan Chase Bank and its successors and, if a successor paying
agent is appointed hereunder, such successor.
Percentage Interest
-------------------
As to any Offered Certificate, the percentage interest evidenced
thereby in distributions required to be made to such Offered Certificate, such
percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class. With
respect to the Class X Certificates and the Class R Certificates, the
"Percentage Interest" specified on the face thereof.
21
Permitted Investments
---------------------
(a) obligations of the United States or any agency thereof, provided
such obligations are backed by the full faith and credit of the United States;
(b) general obligations of or obligations guaranteed by any state of the United
States or the District of Columbia receiving the highest long-term debt rating
of each Rating Agency rating the Offered Certificates, or such lower rating as
will not result in the downgrading or withdrawal of the ratings then assigned to
the Offered Certificates, without taking into account the Policy, by each such
Rating Agency; (c) commercial or finance company paper which is then receiving
the highest commercial or finance company paper rating of each such Rating
Agency, or such lower rating as will not result in the downgrading or withdrawal
of the ratings then assigned to the Offered Certificates, without taking into
account the Policy, by each such Rating Agency; (d) certificates of deposit,
demand or time deposits, or bankers' acceptances issued by any depository
institution or trust company incorporated under the laws of the United States or
of any state thereof and subject to supervision and examination by federal
and/or state banking authorities, provided that the commercial paper and/or long
term unsecured debt obligations of such depository institution or trust company
(or in the case of the principal depository institution in a holding company
system, the commercial paper or long-term unsecured debt obligations of such
holding company, but only if Moody's is not a Rating Agency) are then rated the
highest long-term and one of the two highest short-term ratings of each such
Rating Agency for such securities, or such lower ratings as will not result in
the downgrading or withdrawal of the rating then assigned to the Offered
Certificates, without taking into account the Policy, by any such Rating Agency;
(e) demand or time deposits or certificates of deposit issued by any bank or
trust company or savings institution to the extent that such deposits are fully
insured by the FDIC; (f) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation containing, at the time of the issuance
of such agreements, such terms and conditions as will not result in the
downgrading or withdrawal of the rating then assigned to the Offered
Certificates, without taking into account the Policy, by any such Rating Agency;
(g) repurchase obligations with respect to any security described in clauses (a)
and (b) above, in either case entered into with a depository institution or
trust company (acting as principal) described in clause (d) above; (h)
securities (other than stripped bonds, stripped coupons or instruments sold at a
purchase price in excess of 115% of the face amount thereof) bearing interest or
sold at a discount issued by any corporation incorporated under the laws of the
United States or any state thereof which, at the time of such investment, have
the highest long term rating and one of the two highest short term ratings of
each Rating Agency (except if the Rating Agency is Moody's, such rating shall be
the highest commercial paper rating of Moody's for any such securities), or such
lower rating as will not result in the downgrading or withdrawal of the rating
then assigned to the Offered Certificates, without taking into account the
Policy, by any such Rating Agency, as evidenced by a signed writing delivered by
each such Rating Agency; and (i) such other investments having a specified
stated maturity and bearing interest or sold at a discount acceptable to each
Rating Agency and the Insurer as will not result in the downgrading or
withdrawal of the rating then assigned to the Offered Certificates by any such
Rating Agency, as evidenced by a signed writing to such effect delivered by each
such Rating Agency and the Insurer; provided that no such instrument shall be a
Permitted Investment if such instrument evidences the right to receive interest
only payments with respect to the obligations underlying such instrument.
Permitted Transferee
--------------------
Any person other than (a) the United States, any State or political
subdivision thereof, or any agency or instrumentality of any of the foregoing,
(b) a foreign government, International Organization or any agency or
instrumentality of either of the foregoing, (c) an organization (except certain
farmers' cooperatives described in section 521 of the Code) which is exempt from
tax imposed by Chapter 1 of the Code (including the tax imposed by section 511
of the Code on unrelated business taxable income) on any excess inclusions (as
defined in section 860E(c)(l) of the Code) with respect to any Class R
Certificate, (d) rural electric and telephone cooperatives described in section
1381(a)(2)(C) of the Code, (e) a Person that is not (i) a citizen or resident of
the United States, (ii) a corporation or
22
partnership (or other entity properly treated as a corporation or partnership
for U.S. federal income tax purposes) created or organized in or under the laws
of the United States or any political subdivision thereof, (iii) an estate whose
income from sources without the United States is includible in gross income for
United States federal income tax purposes regardless of its connection with the
conduct of a trade or business within the United States, or (iv) a trust if a
court within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States Persons have authority
to control all substantial decisions of the trust, unless such Person listed in
clause (i), (ii), (iii) or (iv) above has furnished the transferor and the
Trustee with a duly completed Internal Revenue Service Form W-8ECI and (f) any
other Person so designated by the Depositor based upon an Opinion of Counsel
that the Transfer of an Ownership Interest in a Class R Certificate to such
Person may cause any REMIC hereunder to fail to qualify as one or more REMICs at
any time that the Certificates are outstanding. The terms "United States,"
"State" and "International Organization" shall have the meanings set forth in
section 7701 of the Code or successor provisions. A corporation will not be
treated as an instrumentality of the United States or of any State or political
subdivision thereof for these purposes if all of its activities are subject to
tax and, with the exception of the Federal Home Loan Mortgage Corporation, a
majority of its board of directors is not selected by such government unit.
Person
------
Any individual, corporation, partnership, limited liability company,
joint venture, association, joint-stock company, trust, unincorporated
organization or government, or any agency or political subdivision thereof.
Policy
------
The Certificate Guaranty Insurance Policy (No. AB0550BE) with respect
to the Offered Certificates, and all endorsements thereto dated the Closing
Date, issued by the Insurer for the benefit of the Holders of the Offered
Certificates, a copy of which is attached hereto as Exhibit K.
Pool Principal Balance
----------------------
With respect to any Distribution Date, the sum of the Group Principal
Balances for the Group I Loans and the Group II Loans.
Popular Financial
-----------------
Popular Financial Services, LLC, a Delaware limited liability company.
Preference Claim
----------------
As defined in Section 3A.01(e).
Prepayment Interest Excess
--------------------------
As to any Principal Prepayment on a Loan received by the Servicer
subsequent to its Due Date in the related Prepayment Period, all amounts paid by
the related Mortgagor in respect of interest on such Principal Prepayment that
are intended to cover the period on and after the Due Date. All Prepayment
Interest Excess shall be paid to the Servicer as additional servicing
compensation.
Prepayment Interest Shortfall
-----------------------------
As to any Distribution Date and any Principal Prepayment on a Loan
received by the Servicer on or before its Due Date in the related Prepayment
Period, the amount, if any, by which one month's interest at the related
Adjusted Mortgage Rate on such Principal Prepayment, exceeds the amount of
interest paid in connection with such Principal Prepayment.
23
Prepayment Period
-----------------
With respect to any Distribution Date, the calendar month prior to the
month of such Distribution Date.
Primary Mortgage Insurance Policy
---------------------------------
Each policy of primary mortgage guaranty insurance or any replacement
policy therefor with respect to any Loan.
Principal Prepayment
--------------------
Any payment of principal by a Mortgagor on a Loan that is received in
advance of its scheduled Due Date and is not accompanied by an amount
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment. Partial Principal Prepayments shall be
applied by the Servicer in accordance with the terms of the related Mortgage
Note.
Principal Prepayment in Full
----------------------------
Any Principal Prepayment made by a Mortgagor of the entire principal
balance of a Loan.
Prospectus Supplement
---------------------
The Prospectus Supplement dated April 25, 2002 relating to the Offered
Certificates.
Purchase Price
--------------
With respect to any Loan required to be repurchased by a Seller
pursuant to Section 2.02 or 2.03 hereof or purchased at the option of the
Servicer pursuant to Section 3.11 hereof, an amount equal to the sum of (i) 100%
of the Stated Principal Balance of the Loan on the date of such purchase, and
(ii) accrued interest thereon at the applicable Mortgage Rate (or at the
applicable Adjusted Mortgage Rate if (x) the purchaser is the Servicer or (y)
the purchaser is a Seller and Equity One-Delaware is the Servicer) from the date
through which interest was last paid by the Mortgagor or advanced (and not
reimbursed) by the Servicer to the Determination Date in the month in which the
Purchase Price is to be distributed to Certificateholders.
PTCE 95-60
----------
As defined in Section 5.02(b).
Qualified Insurer
-----------------
A mortgage guaranty insurance company duly qualified as such under the
laws of the state of its principal place of business and each state having
jurisdiction over such insurer in connection with the insurance policy issued by
such insurer, duly authorized and licensed in such states to transact a mortgage
guaranty insurance business in such states and to write the insurance provided
by the insurance policy issued by it, approved as a FNMA-approved mortgage
insurer and having a claims paying ability rating of at least "AA" or equivalent
rating by a nationally recognized statistical rating organization. Any
replacement insurer with respect to a Loan must have at least as high a claims
paying ability rating as the insurer it replaces had on the Closing Date.
Rate Change Date
----------------
As defined in the Preliminary Statement.
Rating Agency
-------------
Moody's and S&P. If either organization or a successor thereof is no
longer in existence, "Rating Agency" shall be such nationally recognized
statistical rating organization, or other comparable Person, as is designated by
the Depositor with the consent of the Insurer, notice of which designation
24
shall be given to the Trustee. References herein to a given rating category of a
Rating Agency shall mean such rating category without giving effect to any
modifiers.
Record Date
-----------
With respect to the Class AF-2, Class AF-3 and Class AF-4 and Class
A-IO Certificates and any Distribution Date, the close of business on the last
Business Day of the calendar month immediately preceding such Distribution Date
(or the Closing Date with respect to the first Distribution Date). With respect
to the Class AF-1 and Class AV-1 Certificates and any Distribution Date, the
close of business on the Business Day immediately preceding such Distribution
Date.
Reference Banks
---------------
Any three (3) major banks engaged in transactions in Eurodollar
deposits in the international Eurocurrency market selected by the Trustee after
consultation with the Servicer and the Insurer.
Refinance Loan
--------------
Any Loan originated for the purpose of refinancing an existing
mortgage loan.
Relief Act
----------
The Soldiers' and Sailors' Civil Relief Act of 1940, as amended.
Relief Act Reductions
---------------------
With respect to any Distribution Date and any Loan as to which there
has been a reduction in the amount of interest collectible thereon for the most
recently ended calendar month as a result of the application of the Relief Act,
the amount, if any, by which (i) interest collectible on such Loan for the most
recently ended calendar month is less than (ii) interest accrued thereon for
such month pursuant to the Mortgage Note without taking into account the
application of the Relief Act.
REMIC
-----
A "real estate mortgage investment conduit" within the meaning of
section 860D of the Code.
REMIC 1
-------
As defined in the Preliminary Statement.
REMIC 2
-------
As defined in the Preliminary Statement.
REMIC 3
-------
As defined in the Preliminary Statement.
REMIC 2 Accrual Class
---------------------
As defined in the Preliminary Statement.
REMIC 2 Accretion Directed Classes
----------------------------------
As defined in the Preliminary Statement.
REMIC Change of Law
-------------------
Any proposed, temporary or final regulation, revenue ruling, revenue
procedure or other official announcement or interpretation relating to REMICs
and the REMIC Provisions issued after the Closing Date.
25
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 regulations
promulgated thereunder, as the foregoing may be in effect from time to time, as
well as provisions of applicable state laws.
Remittance Amount
-----------------
As to any Distribution Date and either the Class AF Certificates and
the Class A-IO Certificates or the Class AV-1 Certificates, the sum of the
Interest Distribution Amount for such Class(es) and the Certificate Formula
Principal Amount for such Class(es) for such Distribution Date.
REO Property
------------
A Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Loan.
Reserve Fund
------------
The account established and maintained by the Trustee pursuant to
Section 3A.02.
Request for Release
-------------------
The Request for Release submitted by the Servicer to the Trustee,
substantially in the form of Exhibit J.
Required Insurance Policy
-------------------------
With respect to any Loan, any insurance policy that is required to be
maintained from time to time under this Agreement.
Responsible Officer
-------------------
When used with respect to the Trustee, any officer assigned to the
Corporate Trust Division of the Trustee (or any successor thereto), including
any Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, any Trust Officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of this
Agreement.
Rule 144A Letter
----------------
As defined in Section 5.02(b).
Scheduled Payment
-----------------
The scheduled monthly payment on a Loan due on any Due Date allocable
to principal and/or interest on such Loan.
Second Lien Loan
----------------
Any Loan secured by a mortgage that is second in lien priority.
Securities Act
--------------
The Securities Act of 1933, as amended.
Sellers
-------
Collectively, the following entities, their successors and assigns,
each in its capacity as a Seller of the Loans to the Depositor: Equity
One-Delaware; Equity One-Minnesota; Equity One-New Hampshire; Equity
One-Pennsylvania; and Popular Financial.
26
Servicer
--------
Equity One, Inc., a Delaware corporation, and its successors and
assigns, in its capacity as servicer hereunder.
Servicer Advance Date
---------------------
As to any Distribution Date, the 18th day of the month in which such
Distribution Date occurs, or if such day is not a Business Day, the next
succeeding Business Day.
Servicing Advances
------------------
All customary, reasonable and necessary "out of pocket" costs and
expenses incurred in the performance by the Servicer of its servicing
obligations, including, but not limited to, the cost of (a) the preservation,
restoration and protection of a Mortgaged Property, (b) the foreclosure,
trustee's sale, or other liquidation of any Mortgage or Mortgaged Property, (c)
any expenses reimbursable to the Servicer pursuant to Section 3.11 and any
enforcement or judicial proceedings, including foreclosures, (d) the management
and liquidation of any REO Property, (e) compliance with the obligations
described in Section 3.06 and (f) any payments made by the Servicer pursuant to
Section 3.09.
Servicing Amount
----------------
The sum of (a) the Servicing Fee, (b) unreimbursed Advances and (c)
unreimbursed Servicing Advances.
Servicing Fee
-------------
As to each Loan and any Distribution Date, an amount payable out of
each full payment of interest received on such Loan and equal to one-twelfth of
the Servicing Fee Rate multiplied by the Stated Principal Balance of such Loan
as of the Due Date in the month of such Distribution Date (prior to giving
effect to any Scheduled Payments due on such Loan on such Due Date), subject to
reduction as provided in Section 3.13.
Servicing Fee Rate
------------------
With respect to each Loan, 0.50% per annum.
Servicing Officer
-----------------
Any officer of the Servicer involved in, or responsible for, the
administration and servicing of the Loans whose name and facsimile signature
appear on a list of servicing officers furnished to the Trustee (with a copy to
the Insurer) by the Servicer on the Closing Date pursuant to this Agreement, as
such list may from time to time be amended.
S&P
---
Standard & Poor's Ratings Services, a division of The McGraw-Hill
Companies, Inc. For purposes of Section 10.05(b) the address for notices to S&P
shall be Standard & Poor's Ratings Services, 55 Water Street, 41st Floor, New
York, New York 10041, Attention: Residential Mortgage Surveillance, or such
other address as S&P may hereafter furnish to the Depositor and the Servicer.
Startup Day
-----------
The Closing Date.
Stated Principal Balance
------------------------
As to any Loan, the unpaid principal balance of such Loan as of its
most recent Due Date as specified in the amortization schedule at the time
relating thereto (before any adjustment to such amortization schedule by reason
of any moratorium or similar waiver or grace period) after giving effect to any
previous partial Principal Prepayments and Liquidation Proceeds allocable to
principal (other than
27
with respect to any Liquidated Loan) and to the payment of principal due on such
Due Date and irrespective of any delinquency in payment by the related
Mortgagor.
Stepdown Date
-------------
With respect to the Class AF Certificates, the later to occur of (a)
the 31st Distribution Date and (b) the date upon which the Group Principal
Balance of the Group I Loans has been reduced to 50% of the Cut-off Date Group I
Principal Balance. With respect to the Class AV-1 Certificates, the later to
occur of (a) the 31st Distribution Date and (b) the date upon which the Group
Principal Balance of the Group II Loans has been reduced to 50% of the Cut-off
Date Group II Principal Balance.
Subservicer
-----------
Any person to whom the Servicer has contracted for the servicing of
all or a portion of the Loans pursuant to Section 3.02.
Substitute Loan
---------------
A Loan substituted by a Seller for a Deleted Loan(s) which must, on
the date of such substitution, as confirmed in a Request for Release,
substantially in the form of Exhibit J, (a) have a Stated Principal Balance not
in excess of, and not more than 10% less than, the Stated Principal Balance(s)
of the Deleted Loans (such Stated Principal Balances to be measured as of the
respective Due Dates in the month of substitution); (b) have a Mortgage Rate not
lower than, and not more than 1% per annum higher than, that of the Deleted
Loan(s); (c) have a Loan-to-Value Ratio not higher than that of the Deleted
Loan(s); (d) have a debt to income ratio not higher than that of the Deleted
Loan(s); (e) have been originated pursuant to the same underwriting standards as
the Deleted Loan(s); (f) have a remaining term to maturity not greater than, and
not more than one year less than, that of the Deleted Loan(s); and (g) comply,
as of the date of substitution, with each representation and warranty set forth
or referred to in Section 2.03.
Substitution Adjustment Amount
------------------------------
The meaning ascribed to such term pursuant to Section 2.03.
Tax Matters Person
------------------
The person designated as "tax matters person" in the manner provided
under Treasury regulation ss.1.860F-4(d) and temporary Treasury regulation
ss.301.6231(a)(7)-1T. Initially, the Tax Matters Person shall be the Trustee.
Tax Matters Person Certificate
------------------------------
The Class R Certificate with a Denomination of .00001%.
Transfer
--------
Any direct or indirect transfer or sale of any Ownership Interest in a
Class R Certificate.
Transfer Affidavit
------------------
As defined in Section 5.02(c).
Transferor Certificate
----------------------
As defined in Section 5.02(b).
Trustee
-------
JPMorgan Chase Bank and its successors and, if a successor trustee is
appointed hereunder, such successor.
28
Trustee Fee
-----------
As to any Distribution Date, an amount equal to one-twelfth of the
Trustee Fee Rate multiplied by the Pool Principal Balance as of such
Distribution Date.
Trustee Fee Rate
----------------
With respect to each Loan, 0.02% per annum.
Trust Fund
----------
The corpus of the trust created hereunder consisting of (a) the Loans
and all interest and principal received, or receivable, on or with respect
thereto after the Cut-off Date to the extent not applied in computing the
Cut-off Date Principal Balance thereof and all interest and principal payments
on such Loans received prior to the Cut-off Date in respect of installments of
interest and principal due thereafter; (b) the Certificate Account, the
Distribution Account, the Net WAC Cap Account, the Reserve Fund and all amounts
deposited therein pursuant to the applicable provisions of this Agreement; (c)
property that secured a Loan and has been acquired by foreclosure, deed-in-lieu
of foreclosure or otherwise; (d) the Policy; (e) the Yield Maintenance
Agreement; and (f) all proceeds of the conversion, voluntary or involuntary, of
any of the foregoing.
Underwriter Exemption
---------------------
Prohibited Transaction Exemption 2000-58, 65 Fed. Reg. 67765 (2000),
as amended (or any successor thereto).
Voting Rights
-------------
The portion of the voting rights of all of the Certificates, which is
allocated to any Certificate. As of any date of determination, (i) the Class AF
and Class AV-1 Certificates shall be allocated 99% of all Voting Rights and (ii)
the Class A-IO Certificates shall be allocated 1% of all Voting Rights. The
Voting Rights allocated to each Class of the Class AF Certificates and the Class
AV-1 Certificates will be the fraction, expressed as a percentage, the numerator
of which is the Class Certificate Balance of such Class then outstanding and the
denominator of which is the aggregate Stated Principal Balance of the Loans then
outstanding. Voting Rights allocated to each class of Certificates shall be
allocated among the Certificates of each such Class in accordance with their
respective Percentage Interests.
Yield Maintenance Agreement
---------------------------
The Master Agreement (including the Schedule thereto and the
transactions thereunder evidenced by a confirmation) dated as of April 30, 2002
by and between the Counterparty and the Trustee for the benefit of the Insurer
and the Holders of Class AV-1 Certificates, a copy of which is attached hereto
as Exhibit M.
Yield Maintenance Stated Termination
------------------------------------
The Distribution Date on December 27, 2004.
ARTICLE II
CONVEYANCE OF LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Loans.
----------------------------------
(a) Subject to its substitution and repurchase obligations hereunder,
each Seller, concurrently with the execution and delivery hereof, hereby
irrevocably sells, transfers, grants, bargains,
29
assigns, sets over and otherwise conveys to the Depositor, without recourse, all
the right, title and interest of such Seller in and to that portion of the Loans
listed on the Loan Schedule that pertains to such Seller, including all interest
and principal received or receivable by such Seller on or with respect to such
Loans after the Cut-off Date and all interest and principal payments on such
Loans received on or prior to the Cut-off Date in respect of installments of
interest and principal due thereafter, but not including payments of principal
and interest due and payable on such Loans on or before the Cut-off Date. On or
prior to the Closing Date, each Seller shall deliver to the Depositor or, at the
Depositor's direction, to the Trustee or other designee of the Depositor, the
Mortgage File for each Loan listed in that portion of the Loan Schedule that
pertain to such Seller. Such delivery of the Mortgage Files shall be made
against payment by the Depositor of the purchase price, previously agreed to by
such Seller and the Depositor, for the Loans listed on the Loan Schedule that
pertains to such Seller. With respect to any Loan that does not require the
first payment of principal or interest thereon to be made on or before such
Loan's Due Date in the month prior to the first Distribution Date, such Seller
shall deposit into the Certificate Account on the Closing Date, an amount equal
to one month's interest at the related Mortgage Rate on the Cut-off Date
Principal Balance of such Loan (the "Initial Certificate Account Deposit"). The
Sellers, for the benefit of the Depositor, shall, in connection with the
conveyance described in this Section 2.01(a), deliver to the Depositor on or
prior to the Closing Date the financing statements described in Schedule VI. The
Sellers shall also arrange for the delivery to the Depositor or its assignee, as
applicable, of any appropriate Uniform Commercial Code continuation statements
as may be necessary in connection with the financing statements referenced in
the foregoing sentence.
(b) The Depositor, concurrently with the execution and delivery
hereof, hereby irrevocably sells, transfers, grants, bargains, assigns, sets
over and otherwise conveys to the Trustee for the benefit of the Insurer and the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund together with the Depositor's right to
require the Sellers to cure any breach of a representation or warranty made
herein by the Sellers or to repurchase or substitute for any affected Loan in
accordance herewith. On or prior to the Closing Date, the Depositor shall cause
the Insurer to deliver the Policy to the Trustee. In addition, the Depositor,
for the benefit of the Trustee, the Insurer and the Certificateholders, shall,
in connection with the conveyance described in this Section 2.01(b), deliver to
the Trustee on or prior to the Closing Date the financing statements described
in Schedule VII. The Depositor shall also arrange for the delivery to the
Trustee of any appropriate Uniform Commercial Code continuation statements as
may be necessary in connection with the financing statements referenced in the
foregoing sentence.
(c) In connection with the sale, transfer and assignment set forth in
clause (b) above, the Depositor has delivered or caused to be delivered to the
Trustee or a Custodian for the Trustee on or before the Closing Date or shall
deliver or cause to be delivered to the Trustee or a Custodian for the Trustee
on or before such later date as is set forth below, for the benefit of the
Insurer and the Certificateholders the following documents or instruments with
respect to each Loan so sold, transferred and assigned:
(i) the original Mortgage Note endorsed (by manual or
facsimile signature) as follows: "Pay to the order of JPMorgan Chase
Bank as trustee for the benefit of the Certificateholders of Equity
One ABS, Inc. Mortgage Pass-Through Certificates Series 2002-2 without
recourse," with all intervening endorsements and all riders and
modifications showing a complete chain of endorsement from the
originator to the Person endorsing it to the Trustee (each such
endorsement being sufficient to transfer all right, title and interest
of the party so endorsing, as noteholder or assignee thereof, in and
to that Mortgage Note);
(ii) except as provided below, the original recorded
Mortgage;
30
(iii) an original recorded assignment of the Mortgage (which
may be included in a blanket assignment or assignments), duly executed
by the appropriate Seller and the Depositor, which assignment will not
be delivered on or before the Closing Date, but shall be delivered
within the time period set forth in this Section 2.01, together with,
except as provided below, all interim recorded assignments of such
Mortgage, if any, all riders or modifications to such Mortgage, if
any, (each such assignment to be in recordable form and sufficient to
effect the assignment of and transfer to the assignee thereof, under
the Mortgage to which the assignment relates, with the original to be
recorded by the Servicer as follows: the Servicer shall promptly send
such assignments for recording, and shall return the original recorded
assignment to the Trustee once returned as recorded by the applicable
recording office);
(iv) the original of each assumption, modification, written
assurance or substitution agreement, if any; and
(v) except as provided below, the original or duplicate
original lender's title policy and all riders thereto.
In the event that in connection with any Loan the Depositor cannot
deliver (a) the original recorded Mortgage, (b) all interim recorded assignments
or (c) the lender's title policy (together with all riders thereto) satisfying
the requirements of clause (ii), (iii) or (v) above, respectively, concurrently
with the execution and delivery hereof because such document or documents have
not been returned from the applicable public recording office in the case of
clause (ii) or (iii) above, or because the title policy has not been delivered
to either the Servicer or the Depositor by the applicable title insurer in the
case of clause (v) above, and, in the case of the assignments of the Mortgage to
the Trustee as required under (iii) above, the Depositor shall promptly deliver
to the Trustee, in the case of clause (ii) or (iii) above, such original
recorded Mortgage or such original recorded assignment, as the case may be, with
evidence of recording indicated thereon upon receipt thereof from the public
recording office, or a copy thereof, certified, if appropriate, by the relevant
recording office, but in no event shall any such delivery of the original
recorded Mortgage and each such original recorded assignment or a copy thereof,
certified, if appropriate, by the relevant recording office, and each title
policy as required by clause (v) above be made later than one year following the
Closing Date; provided, however, in the event the Depositor is unable to deliver
within one year following the Closing Date each original recorded Mortgage, and
each such original recorded assignment or each such title policy by reason of
the fact that any such documents have not been returned by the appropriate
recording office, or, in the case of each such assignment, because the related
original recorded Mortgage or any related interim recorded assignment have not
been returned by the appropriate recording office or, in the case of each title
policy, because the title insurer has not received the recording information
from the appropriate recording office for such original recorded Mortgage or
original recorded assignment, has not been returned by the appropriate recording
office, the Depositor shall deliver such documents to the Trustee as promptly as
possible upon receipt thereof and, in any event, within 720 days following the
Closing Date. The Depositor shall forward or cause to be forwarded to the
Trustee (a) from time to time additional original documents evidencing an
assumption or modification of a Loan and (b) any other documents required to be
delivered by the Depositor or the Servicer to the Trustee. In the event that the
original recorded Mortgage is not delivered and, in connection with the payment
in full of the related Loan, the public recording office requires the
presentation of a "lost instruments affidavit and indemnity" or any equivalent
document, because only a copy of the Mortgage can be delivered with the
instrument of satisfaction or reconveyance, the Servicer shall execute and
deliver or cause to be executed and delivered such a document to the public
recording office. In the case where a public recording office retains the
original recorded Mortgage or in the case where an original recorded Mortgage is
lost after recordation in a public recording office, the appropriate
31
Seller shall deliver to the Trustee a copy of such Mortgage certified by such
public recording office to be a true and complete copy of the original recorded
Mortgage.
As promptly as practicable subsequent to such transfer and assignment,
and in any event, within thirty (30) days thereafter, the Servicer shall (i)
affix the Trustee's name to each assignment of Mortgage, as the assignee thereof
as Trustee for the benefit of the Certificateholders, (ii) cause such assignment
to be in proper form for recording in the appropriate public office for real
property records and (iii) cause to be delivered for recording in the
appropriate public office for real property records the assignments of the
Mortgages to the Trustee, except that, with respect to any assignments of
Mortgages as to which the information required to prepare such assignment in
recordable form has not yet been received, the Servicer's obligation to do so
and to deliver the same for such recording shall be as soon as practicable after
receipt of such information and in any event within thirty (30) days after
receipt thereof.
In the case of Loans that have been prepaid in full as of the Closing
Date the Depositor, in lieu of delivering the above documents to the Trustee,
will deposit in the Certificate Account the portion of such payment that is
required to be deposited in the Certificate Account pursuant to Section 3.05
hereof.
SECTION 2.02. Acceptance by Trustee of the Loans.
-------------------------------------------------
The Trustee acknowledges receipt of the documents identified in the
initial certification in the form annexed hereto as Exhibit D and declares that
it holds and will hold such documents and the other documents delivered to it
constituting the Mortgage Files, and that it holds or will hold such other
assets as are included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders and the Insurer. The
Trustee acknowledges that it will maintain possession of the Mortgage Notes in
the State of Texas, unless otherwise permitted by the Rating Agencies and the
Insurer. In the event that the Trustee desires to maintain possession of the
Mortgage Notes in a state constituting one of the United States of America, the
Trustee shall, at least thirty (30) days prior to discontinuing possession of
the Mortgage Notes in the State of Texas, provide (i) a Notice of such intention
to the Rating Agencies, the Insurer and the Sellers and (ii) an Opinion of
Counsel stating that such relocation of the Mortgage Notes and the possession by
the Trustee of the Mortgage Notes in such other state will not destroy or impair
the perfection by the Trustee of the security interests assigned and granted to
the Trustee pursuant to the provisions of Section 10.04.
The Trustee agrees to execute and deliver on the Closing Date to the
Depositor, the Insurer, the Servicer and the Sellers an initial certification in
the form annexed hereto as Exhibit D. Based on its review and examination, and
only as to the documents identified in such initial certification, the Trustee
shall acknowledge that such documents appear regular on their face and relate to
the Loans listed in the Loan Schedule or shall indicate any noted deviations.
The Trustee, at the time of delivery of the initial certification, shall be
under no duty or obligation (i) to inspect, review or examine said documents,
instruments, certificates or other papers to determine that the same are
genuine, enforceable or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face or (ii) to determine whether the
Mortgage File shall include any of the documents listed in Section 2.01(c),
except for the Mortgage Note. Should there be any exceptions to the Trustee's
initial certification, the appropriate Seller shall have thirty (30) days from
the Closing Date to cure such exception or deliver a Mortgage File or Mortgage
Files for a Substitute Loan or Substitute Loans in accordance with Section
2.03(c). A Seller may cure an exception based on absence of a Mortgage Note for
a Loan by delivering an executed copy of an Affidavit of Lost Note in the form
attached as Annex I to Exhibit D hereto to the Trustee.
32
Not later than 90 days after the Closing Date, the Trustee shall
deliver to the Depositor, the Servicer and the Sellers a final certification in
the form annexed hereto as Exhibit E, with any applicable exceptions noted
thereon.
If the Trustee or the Insurer finds any document constituting a part
of a Mortgage File which does not meet the requirements of Section 2.01, the
Trustee shall list such as an exception in the final certification; provided,
however that the Trustee shall not make any determination as to whether (i) any
endorsement is sufficient to transfer all right, title and interest of the party
so endorsing, as noteholder or assignee thereof, in and to that Mortgage Note or
(ii) any assignment is in recordable form or is sufficient to effect the
assignment of and transfer to the assignee thereof under the mortgage to which
the assignment relates. In performing any such review, the Trustee may
conclusively rely on the Depositor as to the purported genuineness of any such
document and any signature thereon. It is understood that the scope of the
Trustee's review of the Mortgage Files is limited solely to confirming that the
documents listed in Section 2.01(c) have been received and further confirming
that any and all documents delivered pursuant to Section 2.01(c) have been
executed and relate to the Loans identified in the Loan Schedule. The Trustee
shall have no responsibility for determining whether any document is valid and
binding, whether the text of any assignment or endorsement is in proper or
recordable form, whether any document has been recorded in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction. The appropriate Seller shall promptly
correct or cure such defect within 90 days from the date it was so notified of
such defect and, if such Seller does not correct or cure such defect within such
period, such Seller shall either (a) substitute for the related Loan a
Substitute Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03, or (b) purchase such Loan
from the Trustee within 90 days from the date such Seller was notified of such
defect in writing at the Purchase Price of such Loan; provided, however, that in
no event shall such substitution or purchase occur more than 540 days from the
Closing Date, except that if the substitution or purchase of a Loan pursuant to
this provision is required by reason of a delay in delivery of any comments by
the appropriate recording office, and there is a dispute between either the
Servicer or such Seller and the Trustee over the location or status of the
recorded document, then such substitution or purchase shall occur within 720
days from the Closing Date; provided, that any Loan that does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code shall
be subject to a substitution or repurchase as provided in Section 2.05(b) of
this Agreement. The Trustee shall deliver a report to each Rating Agency and the
Insurer within 720 days from the Closing Date indicating a list of all documents
in each Mortgage File in the possession of the Trustee. Any such substitution
pursuant to (a) above or purchase pursuant to (b) above shall not be effected
prior to the delivery to the Trustee of the Opinion of Counsel required by
Section 2.05 hereof, if any, and any substitution pursuant to (a) above shall
not be effected prior to the additional delivery to the Trustee of a Request for
Release substantially in the form of Exhibit J. No substitution is permitted to
be made in any calendar month after the Determination Date for such month. The
Purchase Price for any such Loan shall be deposited by such Seller in the
Certificate Account on or prior to the Distribution Account Deposit Date for the
Distribution Date in the month following the month of repurchase and, upon
receipt of such deposit and certification with respect thereto in the form of
Exhibit J, the Trustee shall release the related Mortgage File to such Seller
and shall execute and deliver at such Seller's request such instruments of
transfer or assignment prepared by such Seller, in each case without recourse,
as shall be necessary to vest in such Seller, or a designee, the Trustee's
interest in any Loan released pursuant hereto.
The Trustee shall retain possession and custody of each Mortgage File
in accordance with and subject to the terms and conditions set forth herein. The
Servicer shall promptly deliver to the Trustee, upon the execution or receipt
thereof, the originals of such other documents or instruments constituting the
Mortgage File as come into the possession of the Servicer from time to time.
33
It is understood and agreed that the obligation of the appropriate
Seller to substitute for or to purchase any Loan which does not meet the
requirements of Section 2.01 above shall constitute the sole and exclusive
remedy respecting such defect available to the Trustee, the Depositor and any
Certificateholder against any Seller.
SECTION 2.03. Representations, Warranties and Covenants of the Sellers
----------------------------------------------------------------------
and the Servicer.
-----------------
(a) (i) Equity One-Delaware, Equity One-Minnesota, Equity One-New
Hampshire, Equity One-Pennsylvania and Popular Financial, in their
capacities as Sellers, hereby make the representations and warranties
set forth in Schedules IIA through IIE respectively, and by this
reference incorporated herein, to the Depositor, the Insurer and the
Trustee, as of the Closing Date or if so specified therein, as of the
Cut-off Date; and
(ii) The Servicer hereby makes the representations and
warranties set forth in Schedule IIX, and by this reference
incorporated herein, to the Depositor, the Insurer and the Trustee, as
of the Closing Date or if so specified therein, as of the Cut-off
Date.
(b) Equity One-Delaware, Equity One-Minnesota, Equity One-New
Hampshire, Equity One-Pennsylvania and Popular Financial, in their capacities as
Sellers, hereby make the representations and warranties set forth in Schedules
IIIA through IIIE respectively, and by this reference incorporated herein, to
the Depositor, the Insurer and the Trustee, as of the Closing Date or if so
specified therein, as of the Cut-off Date.
(c) Upon discovery by any of the parties hereto or the Insurer of a
breach of a representation or warranty made pursuant to Section 2.03(b) that
materially and adversely affects the interests of the Certificateholders or the
Insurer in any Loan, the party discovering such breach shall give prompt notice
thereof to the other parties. Each Seller, for itself and not jointly and
severally for all other Sellers, hereby covenants that within 90 days of the
earlier of its discovery or its receipt of written notice from any party of a
breach of any representation or warranty made pursuant to Section 2.03(b) with
respect to any Loan listed on the Loan Schedule that pertains to such Seller,
such Seller may, and if such breach materially and adversely affects the
interests of the Certificateholders or the Insurer such Seller shall, cure such
breach in all material respects, and if such breach is not so cured, may or
shall, as the case may be, (i) if such 90-day period expires prior to the second
anniversary of the Closing Date, remove such Loan (a "Deleted Loan") from the
Trust Fund and substitute in its place a Substitute Loan, in the manner and
subject to the conditions set forth in this Section or (ii) repurchase the
affected Loan or Loans from the Trustee at the Purchase Price in the manner set
forth below; provided, however, that any such substitution pursuant to (i) above
shall not be effected prior to the delivery to the Trustee of the Opinion of
Counsel required by Section 2.05 hereof, if any, and any such substitution
pursuant to (i) above shall not be effected prior to the additional delivery to
the Trustee of a Request for Release substantially in the form of Exhibit J and
the Mortgage File for any such Substitute Loan. Notwithstanding the preceding
sentence, any Loan that does not constitute a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code shall be subject to substitution or
repurchase as provided in Section 2.05(b) of this Agreement. The appropriate
Seller shall promptly reimburse the Servicer and the Trustee for any expenses
reasonably incurred by the Servicer or the Trustee in respect of enforcing the
remedies for such breach. With respect to the representations and warranties
described in this Section which are made to the best of a Seller's knowledge, if
it is discovered by either the Depositor, the appropriate Seller, the Insurer or
the Trustee that the substance of such representation and warranty is inaccurate
and such inaccuracy materially and adversely affects the value of the related
Loan or the interests of the Certificateholders or the Insurer therein,
notwithstanding such Seller's lack of knowledge with respect to the substance of
such
34
representation or warranty, such inaccuracy shall be deemed a breach by such
Seller of the applicable representation or warranty.
