XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
Depositor
XXXXX FARGO BANK, N.A.
Master Servicer and Securities Administrator
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of January 1, 2005
_________________________________
Mortgage Pass-Through Certificates, MLMI Series 2005-A1
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS................................................................................3
Section 1.02 Accounting........................................................................45
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES...........................46
Section 2.01 Conveyance of Mortgage Loans to Trustee...........................................46
Section 2.02 Acceptance of Mortgage Loans by Trustee...........................................49
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase Agreement....................52
Section 2.04 Substitution of Mortgage Loans....................................................53
Section 2.05 Issuance of Certificates..........................................................54
Section 2.06 Representations and Warranties Concerning the Depositor...........................55
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS............................................57
Section 3.01 Master Servicer...................................................................57
Section 3.02 REMIC-Related Covenants...........................................................58
Section 3.03 Monitoring of Servicers...........................................................58
Section 3.04 Fidelity Bond.....................................................................59
Section 3.05 Power to Act; Procedures..........................................................59
Section 3.06 Due-on-Sale Clauses; Assumption Agreements........................................60
Section 3.07 Release of Mortgage Files.........................................................60
Section 3.08 Documents, Records and Funds in Possession of Master Servicer
To Be Held for Trustee............................................................61
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies............................62
Section 3.10 Presentment of Claims and Collection of Proceeds..................................63
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies............................63
Section 3.12 Trustee to Retain Possession of Certain Insurance Policies
and Documents.....................................................................63
Section 3.13 Realization Upon Defaulted Mortgage Loans.........................................64
Section 3.14 Compensation for the Master Servicer..............................................64
Section 3.15 REO Property......................................................................64
Section 3.16 Annual Officer's Certificate as to Compliance.....................................65
Section 3.17 Annual Independent Accountant's Servicing Report..................................65
Section 3.18 Reports Filed with Securities and Exchange Commission.............................66
ARTICLE IV ACCOUNTS..................................................................................68
Section 4.01 Protected Accounts................................................................68
Section 4.02 Master Servicer Collection Account................................................69
Section 4.03 Permitted Withdrawals and Transfers from the Master
Servicer Collection Account.......................................................70
Section 4.04 Distribution Account..............................................................71
Section 4.05 Permitted Withdrawals and Transfers from the Distribution Account.................71
ARTICLE V CERTIFICATES..............................................................................74
Section 5.01 The Certificates..................................................................74
Section 5.02 Registration of Transfer and Exchange of Certificates.............................74
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.................................80
Section 5.04 Persons Deemed Owners.............................................................80
ARTICLE VI PAYMENTS TO CERTIFICATEHOLDERS............................................................82
Section 6.01 Distributions on the Certificates.................................................82
Section 6.02 Allocation of Losses..............................................................85
Section 6.03 Payments..........................................................................87
Section 6.04 Statements to Certificateholders..................................................88
Section 6.05 Monthly Advances..................................................................90
Section 6.06 Compensating Interest Payments....................................................90
Section 6.07 Distributions on the REMIC I Regular Interests....................................90
ARTICLE VII THE MASTER SERVICER AND THE DEPOSITOR.....................................................91
Section 7.01 Liabilities of the Master Servicer................................................91
Section 7.02 Merger or Consolidation of the Master Servicer....................................91
Section 7.03 Indemnification of the Trustee, the Master Servicer and the
Securities Administrator..........................................................92
Section 7.04 Limitations on Liability of the Master Servicer and Others........................92
Section 7.05 Master Servicer Not to Resign.....................................................93
Section 7.06 Successor Master Servicer.........................................................94
Section 7.07 Sale and Assignment of Master Servicing...........................................94
ARTICLE VIII DEFAULT...................................................................................95
Section 8.01 Events of Default.................................................................95
Section 8.02 Trustee to Act; Appointment of Successor..........................................96
Section 8.03 Notification to Certificateholders................................................97
Section 8.04 Waiver of Defaults................................................................97
Section 8.05 List of Certificateholders........................................................98
ARTICLE IX CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR...................................99
Section 9.01 Duties of Trustee.................................................................99
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator....................................................................101
Section 9.03 Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans...................................................103
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Section 9.04 Trustee and Securities Administrator May Own Certificates........................103
Section 9.05 Trustee's and Securities Administrator's Fees and Expenses.......................103
Section 9.06 Eligibility Requirements for Trustee and Securities
Administrator....................................................................104
Section 9.07 Insurance........................................................................104
Section 9.08 Resignation and Removal of the Trustee and Securities
Administrator....................................................................105
Section 9.09 Successor Trustee and Successor Securities Administrator.........................106
Section 9.10 Merger or Consolidation of Trustee or Securities Administrator...................106
Section 9.11 Appointment of Co-Trustee or Separate Trustee....................................106
Section 9.12 Federal Information Returns and Reports to
Certificateholders; REMIC Administration.........................................108
ARTICLE X TERMINATION..............................................................................110
Section 10.01 Termination Upon Repurchase by the Depositor or its
Designee or Liquidation of the Mortgage Loans....................................110
Section 10.02 Additional Termination Requirements..............................................111
ARTICLE XI MISCELLANEOUS PROVISIONS.................................................................113
Section 11.01 Intent of Parties................................................................113
Section 11.02 Amendment........................................................................113
Section 11.03 Recordation of Agreement.........................................................114
Section 11.04 Limitation on Rights of Certificateholders.......................................114
Section 11.05 Acts of Certificateholders.......................................................115
Section 11.06 Governing Law....................................................................116
Section 11.07 Notices..........................................................................116
Section 11.08 Severability of Provisions.......................................................117
Section 11.09 Successors and Assigns...........................................................117
Section 11.10 Article and Section Headings.....................................................117
Section 11.11 Counterparts.....................................................................117
Section 11.12 Notice to Rating Agencies........................................................117
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EXHIBITS
Exhibit A-1 - Form of Class A and Class M Certificates
Exhibit A-2 - Form of Class B Certificates
Exhibit A-3 - Form of Class R Certificates
Exhibit B - Mortgage Loan Schedule
Exhibit C - [Reserved]
Exhibit D - Request for Release of Documents
Exhibit E-1 - Form of Transfer Affidavit pursuant to Section 860E(e)(4)
Exhibit E-2 - Form of Transferor Certificate
Exhibit F-1 - Form of Transferor Representation Letter
Exhibit F-2 - Form of Investor Representation Letter
Exhibit F-3 - Form of Rule 144A Letter
Exhibit G - Form of Custodial Agreement
Exhibit H-1 to H-5 - Servicing Agreements
Exhibit I-1 to I-5 - Assignment Agreements
Exhibit J - Mortgage Loan Purchase Agreement
Exhibit K - Form Certification to be Provided by the Master Servicer
with Form 10-K
v
POOLING AND SERVICING AGREEMENT
-------------------------------
This Pooling and Servicing Agreement is dated as of January 1, 2005
(the "Agreement"), among XXXXXXX XXXXX MORTGAGE INVESTORS, INC., as depositor
(the "Depositor"), XXXXX FARGO BANK, N.A., as master servicer (in such capacity,
the "Master Servicer") and as securities administrator (in such capacity, the
"Securities Administrator") and WACHOVIA BANK, NATIONAL ASSOCIATION, as trustee
(the "Trustee").
PRELIMINARY STATEMENT
The Depositor intends to sell mortgage pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple classes,
which in the aggregate will evidence the entire beneficial ownership interest in
the Mortgage Loans (as defined herein). As provided herein, the Trustee will
make, in accordance with Section 9.12, an election to treat the entire
segregated pool of assets described in the definition of REMIC I (as defined
herein), and subject to this Agreement, as a real estate mortgage investment
conduit (a "REMIC") for federal income tax purposes and such segregated pool of
assets will be designated as "REMIC I." The REMIC I Regular Interests will be
the "regular interests" in REMIC I and the Class R-I Certificates will be the
sole class of "residual interests" in REMIC I for purposes of the REMIC
Provisions (as defined herein) under the federal income tax law. A segregated
pool of assets consisting of the REMIC I Regular Interests will be designated as
"REMIC II" and the REMIC Administrator will make a separate REMIC election with
respect thereto. The Class I-A, Class II-A-1, Class II-A-2, Class III-A, Class
M-1, Class M-2, Class M-3, Class B-1, Class B-2 and Class B-3 Certificates will
be "regular interests" in REMIC II, and the Class R-II Certificates will be the
sole class of "residual interests" therein for purposes of the REMIC Provisions
(as defined herein) under federal income tax law.
The following table irrevocably sets forth the designation, the REMIC I
Pass-Through Rate, the initial Uncertificated Principal Balance and, for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for the REMIC I Regular Interests. The REMIC I
Regular Interests will not be certificated.
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Initial
REMIC I REMIC I Uncertificated Latest Possible
Regular Interest Designation Pass-Through Rate Principal Balance Maturity Date(1)
------------------------------------------------------------------------------------------------------
I-A Variable (2) $ 517.04 December 25, 2035
I-B Variable (2) $ 14,770.04 December 25, 2034
II-A Variable (2) $ 1,310.47 December 25, 2034
II-B Variable (2) $ 37,441.77 December 25, 2034
III-A Variable (2) $ 129.87 December 25, 2034
III-B Variable (2) $ 3,708.07 December 25, 2034
ZZZ Variable (2) $ 559,140,915.43 December 25, 2034
_________________
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the latest
possible maturity date for the Mortgage Loans has been designated as
the "latest possible maturity date" for each REMIC I Regular Interest.
(2) Calculated in accordance with the definition of "REMIC I Pass-Through
Rate" herein.
The following table sets forth the designation, type, Pass-Through
Rate, aggregate Initial Class Certificate Balance, Assumed Final Distribution
Date, initial ratings and certain features for each Class of Certificates
comprising the interests in the Trust Fund created hereunder:
Original Assumed Final
Class Class Certificate Balance Initial Pass-Through Rate Distribution Date
------------------------------------------------------------------------------------------------------
I-A $ 142,530,000.00 Variable December 25, 2034
II-A-1 $ 348,667,000.00 Variable December 25, 2034
II-A-2 $ 12,646,000.00 Variable December 25, 2034
III-A $ 35,782,000.00 Variable December 25, 2034
M-1 $ 7,828,000.00 Variable December 25, 2034
M-2 $ 4,753,000.00 Variable December 25, 2034
M-3 $ 1,957,000.00 Variable December 25, 2034
B-1 $ 1,957,000.00 Variable December 25, 2034
B-2 $ 1,118,000.00 Variable December 25, 2034
B-3 $ 1,960,792.69 Variable December 25, 2034
R-I N/A N/A December 25, 2034
R-II N/A N/A December 25, 2034
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ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless otherwise expressly provided or unless the context otherwise requires,
shall have the meanings specified in this Article.
ABN AMRO: ABN AMRO Mortgage Group, Inc.
ABN AMRO ASSIGNMENT AGREEMENT: Shall mean the Assignment, Assumption
and Recognition Agreement, dated as of January 31, 2005, among ABN AMRO, the
Depositor and the Seller pursuant to which the ABN AMRO Servicing Agreement and
the rights of the Seller thereunder (other than the rights to enforce the
representations and warranties with respect to the ABN AMRO Loans) were assigned
to the Trustee for the benefit of the Certificateholders.
ABN AMRO LOANS: Shall mean those Mortgage Loans serviced by ABN AMRO
pursuant to the ABN AMRO Servicing Agreement.
ABN AMRO SERVICING AGREEMENT: Shall mean the Master Mortgage Loan
Purchase and Servicing Agreement, dated as of August 1, 2004 between MLBUSA and
ABN AMRO, as assigned to the Seller pursuant to the Assignment and Assumption
Agreement, dated as of November 16, 2004 among MLBUSA, the Seller and ABN AMRO.
ACCEPTED MASTER SERVICING PRACTICES: With respect to any Mortgage Loan,
as applicable, either (x) those customary mortgage master servicing practices of
prudent mortgage servicing institutions that master service mortgage loans of
the same type and quality as such Mortgage Loan in the jurisdiction where the
related Mortgaged Property is located, to the extent applicable to the Trustee
or the Master Servicer (except in its capacity as successor to a Servicer), or
(y) as provided in the applicable Servicing Agreement, to the extent applicable
to any Servicer, but in no event below the standard set forth in clause (x).
ACCOUNT: The Master Servicer Collection Account, Distribution Account
and any Protected Account as the context may require.
ACCRUED CERTIFICATE INTEREST: With respect to each Class of
Certificates, an amount equal to the interest accrued during the related
Interest Accrual Period on the Class Certificate Balance thereof at the
then-applicable Pass-Through Rate. Accrued Certificate Interest on any Class of
Certificates will be reduced by the amount of (i) Prepayment Interest Shortfalls
(to the extent not offset by the related Servicer or Master Servicer with a
payment of Compensating Interest as provided in Section 6.06), (ii) the interest
portion of Excess Losses allocated to such Class of Certificates pursuant to
Section 6.02 and (iii) any other interest shortfalls not covered by the
subordination provided by the Class M Certificates and Class B Certificates,
including shortfalls as a result of the Relief Act or similar legislation or
regulations, with all such reductions allocated among all of the Certificates in
proportion to their respective amounts of Accrued Certificate Interest payable
on such Distribution Date which would have resulted absent such reductions.
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AFFILIATE: As to any Person, any other Person controlling, controlled
by or under common control with such Person. "Control" means the power to direct
the management and policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise. "Controlled" and
"Controlling" have meanings correlative to the foregoing. The Trustee may
conclusively presume that a Person is not an Affiliate of another Person unless
a Responsible Officer of the Trustee has actual knowledge to the contrary.
AGREEMENT: This Pooling and Servicing Agreement, including the exhibits
hereto, and all amendments hereof and supplements hereto.
APPLICABLE CREDIT RATING: For any long-term deposit or security, a
credit rating of AAA in the case of Fitch or S&P. For any short-term deposit or
security, or a rating of F-1+ in the case of Fitch or A-l+ in the case of S&P.
APPLICABLE CREDIT SUPPORT PERCENTAGE: With respect to any Class of
Certificates, the sum of the related Class Subordination Percentages of such
Class and all Classes of Subordinate Certificates which have a lower relative
priority of payment than such Class.
APPLICABLE STATE LAW: For purposes of Section 9.12(d), the Applicable
State Law shall be (a) the law of the State of New York and (b) such other state
law whose applicability shall have been brought to the attention of the
Securities Administrator and the Trustee by either (i) an Opinion of Counsel
reasonably acceptable to the Securities Administrator and the Trustee delivered
to it by the Master Servicer or the Depositor, or (ii) written notice from the
appropriate taxing authority as to the applicability of such state law.
APPRAISED VALUE: For any Mortgaged Property related to a Mortgage Loan
other than any Washington Mutual Loan, the amount set forth as the appraised
value of such Mortgaged Property in an appraisal made for the mortgage
originator in connection with its origination of the related Mortgage Loan. With
respect to any Washington Mutual Loan, for any Mortgaged Property or Cooperative
Unit, as applicable, the lesser of (i) the value thereof as determined by an
appraisal made for the originator of the Mortgage Loan at the time of
origination of the Mortgage Loan by an appraiser who met the minimum
requirements of Washington Mutual's Underwriting Guidelines, and (ii) the
purchase price paid for the related Mortgaged Property or Cooperative Unit, as
applicable, by the Mortgagor with the proceeds of the Mortgage Loan, provided,
however, in the case of a Refinanced Mortgage Loan, such value of the Mortgaged
Property or Cooperative Unit, as applicable, is based solely upon the value
determined by an appraisal made for the originator of such Refinanced Mortgage
Loan at the time of origination of such Refinanced Mortgage Loan by an appraiser
who met the minimum requirements under the Washington Mutual's Underwriting
Guidelines.
ASSIGNMENT: An assignment of the Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale of the Mortgage Loan to the Trustee for the benefit of
Certificateholders, which assignment, notice of transfer or equivalent
instrument may be in the form of one or more blanket assignments covering
Mortgages secured by Mortgaged
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Properties located in the same county, if permitted by law and accompanied by an
Opinion of Counsel to that effect.
ASSIGNMENT AGREEMENTS: The ABN AMRO Assignment Agreement, the
Countrywide Assignment Agreement, the First Republic Assignment Agreement, the
National City Assignment Agreement and the Washington Mutual Assignment
Agreement, which are attached hereto as Exhibit I.
ASSUMED FINAL DISTRIBUTION DATE: For all Classes of Certificates,
December 25, 2034, or if such day is not a Business Day, the next succeeding
Business Day.
AVAILABLE FUNDS: For any Distribution Date, the sum of the Group I
Available Funds, the Group II Available Funds and the Group III Available Funds.
AVERAGE LOSS SEVERITY: With respect to any period and each Loan Group,
the fraction obtained by dividing (x) the aggregate amount of Realized Losses
for the related Mortgage Loans for such period by (y) the number of related
Mortgage Loans which had Realized Losses for such period.
BANKRUPTCY CODE: The United States Bankruptcy Code, as amended as
codified in 11 U.S.C. xx.xx. 101-1330.