With respect to any Substitute Loan or Loans, such Seller shall
deliver to the Trustee for the benefit of the Certificateholders and the Insurer
the Mortgage Note, the Mortgage, the related assignment of the Mortgage, and
such other documents and agreements as are required by Section 2.01, with the
Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. Scheduled Payments due with respect to
Substitute Loans in the month of substitution shall not be part of the Trust
Fund and will be retained by the appropriate Seller on the next succeeding
Distribution Date. For the month of substitution, distributions to the relevant
Class will include the monthly payment due on any Deleted Loan from the
Applicable Group for such month and thereafter the appropriate Seller shall be
entitled to retain all amounts received in respect of such Deleted Loan. The
Servicer shall amend the Loan Schedule for the benefit of the Certificateholders
and the Insurer to reflect the removal of such Deleted Loan and the substitution
of the Substitute Loan or Loans and the Servicer shall deliver the amended Loan
Schedule to the Trustee. Upon such substitution, the Substitute Loan or Loans
shall be subject to the terms of this Agreement in all respects, and the
appropriate Seller shall be deemed to have made with respect to such Substitute
Loan or Loans, as of the date of substitution, the representations and
warranties made pursuant to Section 2.03(b). Upon any such substitution and the
deposit to the Certificate Account of the amount required to be deposited
therein in connection with such substitution as described in the following
paragraph, the Trustee shall release the Mortgage File held for the benefit of
the Certificateholders and the Insurer relating to such Deleted Loan to the
appropriate Seller and shall execute and deliver at the appropriate Seller's
direction such instruments of transfer or assignment prepared by such Seller, in
each case without recourse, as shall be necessary to vest title in such Seller,
or its designee, with respect to the Trustee's interest in any Deleted Loan
substituted for pursuant to this Section 2.03.
For any month in which the appropriate Seller substitutes one or more
Substitute Loans for one or more Deleted Loans, the Servicer will determine the
amount (if any) by which the aggregate Stated Principal Balance of all such
Substitute Loans is less than the aggregate Stated Principal Balance of all such
Deleted Loans (such Stated Principal Balances to be measured as of the
respective Due Dates in the month of substitution). The amount of such shortage
(the "Substitution Adjustment Amount") plus an amount equal to the aggregate of
any unreimbursed Advances with respect to such Deleted Loans shall be deposited
in the Certificate Account by such Seller on or before the Distribution Account
Deposit Date for the Distribution Date in the month succeeding the calendar
month during which the related Loan became required to be purchased or replaced
hereunder.
In the event that the appropriate Seller shall have repurchased a
Loan, the Purchase Price therefor shall be deposited in the Certificate Account
pursuant to Section 3.05 on or before the Distribution Account Deposit Date for
the Distribution Date in the month following the month during which such Seller
became obligated hereunder to repurchase or replace such Loan and upon such
deposit of the Purchase Price, the delivery of the Opinion of Counsel required
by Section 2.05 and receipt of a Request for Release in the form of Exhibit J,
the Trustee shall release the related Mortgage File held for the benefit of the
Certificateholders and the Insurer to such Seller, and the Trustee shall execute
and deliver at such Seller's direction such instruments of transfer or
assignment prepared by such Seller, in each case without recourse, as shall be
necessary to transfer title from the Trustee. It is understood and agreed that
the obligation under this Agreement of any Seller to cure, repurchase or replace
any Loan as to which a breach of a representation or warranty has occurred and
is continuing shall constitute the sole and exclusive remedy against such
Sellers respecting such breach of a representation and warranty available to
Certificateholders, the Depositor or the Trustee on their behalf.
35
(d) The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Mortgage Files to the Trustee for
the benefit of the Certificateholders and the Insurer.
SECTION 2.03A. Additional Obligations of Equity One-Delaware.
--------------------------------------------------------------
(a) In addition to the representations and warranties made by Equity
One-Delaware in its capacity as a Seller, as described in Section 2.03 and set
forth in Schedules IIA and IIIA, Equity One-Delaware hereby represents and
warrants to the Depositor, the Insurer and the Trustee that all of the
representations and warranties of the other Sellers described in Section 2.03
and set forth in Schedules IIB through IIE and IIIB through IIIE are true and
accurate in all respects.
(b) Equity One-Delaware hereby covenants that it shall comply with the
repurchase and substitution obligations described in Section 2.02 and 2.03 in
the event that (i) a breach of any of the representations and warranties set
forth in Schedules IIIB through IIIE occurs and (ii) the related Seller defaults
on its repurchase and substitution obligations under Sections 2.02 and 2.03.
SECTION 2.04. Representations and Warranties of the Depositor as to
----------------------------------------------------------------------
the Loans
---------
The Depositor hereby represents and warrants to the Trustee and the
Insurer with respect to each Loan that as of the Closing Date, and following the
transfer of the Loans to it by the Sellers, the Depositor had good title to the
Loans and the Mortgage Notes were subject to no offsets, defenses or
counterclaims.
The Depositor, concurrently with the execution and delivery hereof,
hereby irrevocably sells, transfers, assigns, sets over, grants, bargains and
otherwise conveys to the Trustee for the benefit of the Certificateholders and
the Insurer, without recourse, all of its rights, title and interest with
respect to the Loans including, without limitation, the representations and
warranties of the Sellers made pursuant to Sections 2.03(a) and 2.03(b) hereof,
together with all rights of the Depositor to require any applicable Seller to
cure any breach thereof or to repurchase or substitute for any affected Loan in
accordance with this Agreement.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the Mortgage Files to
the Trustee. Upon discovery by the Depositor, the Insurer or the Trustee of a
breach of any of the foregoing representations and warranties set forth in this
Section 2.04, which breach materially and adversely affects the interest of the
Certificateholders or the Insurer, the party discovering such breach shall give
prompt written notice to the other parties and to each Rating Agency.
SECTION 2.05. Delivery of Opinion of Counsel in Connection with
----------------------------------------------------------------------
Substitutions.
--------------
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or Section 2.03 shall be made more than 90
days after the Closing Date unless the appropriate Seller delivers to the
Trustee and the Insurer an Opinion of Counsel, which Opinion of Counsel shall
not be at the expense of either the Trustee or the Trust Fund, addressed to the
Trustee, to the effect that such substitution will not (i) result in the
imposition of the tax on "prohibited transactions" on the Trust Fund or
contributions after the Startup Day, as defined in Sections 860F(a)(2) and
860G(d) of the Code, respectively, and/or (ii) cause the Trust Fund to fail to
qualify as one or more REMICs at any time that any Certificates are outstanding.
36
(b) Upon discovery by the Depositor, the appropriate Seller, the
Servicer, the Insurer or the Trustee that any Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
party discovering such fact shall promptly (and in any event within five (5)
Business Days of discovery) give written notice thereof to the other parties. In
connection therewith, the Trustee shall require the appropriate Seller, at such
Seller's option, to either (i) substitute, if the conditions in Section 2.03(c)
with respect to substitutions are satisfied, a Substitute Loan for the affected
Loan within 90 days from the discovery or (ii) repurchase the affected Loan
within 90 days of such discovery in the same manner as it would repurchase a
Loan for a breach of representation or warranty made pursuant to Section 2.03.
The Trustee shall reconvey to such Seller the Loan to be released pursuant
hereto in the same manner, and on the same terms and conditions, as it would
release a Loan repurchased for breach of a representation or warranty contained
in Section 2.03.
SECTION 2.06. Execution and Delivery of Certificates.
-----------------------------------------------------
The Trustee acknowledges the transfer and assignment to it of the
Trust Fund and, concurrently with such transfer and assignment and in payment
therefor, has executed and delivered to or upon the order of the Depositor, the
Certificates in authorized denominations evidencing directly or indirectly the
entire ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund
and exercise the rights referred to above for the benefit of all present and
future Certificateholders and to perform the duties set forth in this Agreement
to the best of its ability, to the end that the interests of the
Certificateholders may be adequately and effectively protected.
SECTION 2.07. REMIC Matters.
----------------------------
The Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income tax purposes of all interests created
hereby. The "Startup Day" for purposes of the REMIC Provisions shall be the
Closing Date. The "tax matters person" with respect to each REMIC created
hereunder shall be the Trustee and the Trustee shall hold the Tax Matters Person
Certificate. The Trust Fund's fiscal year shall be the calendar year and, for
purposes of section 860C of the Code, the taxable income of each REMIC created
hereunder shall be computed under an accrual method of accounting.
The Trustee shall treat each of the Net WAC Cap Account and the
Reserve Fund as a separate and distinct outside reserve fund within the meaning
of Sec. 1.860G-2(h) of the Treasury Regulations. Neither the Net WAC Cap Account
nor the Reserve Fund shall be treated as an asset of any REMIC. The Trustee
shall treat the rights of (a) the Holders of the Class AF-1 and Class AV-1
Certificates to receive payments from the Net WAC Cap Account and (b) the
Holders of the Class AV-1 Certificates to receive payments from the Reserve Fund
as rights in a limited recourse interest rate cap contract. The Holders of the
Class X Certificates will own each of the Net WAC Cap Account and the Reserve
Fund. The Class AF-1 and Class AV-1 shall be treated as representing ownership
of not only a regular interest in a REMIC but also ownership of an interest in
an interest rate cap contract.
The Trustee shall treat the payment of any Net WAC Cap Carryover as
paid first to the Class X Certificates, deposited by the Class X Holders in the
Net WAC Cap Account and then paid from the Net WAC Cap Account to the relevant
Offered Certificates. The Trustee shall treat the Offered Certificates as
"contractual rights coupled with regular interests" within the meaning of
ss.1.860G-2(i) of the Treasury Regulations. In determining the issue price of
the regular interests issued to Holders of Offered Certificates, the Trustee
shall assume that each interest rate cap contract has a value of $10,000.
37
SECTION 2.08. Covenants of the Servicer.
----------------------------------------
The Servicer hereby covenants to the Depositor, the Insurer and the
Trustee as follows:
(a) the Servicer shall comply in the performance of its obligations
under this Agreement with all reasonable rules and requirements of the insurer
under each Required Insurance Policy; and
(b) no written information, certificate of an officer, statement
furnished in writing or written report delivered to the Depositor, any affiliate
of the Depositor, the Insurer or the Trustee and prepared by the Servicer
pursuant to this Agreement will contain any untrue statement of a material fact
or omit to state a material fact necessary to make such information,
certificate, statement or report not misleading.
ARTICLE III
ADMINISTRATION AND SERVICING
OF LOANS
SECTION 3.01. Servicer to Service Loans.
----------------------------------------
For and on behalf of the Certificateholders and the Insurer, the
Servicer shall service and administer the Loans in accordance with the terms of
this Agreement and customary and usual standards of practice of prudent mortgage
loan servicers. In connection with such servicing and administration, the
Servicer shall have full power and authority, acting alone and/or through
Subservicers as provided in Section 3.02 hereof, to do or cause to be done any
and all things that it may deem necessary or desirable in connection with such
servicing and administration, including but not limited to, the power and
authority, subject to the terms hereof, (i) to execute and deliver, on behalf of
the Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages (but only
in the manner provided in this Agreement), (iii) to collect any Insurance
Proceeds and other Liquidation Proceeds and (iv) to effectuate foreclosure or
other conversion of the ownership of the Mortgaged Property securing any Loan;
provided that the Servicer shall not take any action that is inconsistent with
or prejudices the interests of the Trust Fund, the Insurer or the
Certificateholders in any Loan or the rights and interests of the Depositor, the
Insurer, the Trustee and the Certificateholders under this Agreement. The
Servicer shall represent and protect the interests of the Trust Fund in the same
manner as it protects its own interests in mortgage loans in its own portfolio
in any claim, proceeding or litigation regarding a Loan, and shall not make or
permit any modification, waiver or amendment of any Loan which would cause the
Trust Fund to fail to qualify as one or more REMICs or result in the imposition
of any tax under Section 860F(a) or Section 860G(d) of the Code. Without
limiting the generality of the foregoing, the Servicer, in its own name or in
the name of the Depositor and the Trustee, is hereby authorized and empowered by
the Depositor and the Trustee, when the Servicer believes it appropriate in its
reasonable judgment, to execute and deliver, on behalf of the Trustee, the
Depositor, the Certificateholders or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and all
other comparable instruments, with respect to the Loans, and with respect to the
Mortgaged Properties held for the benefit of the Certificateholders. The
Servicer shall prepare and deliver to the Depositor and/or the Trustee such
documents requiring execution and delivery by either or both of them as are
necessary or appropriate to enable the Servicer to service and administer the
Loans to the extent that the Servicer is not permitted to execute and deliver
such documents pursuant to the preceding sentence. Upon receipt of such
documents, the Depositor and/or the Trustee shall execute such documents and
deliver them to the Servicer.
38
SECTION 3.02. Subservicing; Enforcement of the Obligations of
----------------------------------------------------------------------
Servicers.
----------
(a) The Servicer may arrange for the subservicing of any Loan by a
Subservicer pursuant to a subservicing agreement; provided, however, that such
subservicing arrangement and the terms of the related subservicing agreement
must provide for the servicing of such Loans in a manner consistent with the
servicing arrangements contemplated hereunder. Unless the context otherwise
requires, references in this Agreement to actions taken or to be taken by the
Servicer in servicing the Loans include actions taken or to be taken by a
Subservicer on behalf of the Servicer. Notwithstanding the provisions of any
subservicing agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a Subservicer or reference
to actions taken through a Subservicer or otherwise, the Servicer shall remain
obligated and liable to the Depositor, the Trustee, the Insurer and the
Certificateholders for the servicing and administration of the Loans in
accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such subservicing agreements or
arrangements or by virtue of indemnification from the Subservicer and to the
same extent and under the same terms and conditions as if the Servicer alone
were servicing and administering the Loans. All actions of each Subservicer
performed pursuant to the related subservicing agreement shall be performed as
an agent of the Servicer with the same force and effect as if performed directly
by the Servicer.
(b) For purposes of this Agreement, the Servicer shall be deemed to
have received any collections, recoveries or payments with respect to the Loans
that are received by a Subservicer regardless of whether such payments are
remitted by the Subservicer to the Servicer.
SECTION 3.03. Rights of the Depositor and the Trustee in Respect of
----------------------------------------------------------------------
the Servicer.
-------------
The Depositor may, but is not obligated to, enforce the obligations of
the Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Servicer hereunder and in
connection with any such defaulted obligation to exercise the related rights of
the Servicer hereunder; provided that the Servicer shall not be relieved of any
of its obligations hereunder by virtue of such performance by the Depositor or
its designee. Neither the Trustee nor the Depositor shall have any
responsibility or liability for any action or failure to act by the Servicer nor
shall the Trustee or the Depositor be obligated to supervise the performance of
the Servicer hereunder or otherwise.
SECTION 3.04. Trustee to Act as Servicer.
-----------------------------------------
In the event that the Servicer shall for any reason no longer be the
Servicer hereunder (including by reason of an Event of Default), the Trustee or
its successor shall thereupon assume all of the rights and obligations of the
Servicer hereunder arising thereafter (except that the Trustee shall not be (i)
liable for losses of the Servicer pursuant to Section 3.09 hereof or any acts or
omissions of the predecessor Servicer hereunder, (ii) obligated to make Advances
if it is prohibited from doing so by applicable law, (iii) obligated to
effectuate repurchases or substitutions of Loans hereunder including, but not
limited to, repurchases or substitutions of Loans pursuant to Section 2.02 or
2.03 hereof, (iv) responsible for expenses of the Servicer pursuant to Section
2.03 or (v) deemed to have made any representations and warranties of the
Servicer hereunder). Any such assumption shall be subject to Section 7.02
hereof. If the Servicer shall for any reason no longer be the Servicer
(including by reason of any Event of Default), the Trustee or its successor
shall succeed to any rights and obligations of the Servicer under each
subservicing agreement.
39
The Servicer shall, upon request of the Trustee, but at the expense of
the Servicer, deliver to the assuming party all documents and records relating
to each subservicing agreement or substitute subservicing agreement and the
Loans then being serviced thereunder and an accounting of amounts collected or
held by it and otherwise use its best efforts to effect the orderly and
efficient transfer of the substitute subservicing agreement to the assuming
party.
SECTION 3.05. Collection of Loan Payments; Certificate Account;
----------------------------------------------------------------------
Distribution Account.
---------------------
(a) The Servicer shall make reasonable efforts in accordance with the
customary and usual standards of practice of prudent mortgage servicers to
collect all payments called for under the terms and provisions of the Loans to
the extent such procedures shall be consistent with this Agreement and the terms
and provisions of any related Required Insurance Policy. Consistent with the
foregoing, the Servicer may in its discretion (i) waive any late payment charge
or any prepayment charge or penalty interest in connection with the prepayment
of a Loan and (ii) extend the due dates for payments due on a Mortgage Note for
a period not greater than 180 days; provided, however, that the Servicer cannot
extend the maturity of any such Loan past the date on which the final payment is
due on the latest maturing Loan as of the Cut-off Date. In the event of any such
arrangement, the Servicer shall make Advances on the related Loan in accordance
with the provisions of Section 4.01 during the scheduled period in accordance
with the amortization schedule of such Loan without modification thereof by
reason of such arrangements. The Servicer shall not be required to institute or
join in litigation with respect to collection of any payment (whether under a
Mortgage, Mortgage Note or otherwise or against any public or governmental
authority with respect to a taking or condemnation) if it reasonably believes
that enforcing the provision of the Mortgage or other instrument pursuant to
which such payment is required is prohibited by applicable law.
(b) The Servicer shall establish and maintain a Certificate Account
into which the Servicer shall deposit or cause to be deposited within one
Business Day of receipt, except as otherwise specifically provided herein, the
following payments and collections remitted by Subservicers or received by it in
respect of the Loans subsequent to the Cut-off Date (other than in respect of
principal and interest due on the Loans on or before the Cut-off Date) and the
following amounts required to be deposited hereunder:
(i) all payments on account of principal on the Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Loans, net
of the related Servicing Fee;
(iii) all Insurance Proceeds and Liquidation Proceeds, other
than proceeds to be applied to the restoration or repair of the
Mortgaged Property or released to the Mortgagor in accordance with the
Servicer's normal servicing procedures;
(iv) any amount required to be deposited by the Servicer
pursuant to Section 3.05(d) in connection with any losses on Permitted
Investments;
(v) any amounts required to be deposited by the Servicer
pursuant to Section 3.09(c) and, in respect of net monthly rental
income from REO Property, pursuant to Section 3.11 hereof;
(vi) all Substitution Adjustment Amounts;
40
(vii) all Advances made by the Servicer pursuant to Section
4.01; and
(viii) any other amounts required to be deposited hereunder.
The foregoing requirements for remittance by the Servicer shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of prepayment penalties, late payment
charges or assumption fees, if collected, need not be remitted by the Servicer.
In the event that the Servicer shall remit any amount not required to be
remitted, it may at any time withdraw or direct the institution maintaining the
Certificate Account to withdraw such amount from the Certificate Account, any
provision herein to the contrary notwithstanding. Such withdrawal or direction
may be accomplished by delivering written notice thereof to the Trustee or such
other institution maintaining the Certificate Account which describes the
amounts deposited in error in the Certificate Account. The Servicer shall
maintain adequate records with respect to all withdrawals made pursuant to this
Section. All funds deposited in the Certificate Account shall be held in trust
for the Certificateholders and the Insurer until withdrawn in accordance with
Section 3.08.
(c) The Trustee shall establish and maintain, on behalf of the
Certificateholders and the Insurer, the Distribution Account. The Trustee shall,
promptly upon receipt, deposit in the Distribution Account and retain therein
the following:
(i) the aggregate amount remitted by the Servicer to the
Trustee pursuant to Section 3.08(a)(ix); and
(ii) any other amounts deposited hereunder which are
required to be deposited in the Distribution Account.
In the event that the Servicer shall remit any amount not required to
be remitted, it may at any time direct the Trustee to withdraw such amount from
the Distribution Account, any provision herein to the contrary notwithstanding.
Such direction may be accomplished by delivering an Officer's Certificate to the
Trustee which describes the amounts deposited in error in the Distribution
Account. All funds deposited in the Distribution Account shall be held by the
Trustee uninvested in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.08. In
no event shall the Trustee incur liability for withdrawals from the Distribution
Account at the direction of the Servicer.
(d) Each institution at which the Certificate Account is maintained
shall invest the funds therein as directed in writing by the Servicer in
Permitted Investments, which shall mature not later than, the second Business
Day preceding each Distribution Account Deposit Date (except that if such
Permitted Investment is an obligation of the institution that maintains such
account, then such Permitted Investment shall mature not later than the Business
Day next preceding such Distribution Account Deposit Date) and shall not be sold
or disposed of prior to its maturity. All such Permitted Investments shall be
made in the name of the Trustee, for the benefit of the Certificateholders and
the Insurer. So long as no Event of Default shall have occurred and be
continuing, all income and gain net of any losses realized from any such
investment of funds on deposit in the Certificate Account shall be for the
benefit of the Servicer as servicing compensation and shall be remitted to it
monthly as provided herein. If an Event of Default has occurred and is
continuing, all income and gain net of any losses realized from Permitted
Investments made with funds on deposit in the Certificate Account shall be
deposited into the Certificate Account. The amount of any realized losses in the
Certificate Account in respect of any such investments shall promptly be
deposited by the Servicer in the Certificate Account. The Trustee in its
fiduciary capacity shall not be liable for the amount of any loss incurred in
respect of any investment or
41
lack of investment of funds held in the Certificate Account and made in
accordance with this Section 3.05.
(e) The Servicer shall give notice to the Trustee, the Insurer, each
Seller, each Rating Agency and the Depositor of any proposed change of the
location of the Certificate Account prior to any change thereof. The Trustee
shall give notice to the Servicer, each Seller, each Rating Agency and the
Depositor of any proposed change of the location of the Distribution Account
prior to any change thereof.
SECTION 3.06. Payment of Taxes, Assessments, Hazard Insurance Premiums
----------------------------------------------------------------------
and Similar Items; Escrow Accounts.
-----------------------------------
(a) The Servicer shall require Mortgagors to pay all taxes,
assessments, hazard insurance premiums, flood insurance premiums, condominium
association dues or comparable items for the account of the Mortgagors. To the
extent required by the Seller at the time the related Loan was originated and
not violative of current law, the Servicer shall establish and maintain one or
more accounts (each, an "Escrow Account") and deposit and retain therein all
collections from the Mortgagors (or advances by the Servicer) for the payment of
taxes, assessments, hazard insurance premiums, condominium association dues or
comparable items for the account of the Mortgagors. Nothing herein shall require
the Servicer to compel a Mortgagor to establish an Escrow Account in violation
of applicable law or if the Seller of the related Loan did not require the
establishment of an Escrow Account at the time the Loan was originated.
Withdrawals of amounts so collected from the Escrow Accounts may be
made only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium association dues, or comparable items, to reimburse the
Servicer out of related collections for any payments made pursuant to Sections
3.01 hereof (with respect to taxes and assessments and insurance premiums) and
3.09 hereof (with respect to hazard insurance), to refund to any Mortgagors any
sums determined to be overages, to pay interest, if required by law or the terms
of the related Mortgage or Mortgage Note, to Mortgagors on balances in the
Escrow Account or to clear and terminate the Escrow Account at the termination
of this Agreement in accordance with Section 9.01 hereof. The Escrow Accounts
shall not be a part of the Trust Fund.
(b) The Servicer shall advance any payments referred to in Section
3.06(a) that are not timely paid by the Mortgagors on the date when the tax,
premium or other cost for which such payment is intended is due, but the
Servicer shall be required so to advance only to the extent that such advances,
in the good faith judgment of the Servicer, are required to be made to protect
the lien of the Mortgage and will be recoverable by the Servicer out of
Insurance Proceeds, Liquidation Proceeds or otherwise. The amount of any such
advances made by the Servicer for the purpose of maintaining any hazard or flood
insurance shall not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Trustee for their benefit, be added to
the principal balance of the related Loan, notwithstanding that the terms of the
Loan so permit. Any advance made by the Servicer pursuant to this Section 3.06
shall be recoverable as a Servicing Advance to the extent permitted by Section
3.08.
SECTION 3.07. Access to Certain Documentation and Information
----------------------------------------------------------------------
Regarding the Loans.
--------------------
The Servicer shall afford the Depositor, the Insurer, the Trustee and
each Rating Agency reasonable access to all records and documentation regarding
the Loans and all accounts, insurance information and other matters relating to
this Agreement, such access being afforded without charge, but only upon
reasonable request and during normal business hours at the office designated by
the Servicer.
42
Upon reasonable advance notice in writing, the Servicer will provide
to each Certificateholder which is a savings and loan association, bank or
insurance company certain reports and reasonable access to information and
documentation regarding the Loans sufficient to permit such Certificateholder to
comply with applicable regulations of the OTS or other regulatory authorities
with respect to investment in the Certificates; provided that the Servicer shall
be entitled to be reimbursed by each such Certificateholder for actual expenses
incurred by the Servicer in providing such reports and access.
SECTION 3.08. Permitted Withdrawals from the Certificate Account and
----------------------------------------------------------------------
Distribution Account.
---------------------
(a) The Servicer may from time to time make withdrawals from the
Certificate Account for the following purposes:
(i) to pay to the Servicer (to the extent not previously
retained by the Servicer) the servicing compensation to which it is
entitled pursuant to Section 3.13, and, subject to Section 3.05(d), to
pay to the Servicer, as additional servicing compensation, earnings on
or investment income with respect to funds in or credited to the
Certificate Account;
(ii) to reimburse the Servicer for unreimbursed Advances
made by it, such right of reimbursement pursuant to this subclause
(ii) being limited to amounts received on the Loan(s) in respect of
which any such Advance was made, excluding any Purchase Price proceeds
received from the Servicer pursuant to Section 3.11 and subject to
Section 9.01;
(iii) to reimburse the Servicer for any Nonrecoverable
Advance previously made, except that the Servicer shall no longer be
entitled to reimbursement for any Nonrecoverable Advance on a Loan as
of the date the Servicer purchases such Loan from the Trust Fund
pursuant to Section 3.11 or Section 9.01;
(iv) to reimburse the Servicer for Insured Expenses from the
related Insurance Proceeds;
(v) to reimburse the Servicer for (a) unreimbursed Servicing
Advances, the Servicer's right to reimbursement pursuant to this
clause (a) with respect to any Loan being limited to amounts received
on such Loan(s) which represent late recoveries of the payments for
which such Servicing Advances were made pursuant to Section 3.01 or
Section 3.06 and (b) for unpaid Servicing Fees as provided in Section
3.11 hereof;
(vi) to pay to the purchaser, with respect to each Loan or
property acquired in respect thereof that has been purchased pursuant
to Section 2.02, 2.03 or 3.11, all amounts received thereon after the
date of such purchase;
(vii) to reimburse the Sellers, the Servicer or the
Depositor for expenses incurred by any of them and reimbursable
pursuant to Section 6.03 hereof;
(viii) to withdraw any amount deposited in the Certificate
Account and not required to be deposited therein;
(ix) on or prior to the Distribution Account Deposit Date,
to withdraw an amount equal to the Available Funds for both the Class
AF Certificates and Class A-IO
43
Certificates, and the Class AV-1 Certificates for such Distribution
Date and remit such amounts to the Trustee for deposit in the
Distribution Account; and
(x) to clear and terminate the Certificate Account upon
termination of this Agreement pursuant to Section 9.01 hereof.
The Servicer shall keep and maintain separate accounting, on a Loan by
Loan basis, for the purpose of justifying any withdrawal from the Certificate
Account pursuant to such subclauses (i), (ii), (iv), (v) and (vi). Prior to
making any withdrawal from the Certificate Account pursuant to subclause (iii),
the Servicer shall deliver to the Trustee an Officer's Certificate of a
Servicing Officer indicating the amount of any previous Advance determined by
the Servicer to be a Nonrecoverable Advance and identifying the related
Loans(s), and their respective portions of such Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account for
distributions to Certificateholders in the manner specified in this Agreement
(and to withhold from the amounts so withdrawn, the amount of any taxes that it
is authorized to withhold pursuant to the last paragraph of Section 8.11). In
addition, the Trustee may from time to time make withdrawals from the
Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee and certain expenses
for the related Distribution Date;
(ii) to withdraw and return to the Servicer any amount
deposited in the Distribution Account and not required to be deposited
therein; and
(iii) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01 hereof.
SECTION 3.09. Maintenance of Hazard Insurance; Maintenance of Primary
----------------------------------------------------------------------
Insurance Policies.
-------------------
(a) The Servicer shall require Mortgagors to maintain, for each Loan,
hazard insurance with extended coverage (i) in the case of a Loan secured by a
Mortgage creating a first lien on the related Mortgaged Property, in an amount
that is at least equal to the original principal balance of such Loan or the
maximum insurable value of the improvements on such Mortgaged Property,
whichever is less, and (ii) in the case of a Second Lien Loan, in an amount
equal to the lesser of the combined principal balance of such Second Lien Loan
and the related first lien mortgage loan or the maximum insurable value of the
improvements on the related Mortgaged Property. Each such policy of standard
hazard insurance shall contain, or have an accompanying endorsement that
contains, a standard mortgagee clause. Any amounts collected by the Servicer
under any such policies (other than the amounts to be applied to the restoration
or repair of the improvements on the related Mortgaged Property or amounts
released to the Mortgagor in accordance with the Servicer's normal servicing
procedures) shall be deposited in the Certificate Account. It is understood and
agreed that no earthquake or other additional insurance is to be required of any
Mortgagor or maintained on property acquired in respect of a Mortgage other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. If the Mortgaged Property
is located at the time of origination of the Loan in a federally designated
special flood hazard area and such area is participating in the national flood
insurance program, the Servicer shall require the related Mortgagor to maintain
flood insurance with respect to such Loan. Such flood insurance shall be in an
amount equal to the original principal balance of the related Loan.
44
(b) The Servicer shall not be required to have Mortgagors maintain any
Primary Mortgage Insurance Policy with respect to any Loan, but may do so as
allowed by law, and shall allow the cancellation of any such Primary Mortgage
Insurance Policy as required by law. The Servicer shall not take any action
which would result in non-coverage under any applicable Primary Mortgage
Insurance Policy of any loss which, but for the actions of the Servicer, would
have been covered thereunder. If any Mortgagor fails to pay the premiums for its
Primary Mortgage Insurance Policy, if any, the Servicer may, but shall not be
required to, pay such premiums. Any payment made by the Servicer pursuant to
this Section 3.09(b) shall be recoverable as a Servicing Advance to the extent
permitted by Section 3.08.
(c) In connection with its activities as Servicer of the Loans, the
Servicer agrees to present on behalf of itself, the Trustee, the Insurer and
Certificateholders, claims to the insurer under any Primary Mortgage Insurance
Policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Mortgage Insurance Policies
respecting defaulted Loans. Any amounts collected by the Servicer under any
Primary Mortgage Insurance Policies shall be deposited in the Certificate
Account.
SECTION 3.10. Enforcement of Due-on-Sale Clauses; Assumption
----------------------------------------------------------------------
Agreements.
-----------
(a) When any property subject to a Mortgage has been conveyed by the
Mortgagor, the Servicer, to the extent that it has knowledge of such conveyance,
may, at its discretion, but is not required to, enforce any due-on-sale clause
contained in any Mortgage Note or Mortgage, to the extent permitted under
applicable law and governmental regulations, but only to the extent that such
enforcement will not adversely affect or jeopardize coverage under any Required
Insurance Policy. The Servicer is authorized, subject to Section 3.10(b), to
take or enter into an assumption and modification agreement from or with the
Person to whom such property has been or is about to be conveyed, pursuant to
which such Person becomes liable under the Mortgage Note and, unless prohibited
by applicable state law, the Mortgagor remains liable thereon, provided that the
Loan shall continue to be covered (if so covered before the Servicer enters such
agreement) by the applicable Required Insurance Policies. The Servicer, subject
to Section 3.10(b), is also authorized with the prior approval of the insurers
under any Required Insurance Policies to enter into a substitution of liability
agreement with such Person, pursuant to which the original Mortgagor is released
from liability and such Person is substituted as Mortgagor and becomes liable
under the Mortgage Note. Notwithstanding the foregoing, the Servicer shall not
be deemed to be in default under this Section by reason of any transfer or
assumption which the Servicer reasonably believes it is restricted by law from
preventing, for any reason whatsoever.
(b) In any case in which a Mortgaged Property has been conveyed to a
Person by a Mortgagor, and such Person is to enter into an assumption agreement
or modification agreement or supplement to the Mortgage Note or Mortgage that
requires the signature of the Trustee, or if an instrument of release signed by
the Trustee is required releasing the Mortgagor from liability on the Loan, the
Servicer shall prepare and deliver or cause to be prepared and delivered to the
Trustee for signature and shall direct, in writing, the Trustee to execute the
assumption agreement with the Person to whom the Mortgaged Property is to be
conveyed and such modification agreement or supplement to the Mortgage Note or
Mortgage or other instruments as are reasonable or necessary to carry out the
terms of the Mortgage Note or Mortgage or otherwise to comply with any
applicable laws regarding assumptions or the transfer of the Mortgaged Property
to such Person. In connection with any such assumption, no material term of the
Mortgage Note may be changed. In addition, the substitute Mortgagor and the
Mortgaged Property must be acceptable to the Servicer in accordance with its
underwriting standards as then in effect. Together with each such substitution,
assumption or other agreement or instrument delivered to the Trustee for
execution by it, the Servicer shall deliver an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this subsection have been met
in connection therewith. The Servicer shall notify the Trustee that any such
substitution or assumption agreement has been
45
completed by forwarding to the Trustee the original of such substitution or
assumption agreement, which in the case of the original shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. Any fee collected by the Servicer for entering into
an assumption or substitution of liability agreement will be retained by the
Servicer as additional servicing compensation.
SECTION 3.11. Realization Upon Defaulted Loans; Repurchase of Certain
----------------------------------------------------------------------
Loans.
------
The Servicer shall use reasonable efforts to foreclose upon or
otherwise comparably convert the ownership of properties securing such of the
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments. In connection
with such foreclosure or other conversion, the Servicer shall follow such
practices and procedures as it shall deem necessary or advisable, in its sole
discretion, and as shall be normal and usual in its general mortgage servicing
activities and meet the requirements of the insurer under any Required Insurance
Policy; provided, however, that the Servicer shall not be required to expend its
own funds in connection with any foreclosure or towards the restoration of any
property unless it shall determine (i) that such restoration and/or foreclosure
will increase the proceeds of liquidation of the Loan after reimbursement to
itself of such expenses and (ii) that such expenses will be recoverable to it
through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Certificate Account). The Servicer shall be
responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the liquidation proceeds with respect to the related Mortgaged
Property, as provided in the definition of Liquidation Proceeds. If the Servicer
has knowledge that a Mortgaged Property which the Servicer is contemplating
acquiring in foreclosure or by deed in lieu of foreclosure is located within a
one mile radius of any site with environmental or hazardous waste risks known to
the Servicer, the Servicer will, prior to acquiring the Mortgaged Property, (i)
consider such risks and only take action in accordance with its established
environmental review procedures and (ii) consult with the Insurer and obtain the
Insurer's consent to such action.
With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trustee for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Trustee's name shall be placed on the title to such REO Property solely as the
Trustee hereunder and not in its individual capacity. The Servicer shall ensure
that the title to such REO Property references this Agreement and the Trustee's
capacity thereunder. As described more fully below, the Servicer shall have the
sole discretion to determine whether an immediate sale of an REO Property or
continued management of such REO Property is in the best interest of the
Certificateholders. In order to facilitate sales of REO Properties by the
Servicer, upon the Servicer's request, the Trustee shall promptly provide the
Servicer with appropriate limited durable powers of attorney or such other
documentation as may reasonably be required by the Servicer or purchasers of REO
Properties to consummate such sales. Pursuant to its efforts to sell such REO
Property, the Servicer shall either itself or through an agent selected by the
Servicer protect and conserve such REO Property in the same manner and to such
extent as is customary in the locality where such REO Property is located and
may, incident to its conservation and protection of the interests of the
Certificateholders, rent the same, or any part thereof, as the Servicer, in its
sole discretion, deems to be in the best interest of the Certificateholders for
the period prior to the sale of such REO Property. The Servicer shall prepare
for and deliver to the Trustee a statement with respect to each REO Property
that has been rented showing the aggregate rental income received and all
expenses incurred in connection with the management and maintenance of such REO
Property at such times as is necessary to enable the Trustee to comply with the
reporting requirements of the REMIC Provisions. The net monthly income, if any,
from such REO Property shall be deposited in the Certificate Account no later
than the close of business on each Determination Date. The Servicer shall
perform the tax reporting and withholding required by Sections 1445 and 6050J of
the
46
Code with respect to foreclosures and abandonments, the tax reporting required
by Section 6050H of the Code with respect to the receipt of mortgage interest
from individuals and any tax reporting required by Section 6050P of the Code
with respect to the cancellation of indebtedness by certain financial entities,
by preparing such tax and information returns as may be required, in the form
required, and delivering the same to the Trustee for filing.