BANKRUPTCY LOSS COVERAGE AMOUNT: As of any date of determination prior
to the first anniversary of the Cut-off Date, an amount equal to the excess, if
any, of (A) $155,949 over (B) the aggregate amount of Bankruptcy Losses
allocated solely to one or more specific Classes of Certificates in accordance
with Section 6.02. As of any date of determination on or after the first
anniversary of the Cut-off Date, an amount equal to the excess, if any, of (1)
the lesser of (a) the Bankruptcy Loss Coverage Amount calculated as of the close
of business on the Business Day immediately preceding the most recent
anniversary of the Cut-off Date coinciding with or preceding such date of
determination (or, if such date of determination is an anniversary of the
Cut-off Date, the Business Day immediately preceding such date of determination)
(for purposes of this definition, the "Relevant Anniversary") and (b) the
greater of
(A) the greater of (i) 0.0006 times the aggregate
principal balance of all the Mortgage Loans in the Mortgage Pool as of
the Relevant Anniversary having a Loan-to-Value Ratio at origination
which exceeds 75% and (ii) $100,000; and (B) the greater of (i) the
product of (x) an amount equal to the largest difference in the related
Monthly Payment for any Non-Primary Residence Loan remaining in the
Mortgage Pool which had an original Loan-to-Value Ratio greater than
80% that would result if the Net Mortgage Rate thereof was equal to the
greater of (I) 5% or (II) the weighted average (based on the principal
balance of the Mortgage Loans as of the Relevant Anniversary) of the
Net Mortgage Rates of all Mortgage Loans as of the Relevant Anniversary
less 1.25% per annum, (y) a number equal to the weighted average
remaining term to maturity, in months, of all Mortgage Loans with a
Loan-to-Value Ratio of greater than 80% remaining in the Mortgage Pool
as of the Relevant Anniversary, and (z) one plus the quotient of the
number of all Non-Primary Residence Loans with a Loan-to-Value Ratio
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of greater than 80% remaining in the Mortgage Pool divided by the total
number of outstanding Mortgage Loans in the Mortgage Pool as of the
Relevant Anniversary, and (ii) $50,000,
over (2) the aggregate amount of Bankruptcy Losses allocated solely to
one or more specific Classes of Certificates in accordance with Section
6.02 since the Relevant Anniversary.
The Bankruptcy Loss Coverage Amount may be further reduced by the
Depositor (including accelerating the manner in which such coverage is reduced)
provided that prior to any such reduction, the Depositor shall (i) obtain
written confirmation from each Rating Agency that such reduction shall not
reduce the rating assigned to any Class of Certificates by such Rating Agency
below the lower of the then-current rating or the rating assigned to such
Certificates as of the Closing Date by such Rating Agency and (ii) provide a
copy of such written confirmation to the Trustee.
BANKRUPTCY LOSS: With respect to any Mortgage Loan, any Deficient
Valuation or Debt Service Reduction related to such Mortgage Loan as reported by
the applicable Servicer to the Master Servicer.
BOOK-ENTRY CERTIFICATES: Any of the Certificates that shall be
registered in the name of the Depository or its nominee, the ownership of which
is reflected on the books of the Depository or on the books of a Person
maintaining an account with the Depository (directly, as a "Depository
Participant", or indirectly, as an indirect participant in accordance with the
rules of the Depository and as described in Section 5.02 hereof). On the Closing
Date, the Certificates (other than the Class R Certificates and the Private
Certificates) shall be Book-Entry Certificates.
BUSINESS DAY: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which the New York Stock Exchange or Federal Reserve is closed or on
which banking institutions in the jurisdiction in which the Trustee, the Master
Servicer, any Servicer or the Securities Administrator are authorized or
obligated by law or executive order to be closed.
CERTIFICATE: Any mortgage pass-through certificate evidencing a
beneficial ownership interest in the Trust Fund signed and countersigned by the
Trustee.
CERTIFICATEHOLDER OR HOLDER: The Person in whose name a Regular
Certificate is registered in the Certificate Register, except that a
Disqualified Organization or non-U.S. Person shall not be a Holder of a Class R
Certificate for any purpose hereof.
CERTIFICATE OWNER: With respect to each Book-Entry Certificate, any
beneficial owner thereof.
CERTIFICATE REGISTER AND CERTIFICATE REGISTRAR: The register maintained
and registrar appointed pursuant to Section 5.02 hereof.
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CLASS: Collectively, Certificates which have the same priority of
payment and bear the same class designation and the form of which is identical
except for variation in the Percentage Interest evidenced thereby.
CLASS A CERTIFICATE: Any of the Class I-A, Class II-A-1, Class II-A-2
and Class III-A Certificates as designated on the face thereof substantially in
the form annexed hereto as Exhibit A-1, executed by the Trustee and
authenticated and delivered by the Trustee, representing the right to
distributions as set forth herein and therein.
CLASS I-A CERTIFICATE: Any of the Class I-A Certificates.
CLASS II-A CERTIFICATE: Any of the Class II-A-1 Certificates and Class
II-A-2 Certificates.
CLASS III-A CERTIFICATE: Any of the Class III-A Certificates.
CLASS A CERTIFICATEHOLDER: Any Holder of a Class A Certificate.
CLASS B CERTIFICATE: Any one of the Class B-1, Class B-2 or Class B-3
Certificates as designated on the face thereof substantially in the form annexed
hereto as Exhibit A-2, executed by the Trustee and authenticated and delivered
by the Trustee, representing the right to distributions as set forth herein and
therein.
CLASS B CERTIFICATEHOLDER: Any Holder of a Class B Certificate.
CLASS B PERCENTAGE: The Class B-1 Percentage, Class B-2 Percentage or
Class B-3 Percentage.
CLASS B-1 PERCENTAGE: With respect to any Distribution Date, the lesser
of 100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class B-1 Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) immediately prior to such Distribution Date.
CLASS B-2 PERCENTAGE: With respect to any Distribution Date, the lesser
of 100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class B-2 Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) immediately prior to such Distribution Date.
CLASS B-3 PERCENTAGE: With respect to any Distribution Date, the lesser
of 100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class B-3 Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) immediately prior to such Distribution Date.
CLASS CERTIFICATE BALANCE: With respect to any Certificate as of any
date of determination, the Class Certificate Balance of such Certificate on the
Distribution Date immediately prior to
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such date of determination, plus, in the case of a Subordinate Certificate, any
Subsequent Recoveries added to the Class Certificate Balance of such Certificate
pursuant to Section 6.01, and reduced by the aggregate of (a) all distributions
of principal made thereon on such immediately prior Distribution Date and (b)
without duplication of amounts described in clause (a) above, reductions in the
Class Certificate Balance thereof in connection with allocations thereto of
Realized Losses on the Mortgage Loans and Extraordinary Trust Fund Expenses on
such immediately prior Distribution Date (or, in the case of any date of
determination up to and including the initial Distribution Date, the initial
Class Certificate Balance of such Certificate, as stated on the face thereof);
provided, however, that the Class Certificate Balance of each Subordinate
Certificate of the Class of Subordinate Certificates outstanding with the
highest numerical designation at any given time shall be calculated to equal the
Percentage Interest evidenced by such Certificate multiplied by the excess, if
any, of (A) the then aggregate Stated Principal Balance of the Mortgage Loans
over (B) the then aggregate Class Certificate Balance of all other Classes of
Certificates then outstanding. The Class R Certificates shall not have Class
Certificate Balances.
CLASS M CERTIFICATE: Any one of the Class M-1, Class M-2 or Class M-3
Certificates as designated on the face thereof substantially in the form annexed
hereto as Exhibit A-1, executed by the Trustee and authenticated and delivered
by the Trustee, representing the right to distributions as set forth herein and
therein.
CLASS M CERTIFICATEHOLDER: Any Holder of a Class M Certificate.
CLASS M PERCENTAGE: The Class M-1 Percentage, Class M-2 Percentage or
Class M-3 Percentage.
CLASS M-1 PERCENTAGE: With respect to any Distribution Date, the lesser
of 100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class M-1 Certificates immediately
prior to such date and the denominator of which is the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date.
CLASS M-2 PERCENTAGE: With respect to any Distribution Date, the lesser
of 100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class M-2 Certificates immediately
prior to such date and the denominator of which is the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date.
CLASS M-3 PERCENTAGE: With respect to any Distribution Date, the lesser
of 100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class M-3 Certificates immediately
prior to such date and the denominator of which is the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date.
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CLASS R CERTIFICATES: Any one of the Class R-I Certificates or Class
R-II Certificates executed, authenticated and delivered by the Trustee
substantially in the form annexed hereto as Exhibit A-3 and evidencing the
ownership of an interest designated as a Residual Interest.
CLASS SUBORDINATION PERCENTAGE: With respect to any Distribution Date
and each Class of Subordinate Certificates, the fraction (expressed as a
percentage) the numerator of which is the Class Certificate Balance of such
Class of Subordinate Certificates immediately prior to such Distribution Date
and the denominator of which is the aggregate of the Class Certificate Balances
of all Classes of Certificates immediately prior to such Distribution Date.
CLOSING DATE: January 31, 2005.
CODE: The Internal Revenue Code of 1986, as amended.
COMMISSION: The Securities and Exchange Commission.
COMPENSATING INTEREST PAYMENT: As defined in Section 6.06.
COOPERATIVE: A corporation that has been formed for the purpose of
cooperative apartment ownership.
COOPERATIVE ASSETS: Shares issued by Cooperatives, the related
Cooperative Lease and any other collateral securing the Cooperative Loans.
COOPERATIVE LEASE: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the cooperative apartment occupied
by the Mortgagor and relating to the related Cooperative Assets, which lease or
agreement confers an exclusive right to the holder of such Cooperative Assets to
occupy such apartment.
COOPERATIVE LOAN: The indebtedness of a Mortgagor evidenced by a
Mortgage Note which is secured by Cooperative Assets and which is being sold to
the Depositor pursuant to this Agreement, the Mortgage Loans so sold being
identified in the Mortgage Loan Schedule.
COOPERATIVE STOCK: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
CORPORATE TRUST OFFICE: The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business in
connection with this Agreement shall be administered, which office at the date
of the execution of this instrument is located at Wachovia Bank, National
Association, 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, XX 00000-0000,
Attention: Corporate Trust Group - Xxxxxxx Xxxxx Mortgage Investors, Inc., MLMI
Series 2005-A1, or at such other address as the Trustee may designate from time
to time by notice to the Certificateholders, the Depositor and the Master
Servicer.
COUNTRYWIDE: Countrywide Home Loans Servicing LP
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COUNTRYWIDE ASSIGNMENT AGREEMENT: Shall mean the Assignment, Assumption
and Recognition Agreement, dated as of January 31, 2005, among Countrywide Home
Loans, Inc., Countrywide, the Depositor and the Seller pursuant to which the
Countrywide Servicing Agreement and the rights of the Seller thereunder (other
than the rights to enforce the representations and warranties with respect to
the Countrywide Loans) were assigned to the Depositor for the benefit of the
Certificateholders.
COUNTRYWIDE LOANS: Shall mean those Mortgage Loans serviced by
Countrywide pursuant to the Countrywide Servicing Agreement.
COUNTRYWIDE SERVICING AGREEMENT: Shall mean the Master Mortgage Loan
Purchase and Servicing Agreement, dated as of June 1, 2003 between MLMCI and
Countrywide Home Loans, Inc.
CURTAILMENT: Any Principal Prepayment made by a Mortgagor which is not
a Principal Prepayment in Full.
CUSTODIAL AGREEMENT: An agreement, dated as of the Closing Date among
the Depositor, the Master Servicer, the Trustee and the Custodian in
substantially the form of Exhibit G hereto.
CUSTODIAN: Xxxxx Fargo Bank, N.A., or any successor custodian appointed
pursuant to the provisions hereof and of the Custodial Agreement.
CUT-OFF DATE: January 1, 2005.
DEBT SERVICE REDUCTION: Any reduction of the Monthly Payments which a
Mortgagor is obligated to pay with respect to a Mortgage Loan as a result of any
proceeding under the Bankruptcy Code or any other similar state law or other
proceeding.
DEFECTIVE MORTGAGE LOAN: A Mortgage Loan replaced or to be replaced by
one or more Substitute Mortgage Loans.
DEFICIENT VALUATION: With respect to any Mortgage Loan, a valuation of
the related Mortgaged Property by a court of competent jurisdiction in an amount
less than the then outstanding principal balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy Code.
DEPOSITOR: Xxxxxxx Xxxxx Mortgage Investors, Inc., a Delaware
corporation, or any successor in interest.
DEPOSITORY: The Depository Trust Company, the nominee of which is Cede
& Co., or any successor thereto.
DEPOSITORY PARTICIPANT: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
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DESIGNATED DEPOSITORY INSTITUTION: A depository institution (commercial
bank, federal savings bank, mutual savings bank or savings and loan association)
or trust company (which may include the Trustee), the deposits of which are
fully insured by the FDIC to the extent provided by law.
DETERMINATION DATE: With respect to each Mortgage Loan, the
Determination Date as defined in the related Servicing Agreement.
DISQUALIFIED ORGANIZATION: Any of the following: (i) the United States,
any State or political subdivision thereof, any possession of the United States,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for Xxxxxxx Mac or any successor thereto, a majority of its
board of directors is not selected by such governmental unit), (ii) any foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of the Code or (v) any
other Person so designated by the Trustee based upon an Opinion of Counsel that
the holding of an ownership interest in a Residual Certificate by such Person
may cause any REMIC contained in the Trust or any Person having an ownership
interest in the Residual Certificate (other than such Person) to incur a
liability for any federal tax imposed under the Code that would not otherwise be
imposed but for the transfer of an ownership interest in a Residual Certificate
to such Person. The terms "United States," "State" and "international
organization" shall have the meanings set forth in Section 7701 of the Code or
successor provisions.
DISTRIBUTION ACCOUNT: The trust account or accounts created and
maintained pursuant to Section 4.04, which shall be denominated "Wachovia Bank,
National Association, as Trustee f/b/o holders of Xxxxxxx Xxxxx Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, MLMI Series 2005-A1 -
Distribution Account." The Distribution Account shall be an Eligible Account.
DISTRIBUTION ACCOUNT DEPOSIT DATE: The Business Day prior to each
Distribution Date.
DISTRIBUTION DATE: The 25th day of any month, beginning in the month
immediately following the month of the Closing Date, or, if such 25th day is not
a Business Day, the Business Day immediately following.
DLJ: DLJ Mortgage Capital, Inc.
DUE DATE: With respect to each Mortgage Loan, the date in each month on
which its Monthly Payment is due if such due date is the first day of a month
and otherwise is deemed to be the first day of the following month or such other
date specified in the related Servicing Agreement.
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DUE PERIOD: With respect to any Distribution Date and each Mortgage
Loan, the period commencing on the second day of the month preceding the month
in which the Distribution Date occurs and ending at the close of business on the
first day of the month in which the Distribution Date occurs.
ELIGIBLE ACCOUNT: Any of (i) an account or accounts maintained with
Washington Mutual, unless and until Washington Mutual's ratings for short-term
unsecured debt obligations are less than A-2 by S&P or A- by Xxxxx'x, (ii) a
segregated account maintained with a federal or state chartered depository
institution (A) the short-term obligations of which are rated A-1 or better by
S&P and P-1 by Xxxxx'x at the time of any deposit therein or (B) insured by the
FDIC (to the limits established by such Corporation), the uninsured deposits in
which account are otherwise secured such that, as evidenced by an Opinion of
Counsel (obtained by the Person requesting that the account be held pursuant to
this clause (i)) delivered to the Trustee prior to the establishment of such
account, the Certificateholders will have a claim with respect to the funds in
such account and a perfected first priority security interest against any
collateral (which shall be limited to Permitted Investments, each of which shall
mature not later than the Business Day immediately preceding the Distribution
Date next following the date of investment in such collateral or the
Distribution Date if such Permitted Investment is an obligation of the
institution that maintains the Distribution Account) securing such funds that is
superior to claims of any other depositors or general creditors of the
depository institution with which such account is maintained, (iii) a segregated
trust account or accounts maintained with a federal or state chartered
depository institution or trust company with trust powers acting in its
fiduciary capacity or (iv) a segregated account or accounts of a depository
institution acceptable to the Rating Agencies (as evidenced in writing by the
Rating Agencies that use of any such account as the Distribution Account will
not have an adverse effect on the then-current ratings assigned to the Classes
of the Certificates then rated by the Rating Agencies). Eligible Accounts may
bear interest.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-RESTRICTED CERTIFICATES: Any of the Class B-1, Class B-2, Class
B-3, Class R-I or Class R-II Certificates.
EVENT OF DEFAULT: An event of default described in Section 8.01.
EXCESS LIQUIDATION PROCEEDS: To the extent that such amount is not
required by law to be paid to the related Mortgagor, the amount, if any, by
which Liquidation Proceeds with respect to a Liquidated Mortgage Loan exceed the
sum of (i) the Outstanding Principal Balance of such Mortgage Loan and accrued
but unpaid interest at the related Mortgage Interest Rate through the last day
of the month in which the related Liquidation Date occurs, plus (ii) related
Liquidation Expenses.
EXCESS LOSSES: (i) Special Hazard Losses in excess of the Special
Hazard Loss Coverage Amount, (ii) Bankruptcy Losses in excess of the Bankruptcy
Loss Coverage Amount, (iii) Fraud Losses in excess of the Fraud Loss Amount and
(iv) Extraordinary Losses.
-12-
EXTRAORDINARY LOSS: Any Realized Loss or portion thereof caused by or
resulting from:
(i) nuclear or chemical reaction or nuclear radiation or
radioactive or chemical contamination, all whether controlled or
uncontrolled and whether such loss be direct or indirect, proximate or
remote or be in whole or in part caused by, contributed to or
aggravated by a peril covered by the definition of the term "Special
Hazard Loss";
(ii) hostile or warlike action in time of peace or war,
including action in hindering, combating or defending against an
actual, impending or expected attack by any government or sovereign
power, de jure or de facto, or by any authority maintaining or using
military, naval or air forces, or by military, naval or air forces, or
by an agent of any such government, power, authority or forces;
(iii) any weapon of war employing atomic fission or
radioactive forces whether in time of peace or war, and
(iv) insurrection, rebellion, revolution, civil war,
usurped power or action taken by governmental authority in hindering,
combating or defending against such an occurrence, seizure or
destruction under quarantine or customs regulations, confiscation by
order of any government or public authority, or risks of contraband or
illegal transactions or trade.
EXTRAORDINARY TRUST FUND EXPENSES: Any amounts reimbursable to the
Master Servicer or the Depositor pursuant to this Agreement, including but not
limited to Sections 4.03, 4.05 and 7.04, any amounts reimbursable to the Trustee
and the Securities Administrator from the Trust Fund pursuant to this Agreement,
including but not limited to Section 9.05, and any other costs, expenses,
liabilities and losses borne by the Trust Fund (exclusive of any cost, expense,
liability or loss that is specific to a particular Mortgage Loan or REO Property
and is taken into account in calculating a Realized Loss in respect thereof) for
which the Trust Fund has not and, in the reasonable good faith judgment of the
Trustee, shall not, obtain reimbursement or indemnification from any other
Person.
XXXXXX XXX: Federal National Mortgage Association or any successor
thereto.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
FINAL CERTIFICATION: The certification substantially in the form of
Exhibit Two to the Custodial Agreement.
FIRST REPUBLIC: First Republic Bank.
FIRST REPUBLIC ASSIGNMENT AGREEMENT: Shall mean the Assignment,
Assumption and Recognition Agreement, dated as of January 31, 2005, among First
Republic, the Depositor and the Seller pursuant to which the First Republic
Servicing Agreement and the rights of the Seller thereunder (other than the
rights to enforce the representations and warranties with respect to the First
Republic Loans) were assigned to the Depositor for the benefit of the
Certificateholders.
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XXXXX XXXXXXXX LOANS: Shall mean those Mortgage Loans serviced by First
Republic pursuant to the First Republic Servicing Agreement.
FIRST REPUBLIC SERVICING AGREEMENT: Shall mean the Amended and Restated
Seller's Purchase, Warranties and Servicing Agreement, dated as of June 1, 2004,
between DLJ and First Republic, as assigned to MLBUSA pursuant to the
Assignment, Assumption and Recognition Agreement, dated as of June 29, 2004,
among MLBUSA, DLJ and First Republic, and as subsequently assigned to the Seller
pursuant to the Assignment and Assumption Agreement, dated as of November 16,
2004 among MLBUSA, First Republic and the Seller.
FITCH: Fitch Ratings or its successor in interest.
FRAUD LOSS AMOUNT: Initially, approximately $5,591,988. As of any date
of determination after the Cut-off Date, the Fraud Loss Amount shall equal: (X)
prior to the second anniversary of the Cut-off Date, (1) the lesser of (a) the
Fraud Loss Amount as of the Cut-off Date and (b) 1.00% of the aggregate
principal balance of all of the Mortgage Loans as of the Cut-off Date minus (2)
the aggregate amounts allocated through Subordination with respect to Fraud
Losses as of the Cut-off Date up to such date of determination and (Y) from the
third to the fifth anniversary of the Cut-off Date, (1) the lesser of (a) the
Fraud Loss Amount as of the most recent anniversary of the Cut-off Date and (b)
0.50% of the aggregate principal balance of all of the Mortgage Loans as of the
most recent anniversary of the Cut-off Date minus (2) the aggregate amounts
allocated through Subordination with respect to Fraud Losses since the most
recent anniversary of the Cut-off Date up to such date of determination. On and
after the fifth anniversary of the Cut-off Date, the Fraud Loss Amount shall be
zero and Fraud Losses shall not be allocated through Subordination.
The Fraud Loss Amount may be further reduced by the Depositor
(including accelerating the manner in which such coverage is reduced) provided
that prior to any such reduction, the Depositor shall (i) obtain written
confirmation from each Rating Agency that such reduction shall not reduce the
rating assigned to any Class of Certificates by such Rating Agency below the
lower of the then-current rating or the rating assigned to such Certificates as
of the Closing Date by such Rating Agency and (ii) provide a copy of such
written confirmation to the Trustee.
FRAUD LOSSES: Losses sustained on a Liquidated Mortgage Loan by reason
of a default arising from fraud, dishonesty or misrepresentation as reported by
the applicable Servicer to the Master Servicer.
XXXXXXX MAC: Xxxxxxx Mac, formerly the Federal Home Loan Mortgage
Corporation, or any successor thereto.
GLOBAL CERTIFICATE: Any Private Certificate registered in the name of
the Depository or its nominee, beneficial interests in which are reflected on
the books of the Depository or on the books of a Person maintaining an account
with such Depository (directly or as an indirect participant in accordance with
the rules of such depository).
-14-
GROSS MARGIN: As to each Mortgage Loan, the fixed percentage set forth
in the related Mortgage Note and indicated on the Mortgage Loan Schedule which
percentage is added to the related Index on each Interest Adjustment Date to
determine (subject to rounding, the minimum and maximum Mortgage Interest Rate
and the Periodic Rate Cap) the Mortgage Interest Rate until the next Interest
Adjustment Date.
GROUP I AVAILABLE FUNDS: With respect to any Distribution Date and the
Group I Mortgage Loans, an amount equal to the excess of (i) the sum of (a) the
aggregate of the related Monthly Payments received on or prior to the related
Determination Date, (b) Liquidation Proceeds, Insurance Proceeds, Principal
Prepayments, Subsequent Recoveries and other unscheduled recoveries of principal
and interest in respect of the Group I Mortgage Loans during the related
Prepayment Period, (c) the aggregate of any amounts received in respect of a
related REO Property withdrawn from any Protected Account and deposited in the
Master Servicer Collection Account for such Distribution Date, (d) the aggregate
of any amounts deposited in the Master Servicer Collection Account by the
related Servicer or the Master Servicer in respect of related Prepayment
Interest Shortfalls for such Distribution Date and (e) the aggregate of any
related Monthly Advances made by the related Servicer or the Master Servicer for
such Distribution Date, over (ii) the sum of (a) related amounts reimbursable or
payable to the related Servicer or the Master Servicer pursuant to Sections 4.03
and 4.05, (b) related Stayed Funds, (c) related amounts deposited in the Master
Servicer Collection Account or the Distribution Account, as the case may be, in
error and (d) any Extraordinary Trust Fund Expenses.
GROUP I MORTGAGE LOANS: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
GROUP I SENIOR ACCELERATED DISTRIBUTION PERCENTAGE: With respect to any
Distribution Date, the percentage indicated below:
Group I Senior Accelerated
Distribution Date Distribution Percentage
----------------- -----------------------
February 2005 through January 2012 100%
February 2012 through January 2013 Group I Senior Percentage, plus 70% of the Group I
Subordinate Percentage
February 2013 through January 2014 Group I Senior Percentage, plus 60% of the Group I
Subordinate Percentage
February 2014 through January 2015 Group I Senior Percentage, plus 40% of the Group I
Subordinate Percentage
February 2015 through January 2016 Group I Senior Percentage, plus 20% of the Group I
Subordinate Percentage
February 2016 and thereafter Group I Senior Percentage
provided, however, (i) that any scheduled reduction to the Group I Senior
Accelerated Distribution Percentage described above shall not occur as of any
Distribution Date unless either (a)(1)(x) the outstanding principal balance of
Mortgage Loans delinquent 60 days or more
-15-
(including foreclosure and REO Property) averaged over the last six months as a
percentage of the aggregate outstanding Class Certificate Balance of the Class M
Certificates and the Class B Certificates, is less than 50%, or (y) the
outstanding principal balance of Mortgage Loans delinquent 60 days or more
(including foreclosure and REO Property) averaged over the last six months, as a
percentage of the aggregate outstanding principal balance of all Mortgage Loans
averaged over the last six months, does not exceed 2% and (2) Realized Losses on
the Mortgage Loans to date for such Distribution Date if occurring during the
eighth, ninth, tenth, eleventh or twelfth year (or any year thereafter) after
the Closing Date are less than 30%, 35%, 40%, 45% or 50%, respectively, of the
sum of the Initial Class Certificate Balances of the Class M Certificates and
Class B Certificates or (b) (1) the aggregate outstanding principal balance of
the Mortgage Loans delinquent 60 days or more (including foreclosure and REO
Property) averaged over the last six months, as a percentage of the aggregate
outstanding principal balance of all Mortgage Loans averaged over the last six
months, does not exceed 4% and (2) Realized Losses on the Mortgage Loans on or
prior to such Distribution Date if occurring during the eighth, ninth, tenth,
eleventh or twelfth year (or any year thereafter) after the Closing Date are
less than 10%, 15%, 20%, 25% or 30%, respectively, of the sum of the Initial
Class Certificate Balances of the Class M Certificates and Class B Certificates
and (ii) that for any Distribution Date on which the Group I Senior Percentage
is greater than the Original Group I Senior Percentage, the Group I Senior
Accelerated Distribution Percentage for such Distribution Date shall be 100%.
Notwithstanding the foregoing, upon the reduction of the aggregate Class
Certificate Balance of the Class I-A Certificates to zero, the Group I Senior
Accelerated Distribution Percentage will equal 0%.
In addition, on any Distribution Date on or after the Distribution Date
occurring in February 2008, if the current weighted average of the Subordinate
Percentages for the Certificates is equal to or greater than two times the
initial weighted average of the Subordinate Percentages for the Certificates,
and (a) the outstanding principal balance of the Mortgage Loans delinquent 60
days or more (including for this purpose any such Mortgage Loans in foreclosure
or bankruptcy and such Mortgage Loans with respect to which the related
Mortgaged Property has been acquired by the Trust), averaged over the last six
months, as a percentage of the Subordinate Percentage for that Distribution Date
times the aggregate Stated Principal Balance of the Mortgage Loans, does not
exceed 50% and (b) cumulative Realized Losses on the Mortgage Loans do not
exceed 20% of the initial Subordinate Percentage times the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date, then, in each
case, the Group I Senior Accelerated Distribution Percentage for such
Distribution Date will equal the Group I Senior Percentage.
GROUP I SENIOR CERTIFICATES: Shall mean the Class I-A Certificates.
GROUP I SENIOR PERCENTAGE: As of any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class I-A Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of all of the Group I Mortgage Loans or related REO
Properties immediately prior to such Distribution Date.
-16-
GROUP I SENIOR PRINCIPAL DISTRIBUTION AMOUNT: As to any Distribution
Date, the lesser of (a) the balance of the Group I Available Funds remaining
after the distribution of all amounts required to be distributed pursuant to
subclause first and second of Section 6.01(A) and (b) the sum of the following:
(A) the Group I Senior Percentage for such Distribution
Date times the sum of the following:
(1) the principal portion of each Monthly
Payment due during the related Due Period on each Outstanding
Mortgage Loan in Loan Group I, whether or not received on or
prior to the related Determination Date, minus the principal
portion of any Debt Service Reduction which together with
other Bankruptcy Losses exceeds the Bankruptcy Loss Coverage
Amount;
(2) the Stated Principal Balance of any Group I
Mortgage Loan repurchased during the related Prepayment Period
pursuant to Section 2.02 or 2.03 hereof or pursuant to the
related Servicing Agreement; and
(3) the principal portion of all other
unscheduled collections (other than Principal Prepayments in
Full and Curtailments and amounts received in connection with
the liquidation or disposition of a Group I Mortgage Loan,
including without limitation Insurance Proceeds, Liquidation
Proceeds and REO Proceeds) received during the related
Prepayment Period to the extent applied by the related
Servicer as recoveries of principal of the related Mortgage
Loan pursuant to related Servicing Agreement;
(B) with respect to the liquidation or other disposition
of a Group I Mortgage Loan which occurred during the related Prepayment
Period and did not result in any Excess Losses, an amount equal to the
lesser of (a) the Group I Senior Percentage for such Distribution Date
times the Stated Principal Balance of such Group I Mortgage Loan and
(b) the Group I Senior Accelerated Distribution Percentage for such
Distribution Date times the related unscheduled collections (including
without limitation Insurance Proceeds, Liquidation Proceeds and REO
Proceeds) to the extent applied by the related Servicer or the Master
Servicer as recoveries of principal of the related Mortgage Loan
pursuant to the related Servicing Agreement or this Agreement;
(C) the Group I Senior Accelerated Distribution
Percentage for such Distribution Date times the aggregate of all
Principal Prepayments in Full and Curtailments received in the related
Prepayment Period with respect to the Group I Mortgage Loans;
(D) any amounts described in clauses (A), (B) or (C) of
this definition, as determined for any previous Distribution Date,
which remain unpaid after application of amounts previously distributed
pursuant to this clause (D) to the extent that such amounts are not
attributable to Realized Losses which have been allocated to the Class
M Certificates or Class B Certificates;
-17-
GROUP I SUBORDINATE AMOUNT: On any date of determination, the excess of
the aggregate Stated Principal Balance of the Group I Mortgage Loans as of such
date over the aggregate Class Certificate Balances of the Group I Senior
Certificates then outstanding.
GROUP II AVAILABLE FUNDS: With respect to any Distribution Date and the
Group II Mortgage Loans, an amount equal to the excess of (i) the sum of (a) the
aggregate of the related Monthly Payments received on or prior to the related
Determination Date, (b) Liquidation Proceeds, Insurance Proceeds, Principal
Prepayments, Subsequent Recoveries and other unscheduled recoveries of principal
and interest in respect of the Group II Mortgage Loans during the related
Prepayment Period, (c) the aggregate of any amounts received in respect of a
related REO Property withdrawn from any Protected Account and deposited in the
Master Servicer Collection Account for such Distribution Date, (d) the aggregate
of any amounts deposited in the Master Servicer Collection Account by the
related Servicer or the Master Servicer in respect of related Prepayment
Interest Shortfalls for such Distribution Date and (e) the aggregate of any
related Monthly Advances made by the related Servicer or the Master Servicer for
such Distribution Date, over (ii) the sum of (a) related amounts reimbursable or
payable to the related Servicer or the Master Servicer pursuant to Sections 4.03
and 4.05, (b) related Stayed Funds, (c) related amounts deposited in the Master
Servicer Collection Account or the Distribution Account, as the case may be, in
error and (d) any Extraordinary Trust Fund Expenses.
GROUP II MORTGAGE LOANS: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
GROUP II SENIOR ACCELERATED DISTRIBUTION PERCENTAGE: With respect to
any Distribution Date, the percentage indicated below:
Group II Senior Accelerated
Distribution Date Distribution Percentage
----------------- -----------------------
February 2005 through January 2012 100%
February 2012 through January 2013 Group II Senior Percentage, plus 70% of the Group II
Subordinate Percentage
February 2013 through January 2014 Group II Senior Percentage, plus 60% of the Group II
Subordinate Percentage
February 2014 through January 2015 Group II Senior Percentage, plus 40% of the Group II
Subordinate Percentage
February 2015 through January 2016 Group II Senior Percentage, plus 20% of the Group II
Subordinate Percentage
February 2016 and thereafter Group II Senior Percentage
provided, however, (i) that any scheduled reduction to the Group II Senior
Accelerated Distribution Percentage described above shall not occur as of any
Distribution Date unless either (a)(1)(x) the outstanding principal balance of
Mortgage Loans delinquent 60 days or more (including foreclosure and REO
Property) averaged over the last six months as a percentage of
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the aggregate outstanding Class Certificate Balance of the Class M Certificates
and the Class B Certificates, is less than 50%, or (y) the outstanding principal
balance of Mortgage Loans delinquent 60 days or more (including foreclosure and
REO Property) averaged over the last six months, as a percentage of the
aggregate outstanding principal balance of all Mortgage Loans averaged over the
last six months, does not exceed 2% and (2) Realized Losses on the Mortgage
Loans to date for such Distribution Date if occurring during the eighth, ninth,
tenth, eleventh or twelfth (or any year thereafter) after the Closing Date are
less than 30%, 35%, 40%, 45% or 50%, respectively, of the sum of the Initial
Class Certificate Balances of the Class M Certificates and Class B Certificates
or (b) (1) the aggregate outstanding principal balance of the Mortgage Loans
delinquent 60 days or more (including foreclosure and REO Property) averaged
over the last six months, as a percentage of the aggregate outstanding principal
balance of all Mortgage Loans averaged over the last six months, does not exceed
4% and (2) Realized Losses on the Mortgage Loans on or prior to such
Distribution Date if occurring during the eighth, ninth, tenth, eleventh or
twelfth year (or any year thereafter) after the Closing Date are less than 10%,
15%, 20%, 25% or 30%, respectively, of the sum of the Initial Class Certificate
Balances of the Class M Certificates and Class B Certificates and (ii) that for
any Distribution Date on which the Group II Senior Percentage is greater than
the Original Group II Senior Percentage, the Group II Senior Accelerated
Distribution Percentage for such Distribution Date shall be 100%.
Notwithstanding the foregoing, upon the reduction of the aggregate Class
Certificate Balance of the Class II-A Certificates to zero, the Group II Senior
Accelerated Distribution Percentage will equal 0%.