In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Loan, the Servicer shall dispose of such Mortgaged Property prior to three years
after its acquisition by the Trust Fund unless the Trustee shall have been
supplied with an Opinion of Counsel (which Opinion of Counsel shall not be at
the expense of the Trustee) to the effect that the holding by the Trust Fund of
such Mortgaged Property subsequent to such three-year period will not result in
the imposition of taxes on "prohibited transactions" of any REMIC hereunder as
defined in section 860F of the Code or cause any REMIC to fail to qualify as one
or more REMICs at any time that any Certificates are outstanding, in which case
the Trust Fund may continue to hold such Mortgaged Property (subject to any
conditions contained in such Opinion of Counsel). Notwithstanding any other
provision of this Agreement, no Mortgaged Property acquired by the Trust Fund
shall be rented (or allowed to continue to be rented) or otherwise used for the
production of income by or on behalf of the Trust Fund in such a manner or
pursuant to any terms that would (i) cause such Mortgaged Property to fail to
qualify as "foreclosure property" within the meaning of section 860G(a)(8) of
the Code or (ii) subject any REMIC to the imposition of any federal, state or
local income taxes on the income earned from such Mortgaged Property under
Section 860G(c) of the Code or otherwise, unless the Servicer has agreed, in its
sole discretion, to indemnify and hold harmless the Trust Fund with respect to
the imposition of any such taxes.
The decision of the Servicer to foreclose on a defaulted Loan shall be
subject to a determination by the Servicer, in its sole discretion, that the
proceeds of such foreclosure would exceed the costs and expenses of bringing
such a proceeding.
The proceeds from any liquidation of a Loan, as well as any income
from an REO Property, will be applied in the following order of priority: first,
to reimburse the Servicer for any related unreimbursed Servicing Advances and
Servicing Fees related to such Liquidated Loan; second, to reimburse the
Servicer for any unreimbursed Advances; third, to accrued and unpaid interest
(to the extent no Advance has been made for such amount or any such Advance has
been reimbursed) on the Loan or related REO Property, at the Adjusted Net
Mortgage Rate to the Due Date occurring in the calendar month preceding the
month in which such amounts are required to be distributed; and fourth, as a
recovery of principal of the Loan. Excess Proceeds, if any, from the liquidation
of a Liquidated Loan will be retained by the Servicer as additional servicing
compensation pursuant to Section 3.13.
The Servicer, in its sole discretion, shall have the right to purchase
for its own account or for resale as set forth herein from the Trust Fund any
Loan which is 91 days or more delinquent at a price equal to the Purchase Price.
The Purchase Price for any Loan purchased hereunder shall be deposited in the
Certificate Account and the Trustee, upon receipt of a Request for Release from
the Servicer substantially in the form of Exhibit J, shall release or cause to
be released to the Servicer the related Mortgage File and shall execute and
deliver such instruments of transfer or assignment prepared by the purchaser of
such Loan, in each case without recourse, as shall be necessary to vest in the
Servicer any Loan released pursuant hereto and the Servicer shall succeed to all
the Trustee's right, title and interest in and to such Loan and all security and
documents related thereto. Such assignment shall be a sale and assignment
outright and not for security. The Servicer shall thereupon own such Loan, and
all security and documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
47
SECTION 3.12. Documents Records and Funds in Possession of Servicer to
----------------------------------------------------------------------
be Held for the Trustee.
------------------------
Notwithstanding any other provisions of this Agreement, the Servicer
shall transmit to the Trustee as required by this Agreement all documents and
instruments in respect of a Loan coming into the possession of the Servicer from
time to time and shall account fully to the Trustee for any funds received by
the Servicer or which otherwise are collected by the Servicer as Liquidation
Proceeds or Insurance Proceeds in respect of any Loan. All Mortgage Files and
funds collected or held by, or under the control of, the Servicer in respect of
any Loans, whether from the collection of principal and interest payments or
from Liquidation Proceeds, including but not limited to, any funds on deposit in
the Certificate Account, shall be held by the Servicer for and on behalf of the
Trustee and shall be and remain the sole and exclusive property of the Trustee,
subject to the applicable provisions of this Agreement. The Servicer also agrees
that it shall not create, incur or subject any Mortgage File or any funds that
are deposited in the Certificate Account, Distribution Account, or any funds
that otherwise are or may become due or payable to the Trustee for the benefit
of the Certificateholders or the Insurer, to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, or assert by legal
action or otherwise any claim or right of setoff against any Mortgage File or
any funds collected on, or in connection with, a Loan, except, however, that the
Servicer shall be entitled to set off against and deduct from any such funds any
amounts that are properly due and payable to the Servicer under this Agreement.
SECTION 3.13. Servicing Compensation.
-------------------------------------
As compensation for its activities hereunder, the Servicer shall be
entitled to retain or withdraw from the Certificate Account an amount equal to
the Servicing Fee for each Loan, provided that the aggregate Servicing Fee for
Loans in a particular Group with respect to any Distribution Date shall be
reduced (i) by an amount equal to the aggregate of the Prepayment Interest
Shortfalls relating to such Group, if any, with respect to such Distribution
Date, up to the full amount of the aggregate Servicing Fee for Loans in such
Group, and (ii) with respect to the first Distribution Date, an amount equal to
any amount relating to such Group to be deposited into the Certificate Account
by the Sellers pursuant to Section 2.01(a) and not so deposited.
Additional servicing compensation in the form of Excess Proceeds,
Prepayment Interest Excess, prepayment penalties, assumption fees, late payment
charges and all income and gain net of any losses realized from Permitted
Investments made with funds on deposit in the Certificate Account shall be
retained by the Servicer to the extent not required to be deposited in the
Certificate Account pursuant to Section 3.05 hereof. The Servicer shall be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement therefor except
as specifically provided in this Agreement.
SECTION 3.14. Access to Certain Documentation.
----------------------------------------------
The Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising certain Certificateholders and the examiners
and supervisory agents of the OTS, the FDIC and such other authorities, access
to the documentation regarding the Loans required by applicable regulations of
the OTS and the FDIC. Such access shall be afforded without charge, but only
upon reasonable and prior written request and during normal business hours at
the offices designated by the Servicer. Nothing in this Section shall limit the
obligation of the Servicer to observe any applicable law prohibiting disclosure
of information regarding the Mortgagors and the failure of the Servicer to
provide access as provided in this Section as a result of such obligation shall
not constitute a breach of this Section.
48
SECTION 3.15. Annual Statement as to Compliance.
------------------------------------------------
The Servicer shall deliver to the Depositor, the Insurer and the
Trustee on or before 120 days after the end of the Servicer's fiscal year,
commencing with its 2002 fiscal year, an Officer's Certificate stating, as to
the signer thereof, that (i) a review of the activities of the Servicer during
the preceding fiscal year and of the performance of the Servicer under this
Agreement has been made under such officer's supervision and (ii) to the best of
such officer's knowledge, based on such review, the Servicer has fulfilled all
its obligations under this Agreement throughout such year, or, if there has been
a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof. The Trustee
shall forward a copy of each such statement to each Rating Agency and to the
Insurer.
SECTION 3.16. Annual Independent Public Accountants' Servicing
----------------------------------------------------------------------
Statement; Financial Statements.
--------------------------------
On or before 120 days after the end of the Servicer's fiscal year,
commencing with its 2002 fiscal year, the Servicer at its expense shall cause a
nationally or regionally recognized firm of independent public accountants (who
may also render other services to the Servicer, the Seller or any affiliate
thereof) which is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Trustee, the Insurer and the Depositor
to the effect that such firm has examined certain documents and records relating
to the servicing of the Loans under this Agreement and that, on the basis of
such examination, conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or the Audit Program for Mortgages
serviced for FNMA and FHLMC, such servicing has been conducted in compliance
with this Agreement except for such significant exceptions or errors in records
that, in the opinion of such firm, the Uniform Single Attestation Program for
Mortgage Bankers or the Audit Program for Mortgages serviced for FNMA and FHLMC
requires it to report. In rendering such statement, such firm may rely, as to
matters relating to direct servicing of mortgage loans by Subservicers, upon
comparable statements for examinations conducted substantially in compliance
with the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Program for Mortgages serviced for FNMA and FHLMC (rendered within one year of
such statement) of independent public accountants with respect to the related
Subservicer. Copies of such statement shall be provided by the Trustee to any
Certificateholder upon request at the Servicer's expense, provided such
statement is delivered by the Servicer to the Trustee.
SECTION 3.17. Errors and Omissions Insurance; Fidelity Bonds.
-------------------------------------------------------------
The Servicer shall, for so long as it acts as servicer under this
Agreement, obtain and maintain in force (a) a policy or policies of insurance
covering errors and omissions in the performance of its obligations as Servicer
hereunder and (b) a fidelity bond in respect of its officers, employees and
agents. Each such policy or policies and bond shall, together, comply with the
requirements from time to time of FNMA or FHLMC for persons performing servicing
for mortgage loans purchased by FNMA or FHLMC. In the event that any such policy
or bond ceases to be in effect, the Servicer shall obtain a comparable
replacement policy or bond from an insurer or issuer, meeting the requirements
set forth above as of the date of such replacement.
49
SECTION 3.18. Optional Removal of Servicer by the Insurer.
----------------------------------------------------------
If any of the following occur, the Insurer shall have the option (but
not the obligation), by notice in writing to the Servicer (with a copy to each
Rating Agency), to terminate all of the rights and obligations of the Servicer
under this Agreement and in and to the Loans and the proceeds thereof, other
than its rights as a Certificateholder hereunder:
(i) if on three consecutive Distribution Dates, the
aggregate outstanding principal balance of Loans more than 60 days
contractually delinquent (including Loans in foreclosure and REO
Properties) as of the end of the related Due Period exceeds (a) prior
to the First Stepdown Date, 8.00% of the Pool Principal Balance as of
the end of the related Due Period or (b) on or after the First
Stepdown Date, 9.00% of the Pool Principal Balance as of the end of
the related Due Period;
(ii) if on any Distribution Date, the cumulative Loan Losses
over the prior twelve month period exceed 1.00% of the sum of the
average Pool Principal Balance as of the end of the twelve preceding
Due Periods; or
(iii) if on any Distribution Date, the cumulative Loan
Losses since the Cut-off Date exceed 2.50% of the Cut-off Date Pool
Principal Balance.
On and after the receipt by the Servicer of the notice described in
this Section, all authority and power of the Servicer hereunder, whether with
respect to the Loans or otherwise, shall pass to and be vested in the Trustee,
which shall act as servicer in accordance with the duties and obligations
described in Sections 7.02 and 7.03.
SECTION 3.19. Delinquent Loans
------------------------------
For all purposes in this Agreement and the Exhibits and Schedules
attached hereto, the determination as to whether a Loan is delinquent shall be
based on the number of days that payments on such Loan are contractually past
due, assuming 30-day months. For example, a payment due on the first day of a
month is not 30 days delinquent until the first day of the following month.
ARTICLE IIIA
POLICY; RESERVE FUND; AND NET WAC CAP ACCOUNT
SECTION 3A.01 Policy.
---------------------
(a) As soon as possible, and in no event later than 12:00 p.m. New
York City time on the second Business Day immediately preceding the Distribution
Date, the Trustee shall furnish the Insurer and the Servicer with a completed
notice in the form set forth as Exhibit A to the Endorsement to the Policy (the
"Notice") in the event that, with respect to either the Class AF Certificates
and Class A-IO Certificates or the Class AV-1 Certificates, the sum of (i) the
related Net Available Funds, plus (ii) the related Cross-Collateralization
Amount, plus (iii) with respect to the Class AV-1 Certificates, available
amounts on deposit in the Reserve Fund is insufficient to pay the Remittance
Amount for such Class(es) on such Distribution Date. The Notice shall specify
the Insured Amount required and shall constitute a claim for an Insured Amount
pursuant to the Policy. Upon receipt of Insured Amounts on behalf of the Holders
of Offered Certificates under the Policy, the Trustee shall deposit such Insured
Amounts in the Distribution Account and shall distribute such Insured Amounts
pursuant to Section 4.02.
50
(b) The Trustee shall receive, as attorney-in-fact of each Holder of
an Offered Certificate, any Insured Amount from the Insurer and disburse the
same to each Holder of an Offered Certificate in accordance with the provisions
of Section 4.02. Insured Amounts disbursed by the Trustee from proceeds of the
Policy shall not be considered payment by the Trust nor shall such payments
discharge the obligation of the Trust with respect to the Offered Certificates,
and the related Class Certificate Balance or Notional Amount shall be deemed not
reduced for such purposes and the Insurer shall become the owner of such unpaid
amounts due from the Trust in respect of the Offered Certificates. The Trustee
hereby agrees on behalf of each Holder of an Offered Certificate for the benefit
of the Insurer that it recognizes that to the extent the Insurer pays Insured
Amounts, either directly or indirectly (as by paying through the Trustee), to
the Holders of Offered Certificates, the Insurer will be subrogated to the
rights of such Holders of Offered Certificates, as applicable, with respect to
such Insured Amount, shall be deemed to the extent of the payments so made to be
a registered Holder of an Offered Certificate for purposes of payment and shall
receive all future related Remittance Amounts until all such Insured Amounts
paid by the Insurer have been fully reimbursed, subject to the following
paragraph. To evidence such subrogation, the Trustee shall note the Insurer's
rights as subrogee on the registration books maintained by the Trustee and on
any related Offered Certificates surrendered for payment upon receipt from the
Insurer of proof of payment of any Insured Amount. Except as otherwise described
herein, the Insurer shall not acquire any voting rights hereunder as a result of
such subrogation.
(c) It is understood and agreed that the intention of the parties is
that the Insurer shall not be entitled to reimbursement on any Distribution Date
for amounts previously paid by it unless on such Distribution Date the Holders
of Offered Certificates shall also have received the full amount of the related
Remittance Amount for such Distribution Date.
(d) The Trustee shall keep complete and accurate records of the amount
of Insured Amounts paid and the Insurer shall have the right to inspect such
records at reasonable times upon one Business Day's prior notice to the Trustee.
(e) The Trustee shall promptly notify the Insurer of any proceeding or
the institution of any action seeking the avoidance as a preferential transfer
under applicable bankruptcy, insolvency, receivership or similar law (a
"Preference Claim") of any distribution made with respect to the Offered
Certificates. Each Holder, by its purchase of Offered Certificates, and the
Trustee hereby agree that the Insurer (so long as no Insurer Default exists) may
at any time during the continuation of any proceeding relating to a Preference
Claim direct all matters relating to such Preference Claim, including, without
limitation, (i) the direction of any appeal of any order relating to any
Preference Claim and (ii) the posting of any surety, supersedeas or performance
bond pending any such appeal. In addition and without limitation of the
foregoing, the Insurer shall be subrogated to the rights of the Trustee and each
such Holder in the conduct of any such Preference Claim, including, without
limitation, all rights of any party to an adversary proceeding action with
respect to any order issued in connection with any such Preference Claim.
Insured Amounts paid by the Insurer to the Trustee shall be received by the
Trustee, as agent to the Certificateholders. The Trustee is not permitted to
make a claim on the Trust or on any Certificateholder for payments made to
Certificateholders under the Policy which are characterized as preference
payments by any federal bankruptcy court having jurisdiction over any bankrupt
Mortgagor unless ordered to do so by such bankruptcy court.
SECTION 3A.02 Reserve Fund and Yield Maintenance Agreement.
-----------------------------------------------------------
(a) On the Closing Date, the Trustee shall establish and maintain in
its name, in trust for the benefit of the Holders of the Class AV-1 Certificates
and the Insurer, the Reserve Fund to cover certain payments on the Class AV-1
Certificates. The Reserve Fund shall be an Eligible Account, and funds on
deposit therein shall be held separate and apart from, and shall not be
commingled with, any
51
other moneys, including without limitation, other moneys held by the Trustee
pursuant to this Agreement. The Reserve Fund shall be treated as an "outside
reserve fund" under applicable Treasury regulations and will not be part of any
REMIC. Any investment earnings on the Reserve Fund will be treated as owned by
the Holders of the Class X Certificates and will be taxable to the Holders of
the Class X Certificates. Distributions made to any outside reserve fund under
this document shall be treated as made to the Class X Certificateholders.
(b) In addition, on the Closing Date, the Yield Maintenance Agreement
will be entered into by the Counterparty and the Trustee, for the benefit of the
Insurer and the Holders of the Class AV-1 Certificates. Pursuant to the Yield
Maintenance Agreement, on each Distribution Date, the Trustee will deposit into
the Reserve Fund any amounts received pursuant to the Yield Maintenance
Agreement. The Trustee shall collect payments due under and otherwise enforce
the terms of the Yield Maintenance Agreement. The Trustee shall make withdrawals
from the Reserve Fund to make distributions pursuant to Sections 4.02(d) and
(e). Notwithstanding anything to the contrary contained herein, in no event
shall the Trustee in its fiduciary capacity be liable to the Holders of the
Class AV-1 Certificates or the Insurer, be required to make any deposit from its
own funds into the Reserve Fund or be required to take any action against the
Counterparty in connection with any delay in payment of amounts due under the
Yield Maintenance Agreement caused by (i) any wire transfer problem or any
operational or administrative error or omission or (ii) any government action
each as further described in clause (i) of Part I of the Schedule to the Yield
Maintenance Agreement during the grace period specified therein.
(c) The Trustee shall invest the funds in the Reserve Fund as directed
in writing by the Holders of the Class X Certificates in Permitted Investments,
which shall mature not later than, the second Business Day preceding each
Distribution Date (except that if such Permitted Investment is an obligation of
the institution that maintains such account, then such Permitted Investment
shall mature not later than the Business Day next preceding such Distribution
Date) and shall not be sold or disposed of prior to their maturity. All such
Permitted Investments shall be made in the name of the Trustee, for the benefit
of the Holders of the Class AV-1 Certificates and the Insurer. All income and
gain net of any losses realized from any such investment of funds on deposit in
the Reserve Fund shall be deposited in the Reserve Fund. The Trustee in its
fiduciary capacity shall not be liable for the amount of any loss incurred in
respect of any investment or lack of investment of funds held in the Reserve
Fund and made in accordance with this Section 3A.02.
(d) Upon termination of the Trust Fund, any amounts remaining in the
Reserve Fund shall be distributed to the Holders of the Class X Certificates in
the same manner as if distributed pursuant to Section 4.02(e)(ii) hereof.
(e) In the event that the Yield Maintenance Agreement is terminated
prior to the Yield Maintenance Stated Termination and the Counterparty has not
obtained a replacement counterparty to assume its obligations thereunder
pursuant to the terms of the Yield Maintenance Agreement, the Trustee shall
obtain a replacement yield maintenance agreement acceptable to the Insurer and
the Servicer and shall apply any amounts received from the Counterparty under
the Yield Maintenance Agreement in connection with its termination, to the
extent necessary, to obtain such replacement. In no event whatsoever shall the
Trustee be responsible for costs and expenses incurred in connection with
obtaining a replacement yield maintenance agreement or for any fees, costs or
expenses payable thereunder.
(f) If, upon termination of the Trust Fund pursuant to the provisions
of Article IX hereof, the "Notional Outstanding," as set forth in Attachment 1
to the Rate Cap Transaction Confirmation relating to the Yield Maintenance
Agreement, is greater than zero, the Trustee shall, as of
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the date of such termination, assign to Equity One, Inc. all of its right, title
and interest in and to the Yield Maintenance Agreement and any payments
thereunder.
SECTION 3A.03. Net WAC Cap Account
----------------------------------
(a) On the Closing Date, the Trustee shall establish and maintain in
its name, in trust for the benefit of the Holders of the Class AF-1 and Class
AV-1 Certificates, the Net WAC Cap Account and deposit therein the amount of
$10,000 paid to the Trustee by the Depositor. The Net WAC Cap Account shall be
an Eligible Account, and funds on deposit therein shall be held separate and
apart from, and shall not be commingled with, any other moneys, including
without limitation, other moneys held by the Trustee pursuant to this Agreement.
The Net WAC Cap Account shall be treated as an "outside reserve fund" under
applicable Treasury regulations and will not be part of any REMIC. Any
investment earnings on the Net WAC Cap Account will be treated as owned by the
Holders of the Class X Certificates and will be taxable to the Holders of the
Class X Certificates. Distributions made to any outside reserve fund under this
document shall be treated as made to the Class X Certificateholders.
(b) On each Distribution Date, the Trustee shall deposit amounts in
the Net WAC Cap Account pursuant to Sections 4.02(a)(ix) and (b)(ix). Any
amounts deposited in the Net WAC Cap Account pursuant to Sections 4.02(a)(ix)
and (b)(ix) shall be deemed to have been distributed first to the Class X
Certificates and then transferred by the Holders of the Class X Certificates to
the Net WAC Cap Account. The amount required to be deposited into the Net WAC
Cap Account on any Distribution Date will equal the aggregate Net WAC Cap
Deposit Amount for the Class AF-1 and Class AV-1 Certificates. The Trustee shall
make withdrawals from the Net WAC Cap Account to make distributions pursuant to
Section 4.02(c).
(c) The Trustee shall invest the funds in the Net WAC Cap Account as
directed in writing by the Holders of the Class X Certificates in Permitted
Investments, which shall mature not later than, the second Business Day
preceding each Distribution Date (except that if such Permitted Investment is an
obligation of the institution that maintains such account, then such Permitted
Investment shall mature not later than the Business Day next preceding such
Distribution Date) and shall not be sold or disposed of prior to their maturity.
Any investment earnings on such amounts shall be payable to the Holders of the
Class X Certificates. The Holders of the Class X Certificates shall be treated
as the owners of the Net WAC Cap Account for federal tax purposes. The Trustee
in its fiduciary capacity shall not be liable for the amount of any loss
incurred in respect of any investment or lack of investment of funds held in the
Net WAC Cap Account and made in accordance with this Section 3A.03(c).
(d) Upon termination of the Trust Fund, any amounts remaining in the
Net WAC Cap Account shall be distributed to the Holders of the Class X
Certificates.
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
SECTION 4.01. Advances.
-----------------------
The Servicer shall determine on or before each Servicer Advance Date
whether it is required to make an Advance pursuant to the definition thereof. If
the Servicer determines it is required to make an Advance, it shall, on or
before the Servicer Advance Date, either (i) deposit into the Certificate
Account an amount equal to the Advance or (ii) make an appropriate entry in its
records
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relating to the Certificate Account that any Amount Held for Future Distribution
has been used by the Servicer in discharge of its obligation to make any such
Advance. Any funds so applied shall be replaced by the Servicer by deposit in
the Certificate Account no later than the close of business on the next Servicer
Advance Date. The Servicer shall be entitled to be reimbursed from the
Certificate Account for all Advances of its own funds made pursuant to this
Section as provided in Section 3.08. The obligation to make Advances with
respect to any Loan shall continue if such Loan has been foreclosed or otherwise
terminated and the Mortgaged Property has not been liquidated.
SECTION 4.02. Priorities of Distribution.
-----------------------------------------
(a) On each Distribution Date, the Trustee shall distribute the
following amounts from Class AF Distributable Funds (provided that Insured
Amounts constituting part of Class AF Distributable Funds may only be used for
the items listed in clauses (iv) and (v) below), to the extent available, to the
parties and in the priorities indicated:
(i) first, to the Insurer, the portion of the Insurer's
Monthly Premium based upon the aggregate Class Certificate Balance of
the Class AF Certificates;
(ii) second, to the Trustee, the portion of the Trustee Fee
and expenses of the Trustee based upon the Group Principal Balance of
the Group I Loans, except to the extent previously paid by permitted
withdrawals under Section 3.08;
(iii) third, to the Servicer, an amount equal to the sum of
(A) the aggregate Servicing Fee relating to the Group I Loans, except
to the extent previously paid by permitted withdrawals under Section
3.08, and (B) any other amounts expended by the Servicer in connection
with the Group I Loans and reimbursable thereto under this Agreement
but not previously reimbursed;
(iv) fourth, concurrently, to the Class AF-1, Class AF-2,
Class AF-3, Class AF-4 and Class A-IO Certificates, the related
Interest Distribution Amount, pro rata, based on the amount of
interest that each such Class is entitled to receive on such
Distribution Date;
(v) fifth, to the Class AF-1, Class AF-2, Class AF-3 and
Class AF-4 Certificates, sequentially in that order, the related
Certificate Formula Principal Amount until the Class Certificate
Balance of each such Class has been reduced to zero;
(vi) sixth, to the Insurer, any I&I Payments then due and
owing, except to the extent previously paid pursuant to clause (b)(vi)
below;
(vii) seventh, to the Class AF-1, Class AF-2, Class AF-3 and
Class AF-4 Certificates, sequentially in that order, an amount equal
to the lesser of (a) the Class AF Distributable Excess Spread, or (b)
the amount necessary to reduce the Class Certificate Balance thereof
to zero;
(viii) eighth, to the Class AV-1 Certificates to fund any
Class AV-1 Available Funds Shortfall in accordance with the
distribution priorities set forth in clause (b) below;
(ix) ninth, to the Net WAC Cap Account, the Net WAC Cap
Deposit Amount for the benefit of the Class AF-1 Certificates;
54
(x) tenth, to the Class X Certificates, the sum of (a) the
excess of (i) the product of their notional balance and Pass-Through
Rate as provided in the Preliminary Statement, over (ii) the sum of
(A) any Net WAC Cap Carryover for the Class AF-1 and Class AV-1
Certificates and (B) any Net WAC Cap Deposit Amount for the Class AF-1
and Class AV-1 Certificates and (b) the sum of (i) the amount, if any,
of any Class AF Overcollateralization Release Amount for such
Distribution Date and (ii) the amount, if any, of any Class AV-1
Overcollateralization Release Amount for such Distribution Date,
except to the extent previously paid pursuant to clause (b)(x) below;
(xi) eleventh, to the Trustee, any indemnity amounts then
due and owing hereunder, except to the extent previously paid by the
Servicer pursuant to Section 8.05 or paid pursuant to clause (b)(xi)
below; and
(xii) twelfth, to the Class R Certificates, any remaining
Class AF Distributable Funds.
(b) On each Distribution Date, the Trustee shall distribute the
following amounts from Class AV-1 Distributable Funds (provided that Insured
Amounts constituting part of Class AV-1 Distributable Funds may only be used for
the items listed in clauses (iv) and (v) below), to the extent available, to the
parties and in the priorities indicated:
(i) first, to the Insurer, the portion of the Insurer's
Monthly Premium based upon the aggregate Class Certificate Balance of
the Class AV-1 Certificates;
(ii) second, to the Trustee, the portion of the Trustee Fee
and expenses of the Trustee based upon the Group Principal Balance of
the Group II Loans, except to the extent previously paid by permitted
withdrawals under Section 3.08;
(iii) third, to the Servicer, an amount equal to the sum of
(A) the aggregate Servicing Fee relating to the Group II Loans, except
to the extent previously paid by permitted withdrawals under Section
3.08, and (B) any other amounts expended by the Servicer in connection
with the Group II Loans and reimbursable thereto under this Agreement
but not previously reimbursed;
(iv) fourth, to the Class AV-1 Certificates, the related
Interest Distribution Amount;
(v) fifth, to the Class AV-1 Certificates, the related
Certificate Formula Principal Amount until the Class Certificate
Balance of the Class AV-1 Certificates has been reduced to zero;
(vi) sixth, to the Insurer, any I&I Payments then due and
owing, except to the extent previously paid pursuant to clause (a)(vi)
above;
(vii) seventh, to the Class AV-1 Certificates, an amount
equal to the lesser of (a) the Class AV-1 Distributable Excess Spread,
or (b) the amount necessary to reduce the Class Certificate Balance
thereof to zero;
(viii) to the Class AF and Class A-IO Certificates to fund
any Class AF Available Funds Shortfall in accordance with the
distribution priorities set forth in clause (a) above;
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(ix) ninth, to the Net WAC Cap Account, the Net WAC Cap
Deposit Amount for the benefit of the Class AV-1 Certificates;
(x) tenth, to the Class X Certificates, the sum of (a) the
excess of (i) the product of their notional balance and Pass-Through
Rate as provided in the Preliminary Statement, over (ii) the sum of
(A) any Net WAC Cap Carryover for the Class AF-1 and Class AV-1
Certificates and (B) any Net WAC Cap Deposit Amount for the Class AF-1
and Class AV-1 Certificates and (b) the sum of (i) the amount, if any,
of any Class AF Overcollateralization Release Amount for such
Distribution Date and (ii) the amount, if any, of any Class AV-1
Overcollateralization Release Amount for such Distribution Date,
except to the extent previously paid pursuant to clause (a)(x) above;
(xi) eleventh, to the Trustee, any indemnity amounts then
due and owing hereunder, except to the extent previously paid by the
Servicer pursuant to Section 8.05 or paid pursuant to clause (a)(xi)
above; and
(xii) twelfth, to the Class R Certificates, any remaining
Class AV-1 Distributable Funds.
(c) On each Distribution Date, following all distributions and
deposits made pursuant to subsections (a) and (b) above, the Trustee shall
distribute
(i) the Net WAC Cap Carryover for the Class AF-1
Certificates for such Distribution Date, if any, from the Net WAC Cap
Account (to the extent of available funds relating to Group I Loans
therein) to the Holders of Class AF-1 Certificates, and
(ii) the Net WAC Cap Carryover for the Class AV-1
Certificates for such Distribution Date, if any, from the Net WAC Cap
Account (to the extent of available funds relating to Group II Loans
therein) to the Holders of Class AV-1 Certificates.
(d) On each Distribution Date, following all distributions and
deposits made pursuant to subsections (a), (b) and (c) above, the Trustee will
withdraw from the Reserve Fund (to the extent of available funds therein) an
amount sufficient to pay the following items, and shall distribute such amount
in the following order of priority:
(i) first, to reimburse the Insurer for any Insured Amounts
paid under the Policy with respect to the Class AV-1 Certificates and
not previously reimbursed;
(ii) second, to pay the Interest Distribution Amount payable
to the Class AV-1 Certificates, to the extent not covered by Available
Funds (including payments from the Net WAC Cap Account);
(iii) third, to pay the Certificate Formula Principal Amount
payable to the Class AV-1 Certificates, to the extent not covered by
Available Funds; and
(iv) fourth, to the Insurer, any I&I Payments with respect
to the Class AV-1 Certificates then due and owing.
(e) On each Distribution Date, following all distributions and
deposits made pursuant to subsections (a), (b), (c) and (d) above, the Trustee
will withdraw from the Reserve Fund (to
56
the extent of available funds therein) the Class AV-1 Overcollateralization
Release Amount and shall distribute such Class AV-1 Overcollateralization
Release Amount to pay the following items, in the following order of priority:
(i) first, to the Class AV-1 Certificates to pay any
remaining Net WAC Cap Carryover for the Class AV-1 Certificates, to
the extent not paid out of the Net WAC Cap Account on such
Distribution Date; and
(ii) second, to the holders of the Class X Certificates.
SECTION 4.03. Monthly Statements to Certificateholders.
-------------------------------------------------------
(a) Not later than each Distribution Date, the Trustee shall post on
its website at www.jpmorgan.com/absmbs, which posting shall be accessible to
each Certificateholder, the Insurer, the Servicer, the Depositor and each Rating
Agency, a statement setting forth with respect to the related distribution
(provided, however, that each Certificateholder, upon request to the Trustee,
shall be entitled to receive from the Trustee a paper copy of such statement if
such Certificateholder is unable to access the Trustee's website):
(i) with respect to each Group, the amount thereof allocable
to principal, separately identifying the aggregate amount of any
Principal Prepayments and Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any Class
Unpaid Interest Amount included in such distribution and any remaining
Class Unpaid Interest Amount after giving effect to such distribution;
(iii) if the distribution to the Holders of a Class of
Certificates is less than the full amount that would be distributable
to such Holders if there were sufficient funds available therefor, the
amount of the shortfall and the allocation thereof as between
principal and interest;
(iv) the Class Certificate Balance or Notional Amount of
each Class of Certificates after giving effect to the distribution of
principal on such Distribution Date;
(v) the Pool Principal Balance and the Group Principal
Balances for the following Distribution Date;
(vi) with respect to each Group, the amount of the Servicing
Fee paid to or retained by the Servicer with respect to such
Distribution Date;
(vii) the Pass-Through Rate for each Class of Offered
Certificates with respect to such Distribution Date;
(viii) with respect to each Group, the amount of Advances
included in the distribution on such Distribution Date and the
aggregate amount of Advances outstanding as of the close of business
on such Distribution Date;
(ix) with respect to each Group, the number and aggregate
principal amounts of Loans (A) contractually past due (assuming 30 day
months) (exclusive of Loans in foreclosure) (1) 1 to 30 days (2) 31 to
60 days (3) 61 to 90 days and (4) 91 or more days and (B) in
foreclosure
57
(1) 1 to 30 days (2) 31 to 60 days (3) 61 to 90 days and (4) 91 or
more days, as of the close of business on the last day of the
Prepayment Period preceding such Distribution Date;
(x) with respect to each Group and with respect to any Loan
that became an REO Property during the preceding calendar month, the
loan number and Stated Principal Balance of such Loan as of the close
of business on the last day of the Prepayment Period preceding such
Distribution Date and the date of acquisition thereof;
(xi) with respect to each Group, the total number and
principal balance of any REO Properties (and market value, if
available) as of the close of business on the last day of the
Prepayment Period preceding such Distribution Date;
(xii) with respect to each Group, the amount equal to the
sum of the Stated Principal Balances of the three Loans with the
largest individual Stated Principal Balances;
(xiii) with respect to the Class AF-1 Certificates and the
Class AV-1 Certificates, the amount of the Net WAC Cap Carryover to be
paid to such Class from the Net WAC Cap Account and the amount
remaining unpaid;
(xiv) with respect to each Group, the aggregate principal
balance of Balloon Loans with original terms less than or equal to 36
months which are 60 or more days contractually past due (assuming 30
day months) (including Loans in foreclosure and REO Properties) on the
last day of the Prepayment Period preceding such Distribution Date;
(xv) with respect to each Group, the cumulative aggregate
amount of Loan Losses as of the last day of the Prepayment Period
preceding such Distribution Date;
(xvi) with respect to the Class AV-1 Certificates, the
amount of funds withdrawn from the Reserve Fund and included in such
distribution and the outstanding balance of the Reserve Fund after
giving effect to such distribution;
(xvii) with respect to each Group, the number of Loans
repurchased by Sellers during the Due Period related to such
Distribution Date;
(xviii) with respect to each Group, the weighted average
Mortgage Rate of the Outstanding Loans, such weighted average to be
calculated based on the principal balances of such Outstanding Loans
on the first day of the Due Period related to such Distribution Date;
(xix) with respect to each Group, the weighted average
maturity date of the Outstanding Loans;
(xx) the Class AF Overcollateralization Target Amount and
the Class AV-1 Overcollateralization Target Amount after giving effect
to such distribution;
(xxi) the amount of Class AF Distributable Excess Spread and
Class AV-1 Distributable Excess Spread included in the distribution on
such Distribution Date;
(xxii) with respect to each Group, the cumulative amount of
Loan Losses from the Cut-off Date through the last day of the Due
Period relating to such Distribution Date;
58
(xxiii) the amount of funds collected by the Trustee under
the Yield Maintenance Agreement during the Due Period relating to such
Distribution Date; and
(xxiv) with respect to each Group, the
Cross-Collateralization Amount.
(b) The Trustee's responsibility for posting the above information on
its website is limited to the availability, timeliness and accuracy of the
information provided by the Servicer. On or before the 18th day of each calendar
month, or if such day is not a Business Day, the next succeeding Business Day,
commencing in May 2002, the Servicer shall deliver to the Trustee a report, in a
form acceptable to the Trustee, containing all of the necessary information for
the Trustee to complete items (i), (v), (vi), (viii)-(xii), (xiv), (xv),
(xvii)-(xix) and (xxiii) of the statement described in (a) above. The Trustee
shall be responsible for obtaining the necessary information to complete items
(ii), (iii), (iv), (vii), (xiii), (xvi), (xx)-(xxii) and (xxiv) of the statement
described in (a) above.