In addition, on any Distribution Date on or after the Distribution Date
occurring in February 2008, if the current weighted average of the Subordinate
Percentages for the Certificates is equal to or greater than two times the
initial weighted average of the Subordinate Percentages for the Certificates,
and (a) the outstanding principal balance of the Mortgage Loans delinquent 60
days or more (including for this purpose any such Mortgage Loans in foreclosure
or bankruptcy and such Mortgage Loans with respect to which the related
Mortgaged Property has been acquired by the Trust), averaged over the last six
months, as a percentage of the Subordinate Percentage for that Distribution Date
times the aggregate Stated Principal Balance of the Mortgage Loans, does not
exceed 50% and (b) cumulative Realized Losses on the Mortgage Loans do not
exceed 20% of the initial Subordinate Percentage times the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date, then, in each
case, the Group II Senior Accelerated Distribution Percentage for such
Distribution Date will equal the Group II Senior Percentage.
GROUP II SENIOR CERTIFICATES: Shall mean the Class II-A-1 Certificates
and the Class II-A-2 Certificates.
GROUP II SENIOR PERCENTAGE: As of any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class II-A Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of all of the Group II Mortgage Loans or related REO
Properties immediately prior to such Distribution Date.
-19-
GROUP II SENIOR PRINCIPAL DISTRIBUTION AMOUNT: As to any Distribution
Date, the lesser of (a) the balance of the Group II Available Funds remaining
after the distribution of all amounts required to be distributed pursuant to
Section 6.01(B) and (b) the sum of the following:
(A) the Group II Senior Percentage for such Distribution
Date times the sum of the following:
(1) the principal portion of each Monthly
Payment due during the related Due Period on each Outstanding
Mortgage Loan in Loan Group II, whether or not received on or
prior to the related Determination Date, minus the principal
portion of any Debt Service Reduction which together with
other Bankruptcy Losses exceeds the Bankruptcy Loss Coverage
Amount;
(2) the Stated Principal Balance of any Group II
Mortgage Loan repurchased during the related Prepayment Period
pursuant to Section 2.02 or 2.03 hereof or the related
Servicing Agreement; and
(3) the principal portion of all other
unscheduled collections (other than Principal Prepayments in
Full and Curtailments and amounts received in connection with
the liquidation or disposition of a Group II Mortgage Loan,
including without limitation Insurance Proceeds, Liquidation
Proceeds and REO Proceeds) received during the related
Prepayment Period to the extent applied by the related
Servicer as recoveries of principal of the related Mortgage
Loan pursuant to related Servicing Agreement;
(B) with respect to the liquidation or other disposition
of a Group II Mortgage Loan which occurred during the related
Prepayment Period and did not result in any Excess Losses, an amount
equal to the lesser of (a) the Group II Senior Percentage for such
Distribution Date times the Stated Principal Balance of such Group II
Mortgage Loan and (b) the Group II Senior Accelerated Distribution
Percentage for such Distribution Date times the related unscheduled
collections (including without limitation Insurance Proceeds,
Liquidation Proceeds and REO Proceeds) to the extent applied by the
related Servicer or the Master Servicer as recoveries of principal of
the related Mortgage Loan pursuant to the related Servicing Agreement
or this Agreement;
(C) the Group II Senior Accelerated Distribution
Percentage for such Distribution Date times the aggregate of all
Principal Prepayments in Full and Curtailments received in the related
Prepayment Period with respect to the Group II Mortgage Loans;
(D) any amounts described in clauses (A), (B) or (C) of
this definition, as determined for any previous Distribution Date,
which remain unpaid after application of amounts previously distributed
pursuant to this clause (D) to the extent that such amounts are not
attributable to Realized Losses which have been allocated to the Class
M Certificates or Class B Certificates;
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GROUP II SUBORDINATE AMOUNT: On any date of determination, the excess
of the aggregate Stated Principal Balance of the Group II Mortgage Loans as of
such date over the aggregate Class Certificate Balances of the Group II Senior
Certificates then outstanding.
GROUP III AVAILABLE FUNDS: With respect to any Distribution Date and
the Group III Mortgage Loans, an amount equal to the excess of (i) the sum of
(a) the aggregate of the related Monthly Payments received on or prior to the
related Determination Date, (b) Liquidation Proceeds, Insurance Proceeds,
Principal Prepayments, Subsequent Recoveries and other unscheduled recoveries of
principal and interest in respect of the Group III Mortgage Loans during the
related Prepayment Period, (c) the aggregate of any amounts received in respect
of a related REO Property withdrawn from any Protected Account and deposited in
the Master Servicer Collection Account for such Distribution Date, (d) the
aggregate of any amounts deposited in the Master Servicer Collection Account by
the related Servicer or the Master Servicer in respect of related Prepayment
Interest Shortfalls for such Distribution Date and (e) the aggregate of any
related Monthly Advances made by the related Servicer or the Master Servicer for
such Distribution Date, over (ii) the sum of (a) related amounts reimbursable or
payable to the related Servicer or the Master Servicer pursuant to Sections 4.03
and 4.05, (b) related Stayed Funds, (c) related amounts deposited in the Master
Servicer Collection Account or the Distribution Account, as the case may be, in
error and (d) any Extraordinary Trust Fund Expenses.
GROUP III MORTGAGE LOANS: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
GROUP III SENIOR ACCELERATED DISTRIBUTION PERCENTAGE: With respect to
any Distribution Date, the percentage indicated below:
Group III Senior Accelerated
Distribution Date Distribution Percentage
----------------- -----------------------
February 2005 through January 2012 100%
February 2012 through January 2013 Group III Senior Percentage, plus 70% of the Group
III Subordinate Percentage
February 2013 through January 2014 Group III Senior Percentage, plus 60% of the Group
III Subordinate Percentage
February 2014 through January 2015 Group III Senior Percentage, plus 40% of the Group
III Subordinate Percentage
February 2015 through January 2016 Group III Senior Percentage, plus 20% of the Group
III Subordinate Percentage
February 2016 and thereafter Group III Senior Percentage
provided, however, (i) that any scheduled reduction to the Group III Senior
Accelerated Distribution Percentage described above shall not occur as of any
Distribution Date unless either (a)(1)(x) the outstanding principal balance of
Mortgage Loans delinquent 60 days or more (including foreclosure and REO
Property) averaged over the last six months as a percentage of
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the aggregate outstanding Class Certificate Balance of the Class M Certificates
and the Class B Certificates, is less than 50%, or (y) the outstanding principal
balance of Mortgage Loans delinquent 60 days or more (including foreclosure and
REO Property) averaged over the last six months, as a percentage of the
aggregate outstanding principal balance of all Mortgage Loans averaged over the
last six months, does not exceed 2% and (2) Realized Losses on the Mortgage
Loans to date for such Distribution Date if occurring during the eighth, ninth,
tenth, eleventh or twelfth (or any year thereafter) after the Closing Date are
less than 30%, 35%, 40%, 45% or 50%, respectively, of the sum of the Initial
Class Certificate Balances of the Class M Certificates and Class B Certificates
or (b) (1) the aggregate outstanding principal balance of the Mortgage Loans
delinquent 60 days or more (including foreclosure and REO Property) averaged
over the last six months, as a percentage of the aggregate outstanding principal
balance of all Mortgage Loans averaged over the last six months, does not exceed
4% and (2) Realized Losses on the Mortgage Loans on or prior to such
Distribution Date if occurring during the sixth, seventh, eighth, ninth, tenth,
eleventh or twelfth year (or any year thereafter) after the Closing Date are
less than 10%, 15%, 20%, 25% or 30%, respectively, of the sum of the Initial
Class Certificate Balances of the Class M Certificates and Class B Certificates
and (ii) that for any Distribution Date on which the Group III Senior Percentage
is greater than the Original Group III Senior Percentage, the Group III Senior
Accelerated Distribution Percentage for such Distribution Date shall be 100%.
Notwithstanding the foregoing, upon the reduction of the aggregate Class
Certificate Balance of the Class III-A Certificates to zero, the Group III
Senior Accelerated Distribution Percentage will equal 0%.
In addition, on any Distribution Date on or after the Distribution Date
occurring in February 2008, if the current weighted average of the Subordinate
Percentages for the Certificates is equal to or greater than two times the
initial weighted average of the Subordinate Percentages for the Certificates,
and (a) the outstanding principal balance of the Mortgage Loans delinquent 60
days or more (including for this purpose any such Mortgage Loans in foreclosure
or bankruptcy and such Mortgage Loans with respect to which the related
Mortgaged Property has been acquired by the Trust), averaged over the last six
months, as a percentage of the Subordinate Percentage for that Distribution Date
times the aggregate Stated Principal Balance of the Mortgage Loans, does not
exceed 50% and (b) cumulative Realized Losses on the Mortgage Loans do not
exceed 20% of the initial Subordinate Percentage times the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date, then, in each
case, the Group III Senior Accelerated Distribution Percentage for such
Distribution Date will equal the Group III Senior Percentage.
GROUP III SENIOR CERTIFICATES: Shall mean the Class III-A Certificates.
GROUP III SENIOR PERCENTAGE: As of any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class III-A Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of all of the Group III Mortgage Loans or related REO
Properties immediately prior to such Distribution Date.
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GROUP III SENIOR PRINCIPAL DISTRIBUTION AMOUNT: As to any Distribution
Date, the lesser of (a) the balance of the Group III Available Funds remaining
after the distribution of all amounts required to be distributed pursuant to
Section 6.01(B) and (b) the sum of the following:
(A) the Group III Senior Percentage for such Distribution
Date times the sum of the following:
(1) the principal portion of each Monthly
Payment due during the related Due Period on each Outstanding
Mortgage Loan in Loan Group III, whether or not received on or
prior to the related Determination Date, minus the principal
portion of any Debt Service Reduction which together with
other Bankruptcy Losses exceeds the Bankruptcy Loss Coverage
Amount;
(2) the Stated Principal Balance of any Group
III Mortgage Loan repurchased during the related Prepayment
Period pursuant to Section 2.02 or 2.03 hereof or the related
Servicing Agreement; and
(3) the principal portion of all other
unscheduled collections (other than Principal Prepayments in
Full and Curtailments and amounts received in connection with
the liquidation or disposition of a Group III Mortgage Loan,
including without limitation Insurance Proceeds, Liquidation
Proceeds and REO Proceeds) received during the related
Prepayment Period to the extent applied by the related
Servicer as recoveries of principal of the related Mortgage
Loan pursuant to related Servicing Agreement;
(B) with respect to the liquidation or other disposition
of a Group III Mortgage Loan which occurred during the related
Prepayment Period and did not result in any Excess Losses, an amount
equal to the lesser of (a) the Group III Senior Percentage for such
Distribution Date times the Stated Principal Balance of such Group II
Mortgage Loan and (b) the Group III Senior Accelerated Distribution
Percentage for such Distribution Date times the related unscheduled
collections (including without limitation Insurance Proceeds,
Liquidation Proceeds and REO Proceeds) to the extent applied by the
related Servicer or the Master Servicer as recoveries of principal of
the related Mortgage Loan pursuant to the related Servicing Agreement
or this Agreement;
(C) the Group III Senior Accelerated Distribution
Percentage for such Distribution Date times the aggregate of all
Principal Prepayments in Full and Curtailments received in the related
Prepayment Period with respect to the Group III Mortgage Loans;
(D) any amounts described in clauses (A), (B) or (C) of
this definition, as determined for any previous Distribution Date,
which remain unpaid after application of amounts previously distributed
pursuant to this clause (D) to the extent that such amounts are not
attributable to Realized Losses which have been allocated to the Class
M Certificates or Class B Certificates;
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GROUP III SUBORDINATE AMOUNT: On any date of determination, the excess
of the aggregate Stated Principal Balance of the Group III Mortgage Loans as of
such date over the aggregate Class Certificate Balances of the Group III Senior
Certificates then outstanding.
HIGHEST PRIORITY: As of any date of determination, the Class of
Subordinate Certificates then outstanding with the earliest priority for
payments pursuant to Section 6.01, in the following order: Class M-1, Class M-2,
Class M-3, Class B-1, Class B-2 and Class B-3 Certificates.
INDEMNIFIED PERSONS: The Trustee, the Master Servicer, the Depositor
and the Securities Administrator and their officers, directors, agents and
employees and, with respect to the Trustee, any separate co-trustee and its
officers, directors, agents and employees.
INDEPENDENT: When used with respect to any specified Person, any such
Person who (a) is in fact independent of the Depositor, the Master Servicer and
their respective Affiliates, (b) does not have any direct financial interest in
or any material indirect financial interest in the Depositor or the Master
Servicer or any Affiliate thereof, and (c) is not connected with the Depositor
or the Master Servicer or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; provided, however, that a Person shall not fail to be Independent of
the Depositor or the Master Servicer or any Affiliate thereof merely because
such Person is the beneficial owner of 1% or less of any class of securities
issued by the Depositor or the Master Servicer or any Affiliate thereof, as the
case may be.
INDEX: The index, if any, specified in a Mortgage Note by reference to
which the related Mortgage Interest Rate will be adjusted from time to time.
INDIVIDUAL CERTIFICATE: Any Private Certificate registered in the name
of the Holder other than the Depository or its nominee.
INITIAL CERTIFICATION: The certification substantially in the form of
Exhibit One to the Custodial Agreement.
INITIAL CLASS CERTIFICATE BALANCE: With respect to any Regular
Certificate, the amount designated "Initial Class Certificate Balance" on the
face thereof.
INITIAL SUBORDINATE CLASS PERCENTAGE: With respect to each Class of
Subordinate Certificates, an amount which is equal to the initial aggregate
Class Certificate Balance of such Class of Subordinate Certificates divided by
the aggregate Stated Principal Balance of all the Mortgage Loans as of the
Cut-off Date as follows:
Class M-1: 1.40% Class B-1: 0.35%
Class M-2: 0.85% Class B-2: 0.20%
Class M-3: 0.35% Class B-3: 0.35%
INSURANCE POLICY: With respect to any Mortgage Loan, any standard
hazard insurance policy, flood insurance policy or title insurance policy.
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INSURANCE PROCEEDS: Amounts paid by the insurer under any Insurance
Policy covering any Mortgage Loan or Mortgaged Property other than amounts
required to be paid over to the Mortgagor pursuant to law or the related
Mortgage Note or Security Instrument and other than amounts used to repair or
restore the Mortgaged Property or to reimburse insured expenses.
INTEREST ACCRUAL PERIOD: With respect to each Distribution Date, for
each Class of Certificates, the calendar month preceding the month in which such
Distribution Date occurs.
INTEREST ADJUSTMENT DATE: With respect to a Mortgage Loan, the date, if
any, specified in the related Mortgage Note on which the Mortgage Interest Rate
is subject to adjustment.
LIQUIDATED MORTGAGE LOAN: Any defaulted Mortgage Loan as to which the
related Servicer has determined that all amounts it expects to recover from or
on account of such Mortgage Loan have been recovered.
LIQUIDATION DATE: With respect to any Liquidated Mortgage Loan, the
date on which the related Servicer has certified that such Mortgage Loan has
become a Liquidated Mortgage Loan.
LIQUIDATION EXPENSES: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the Master
Servicer or the related Servicer in connection with the liquidation of such
Mortgage Loan and the related Mortgaged Property, such expenses including (a)
property protection expenses, (b) property sales expenses, (c) foreclosure and
sale costs, including court costs and reasonable attorneys' fees, and (d)
similar expenses reasonably paid or incurred in connection with liquidation.
LIQUIDATION PROCEEDS: With respect to any Mortgage Loan, cash received
in connection with the liquidation of a defaulted Mortgage Loan, whether through
trustee's sale, foreclosure sale or otherwise, and with respect to any Mortgage
Loan except for Washington Mutual Loans, amounts received through Insurance
Proceeds and condemnation proceeds.
LOAN-TO-VALUE RATIO: With respect to any Mortgage Loan other than
Washington Mutual Loans, the fraction, expressed as a percentage, the numerator
of which is the original principal balance of the related Mortgage Loan and the
denominator of which is the Original Value of the related Mortgaged Property.
With respect to any Washington Mutual Loan, as of any date of determination, the
ratio on such date of the Outstanding Principal Balance of the Mortgage Loan, to
the Appraised value of the Mortgaged Property.
LOAN GROUP: Loan Group I, Loan Group II or Loan Group III, as
applicable.
LOAN GROUP I: The group of Mortgage Loans designated as belonging to
Loan Group I on the Mortgage Loan Schedule.
LOAN GROUP II: The group of Mortgage Loans designated as belonging to
Loan Group II on the Mortgage Loan Schedule.
LOAN GROUP III: The group of Mortgage Loans designated as belonging to
Loan Group III on the Mortgage Loan Schedule.
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LOWER PRIORITY: As of any date of determination and with respect to any
Class of Subordinate Certificates, any other Class of Subordinate Certificates
then outstanding with a later priority for payments pursuant to Section 6.01.
LOWEST PRIORITY: As of any date of determination, the Class of
Subordinate Certificates then outstanding with the latest priority for payments
pursuant to Section 6.01, in the following order: Class B-3, Class B-2, Class
B-1, Class M-3, Class M-2 and Class M-1 Certificates.
LOST NOTES: The original Mortgage Notes that have been lost, as
indicated on the Mortgage Loan Schedule.
MAJORITY CERTIFICATEHOLDERS: The Holders of Certificates evidencing at
least 51% of the Voting Rights.
MASTER SERVICER: Xxxxx Fargo Bank, N.A. including its respective
successors in interest who meet the qualifications of the Servicing Agreements
and this Agreement.
MASTER SERVICER COLLECTION ACCOUNT: The trust account or accounts
created and maintained pursuant to Section 4.02, which shall be denominated
"Wachovia Bank, National Association, as Trustee f/b/o holders of Xxxxxxx Xxxxx
Mortgage Investors, Inc., Mortgage Pass-Through Certificates, MLMI Series
2005-A1 - Master Servicer Collection Account." The Master Servicer Collection
Account shall be an Eligible Account.
MASTER SERVICING COMPENSATION: The meaning specified in Section 3.14.
MAXIMUM LIFETIME MORTGAGE RATE: The maximum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes in
the applicable Index.
MINIMUM LIFETIME MORTGAGE RATE: The minimum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes in
the applicable Index.
MLBUSA: Xxxxxxx Xxxxx Bank, USA.
MLCC: Xxxxxxx Xxxxx Credit Corporation.
MLMCI: Xxxxxxx Xxxxx Mortgage Capital Inc.
MLMLI: Xxxxxxx Xxxxx Mortgage Lending, Inc.
MONTHLY ADVANCE: An advance of principal or interest required to be
made by the applicable Servicer pursuant to the related Servicing Agreement or
the Master Servicer pursuant to Section 6.05.
MONTHLY PAYMENT: With respect to any Mortgage Loan, the scheduled
monthly payment of principal and interest on such Mortgage Loan which is payable
by the related Mortgagor from time to time under the related Mortgage Note,
determined: (a) after giving effect to (i) any Deficient Valuation and/or Debt
Service Reduction with respect to such Mortgage Loan and (ii)
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any reduction in the amount of interest collectible from the related Mortgagor
pursuant to the Relief Act; (b) without giving effect to any extension granted
or agreed to by the related Servicer pursuant to related Servicing Agreement;
and (c) on the assumption that all other amounts, if any, due under such
Mortgage Loan are paid when due.
MONTHLY PRINCIPAL: The principal portion of any Monthly Payment.
MOODY'S: Xxxxx'x Investors Service, Inc. or its successor in interest.
MORTGAGE: The mortgage, deed of trust or other instrument creating a
first lien on, or first priority security interest in, a Mortgaged Property
securing a Mortgage Note.
MORTGAGE FILE: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
MORTGAGE INTEREST RATE: The annual rate at which interest accrues from
time to time on any Mortgage Loan pursuant to the related Mortgage Note, which
rate is equal to the "Mortgage Interest Rate" set forth with respect thereto on
the Mortgage Loan Schedule.
MORTGAGE LOAN: A mortgage loan transferred and assigned to the Trustee
pursuant to Section 2.01 or Section 2.04 and held as a part of the Trust Fund,
as identified in the Mortgage Loan Schedule, including a mortgage loan the
property securing which has become an REO Property.
MORTGAGE LOAN PURCHASE AGREEMENT: The Mortgage Loan Purchase Agreement
dated as of January 31, 2005, between MLMLI, as seller, and the Depositor, as
purchaser, and all amendments thereof and supplements thereto, attached as
Exhibit J.
MORTGAGE LOAN SCHEDULE: The schedule, attached hereto as Exhibit B with
respect to the Mortgage Loans and as amended from time to time to reflect the
repurchase or substitution of Mortgage Loans pursuant to this Agreement.
MORTGAGE NOTE: The originally executed note or other evidence of the
indebtedness of a Mortgagor under the related Mortgage Loan.
MORTGAGE POOL: The pool of Mortgage Loans, identified on Exhibit B from
time to time, and any REO Properties acquired in respect thereof.
MORTGAGED PROPERTY: Land and improvements securing the indebtedness of
a Mortgagor under the related Mortgage Loan or, in the case of REO Property,
such REO Property.
MORTGAGOR: The obligor on a Mortgage Note.
NATIONAL CITY: Shall mean National City Mortgage Co.
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NATIONAL CITY ASSIGNMENT AGREEMENT: Shall mean the Assignment,
Assumption and Recognition Agreement, dated as of January 31, 2005, among
National City, the Depositor and the Seller pursuant to which the National City
Servicing Agreement and the rights of the Seller thereunder (other than the
rights to enforce the representations and warranties with respect to the
National City Loans) were assigned to the Depositor for the benefit of the
Certificateholders.
NATIONAL CITY LOANS: Shall mean those Mortgage Loans serviced by
National City pursuant to the terms and conditions of the National City
Servicing Agreement.
NATIONAL CITY SERVICING AGREEMENT: The Master Seller's Warranties and
Servicing Agreement, dated as of May 1, 2004, between MLBUSA and National City,
as assigned to the Seller pursuant to the Assignment and Assumption Agreement,
dated November 16, 2004 among MLBUSA, National City and the Seller.
NET LIQUIDATION PROCEEDS: As to any Liquidated Mortgage Loan,
Liquidation Proceeds net of (i) Liquidation Expenses which are payable therefrom
by the related Servicer or the Master Servicer in accordance with the related
Servicing Agreement or this Agreement and (ii) unreimbursed advances by the
related Servicer or the Master Servicer and Monthly Advances.
NET MORTGAGE RATE: With respect to each Mortgage Loan, the Mortgage
Interest Rate in effect from time to time less the Servicing Fee Rate (expressed
as a per annum rate).
NONRECOVERABLE ADVANCE: With respect to any Mortgage Loan other than
any Washington Mutual Loan, any advance or Monthly Advance (i) which was
previously made or is proposed to be made by the applicable Servicer, or the
Master Servicer as successor Servicer, or the Trustee as successor Master
Servicer and (ii) which, in the good faith judgment of the Master Servicer, the
Trustee or applicable Servicer, will not or, in the case of a proposed advance
or Monthly Advance, would not, be ultimately recoverable by the Master Servicer,
the Trustee (as successor Master Servicer) or applicable Servicer from
Liquidation Proceeds, Insurance Proceeds or future payments on the Mortgage Loan
for which such advance or Monthly Advance was made. With respect to any
Washington Mutual Loan, any Monthly Advance or Servicing Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property that, in
the good faith business judgment of Washington Mutual, will not, or, in the case
of a proposed Monthly Advance or Servicing Advance, would not be, ultimately
recoverable from related late payments, condemnation proceeds, Insurance
Proceeds or Liquidation Proceeds on such Mortgage Loan or REO Property as
provided herein.
OFFERED CERTIFICATE: Any Senior Certificate or Offered Subordinate
Certificate.
OFFERED SUBORDINATE CERTIFICATES: The Class M-l, Class M-2 and Class
M-3 Certificates.
OFFICER'S CERTIFICATE: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a Vice President or
Assistant Vice President or other authorized officer of the Master Servicer or
the Depositor, as applicable, and delivered to the Trustee, as required by this
Agreement.
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OPINION OF COUNSEL: A written opinion of counsel who is or are
acceptable to the Trustee and who, unless required to be Independent (an
"Opinion of Independent Counsel"), may be internal counsel for the Master
Servicer or the Depositor.
OPTIONAL TERMINATION DATE: The first Distribution Date on which the
Master Servicer may opt to terminate the Trust Fund pursuant to Section 10.01.
ORIGINAL CLASS CERTIFICATE BALANCE: With respect to each Class of the
Certificates (other than the Class R Certificates), the Class Certificate
Balance thereof on the Closing Date, as set forth opposite such Class above in
the Preliminary Statement.
ORIGINAL SUBORDINATE PRINCIPAL BALANCE: The sum of the aggregate Class
Certificate Balances of each Class of Subordinate Certificates as of the Closing
Date.
ORIGINAL VALUE: The lesser of (i) the Appraised Value or (ii) the sales
price of a Mortgaged Property at the time of origination of a Mortgage Loan,
except in instances where either clauses (i) or (ii) is unavailable, the other
may be used to determine the Original Value, or if both clauses (i) and (ii) are
unavailable, Original Value may be determined from other sources reasonably
acceptable to the Depositor.
OUTSTANDING MORTGAGE LOAN: With respect to any Due Date, a Mortgage
Loan which, prior to such Due Date, was not the subject of a Principal
Prepayment in Full, did not become a Liquidated Mortgage Loan and was not
purchased or replaced.
OUTSTANDING PRINCIPAL BALANCE: As of the time of any determination, the
principal balance of a Mortgage Loan remaining to be paid by the Mortgagor, or,
in the case of an REO Property, the principal balance of the related Mortgage
Loan remaining to be paid by the Mortgagor at the time such property was
acquired by the Trust Fund less any Net Liquidation Proceeds with respect
thereto to the extent applied to principal.
OWNERSHIP INTEREST: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
PASS-THROUGH RATE: With respect to the Certificates and any
Distribution Date, the following:
(i) For the Class I-A Certificates on each Distribution
Date, a per annum rate equal to the weighted average of the Net
Mortgage Rates on the Group I Mortgage Loans. The Pass-Through Rate
with respect to the first Interest Accrual Period is expected to be
approximately 4.378% per annum.
(ii) For the Class II-A-1 Certificates and Class II-A-2
Certificates on each Distribution Date, a per annum rate equal to the
weighted average of the Net Mortgage Rates on the Group II Mortgage
Loans. The Pass-Through Rate with
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respect to the first Interest Accrual Period is expected to be
approximately 4.665% per annum.
(iii) For the Class III-A Certificates on each Distribution
Date, a per annum rate equal to the weighted average of the Net
Mortgage Rates on the Group III Mortgage Loans. The Pass-Through Rate
with respect to the first Interest Accrual Period is expected to be
approximately 5.282% per annum.
(iv) For each class of Class M Certificates and Class B
Certificates will equal the weighted average of the Net Mortgage Rates
of each Loan Group, weighted in proportion to the results of
subtracting from the aggregate Stated Principal Balance of the Mortgage
Loans of each Loan Group, the aggregate Class Certificate Balance of
the related Senior Certificates. The Pass-Through Rate with respect to
the first Interest Accrual Period is expected to be approximately
4.630% per annum.
PAYING AGENT: The Trustee or any successor Paying Agent appointed by
the Trustee.
PERCENTAGE INTEREST: With respect to any Certificate (other than a
Class R Certificate), a fraction, expressed as a percentage, the numerator of
which is the Initial Class Certificate Balance represented by such Certificate
and the denominator of which is the Original Class Certificate Balance of the
related Class. With respect to any Class of Class R Certificates, the portion of
such Class evidenced thereby, expressed as a percentage, as stated on the face
of such Certificate; provided, however, that the sum of all such percentages for
each such Class totals 100%.
PERIODIC RATE CAP: With respect to each Mortgage Loan, the maximum
adjustment that can be made to the Mortgage Interest Rate on each Interest
Adjustment Date in accordance with its terms, regardless of changes in the
applicable Index.
PERMITTED INVESTMENTS: Any one or more of the following obligations or
securities held in the name of the Trustee for the benefit of the
Certificateholders:
(i) direct obligations of, and obligations the timely
payment of which are fully guaranteed by the United States of America
or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the
United States of America;
(ii) (a) demand or time deposits, federal funds or
bankers' acceptances issued by any depository institution or trust
company incorporated under the laws of the United States of America or
any state thereof (including the Trustee or the Master Servicer or its
Affiliates acting in its commercial banking capacity) and subject to
supervision and examination by federal and/or state banking
authorities, provided that the commercial paper and/or the short-term
debt rating and/or the long-term unsecured debt obligations of such
depository institution or trust company at the time of such investment
or contractual commitment providing for such investment have the
Applicable Credit Rating or better
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from each Rating Agency and (b) any other demand or time deposit or
certificate of deposit that is fully insured by the Federal Deposit
Insurance Corporation;
(iii) repurchase obligations with respect to (a) any
security described in clause (i) above or (b) any other security issued
or guaranteed by an agency or instrumentality of the United States of
America, the obligations of which are backed by the full faith and
credit of the United States of America, in either case entered into
with a depository institution or trust company (acting as principal)
described in clause (ii)(a) above where the Trustee holds the security
therefor;
(iv) securities bearing interest or sold at a discount
issued by any corporation (including the Trustee or the Master Servicer
or its Affiliates) incorporated under the laws of the United States of
America or any state thereof that have the Applicable Credit Rating or
better from each Rating Agency at the time of such investment or
contractual commitment providing for such investment; provided,
however, that securities issued by any particular corporation will not
be Permitted Investments to the extent that investments therein will
cause the then outstanding principal amount of securities issued by
such corporation and held as part of the Trust to exceed 10% of the
aggregate Outstanding Principal Balances of all the Mortgage Loans and
Permitted Investments held as part of the Trust;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand
or on a specified date not more than one year after the date of
issuance thereof) having the Applicable Credit Rating or better from
each Rating Agency at the time of such investment;
(vi) a Reinvestment Agreement issued by any bank,
insurance company or other corporation or entity;
(vii) any other demand, money market or time deposit,
obligation, security or investment as may be acceptable to either
Rating Agency as evidenced in writing by each Rating Agency to the
Trustee or Master Servicer;
(viii) any money market or common trust fund having the
Applicable Credit Rating or better from each Rating Agency (if such
fund is rated by each Rating Agency), including any such fund for which
the Trustee or Master Servicer or any affiliate of the Trustee or
Master Servicer acts as a manager or an advisor; provided, however,
that no instrument or security shall be a Permitted Investment if such
instrument or security evidences a right to receive only interest
payments with respect to the obligations underlying such instrument or
if such security provides for payment of both principal and interest
with a yield to maturity in excess of 120% of the yield to maturity at
par or if such instrument or security is purchased at a price greater
than par; and
(ix) units of a taxable money-market portfolio having the
highest rating assigned by each Rating Agency (except (i) if Fitch is a
Rating Agency and has not rated the portfolio, the highest rating
assigned by Xxxxx'x and (ii) if S&P is a Rating Agency,
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"AAAm" or "AAAM-G" by S&P) and restricted to obligations issued or
guaranteed by the United States of America or entities whose
obligations are backed by the full faith and credit of the United
States of America and repurchase agreements collateralized by such
obligations.
PERMITTED TRANSFEREE: Any Person other than a Disqualified Organization
or an "electing large partnership" (as defined by Section 775 of the Code).
PERSON: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PHYSICAL CERTIFICATES: The Residual Certificates and the Private
Certificates.
PRELIMINARY SERVICING PERIOD: With respect to any Washington Mutual
Loans, the period commencing on the related Closing Date and ending on the date
Washington Mutual enters into Reconstitution Agreements which amend or restate
the servicing provisions of this Agreement.
PREPAYMENT DISTRIBUTION TRIGGER: With respect to any Distribution Date
and any Class of Subordinate Certificates (other than the Class M-1
Certificates), a test that shall be satisfied if the fraction (expressed as a
percentage) equal to the sum of the Class Certificate Balances of such Class and
each Class of Subordinate Certificates with a Lower Priority than such Class
immediately prior to such Distribution Date divided by the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date is greater than or equal to the sum
of the related Initial Subordinate Class Percentages of such Classes of
Subordinate Certificates.
PREPAYMENT INTEREST SHORTFALL: As to any Distribution Date and any
Mortgage Loan (other than a Mortgage Loan relating to an REO Property) that was
the subject of (a) a Principal Prepayment in Full during the related Prepayment
Period, an amount equal to the excess of one month's interest at the Net
Mortgage Rate on the Stated Principal Balance of such Mortgage Loan over the
amount of interest (adjusted to the Net Mortgage Rate) paid by the Mortgagor for
such Prepayment Period to the date of such Principal Prepayment in Full or (b) a
Curtailment during the prior calendar month, an amount equal to one month's
interest at the Net Mortgage Rate on the amount of such Curtailment. The
obligations of the Master Servicer in respect of any Prepayment Interest
Shortfall are set forth in Section 6.06.
PREPAYMENT PERIOD: With respect to any Mortgage Loan and any
Distribution Date, the calendar month preceding the month in which such
Distribution Date occurs.
PRIMARY MORTGAGE INSURANCE POLICY: Any primary mortgage guaranty
insurance policy issued in connection with a Mortgage Loan which provides
compensation to a Mortgage Note holder in the event of default by the obligor
under such Mortgage Note or the related Security Instrument, if any or any
replacement policy therefor through the related Interest Accrual Period for such
Class relating to a Distribution Date.
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PRINCIPAL PREPAYMENT: Any payment (whether partial or full) or other
recovery of principal on a Mortgage Loan which is received in advance of its
scheduled Due Date to the extent that it is not accompanied by an amount as to
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment, including Insurance Proceeds
and Repurchase Proceeds, but excluding the principal portion of Net Liquidation
Proceeds.
PRINCIPAL PREPAYMENT IN FULL: Any Principal Prepayment made by a
Mortgagor of the entire unpaid principal balance of the Mortgage Loan.
PRIVATE CERTIFICATES: Any of the Class B-1, Class B-2 and Class B-3
Certificates.
PROTECTED ACCOUNT: An account established and maintained for the
benefit of Certificateholders by each Servicer with respect to the related
Mortgage Loans and with respect to REO Property pursuant to the respective
Servicing Agreement. The Protected Account shall be an Eligible Account.