(c) Within a reasonable period of time after the end of each calendar
year, but in no case later than the time prescribed by the Code and applicable
Treasury regulations, the Trustee shall cause to be furnished to each Person who
at any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i), (a)(ii), (a)(vii) and
(a)(xiii) of this Section 4.03 aggregated for such calendar year or applicable
portion thereof during which such Person was a Certificateholder. Such
obligation of the Trustee shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Trustee
pursuant to any requirements of the Code as from time to time in effect.
SECTION 4.04. Reporting.
------------------------
On each Distribution Date, the Servicer shall provide to the Trustee
current information of the type set forth in Schedule I hereto presented in a
format substantially similar to Exhibit L attached hereto and the Trustee shall
then forward such information to a reporting service mutually agreed upon by the
Servicer and the Trustee.
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
-------------------------------
The Certificates shall be substantially in the forms attached hereto
as exhibits. The Certificates shall be issuable in the minimum denominations,
integral multiples in excess thereof (except that one Certificate in each Class
may be issued in a different amount which must be in excess of the applicable
minimum denomination) and aggregate denominations per Class set forth in the
Preliminary Statement.
Subject to Section 9.02 hereof respecting the final distribution on
the Certificates, on each Distribution Date the Trustee shall make distributions
to each Certificateholder of record on the preceding Record Date either (a) by
wire transfer in immediately available funds to the account of such Holder at a
bank or other entity having appropriate facilities therefor, if (i) such Holder
has so notified the Trustee at least five Business Days prior to the related
Record Date and (ii) such Holder shall hold (A) 100% of the Class Certificate
Balance, Notional Amount or Percentage Interest of any Class of Certificates or
(B) Certificates of any Class with an aggregate principal Denomination of not
less than $1,000,000 or (b) by check mailed by first class mail to such
Certificateholder at the address of such Holder appearing in the Certificate
Register.
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The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer. Certificates bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the countersignature and delivery of such Certificates
or did not hold such offices at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their countersignature. On the
Closing Date, the Trustee shall countersign the Certificates to be issued at the
direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee
on a continuous basis, an adequate inventory of Certificates to facilitate
transfers.
SECTION 5.02. Certificate Register; Registration of Transfer and
----------------------------------------------------------------------
Exchange of Certificates.
-------------------------
(a) The Trustee shall maintain, or cause to be maintained in
accordance with the provisions of Section 5.06 hereof, a Certificate Register
for the Trust Fund in which, subject to the provisions of subsections (b) and
(c) below and to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the name
of the designated transferee or transferees, one or more new Certificates of the
same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in the form of Exhibit G duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be canceled and subsequently destroyed by the Trustee in accordance with
the Trustee's customary procedures.
(b) No transfer of a Class X Certificate or Class R Certificate shall
be made unless such transfer is made pursuant to an effective registration
statement under the Securities Act and any applicable state securities laws or
is exempt from the registration requirements under said Act and such state
securities laws. In the event that a transfer is to be made in reliance upon an
exemption from the Securities Act and such laws, in order to assure compliance
with the Securities Act and such laws, (i) the Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee shall
each certify to the Trustee in writing the facts surrounding the transfer, the
Certificateholder by delivering a certificate in substantially the form set
forth in Exhibit G (the "Transferor Certificate") and the
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Certificateholder's prospective transferee by delivering a letter in
substantially the form of either Exhibit H (the "Investment Letter") or Exhibit
I (the "Rule 144A Letter") or (ii) there shall be delivered to the Trustee at
the expense of the transferor an Opinion of Counsel that such transfer may be
made pursuant to an exemption from the Securities Act. The Depositor shall
provide to any Holder of a Class X Certificate or Class R Certificate and any
prospective transferee designated by any such Holder, information regarding the
related Certificates and the Loans and such other information as shall be
necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4)
for transfer of any such Certificate without registration thereof under the
Securities Act pursuant to the registration exemption provided by Rule 144A. The
Trustee and the Servicer shall cooperate with the Depositor in providing the
Rule 144A information referenced in the preceding sentence, including providing
to the Depositor such information regarding the Certificates, the Loans and
other matters regarding the Trust Fund as the Depositor shall reasonably request
to meet its obligation under the preceding sentence. Each Holder of a Class X
Certificate or Class R Certificate desiring to effect such transfer shall, and
does hereby agree to, indemnify the Trustee and the Depositor, the Sellers and
the Servicer against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless
the Trustee shall have received (i) a representation letter from the transferee
substantially in the form of Exhibit H or Exhibit I, to the effect that (x) such
transferee is not an employee benefit plan or arrangement subject to Section 406
of ERISA or a plan or arrangement subject to Section 4975 of the Code, nor a
person acting on behalf of any such plan or arrangement, nor using the assets of
any such plan or arrangement to effect such transfer or (y) if the purchaser is
an insurance company and the ERISA Restricted Certificate is not a Class R
Certificate and has been the subject of an ERISA Qualifying Underwriting, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60 or (ii) in the
case of any such ERISA-Restricted Certificate presented for registration in the
name of an employee benefit plan subject to ERISA, or a plan or arrangement
subject to Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan or arrangement, or using such plan's or arrangement's assets,
an Opinion of Counsel satisfactory to the Trustee, which Opinion of Counsel
shall not be an expense of either the Trustee or the Trust Fund, addressed to
the Trustee to the effect that the purchase or holding of such ERISA-Restricted
Certificate will not result in the assets of the Trust Fund being deemed to be
"plan assets" and subject to the prohibited transaction provisions of ERISA and
the Code and will not subject the Trustee to any obligation in addition to those
expressly undertaken in this Agreement or to any liability. Notwithstanding
anything else to the contrary herein, any purported transfer of an
ERISA-Restricted Certificate to or on behalf of an employee benefit plan subject
to ERISA or to the Code without the delivery to the Trustee of an Opinion of
Counsel satisfactory to the Trustee as described above shall be void and of no
effect.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Trustee shall be under no liability to any Person for
any registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to
61
be bound by the following provisions, and the rights of each Person acquiring
any Ownership Interest in a Class R Certificate are expressly subject to the
following provisions:
(i) Each Person holding or acquiring any Ownership Interest
in a Class R Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in a Class R Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Class R Certificate
unless, in addition to the certificates required to be delivered to
the Trustee under subparagraph (b) above, the Trustee shall have been
furnished with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form attached hereto as
Exhibit F.
(iii) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall agree (A) to obtain a Transfer
Affidavit from any other Person to whom such Person attempts to
Transfer its Ownership Interest in a Class R Certificate, (B) to
obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer of
a Class R Certificate and (C) not to Transfer its Ownership Interest
in a Class R Certificate or to cause the Transfer of an Ownership
Interest in a Class R Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Class R Certificate in violation of the provisions of
this Section 5.02(c) shall be absolutely null and void and shall vest
no rights in the purported Transferee. If any purported transferee
shall become a Holder of a Class R Certificate in violation of the
provisions of this Section 5.02(c), then the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Class R
Certificate. The Trustee shall be under no liability to any Person for
any registration of Transfer of a Class R Certificate that is in fact
not permitted by this Section or for making any payments due on such
Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long
as the Transfer was registered after receipt of the related Transfer
Affidavit, Transferor Certificate and either the Rule 144A Letter or
the Investment Letter. The Trustee shall be entitled but not obligated
to recover from any Holder of a Class R Certificate that was in fact
not a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all
payments made on such Class R Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of
such Certificate.
(v) The Depositor shall use its best efforts to make
available, upon receipt of written request from the Trustee, all
information necessary to compute any tax imposed under Section 860E(e)
of the Code as a result of a Transfer of an Ownership Interest in a
Class R Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Class R Certificate set
forth in this Section 5.02(c) shall cease to apply (and the applicable
portions of the legend on a Class R Certificate may be deleted) with
respect to Transfers occurring after delivery to the Trustee of an
Opinion of Counsel, which Opinion of Counsel shall not be an expense
of the Trust Fund, the Trustee, the Sellers or the Servicer, to the
effect that the elimination of such restrictions will not cause the
Trust Fund hereunder to fail to qualify as one or more REMICs at any
time that the Certificates
62
are outstanding or result in the imposition of any tax on the Trust
Fund, a Certificateholder or another Person. Each Person holding or
acquiring any Ownership Interest in a Class R Certificate hereby
consents to any amendment of this Agreement which, based on an Opinion
of Counsel furnished to the Trustee, is reasonably necessary (A) to
ensure that the record ownership of, or any beneficial interest in, a
Class R Certificate is not transferred, directly or indirectly, to a
Person that is not a Permitted Transferee and (B) to provide for a
means to compel the Transfer of a Class R Certificate which is held by
a Person that is not a Permitted Transferee to a Holder that is a
Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at all
times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Beneficial Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Beneficial Owners of the Book-Entry Certificates for
purposes of exercising the rights of Holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Beneficial Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Beneficial Owners.
All transfers by Beneficial Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Beneficial Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Beneficial Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
If (x) (i) the Servicer advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee is unable to locate a
qualified successor, (y) the Servicer at its option advises the Trustee in
writing that it elects to terminate the book-entry system through the Depository
or (z) after the occurrence of an Event of Default or the resignation or removal
of the Servicer, Beneficial Owners representing at least 51% of the sum of the
then outstanding Class Certificate Balance and Notional Amount of all Book-Entry
Certificates together advise the Depository, either directly or through the
Depository Participants, in writing (with instructions to notify the Trustee in
writing) that the continuation of a book-entry system through the Depository is
no longer in the best interests of the Beneficial Owners. Upon the occurrence of
any of the events described in the immediately preceding sentence, the Trustee
shall notify all Beneficial Owners of the occurrence of any such event and of
the availability through the Depository of definitive, fully-registered
Certificates (the "Definitive Certificates") to Beneficial Owners requesting the
same. Upon surrender to the Trustee of the related Class of Certificates by the
Depository, accompanied by the instructions from the Depository for
registration, the Trustee shall issue the Definitive Certificates. Neither the
Servicer, the Depositor nor the Trustee shall be liable for any delay in
delivery of such instruction and each may conclusively rely on, and shall be
protected in relying on, such instructions. The Servicer shall provide the
Trustee with an adequate inventory of certificates to facilitate the issuance
and
63
transfer of Definitive Certificates. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed by
the Trustee, to the extent applicable with respect to such Definitive
Certificates and the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder; provided that the Trustee shall
not by virtue of its assumption of such obligations become liable to any party
for any act or failure to act of the Depository.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
----------------------------------------------------------------
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate and (b) there is delivered to the Servicer and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee that such Certificate
has been acquired by a bona fide purchaser, the Trustee shall execute,
countersign and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.03, the Trustee may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith. Any replacement Certificate issued pursuant to this Section
5.03 shall constitute complete and indefeasible evidence of ownership, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.04. Persons Deemed Owners.
------------------------------------
The Servicer, the Trustee and any agent of the Servicer or the
Trustee may treat the Person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions as provided
in this Agreement and for all other purposes whatsoever, and neither the
Servicer, the Trustee nor any agent of the Servicer or the Trustee shall be
affected by any notice to the contrary.
SECTION 5.05. Access to List of Certificateholders' Names and
----------------------------------------------------------------------
Addresses.
----------
If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, the Servicer or such Certificateholders at
such recipients' expense the most recent list of the Certificateholders of such
Trust Fund held by the Trustee, if any. The Depositor and every
Certificateholder, by receiving and holding a Certificate, agree that the
Trustee shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
SECTION 5.06. Maintenance of Office or Agency.
----------------------------------------------
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies in New York City where Certificates may
be surrendered for registration of transfer or exchange. The Trustee initially
designates its Corporate Trust Office for such purposes. The Trustee will give
prompt written notice to the Certificateholders of any change in such location
of any such office or agency.
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ARTICLE VI
THE DEPOSITOR AND THE SERVICER
SECTION 6.01. Respective Liabilities of the Depositor and the
----------------------------------------------------------------------
Servicer.
---------
The Depositor and the Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them herein.
SECTION 6.02. Merger or Consolidation of the Depositor or the
----------------------------------------------------------------------
Servicer.
---------
The Depositor and the Servicer will each keep in full effect their
respective existence, rights and franchises as a corporation under the laws of
the United States or under the laws of one of the states thereof and will each
obtain and preserve their respective qualifications to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, or any
of the Loans and to perform its respective duties under this Agreement.
Any Person into which the Depositor or the Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Depositor or the Servicer shall be a party, or any person succeeding to the
business of the Depositor or the Servicer, shall be the successor of the
Depositor or the Servicer, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however, that
the successor or surviving Person to the Servicer shall be qualified to sell
mortgage loans to, and to service mortgage loans on behalf of, FNMA or FHLMC and
shall be reasonably acceptable to the Insurer.
SECTION 6.03. Limitation on Liability of the Depositor, the Sellers,
----------------------------------------------------------------------
the Servicer and Others.
------------------------
None of the Depositor, the Sellers, the Servicer or any of the
directors, officers, employees or agents of the Depositor, the Sellers or the
Servicer shall be under any liability to the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Sellers, the Servicer or any such
Person against any breach of representations or warranties made by it herein or
protect the Depositor, the Sellers, the Servicer or any such Person from any
liability which would otherwise be imposed by reasons of willful misfeasance,
bad faith or gross negligence in the performance of duties or by reason of
reckless disregard of obligations and duties hereunder. The Depositor, the
Sellers, the Servicer and any director, officer, employee or agent of the
Depositor, the Sellers or the Servicer may rely in good faith on any document of
any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. The Depositor, the Sellers, the Servicer and any
director, officer, employee or agent of the Depositor, the Sellers or the
Servicer shall be indemnified by the Trust Fund and held harmless against any
loss, liability or expense incurred in connection with any audit, controversy or
judicial proceeding relating to a governmental taxing authority or any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense related to any specific Loan or Loans (except as any such
loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement) and any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. None of the Depositor, the Sellers or the Servicer shall be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its respective duties hereunder and which in its opinion may
involve it in any expense or
65
liability; provided, however, that any of the Depositor, the Sellers or the
Servicer may in its discretion undertake any such action that it may deem
necessary or desirable in respect of this Agreement and the rights and duties of
the parties hereto and interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Sellers and the Servicer shall be entitled to
be reimbursed therefor out of the Certificate Account.
SECTION 6.04. Limitation on Resignation of Servicer.
----------------------------------------------------
The Servicer shall not resign from the obligations and duties hereby
imposed on it except (a) upon appointment of a successor servicer acceptable to
the Insurer and receipt by the Trustee of a letter from each Rating Agency that
such a resignation and appointment will not result in a downgrading of the
rating of any of the Certificates without taking the Policy into account or (b)
upon determination that its duties hereunder are no longer permissible under
applicable law. Any such determination under clause (b) permitting the
resignation of the Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee. No such resignation shall become effective
until the Trustee or a successor servicer reasonably acceptable to the Insurer
shall have assumed the Servicer's responsibilities, duties, liabilities and
obligations hereunder.
SECTION 6.05. Indemnification.
------------------------------
The Servicer agrees to indemnify and hold the Trustee, the Depositor,
the Insurer and each Certificateholder harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments,
and any other costs, fees and expenses that the Trustee, the Depositor, the
Insurer or any Certificateholder may sustain directly resulting from the
negligence or willful misconduct of the Servicer in the performance of its
duties hereunder or in the servicing of the Loans in compliance with the terms
of this Agreement. The Servicer shall not be liable or responsible for any of
the representations, covenants, warranties, responsibilities, duties or
liabilities of any prior servicer. The Servicer shall immediately notify the
Trustee, the Depositor, the Insurer and each Certificateholder if a claim is
made by a third party for which any of such parties could require
indemnification from the Servicer under this Section 6.05, and the Servicer
shall assume (with the consent of the Trustee and the Insurer) the defense of
any such claim and advance all expenses in connection therewith, including
reasonable counsel fees, and promptly advance funds to pay, discharge and
satisfy any non-appealable, final judgment or decree which may be entered
against the Servicer, the Trustee, the Depositor, the Insurer and/or the
Certificateholder in respect of such claim. The indemnity provided for in this
Section 6.05 shall survive the termination of the Agreement.
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
--------------------------------
"Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Servicer to deposit in the
Certificate Account or remit to the Trustee any payment (other than a
payment required to be made under Section 4.01 hereof) required to be
made with respect to any Class of Certificates under the terms of this
Agreement, which failure shall continue unremedied for five days after
the date upon which written notice of such failure shall have been
given (a) to the Servicer by the Trustee or the Depositor or (b) to
the
66
Servicer, the Depositor and the Trustee by the Insurer or the Holders
of Certificates of such Class evidencing not less than 25% of the
Voting Rights allocated to such Class;
(ii) any failure by the Servicer to duly observe or perform
in any material respect any other of the covenants or agreements on
the part of the Servicer contained in this Agreement, which failure
shall continue unremedied for a period of thirty days after the date
on which written notice of such failure shall have been given (a) to
the Servicer by the Trustee or the Depositor or (b) to the Servicer,
the Depositor and the Trustee by the Insurer or the Holders of
Certificates of any Class evidencing not less than 25% of the Voting
Rights allocated to such Class;
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceeding, or for
the winding-up or liquidation of its affairs, shall have been entered
against the Servicer and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 consecutive days;
(iv) the Servicer shall consent to the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Servicer or all or substantially all of the property
of the Servicer;
(v) the Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take
advantage of, or commence a voluntary case under, any applicable
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its
obligations;
(vi) so long as the Servicer is a Seller, any failure by any
Seller to observe or perform in any material respect any of the other
covenants or agreements on the part of any Seller contained in this
Agreement, which failure shall continue unremedied for a period of 60
days after the date on which written notice of such failure shall have
been given to such Seller by the Trustee or the Depositor, or to such
Seller and the Trustee by the Insurer or the Holders of Certificates
of any Class evidencing not less than 25% of the Voting Rights
allocated to such Class; or
(vii) any failure of the Servicer to make any Advance in the
manner and at the time required to be made pursuant to Section 4.01
which continues unremedied for a period of one Business Day after the
date of such failure.
If an Event of Default described in clauses (i) to (vi) of this
Section shall occur, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Trustee shall, at the
direction of the Insurer, or may, or at the direction of the Holders of
Certificates of any Class evidencing not less than 25% of the Voting Rights
allocated to such Class and with the consent of the Insurer, the Trustee shall
by notice in writing to the Servicer (with a copy to each Rating Agency),
terminate all of the rights and obligations of the Servicer under this Agreement
and in and to the Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder. If an Event of Default described in clause (vii)
hereof shall occur, the Trustee shall, at the direction of the Insurer, by
notice in writing to the Servicer and the Depositor, terminate all of the rights
and obligations of the Servicer under this Agreement and in and to the Loans and
the proceeds thereof, other than its rights as a Certificateholder hereunder. On
and after the receipt by the Servicer of such written notice, all authority and
power of the Servicer hereunder, whether with respect to the Loans or otherwise,
shall pass to and be
67
vested in the Trustee. The Trustee shall, subject to Section 3.04 hereof,
thereupon make any Advance described in clause (vii) hereof. The Trustee is
hereby authorized and empowered to execute and deliver, on behalf of the
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Loans and related
documents, or otherwise. Unless expressly provided in such written notice, no
such termination shall affect any obligation of the Servicer to pay amounts owed
pursuant to Article VIII. The Servicer agrees to cooperate with the Trustee in
effecting the termination of the Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer to the Trustee of all
cash amounts which shall at the time be credited to the Certificate Account, or
thereafter be received with respect to the Loans.
Notwithstanding any termination of the activities of the Servicer
hereunder, the Servicer shall be entitled to receive, out of any late collection
of a Scheduled Payment on a Loan which was due prior to the notice terminating
such Servicer's rights and obligations as Servicer hereunder and received after
such notice, that portion thereof to which such Servicer would have been
entitled pursuant to Sections 3.08(a)(i) through (viii), and any other amounts
payable to such Servicer hereunder the entitlement to which arose prior to the
termination of its activities hereunder.
SECTION 7.02. Trustee to Act; Appointment of Successor.
-------------------------------------------------------
On and after the time the Servicer receives a notice of termination
pursuant to Section 7.01 hereof, the Trustee shall, subject to and to the extent
provided in Section 3.04, be the successor to the Servicer in its capacity as
servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms and provisions hereof and
applicable law including the obligation to make Advances pursuant to Section
4.01. As compensation therefor, the Trustee shall be entitled to all funds
relating to the Loans that the Servicer would have been entitled to charge to
the Certificate Account or Distribution Account if the Servicer had continued to
act hereunder. Notwithstanding the foregoing, if the Trustee has become the
successor to the Servicer in accordance with Section 7.01 hereof, the Trustee
may, if it shall be unwilling to so act, or shall, if it is prohibited by
applicable law from making Advances pursuant to Section 4.01 hereof or if it is
otherwise unable to so act, appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution the
appointment of which does not adversely affect the then current rating of the
Certificates by each Rating Agency as the successor to the Servicer hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Servicer hereunder. Any successor to the Servicer shall be reasonably
acceptable to the Insurer and shall be an institution which is a FNMA and FHLMC
approved seller/servicer in good standing, which has a net worth of at least
$10,000,000, and which is willing to service the Loans and executes and delivers
to the Depositor and the Trustee an agreement accepting such delegation and
assignment, which contains an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer (other
than liabilities of the Servicer under Section 6.03 hereof incurred prior to
termination of the Servicer under Section 7.01), with like effect as if
originally named as a party to this Agreement; and provided further that no such
delegation and assignment shall become effective unless each Rating Agency
acknowledges that its rating of the Certificates in effect immediately prior to
such delegation and assignment will not be qualified or reduced as a result of
such delegation and assignment without taking the Policy into account. Pending
appointment of a successor to the Servicer hereunder, the Trustee, unless the
Trustee is prohibited by law from so acting, shall, subject to Section 3.04
hereof, act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Loans as it and such successor
shall agree; provided, however, that no such compensation shall be in excess of
the Servicing Fee permitted the Servicer hereunder. The Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such
68
succession. Neither the Trustee nor any other successor servicer shall be deemed
to be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof or any failure to
perform, or any delay in performing, any duties or responsibilities hereunder,
in either case caused by the failure of the Servicer to deliver or provide, or
any delay in delivering or providing, any cash, information, documents or
records to it.
Any successor to the Servicer as servicer shall give notice to the
Mortgagors of such change of servicer.
SECTION 7.03. Notification to Certificateholders.
-------------------------------------------------
(a) Upon any termination or appointment of a successor to the
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders, the Insurer and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders notice of each such
Event of Default hereunder known to the Trustee, unless such Event of Default
shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
--------------------------------
The Trustee, prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee shall have actual knowledge and after the
curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default of which a Responsible Officer of the
Trustee shall have actual knowledge has occurred and remains uncured or waived,
the Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement; provided, however, that the Trustee shall
not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other instrument.
Unless an Event of Default of which a Responsible Officer of the
Trustee shall have actual knowledge shall have occurred and be continuing, the
duties and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this Agreement
against the Trustee and the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement which it believed in good faith to be genuine and
to have been duly executed by the proper authorities respecting any matters
arising hereunder.
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The Trustee shall not be liable for an error of judgment made in good
faith by a Responsible Officer or other officers of the Trustee, unless it shall
be finally proven that the Trustee was negligent in ascertaining the pertinent
facts.
The Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with this
Agreement or with the direction of the Insurer or Holders of Certificates
evidencing not less than 25% of the Voting Rights of the Certificates relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee under this Agreement.
Subject to the other provisions of this Agreement and without limiting
the generality of this Section 8.01, the Trustee shall have no duty (A) to see
to any recording, filing, or depositing of this Agreement or any agreement
referred to herein or any financing statement or continuation statement
evidencing a security interest, or to see to the maintenance of any such
recording or filing or depositing or to any re-recording, refiling or
redepositing of any thereof, (B) to see to any insurance, (C) to see to the
payment or discharge of any tax, assessment, or other governmental charge or any
lien or encumbrance of any kind owing with respect to, assessed or levied
against any part of the Trust Fund other than from funds available in the
Certificate Account or (D) to confirm or verify the contents of any reports or
certificates of the Servicer delivered to the Trustee pursuant to this Agreement
believed by the Trustee to be genuine and to have been signed or presented by
the proper party or parties; provided, however, that the provisions of this
Section 8.01(iv) shall not apply during any period during which the Trustee is
acting in the capacity of servicer.
Notwithstanding anything contained in this Section 8.01 to the
contrary, no provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct.
SECTION 8.02 Certain Matters Affecting the Trustee.
---------------------------------------------------
Except as otherwise provided in Section 8.01:
(i) the Trustee (acting as Trustee, Tax Matters Person or as
agent of the Tax Matters Person for any REMIC) may request and rely
upon and shall be protected in acting or refraining from acting upon
any resolution, Officers' Certificate, Opinion of Counsel, certificate
of auditors or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties and the Trustee shall have
no responsibility to ascertain or confirm the genuineness of any
signature of any such party or parties;
(ii) the Trustee (acting as Trustee, Tax Matters Person or
as agent of the Tax Matters Person for any REMIC) may consult with
counsel, financial advisers or accountants and the advice of any such
counsel, financial advisers or accountants and any Opinion of Counsel
shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such Opinion of Counsel;
(iii) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
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(iv) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing
not less than 25% of the Voting Rights allocated to each Class of
Certificates; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Agreement, the
Trustee may require reasonable indemnity against such cost, expense or
liability as a condition to taking any such action. The reasonable
expense of every such examination shall be paid by the Servicer or if
paid by the Trustee, shall be repaid by the Servicer upon demand from
the Servicer's own funds;
(v) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, accountants, custodians or attorneys, and the Trustee
shall not be responsible for any misconduct or negligence on the part
of any such agent, accountant, custodian or attorney appointed by the
Trustee with due care;
(vi) the Trustee shall not be required to risk or expend its
own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers hereunder if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not assured to it, and none of the
provisions contained in this Agreement shall in any event require the
Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Servicer under this Agreement except
during such time, if any, as the Trustee shall be the successor to,
and be vested with the rights, duties, powers and privileges of the
Servicer in accordance with the terms of this Agreement;
(vii) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement (other than as issuer
of the investment security);
(viii) the Trustee shall not be required to take notice or
be deemed to have knowledge of any Event of Default (except an event
of nonpayment by the Servicer) until a Responsible Officer of the
Trustee shall have received written notice thereof, and in the absence
of receipt of such notice, the Trustee may conclusively assume that
there is no default or Event of Default;
(ix) the Trustee shall be under no obligation to exercise
any of the trusts, rights or powers vested in it by this Agreement or
to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity satisfactory to the Trustee against
the costs, expenses and liabilities which may be incurred therein or
thereby;
(x) the right of the Trustee to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty, and
the Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of such act;
(xi) the Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust Fund created hereby or
the powers granted hereunder; and
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(xii) anything in this Agreement to the contrary
notwithstanding, in no event shall the Trustee be liable for special,
indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Trustee has
been advised of the likelihood of such loss or damage and regardless
of the form of action.
SECTION 8.03. Trustee Not Liable for Certificates or Loans.
-----------------------------------------------------------
The recitals contained herein and in the Certificates shall be taken
as the statements of the Depositor or the Sellers, as the case may be, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Loan or related document other than with respect to the
Trustee's execution and counter-signature of the Certificates. The Trustee shall
not be accountable for the use or application by the Depositor or the Servicer
of any of the Certificates or of the proceeds of such Certificates or for the
use and application of any funds paid to the Depositor or the Servicer in
respect of the Loans or deposited in or withdrawn from the Certificate Account
by the Depositor or the Servicer. The Trustee shall not be responsible for the
legality or validity of this Agreement or the validity, priority, perfection or
sufficiency of the security for the Certificates issued or intended to be issued
hereunder; provided, however, that the foregoing language shall not apply to the
Trustee's obligations under this Agreement.
SECTION 8.04. Trustee May Own Certificates.
-------------------------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates, and may otherwise deal with the parties hereto
with the same rights as it would have if it were not the Trustee.
SECTION 8.05. Trustee's Fees and Expenses.
------------------------------------------
The Trustee, as compensation for its activities hereunder, shall be
entitled to withdraw from the Distribution Account on each Distribution Date an
amount equal to the Trustee Fee (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) for such
Distribution Date. The Trustee and any director, officer, employee or agent of
the Trustee shall be indemnified by the Servicer and held harmless against any
loss, liability or expense (including reasonable attorney's fees) (i) incurred
in connection with any claim or legal action relating to (a) this Agreement, (b)
the Certificates or (c) in connection with the performance of any of the
Trustee's duties hereunder, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or negligence in the performance of
any of the Trustee's duties hereunder and (ii) resulting from any error in any
tax or information return prepared by the Servicer. Such indemnity shall survive
the termination of this Agreement or the resignation or removal of the Trustee
hereunder. Without limiting the foregoing, the Servicer covenants and agrees,
except as otherwise agreed upon in writing by the Depositor and the Trustee, and
except for any such expense, disbursement or advance as may arise from the
Trustee's negligence, bad faith or willful misconduct, to pay or reimburse the
Trustee, for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Agreement
with respect to the following: (A) the reasonable compensation and the expenses
and disbursements of its counsel not associated with the closing of the issuance
of the Certificates, (B) the reasonable compensation, expenses and disbursements
of any accountant, engineer or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage such persons to perform acts
or services hereunder and (C) printing and engraving expenses in connection with
preparing any Definitive Certificates. Except as otherwise provided herein, the
Trustee shall not be entitled to payment or reimbursement for any routine
ongoing expenses incurred by the Trustee in the ordinary course of its duties as
Trustee, Certificate Registrar, Tax Matters Person or Paying Agent hereunder or
for any other expenses.
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SECTION 8.06. Eligibility Requirements for Trustee.
---------------------------------------------------
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of a state or the United
States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000 subject to
supervision or examination by federal or state authority and with a credit
rating which would not cause either of the Rating Agencies to reduce their
respective then current ratings of the Certificates (or having provided such
security from time to time as is sufficient to avoid such reduction) without
taking the Policy into account. If such corporation or association publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 8.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 8.06, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.07 hereof. The entity serving as Trustee may have
normal banking and trust relationships with the Depositor and its affiliates or
the Servicer and its affiliates; provided, however, that such entity cannot be
an affiliate of the Servicer other than the Trustee in its role as successor to
the Servicer.
SECTION 8.07. Resignation and Removal of Trustee.
-------------------------------------------------
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Insurer and the Servicer and each Rating Agency not less than 60 days before the
date specified in such notice when, subject to Section 8.08, such resignation is
to take effect, and acceptance by a successor trustee in accordance with Section
8.08 meeting the qualifications set forth in Section 8.06. If no successor
trustee meeting such qualifications shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 hereof and shall fail to resign after
written request thereto by the Depositor, or if at any time the Trustee shall
become incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or a tax
is imposed with respect to the Trust Fund by any state in which the Trustee or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different trustee, then the Depositor or the Servicer may
remove the Trustee, and shall, within 30 days after such removal, appoint a
successor trustee by written instrument, in triplicate, one copy of which
instrument shall be delivered to the Trustee, one copy of which shall be
delivered to the Servicer and one copy to the successor trustee.
The Insurer or the Holders of Certificates entitled to at least 51% of
the Voting Rights may at any time remove the Trustee and appoint a successor
trustee by written instrument or instruments, in triplicate, signed by the
Insurer or such Holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered by the successor trustee to the
Servicer, one complete set to the Trustee so removed and one complete set to the
successor so appointed. Notice of any removal of the Trustee shall be given to
each Rating Agency by the successor trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 8.08 hereof.
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SECTION 8.08. Successor Trustee.
--------------------------------
Any successor trustee appointed as provided in Section 8.07 hereof
shall execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Servicer an instrument accepting such appointment hereunder and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor, the Servicer and the predecessor trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
the successor trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06 hereof, is approved in writing
by the Insurer and its appointment shall not adversely affect the then current
rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown in
the Certificate Register. If the Depositor fails to mail such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Depositor.
SECTION 8.09. Merger or Consolidation of Trustee.
-------------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such corporation shall be eligible under
the provisions of Section 8.06 hereof without the execution or filing of any
paper or further act on the part of any of the parties hereto, anything herein
to the contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
------------------------------------------------------------
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly with
the Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider necessary or desirable. If the Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request to do so, or in the case an Event of Default shall have occurred
and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06 and no
notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08.
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Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) to the extent necessary to effectuate the purposes of
this Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee, except for the obligation of
the Trustee under this Agreement to advance funds on behalf of the
Servicer, shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Trustee joining in
such act), except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as
Trustee hereunder or as successor to the Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations
(including the holding of title to the applicable Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Trustee;
(ii) no trustee hereunder shall be held personally liable by
reason of any act or omission of any other trustee hereunder and such
appointment shall not, and shall not be deemed to, constitute any such
separate trustee or co-trustee as agent of the Trustee;
(iii) the Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee; and
(iv) the Servicer, and not the Trustee, shall be liable for
the payment of reasonable compensation, reimbursement and
indemnification to any such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 8.11. Tax Matters.
--------------------------
It is intended that the assets with respect to which any REMIC
election is to be made, as set forth in the Preliminary Statement, shall
constitute, and that the conduct of matters relating to such assets shall be
such as to qualify such assets as, a "real estate mortgage investment conduit"
as defined in and in accordance with the REMIC Provisions. In furtherance of
such intention, the Trustee covenants and agrees that it shall act as agent (and
the Trustee is hereby appointed to act as agent) on behalf of each
75
REMIC created hereunder and that in such capacity it shall: (a) prepare and
file, or cause to be prepared and filed, in a timely manner, U.S. Real Estate
Mortgage Investment Conduit Income Tax Returns (Forms 1066 or any successor form
adopted by the Internal Revenue Service) and prepare and file or cause to be
prepared and filed with the Internal Revenue Service and applicable state or
local tax authorities income tax or information returns for each taxable year
with respect to each REMIC created hereunder, containing such information and at
the times and in the manner as may be required by the Code or state or local tax
laws, regulations, or rules, and furnish or cause to be furnished to
Certificateholders the schedules, statements or information at such times and in
such manner as may be required thereby; (b) within thirty days of the Closing
Date, furnish or cause to be furnished to the Internal Revenue Service, on Forms
8811 or as otherwise may be required by the Code, the name, title, address, and
telephone number of the person that the holders of the Certificates may contact
for tax information relating thereto, together with such additional information
as may be required by such Form, and update such information at the time or
times in the manner required by the Code; (c) make or cause to be made elections
that such assets be treated as a REMIC on the federal tax return for its first
taxable year (and, if necessary, under applicable state law); (d) prepare and
forward, or cause to be prepared and forwarded, to the Certificateholders and to
the Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including without limitation, the
calculation of any original issue discount using the prepayment assumption
described in the Prospectus Supplement; (e) provide information necessary for
the computation of tax imposed on the transfer of a Class R Certificate to a
Person that is not a Permitted Transferee, or an agent (including a broker,
nominee or other middleman) of a non-Permitted Transferee, or a pass-through
entity in which a non-Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax); (f) to the extent that they are under its
control, conduct matters relating to such assets at all times that any
Certificates are outstanding so as to maintain the REMIC status of each REMIC
created hereunder under the REMIC Provisions; (g) not knowingly or intentionally
take any action or omit to take any action that would cause the termination of
the REMIC status of any of the REMICs created hereunder; (h) pay, from the
sources specified in the last paragraph of this Section 8.11, the amount of any
federal or state tax, including prohibited transaction taxes as described below,
imposed on each REMIC created hereunder prior to its termination when and as the
same shall be due and payable (but such obligation shall not prevent the Trustee
or any other appropriate Person from contesting any such tax in appropriate
proceedings and shall not prevent the Trustee from withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings); (i) ensure
that federal, state or local income tax or information returns shall be signed
by the Trustee or such other person as may be required to sign such returns by
the Code or state or local laws, regulations or rules; (j) maintain records
relating to each REMIC created hereunder, including, but not limited to, the
income, expenses, assets and liabilities thereof and the fair market value and
adjusted basis of the assets determined at such intervals as may be required by
the Code, as may be necessary to prepare the foregoing returns, schedules,
statements or information; and (k) as and when necessary and appropriate,
represent each REMIC created hereunder in any administrative or judicial
proceedings relating to an examination or audit by any governmental taxing
authority, request an administrative adjustment as to any taxable year of each
REMIC created hereunder, enter into settlement agreements with any governmental
taxing agency, extend any statute of limitations relating to any tax item of
each REMIC created hereunder, and otherwise act on behalf of each REMIC created
hereunder in relation to any tax matter or controversy involving it.
In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Trustee
within ten (10) days after the Closing Date all information or data that the
Trustee requests in writing and determines to be relevant for tax purposes to
the valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows of
the Certificates and the Loans. Thereafter, the Depositor shall provide to the
Trustee promptly upon written request therefor, any such additional information
or data
76
that the Trustee may, from time to time, reasonably request in order to enable
the Trustee to perform its duties as set forth herein. The Depositor hereby
indemnifies the Trustee for any losses, liabilities, damages, claims or expenses
of the Trustee arising from any errors or miscalculations of the Trustee that
result from any failure of the Depositor to provide, or to cause to be provided,
accurate information or data to the Trustee on a timely basis.
In the event that any tax is imposed on "prohibited transactions" of
any REMIC created hereunder as defined in Section 860F(a)(2) of the Code, on the
"net income from foreclosure property" of any REMIC created hereunder as defined
in Section 860G(c) of the Code, on any contribution to any REMIC created
hereunder after the Startup Day pursuant to Section 860G(d) of the Code, or any
other tax is imposed, if not paid as otherwise provided for herein, such tax
shall be paid by (i) the Trustee, if such tax arises out of or results from a
breach by the Trustee of any of its obligations under this Agreement, (ii) the
Servicer, or if such tax arises out of or results from a breach by the Servicer
or a Seller of any of their obligations under this Agreement, (iii) the Sellers,
if any tax arises out of or results from any Seller's obligation to repurchase a
Loan pursuant to Section 2.02 or 2.03 or (iv) in all other cases, or in the
event that the Trustee, the Servicer or a Seller fails to honor its obligations
under the preceding clause (i),(ii) or (iii), such tax will be paid with amounts
otherwise to be distributed to the Certificateholders, as provided in Section
3.08(b).
SECTION 8.12. Periodic Filings.
-------------------------------
The Depositor shall prepare, execute and file all periodic reports
required under the Securities Exchange Act of 1934. In connection with the
preparation and filing of such periodic reports, the Servicer shall timely
provide to the Depositor all material information available to it which is
required to be included in such reports and not known to it to be in the
possession of the Depositor and such other information as the Depositor
reasonably may request from it and otherwise reasonably shall cooperate with the
Depositor. The Depositor shall have no liability with respect to any failure to
properly prepare or file such periodic reports resulting from or relating to the
Depositor's inability or failure to obtain any information not resulting from
its own gross negligence or willful misconduct.
SECTION 8.13. Appointment of Custodians.
----------------------------------------
The Trustee may, with the consent of the Servicer, appoint one or more
custodians (each, a "Custodian") to hold all or a portion of the Trustee's
Mortgage Files as agent for the Trustee, by entering into a custodial agreement
("Custodial Agreement"). The Trustee agrees to comply with the terms of each
Custodial Agreement and to enforce the terms and provisions thereof against the
Custodian for the benefit of the Certificateholders and the Insurer. The Trustee
shall be liable for the fees of any Custodian appointed hereunder. Each
Custodian shall be a depository institution subject to supervision by federal or
state authority and shall be qualified to do business in the jurisdiction in
which it holds any Trustee's Mortgage File.
SECTION 8.14. Trustee May Enforce Claims Without Possession of
----------------------------------------------------------------------
Certificates.
-------------
All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, any such proceeding instituted by the Trustee shall
be brought in its own name or in its capacity as Trustee. Any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Insurer or the Certificateholders in respect of
which such judgment has been recovered.
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SECTION 8.15. Suits for Enforcement.
------------------------------------
In case an Event of Default or other default by the Servicer hereunder
shall occur and be continuing, the Trustee, in its discretion, may proceed to
protect and enforce its rights and the rights of the Insurer and the
Certificateholders under this Agreement by a suit, action or proceeding in
equity or at law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Agreement or in aid of the execution of
any power granted in this Agreement or for the enforcement of any other legal,
equitable or other remedy, as the Trustee, being advised by counsel, shall deem
most effectual to protect and enforce any of the rights of the Trustee, the
Insurer or the Certificateholders.
ARTICLE IX
TERMINATION
SECTION 9.01. Termination upon Liquidation or Purchase of all Loans.
--------------------------------------------------------------------
Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Servicer and the Trustee created hereby with respect to the Trust
Fund shall terminate upon the earlier of (a) subject to the last sentence of
this Section 9.01, the purchase by the Servicer of all Loans (and REO
Properties) remaining in the Trust Fund at a price equal to the sum of (i) 100%
of the Stated Principal Balance of each Loan plus accrued and unpaid interest
thereon at the applicable Mortgage Rate, and (ii) 100% of the Stated Principal
Balance of each Loan related to any REO Property plus accrued and unpaid
interest thereon at the applicable Mortgage Rate; provided, however, that in no
event shall the price distributed with respect to the Offered Certificates be
less than (1) with respect to the Class AF and Class AV-1 Certificates, 100% of
their then outstanding principal balance, (2) with respect to the Offered
Certificates, any accrued and unpaid interest thereon at the applicable
Pass-Through Rate (including any Class Unpaid Interest Amounts) and (3) with
respect to the Class AF-1 and Class AV-1 Certificates, any accrued and unpaid
Net WAC Cap Carryover as of such Distribution Date, or (b) the later of (i) the
maturity or other liquidation of the last Loan remaining in the Trust Fund (or
any Advance with respect thereto) and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts required to be
distributed to them pursuant to this Agreement. In no event shall the trusts
created hereby continue beyond the earlier of (i) the expiration of 21 years
from the death of the survivor of the descendants of Joseph P. Kennedy, the late
Ambassador of the United States to the Court of St. James, living on the date
hereof or (ii) the Latest Possible Maturity Date. The right to purchase all
Loans and REO Properties pursuant to clause (a) above shall be conditioned upon
the Pool Principal Balance, at the time of any such repurchase, aggregating less
than ten percent (10%) of the Cut-off Date Pool Principal Balance. If the
Servicer elects to exercise its purchase right pursuant to clause (a) above, the
Servicer's right to reimbursement from the Trust Fund for any Advances
previously made on the Loans being purchased shall terminate as of the date the
purchase of the Loans and REO Properties is completed. Any purchase pursuant to
this Section 9.01 that would result in unpaid I&I Payments shall require the
written consent of the Insurer.
SECTION 9.02. Final Distribution on the Certificates.
-----------------------------------------------------
If on any Determination Date, the Servicer determines that there are
no Outstanding Loans and no other funds or assets in the Trust Fund other than
the funds in the Certificate Account, the Servicer shall direct the Trustee
promptly to send a final distribution notice to each Certificateholder. If the
Servicer elects to terminate the Trust Fund pursuant to clause (a) of Section
9.01, at least 20 days prior to the date notice is to be mailed to the affected
Certificateholders, the Servicer shall notify the Depositor,
78
the Insurer and the Trustee of the date the Servicer intends to terminate the
Trust Fund and of the applicable repurchase price of the Loans and REO
Properties.
Notice of any termination of the Trust Fund, specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution and cancellation, shall be given promptly
by the Trustee by letter to Certificateholders mailed not earlier than the 10th
day and not later than the 15th day of the month next preceding the month of
such final distribution. Any such notice shall specify (a) the Distribution Date
upon which final distribution on the Certificates will be made upon presentation
and surrender of Certificates at the office therein designated, (b) the amount
of such final distribution, (c) the location of the office or agency at which
such presentation and surrender must be made, and (d) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distributions
being made only upon presentation and surrender of the Certificates at the
office therein specified. The Servicer will give such notice to each Rating
Agency at the time such notice is given to Certificateholders.
In the event such notice is given, the Servicer shall cause all funds
in the Certificate Account to be remitted to the Trustee for deposit in the
Distribution Account on the Business Day prior to the applicable Distribution
Date in an amount equal to the final distribution in respect of the
Certificates. Upon such final deposit with respect to the Trust Fund and the
receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Servicer the Mortgage Files for the Loans.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to Certificateholders of each Class, in the order set
forth in Section 4.02 hereof, on the final Distribution Date and in proportion
to their respective Percentage Interests, with respect to Certificateholders of
the same Class, an amount equal to (i) as to the Class A Certificates, the Class
Certificate Balance of each Class thereof plus accrued interest thereon, (ii) as
to the Class A-IO Certificates, accrued interest thereon, and (iii) as to the
Class R Certificates, the amount, if any, which remains on deposit in the
Distribution Account (other than the amounts retained to meet claims) after
application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Trustee may take appropriate steps,
or may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain a part of
the Trust Fund. If within one year after the second notice all Certificates
shall not have been surrendered for cancellation, the Class R Certificateholders
shall be entitled to all unclaimed funds and other assets of the Trust Fund
which remain subject hereto.
SECTION 9.03. Additional Termination Requirements.
--------------------------------------------------
(a) In the event the Servicer exercises its purchase option as
provided in Section 9.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, unless the Trustee has been supplied with
an Opinion of Counsel, at the expense of the Servicer, to the effect that the
failure to comply with the requirements of this Section 9.03 will not (i) result
in the imposition of taxes on "prohibited transactions" on any REMIC created
hereunder as defined in section 860F of the Code, or (ii) cause any REMIC
created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
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(1) Within 90 days prior to the final Distribution Date set
forth in the notice given by the Servicer under Section 9.02, the
Servicer shall prepare and the Trustee, at the expense of the Tax
Matters Person, shall adopt a plan of complete liquidation within the
meaning of section 860F(a)(4) of the Code which, as evidenced by an
Opinion of Counsel (which opinion shall not be an expense of the
Trustee or the Tax Matters Person), meets the requirements of a
qualified liquidation; and
(2) Within 90 days after the time of adoption of such a plan
of complete liquidation, the Trustee shall sell all of the assets of
the Trust Fund to the Servicer for cash in accordance with Section
9.01.
(b) The Trustee as agent for each REMIC created hereunder hereby
agrees to adopt and sign such a plan of complete liquidation upon the written
request of the Servicer, and the receipt of the Opinion of Counsel referred to
in Section 9.03(a)(1) and to take such other action in connection therewith as
may be reasonably requested by the Servicer.
(c) By their acceptance of the Certificates, the Holders thereof
hereby authorize the Servicer to prepare and the Trustee to adopt and sign a
plan of complete liquidation.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment.
-------------------------
This Agreement may be amended from time to time by the Depositor, the
Sellers, the Servicer and the Trustee with the consent of the Insurer, but
without the consent of any of the Certificateholders, (a) to cure any ambiguity,
(b) to correct or supplement any provisions herein which may be defective or
inconsistent with any other provisions herein, (c) to make any other revisions
relating to matters or questions arising under this Agreement, provided that any
such revisions shall not be inconsistent with the provisions of this Agreement
or (d) to modify, eliminate or add to any of its provisions to such extent as
shall be necessary or helpful to (i) maintain the qualification of the Trust
Fund as one or more REMICs under the Code or (ii) avoid or minimize the risk of
imposition of any tax on any REMIC; provided that, (x) in the case of clauses
(a) - (c), that amendment will not adversely affect in any material respect the
interests of any securityholders covered by this Agreement as evidenced either
by an Opinion of Counsel to that effect or the delivery to the Trustee of
written notification from each Rating Agency that provides, at the request of
the Depositor, a rating for the Offered Certificates, of the related series to
the effect that that amendment or supplement will not cause that Rating Agency
to lower or withdraw the then current rating assigned to those Certificates
without taking the Policy into account, and (y) in the case of clause (d), the
Trustee has received an Opinon of Counsel to the effect that the amendment is
necessary or helpful to (i) maintain the qualification of the Trust Fund as one
or more REMICs under the Code or (ii) avoid or minimize the risk of imposition
of any tax on any REMIC, as applicable.
This Agreement may also be amended from time to time by the Depositor,
the Sellers, the Servicer and the Trustee with the consent of the Insurer and
the Holders of Percentage Interests of at least 66% of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (a) reduce in any manner the amount of, or
delay the timing of, payments required to be distributed on any
80
Certificate without the consent of the Holder of such Certificate or (b) reduce
the aforesaid percentages of Certificates the Holders of which are required to
consent to any such amendment, without the consent of the Holders of all such
Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel (which opinion shall not be an expense of the
Trustee or the Trust Fund) to the effect that such amendment will not cause the
Trust Fund to fail to qualify as one or more REMICs at any time that any
Certificates are outstanding. The Trustee may, but shall not be obligated to,
enter into any such amendment which affects the Trustee's own rights, duties or
immunities under this Agreement.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders or the Insurer, the Trustee shall
furnish written notification of the substance or a copy of such amendment to
each Certificateholder, the Insurer and each Rating Agency.
It shall not be necessary for the consent of Certificateholders or the
Insurer under this Section to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
SECTION 10.02. Recordation of Agreement; Counterparts.
------------------------------------------------------
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Servicer at its expense, but only upon
direction by the Trustee accompanied by an Opinion of Counsel to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts, taken together, shall
constitute one and the same instrument.
SECTION 10.03. Governing Law.
-----------------------------
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED IN THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND
THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.04. Intention of Parties.
------------------------------------
It is the express intent of the parties hereto that the conveyance of
the Loans by the Sellers to the Depositor pursuant to Article II of this
Agreement be, and be construed as, an absolute sale thereof to the Depositor. It
is, further, not the intention of the parties that such conveyance be deemed a
pledge thereof by the Sellers to the Depositor to secure a borrowing by the
Sellers from the Depositor. However, in the event that, notwithstanding the
intent of the parties, such assets are held to be the
81
property of the Sellers or any one of them, or if this Agreement is held or
deemed to constitute or have created a loan, lending transaction or an extension
of credit by the Depositor to the Sellers or any one of them, then and only then
(i) this Agreement shall be deemed, effective as of March 31, 2002, to be a
security agreement within the meaning of the Uniform Commercial Code of the
State of New York and (ii) the conveyance by the Sellers to the Depositor
provided for in this Agreement shall be deemed, effective as of March 31, 2002,
to be an assignment and a grant by the Sellers to the Depositor, and each of the
Sellers does hereby grant and assign to the Depositor, a security interest in,
and lien upon, all of the assets that constitute the Collateral, whether now
owned or hereafter acquired.
The Sellers, for the benefit of the Depositor, shall, in connection
with the perfection of the security interest described in the preceding
paragraph of this Section 10.04, deliver to the Depositor on the Closing Date
the financing statements described in Schedule IV. The Sellers shall also
arrange for the delivery to the Depositor of any appropriate Uniform Commercial
Code continuation statements as may be necessary or appropriate to continue the
perfection of the security interest of the Depositor in the Collateral, whether
now owned or hereafter acquired. The Sellers, for the benefit of the Depositor,
shall, to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement is held or deemed to constitute or
have created a loan, lending transaction or an extension of credit by the
Depositor to the Sellers or any one of them, then and only then (i) this
Agreement shall be deemed, effective as of March 31, 2002, to be a security
agreement within the meaning of the Uniform Commercial Code of the State of New
York and (ii) the conveyance by the Sellers to the Depositor provided for in
this Agreement shall be deemed, effective as of March 31, 2002, to be an
assignment and a grant by the Sellers to the Depositor, and each of the Sellers
does hereby grant and assign to the Depositor, a security interest in, and lien
upon, all of the assets that constitute the Collateral, whether now owned or
hereafter acquired, such security interest shall be deemed to be a perfected
security interest of first priority under applicable law, and will be maintained
as such throughout the term of this Agreement. The Sellers shall arrange for
filing any appropriate Uniform Commercial Code financing statements,
continuation statements or other appropriate forms, notices or documents in
connection with any security interest granted or assigned to the Depositor.
The Depositor does hereby assign the security interest in and lien on
the Collateral, whether now owned or hereafter acquired, to the Trustee for the
benefit of the Certificateholders and the Insurer. The Depositor shall arrange
for filing of such Uniform Commercial Code financing statements as are necessary
to effect the assignment of the security interest and lien to the Trustee for
the benefit of the Certificateholders and the Insurer.
It is the express intent of the parties hereto that the conveyance of
the Trust Fund by the Depositor to the Trustee pursuant to Article II of this
Agreement be, and be construed as, an absolute sale thereof to the Trustee. It
is, further, not the intention of the parties that such conveyance be deemed a
pledge thereof by the Depositor to the Trustee to secure a borrowing by the
Depositor from the Trustee. However, in the event that, notwithstanding the
intent of the parties, the assets constituting the Trust Fund are held to be the
property of the Depositor, or if this Agreement is held or deemed to constitute
or have created a loan, lending transaction or an extension of credit by the
Trustee to the Depositor, then and only then (i) this Agreement shall be deemed,
effective as of March 31, 2002, to be a security agreement within the meaning of
the Uniform Commercial Code of the State of New York and (ii) the conveyance by
the Depositor to the Trustee provided for in this Agreement shall be deemed,
effective as of March 31, 2002, to be an assignment and a grant by the Depositor
to the Trustee, and the Depositor does hereby grant and assign to the Trustee,
for the benefit of the Certificateholders, a security interest in, and lien
upon, all of the assets that constitute the Collateral, whether now owned or
hereafter acquired.
The Depositor, for the benefit of the Trustee, the Insurer and the
Certificateholders, shall, in connection with the perfection of the security
interest described in the preceding paragraph of this
82
Section 10.04, deliver to the Trustee on the Closing Date the financing
statements described in Schedule V. The Depositor shall also arrange for the
delivery to the Trustee of any appropriate Uniform Commercial Code continuation
statements as may be necessary or appropriate to continue the perfection of the
security interest of the Trustee in the Trust Fund, and all of the proceeds
thereof, whether now owned or hereafter acquired. The Depositor, for the benefit
of the Trustee and the Certificateholders, shall, to the extent consistent with
this Agreement, take such actions as may be necessary to ensure that, if this
Agreement is held or deemed to constitute or have created a loan, lending
transaction or an extension of credit by the Trustee to the Depositor, then and
only then (i) this Agreement shall be deemed, effective as of March 31, 2002, to
be a security agreement within the meaning of the Uniform Commercial Code of the
State of New York and (ii) the conveyance by the Depositor to the Trustee
provided for in this Agreement shall be deemed, effective as of March 31, 2002,
to be an assignment and a grant by the Depositor to the Trustee, and the
Depositor does hereby grant and assign to the Trustee, for the benefit of the
Certificateholders, a security interest in, and lien upon, all of the assets
that constitute the Collateral, whether now owned or hereafter acquired, such
security interest shall be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement. The Servicer shall, within ten (10) days of the Closing Date,
present to the appropriate filing offices in the jurisdictions set forth on
Schedules IV and V all of the financing statements delivered on the Closing Date
by the Sellers to the Depositor, the assignments thereof delivered by the
Depositor to the Trustee on the Closing Date and the financing statements
delivered by the Depositor to the Trustee on the Closing Date. The Servicer
shall arrange for filing any appropriate Uniform Commercial Code continuation
statements or other appropriate forms, notices or documents in connection with
any security interest granted or assigned to the Trustee.
SECTION 10.05. Notices.
-----------------------
(a) The Trustee shall use its best efforts to promptly provide notice
to the Insurer, each Rating Agency and the Underwriter with respect to each of
the following of which it has actual knowledge:
1. any material change or amendment to this Agreement;
2. the occurrence of any Event of Default that has not been
cured;
3. the resignation or termination of the Servicer or the
Trustee and the appointment of any successor;
4. the repurchase or substitution of Loans pursuant to
Section 2.03; and
5. the final payment to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
and the Underwriter copies of the following:
1. each report to Certificateholders described in Section
4.03;
2. each annual statement as to compliance described in
Section 3.15;
3. each annual independent public accountants' servicing
report described in Section 3.16; and
4. any notice of a purchase of a Loan pursuant to Section
2.02, 2.03 or 3.11.
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(b) All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to the following
addresses or such other addresses as may hereafter be furnished in writing to
the Servicer and the Trustee: (a) in the case of the Depositor, Equity One ABS,
Inc., 103 Springer Building, 3411 Silverside Road, Wilmington, Delaware 19810,
Attention: Chief Financial Officer, facsimile number: (302) 478-3667, (b) in the
case of the Servicer, Equity One, Inc., 400 Lippincott Drive, Marlton, New
Jersey 08053, Attention: Chief Financial Officer, facsimile number: (856)
396-2710, (c) in the case of any of the Sellers, to that Seller at 400
Lippincott Drive, Marlton, New Jersey 08053, Attention: Chief Financial Officer,
facsimile number: (856) 396-2710, (d) in the case of the Trustee, JPMorgan Chase
Bank, 450 West 33rd Street, 14th Floor, New York, New York 10001, Attention:
Institutional Trust Services/Structured Finance Services, facsimile number:
(212) 946-8191, (e) in the case of the Insurer, Ambac Assurance Corporation, One
State Street Plaza, New York , New York 10004, Attention: Consumer Asset-Backed
Securities Group, facsimile number: (212) 363-1459, (f) in the case of the
Rating Agencies, the address specified therefor in the definition corresponding
to the name of such Rating Agency and (g) in the case of the Underwriter, First
Union Securities, Inc., One First Union Center, 301 South College Street, TW9,
Charlotte, NC 28288, Attention: Michael Ciuffo, facsimile number: (704)
383-8121. Notices to Certificateholders shall be deemed given when mailed, first
class postage prepaid, to their respective addresses appearing in the
Certificate Register.
SECTION 10.06. Severability of Provisions.
------------------------------------------
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 10.07. Assignment.
--------------------------
Notwithstanding anything to the contrary contained herein, except as
provided in Section 6.02, this Agreement may not be assigned by the Servicer
without the prior written consent of the Trustee, Insurer and Depositor.
SECTION 10.08. Limitation on Rights of Certificateholders.
----------------------------------------------------------
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
party by reason of any action taken by the parties to this Agreement pursuant to
any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with
84
respect to this Agreement, unless such Holder previously shall have given to the
Trustee a written notice of an Event of Default and of the continuance thereof,
as herein provided, and unless the Holders of Certificates evidencing not less
than 25% of the Voting Rights evidenced by the Certificates shall also have made
written request to the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses, and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity shall have
neglected or refused to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of the Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder or to enforce any right under this Agreement, except in
the manner herein provided and for the common benefit of all Certificateholders.
For the protection and enforcement of the provisions of this Section 10.08, each
and every Certificateholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
SECTION 10.09. Inspection and Audit Rights.
-------------------------------------------
The Servicer agrees that, on reasonable prior notice, it will permit
and will cause each Subservicer to permit any representative of the Depositor,
the Insurer or the Trustee during the Servicer's normal business hours, to
examine all the books of account, records, reports and other papers of the
Servicer relating to the Loans, to make copies and extracts therefrom, to cause
such books to be audited by independent certified public accountants selected by
the Depositor or the Trustee and to discuss its affairs, finances and accounts
relating to the Loans with its officers, employees and independent public
accountants (and by this provision the Servicer hereby authorizes said
accountants to discuss with such representative such affairs, finances and
accounts), all at such reasonable times and as often as may be reasonably
requested. Any out-of-pocket expense incident to the exercise by the Depositor
or the Trustee of any right under this Section 10.09 shall be borne by the party
requesting such inspection; all other such expenses shall be borne by the
Servicer or the related Subservicer.
SECTION 10.10. Certificates Nonassessable and Fully Paid.
---------------------------------------------------------
It is the intention of the Depositor that Certificateholders shall not
be personally liable for obligations of the Trust Fund, that the interests in
the Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof by
the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
SECTION 10.11. The Closing.
---------------------------
The closing of the transactions contemplated by this Agreement shall
occur at 10:00 a.m. Philadelphia time on the Closing Date at the Closing Place.
SECTION 10.12. Interpretation.
------------------------------
Unless the context of this Agreement clearly requires otherwise, (a)
references to the plural include the singular, the singular the plural, the part
the whole, (b) references to one gender includes all genders, (c) "or" has the
inclusive meaning frequently identified with the phrase "and/or," (d)
"including" has the inclusive meaning frequently identified with the phrase "but
not limited to" and (e) references to "hereunder," "hereof" or "herein" relate
to this Agreement. The section and other headings contained in this Agreement
are for reference purposes only and shall not control or affect the
85
construction of this Agreement or the interpretation thereof in any respect.
Section, subsection, schedule and exhibit references are to this Agreement
unless otherwise specified.
SECTION 10.13. Rights of the Insurer.
-------------------------------------
(a) The Insurer is an express third-party beneficiary of this
Agreement.
(b) On each Distribution date the Trustee shall make available to the
Insurer a copy of the reports furnished to the Holders of Offered Certificates
and the Depositor on such Distribution Date.
(c) The Trustee shall provide to the Insurer copies of any report,
notice, Opinion of Counsel, Officer's Certificate, request for consent or
request for amendment to any document related hereto promptly upon the Trustee's
production or receipt thereof.
(d) Unless an Insurer Default exists, the Trustee and the Depositor
shall not agree to any amendment to this Agreement without first having obtained
the prior written consent of the Insurer, if such consent is not unreasonably
withheld.
(e) So long as there does not exist a failure by the Insurer to make a
required payment under the Policy, the Insurer shall have the right to exercise
all rights of the Holders of the Offered Certificates under this Agreement
without any consent of such Holders, and such Holders may exercise such rights
only with the prior written consent of the Insurer, except as provided herein.
(f) The Insurer shall not be entitled to exercise any of its rights
hereunder so long as there exists a failure by the Insurer to make a required
payment under the Policy.
SECTION 10.14. No Partnership.
------------------------------
Nothing herein contained shall be deemed or construed to create a
co-partnership or joint venture between the parties hereto and the services of
the Trustee and the Servicer shall be rendered as an independent contractor and
not as agent for the Certificateholders.
SECTION 10.15. Protection of Assets.
------------------------------------
(a) Except for transactions and activities entered into in connection
with the securitization that is the subject of this Agreement, the Trust Fund
created by this Agreement is not authorized and has no power to:
(1) borrow money or issue debt;
(2) merge with another entity, reorganize, liquidate or sell
assets;
(3) engage in any business or activities.
(b) Each party to this agreement agrees that it will not file an
involuntary bankruptcy petition against the Trustee or the Trust Fund or
initiate any other form of insolvency proceeding until after the Certificates
have been paid.
SECTION 10.16. Execution of Yield Maintenance Agreement.
--------------------------------------------------------
The Depositor hereby directs the Trustee to enter into and execute the
Yield Maintenance Agreement on the Closing Date on behalf of the Holders of the
Class AV-1 Certificates and the Insurer.
86
The Sellers, the Depositor, the Servicer, the Insurer and the Holders of the
Class AV-1 Certificates (by their acceptance of such Certificates) acknowledge
that JPMorgan Chase Bank is entering into the Yield Maintenance Agreement solely
in its capacity as Trustee of the Trust Fund and not in its individual capacity.
* * * * * *
87
IN WITNESS WHEREOF, the Depositor, the Trustee, each of the Sellers
and the Servicer have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
Equity One ABS, Inc., as Depositor
By: /s/ James H. Jenkins
-----------------------------------------------------
James H. Jenkins, Senior Vice President and CFO
JPMorgan Chase Bank, as Trustee
By: /s/ Aranka R. Paul
-----------------------------------------------------
Aranka R. Paul, Assistant Vice President
Equity One, Inc. (DE), as a Seller and Servicer
By: /s/ James H. Jenkins
-----------------------------------------------------
James H. Jenkins, Senior Vice President and CFO
Equity One, Incorporated (PA), as a Seller
By: /s/ James H. Jenkins
-----------------------------------------------------
James H. Jenkins, Senior Vice President and CFO
Equity One, Inc. (MN), as a Seller
By: /s/ James H. Jenkins
-----------------------------------------------------
James H. Jenkins, Senior Vice President and CFO
Equity One Consumer Loan Company, Inc. (NH),
as a Seller
By: /s/ James H. Jenkins
-----------------------------------------------------
James H. Jenkins, Senior Vice President and CFO
Popular Financial Services, LLC, as a Seller
By: /s/ James H. Jenkins
-----------------------------------------------------
James H. Jenkins, Senior Vice President and CFO
88
SCHEDULE I
Loan Schedule
SEE ATTACHED
S-I-1
SCHEDULE IIA
Equity One ABS, Inc.
Mortgage Pass-Through Certificates
Series 2002-2
Representations and Warranties of Equity One-Delaware
-----------------------------------------------------
Equity One-Delaware ("Seller") hereby makes the representations and
warranties set forth in this Schedule IIA to the Depositor, the Insurer and the
Trustee, as of the Closing Date or if so specified herein, as of the Cut-off
Date with respect to the Loans being conveyed by Seller. Capitalized terms used
but not otherwise defined in this Schedule IIA shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among Seller, the other
Sellers and the Servicer identified therein, Equity One ABS, Inc., as depositor,
and JPMorgan Chase Bank, as trustee. The term "Agreement" shall be used in this
Schedule to refer to the Pooling and Servicing Agreement.
(1) Seller is duly organized as a Delaware corporation and
is validly existing and in good standing under the laws of the State
of Delaware and is duly authorized and qualified to transact any and
all business contemplated by the Agreement to be conducted by Seller
in any state in which a Mortgaged Property is located or is otherwise
not required under applicable law to effect such qualification and, in
any event, is in compliance with the doing business laws of any such
state, to the extent necessary to ensure its ability to enforce each
Loan and to perform any of its other obligations under the Agreement
in accordance with the terms thereof.
(2) Seller has the full corporate power and authority to
sell each Loan, and to execute, deliver and perform, and to enter into
and consummate the transactions contemplated by the Agreement and has
duly authorized by all necessary corporate action on the part of
Seller the execution, delivery and performance of the Agreement; and
the Agreement, assuming the due authorization, execution and delivery
thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of Seller, enforceable against Seller in accordance
with its terms, except that (a) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(3) The execution and delivery of the Agreement by Seller,
the sale of the Loans by Seller under the Agreement, the consummation
of any other of the transactions contemplated by the Agreement, and
the fulfillment of or compliance with the terms thereof are in the
ordinary course of business of Seller and will not (a) result in a
material breach of any term or provision of the charter or by-laws of
Seller or (b) materially conflict with, result in a material breach,
violation or acceleration of, or result in a material default under,
the terms of any other material agreement or instrument to which
Seller is a party or by which it may be bound or (c) constitute a
material violation of any statute, order or regulation applicable to
Seller of any court, regulatory body, administrative agency or
governmental body having jurisdiction over Seller; and Seller is not
in breach or violation of any material indenture or other material
agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it which breach or
violation may materially impair Seller's ability to perform or meet
any of its obligations under the Agreement.
S-IIA-1
(4) No litigation is pending or, to the best of Seller's
knowledge, threatened, against Seller that would materially and
adversely affect the execution, delivery or enforceability of the
Agreement or the ability of Seller to sell the Loans or to perform any
of its other obligations under the Agreement in accordance with the
terms thereof.
(5) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by Seller of, or compliance by Seller with,
the Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is
required, Seller has obtained the same.
(6) Seller intends to treat the conveyance of the Loans to
the Depositor as a sale under applicable law, however, for financial
reporting purposes Seller intends to treat this transaction as the
incurrence of debt by Seller.
(7) Seller is not insolvent nor is Seller aware of any
pending insolvency, and Seller will not become insolvent as a result
of its sale of the Loans under the Agreement, and Seller's sale of the
Loans to the Depositor under the Agreement will not be made with any
intent to hinder, delay or defraud any of its creditors.
S-IIA-2
SCHEDULE IIB
Equity One ABS, Inc.
Mortgage Pass-Through Certificates
Series 2002-2
Representations and Warranties of Equity One-Minnesota
------------------------------------------------------
Equity One-Minnesota ("Seller") hereby makes the representations and
warranties set forth in this Schedule IIB to the Depositor, the Insurer and the
Trustee, as of the Closing Date or if so specified herein, as of the Cut-off
Date with respect to the Loans being conveyed by Seller. Capitalized terms used
but not otherwise defined in this Schedule IIB shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among Seller, the other
Sellers and the Servicer identified therein, Equity One ABS, Inc., as depositor,
and JPMorgan Chase Bank, as trustee. The term "Agreement" shall be used in this
Schedule to refer to the Pooling and Servicing Agreement.
(1) Seller is duly organized as a Minnesota corporation and
is validly existing and in good standing under the laws of the State
of Minnesota and is duly authorized and qualified to transact any and
all business contemplated by the Agreement to be conducted by Seller
in any state in which a Mortgaged Property is located or is otherwise
not required under applicable law to effect such qualification and, in
any event, is in compliance with the doing business laws of any such
state, to the extent necessary to ensure its ability to enforce each
Loan and to perform any of its other obligations under the Agreement
in accordance with the terms thereof.
(2) Seller has the full corporate power and authority to
sell each Loan, and to execute, deliver and perform, and to enter into
and consummate the transactions contemplated by the Agreement and has
duly authorized by all necessary corporate action on the part of
Seller the execution, delivery and performance of the Agreement; and
the Agreement, assuming the due authorization, execution and delivery
thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of Seller, enforceable against Seller in accordance
with its terms, except that (a) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(3) The execution and delivery of the Agreement by Seller,
the sale of the Loans by Seller under the Agreement, the consummation
of any other of the transactions contemplated by the Agreement, and
the fulfillment of or compliance with the terms thereof are in the
ordinary course of business of Seller and will not (a) result in a
material breach of any term or provision of the charter or by-laws of
Seller or (b) materially conflict with, result in a material breach,
violation or acceleration of, or result in a material default under,
the terms of any other material agreement or instrument to which
Seller is a party or by which it may be bound or (c) constitute a
material violation of any statute, order or regulation applicable to
Seller of any court, regulatory body, administrative agency or
governmental body having jurisdiction over Seller; and Seller is not
in breach or violation of any material indenture or other material
agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it which breach or
violation
S-IIB-1
may materially impair Seller's ability to perform or meet any of its
obligations under the Agreement.
(4) No litigation is pending or, to the best of Seller's
knowledge, threatened, against Seller that would materially and
adversely affect the execution, delivery or enforceability of the
Agreement or the ability of Seller to sell the Loans or to perform any
of its other obligations under the Agreement in accordance with the
terms thereof.
(5) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by Seller of, or compliance by Seller with,
the Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is
required, Seller has obtained the same.
(6) Seller intends to treat the conveyance of the Loans to
the Depositor as a sale under applicable law, however, for financial
reporting purposes Seller intends to treat this transaction as the
incurrence of debt by Seller.
(7) Seller is not insolvent nor is Seller aware of any
pending insolvency, and Seller will not become insolvent as a result
of its sale of the Loans under the Agreement, and Seller's sale of the
Loans to the Depositor under the Agreement will not be made with any
intent to hinder, delay or defraud any of its creditors.
S-IIB-2
SCHEDULE IIC
Equity One ABS, Inc.
Mortgage Pass-Through Certificates
Series 2002-2
Representations and Warranties of Equity One-New Hampshire
----------------------------------------------------------
Equity One-New Hampshire ("Seller") hereby makes the representations
and warranties set forth in this Schedule IIC to the Depositor, the Insurer and
the Trustee, as of the Closing Date or if so specified herein, as of the Cut-off
Date with respect to the Loans being conveyed by Seller. Capitalized terms used
but not otherwise defined in this Schedule IIC shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among Seller, the other
Sellers and the Servicer identified therein, Equity One ABS, Inc., as depositor,
and JPMorgan Chase Bank, as trustee. The term "Agreement" shall be used in this
Schedule to refer to the Pooling and Servicing Agreement.
(1) Seller is duly organized as a New Hampshire corporation
and is validly existing and in good standing under the laws of the
State of New Hampshire and is duly authorized and qualified to
transact any and all business contemplated by the Agreement to be
conducted by Seller in any state in which a Mortgaged Property is
located or is otherwise not required under applicable law to effect
such qualification and, in any event, is in compliance with the doing
business laws of any such state, to the extent necessary to ensure its
ability to enforce each Loan and to perform any of its other
obligations under the Agreement in accordance with the terms thereof.
(2) Seller has the full corporate power and authority to
sell each Loan, and to execute, deliver and perform, and to enter into
and consummate the transactions contemplated by the Agreement and has
duly authorized by all necessary corporate action on the part of
Seller the execution, delivery and performance of the Agreement; and
the Agreement, assuming the due authorization, execution and delivery
thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of Seller, enforceable against Seller in accordance
with its terms, except that (a) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(3) The execution and delivery of the Agreement by Seller,
the sale of the Loans by Seller under the Agreement, the consummation
of any other of the transactions contemplated by the Agreement, and
the fulfillment of or compliance with the terms thereof are in the
ordinary course of business of Seller and will not (a) result in a
material breach of any term or provision of the charter or by-laws of
Seller or (b) materially conflict with, result in a material breach,
violation or acceleration of, or result in a material default under,
the terms of any other material agreement or instrument to which
Seller is a party or by which it may be bound or (c) constitute a
material violation of any statute, order or regulation applicable to
Seller of any court, regulatory body, administrative agency or
governmental body having jurisdiction over Seller; and Seller is not
in breach or violation of any material indenture or other material
agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it which breach or
violation
S-IIC-1
may materially impair Seller's ability to perform or meet any of its
obligations under the Agreement.
(4) No litigation is pending or, to the best of Seller's
knowledge, threatened, against Seller that would materially and
adversely affect the execution, delivery or enforceability of the
Agreement or the ability of Seller to sell the Loans or to perform any
of its other obligations under the Agreement in accordance with the
terms thereof.
(5) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by Seller of, or compliance by Seller with,
the Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is
required, Seller has obtained the same.
(6) Seller intends to treat the conveyance of the Loans to
the Depositor as a sale under applicable law, however, for financial
reporting purposes Seller intends to treat this transaction as the
incurrence of debt by Seller.