PURCHASE PRICE: With respect to any Mortgage Loan or REO Property to be
purchased pursuant to or as contemplated by Section 2.03 or 10.01, and as
confirmed by an Officers' Certificate from the Master Servicer to the Trustee,
an amount equal to the sum of (i) 100% of the Stated Principal Balance thereof
as of the date of purchase (or such other price as provided in Section 10.01),
(ii) accrued interest on such Stated Principal Balance at the applicable
Mortgage Interest Rate in effect from time to time from the Due Date as to which
interest was last covered by a payment by the Mortgagor or an advance by the
related Servicer or Master Servicer, which payment or advance had as of the date
of purchase been distributed to Certificateholders, through the end of the
calendar month in which the purchase is to be effected less any unreimbursed
Monthly Advances and any unpaid Servicing Fees payable to the purchaser of the
Mortgage Loan and (iii) any costs and damages incurred by the Trust in
connection with any violation by such Mortgage Loan or REO Property of any
predatory or abusive-lending law.
QUALIFIED INSURER: Any insurance company duly qualified as such under
the laws of the state or states in which the related Mortgaged Property or
Mortgaged Properties is or are located, duly authorized and licensed in such
state or states to transact the type of insurance business in which it is
engaged and approved as an insurer by the Master Servicer, so long as the claims
paying ability of which is acceptable to the Rating Agencies for pass-through
certificates having the same rating as the Certificates rated by the Rating
Agencies as of the Closing Date.
RATING AGENCIES: Fitch and S&P.
REALIZED LOSS: With respect to a Liquidated Mortgage Loan, the amount
by which the remaining unpaid principal balance of the Mortgage Loan exceeds the
amount of Liquidation Proceeds applied to the principal balance of the related
Mortgage Loan. To the extent the Master Servicer receives Subsequent Recoveries
with respect to any Mortgage Loan, the amount of the Realized Loss with respect
to that Mortgage Loan will be reduced to the extent such recoveries are applied
to reduce the Class Certificate Balance of any Class of Certificates on any
Distribution Date.
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RECONSTITUTION AGREEMENTS: The agreement or agreements entered into by
Washington Mutual and MLBUSA and/or certain third parties on the Reconstitution
Date or Dates with respect to any or all of the Washington Mutual Loans, in
connection with a whole loan transfer or a pass-through transfer as provided in
Section 12 of the Washington Mutual Servicing Agreement.
RECONSTITUTION DATE: The date or dates on which any or all of the
Washington Mutual Loans shall be removed from the Washington Mutual Servicing
Agreement and reconstituted as part of a whole loan transfer or pass-through
transfer pursuant to Section 12 thereof.
RECORD DATE: With respect to each Distribution Date and each class of
Offered Certificates, the close of business on the last Business Day of the
month immediately preceding the month in which the related Distribution Date
occurs.
REFINANCED MORTGAGE LOAN: Any Mortgage Loan the proceeds of which were
not used to purchase the related Mortgaged Property.
REGULAR CERTIFICATES: Any of the Class I-A, Class II-A-1, Class II-A-2,
Class III-A, Class M-1, Class M-2, Class M-3, Class B-1, Class B-2 or Class B-3
Certificates.
REINVESTMENT AGREEMENTS: One or more reinvestment agreements,
acceptable to the Rating Agencies, from a bank, insurance company or other
corporation or entity (including the Trustee).
RELIEF ACT: The Servicemembers Civil Relief Act, as amended.
RELIEF ACT MORTGAGE LOAN: Any Mortgage Loan as to which the Monthly
Payment thereof has been reduced due to the application of the Relief Act.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
REMIC I: The segregated pool of assets, with respect to which a REMIC
election is to be made, consisting of: (i) each Mortgage Loan (exclusive of
payments of principal and interest due on or before the Cut-off Date, if any,
received by the Master Servicer which shall not constitute an asset of the Trust
Fund) as from time to time are subject to this Agreement and all payments under
and proceeds of such Mortgage Loans (exclusive of any prepayment fees and late
payment charges received on the Mortgage Loans), together with all documents
included in the related Mortgage File, subject to Section 2.01; (ii) such funds
or assets as from time to time are deposited in the Master Servicer Collection
Account or the Distribution Account and belonging to the Trust Fund; (iii) any
REO Property; (iv) the primary hazard insurance policies, if any, the Primary
Mortgage Insurance Policies, if any, and all other Insurance Policies with
respect to the Mortgage Loans; and (v) the Depositor's interest in respect of
the representations and warranties made by the Seller in the Mortgage Loan
Purchase Agreement as assigned to the Trustee pursuant to Section 2.04 hereof.
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REMIC I PASS-THROUGH RATE: With respect to REMIC I Regular Xxxxxxxxx
X-X, XX-X, XXX-X and ZZZ, the weighted average of the Net Mortgage Rates of the
Mortgage Loans, weighted on the basis of the respective Stated Principal Balance
of each such Mortgage Loan as of the beginning of the Due Period immediately
preceding the related Distribution Date. With respect to REMIC I Regular
Interest I-B, the weighted average of the Net Mortgage Rates of the Group I
Mortgage Loans, weighted on the basis of the respective Stated Principal Balance
of each such Mortgage Loan as of the beginning of the Due Period immediately
preceding the related Distribution Date. With respect to REMIC I Regular
Interest II-B, the weighted average of the Net Mortgage Rates of the Group II
Mortgage Loans, weighted on the basis of the respective Stated Principal Balance
of each such Mortgage Loan as of the beginning of the Due Period immediately
preceding the related Distribution Date. With respect to REMIC I Regular
Interest III-B, the weighted average of the Net Mortgage Rates of the Group III
Mortgage Loans, weighted on the basis of the respective Stated Principal Balance
of each such Mortgage Loan as of the beginning of the Due Period immediately
preceding the related Distribution Date.
REMIC I REGULAR INTERESTS: Each uncertificated partial undivided
beneficial ownership interest in REMIC I as designated in the Preliminary
Statement having a principal balance equal to its Uncertificated Principal
Balance, and which bears interest at a rate equal to its REMIC I Pass-Through
Rate.
REMIC I SUBORDINATED BALANCE RATIO: The ratio among the Uncertificated
Principal Balances of each of the REMIC I Regular Interests ending with the
designation "A," equal to the ratio among:
(1) the excess of (x) the aggregate Stated
Principal Balance of the Group I Mortgage Loans over (y) the
Class Certificate Balance of the Class I-A Certificates;
(2) the excess of (x) the aggregate Stated
Principal Balance of the Group II Mortgage Loans over (y) the
Class Certificate Balance of the Class II-A Certificates; and
(3) the excess of (x) the aggregate Stated
Principal Balance of the Group III Mortgage Loans over (y) the
Class Certificate Balance of the Class III-A Certificates.
REMIC II: The segregated pool of assets consisting of the REMIC I
Regular Interests conveyed in trust to the Trustee for the benefit of the
holders of the Regular Certificates and the Class R-II Certificates, with
respect to which a separate REMIC election is to be made.
REMIC II CERTIFICATES: Any of the Class I-A, Class II-A-1, Class
II-A-2, Class III-A, Class M-1, Class M-2, Class M-3, Class B-1, Class B-2,
Class B-3 and Class R-II Certificates.
REMIC OPINION: An Opinion of Counsel stating that, under the REMIC
Provisions, any contemplated action will not cause REMIC I or REMIC II to fail
to qualify as a REMIC or result in the imposition of a tax upon the Trust Fund
(including but not limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth
in Section 860G(d) of the Code).
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REMIC PROVISIONS: Provisions of the federal income tax law relating to
real estate mortgage investment conduits which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations and rulings promulgated thereunder, as the foregoing may be in
effect from time to time.
REO PROPERTY: A Mortgaged Property acquired by the Servicer or Master
Servicer on behalf of the Trust Fund through foreclosure or deed-in-lieu of
foreclosure, as described in Section 3.23 in connection with a defaulted
Mortgage Loan.
REPURCHASE PROCEEDS: The Repurchase Price in connection with any
repurchase of a Mortgage Loan by the Seller and any cash deposit in connection
with the substitution of a Mortgage Loan.
REQUEST FOR RELEASE: A request for release in the form attached hereto
as Exhibit D.
REQUIRED INSURANCE POLICY: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement with respect to such Mortgage Loan.
RESIDUAL CERTIFICATES: Any of the Class R Certificates.
RESIDUAL INTEREST: The sole class of "residual interests" in a REMIC
within the meaning of Section 860G(a)(2) of the Code.
RESPONSIBLE OFFICER: Any officer assigned to the Corporate Trust Office
(or any successor thereto), including any Vice President, Assistant Vice
President, Trust Officer, 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, and any other officer
of the Trustee to whom a matter arising hereunder may be referred.
RULE 144A LETTER: The certificate to be furnished by each purchaser of
a Private Certificate (which is also a Physical Certificate) which is a
Qualified Institutional Buyer as defined under Rule 144A promulgated under the
Securities Act, substantially in the form set forth as Exhibit F-3 hereto.
S&P: Standard and Poor's, a division of The XxXxxx-Xxxx Companies, Inc.
or its successor in interest.
SCHEDULED PAYMENT: With respect to any Mortgage Loan and any month, the
scheduled payment or payments of principal and interest due during such month on
such Mortgage Loan which either is payable by a Mortgagor in such month under
the related Mortgage Note or, in the case of REO Property, would otherwise have
been payable under the related Mortgage Note.
SCHEDULED PRINCIPAL: The principal portion of any Scheduled Payment.
SECURITIES ACT: The Securities Act of 1933, as amended.
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SECURITIES ADMINISTRATOR: Xxxxx Fargo Bank, N.A., or its successor in
interest, or any successor securities administrator appointed as herein
provided.
SECURITY AGREEMENT: With respect to a Cooperative Loan, the agreement
creating a security interest in favor of the originator in the related
Cooperative Stock.
SECURITY INSTRUMENT: A written instrument creating a valid first lien
on a Mortgaged Property securing a Mortgage Note, which may be any applicable
form of mortgage, deed of trust, deed to secure debt or security deed, including
any riders or addenda thereto.
SELLER: Xxxxxxx Xxxxx Mortgage Lending, Inc., a Delaware corporation,
or any successor in interest.
SENIOR ACCELERATED DISTRIBUTION PERCENTAGE: The Group I, Group II or
Group III Senior Accelerated Distribution Percentage, as applicable.
SENIOR CERTIFICATES: The Class I-A, Class II-A-1, Class II-A-2 and
Class III-A Certificates.
SENIOR PERCENTAGE: The Group I Senior Percentage, Group II Senior
Percentage or Group III Senior Percentage, as applicable.
SENIOR PRINCIPAL DISTRIBUTION AMOUNT: The Group I Senior Principal
Distribution Amount, Group II Senior Principal Distribution Amount or Group III
Senior Principal Distribution Amount, as applicable.
SERVICER: With respect to each Mortgage Loan, ABN AMRO, Countrywide,
First Republic, National City or Washington Mutual, as applicable.
SERVICER REMITTANCE DATE: With respect to each Mortgage Loan other than
the Washington Mutual Loans, the date set forth in the related Servicing
Agreement. With respect to each Washington Mutual Loan, the date set forth in
the Washington Mutual Servicing Agreement as the Remittance Date (as such term
is defined in the Servicing Agreement).
SERVICING ADVANCES: With respect to any Mortgage Loan, all customary,
reasonable and necessary "out-of-pocket" costs and expenses incurred by the
Servicer in the performance of its servicing obligations, including, but not
limited to, the cost of (i) preservation, restoration, protection and repair of
a Mortgaged Property or Cooperative Unit, as applicable, (ii) any enforcement or
judicial proceedings with respect to a Mortgage Loan, including foreclosure
actions and (iii) the management and liquidation of REO Property.
SERVICING AGREEMENTS: The ABN AMRO Servicing Agreement, Countrywide
Servicing Agreement, First Republic Servicing Agreement, National City Servicing
Agreement and Washington Mutual Servicing Agreement.
SERVICING FEE: As to any Mortgage Loan other than the Washington Mutual
Loans, and Distribution Date, an amount equal to the product of (i) the Stated
Principal Balance of such
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Mortgage Loan as of the Due Date in the preceding calendar month and (ii) the
applicable Servicing Fee Rate. As to any Washington Mutual Loan, the amount of
the annual servicing fee owed to Washington Mutual, which shall, for each month,
be equal to one-twelfth of the product of (a) the related Servicing Fee Rate and
(b) the unpaid principal balance of the Mortgage Loan. Such fee shall be payable
monthly, computed on the basis of the same principal amount and period
respectively which any related interest payment on a Mortgage Loan is computed.
The amount of the Servicing Fee by which Washington Mutual is entitled is
limited to, and payable solely from, the interest portion (including recoveries
with respect to interest from Liquidation Proceeds, Insurance Proceeds,
condemnation proceeds and other proceeds, to the extent permitted by this
Agreement) of related Monthly Payment collected by Washington Mutual, or as
otherwise proved under Section 11.05 of the Washington Mutual Servicing
Agreement. If the Preliminary Servicing Period includes any partial month, the
Servicing Fee for such month shall be pro rated at a per diem rate based upon a
30-day month. If the Index and/or Gross Margin are adjusted as provided in the
related Mortgage Note, the Servicing Fee shall be the rate per annum in effect
immediately prior to such adjustment.
SERVICING FEE RATE: As to any Mortgage Loan, a per annum rate as set
forth in the Mortgage Loan Schedule.
SERVICING OFFICER: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and specimen signature appear on a list of servicing officers furnished to
the Trustee by the Master Servicer, as such list may be amended from time to
time.
SPECIAL HAZARD LOSS COVERAGE AMOUNT: As of any Distribution Date, an
amount equal to $6,010,242 minus the sum of (i) the aggregate amount of Special
Hazard Losses allocated solely to one or more specific Classes of Certificates
in accordance with Section 6.02 and (ii) the Adjustment Amount (as defined
below) as most recently calculated. For each anniversary of the Cut-off Date,
the Adjustment Amount shall be equal to the amount, if any, by which the amount
calculated in accordance with the preceding sentence (without giving effect to
the deduction of the Adjustment Amount for such anniversary) exceeds the greater
of (A) the greatest of (i) twice the outstanding principal balance of the
Mortgage Loan in the Trust Fund which has the largest outstanding principal
balance on the Distribution Date immediately preceding such anniversary, (ii)
the product of 1.00% multiplied by the outstanding principal balance of all
Mortgage Loans on the Distribution Date immediately preceding such anniversary
and (iii) the aggregate outstanding principal balance (as of the immediately
preceding Distribution Date) of the Mortgage Loans in any single five-digit
California zip code area with the largest amount of Mortgage Loans by aggregate
principal balance as of such anniversary and (B) the greater of (i) the product
of 0.50% multiplied by the outstanding principal balance of all Mortgage Loans
on the Distribution Date immediately preceding such anniversary multiplied by a
fraction, the numerator of which is equal to the aggregate outstanding principal
balance (as of the immediately preceding Distribution Date) of all of the
Mortgage Loans secured by Mortgaged Properties located in the State of
California divided by the aggregate outstanding principal balance (as of the
immediately preceding Distribution Date) of all of the Mortgage Loans, expressed
as a percentage, and the denominator of which is equal to 49.33% (which
percentage
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is equal to the percentage of Mortgage Loans initially secured by Mortgaged
Properties located in the State of California) and (ii) the aggregate
outstanding principal balance (as of the immediately preceding Distribution
Date) of the largest Mortgage Loan secured by a Mortgaged Property located in
the State of California.
The Special Hazard Amount may be further reduced by the Depositor
(including accelerating the manner in which coverage is reduced) provided that
prior to any such reduction, the Depositor shall (i) obtain written confirmation
from each Rating Agency that such reduction shall not reduce the rating assigned
to any Class of Certificates by such Rating Agency below the lower of the
then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency and (ii) provide a copy of such written
confirmation to the Trustee.
SPECIAL HAZARD LOSSES: Realized Losses in respect of Special Hazard
Mortgage Loans as reported by the applicable Servicer to the Master Servicer.
SPECIAL HAZARD MORTGAGE LOAN: A Liquidated Mortgage Loan as to which
the ability to recover the full amount due thereunder was substantially impaired
by a hazard not insured against under a standard hazard insurance policy.
STATED PRINCIPAL BALANCE: With respect to any Mortgage Loan and Due
Date, the unpaid principal balance of such Mortgage Loan as of such 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 prepayments
and Liquidation Proceeds received and to the payment of principal due on such
Due Date and irrespective of any delinquency in payment by the related
Mortgagor.
STARTUP DAY: January 31, 2005.
STAYED FUNDS: If the Master Servicer is the subject of a proceeding
under the federal Bankruptcy Code and the making of a remittance by the Master
Servicer pursuant to this Agreement is prohibited by Section 362 of the federal
Bankruptcy Code, funds which are in the custody of the Master Servicer, a
trustee in bankruptcy or a federal bankruptcy court and should have been the
subject of such remittance absent such prohibition.
SUBORDINATE CERTIFICATES: The Class M-1, Class M-2, Class M-3, Class
B-1, Class B-2 and Class B-3 Certificates.
SUBORDINATE PERCENTAGE: For any Distribution Date, the difference
between 100% and the Senior Percentage for such date.
SUBORDINATE PREPAYMENT PERCENTAGE: With respect to any Distribution
Date and each Class of Subordinate Certificates, under the applicable
circumstances set forth below, the respective percentages set forth below:
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(i) For any Distribution Date prior to the Distribution
Date in February 2012 (unless the Class Certificate Balances of the
Senior Certificates have been reduced to zero), 0%.
(ii) For any Distribution Date for which clause (i) does
not apply, and on which any Class of Subordinate Certificates are
outstanding:
(a) in the case of the Class of Subordinate
Certificates then outstanding with the Highest Priority and
each other Class of Subordinate Certificates for which the
related Prepayment Distribution Trigger has been satisfied, a
fraction, expressed as a percentage, the numerator of which is
the Class Certificate Balance of such Class immediately prior
to such date and the denominator of which is the sum of the
Class Certificate Balances immediately prior to such date of
(1) the Class of Subordinate Certificates then outstanding
with the Highest Priority and (2) all other Classes of
Subordinate Certificates for which the respective Prepayment
Distribution Triggers have been satisfied; and
(b) in the case of each other Class of
Subordinate Certificates for which the Prepayment Distribution
Triggers have not been satisfied, 0%; and
(iii) Notwithstanding the foregoing, if the application of
the foregoing percentages on any Distribution Date as provided in
Section 6.01 of this Agreement (determined without regard to the
proviso to the definition of "Subordinate Principal Distribution
Amount") would result in a distribution in respect of principal of any
Class or Classes of Subordinate Certificates in an amount greater than
the remaining Class Certificate Balance thereof (any such class, a
"Maturing Class"), then: (a) the Subordinate Prepayment Percentage of
each Maturing Class shall be reduced to a level that, when applied as
described above, would exactly reduce the Class Certificate Balance of
such Class to zero; (b) the Subordinate Prepayment Percentage of each
other Class of Subordinate Certificates (any such Class, a
"Non-Maturing Class") shall be recalculated in accordance with the
provisions in paragraph (ii) above, as if the Class Certificate Balance
of each Maturing Class had been reduced to zero (such percentage as
recalculated, the "Recalculated Percentage"); (c) the total amount of
the reductions in the Subordinate Prepayment Percentages of the
Maturing Class or Classes pursuant to clause (a) of this sentence,
expressed as an aggregate percentage, shall be allocated among the
Non-Maturing Classes in proportion to their respective Recalculated
Percentages (the portion of such aggregate reduction so allocated to
any Non-Maturing Class, the "Adjustment Percentage"); and (d) for
purposes of such Distribution Date, the Subordinate Prepayment
Percentage of each Non-Maturing Class shall be equal to the sum of (1)
the Subordinate Prepayment Percentage thereof, calculated in accordance
with the provisions in paragraph (ii) above as if the Class Certificate
Balance of each Maturing Class had not been reduced to zero, plus (2)
the related Adjustment Percentage.
SUBORDINATE PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date and each Class of Class M Certificates and Class B
Certificates, the sum of the following:
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(i) the product of (x) the related Class M Percentage or
Class B Percentage for such Class and (y) the aggregate of the
following amounts:
(1) the principal portion of each Monthly
Payment due during the related Due Period on each Outstanding
Mortgage Loan, whether or not received on or prior to the
related Determination Date, minus the principal portion of any
Debt Service Reduction which together with other Bankruptcy
Losses exceeds the Bankruptcy Loss Coverage Amount;
(2) the Stated Principal Balance of any Mortgage
Loan repurchased during the related Prepayment Period pursuant
to Section 2.02 or 2.03; and
(3) the principal portion of all other
unscheduled collections (other than Principal Prepayments in
Full and Curtailments and amounts received in connection with
the liquidation or other disposition of a Mortgage Loan,
including without limitation Insurance Proceeds, Liquidation
Proceeds and REO Proceeds) received during the related
Prepayment Period to the extent applied by the related
Servicer as recoveries of principal of the related Mortgage
Loan pursuant to the related Servicing Agreement;
(ii) such Class's pro rata share, based on the Class
Certificate Balance of each Class of Class M Certificates and Class B
Certificates then outstanding, of, with respect to each Mortgage Loan
for which a liquidation or other disposition occurred during the
related Prepayment Period and did not result in any Excess Losses, an
amount equal to the related unscheduled collections (including without
limitation Insurance Proceeds, Liquidation Proceeds and REO Proceeds)
to the extent applied by the related Servicer as recoveries of
principal of the related Mortgage Loan pursuant to the related
Servicing Agreement, to the extent such collections are not otherwise
distributed to the Senior Certificates;
(iii) the product of (x) the related Subordinate Prepayment
Percentage for such Distribution Date and (y) the aggregate of all
Principal Prepayments in Full and Curtailments of the Mortgage Loans
received in the related Prepayment Period, to the extent not payable to
the Senior Certificates; and
(iv) any amounts described in clauses (i), (ii) and (iii)
as determined for any previous Distribution Date, that remain
undistributed to the extent that such amounts are not attributable to
Realized Losses which have been allocated to a Class of Subordinate
Certificates;
provided, however, that such amount shall in no event exceed the outstanding
Class Certificate Balance of such Class of Certificates immediately prior to
such date.
SUBORDINATION: As defined in Section 6.02(c).
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SUBSEQUENT RECOVERIES: Any amount recovered by a Servicer or the Master
Servicer (net of reimbursable expenses) with respect to a Liquidated Mortgage
Loan with respect to which a Realized Loss was incurred after the liquidation or
disposition of such Mortgage Loan.
SUBSTITUTE MORTGAGE LOAN: With respect to any Mortgage Loan, other than
any Washington Mutual Loan, which is tendered to the Trustee pursuant to the
related Servicing Agreement, the Mortgage Loan Purchase Agreement or Section
2.04 of this Agreement, as applicable, in each case, (i) which has an
Outstanding Principal Balance not greater nor materially less than the Mortgage
Loan for which it is to be substituted; (ii) which has a Mortgage Interest Rate
and Net Rate not less than, and not materially greater than, such Mortgage Loan;
(iii) which has a maturity date not materially earlier or later than such
Mortgage Loan and not later than the latest maturity date of any Mortgage Loan;
(iv) which is of the same property type and occupancy type as such Mortgage
Loan; (v) which has a Loan-to-Value Ratio not greater than the Loan-to-Value
Ratio of such Mortgage Loan; (vi) which is current in payment of principal and
interest as of the date of substitution; (vii) as to which the payment terms do
not vary in any material respect from the payment terms of the Mortgage Loan for
which it is to be substituted and (viii) which has a Gross Margin, Periodic Rate
Cap and Maximum Lifetime Mortgage Rate no less than those of such Mortgage Loan,
has the same Index and interval between Interest Adjustment Dates as such
Mortgage Loan, and a Minimum Lifetime Mortgage Rate no lower than that of such
Mortgage Loan.
With respect to any Washington Mutual Loan, which is tendered to the
Trustee pursuant to the Washington Mutual Servicing Agreement, the Mortgage Loan
Purchase Agreement or Section 2.04 of this Agreement, as applicable, in each
case, (i) which has an Outstanding Principal Balance, after application of all
scheduled payments of principal and interest due during or prior to the month of
substitution, not in excess of the Stated Principal Balance of the Mortgage Loan
for which it is to be substituted as of the Due Date in the calendar month
during which the substitution occurs, (ii) which has a Mortgage Interest Rate
not less than (and not more than one percentage point in excess of) the Mortgage
Interest Rate of such Mortgage Loan, (iii) which has a Net Mortgage Rate equal
to or greater than the Net Mortgage Rate of such Mortgage Loan, (iv) which has a
remaining term to maturity not greater than (and not more than one year less
than) that of such Mortgage Loan, (v) which has the same Due Date as the Due
Date on such Mortgage Loan, (vi) which has a Loan-to-Value Ratio as of the date
of substitution equal to or lower than the Loan-to-Value Ratio of such Mortgage
Loan as of such date, (vii) be covered under a Primary Insurance Policy if such
Substitute Mortgage Loan has a Loan-to-Value Ratio in excess of 80%, (viii)
conform to each non-statistical representation and warranty set forth in Section
7.02 of the Washington Mutual Servicing Agreement and (ix) be the same type of
mortgage loan (i.e. adjustable rate with the same Gross Margin and Index as the
Deleted Mortgage Loan). In the event that one or more mortgage loans are
substituted for one or more Mortgage Loans, the amounts described in clause (i)
hereof shall be determined on the basis of aggregate principal balances, the
Mortgage Interest Rates described in clause (ii) hereof shall be determined on
the basis of weighted average Mortgage Interest Rates, the Net Mortgage Rates
described in clause (iii) hereof shall be determined on the basis of weighted
average Net Mortgage Rates, the terms described in clause (iv) shall be
determined on the basis of weighted average remaining terms to maturity, the
Loan-to-Value Ratios described in clause (vi) hereof
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shall be satisfied as to each such mortgage loan and, except to the extent
otherwise provided in this sentence, the representations and warranties
described in clause (viii) hereof must be satisfied as to each Substitute
Mortgage Loan or in the aggregate, as the case may be.
TAX ADMINISTRATION AND TAX MATTERS PERSON: The Securities Administrator
or any successor thereto or assignee thereof shall serve as tax administrator
hereunder and as agent for the Tax Matters Person. The Holder of each Class of
Residual Certificates shall be the Tax Matters Person for the related REMIC, as
more particularly set forth in Section 9.12 hereof.
TRUSTEE: Wachovia Bank, National Association, or its successor in
interest, or any successor trustee appointed as herein provided.
TRUST FUND: REMIC I and REMIC II.
UNCERTIFICATED PRINCIPAL BALANCE: With respect to each REMIC I Regular
Interest on any date of determination, the amount set forth in the Preliminary
Statement hereto minus the sum of (x) the aggregate of all amounts previously
deemed distributed with respect to such interest and applied to reduce the
Uncertificated Principal Balance thereof pursuant to Section 6.01 and (y) the
aggregate of all reductions in Class Certificate Balance deemed to have occurred
in connection with Realized Losses that were previously deemed allocated to the
Uncertificated Principal Balance of such REMIC I Regular Interest pursuant to
Section 6.07.
UNCERTIFICATED REMIC ACCRUED INTEREST: With respect to each
Distribution Date, as to any REMIC I Regular Interest, interest accrued during
the related Interest Accrual Period at the related REMIC I Pass-Through Rate on
the Uncertificated Principal Balance thereof immediately prior to such
Distribution Date. Uncertificated REMIC Accrued Interest will be calculated on
the basis of a 360-day year, consisting of twelve 30-day months. In each case
Uncertificated REMIC Accrued Interest on any REMIC I Regular Interest will be
reduced by the amount of: (i) Prepayment Interest Shortfalls on all Mortgage
Loans (to the extent not offset by the Master Servicer with a Compensating
Interest Payment as provided in Section 6.06), (ii) the interest portion
(adjusted to the Net Mortgage Rate) of Realized Losses (including Excess Losses)
not allocated solely to one or more specific Classes of Certificates pursuant to
Section 6.02, (iii) the interest portion of Monthly Advances previously made
with respect to a Mortgage Loan or REO Property which remained unreimbursed
following the liquidation or other disposition of such Mortgage Loan or REO
Property by the related Servicer or the Master Servicer that were made with
respect to delinquencies that were ultimately determined to be Excess Losses and
(iv) any other interest shortfalls not covered by the subordination provided by
the Class M Certificates and Class B Certificates with all such reductions
allocated among all of the REMIC I Regular Interests in proportion to their
respective amounts of Uncertificated REMIC Accrued Interest payable on such
Distribution Date which would have resulted absent such reductions.
UNDERCOLLATERALIZED AMOUNT: On any Distribution Date, the excess of (x)
the aggregate Class Certificate Balance of any Class or Classes of Senior
Certificates related to a Loan Group immediately prior to such Distribution Date
over (y) the aggregate Stated Principal Balance of the Mortgage Loans in its
related Loan Group as of the beginning of the related Due Period.
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UNDERCOLLATERALIZED SENIOR CERTIFICATES: As defined in Section 6.01(F).
UNDERLYING SELLER: With respect to each Mortgage Loan, ABN AMRO,
Countrywide, First Republic, National City or Washington Mutual as indicated on
the Mortgage Loan Schedule.
UNINSURED CAUSE: Any cause of damage to a Mortgaged Property or related
REO Property such that the complete restoration of such Mortgaged Property or
related REO Property is not fully reimbursable by the hazard insurance policies
required to be maintained pursuant the related Servicing Agreement, without
regard to whether or not such policy is maintained.
UNITED STATES PERSON: A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States or any state thereof or the District of Columbia
(except, in the case of a partnership, to the extent provided in regulations),
provided that, for purposes solely of the Class R Certificates, no partnership
or other entity treated as a partnership for United States federal income tax
purposes shall be treated as a United States Person unless all persons that own
an interest in such partnership either directly or through any entity that is
not a corporation for United States federal income tax purposes are United
States Persons, or an estate whose income is subject to United States federal
income tax regardless of its source, or 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 such United States Persons have the authority to control
all substantial decisions of the trust. To the extent prescribed in regulations
by the Secretary of the Treasury, which have not yet been issued, a trust which
was in existence on August 20, 1996 (other than a trust treated as owned by the
grantor under subpart E of part I of subchapter J of chapter 1 of the Code), and
which was treated as a United States person on August 20, 1996 may elect to
continue to be treated as a United States person notwithstanding the previous
sentence.
VOTING RIGHTS: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. The Voting Rights allocated
among Holders of such Certificates outstanding shall be the fraction, expressed
as a percentage, the numerator of which is the aggregate Class Certificate
Balance of all the Certificates of such Class then outstanding and the
denominator of which is the aggregate Class Certificate Balance of all the
Certificates then outstanding (other than the Class R Certificates). 99.00% of
all Voting Rights will be allocated among all holders of the Certificates (other
than the Class R Certificates) in proportion to their then outstanding Class
Certificate Balances and 0.5% and 0.5% of all Voting Rights will be allocated
among the holders of the Class R-I Certificates and Class R-II Certificates,
respectively, in proportion to the Percentage Interests evidenced by their
respective Certificates; provided, however, that any Certificate registered in
the name of the Master Servicer, the Depositor or the Trustee or any of their
respective affiliates shall not be included in the calculation of Voting Rights.
WASHINGTON MUTUAL: Washington Mutual Bank, FA.
WASHINGTON MUTUAL ASSIGNMENT AGREEMENT: Shall mean the Assignment,
Assumption and Recognition Agreement, dated as of January 31, 2005, among
Washington Mutual, the
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Depositor and the Seller pursuant to which the Washington Mutual Servicing
Agreement and the rights of the Seller thereunder (other than the rights to
enforce the representations and warranties with respect to the Washington Mutual
Loans) were assigned to the Depositor for the benefit of the Certificateholders.
WASHINGTON MUTUAL LOANS: Shall mean those Mortgage Loans serviced by
Washington Mutual pursuant to the Washington Mutual Servicing Agreement.
WASHINGTON MUTUAL SERVICING AGREEMENT: Shall mean the Master Mortgage
Loan Purchase and Servicing Agreement, dated as of June 1, 2001, among MLBUSA,
Company, Washington Mutual Bank fsb, as seller and Washington Mutual Bank, FA,
as servicer, and the modifications thereto provided in Annex A to the Warranty
Xxxx of Sale dated April 26, 2004, among MLBUSA, Washington Mutual Bank FA,
Washington Mutual Bank fsb, as seller and Washington Mutual Bank, FA, as
servicer, as assigned to the Seller pursuant to the Assignment and Assumption
Agreement, dated September 10, 2004 between MLBUSA and Seller.
Section 1.02 ACCOUNTING.
Unless otherwise specified herein, for the purpose of any definition or
calculation, whenever amounts are required to be netted, subtracted or added or
any distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication of
such functions.
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ARTICLE II
CONVEYANCE OF MORTGAGELOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 CONVEYANCE OF MORTGAGE LOANS TO TRUSTEE. (a) The Depositor
concurrently with the execution and delivery of this Agreement, sells, transfers
and assigns to the Trust without recourse all its right, title and interest in
and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule,
including all interest and principal due with respect to the Mortgage Loans
after the Cut-off Date, but excluding any payments of principal and interest due
on or prior to the Cut-off Date; (ii) such assets as shall from time to time be
credited or are required by the terms of this Agreement to be credited to the
Master Servicer Collection Account, (iii) such assets relating to the Mortgage
Loans as from time to time may be held by the Servicers in Protected Accounts,
the Master Servicer in the Master Servicer Collection Account and the Trustee in
the Distribution Account for the benefit of the Trustee on behalf of the
Certificateholders, (iv) any REO Property, (v) the Required Insurance Policies
and any amounts paid or payable by the insurer under any Insurance Policy (to
the extent the mortgagee has a claim thereto), (vi) the Mortgage Loan Purchase
Agreement to the extent provided in Subsection 2.03(a), (vii) the rights with
respect to the Servicing Agreements as assigned to the Depositor on behalf of
the Certificateholders by the Assignment Agreements and (viii) any proceeds of
the foregoing. Although it is the intent of the parties to this Agreement that
the conveyance of the Depositor's right, title and interest in and to the
Mortgage Loans and other assets in the Trust Fund pursuant to this Agreement
shall constitute a purchase and sale and not a loan, in the event that such
conveyance is deemed to be a loan, it is the intent of the parties to this
Agreement that the Depositor shall be deemed to have granted to the Trustee a
first priority perfected security interest in all of the Depositor's right,
title and interest in, to and under the Mortgage Loans and other assets in the
Trust Fund, and that this Agreement shall constitute a security agreement under
applicable law.