(7) Seller is not insolvent nor is Seller aware of any
pending insolvency, and Seller will not become insolvent as a result
of its sale of the Loans under the Agreement, and Seller's sale of the
Loans to the Depositor under the Agreement will not be made with any
intent to hinder, delay or defraud any of its creditors.
S-IIC-2
SCHEDULE IID
Equity One ABS, Inc.
Mortgage Pass-Through Certificates
Series 2002-2
Representations and Warranties of Equity One-Pennsylvania
---------------------------------------------------------
Equity One-Pennsylvania ("Seller") hereby makes the representations
and warranties set forth in this Schedule IID to the Depositor, the Insurer and
the Trustee, as of the Closing Date or if so specified herein, as of the Cut-off
Date with respect to the Loans being conveyed by Seller. Capitalized terms used
but not otherwise defined in this Schedule IID shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among Seller, the other
Sellers and the Servicer identified therein, Equity One ABS, Inc., as depositor,
and JPMorgan Chase Bank, as trustee. The term "Agreement" shall be used in this
Schedule to refer to the Pooling and Servicing Agreement.
(1) Seller is duly organized as a Pennsylvania corporation
and is validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania and is duly authorized and qualified to
transact any and all business contemplated by the Agreement to be
conducted by Seller in any state in which a Mortgaged Property is
located or is otherwise not required under applicable law to effect
such qualification and, in any event, is in compliance with the doing
business laws of any such state, to the extent necessary to ensure its
ability to enforce each Loan and to perform any of its other
obligations under the Agreement in accordance with the terms thereof.
(2) Seller has the full corporate power and authority to
sell each Loan, and to execute, deliver and perform, and to enter into
and consummate the transactions contemplated by the Agreement and has
duly authorized by all necessary corporate action on the part of
Seller the execution, delivery and performance of the Agreement; and
the Agreement, assuming the due authorization, execution and delivery
thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of Seller, enforceable against Seller in accordance
with its terms, except that (a) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(3) The execution and delivery of the Agreement by Seller,
the sale of the Loans by Seller under the Agreement, the consummation
of any other of the transactions contemplated by the Agreement, and
the fulfillment of or compliance with the terms thereof are in the
ordinary course of business of Seller and will not (a) result in a
material breach of any term or provision of the charter or by-laws of
Seller or (b) materially conflict with, result in a material breach,
violation or acceleration of, or result in a material default under,
the terms of any other material agreement or instrument to which
Seller is a party or by which it may be bound or (c) constitute a
material violation of any statute, order or regulation applicable to
Seller of any court, regulatory body, administrative agency or
governmental body having jurisdiction over Seller; and Seller is not
in breach or violation of any material indenture or other material
agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it which breach or
violation
S-IID-1
may materially impair Seller's ability to perform or meet any of its
obligations under the Agreement.
(4) No litigation is pending or, to the best of Seller's
knowledge, threatened, against Seller that would materially and
adversely affect the execution, delivery or enforceability of the
Agreement or the ability of Seller to sell the Loans or to perform any
of its other obligations under the Agreement in accordance with the
terms thereof.
(5) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by Seller of, or compliance by Seller with,
the Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is
required, Seller has obtained the same.
(6) Seller intends to treat the conveyance of the Loans to
the Depositor as a sale under applicable law, however, for financial
reporting purposes Seller intends to treat this transaction as the
incurrence of debt by Seller.
(7) Seller is not insolvent nor is Seller aware of any
pending insolvency, and Seller will not become insolvent as a result
of its sale of the Loans under the Agreement, and Seller's sale of the
Loans to the Depositor under the Agreement will not be made with any
intent to hinder, delay or defraud any of its creditors.
S-IID-2
SCHEDULE IIE
Equity One ABS, Inc.
Mortgage Pass-Through Certificates
Series 2002-2
Representations and Warranties of Popular Financial
---------------------------------------------------
Popular Financial ("Seller") hereby makes the representations and
warranties set forth in this Schedule IIE to the Depositor, the Insurer and the
Trustee, as of the Closing Date or if so specified herein, as of the Cut-off
Date with respect to the Loans being conveyed by Seller. Capitalized terms used
but not otherwise defined in this Schedule IIE shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among Seller, the other
Sellers and the Servicer identified therein, Equity One ABS, Inc., as depositor,
and JPMorgan Chase Bank, as trustee. The term "Agreement" shall be used in this
Schedule to refer to the Pooling and Servicing Agreement.
(1) Seller is duly formed as a Delaware limited liability
company and is validly existing and in good standing under the laws of
the State of Delaware and is duly authorized and qualified to transact
any and all business contemplated by the Agreement to be conducted by
Seller in any state in which a Mortgaged Property is located or is
otherwise not required under applicable law to effect such
qualification and, in any event, is in compliance with the doing
business laws of any such state, to the extent necessary to ensure its
ability to enforce each Loan and to perform any of its other
obligations under the Agreement in accordance with the terms thereof.
(2) Seller has the full power and authority to sell each
Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by the Agreement and has duly
authorized by all necessary corporate action on the part of Seller the
execution, delivery and performance of the Agreement; and the
Agreement, assuming the due authorization, execution and delivery
thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of Seller, enforceable against Seller in accordance
with its terms, except that (a) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(3) The execution and delivery of the Agreement by Seller,
the sale of the Loans by Seller under the Agreement, the consummation
of any other of the transactions contemplated by the Agreement, and
the fulfillment of or compliance with the terms thereof are in the
ordinary course of business of Seller and will not (a) result in a
material breach of any term or provision of the charter or by-laws of
Seller or (b) materially conflict with, result in a material breach,
violation or acceleration of, or result in a material default under,
the terms of any other material agreement or instrument to which
Seller is a party or by which it may be bound or (c) constitute a
material violation of any statute, order or regulation applicable to
Seller of any court, regulatory body, administrative agency or
governmental body having jurisdiction over Seller; and Seller is not
in breach or violation of any material indenture or other material
agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it which breach or
violation
S-IIE-1
may materially impair Seller's ability to perform or meet any of its
obligations under the Agreement.
(4) No litigation is pending or, to the best of Seller's
knowledge, threatened, against Seller that would materially and
adversely affect the execution, delivery or enforceability of the
Agreement or the ability of Seller to sell the Loans or to perform any
of its other obligations under the Agreement in accordance with the
terms thereof.
(5) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by Seller of, or compliance by Seller with,
the Agreement or the consummation of the transactions contemplated
thereby, or if any such consent, approval, authorization or order is
required, Seller has obtained the same.
(6) Seller intends to treat the conveyance of the Loans to
the Depositor as a sale under applicable law, however, for financial
reporting purposes Seller intends to treat this transaction as the
incurrence of debt by Seller.
(7) Seller is not insolvent nor is Seller aware of any
pending insolvency, and Seller will not become insolvent as a result
of its sale of the Loans under the Agreement, and Seller's sale of the
Loans to the Depositor under the Agreement will not be made with any
intent to hinder, delay or defraud any of its creditors.
S-IIE-2
SCHEDULE IIX
Equity One ABS, Inc.
Mortgage Pass-Through Certificates
Series 2002-2
Representations and Warranties of the Servicer
----------------------------------------------
Equity-One Delaware, in its capacity as Servicer, hereby makes the
representations and warranties set forth in this Schedule IIX to the Depositor,
the Insurer and the Trustee, as of the Closing Date or if so specified herein,
as of the Cut-off Date with respect to the Loans being conveyed by the
Seller(s). Capitalized terms used but not otherwise defined in this Schedule IIX
shall have the meanings ascribed thereto in the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement") relating to the above-referenced Series,
among Seller, the other Sellers and the Servicer identified therein, Equity One
ABS, Inc., as depositor, and JPMorgan Chase Bank, as trustee. The term
"Agreement" shall be used in this Schedule to refer to the Pooling and Servicing
Agreement.
(1) Servicer is duly organized as a Delaware corporation and
is validly existing and in good standing under the laws of the State
of Delaware and is duly authorized and qualified to transact any and
all business contemplated by the Agreement to be conducted by Servicer
in any state in which a Mortgaged Property is located or is otherwise
not required under applicable law to effect such qualification and, in
any event, is in compliance with the doing business laws of any such
state, to the extent necessary to ensure its ability to service the
Loans in accordance with the terms of the Agreement and to perform any
of its other obligations under the Agreement in accordance with the
terms thereof.
(2) Servicer has the full corporate power and authority to
service each Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by the Agreement and
has duly authorized by all necessary corporate action on the part of
Servicer the execution, delivery and performance of the Agreement; and
the Agreement, assuming the due authorization, execution and delivery
thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of Servicer, enforceable against Servicer in
accordance with its terms, except that (a) the enforceability thereof
may be limited by bankruptcy, insolvency, moratorium, receivership and
other similar laws relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(3) The execution and delivery of the Agreement by Servicer,
the servicing of the Loans by Servicer under the Agreement, the
consummation of any other of the transactions contemplated by the
Agreement, and the fulfillment of or compliance with the terms thereof
are in the ordinary course of business of Servicer and will not (a)
result in a material breach of any term or provision of the charter or
by-laws of Servicer or (b) materially conflict with, result in a
material breach, violation or acceleration of, or result in a material
default under, the terms of any other material agreement or instrument
to which Servicer is a party or by which it may be bound or (c)
constitute a material violation of any statute, order or regulation
applicable to Servicer of any court, regulatory body, administrative
agency or governmental body having jurisdiction over Servicer; and
Servicer is not in breach or violation of any material indenture or
other material agreement or instrument, or in violation of any
statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it
which breach or
S-IIX-1
violation may materially impair Servicer's ability to perform or meet
any of its obligations under the Agreement.
(4) No litigation is pending or, to the best of Servicer's
knowledge, threatened, against Servicer that would materially and
adversely affect the execution, delivery or enforceability of the
Agreement or the ability of Servicer to service the Loans or to
perform any of its other obligations under the Agreement in accordance
with the terms thereof.
(5) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by Servicer of, or compliance by Servicer
with, the Agreement or the consummation of the transactions
contemplated thereby, or if any such consent, approval, authorization
or order is required, Servicer has obtained the same.
S-IIX-2
SCHEDULE IIIA
Equity One ABS, Inc.
Mortgage Pass-Through Certificates
Series 2002-2
Loan Representations and Warranties of Equity One-Delaware
----------------------------------------------------------
Equity One-Delaware ("Seller") hereby makes the representations and
warranties set forth in this Schedule IIIA to the Depositor, the Insurer and the
Trustee, as of the Closing Date or if so specified herein, as of the Cut-off
Date with respect to the Loans being conveyed by Seller and the Mortgages,
Mortgage Notes and Mortgaged Properties related thereto. Capitalized terms used
but not otherwise defined in this Schedule IIIA shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among Seller, the other
Sellers and the Servicer identified therein, Equity One ABS, Inc., as depositor,
and JPMorgan Chase Bank, as trustee. The term "Agreement" shall be used in this
Schedule to refer to the Pooling and Servicing Agreement.
(1) The information set forth on Schedule I to the Agreement
with respect to the Loans is true and correct in all material respects
as of the Closing Date.
(2) As of the Cut-off Date, (i) no Loan was contractually
past due for 60 or more days and (ii) not more than 2.23% (by
principal balance) of the Group I Loans and 4.54% (by principal
balance) of the Group II Loans set forth on Schedule I to the
Agreement were between 30 and 59 days contractually past due (assuming
30 day months).
(3) No Loan had a Loan-to-Value Ratio at origination in
excess of 100.00%. For purposes of determining the date of origination
on which each Loan's Loan-to-Value Ratio is measured, no Loan has been
significantly modified within the meaning of Treasury Regulation
1.860G-2(b) as of the Closing Date.
(4) Each Mortgage is a valid and enforceable first or second
lien on the referenced Mortgaged Property subject only to (a) the lien
of non delinquent current real property taxes and assessments, (b)
covenants, conditions and restrictions, rights of way, easements and
other matters of public record as of the date of recording of such
Mortgage, such exceptions appearing of record being acceptable to
mortgage lending institutions generally or specifically reflected in
the appraisal made in connection with the origination of the related
Loan and (c) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by such Mortgage.
(5) Immediately prior to the assignment of the Loans to the
Depositor, the Seller had good title to, and was the sole owner of,
each such Loan free and clear of any pledge, lien (except in the case
of a Second Lien Loan, which shall be subject to prior liens approved
by Seller), encumbrance or security interest and had full right and
authority, subject to no interest or participation of, or agreement
with, any other party, to sell and assign the same pursuant to the
Agreement.
(6) To the best of Seller's knowledge, there is no
delinquent tax or assessment lien against any Mortgaged Property.
S-IIIA-1
(7) There is no valid right of rescission, offset, defense
or counterclaim to any Mortgage Note or Mortgage, including the
obligation of the Mortgagor to pay the unpaid principal of or interest
on such Mortgage Note.
(8) To the best of Seller's knowledge, there are no
mechanics' liens or claims for work, labor or material affecting any
Mortgaged Property which are or may be a lien prior to, or equal with,
the lien of such Mortgage, except those which are insured against by
the title insurance policy referred to in item (12) below.
(9) To the best of the Seller's knowledge, each Mortgaged
Property is free of material damage and in good repair.
(10) Each Loan at origination complied in all material
respects with applicable state and federal laws, including, without
limitation, usury, equal credit opportunity, real estate settlement
procedures, truth-in-lending and disclosure laws, and consummation of
the transactions contemplated hereby will not involve the violation of
any such laws.
(11) As of the Closing Date, neither the Seller nor any
prior holder of any Mortgage has modified the Mortgage in any material
respect (except that a Loan may have been modified by a written
instrument which has been recorded or submitted for recordation, if
necessary, to protect the interests of the Certificateholders and the
original or a copy of which has been or shall be delivered to the
Trustee); satisfied, canceled or subordinated such Mortgage in whole
or in part; released the related Mortgaged Property in whole or in
part from the lien of such Mortgage; or executed any instrument of
release, cancellation, modification or satisfaction with respect
thereto.
(12) For each Loan, a lender's policy of title insurance
together with a condominium endorsement and extended coverage
endorsement, if applicable, in an amount at least equal to the Cut-off
Date Stated Principal Balance of each such Loan or a commitment
(binder) to issue the same was effective on the date of the
origination of each Loan, each such policy is valid and remains in
full force and effect, and each such policy was issued by a title
insurer qualified to do business in the jurisdiction where the related
Mortgaged Property is located, which policy insures the Seller and
successor owners of indebtedness secured by the related insured
Mortgage, as to the applicable priority lien of the Mortgage subject
to the exceptions set forth in paragraph (4) above; to the best of the
Seller's knowledge, no claims have been made under such mortgage title
insurance policy and no prior holder of the related Mortgage,
including the Seller, has done, by act or omission, anything which
would impair the coverage of such mortgage title insurance policy.
(13) To the best of the Seller's knowledge, all of the
improvements which were included for the purpose of determining the
appraised value of each Mortgaged Property lie wholly within the
boundaries and building restriction lines of such property, and no
improvements on adjoining properties encroach upon such Mortgaged
Property.
(14) To the best of the Seller's knowledge, no improvement
located on or being part of any Mortgaged Property is in violation of
any applicable zoning law or regulation. To the best of the Seller's
knowledge, all inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of such Mortgaged
Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the
appropriate
S-IIIA-2
authorities, unless the lack thereof would not have a material adverse
effect on the value of such Mortgaged Property, and such Mortgaged
Property is lawfully occupied under applicable law.
(15) Each Mortgage Note and the related Mortgage are
genuine, and each is the legal, valid and binding obligation of the
maker thereof, enforceable in accordance with its terms and under
applicable law. To the best of the Seller's knowledge, all parties to
such Mortgage Note and such Mortgage had legal capacity to execute
such Mortgage Note and such Mortgage and each such Mortgage Note and
Mortgage have been duly and properly executed by such parties.
(16) The proceeds of each Loan (other than certain amounts
escrowed for home improvements) have been fully disbursed and there is
no requirement for future advances thereunder. All costs, fees and
expenses incurred in making, or closing or recording such Loans were
paid.
(17) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the related Mortgaged Property of
the benefits of the security, including, (a) in the case of a Mortgage
designated as a deed of trust, by trustee's sale and (b) otherwise by
judicial foreclosure.
(18) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is
named in such Mortgage, and no fees or expenses are or will become
payable by the Certificateholders to the trustee under the deed of
trust, except in connection with a trustee's sale after default by the
Mortgagor.
(19) Each Mortgage Note and each Mortgage is in
substantially one of the forms acceptable to FNMA or FHLMC, with such
riders as have been acceptable to FNMA or FHLMC, as the case may be.
(20) The origination, underwriting and collection practices
used by the Seller with respect to each Loan have been in all respects
legal, prudent and customary in the mortgage lending and servicing
business.
(21) There is no pledged account or other security other
than any Escrow Account and real estate securing the Mortgagor's
obligations.
(22) No Loan has a shared appreciation feature, or other
contingent interest feature.
(23) Each Loan contains a customary "due on sale" clause.
(24) To the best of Seller's knowledge: at the Cut-off Date,
the improvements on each Mortgaged Property were covered by a valid
and existing hazard insurance policy with a generally acceptable
carrier that provides for fire and extended coverage and coverage for
such other hazards as are customary in the area where such Mortgaged
Property is located in an amount at least equal to the lesser of (a)
the maximum insurable value of the improvements on such Mortgaged
Property or (b) (i) in the case of a Loan secured by a Mortgage
creating a first lien on such Mortgaged Property, the original
principal balance of such Loan, or (ii) in the case of a Loan which is
subject to a prior loan or prior loans, the combined principal
balances of such Loan and the prior loan(s). If such Mortgaged
Property is a condominium unit,
S-IIIA-3
it is included under the coverage afforded by a blanket policy for the
condominium unit. For all Mortgages creating a first lien on the
related Mortgaged Property, all such individual insurance policies and
all flood policies referred to in item (25) below contain a standard
mortgagee clause naming the Seller or the original mortgagee, and its
successors in interest, as mortgagee, and the Seller has received no
notice that any premiums due and payable thereon have not been paid;
the Mortgage obligates the Mortgagor thereunder to maintain all such
insurance including flood insurance at the Mortgagor's cost and
expense, and upon the Mortgagor's failure to do so, authorizes the
holder of the Mortgage to obtain and maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from
the Mortgagor.
(25) If a Mortgaged Property is in an area identified in the
Federal Register by the Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy in a form meeting the
requirements of the current guidelines of the Flood Insurance
Administration was required at closing with respect to such Mortgaged
Property with a generally acceptable carrier in an amount representing
coverage not less than the least of (a) the original outstanding
principal balance of the related Loan, (b) the minimum amount required
to compensate for damage or loss on a maximum insurable value basis or
(c) the maximum amount of insurance that is available under the Flood
Disaster Protection Act of 1973, as amended.
(26) To the best of the Seller's knowledge, there is no
proceeding occurring, pending or threatened for the total or partial
condemnation of any Mortgaged Property.
(27) There is no material monetary default existing under
any Mortgage or the related Mortgage Note and, to the best of the
Seller's knowledge, there is no material event which, with the passage
of time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of acceleration
under such Mortgage or related Mortgage Note; and the Seller has not
waived any default, breach, violation or event of acceleration.
(28) Each Mortgaged Property is improved by a mixed use
building or a one- to four-family, or other multi-family, residential
dwelling including condominium units, which, to the best of Seller's
knowledge, does not include cooperatives or mobile homes and does not
constitute other than real property under state law.
(29) Each Loan is being serviced by the Servicer.
(30) Any future advances made prior to the Cut-off Date have
been consolidated with the outstanding principal amount secured by the
related Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term reflected on
the related loan schedule. The consolidated principal amount does not
exceed the original principal amount of such Loan. No Mortgage Note
permits or obligates the Servicer to make future advances to the
Mortgagor at the option of the Mortgagor.
(31) To the best of Seller's knowledge: all taxes,
governmental assessments, insurance premiums, water, sewer and
municipal charges, leasehold payments or ground rents which previously
became due and owing have been paid, except for items which have been
assessed, but are not yet due and payable. Except for (a) payments in
the nature of escrow payments, and (b) interest accruing from the date
of any Mortgage Note or date of disbursement of the related Mortgage
proceeds, whichever is later, to the day which precedes by one month
the Due Date of the first installment of principal and interest,
including without limitation, taxes and insurance payments, the
Servicer has not advanced funds, or induced, solicited or knowingly
S-IIIA-4
received any advance of funds by a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required by the
related Mortgage.
(32) Each Loan was underwritten in all material respects in
accordance with the Seller's underwriting guidelines as set forth in
the Prospectus Supplement.
(33) An appraisal of each Mortgaged Property was obtained
from a qualified appraiser, duly appointed by the originator, who had
no interest, direct or indirect, in the Mortgaged Property or in any
loan made on the security thereof, and whose compensation is not
affected by the approval or disapproval of such Loan; such appraisal
is in a form acceptable to FNMA and FHLMC.
(34) No Loan is a graduated payment mortgage loan or a
growing equity mortgage loan, and no Loan is subject to a buydown or
similar arrangement.
(35) The Loans were selected from among the outstanding
residential mortgage or mixed use loans in Seller's portfolio at the
Closing Date as to which the representations and warranties made as to
such Loans set forth in this Schedule IIIA can be made. Such selection
was not made in a manner that would adversely affect the interests of
Certificateholders or the Insurer.
(36) Each Loan has a Due Date in the month of the first
Distribution Date.
(37) Approximately (a) 53.68% of the Group I Loans and (b)
none of the Group II Loans (by principal balance) are Balloon Loans.
(38) No Loan is subject to negative amortization or deferred
interest payments.
(39) No Mortgagor has requested relief under the Relief Act.
(40) None of the Loans are retail installment contracts for
goods or services or are home improvement loans for goods or services,
which would be either "consumer credit contracts" or "purchase money
loans" as such terms are defined in 16 C.F.R. ss.433.1.
(41) No Mortgagor has or will have a claim or defense
against Seller or any assignor or assignee of Seller under any express
or implied warranty with respect to goods or services provided in
connection with any Loan.
(42) Each Loan is a "qualified mortgage" for purposes of
Section 860G(a)(3) of the Code.
(43) The Loans, individually and in the aggregate, conform
in all material respects to the descriptions thereof in the Prospectus
Supplement.
(44) There exist no deficiencies with respect to escrow
deposits and payments, if such are required, for which customary
arrangements for repayment thereof have not been made, and no escrow
deposits or payments of other charges or payments due the Seller have
been capitalized under any Mortgage or related Mortgage Note.
(45) All Loans calculate interest utilizing the actuarial
method.
S-IIIA-5
(46) None of the Loans are subject to the Home Ownership &
Equity Protection Act of 1994.
(47) As of the Cut-off Date, the Mortgage Rate relating to
each Loan that is an adjustable rate mortgage loan has been adjusted
in accordance with the terms of the related Mortgage Note.
S-IIIA-6
SCHEDULE IIIB
Equity One ABS, Inc.
Mortgage Pass-Through Certificates
Series 2002-2
Loan Representations and Warranties of Equity One-Minnesota
-----------------------------------------------------------
Equity One-Minnesota ("Seller") hereby makes the representations and
warranties set forth in this Schedule IIIB to the Depositor, the Insurer and the
Trustee, as of the Closing Date or if so specified herein, as of the Cut-off
Date with respect to the Loans being conveyed by Seller and the Mortgages,
Mortgage Notes and Mortgaged Properties related thereto. Capitalized terms used
but not otherwise defined in this Schedule IIIB shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among Seller, the other
Sellers and the Servicer identified therein, Equity One ABS, Inc., as depositor,
and JPMorgan Chase Bank, as trustee. The term "Agreement" shall be used in this
Schedule to refer to the Pooling and Servicing Agreement.
(1) The information set forth on Schedule I to the Agreement
with respect to the Loans is true and correct in all material respects
as of the Closing Date.
(2) As of the Cut-off Date, (i) no Loan was contractually
past due for 60 or more days and (ii) not more than 2.23% (by
principal balance) of the Group I Loans and 4.54% (by principal
balance) of the Group II Loans set forth on Schedule I to the
Agreement were between 30 and 59 days contractually past due (assuming
30 day months).
(3) No Loan had a Loan-to-Value Ratio at origination in
excess of 100.00%. For purposes of determining the date of origination
on which each Loan's Loan-to-Value Ratio is measured, no Loan has been
significantly modified within the meaning of Treasury Regulation
1.860G-2(b) as of the Closing Date.
(4) Each Mortgage is a valid and enforceable first or second
lien on the referenced Mortgaged Property subject only to (a) the lien
of non delinquent current real property taxes and assessments, (b)
covenants, conditions and restrictions, rights of way, easements and
other matters of public record as of the date of recording of such
Mortgage, such exceptions appearing of record being acceptable to
mortgage lending institutions generally or specifically reflected in
the appraisal made in connection with the origination of the related
Loan and (c) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by such Mortgage.
(5) Immediately prior to the assignment of the Loans to the
Depositor, the Seller had good title to, and was the sole owner of,
each such Loan free and clear of any pledge, lien (except in the case
of a Second Lien Loan, which shall be subject to prior liens approved
by Seller), encumbrance or security interest and had full right and
authority, subject to no interest or participation of, or agreement
with, any other party, to sell and assign the same pursuant to the
Agreement.
(6) To the best of Seller's knowledge, there is no
delinquent tax or assessment lien against any Mortgaged Property.
S-IIIB-1
(7) There is no valid right of rescission, offset, defense
or counterclaim to any Mortgage Note or Mortgage, including the
obligation of the Mortgagor to pay the unpaid principal of or interest
on such Mortgage Note.
(8) To the best of Seller's knowledge, there are no
mechanics' liens or claims for work, labor or material affecting any
Mortgaged Property which are or may be a lien prior to, or equal with,
the lien of such Mortgage, except those which are insured against by
the title insurance policy referred to in item (12) below.
(9) To the best of the Seller's knowledge, each Mortgaged
Property is free of material damage and in good repair.
(10) Each Loan at origination complied in all material
respects with applicable state and federal laws, including, without
limitation, usury, equal credit opportunity, real estate settlement
procedures, truth-in-lending and disclosure laws, and consummation of
the transactions contemplated hereby will not involve the violation of
any such laws.
(11) As of the Closing Date, neither the Seller nor any
prior holder of any Mortgage has modified the Mortgage in any material
respect (except that a Loan may have been modified by a written
instrument which has been recorded or submitted for recordation, if
necessary, to protect the interests of the Certificateholders and the
original or a copy of which has been or shall be delivered to the
Trustee); satisfied, canceled or subordinated such Mortgage in whole
or in part; released the related Mortgaged Property in whole or in
part from the lien of such Mortgage; or executed any instrument of
release, cancellation, modification or satisfaction with respect
thereto.
(12) For each Loan, a lender's policy of title insurance
together with a condominium endorsement and extended coverage
endorsement, if applicable, in an amount at least equal to the Cut-off
Date Stated Principal Balance of each such Loan or a commitment
(binder) to issue the same was effective on the date of the
origination of each Loan, each such policy is valid and remains in
full force and effect, and each such policy was issued by a title
insurer qualified to do business in the jurisdiction where the related
Mortgaged Property is located, which policy insures the Seller and
successor owners of indebtedness secured by the related insured
Mortgage, as to the applicable priority lien of the Mortgage subject
to the exceptions set forth in paragraph (4) above; to the best of the
Seller's knowledge, no claims have been made under such mortgage title
insurance policy and no prior holder of the related Mortgage,
including the Seller, has done, by act or omission, anything which
would impair the coverage of such mortgage title insurance policy.
(13) To the best of the Seller's knowledge, all of the
improvements which were included for the purpose of determining the
appraised value of each Mortgaged Property lie wholly within the
boundaries and building restriction lines of such property, and no
improvements on adjoining properties encroach upon such Mortgaged
Property.
(14) To the best of the Seller's knowledge, no improvement
located on or being part of any Mortgaged Property is in violation of
any applicable zoning law or regulation. To the best of the Seller's
knowledge, all inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of such Mortgaged
Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the
appropriate
S-IIIB-2
authorities, unless the lack thereof would not have a material adverse
effect on the value of such Mortgaged Property, and such Mortgaged
Property is lawfully occupied under applicable law.
(15) Each Mortgage Note and the related Mortgage are
genuine, and each is the legal, valid and binding obligation of the
maker thereof, enforceable in accordance with its terms and under
applicable law. To the best of the Seller's knowledge, all parties to
such Mortgage Note and such Mortgage had legal capacity to execute
such Mortgage Note and such Mortgage and each such Mortgage Note and
Mortgage have been duly and properly executed by such parties.
(16) The proceeds of each Loan (other than certain amounts
escrowed for home improvements) have been fully disbursed and there is
no requirement for future advances thereunder. All costs, fees and
expenses incurred in making, or closing or recording such Loans were
paid.
(17) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the related Mortgaged Property of
the benefits of the security, including, (a) in the case of a Mortgage
designated as a deed of trust, by trustee's sale and (b) otherwise by
judicial foreclosure.
(18) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is
named in such Mortgage, and no fees or expenses are or will become
payable by the Certificateholders to the trustee under the deed of
trust, except in connection with a trustee's sale after default by the
Mortgagor.
(19) Each Mortgage Note and each Mortgage is in
substantially one of the forms acceptable to FNMA or FHLMC, with such
riders as have been acceptable to FNMA or FHLMC, as the case may be.
(20) The origination, underwriting and collection practices
used by the Seller with respect to each Loan have been in all respects
legal, prudent and customary in the mortgage lending and servicing
business.
(21) There is no pledged account or other security other
than any Escrow Account and real estate securing the Mortgagor's
obligations.
(22) No Loan has a shared appreciation feature, or other
contingent interest feature.
(23) Each Loan contains a customary "due on sale" clause.
(24) To the best of Seller's knowledge: at the Cut-off Date,
the improvements on each Mortgaged Property were covered by a valid
and existing hazard insurance policy with a generally acceptable
carrier that provides for fire and extended coverage and coverage for
such other hazards as are customary in the area where such Mortgaged
Property is located in an amount at least equal to the lesser of (a)
the maximum insurable value of the improvements on such Mortgaged
Property or (b) (i) in the case of a Loan secured by a Mortgage
creating a first lien on such Mortgaged Property, the original
principal balance of such Loan, or (ii) in the case of a Loan which is
subject to a prior loan or prior loans, the combined principal
balances of such Loan and the prior loan(s). If such Mortgaged
Property is a condominium unit,
S-IIIB-3
it is included under the coverage afforded by a blanket policy for the
condominium unit. For all Mortgages creating a first lien on the
related Mortgaged Property, all such individual insurance policies and
all flood policies referred to in item (25) below contain a standard
mortgagee clause naming the Seller or the original mortgagee, and its
successors in interest, as mortgagee, and the Seller has received no
notice that any premiums due and payable thereon have not been paid;
the Mortgage obligates the Mortgagor thereunder to maintain all such
insurance including flood insurance at the Mortgagor's cost and
expense, and upon the Mortgagor's failure to do so, authorizes the
holder of the Mortgage to obtain and maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from
the Mortgagor.
(25) If a Mortgaged Property is in an area identified in the
Federal Register by the Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy in a form meeting the
requirements of the current guidelines of the Flood Insurance
Administration was required at closing with respect to such Mortgaged
Property with a generally acceptable carrier in an amount representing
coverage not less than the least of (a) the original outstanding
principal balance of the related Loan, (b) the minimum amount required
to compensate for damage or loss on a maximum insurable value basis or
(c) the maximum amount of insurance that is available under the Flood
Disaster Protection Act of 1973, as amended.
(26) To the best of the Seller's knowledge, there is no
proceeding occurring, pending or threatened for the total or partial
condemnation of any Mortgaged Property.
(27) There is no material monetary default existing under
any Mortgage or the related Mortgage Note and, to the best of the
Seller's knowledge, there is no material event which, with the passage
of time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of acceleration
under such Mortgage or related Mortgage Note; and the Seller has not
waived any default, breach, violation or event of acceleration.
(28) Each Mortgaged Property is improved by a mixed use
building or a one- to four-family, or other multi-family, residential
dwelling including condominium units, which, to the best of Seller's
knowledge, does not include cooperatives or mobile homes and does not
constitute other than real property under state law.
(29) Each Loan is being serviced by the Servicer.
(30) Any future advances made prior to the Cut-off Date have
been consolidated with the outstanding principal amount secured by the
related Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term reflected on
the related loan schedule. The consolidated principal amount does not
exceed the original principal amount of such Loan. No Mortgage Note
permits or obligates the Servicer to make future advances to the
Mortgagor at the option of the Mortgagor.
(31) To the best of Seller's knowledge: all taxes,
governmental assessments, insurance premiums, water, sewer and
municipal charges, leasehold payments or ground rents which previously
became due and owing have been paid, except for items which have been
assessed, but are not yet due and payable. Except for (a) payments in
the nature of escrow payments, and (b) interest accruing from the date
of any Mortgage Note or date of disbursement of the related Mortgage
proceeds, whichever is later, to the day which precedes by one month
the Due Date of the first installment of principal and interest,
including without limitation, taxes and insurance payments, the
Servicer has not advanced funds, or induced, solicited or knowingly
S-IIIB-4
received any advance of funds by a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required by the
related Mortgage.
(32) Each Loan was underwritten in all material respects in
accordance with the Seller's underwriting guidelines as set forth in
the Prospectus Supplement.
(33) An appraisal of each Mortgaged Property was obtained
from a qualified appraiser, duly appointed by the originator, who had
no interest, direct or indirect, in the Mortgaged Property or in any
loan made on the security thereof, and whose compensation is not
affected by the approval or disapproval of such Loan; such appraisal
is in a form acceptable to FNMA and FHLMC.
(34) No Loan is a graduated payment mortgage loan or a
growing equity mortgage loan, and no Loan is subject to a buydown or
similar arrangement.
(35) The Loans were selected from among the outstanding
residential mortgage or mixed use loans in Seller's portfolio at the
Closing Date as to which the representations and warranties made as to
such Loans set forth in this Schedule IIIB can be made. Such selection
was not made in a manner that would adversely affect the interests of
Certificateholders or the Insurer.
(36) Each Loan has a Due Date in the month of the first
Distribution Date.
(37) Approximately (a) 100.00% of the Group I Loans and (b)
none of the Group II Loans (by principal balance) are Balloon Loans.
(38) No Loan is subject to negative amortization or deferred
interest payments.
(39) No Mortgagor has requested relief under the Relief Act.
(40) None of the Loans are retail installment contracts for
goods or services or are home improvement loans for goods or services,
which would be either "consumer credit contracts" or "purchase money
loans" as such terms are defined in 16 C.F.R. ss.433.1.
(41) No Mortgagor has or will have a claim or defense
against Seller or any assignor or assignee of Seller under any express
or implied warranty with respect to goods or services provided in
connection with any Loan.
(42) Each Loan is a "qualified mortgage" for purposes of
Section 860G(a)(3) of the Code.
(43) The Loans, individually and in the aggregate, conform
in all material respects to the descriptions thereof in the Prospectus
Supplement.
(44) There exist no deficiencies with respect to escrow
deposits and payments, if such are required, for which customary
arrangements for repayment thereof have not been made, and no escrow
deposits or payments of other charges or payments due the Seller have
been capitalized under any Mortgage or related Mortgage Note.
(45) All Loans calculate interest utilizing the actuarial
method.
S-IIIB-5
(46) None of the Loans are subject to the Home Ownership &
Equity Protection Act of 1994.
(47) As of the Cut-off Date, the Mortgage Rate relating to
each Loan that is an adjustable rate mortgage loan has been adjusted
in accordance with the terms of the related Mortgage Note.
S-IIIB-6
SCHEDULE IIIC
Equity One ABS, Inc.
Mortgage Pass-Through Certificates
Series 2002-2
Loan Representations and Warranties of Equity One-New Hampshire
---------------------------------------------------------------
Equity One-New Hampshire ("Seller") hereby makes the representations
and warranties set forth in this Schedule IIIC to the Depositor, the Insurer and
the Trustee, as of the Closing Date or if so specified herein, as of the Cut-off
Date with respect to the Loans being conveyed by Seller and the Mortgages,
Mortgage Notes and Mortgaged Properties related thereto. Capitalized terms used
but not otherwise defined in this Schedule IIIC shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among Seller, the other
Sellers and the Servicer identified therein, Equity One ABS, Inc., as depositor,
and JPMorgan Chase Bank, as trustee. The term "Agreement" shall be used in this
Schedule to refer to the Pooling and Servicing Agreement.
(1) The information set forth on Schedule I to the Agreement
with respect to the Loans is true and correct in all material respects
as of the Closing Date.
(2) As of the Cut-off Date, (i) no Loan was contractually
past due for 60 or more days and (ii) not more than 2.23% (by
principal balance) of the Group I Loans and 4.54% (by principal
balance) of the Group II Loans set forth on Schedule I to the
Agreement were between 30 and 59 days contractually past due (assuming
30 day months).
(3) No Loan had a Loan-to-Value Ratio at origination in
excess of 100.00%. For purposes of determining the date of origination
on which each Loan's Loan-to-Value Ratio is measured, no Loan has been
significantly modified within the meaning of Treasury Regulation
1.860G-2(b) as of the Closing Date.
(4) Each Mortgage is a valid and enforceable first or second
lien on the referenced Mortgaged Property subject only to (a) the lien
of non delinquent current real property taxes and assessments, (b)
covenants, conditions and restrictions, rights of way, easements and
other matters of public record as of the date of recording of such
Mortgage, such exceptions appearing of record being acceptable to
mortgage lending institutions generally or specifically reflected in
the appraisal made in connection with the origination of the related
Loan and (c) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by such Mortgage.
(5) Immediately prior to the assignment of the Loans to the
Depositor, the Seller had good title to, and was the sole owner of,
each such Loan free and clear of any pledge, lien (except in the case
of a Second Lien Loan, which shall be subject to prior liens approved
by Seller), encumbrance or security interest and had full right and
authority, subject to no interest or participation of, or agreement
with, any other party, to sell and assign the same pursuant to the
Agreement.
(6) To the best of Seller's knowledge, there is no
delinquent tax or assessment lien against any Mortgaged Property.
S-IIIC-1
(7) There is no valid right of rescission, offset, defense
or counterclaim to any Mortgage Note or Mortgage, including the
obligation of the Mortgagor to pay the unpaid principal of or interest
on such Mortgage Note.
(8) To the best of Seller's knowledge, there are no
mechanics' liens or claims for work, labor or material affecting any
Mortgaged Property which are or may be a lien prior to, or equal with,
the lien of such Mortgage, except those which are insured against by
the title insurance policy referred to in item (12) below.
(9) To the best of the Seller's knowledge, each Mortgaged
Property is free of material damage and in good repair.
(10) Each Loan at origination complied in all material
respects with applicable state and federal laws, including, without
limitation, usury, equal credit opportunity, real estate settlement
procedures, truth-in-lending and disclosure laws, and consummation of
the transactions contemplated hereby will not involve the violation of
any such laws.
(11) As of the Closing Date, neither the Seller nor any
prior holder of any Mortgage has modified the Mortgage in any material
respect (except that a Loan may have been modified by a written
instrument which has been recorded or submitted for recordation, if
necessary, to protect the interests of the Certificateholders and the
original or a copy of which has been or shall be delivered to the
Trustee); satisfied, canceled or subordinated such Mortgage in whole
or in part; released the related Mortgaged Property in whole or in
part from the lien of such Mortgage; or executed any instrument of
release, cancellation, modification or satisfaction with respect
thereto.
(12) For each Loan, a lender's policy of title insurance
together with a condominium endorsement and extended coverage
endorsement, if applicable, in an amount at least equal to the Cut-off
Date Stated Principal Balance of each such Loan or a commitment
(binder) to issue the same was effective on the date of the
origination of each Loan, each such policy is valid and remains in
full force and effect, and each such policy was issued by a title
insurer qualified to do business in the jurisdiction where the related
Mortgaged Property is located, which policy insures the Seller and
successor owners of indebtedness secured by the related insured
Mortgage, as to the applicable priority lien of the Mortgage subject
to the exceptions set forth in paragraph (4) above; to the best of the
Seller's knowledge, no claims have been made under such mortgage title
insurance policy and no prior holder of the related Mortgage,
including the Seller, has done, by act or omission, anything which
would impair the coverage of such mortgage title insurance policy.
(13) To the best of the Seller's knowledge, all of the
improvements which were included for the purpose of determining the
appraised value of each Mortgaged Property lie wholly within the
boundaries and building restriction lines of such property, and no
improvements on adjoining properties encroach upon such Mortgaged
Property.
(14) To the best of the Seller's knowledge, no improvement
located on or being part of any Mortgaged Property is in violation of
any applicable zoning law or regulation. To the best of the Seller's
knowledge, all inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of such Mortgaged
Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the
appropriate
S-IIIC-2
authorities, unless the lack thereof would not have a material adverse
effect on the value of such Mortgaged Property, and such Mortgaged
Property is lawfully occupied under applicable law.
(15) Each Mortgage Note and the related Mortgage are
genuine, and each is the legal, valid and binding obligation of the
maker thereof, enforceable in accordance with its terms and under
applicable law. To the best of the Seller's knowledge, all parties to
such Mortgage Note and such Mortgage had legal capacity to execute
such Mortgage Note and such Mortgage and each such Mortgage Note and
Mortgage have been duly and properly executed by such parties.
(16) The proceeds of each Loan (other than certain amounts
escrowed for home improvements) have been fully disbursed and there is
no requirement for future advances thereunder. All costs, fees and
expenses incurred in making, or closing or recording such Loans were
paid.
(17) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the related Mortgaged Property of
the benefits of the security, including, (a) in the case of a Mortgage
designated as a deed of trust, by trustee's sale and (b) otherwise by
judicial foreclosure.
(18) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is
named in such Mortgage, and no fees or expenses are or will become
payable by the Certificateholders to the trustee under the deed of
trust, except in connection with a trustee's sale after default by the
Mortgagor.
(19) Each Mortgage Note and each Mortgage is in
substantially one of the forms acceptable to FNMA or FHLMC, with such
riders as have been acceptable to FNMA or FHLMC, as the case may be.
(20) The origination, underwriting and collection practices
used by the Seller with respect to each Loan have been in all respects
legal, prudent and customary in the mortgage lending and servicing
business.
(21) There is no pledged account or other security other
than any Escrow Account and real estate securing the Mortgagor's
obligations.
(22) No Loan has a shared appreciation feature, or other
contingent interest feature.
(23) Each Loan contains a customary "due on sale" clause.
(24) To the best of Seller's knowledge: at the Cut-off Date,
the improvements on each Mortgaged Property were covered by a valid
and existing hazard insurance policy with a generally acceptable
carrier that provides for fire and extended coverage and coverage for
such other hazards as are customary in the area where such Mortgaged
Property is located in an amount at least equal to the lesser of (a)
the maximum insurable value of the improvements on such Mortgaged
Property or (b) (i) in the case of a Loan secured by a Mortgage
creating a first lien on such Mortgaged Property, the original
principal balance of such Loan, or (ii) in the case of a Loan which is
subject to a prior loan or prior loans, the combined principal
balances of such Loan and the prior loan(s). If such Mortgaged
Property is a condominium unit,
S-IIIC-3
it is included under the coverage afforded by a blanket policy for the
condominium unit. For all Mortgages creating a first lien on the
related Mortgaged Property, all such individual insurance policies and
all flood policies referred to in item (25) below contain a standard
mortgagee clause naming the Seller or the original mortgagee, and its
successors in interest, as mortgagee, and the Seller has received no
notice that any premiums due and payable thereon have not been paid;
the Mortgage obligates the Mortgagor thereunder to maintain all such
insurance including flood insurance at the Mortgagor's cost and
expense, and upon the Mortgagor's failure to do so, authorizes the
holder of the Mortgage to obtain and maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from
the Mortgagor.
(25) If a Mortgaged Property is in an area identified in the
Federal Register by the Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy in a form meeting the
requirements of the current guidelines of the Flood Insurance
Administration was required at closing with respect to such Mortgaged
Property with a generally acceptable carrier in an amount representing
coverage not less than the least of (a) the original outstanding
principal balance of the related Loan, (b) the minimum amount required
to compensate for damage or loss on a maximum insurable value basis or
(c) the maximum amount of insurance that is available under the Flood
Disaster Protection Act of 1973, as amended.
(26) To the best of the Seller's knowledge, there is no
proceeding occurring, pending or threatened for the total or partial
condemnation of any Mortgaged Property.
(27) There is no material monetary default existing under
any Mortgage or the related Mortgage Note and, to the best of the
Seller's knowledge, there is no material event which, with the passage
of time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of acceleration
under such Mortgage or related Mortgage Note; and the Seller has not
waived any default, breach, violation or event of acceleration.
(28) Each Mortgaged Property is improved by a mixed use
building or a one- to four-family, or other multi-family, residential
dwelling including condominium units, which, to the best of Seller's
knowledge, does not include cooperatives or mobile homes and does not
constitute other than real property under state law.
(29) Each Loan is being serviced by the Servicer.
(30) Any future advances made prior to the Cut-off Date have
been consolidated with the outstanding principal amount secured by the
related Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term reflected on
the related loan schedule. The consolidated principal amount does not
exceed the original principal amount of such Loan. No Mortgage Note
permits or obligates the Servicer to make future advances to the
Mortgagor at the option of the Mortgagor.
(31) To the best of Seller's knowledge: all taxes,
governmental assessments, insurance premiums, water, sewer and
municipal charges, leasehold payments or ground rents which previously
became due and owing have been paid, except for items which have been
assessed, but are not yet due and payable. Except for (a) payments in
the nature of escrow payments, and (b) interest accruing from the date
of any Mortgage Note or date of disbursement of the related Mortgage
proceeds, whichever is later, to the day which precedes by one month
the Due Date of the first installment of principal and interest,
including without limitation, taxes and insurance payments, the
Servicer has not advanced funds, or induced, solicited or knowingly
S-IIIC-4
received any advance of funds by a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required by the
related Mortgage.
(32) Each Loan was underwritten in all material respects in
accordance with the Seller's underwriting guidelines as set forth in
the Prospectus Supplement.
(33) An appraisal of each Mortgaged Property was obtained
from a qualified appraiser, duly appointed by the originator, who had
no interest, direct or indirect, in the Mortgaged Property or in any
loan made on the security thereof, and whose compensation is not
affected by the approval or disapproval of such Loan; such appraisal
is in a form acceptable to FNMA and FHLMC.
(34) No Loan is a graduated payment mortgage loan or a
growing equity mortgage loan, and no Loan is subject to a buydown or
similar arrangement.
(35) The Loans were selected from among the outstanding
residential mortgage or mixed use loans in Seller's portfolio at the
Closing Date as to which the representations and warranties made as to
such Loans set forth in this Schedule IIIC can be made. Such selection
was not made in a manner that would adversely affect the interests of
Certificateholders or the Insurer.
(36) Each Loan has a Due Date in the month of the first
Distribution Date.
(37) Approximately (a) 50.54% of the Group I Loans and (b)
none of the Group II Loans (by principal balance) are Balloon Loans.
(38) No Loan is subject to negative amortization or deferred
interest payments.
(39) No Mortgagor has requested relief under the Relief Act.
(40) None of the Loans are retail installment contracts for
goods or services or are home improvement loans for goods or services,
which would be either "consumer credit contracts" or "purchase money
loans" as such terms are defined in 16 C.F.R. ss.433.1.
(41) No Mortgagor has or will have a claim or defense
against Seller or any assignor or assignee of Seller under any express
or implied warranty with respect to goods or services provided in
connection with any Loan.
(42) Each Loan is a "qualified mortgage" for purposes of
Section 860G(a)(3) of the Code.
(43) The Loans, individually and in the aggregate, conform
in all material respects to the descriptions thereof in the Prospectus
Supplement.
(44) There exist no deficiencies with respect to escrow
deposits and payments, if such are required, for which customary
arrangements for repayment thereof have not been made, and no escrow
deposits or payments of other charges or payments due the Seller have
been capitalized under any Mortgage or related Mortgage Note.
(45) All Loans calculate interest utilizing the actuarial
method.
S-IIIC-5
(46) None of the Loans are subject to the Home Ownership &
Equity Protection Act of 1994.
(47) As of the Cut-off Date, the Mortgage Rate relating to
each Loan that is an adjustable rate mortgage loan has been adjusted
in accordance with the terms of the related Mortgage Note.
S-IIIC-6
SCHEDULE IIID
Equity One ABS, Inc.
Mortgage Pass-Through Certificates
Series 2002-2
Loan Representations and Warranties of Equity One-Pennsylvania
--------------------------------------------------------------
Equity One-Pennsylvania ("Seller") hereby makes the representations
and warranties set forth in this Schedule IIID to the Depositor, the Insurer and
the Trustee, as of the Closing Date or if so specified herein, as of the Cut-off
Date with respect to the Loans being conveyed by Seller and the Mortgages,
Mortgage Notes and Mortgaged Properties related thereto. Capitalized terms used
but not otherwise defined in this Schedule IIID shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among Seller, the other
Sellers and the Servicer identified therein, Equity One ABS, Inc., as depositor,
and JPMorgan Chase Bank, as trustee. The term "Agreement" shall be used in this
Schedule to refer to the Pooling and Servicing Agreement.
(1) The information set forth on Schedule I to the Agreement
with respect to the Loans is true and correct in all material respects
as of the Closing Date.
(2) As of the Cut-off Date, (i) no Loan was contractually
past due for 60 or more days and (ii) not more than 2.23% (by
principal balance) of the Group I Loans and 4.54% (by principal
balance) of the Group II Loans set forth on Schedule I to the
Agreement were between 30 and 59 days contractually past due (assuming
30 day months).
(3) No Loan had a Loan-to-Value Ratio at origination in
excess of 100.00%. For purposes of determining the date of origination
on which each Loan's Loan-to-Value Ratio is measured, no Loan has been
significantly modified within the meaning of Treasury Regulation
1.860G-2(b) as of the Closing Date.
(4) Each Mortgage is a valid and enforceable first or second
lien on the referenced Mortgaged Property subject only to (a) the lien
of non delinquent current real property taxes and assessments, (b)
covenants, conditions and restrictions, rights of way, easements and
other matters of public record as of the date of recording of such
Mortgage, such exceptions appearing of record being acceptable to
mortgage lending institutions generally or specifically reflected in
the appraisal made in connection with the origination of the related
Loan and (c) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by such Mortgage.
(5) Immediately prior to the assignment of the Loans to the
Depositor, the Seller had good title to, and was the sole owner of,
each such Loan free and clear of any pledge, lien (except in the case
of a Second Lien Loan, which shall be subject to prior liens approved
by Seller), encumbrance or security interest and had full right and
authority, subject to no interest or participation of, or agreement
with, any other party, to sell and assign the same pursuant to the
Agreement.
(6) To the best of Seller's knowledge, there is no
delinquent tax or assessment lien against any Mortgaged Property.
S-IIID-1
(7) There is no valid right of rescission, offset, defense
or counterclaim to any Mortgage Note or Mortgage, including the
obligation of the Mortgagor to pay the unpaid principal of or interest
on such Mortgage Note.
(8) To the best of Seller's knowledge, there are no
mechanics' liens or claims for work, labor or material affecting any
Mortgaged Property which are or may be a lien prior to, or equal with,
the lien of such Mortgage, except those which are insured against by
the title insurance policy referred to in item (12) below.
(9) To the best of the Seller's knowledge, each Mortgaged
Property is free of material damage and in good repair.
(10) Each Loan at origination complied in all material
respects with applicable state and federal laws, including, without
limitation, usury, equal credit opportunity, real estate settlement
procedures, truth-in-lending and disclosure laws, and consummation of
the transactions contemplated hereby will not involve the violation of
any such laws.
(11) As of the Closing Date, neither the Seller nor any
prior holder of any Mortgage has modified the Mortgage in any material
respect (except that a Loan may have been modified by a written
instrument which has been recorded or submitted for recordation, if
necessary, to protect the interests of the Certificateholders and the
original or a copy of which has been or shall be delivered to the
Trustee); satisfied, canceled or subordinated such Mortgage in whole
or in part; released the related Mortgaged Property in whole or in
part from the lien of such Mortgage; or executed any instrument of
release, cancellation, modification or satisfaction with respect
thereto.
(12) For each Loan, a lender's policy of title insurance
together with a condominium endorsement and extended coverage
endorsement, if applicable, in an amount at least equal to the Cut-off
Date Stated Principal Balance of each such Loan or a commitment
(binder) to issue the same was effective on the date of the
origination of each Loan, each such policy is valid and remains in
full force and effect, and each such policy was issued by a title
insurer qualified to do business in the jurisdiction where the related
Mortgaged Property is located, which policy insures the Seller and
successor owners of indebtedness secured by the related insured
Mortgage, as to the applicable priority lien of the Mortgage subject
to the exceptions set forth in paragraph (4) above; to the best of the
Seller's knowledge, no claims have been made under such mortgage title
insurance policy and no prior holder of the related Mortgage,
including the Seller, has done, by act or omission, anything which
would impair the coverage of such mortgage title insurance policy.
(13) To the best of the Seller's knowledge, all of the
improvements which were included for the purpose of determining the
appraised value of each Mortgaged Property lie wholly within the
boundaries and building restriction lines of such property, and no
improvements on adjoining properties encroach upon such Mortgaged
Property.
(14) To the best of the Seller's knowledge, no improvement
located on or being part of any Mortgaged Property is in violation of
any applicable zoning law or regulation. To the best of the Seller's
knowledge, all inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of such Mortgaged
Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the
appropriate
S-IIID-2
authorities, unless the lack thereof would not have a material adverse
effect on the value of such Mortgaged Property, and such Mortgaged
Property is lawfully occupied under applicable law.
(15) Each Mortgage Note and the related Mortgage are
genuine, and each is the legal, valid and binding obligation of the
maker thereof, enforceable in accordance with its terms and under
applicable law. To the best of the Seller's knowledge, all parties to
such Mortgage Note and such Mortgage had legal capacity to execute
such Mortgage Note and such Mortgage and each such Mortgage Note and
Mortgage have been duly and properly executed by such parties.
(16) The proceeds of each Loan (other than certain amounts
escrowed for home improvements) have been fully disbursed and there is
no requirement for future advances thereunder. All costs, fees and
expenses incurred in making, or closing or recording such Loans were
paid.
(17) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the related Mortgaged Property of
the benefits of the security, including, (a) in the case of a Mortgage
designated as a deed of trust, by trustee's sale and (b) otherwise by
judicial foreclosure.
(18) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is
named in such Mortgage, and no fees or expenses are or will become
payable by the Certificateholders to the trustee under the deed of
trust, except in connection with a trustee's sale after default by the
Mortgagor.
(19) Each Mortgage Note and each Mortgage is in
substantially one of the forms acceptable to FNMA or FHLMC, with such
riders as have been acceptable to FNMA or FHLMC, as the case may be.
(20) The origination, underwriting and collection practices
used by the Seller with respect to each Loan have been in all respects
legal, prudent and customary in the mortgage lending and servicing
business.
(21) There is no pledged account or other security other
than any Escrow Account and real estate securing the Mortgagor's
obligations.
(22) No Loan has a shared appreciation feature, or other
contingent interest feature.
(23) Each Loan contains a customary "due on sale" clause.
(24) To the best of Seller's knowledge: at the Cut-off Date,
the improvements on each Mortgaged Property were covered by a valid
and existing hazard insurance policy with a generally acceptable
carrier that provides for fire and extended coverage and coverage for
such other hazards as are customary in the area where such Mortgaged
Property is located in an amount at least equal to the lesser of (a)
the maximum insurable value of the improvements on such Mortgaged
Property or (b) (i) in the case of a Loan secured by a Mortgage
creating a first lien on such Mortgaged Property, the original
principal balance of such Loan, or (ii) in the case of a Loan which is
subject to a prior loan or prior loans, the combined principal
balances of such Loan and the prior loan(s). If such Mortgaged
Property is a condominium unit,
S-IIID-3
it is included under the coverage afforded by a blanket policy for the
condominium unit. For all Mortgages creating a first lien on the
related Mortgaged Property, all such individual insurance policies and
all flood policies referred to in item (25) below contain a standard
mortgagee clause naming the Seller or the original mortgagee, and its
successors in interest, as mortgagee, and the Seller has received no
notice that any premiums due and payable thereon have not been paid;
the Mortgage obligates the Mortgagor thereunder to maintain all such
insurance including flood insurance at the Mortgagor's cost and
expense, and upon the Mortgagor's failure to do so, authorizes the
holder of the Mortgage to obtain and maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from
the Mortgagor.
(25) If a Mortgaged Property is in an area identified in the
Federal Register by the Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy in a form meeting the
requirements of the current guidelines of the Flood Insurance
Administration was required at closing with respect to such Mortgaged
Property with a generally acceptable carrier in an amount representing
coverage not less than the least of (a) the original outstanding
principal balance of the related Loan, (b) the minimum amount required
to compensate for damage or loss on a maximum insurable value basis or
(c) the maximum amount of insurance that is available under the Flood
Disaster Protection Act of 1973, as amended.
(26) To the best of the Seller's knowledge, there is no
proceeding occurring, pending or threatened for the total or partial
condemnation of any Mortgaged Property.
(27) There is no material monetary default existing under
any Mortgage or the related Mortgage Note and, to the best of the
Seller's knowledge, there is no material event which, with the passage
of time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of acceleration
under such Mortgage or related Mortgage Note; and the Seller has not
waived any default, breach, violation or event of acceleration.
(28) Each Mortgaged Property is improved by a mixed use
building or a one- to four-family, or other multi-family, residential
dwelling including condominium units, which, to the best of Seller's
knowledge, does not include cooperatives or mobile homes and does not
constitute other than real property under state law.
(29) Each Loan is being serviced by the Servicer.
(30) Any future advances made prior to the Cut-off Date have
been consolidated with the outstanding principal amount secured by the
related Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term reflected on
the related loan schedule. The consolidated principal amount does not
exceed the original principal amount of such Loan. No Mortgage Note
permits or obligates the Servicer to make future advances to the
Mortgagor at the option of the Mortgagor.
(31) To the best of Seller's knowledge: all taxes,
governmental assessments, insurance premiums, water, sewer and
municipal charges, leasehold payments or ground rents which previously
became due and owing have been paid, except for items which have been
assessed, but are not yet due and payable. Except for (a) payments in
the nature of escrow payments, and (b) interest accruing from the date
of any Mortgage Note or date of disbursement of the related Mortgage
proceeds, whichever is later, to the day which precedes by one month
the Due Date of the first installment of principal and interest,
including without limitation, taxes and insurance payments, the
Servicer has not advanced funds, or induced, solicited or knowingly
S-IIID-4
received any advance of funds by a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required by the
related Mortgage.
(32) Each Loan was underwritten in all material respects in
accordance with the Seller's underwriting guidelines as set forth in
the Prospectus Supplement.
(33) An appraisal of each Mortgaged Property was obtained
from a qualified appraiser, duly appointed by the originator, who had
no interest, direct or indirect, in the Mortgaged Property or in any
loan made on the security thereof, and whose compensation is not
affected by the approval or disapproval of such Loan; such appraisal
is in a form acceptable to FNMA and FHLMC.
(34) No Loan is a graduated payment mortgage loan or a
growing equity mortgage loan, and no Loan is subject to a buydown or
similar arrangement.
(35) The Loans were selected from among the outstanding
residential mortgage or mixed use loans in Seller's portfolio at the
Closing Date as to which the representations and warranties made as to
such Loans set forth in this Schedule IIID can be made. Such selection
was not made in a manner that would adversely affect the interests of
Certificateholders or the Insurer.
(36) Each Loan has a Due Date in the month of the first
Distribution Date.
(37) Approximately (a) 51.52% of the Group I Loans and (b)
none of the Group II Loans (by principal balance) are Balloon Loans.
(38) No Loan is subject to negative amortization or deferred
interest payments.
(39) No Mortgagor has requested relief under the Relief Act.
(40) None of the Loans are retail installment contracts for
goods or services or are home improvement loans for goods or services,
which would be either "consumer credit contracts" or "purchase money
loans" as such terms are defined in 16 C.F.R. ss.433.1.
(41) No Mortgagor has or will have a claim or defense
against Seller or any assignor or assignee of Seller under any express
or implied warranty with respect to goods or services provided in
connection with any Loan.
(42) Each Loan is a "qualified mortgage" for purposes of
Section 860G(a)(3) of the Code.
(43) The Loans, individually and in the aggregate, conform
in all material respects to the descriptions thereof in the Prospectus
Supplement.
(44) There exist no deficiencies with respect to escrow
deposits and payments, if such are required, for which customary
arrangements for repayment thereof have not been made, and no escrow
deposits or payments of other charges or payments due the Seller have
been capitalized under any Mortgage or related Mortgage Note.
(45) All Loans calculate interest utilizing the actuarial
method.
S-IIID-5
(46) None of the Loans are subject to the Home Ownership &
Equity Protection Act of 1994.
(47) As of the Cut-off Date, the Mortgage Rate relating to
each Loan that is an adjustable rate mortgage loan has been adjusted
in accordance with the terms of the related Mortgage Note.
S-IIID-6
SCHEDULE IIIE
Equity One ABS, Inc.
Mortgage Pass-Through Certificates
Series 2002-2
Loan Representations and Warranties of Popular Financial
--------------------------------------------------------
Popular Financial ("Seller") hereby makes the representations and
warranties set forth in this Schedule IIIE to the Depositor, the Insurer and the
Trustee, as of the Closing Date or if so specified herein, as of the Cut-off
Date with respect to the Loans being conveyed by Seller and the Mortgages,
Mortgage Notes and Mortgaged Properties related thereto. Capitalized terms used
but not otherwise defined in this Schedule IIIE shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among Seller, the other
Sellers and the Servicer identified therein, Equity One ABS, Inc., as depositor,
and JPMorgan Chase Bank, as trustee. The term "Agreement" shall be used in this
Schedule to refer to the Pooling and Servicing Agreement.
(1) The information set forth on Schedule I to the Agreement
with respect to the Loans is true and correct in all material respects
as of the Closing Date.
(2) As of the Cut-off Date, (i) no Loan was contractually
past due for 60 or more days and (ii) not more than 2.23% (by
principal balance) of the Group I Loans and 4.54% by principal
balance) of the Group II Loans set forth on Schedule I to the
Agreement were between 30 and 59 days contractually past due (assuming
30 day months).
(3) No Loan had a Loan-to-Value Ratio at origination in
excess of 100.00%. For purposes of determining the date of origination
on which each Loan's Loan-to-Value Ratio is measured, no Loan has been
significantly modified within the meaning of Treasury Regulation
1.860G-2(b) as of the Closing Date.
(4) Each Mortgage is a valid and enforceable first or second
lien on the referenced Mortgaged Property subject only to (a) the lien
of non delinquent current real property taxes and assessments, (b)
covenants, conditions and restrictions, rights of way, easements and
other matters of public record as of the date of recording of such
Mortgage, such exceptions appearing of record being acceptable to
mortgage lending institutions generally or specifically reflected in
the appraisal made in connection with the origination of the related
Loan and (c) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by such Mortgage.
(5) Immediately prior to the assignment of the Loans to the
Depositor, the Seller had good title to, and was the sole owner of,
each such Loan free and clear of any pledge, lien (except in the case
of a Second Lien Loan, which shall be subject to prior liens approved
by Seller), encumbrance or security interest and had full right and
authority, subject to no interest or participation of, or agreement
with, any other party, to sell and assign the same pursuant to the
Agreement.
(6) To the best of Seller's knowledge, there is no
delinquent tax or assessment lien against any Mortgaged Property.
S-IIIE-1
(7) There is no valid right of rescission, offset, defense
or counterclaim to any Mortgage Note or Mortgage, including the
obligation of the Mortgagor to pay the unpaid principal of or interest
on such Mortgage Note.
(8) To the best of Seller's knowledge, there are no
mechanics' liens or claims for work, labor or material affecting any
Mortgaged Property which are or may be a lien prior to, or equal with,
the lien of such Mortgage, except those which are insured against by
the title insurance policy referred to in item (12) below.
(9) To the best of the Seller's knowledge, each Mortgaged
Property is free of material damage and in good repair.
(10) Each Loan at origination complied in all material
respects with applicable state and federal laws, including, without
limitation, usury, equal credit opportunity, real estate settlement
procedures, truth-in-lending and disclosure laws, and consummation of
the transactions contemplated hereby will not involve the violation of
any such laws.
(11) As of the Closing Date, neither the Seller nor any
prior holder of any Mortgage has modified the Mortgage in any material
respect (except that a Loan may have been modified by a written
instrument which has been recorded or submitted for recordation, if
necessary, to protect the interests of the Certificateholders and the
original or a copy of which has been or shall be delivered to the
Trustee); satisfied, canceled or subordinated such Mortgage in whole
or in part; released the related Mortgaged Property in whole or in
part from the lien of such Mortgage; or executed any instrument of
release, cancellation, modification or satisfaction with respect
thereto.
(12) For each Loan, a lender's policy of title insurance
together with a condominium endorsement and extended coverage
endorsement, if applicable, in an amount at least equal to the Cut-off
Date Stated Principal Balance of each such Loan or a commitment
(binder) to issue the same was effective on the date of the
origination of each Loan, each such policy is valid and remains in
full force and effect, and each such policy was issued by a title
insurer qualified to do business in the jurisdiction where the related
Mortgaged Property is located, which policy insures the Seller and
successor owners of indebtedness secured by the related insured
Mortgage, as to the applicable priority lien of the Mortgage subject
to the exceptions set forth in paragraph (4) above; to the best of the
Seller's knowledge, no claims have been made under such mortgage title
insurance policy and no prior holder of the related Mortgage,
including the Seller, has done, by act or omission, anything which
would impair the coverage of such mortgage title insurance policy.
(13) To the best of the Seller's knowledge, all of the
improvements which were included for the purpose of determining the
appraised value of each Mortgaged Property lie wholly within the
boundaries and building restriction lines of such property, and no
improvements on adjoining properties encroach upon such Mortgaged
Property.
(14) To the best of the Seller's knowledge, no improvement
located on or being part of any Mortgaged Property is in violation of
any applicable zoning law or regulation. To the best of the Seller's
knowledge, all inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of such Mortgaged
Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the
appropriate
S-IIIE-2
authorities, unless the lack thereof would not have a material adverse
effect on the value of such Mortgaged Property, and such Mortgaged
Property is lawfully occupied under applicable law.
(15) Each Mortgage Note and the related Mortgage are
genuine, and each is the legal, valid and binding obligation of the
maker thereof, enforceable in accordance with its terms and under
applicable law. To the best of the Seller's knowledge, all parties to
such Mortgage Note and such Mortgage had legal capacity to execute
such Mortgage Note and such Mortgage and each such Mortgage Note and
Mortgage have been duly and properly executed by such parties.
(16) The proceeds of each Loan (other than certain amounts
escrowed for home improvements) have been fully disbursed and there is
no requirement for future advances thereunder. All costs, fees and
expenses incurred in making, or closing or recording such Loans were
paid.
(17) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the related Mortgaged Property of
the benefits of the security, including, (a) in the case of a Mortgage
designated as a deed of trust, by trustee's sale and (b) otherwise by
judicial foreclosure.
(18) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is
named in such Mortgage, and no fees or expenses are or will become
payable by the Certificateholders to the trustee under the deed of
trust, except in connection with a trustee's sale after default by the
Mortgagor.
(19) Each Mortgage Note and each Mortgage is in
substantially one of the forms acceptable to FNMA or FHLMC, with such
riders as have been acceptable to FNMA or FHLMC, as the case may be.
(20) The origination, underwriting and collection practices
used by the Seller with respect to each Loan have been in all respects
legal, prudent and customary in the mortgage lending and servicing
business.
(21) There is no pledged account or other security other
than any Escrow Account and real estate securing the Mortgagor's
obligations.
(22) No Loan has a shared appreciation feature, or other
contingent interest feature.
(23) Each Loan contains a customary "due on sale" clause.
(24) To the best of Seller's knowledge: at the Cut-off Date,
the improvements on each Mortgaged Property were covered by a valid
and existing hazard insurance policy with a generally acceptable
carrier that provides for fire and extended coverage and coverage for
such other hazards as are customary in the area where such Mortgaged
Property is located in an amount at least equal to the lesser of (a)
the maximum insurable value of the improvements on such Mortgaged
Property or (b) (i) in the case of a Loan secured by a Mortgage
creating a first lien on such Mortgaged Property, the original
principal balance of such Loan, or (ii) in the case of a Loan which is
subject to a prior loan or prior loans, the combined principal
balances of such Loan and the prior loan(s). If such Mortgaged
Property is a condominium unit,
S-IIIE-3
it is included under the coverage afforded by a blanket policy for the
condominium unit. For all Mortgages creating a first lien on the
related Mortgaged Property, all such individual insurance policies and
all flood policies referred to in item (25) below contain a standard
mortgagee clause naming the Seller or the original mortgagee, and its
successors in interest, as mortgagee, and the Seller has received no
notice that any premiums due and payable thereon have not been paid;
the Mortgage obligates the Mortgagor thereunder to maintain all such
insurance including flood insurance at the Mortgagor's cost and
expense, and upon the Mortgagor's failure to do so, authorizes the
holder of the Mortgage to obtain and maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from
the Mortgagor.
(25) If a Mortgaged Property is in an area identified in the
Federal Register by the Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy in a form meeting the
requirements of the current guidelines of the Flood Insurance
Administration was required at closing with respect to such Mortgaged
Property with a generally acceptable carrier in an amount representing
coverage not less than the least of (a) the original outstanding
principal balance of the related Loan, (b) the minimum amount required
to compensate for damage or loss on a maximum insurable value basis or
(c) the maximum amount of insurance that is available under the Flood
Disaster Protection Act of 1973, as amended.
(26) To the best of the Seller's knowledge, there is no
proceeding occurring, pending or threatened for the total or partial
condemnation of any Mortgaged Property.
(27) There is no material monetary default existing under
any Mortgage or the related Mortgage Note and, to the best of the
Seller's knowledge, there is no material event which, with the passage
of time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of acceleration
under such Mortgage or related Mortgage Note; and the Seller has not
waived any default, breach, violation or event of acceleration.
(28) Each Mortgaged Property is improved by a mixed use
building or a one- to four-family, or other multi-family, residential
dwelling including condominium units, which, to the best of Seller's
knowledge, does not include cooperatives or mobile homes and does not
constitute other than real property under state law.
(29) Each Loan is being serviced by the Servicer.
(30) Any future advances made prior to the Cut-off Date have
been consolidated with the outstanding principal amount secured by the
related Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term reflected on
the related loan schedule. The consolidated principal amount does not
exceed the original principal amount of such Loan. No Mortgage Note
permits or obligates the Servicer to make future advances to the
Mortgagor at the option of the Mortgagor.
(31) To the best of Seller's knowledge: all taxes,
governmental assessments, insurance premiums, water, sewer and
municipal charges, leasehold payments or ground rents which previously
became due and owing have been paid, except for items which have been
assessed, but are not yet due and payable. Except for (a) payments in
the nature of escrow payments, and (b) interest accruing from the date
of any Mortgage Note or date of disbursement of the related Mortgage
proceeds, whichever is later, to the day which precedes by one month
the Due Date of the first installment of principal and interest,
including without limitation, taxes and insurance payments, the
Servicer has not advanced funds, or induced, solicited or knowingly
S-IIIE-4
received any advance of funds by a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required by the
related Mortgage.
(32) Each Loan was underwritten in all material respects in
accordance with the Seller's underwriting guidelines as set forth in
the Prospectus Supplement.
(33) An appraisal of each Mortgaged Property was obtained
from a qualified appraiser, duly appointed by the originator, who had
no interest, direct or indirect, in the Mortgaged Property or in any
loan made on the security thereof, and whose compensation is not
affected by the approval or disapproval of such Loan; such appraisal
is in a form acceptable to FNMA and FHLMC.
(34) No Loan is a graduated payment mortgage loan or a
growing equity mortgage loan, and no Loan is subject to a buydown or
similar arrangement.
(35) The Loans were selected from among the outstanding
residential mortgage or mixed use loans in Seller's portfolio at the
Closing Date as to which the representations and warranties made as to
such Loans set forth in this Schedule IIIE can be made. Such selection
was not made in a manner that would adversely affect the interests of
Certificateholders or the Insurer.
(36) Each Loan has a Due Date in the month of the first
Distribution Date.
(37) Approximately (a) 24.62% of the Group I Loans and (b)
none of the Group II Loans (by principal balance) are Balloon Loans.
(38) No Loan is subject to negative amortization or deferred
interest payments.
(39) No Mortgagor has requested relief under the Relief Act.
(40) None of the Loans are retail installment contracts for
goods or services or are home improvement loans for goods or services,
which would be either "consumer credit contracts" or "purchase money
loans" as such terms are defined in 16 C.F.R. ss.433.1.
(41) No Mortgagor has or will have a claim or defense
against Seller or any assignor or assignee of Seller under any express
or implied warranty with respect to goods or services provided in
connection with any Loan.
(42) Each Loan is a "qualified mortgage" for purposes of
Section 860G(a)(3) of the Code.
(43) The Loans, individually and in the aggregate, conform
in all material respects to the descriptions thereof in the Prospectus
Supplement.
(44) There exist no deficiencies with respect to escrow
deposits and payments, if such are required, for which customary
arrangements for repayment thereof have not been made, and no escrow
deposits or payments of other charges or payments due the Seller have
been capitalized under any Mortgage or related Mortgage Note.
(45) All Loans calculate interest utilizing the actuarial
method.
S-IIIE-5
(46) None of the Loans are subject to the Home Ownership &
Equity Protection Act of 1994.
(47) As of the Cut-off Date, the Mortgage Rate relating to
each Loan that is an adjustable rate mortgage loan has been adjusted
in accordance with the terms of the related Mortgage Note.
S-IIIE-6
SCHEDULE IV
LIST OF FINANCING STATEMENTS:
PERFECTION OF GRANT OF SECURITY INTEREST
BY SELLERS TO DEPOSITOR
==================================== =========================================
SELLER LOCATION
==================================== =========================================
Equity One, Inc. (DE) Secretary of State of Delaware
- ------------------------------------ -----------------------------------------
- ------------------------------------ -----------------------------------------
Equity One, Incorporated (PA) Secretary of Commonwealth of Pennsylvania
- ------------------------------------ -----------------------------------------
- ------------------------------------ -----------------------------------------
Equity One, Inc. (MN) Secretary of State of Minnesota
- ------------------------------------ -----------------------------------------
- ------------------------------------ -----------------------------------------
Equity One Consumer Loan Company, Secretary of State of New Hampshire
Inc.(NH)
- ------------------------------------ -----------------------------------------
- ------------------------------------ -----------------------------------------
Popular Financial Services, LLC (DE) Secretary of State of Delaware
==================================== =========================================
S-IV-1
SCHEDULE V
LIST OF FINANCING STATEMENTS:
PERFECTION OF GRANT OF SECURITY INTEREST
BY DEPOSITOR TO TRUSTEE
===================================== ==========================================
DEPOSITOR LOCATION
===================================== ==========================================
Equity One ABS, Inc. Secretary of State of Delaware
===================================== ==========================================
S-V-1
SCHEDULE VI
LIST OF FINANCING STATEMENTS:
PERFECTION OF SALE
BY SELLERS TO DEPOSITOR
===================================== ==========================================
SELLER LOCATION
===================================== ==========================================
Equity One, Inc. (DE) Secretary of State of Delaware
- ------------------------------------- ------------------------------------------
- ------------------------------------- ------------------------------------------
Equity One, Incorporated (PA) Secretary of Commonwealth of Pennsylvania
- ------------------------------------- ------------------------------------------
- ------------------------------------- ------------------------------------------
Equity One, Inc. (MN) Secretary of State of Minnesota
- ------------------------------------- ------------------------------------------
- ------------------------------------- ------------------------------------------
Equity One Consumer Loan Company, Secretary of State of New Hampshire
Inc.(NH)
- ------------------------------------- ------------------------------------------
- ------------------------------------- ------------------------------------------
Popular Financial Services, LLC (DE) Secretary of State of Delaware
===================================== ==========================================
S-VI-1
SCHEDULE VII
LIST OF FINANCING STATEMENTS:
PERFECTION OF SALE
BY DEPOSITOR TO TRUSTEE
======================================== =======================================
DEPOSITOR LOCATION
======================================== =======================================
Equity One ABS, Inc. Secretary of State of Delaware
======================================== =======================================
S-VII-1
EXHIBIT A-1
Form of Class AF-[] Certificate
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
Certificate No. :
Cut-off Date: : March 31, 2002
First Distribution Date: : May 28, 2002
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Class Certificate Balance
of all Certificates of
this Class: : $
CUSIP :
Pass-Through Rate : %
Equity One ABS, Inc.
Mortgage Pass-Through Certificates, Series 2002-2
Class AF-[]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust
Fund consisting primarily of a pool of fixed and adjustable rate
mortgage loans divided into two groups, Group I and Group II
(collectively, the "Loans"). The Loans in Group I are secured by first
or second liens on one- to four-family residential properties and
first or second liens on mixed commercial/residential use properties.
The Loans in Group II are secured by first liens on one- to
four-family residential properties.
Equity One ABS, Inc., as Depositor
A-1-1
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Sellers, the Servicer or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that ___________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balances
of all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Loans deposited by Equity One ABS, Inc. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, Equity One, Inc.
(DE), Equity One, Incorporated, (PA), Equity One, Inc. (MN), Equity One Consumer
Loan Company, Inc. (NH) and Popular Financial Services, LLC (DE), as sellers (in
such capacity, collectively, the "Sellers"), Equity One, Inc. (DE) as servicer
(in such capacity, the "Servicer"), and JPMorgan Chase Bank, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated _____________________, 20__ JPMorgan Chase Bank,
Countersigned: as Trustee
By: __________________________________ By: __________________________________
Authorized Signatory of
JPMorgan Chase Bank,
as Trustee
A-1-2
EXHIBIT A-2
Form of Class AV-1 Certificate
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No. :
Cut-off Date: : March 31, 2002
First Distribution Date: : May 28, 2002
Initial Class Certificate Balance
of this Certificate
("Denomination") : $
Initial Class Certificate Balance
of all Certificates of
this Class: : $
CUSIP :
Pass-Through Rate : %
Equity One ABS, Inc.
Mortgage Pass-Through Certificates, Series 2002-2
Class AV-1
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust
Fund consisting primarily of a pool of fixed and adjustable rate
mortgage loans divided into two groups, Group I and Group II
(collectively, the "Loans"). The Loans in Group I are secured by first
or second liens on one- to four-family residential properties and
first or second liens on mixed commercial/residential use properties.
The Loans in Group II are secured by first liens on one- to
four-family residential properties.
Equity One ABS, Inc., as Depositor
A-2-1
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Sellers, the Servicer or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balances
of all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Loans deposited by Equity One ABS, Inc. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, Equity One, Inc.
(DE), Equity One, Incorporated, (PA), Equity One, Inc. (MN), Equity One Consumer
Loan Company, Inc. (NH) and Popular Financial Services, LLC (DE), as sellers (in
such capacity, collectively, the "Sellers"), Equity One, Inc. (DE) as servicer
(in such capacity, the "Servicer"), and JPMorgan Chase Bank, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated _____________________, 20__ JPMorgan Chase Bank,
Countersigned: as Trustee
By: __________________________________ By: __________________________________
Authorized Signatory of
JPMorgan Chase Bank,
as Trustee
A-2-2
EXHIBIT A-3
Form of Class A-IO Certificate
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No. :
Cut-off Date: : March 31, 2002
First Distribution Date: : May 28, 2002
Initial Notional Amount
of this Certificate
("Denomination") : $
Initial Notional Amount
of all Certificates of
this Class: : $
CUSIP :
Pass-Through Rate : %
Equity One ABS, Inc.
Mortgage Pass-Through Certificates, Series 2002-2
Class A-IO
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of fixed and adjustable rate mortgage loans
divided into two groups, Group I and Group II (collectively, the "Loans"). The
Loans in Group I are secured by first or second liens on one- to four-family
residential properties and first or second liens on mixed commercial/residential
use properties. The Loans in Group II are secured by first liens on one- to
four-family residential properties.
Equity One ABS, Inc., as Depositor
A-3-1
This Certificate does not have a principal balance but will accrue
interest as set forth herein on a notional balance equal to its Notional Amount.
This Certificate is not entitled to payments of interest after the Distribution
Date in April 2004. The Notional Amount at any time may be less than the
Notional Amount as set forth herein. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Sellers, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that ___________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Notional Amount of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Loans
deposited by Equity One ABS, Inc. (the "Depositor"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "Agreement") among the Depositor, Equity One, Inc. (DE),
Equity One, Incorporated, (PA), Equity One, Inc. (MN), Equity One Consumer Loan
Company, Inc. (NH) and Popular Financial Services, LLC (DE), as sellers (in such
capacity, collectively, the "Sellers"), Equity One, Inc. (DE) as servicer (in
such capacity, the "Servicer"), and JPMorgan Chase Bank, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated _____________________, 20__ JPMorgan Chase Bank,
Countersigned: as Trustee
By: __________________________________ By: __________________________________
Authorized Signatory of
JPMorgan Chase Bank,
as Trustee
A-3-2
EXHIBIT B-1
Form of Class R Certificate
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN THREE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE REPRESENTS THE "TAX MATTERS PERSON RESIDUAL INTEREST" ISSUED
UNDER THE AGREEMENT REFERRED TO BELOW AND MAY NOT BE TRANSFERRED TO ANY PERSON
EXCEPT IN CONNECTION WITH THE ASSUMPTION BY THE TRANSFEREE OF THE DUTIES OF THE
SERVICER UNDER SUCH AGREEMENT.]
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF
THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF
COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
B-1-1
Certificate No. :
Cut-off Date : March 31, 2002
Equity One ABS, Inc.
Mortgage Pass-Through Certificates, Series 2002-2
evidencing the distributions allocable to the Class R Certificates
with respect to a Trust Fund consisting primarily of a pool of fixed
and adjustable rate mortgage loans divided into two groups, Group I
and Group II (collectively, the "Loans"). The Loans in Group I are
secured by first or second liens on one- to four-family residential
properties and first or second liens on mixed commercial/residential
use properties. The Loans in Group II are secured by first liens on
one- to four-family residential properties.
Equity One ABS, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Sellers, the Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Loans are guaranteed or insured by any governmental agency
or instrumentality.
This certifies that ____________________ is the registered owner of
the Percentage Interest (set forth on the face hereof) in certain monthly
distributions with respect to a Trust Fund consisting of the Loans deposited by
Equity One ABS, Inc. (the "Depositor"). The Trust Fund was created pursuant to a
Pooling and Servicing Agreement dated as of the Cut-off Date specified above
(the "Agreement") among the Depositor, Equity One, Inc. (DE), Equity One,
Incorporated, (PA), Equity One, Inc. (MN), Equity One Consumer Loan Company,
Inc. (NH) and Popular Financial Services, LLC (DE), as sellers (in such
capacity, collectively, the "Sellers") and Equity One, Inc. (DE) as servicer (in
such capacity, the "Servicer"), and JPMorgan Chase Bank, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class R
Certificate at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York.
Any proposed transfer of a Class R Certificate shall be subject to the
restrictions on transfer described in Section 5.02 of the Agreement.
No transfer of a Class R Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code, nor a person acting
on behalf of any such plan, which representation letter shall not be an expense
of the Trustee or the Servicer or (ii) in the case of any such Class R
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or Section 4975 of the Code (or comparable provisions of any
subsequent enactment), or a trustee of any such plan or any other person acting
on behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee
and the Servicer to the effect that the purchase or holding of such Class R
Certificate will not result in the assets of the Trust Fund being deemed to be
"plan assets" and subject to the prohibited transaction provisions of ERISA and
the Code and will not subject the Trustee or the Servicer to any
B-1-2
obligation in addition to those undertaken in the Agreement, which Opinion of
Counsel shall not be an expense of the Trustee or the Servicer. Notwithstanding
anything else to the contrary herein, any purported transfer of a Class R
Certificate to or on behalf of an employee benefit plan subject to ERISA or to
the Code without the opinion of counsel satisfactory to the Trustee as described
above shall be void and of no effect.
Each Holder of this Class R Certificate will be deemed to have agreed
to be bound by the restrictions of the Agreement, including but not limited to
the restrictions that (i) each person holding or acquiring any Ownership
Interest in this Class R Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Class R Certificate may be transferred without
delivery to the Trustee of (a) a transfer affidavit of the proposed transferee
and (b) a transfer certificate of the transferor, each of such documents to be
in the form described in the Agreement, (iii) each person holding or acquiring
any Ownership Interest in this Class R Certificate must agree to require a
transfer affidavit and to deliver a transfer certificate to the Trustee as
required pursuant to the Agreement, (iv) each person holding or acquiring an
Ownership Interest in this Class R Certificate must agree not to transfer an
Ownership Interest in this Class R Certificate if it has actual knowledge that
the proposed transferee is not a Permitted Transferee and (v) any attempted or
purported transfer of any Ownership Interest in this Class R Certificate in
violation of such restrictions will be absolutely null and void and will vest no
rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ______________________, 20__
JPMorgan Chase Bank,
as Trustee
By: _______________________________
Countersigned:
By: _______________________________
Authorized Signatory of
JPMorgan Chase Bank,
as Trustee
B-1-3
EXHIBIT B-2
Form of Class X Certificate
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (I) A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR (II) IF THIS CERTIFICATE HAS BEEN THE SUBJECT OF
AN ERISA QUALIFYING UNDERWRITING, A REPRESENTATION THAT THE TRANSFEREE IS
PURCHASING SUCH CERTIFICATE WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY
GENERAL ACCOUNT", AS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTCE 95-60") AND THAT THE PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE
COVERED UNDER SECTIONS I AND III OF PTCE 95-60, OR (III) AN OPINION OF COUNSEL
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR
TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
B-2-1
Certificate No. : 1
Cut-off Date : March 31, 2002
Percentage Interest : __.__%
Equity One ABS, Inc.
Mortgage Pass-Through Certificates, Series 2002-2
evidencing the distributions allocable to the Class X Certificates
with respect to a Trust Fund consisting primarily of a pool of fixed
and adjustable rate mortgage loans divided into two groups, Group I
and Group II (collectively, the "Loans"). The Loans in Group I are
secured by first or second liens on one- to four-family residential
properties and first or second liens on mixed commercial/residential
use properties. The Loans in Group II are secured by first liens on
one- to four-family residential properties.
Equity One ABS, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Sellers, the Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Loans are guaranteed or insured by any governmental agency
or instrumentality.
This certifies that Equity One ABS, Inc. is the registered owner of
the Percentage Interest (set forth on the face hereof) in certain monthly
distributions with respect to a Trust Fund consisting of the Loans deposited by
Equity One ABS, Inc. (the "Depositor"). The Trust Fund was created pursuant to a
Pooling and Servicing Agreement dated as of the Cut-off Date specified above
(the "Agreement") among the Depositor, Equity One, Inc. (DE), Equity One,
Incorporated, (PA), Equity One, Inc. (MN), Equity One Consumer Loan Company,
Inc. (NH) and Popular Financial Services, LLC (DE), as sellers (in such
capacity, collectively, the "Sellers") and Equity One, Inc. (DE), as servicer
(in such capacity, the "Servicer"), and JPMorgan Chase Bank, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
No transfer of a Class X Certificate shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code, nor a person acting
on behalf of any such plan, which representation letter shall not be an expense
of the Trustee or the Servicer, (ii) if the Class X Certificate has been the
subject of an ERISA Qualifying Underwriting and the transferee is an insurance
company, a representation that the transferee is an insurance company which is
purchasing such Certificate with funds contained in an "insurance company
general account", as defined in Prohibited Transaction Class Exemption 95-60
("PTCE 95-60") and that the purchase and holding of the Certificate is covered
under Sections I and III of PTCE 95-60 or (iii) in the case of any such Class X
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or Section 4975 of the Code (or comparable provisions of any
subsequent enactment), or a trustee of any such plan or any other person acting
on behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee
and the Servicer to the effect that the purchase or holding of such Class X
Certificate will not result in the assets of the Trust Fund being deemed to be
"plan assets" and subject to the prohibited transaction provisions of ERISA and
the Code and will not subject the Trustee or the Servicer to any obligation in
addition to those undertaken
B-2-2
in the Agreement, which Opinion of Counsel shall not be an expense of the
Trustee or the Servicer. Notwithstanding anything else to the contrary herein,
any purported transfer of a Class X Certificate to or on behalf of an employee
benefit plan subject to ERISA or to the Code without the opinion of counsel
satisfactory to the Trustee as described above shall be void and of no effect.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class X
Certificate at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ______________________, 20__
JPMorgan Chase Bank,
as Trustee
By: _______________________________
Name:
Title:
Countersigned:
By: _______________________________
Authorized Signatory of
JPMorgan Chase Bank,
as Trustee
B-2-3
EXHIBIT C
Form of Reverse of Certificates
Equity One ABS, Inc.
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as Equity One ABS, Inc. Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office or the office or agency
maintained by the Trustee
C-1
in New York, New York, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Certificate Registrar duly executed by the
Holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, the Sellers and the Trustee and any agent
of the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Depositor, the Trustee, nor any such agent shall be affected by any notice to
the contrary.
On any Distribution Date on which the Pool Principal Balance is less
than 10% of the Cut-off Date Pool Principal Balance, the Servicer will have the
option to repurchase, in whole, from the Trust Fund all remaining Loans and all
property acquired in respect of the Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon the later of the maturity or other liquidation (or any advance
with respect thereto) of the last Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person named
in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
C-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including
postal zip code of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
for the account of _____________________________________________________________
account number________________________ or, if mailed by check, to______________.
Applicable statements should be mailed to ______________________________________
This information is provided by ________________________________________________
the assignee named above, or ___________________________________________________
_______________________________________________________________________________,
as its agent.
C-3
EXHIBIT D
Form of Initial Certification Of Trustee
[date]
[Depositor]
[Servicer]
[Sellers]
________________________
________________________
Re: Pooling and Servicing Agreement among Equity One ABS, Inc.,
as Depositor, Equity One, Inc. (DE), Equity One,
Incorporated, (PA), Equity One, Inc. (MN), Equity One
Consumer Loan Company, Inc. (NH) and Popular Financial
Services, LLC (DE) as Sellers, Equity One, Inc. (DE) as
Servicer, and JPMorgan Chase Bank, as Trustee, Mortgage
Pass-Through Certificates, Series 2002-2
------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that, as to each Loan listed in the Loan Schedule
(other than any Loan paid in full or listed on the attached schedule) it has
received the original Mortgage Note or an executed Affidavit of Lost Note in the
form attached hereto as Annex I, and confirms that, for all Mortgage Notes
received, the name on the Mortgage Note matches that on the Loan Schedule,
except as set forth on the Exception Report attached hereto.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Loans identified on the
Loan Schedule, or (ii) the collectibility, insurability, effectiveness or
suitability of any such Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
JPMorgan Chase Bank,
as Trustee
By:_____________________________
Name:
Title:
D-1
Annex I
AFFIDAVIT OF LOST NOTE
----------------------
STATE OF PENNSYLVANIA :
: SS
COUNTY OF PHILADELPHIA :
The undersigned, being duly sworn, deposes and says that:
1. ____________________, a __________________ corporation (the
"Holder") is the owner of a note dated _______________________ of
___________________________, in the principal amount of $_______________ (the
"Note").
2. The Holder has not pledged or disposed of the Note in any manner
whatsoever to any person nor given any person authority to transfer or pledge
the same.
3. The Holder does not know of the whereabouts of the Note and
believes the Note has been lost or destroyed.
4. The Holder makes this affidavit to JPMorgan Chase Bank ("Trustee")
in order to induce the Trustee to issue its initial certification pursuant to
Section 2.02 of the Pooling and Servicing Agreement dated as of March 31, 2002
among the Trustee, the Holder and the other parties set forth therein, without
an exception therefrom.
5. The Holder and its successors and assigns shall at all time
indemnify and save harmless the Trustee against all loss or damage it might
suffer by reason of the issuance and delivery of a replacement note for the
Note, including all cost, charges, expenses and claims of every kind and nature.
6. If the Note shall be found the Holder shall promptly deliver the
same to the Trustee in order that it may be cancelled.
7. The undersigned is duly authorized to execute this Affidavit on
behalf of the Holder.
Date: ______________________________ [SELLER]
____________________________________ By:_____________________________
Witness Name:
Title:
JPMorgan Chase Bank,
as Trustee
By:_____________________________
Name:
Title:
D-2
EXHIBIT E
Form of Final Certification Of Trustee
[date]
[Depositor]
[Servicer]
[Seller]
_____________________
_____________________
Re: Pooling and Servicing Agreement among Equity One ABS, Inc.,
as Depositor, Equity One, Inc. (DE), Equity One,
Incorporated, (PA), Equity One, Inc. (MN), Equity One
Consumer Loan Company, Inc. (NH) and Popular Financial
Services, LLC (DE) as Sellers and Equity One, Inc. (DE) as
Servicer, and JPMorgan Chase Bank, as Trustee, Mortgage
Pass-Through Certificates, Series 2002-2
------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that as to each Loan listed in the Loan Schedule
(other than any Loan paid in full or listed on the attached Document Exception
Report), except as set forth on the Exception Report attached hereto, it has
received:
(i) the original Mortgage Note and confirms that the name on the
Mortgage Note matches that on the Loan Schedule;
(ii) the original recorded Mortgage (unless such Mortgage has not yet
been returned by the relevant recording office, as certified by the Depositor;
(iii) the original recorded assignment of the Mortgage in the form
provided in Section 2.01(c) of the Pooling and Servicing Agreement;
(iv) the original or duplicate original recorded assignment or
assignments of the Mortgage necessary to show a complete chain of assignment
from the originator to the Seller, unless the Depositor has certified that the
related assignment has not been returned from the applicable recording office;
and
(v) the original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original preliminary
title report or an original title commitment, or a copy thereof certified by the
title company, unless the Depositor has certified that such title policy has not
yet been received from the applicable title insurance company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Loan, and (b) the information set forth in items (b), (c),
E-1
(d) and (h) of the definition of the "Loan Schedule" in Article I of the Pooling
and Servicing Agreement accurately reflects information set forth in the
Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Loans identified on the
Loan Schedule, or (ii) the collectibility, insurability, effectiveness or
suitability of any such Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
JPMorgan Chase Bank,
as Trustee
By:_____________________________________
Name:
Title:
E-2
EXHIBIT F
Form of Transfer Affidavit
Equity One ABS, Inc.
Mortgage Pass-Through Certificates
Series 2002-2
STATE OF )
) ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of ___________________, the proposed
Transferee of an Ownership Interest in a Class R Certificate (the "Certificate")
issued pursuant to the Pooling and Servicing Agreement, (the "Agreement"),
relating to the above-referenced Series, by and among Equity One ABS, Inc., as
depositor (the "Depositor"), Equity One, Inc. (DE), Equity One, Incorporated,
(PA), Equity One, Inc. (MN), Equity One Consumer Loan Company, Inc. (NH) and
Popular Financial Services, LLC (DE), as sellers, Equity One, Inc. (DE) as
servicer and JPMorgan Chase Bank, as Trustee. Capitalized terms used, but not
defined herein or in Exhibit 1 hereto, shall have the meanings ascribed to such
terms in the Agreement. The Transferee has authorized the undersigned to make
this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee acknowledges that it understands that as the holder
of the residual interest, the Transferee may incur tax liabilities in excess of
any cash flows the residual interest generates and the Transferee intends to pay
any taxes associated with its holding the residual interest as those taxes
become due.
4. The Transferee represents that the conditions specified in either
or both of subparagraph (a) and (b) of this paragraph are satisfied:
(a) The requirements of this subparagraph (a) will be met if: the
present value of the anticipated tax liabilities associated with holding the
residual interest does not exceed the sum of: (i) the present value of any
consideration given to the Transferee to acquire the interest, (ii) the present
value of the expected future distributions on the interest, and (iii) the
present value of the anticipated tax savings associated with holding the
interest as the REMIC generates losses. For purposes of this subparagraph (a),
the Transferee is assumed to pay tax at a rate equal to the highest rate of tax
specified in section 11(b)(1) of the Code, and present values are computed using
a discount rate equal to the applicable federal rate prescribed by section
1274(d) of the Code, compounded semiannually, or such other rate that the
Transferee can demonstrate it borrows substantial funds at in the course of its
trade or business from unrelated third parties.
(b) The requirements of this subparagraph (b) will be met if: (i) at
the time of the transfer, and at the close of each of the Transferee's two
fiscal years preceding the year of transfer the Transferee's gross
F-1
assets for financial reporting purposes exceed $100 million and its net assets
for financial reporting purposes exceed $10 million, (ii) The Transferee is an
eligible corporation (within the meaning of section 860L(a)(2) of the Code),
(iii) The Transferee is not a foreign branch of an eligible corporation or any
other arrangement by which the Residual interest will at any time be subject to
net tax by a foreign country or possession of the United States, (iv) The
Transferee agrees, in executing this Certificate that any subsequent transfer of
the Residual interest will be to another eligible corporation in a "qualifying
transaction," and (v) the Transferee has not indicated to, nor provided to the
Transferor any grounds to believe that, the Transferee will not pay the taxes
associated with the residual interest. For purposes of applying this
subparagraph (b), the Transferee's gross assets and net assets do not include
any obligation of any person related to the Transferee within the meaning of
section 860L(g) of the Code, or any other asset if a principal purpose for
holding or acquiring the asset is to permit the Transferee to satisfy the
requirements of this subparagraph (b), and a "qualifying transaction" is a
transaction that satisfies the requirements of ss.4 of Rev. Proc. 2001-12,
2002-2 I.R.B. 35.
5. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
6. The Transferee has been advised of, and understands that a tax will
be imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
7. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
8. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit G to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
F-2
9. The Transferee does not have the intention to impede the assessment
or collection of any tax legally required to be paid with respect to the
Certificate.
10. The Transferee's taxpayer identification number is ______________.
11. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
12. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
13. The Transferee is not an employee benefit plan that is subject to
ERISA or a plan or arrangement that is subject to Section 4975 of the Code, and
the Transferee is not acting on behalf of such a plan or arrangement or using
the assets of any such plan or arrangement to effect the transfer.
14. The Transferee has provided financial statements or other
financial information requested by the transferor in connection with the
transfer of the Class R Certificates to permit the transferor to assess the
financial capability of the Transferee to pay any such taxes.
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this _____ day of _________________, 20___.
________________________________________
PRINT NAME OF TRANSFEREE
By:_____________________________________
Name:___________________________________
Title:__________________________________
[Corporate Seal]
ATTEST:
____________________________
[Assistant] Secretary
Personally appeared before me the above-named _______________, known
or proved to me to be the same person who executed the foregoing instrument and
to be the ___________________ of the Transferee, and acknowledged that he
executed the same as his free act and deed and the free act and deed of the
Transferee.
Subscribed and sworn before me this _____ day of ______________,
20___.
________________________________
NOTARY PUBLIC
My Commission expires the __ day
of ______________, 20__.
F-3
EXHIBIT 1
to EXHIBIT F
Certain Definitions
-------------------
"Ownership Interest": As to any Class R Certificate, any ownership
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
"Permitted Transferee": Any person other than (a) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (b) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (c) an organization
(except certain farmers' cooperatives described in section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in section 860E(c)(l) of the Code) with respect to
any Class R Certificate, (d) rural electric and telephone cooperatives described
in section 1381(a)(2)(C) of the Code, (e) a Person that is not (i) a citizen or
resident of the United States, (ii) a corporation or partnership (or other
entity properly treated as a corporation or partnership for U.S. federal income
tax purposes) created or organized in or under the laws of the United States,
any state thereof or the District of Columbia, (iii) an estate whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States, or (iv) a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States Persons have authority
to control all substantial decisions of the trust, unless such Person listed in
clause (i), (ii), (iii) or (iv) above has furnished the transferor and the
Trustee with a duly completed Internal Revenue Service Form W-8ECI and (f) any
other Person so designated by the Depositor based upon an Opinion of Counsel
that the Transfer of an Ownership Interest in a Class R Certificate to such
Person may cause any REMIC hereunder to fail to qualify as one or more REMICs at
any time that the Certificates are outstanding. The terms "United States,"
"State" and "International Organization" shall have the meanings set forth in
section 7701 of the Code or successor provisions. A corporation will not be
treated as an instrumentality of the United States or of any State or political
subdivision thereof for these purposes if all of its activities are subject to
tax and, with the exception of the Federal Home Loan Mortgage Corporation, a
majority of its board of directors is not selected by such government unit.
"Person": Any individual, corporation, partnership, joint venture,
bank, joint stock company, trust (including any beneficiary thereof),
unincorporated organization or government or any agency or political subdivision
thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
F-4
EXHIBIT 2
to EXHIBIT F
Section 5.02(c) of the Agreement
--------------------------------
(c) Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Class R
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest
in a Class R Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in a Class R Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Class R Certificate
unless, in addition to the certificates required to be delivered to
the Trustee under subparagraph (b) above, the Trustee shall have been
furnished with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form attached hereto as
Exhibit F.
(iii) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall agree (A) to obtain a Transfer
Affidavit from any other Person to whom such Person attempts to
Transfer its Ownership Interest in a Class R Certificate, (B) to
obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer of
a Class R Certificate and (C) not to Transfer its Ownership Interest
in a Class R Certificate or to cause the Transfer of an Ownership
Interest in a Class R Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Class R Certificate in violation of the provisions of
this Section 5.02(c) shall be absolutely null and void and shall vest
no rights in the purported Transferee. If any purported transferee
shall become a Holder of a Class R Certificate in violation of the
provisions of this Section 5.02(c), then the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Class R
Certificate. The Trustee shall be under no liability to any Person for
any registration of Transfer of a Class R Certificate that is in fact
not permitted by this Section or for making any payments due on such
Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long
as the Transfer was registered after receipt of the related Transfer
Affidavit, Transferor Certificate and either the Rule 144A Letter or
the Investment Letter. The Trustee shall be entitled but not obligated
to recover from any Holder of a Class R Certificate that was in fact
not a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all
payments made on such Class R Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of
such Certificate.
F-6=5
(v) The Depositor shall use its best efforts to make
available, upon receipt of written request from the Trustee, all
information necessary to compute any tax imposed under Section 860E(e)
of the Code as a result of a Transfer of an Ownership Interest in a
Class R Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Class R Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Class R Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee, the Sellers
or the Servicer, to the effect that the elimination of such restrictions will
not cause the Trust Fund hereunder to fail to qualify as one or more REMICs at
any time that the Certificates are outstanding or result in the imposition of
any tax on the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any Ownership Interest in a Class R Certificate hereby
consents to any amendment of this Agreement which, based on an Opinion of
Counsel furnished to the Trustee, is reasonably necessary (A) to ensure that the
record ownership of, or any beneficial interest in, a Class R Certificate is not
transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (B) to provide for a means to compel the Transfer of a Class R
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
F-6
EXHIBIT G
Form of Transferor Certificate
________________________
Date
Equity One ABS, Inc.
103 Springer Building
3411 Silverside Road
Wilmington, Delaware 19810
Attention: _______________
JPMorgan Chase Bank
___________________________
___________________________
Attention: ____________________________
_____________________
Re: Equity One ABS, Inc. Mortgage Pass-Through Certificates,
Series 2002-2, Class ,
------------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Class R Certificate, we have no
knowledge the Transferee is not a Permitted Transferee.
Very truly yours,
________________________________________
Print Name of Transferor
By: ____________________________________
Authorized Officer
G-1
EXHIBIT H
Form of Investment Letter (Non Rule 144A)
________________________
Date
Equity One ABS, Inc.
103 Springer Building
3411 Silverside Road
Wilmington, Delaware 19810
Attention: ________________________
JPMorgan Chase Bank
___________________________________
___________________________________
Attention: _________________________________
__________________________________
Re: Equity One ABS, Inc. Mortgage Pass-Through Certificates,
Series 2002-2, Class
------------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan or arrangement, nor are we using the assets of any such plan or
arrangement to effect such acquisition, or (ii) we are an insurance company and
are purchasing Certificates, other than the Class R Certificates, that have been
the subject of an ERISA Qualifying Underwriting, we are purchasing the
Certificates with funds contained in an "insurance company general account", as
defined in Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60") and the
purchasing and holding of such Certificates are covered by Sections I and III of
PTCE 95-60, (e) we are acquiring the Certificates for investment for our own
account and not with a view to any distribution of such Certificates (but
without prejudice to our right at all times to sell or otherwise dispose of the
Certificates in accordance with clause (g) below), (f) we have not offered or
sold any Certificates to, or solicited offers to buy any Certificates from, any
person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action which would result in a violation of Section
5 of the Act, and (g) we will not sell, transfer or otherwise dispose of any
Certificates unless (1) such sale, transfer or other disposition is made
pursuant to
H-1
an effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide an
opinion of counsel satisfactory to the addressees of this Certificate that such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) the purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with any
conditions for transfer set forth in the Pooling and Servicing Agreement.
Very truly yours,
________________________________
Print Name of Transferee
By: ____________________________
Authorized Officer
H-2
EXHIBIT I
Form of Rule 144A Letter
________________________
Date
Equity One ABS, Inc.
103 Springer Building
3411 Silverside Road
Wilmington, Delaware 19810
Attention:________________________
JPMorgan Chase Bank
__________________________________
__________________________________
Attention: ______________________________
______________________________
Re: Equity One ABS, Inc. Mortgage Pass-Through Certificates,
Series 2002-2, Class ,
------------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan or arrangement, nor are we using the assets of any such plan or
arrangement to effect such acquisition, or (ii) we are an insurance company and
are purchasing Certificates, other than the Class R Certificates, that have been
the subject of an ERISA Qualifying Underwriting, we are purchasing the
Certificates with funds contained in an "insurance company general account", as
defined in Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60") and the
purchasing and holding of such Certificates are covered by Sections I and III of
PTCE 95-60, (e) we have not, nor has anyone acting on our behalf offered,
transferred, pledged, sold or otherwise disposed of the Certificates, any
interest in the Certificates or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute a
distribution of the Certificates under the Act or that would render the
disposition of the Certificates a violation of Section 5 of the Act or require
registration pursuant thereto, nor will act, nor has authorized or will
authorize any person to act, in such manner with respect to the Certificates,
and (f) we are a "qualified institutional buyer" as that term is defined in Rule
144A under the Act and have completed either of the forms of certification to
that effect attached hereto as Annex 1 or Annex 2. We
I-1
are aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Act.
I-2
ANNEX 1 TO EXHIBIT I
- --------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned and/or
invested on a discretionary basis either at least $100,000,000 in securities or,
if Buyer is a dealer, Buyer must own and/or invest on a discretionary basis at
least $10,000,000 in securities (except for the excluded securities referred to
below) as of the end of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A and (ii) the Buyer satisfies the
criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986,
as amended.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to banking
and is supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is attached
hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association
or similar institution, which is supervised and examined by a State or
Federal authority having supervision over any such institutions or is
a foreign savings and loan association or equivalent institution and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is attached
hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar
official or agency of a State, territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality
of the State or its political subdivisions, for the benefit of its
employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
I-3
___ Investment Advisor. The Buyer is an investment advisor registered
under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small Business Investment Act of
1958.
___ Business Development Company. Buyer is a business development company
as defined in Section 202(a) (22) of the Investment Advisors Act of
1940.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) securities issued or guaranteed by the U.S. or any instrumentality
thereof, (iv) bank deposit notes and certificates of deposit, (v) loan
participations, (vi) repurchase agreements, (vii) securities owned but subject
to a repurchase agreement and (viii) currency, interest rate and commodity
swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer will
notify each of the parties to which this certification is made of any changes in
the information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
________________________________
Print Name of Buyer
By:_____________________________
Name:
Title:
Date: __________________________
I-4
ANNEX 2 TO EXHIBIT I
- --------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
___ The Buyer owned $____ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
___ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $_____ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of
Investment Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
5. The Buyer is familiar with Rule 144A and under-stands that the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates are relying and will continue to rely on the statements made herein
because one or more sales to the Buyer will be in reliance on Rule 144A. In
addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned will
notify the parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of the
I-5
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
________________________________________
Print Name of Buyer or Adviser
By:_____________________________________
Name:
Title:
IF AN ADVISER:
________________________________________
Print Name of Buyer
Date:___________________________________
I-6
EXHIBIT J
Form of Request for Release of Documents
Equity One ABS, Inc.
Mortgage Pass-Through Certificates
Series 2002-2
To:___________________________ Attn:___________________________
________________________________
Re: The Pooling & Servicing Agreement dated as of March 31, 2002 among
Equity One, Inc. (DE), Equity One, Incorporated, (PA), Equity One,
Inc. (MN), Equity One Consumer Loan Company, Inc. (NH) and Popular
Financial Services, LLC (DE), as Sellers, Equity One, Inc. (DE) as
Servicer, and Equity One ABS, Inc. as Depositor and JPMorgan Chase
Bank as Trustee
----------------------------------------------------------------------
Ladies and Gentlemen:
In connection with the administration of the Loans held by you as Trustee
for Equity One ABS, Inc., we request the release of the Mortgage File for the
Loan(s) described below, for the reason indicated.
FT Account #: Pool #:
Mortgagor's Name, Address and Zip Code:
Loan Number:
Reason for Requesting Documents (check one)
1. Loan paid in full (_______________________ hereby certifies that all
amounts have been received.)
2. Loan Liquidated (___________________________ hereby certifies that all
proceeds of foreclosure, insurance, or other liquidation have been
finally received.)
3. Loan in Foreclosure.
4. Other (explain):
The Documents and any proceeds thereof, including any proceeds of proceeds,
coming into the possession or control of the Servicer shall be deposited into
the Certificate Account, and the Servicer shall keep the Documents and any
proceeds separate and distinct from all other property in the Servicer's
possession, custody or control.
J-1
If item 1 or 2 above is checked, and if all or part of the Mortgage File
was previously released to us, please release to us our previous receipt on file
with you, as well as any additional documents in your possession relating to the
above-specified Loan. If item 3 or 4 is checked, upon return of all of the above
documents to you as Trustee, please acknowledge your receipt by signing in the
space indicated below, and returning this form.
________________________________________
________________________________________
________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
Date:___________________________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:_____________________________________
Name:___________________________________
Title:__________________________________
Date:___________________________________
J-2
EXHIBIT K
Copy of Certificate Guarantee Insurance Policy
SEE ATTACHED
K-1
EXHIBIT L
Form of Reporting Document
SEE ATTACHED
L-1
EXHIBIT M
Yield Maintenance Agreement
SEE ATTACHED
M-1