(b) In connection with the above transfer and assignment, the
Depositor hereby deposits with the Trustee or the Custodian, as its agent, the
following documents or instruments (I) with respect to each Mortgage Loan, other
than a Cooperative Loan:
(i) the original Mortgage Note, endorsed in the following
form: "Pay to the order of Wachovia Bank, National Association, as
Trustee for the registered holders of the Xxxxxxx Xxxxx Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series 2005-A1,
without recourse," with all prior and intervening endorsements showing
a complete chain of endorsement from the originator to the Person so
endorsing to the Trustee;
(ii) the original recorded Mortgage or a copy of the
Mortgage certified by the public recording office in which such
Mortgage has been recorded;
(iii) an original Assignment of the Mortgage executed in
the following form: "Wachovia Bank, National Association, as Trustee
for the registered holders of the Xxxxxxx Xxxxx Mortgage Investors,
Inc., Mortgage Pass-Through Certificates, Series 2005-A1.
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(iv) the original recorded Assignment or Assignments of
the Mortgage showing a complete chain of assignment from the originator
to the Person assigning the Mortgage to the Trustee as contemplated by
the immediately preceding clause (iii), if applicable and only to the
extent available to the Depositor with evidence of recording thereon;
(v) the originals of all assumption, modification,
consolidation or extension agreements, with evidence of recording
thereon, if any;
(vi) the original of any guarantee executed in connection
with the Mortgage Note;
(vii) the original mortgagee title insurance policy;
(viii) the original of any security agreement, chattel
mortgage or equivalent document executed in connection with the
Mortgage; and
(ix) the original power of attorney, if applicable;
and (II) with respect to each Mortgage Loan that is a Cooperative Loan:
(i) the original Mortgage Note, endorsed in the following
form: "Pay to the order of Wachovia Bank, National Association, as
Trustee for the registered holders of the Xxxxxxx Xxxxx Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series 2005-A1,
without recourse," with all prior and intervening endorsements showing
a complete chain of endorsement from the originator to the Person so
endorsing to the Trustee;
(ii) the original duly executed assignment of Security
Agreement to the Trustee;
(iii) the acknowledgment copy of the original executed Form
UCC-1 (or certified copy thereof) with respect to the Security
Agreement, and any required continuation statements;
(iv) the acknowledgment copy of the original executed Form
UCC-3 with respect to the Security Agreement, indicating the Trustee as
the assignee of the secured party;
(v) the stock certificate representing the Cooperative
Assets allocated to the cooperative unit, with a stock power in blank
attached;
(vi) the original collateral assignment of the proprietary
lease by Mortgagor to the originator;
(vii) a copy of the recognition agreement;
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(viii) if applicable and to the extent available, the
original intervening assignments, including warehousing assignments, if
any, showing, to the extent available, an unbroken chain of the related
Mortgage Loan to the Trustee, together with a copy of the related Form
UCC-3 with evidence of filing thereon;
(ix) the originals of each assumption, modification or
substitution agreement, if any, relating to the Mortgage Loan; and
(x) the certificate of primary mortgage insurance, if
applicable;
provided, however, that in lieu of the foregoing, the Depositor may deliver the
following documents, under the circumstances set forth below: (w) the Depositor
may deliver a Mortgage Note pursuant to (A)(i) and (B)(i) endorsed in blank,
provided that the endorsement is completed within 60 days of the Closing Date;
(x) in lieu of the original Mortgage, assignments to the Trustee or intervening
assignments thereof which have been delivered, are being delivered or will, upon
receipt of recording information relating to the Mortgage required to be
included thereon, be delivered to recording offices for recording and have not
been returned to the Depositor in time to permit their delivery as specified
above, the Depositor may deliver a true copy thereof with a certification by the
Depositor on the face of such copy, substantially as follows: "Certified to be a
true and correct copy of the original, which has been transmitted for
recording"; and (y) in lieu of the Mortgage, assignment to the Trustee or
intervening assignments thereof, if the applicable jurisdiction retains the
originals of such documents (as evidenced by a certification from the Depositor
or the Master Servicer, to such effect) the Depositor may deliver photocopies of
such documents containing an original certification by the judicial or other
governmental authority of the jurisdiction where such documents were recorded;
and provided, further, however, that in the case of Mortgage Loans which have
been prepaid in full after the Cut-off Date and prior to the Closing Date, the
Depositor, in lieu of delivering the above documents, may deliver to the Trustee
a certification to such effect and shall deposit all amounts paid in respect of
such Mortgage Loans in the Distribution Account on the Closing Date. The
Depositor shall deliver such original documents (including any original
documents as to which certified copies had previously been delivered) to the
Trustee promptly after they are received. The Depositor shall cause, at its
expense, the assignment of the Mortgage to the Trustee to be recorded not later
than 180 days after the Closing Date, unless such recordation is not required by
the Rating Agencies or an Opinion of Counsel has been provided as set forth
below in this Section 2.01. With respect to the Cooperative Loans, the Depositor
will, promptly after the Closing Date, cause the related financing statements
(if not yet filed) and an assignment thereof from the Depositor to the Trustee
to be filed in the appropriate offices. The Depositor need not cause to be
recorded any assignment in any jurisdiction under the laws of which, as
evidenced by an Opinion of Counsel delivered by the Depositor to the Trustee and
the Rating Agencies, the recordation of such assignment is not necessary to
protect the Trustee's interest in the related Mortgage Loan; provided, however,
notwithstanding the delivery of any Opinion of Counsel, each assignment shall be
submitted for recording by the Depositor in the manner described above, at no
expense to the Trust Fund, the Trustee or the Custodian, upon the earliest to
occur of: (i) reasonable direction by the Holders of Certificates evidencing
Percentage Interests aggregating not less than 25% of the Trust Fund, (ii) the
occurrence of an Event of Default, (iii) the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Depositor, (iv) the
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occurrence of a servicing transfer as described in Section 8.02 hereof and (v)
with respect to any one assignment, the occurrence of a bankruptcy, insolvency
or foreclosure relating to the Mortgagor under the related Mortgage.
Notwithstanding the foregoing, if the Depositor fails to pay the cost of
recording the assignments, such expense will be paid by the Trustee and the
Trustee shall be reimbursed for such expenses by the Trust Fund in accordance
with Section 9.05.
If any original Mortgage Note referred to in Section
2.01(b)(I)(i) or 2.01(b)(II)(i) above cannot be located, the obligations of the
Depositor to deliver such documents shall be deemed to be satisfied upon
delivery to the Trustee of a photocopy of such Mortgage Note, if available, with
a lost note affidavit. If any of the original Mortgage Notes for which a lost
note affidavit was delivered to the Trustee is subsequently located, such
original Mortgage Note shall be delivered to the Trustee within three Business
Days.
(c) The parties hereto agree that it is not intended that any
mortgage loan be included in the Trust that is either (i) a "High-Cost Home
Loan" as defined in the New Jersey Home Ownership Act effective November 27,
2003, (ii) a "High-Cost Home Loan" as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (iii) a "High Cost Home Mortgage Loan"
as defined in the Massachusetts Predatory Home Loan Practices Act effective
November 7, 2004 or (iv) a "High-Cost Home Loan" as defined by the Indiana High
Cost Home Loan Law effective Jan 1, 2005.
Section 2.02 ACCEPTANCE OF MORTGAGE LOANS BY TRUSTEE.
(a) The Trustee acknowledges the sale, transfer and assignment of
the Trust to it by the Depositor and receipt of, subject to further review and
the exceptions which may be noted pursuant to the procedures described below,
and declares that it, or the Custodian on its behalf, holds the documents (or
certified copies thereof) delivered to it pursuant to Section 2.01, and declares
that it will continue to hold those documents and any amendments, replacements
or supplements thereto and all other assets of the Trust Fund delivered to it as
Trustee in trust for the use and benefit of all present and future Holders of
the Certificates. On or before the Closing Date (or, with respect to any
Substitute Mortgage Loan, within five Business Days after the receipt by the
Trustee or Custodian thereof), the Trustee agrees, for the benefit of the
Certificateholders, to review or cause to be reviewed by the Custodian on its
behalf (under the Custodial Agreement), each Mortgage File delivered to it and
to execute and deliver, or cause to be executed and delivered, to the Depositor
on the Closing Date an Initial Certification. In conducting such review, the
Trustee or Custodian will certify as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in the exception report annexed thereto as
not being covered by such certification), (i) all documents constituting part of
such Mortgage File (other than such documents described in Section
2.01(b)(I)(iii)) required to be delivered to it pursuant to this Agreement are
in its possession, provided that with respect to the documents described in
Section 2.01(b)(I)(v), (vi), (viii) and (ix) and 2.01(b)(II)(viii), (ix) and (x)
to the extent the Trustee or the Custodian on its behalf has actual knowledge
that such documents exist, (ii) such documents have been reviewed by it and are
not torn, mutilated, defaced or otherwise altered (except if initialed by the
obligor) and appear to relate on their face to such Mortgage Loan, (iii)
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based on its examination and only as to the foregoing, the information set forth
in the Mortgage Loan Schedule corresponding to the loan number for the Mortgage
Loan, the Mortgagor's name, including the street address but excluding the zip
code, the Mortgage Interest Rate and the original principal balance of the
Mortgage Loan accurately reflects information set forth in the Mortgage File and
(iv) with respect to Mortgage Loans with a Mortgage Interest Rate subject to
adjustment, the gross margin, the lifetime cap and the periodic cap for such
Mortgage Loan. In performing any such review, the Trustee, or the Custodian, as
its agent, may conclusively rely on the purported due execution and genuineness
of any such document and on the purported genuineness of any signature thereon.
Notwithstanding anything to the contrary in this Agreement, it is herein
acknowledged that, in conducting such review, the Trustee or the Custodian on
its behalf is under no duty or obligation to inspect, review or examine any such
documents, instruments, certificates or other papers to determine whether they
are genuine, enforceable, or appropriate for the represented purpose or whether
they have actually been recorded or that they are other than what they purport
to be on their face, or to determine whether any Person executing any documents
is authorized to do so or whether any signature is genuine. If the Trustee or
the Custodian, as its agent, finds any document constituting part of the
Mortgage File not to have been executed or received, or to be unrelated to the
Mortgage Loans identified in Exhibit B or to appear to be defective on its face,
the Trustee or the Custodian, as its agent, shall promptly notify the Seller. In
accordance with the Mortgage Loan Purchase Agreement, the Seller shall correct
or cure any such defect within ninety (90) days from the date of notice from the
Trustee or the Custodian, as its agent, of the defect and if the Seller fails to
correct or cure the defect within such period, and such defect materially and
adversely affects the interests of the Certificateholders in the related
Mortgage Loan, the Trustee, shall enforce the Seller's obligation pursuant to
the Mortgage Loan Purchase Agreement, within 90 days from the Trustee's or the
Custodian's notification, to purchase such Mortgage Loan at the Purchase Price;
provided that, if such defect would cause the Mortgage Loan to be other than a
"qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure
or repurchase must occur within 90 days from the date such breach was
discovered; provided, however, that if such defect relates solely to the
inability of the Seller to deliver the original Security Instrument or
intervening assignments thereof, or a certified copy because the originals of
such documents, or a certified copy have not been returned by the applicable
jurisdiction, the Seller shall not be required to purchase such Mortgage Loan if
the Seller delivers such original documents or certified copy promptly upon
receipt, but in no event later than 360 days after the Closing Date. The
foregoing repurchase obligation shall not apply in the event that the Seller
cannot deliver such original or copy of any document submitted for recording to
the appropriate recording office in the applicable jurisdiction because such
document has not been returned by such office; provided that the Seller shall
instead deliver a recording receipt of such recording office or, if such receipt
is not available, a certificate confirming that such documents have been
accepted for recording, and delivery to the Trustee or the Custodian, as its
agent, shall be effected by the Seller within thirty days of its receipt of the
original recorded document.
(b) No later than 180 days after the Closing Date, the Trustee or
the Custodian, as its agent, will review, for the benefit of the
Certificateholders, the Mortgage Files delivered to it and will execute and
deliver or cause to be executed and delivered to the Depositor a Final
Certification. In conducting such review, the Trustee or the Custodian, as its
agent, will certify as
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to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage Loan specifically identified in the
exception report annexed thereto as not being covered by such certification),
that (i) all documents constituting part of such Mortgage File (other than such
documents described in Section 2.01(b)(I)(v) and (ix)) required to be delivered
to it pursuant to this Agreement are in its possession, provided that with
respect to the documents described in Section 2.01(b)(I)(v), (vi), (viii) and
(ix) and 2.01(b)(II)(viii), (ix) and (x) to the extent the Trustee or the
Custodian on its behalf has actual knowledge that such documents exist, (ii)
such documents have been reviewed by it and are not torn, mutilated, defaced or
otherwise altered (except if initialed by the obligor) and appear regular on
their face and relate to such Mortgage Loan, (iii) based on its examination and
only as to the foregoing, the information set forth in the Mortgage Loan
Schedule corresponding to the loan number for the Mortgage Loan, the Mortgagor's
name, including the street address but excluding the zip code, the Mortgage
Interest Rate and the original principal balance of the Mortgage Loan accurately
reflects information set forth in the Mortgage File. In performing any such
review, the Trustee, or the Custodian, as its agent, may conclusively rely on
the purported due execution and genuineness of any such document and on the
purported genuineness of any signature thereon. Notwithstanding anything to the
contrary in this Agreement, it is herein acknowledged that, in conducting such
review, the Trustee or the Custodian on its behalf is under no duty or
obligation (i) to inspect, review or examine any such documents, instruments,
certificates or other papers to determine whether they are genuine, enforceable,
or appropriate for the represented purpose or whether they have actually been
recorded or that they are other than what they purport to be on their face, or
to determine whether any Person executing any documents is authorized to do so
or whether any signature is genuine. If the Trustee or the Custodian, as its
agent, finds any document constituting part of the Mortgage File not to have
been executed or received, or to be unrelated to the Mortgage Loans identified
in Exhibit B or to appear to be defective on its face, the Trustee or the
Custodian, as its agent, shall promptly notify the Seller. In accordance with
the Mortgage Loan Purchase Agreement, the Seller shall correct or cure any such
defect within 90 days from the date of notice from the Trustee of the defect and
if the Seller is unable to cure such defect within such period, and if such
defect materially and adversely affects the interests of the Certificateholders
in the related Mortgage Loan, the Trustee shall enforce the Seller's obligation
under the Mortgage Loan Purchase Agreement to purchase such Mortgage Loan at the
Purchase Price, provided, however, that if such defect relates solely to the
inability of the Seller to deliver the original Security Instrument or
intervening assignments thereof, or a certified copy, because the originals of
such documents. or a certified copy, have not been returned by the applicable
jurisdiction, the Seller shall not be required to purchase such Mortgage Loan,
if the Seller delivers such original documents or certified copy promptly upon
receipt, but in no event later than 360 days after the Closing Date.
(c) In the event that a Mortgage Loan is purchased by the Seller
in accordance with Subsections 2.02(a) or (b) above, the Seller shall remit to
the Master Servicer the Purchase Price for deposit in the Master Servicer
Collection Account and the Seller shall provide to the Trustee written
notification detailing the components of the Purchase Price. Upon deposit of the
Purchase Price in the Master Servicer Collection Account, the Depositor shall
notify the Trustee and the Custodian and the Trustee or the Custodian, as its
agent (upon receipt of a Request for Release in the form of Exhibit D attached
hereto with respect to such Mortgage Loan), shall release to the
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Seller the related Mortgage File and the Trustee shall execute and deliver all
instruments of transfer or assignment, without recourse, furnished to it by the
Seller as are necessary to vest in the Seller title to and rights under the
Mortgage Loan. Such purchase shall be deemed to have occurred on the date on
which the Purchase Price in available funds is received by the Trustee. The
Trustee shall amend the Mortgage Loan Schedule, which was previously delivered
to it by Depositor in a form agreed to between the Depositor and the Trustee, to
reflect such repurchase and shall promptly notify the Rating Agencies and the
Master Servicer of such amendment. The obligation of the Seller to repurchase
any Mortgage Loan as to which such a defect in a constituent document exists
shall be the sole remedy respecting such defect available to the
Certificateholders or to the Trustee on their behalf.
Section 2.03 ASSIGNMENT OF INTEREST IN THE MORTGAGE LOAN PURCHASE
AGREEMENT.
(a) The Depositor hereby assigns to the Trustee, on behalf of the
Certificateholders, all of its right, title and interest in the Mortgage Loan
Purchase Agreement, including but not limited to Depositor's rights and
obligations pursuant to the Servicing Agreements (noting that the Seller has
retained the right in the event of breach of the representations, warranties and
covenants, if any, with respect to the related Mortgage Loans of the related
Servicer under the related Servicing Agreement to enforce the provisions thereof
and to seek all or any available remedies). The obligations of the Seller to
substitute or repurchase, as applicable, a Mortgage Loan shall be the Trustee's
and the Certificateholders' sole remedy for any breach thereof. At the request
of the Trustee, the Depositor shall take such actions as may be necessary to
enforce the above right, title and interest on behalf of the Trustee and the
Certificateholders or shall execute such further documents as the Trustee may
reasonably require in order to enable the Trustee to carry out such enforcement.
With respect to the representations and warranties described in the Mortgage
Loan Purchase Agreement which are made to the best of the Seller's knowledge, if
it is discovered by any of the Depositor, the Seller or the Trustee that the
substance of such representation and warranty is inaccurate and such inaccuracy
materially and adversely affects the value of the related Mortgage Loan, then
notwithstanding the Seller's lack of knowledge with respect to the substance of
such representation and warranty, such inaccuracy shall be deemed a breach of
the applicable representation or warranty.
(b) If the Depositor, the Master Servicer, Securities
Administrator or the Trustee discovers a breach of any of the representations
and warranties set forth in the Mortgage Loan Purchase Agreement, which breach
materially and adversely affects the value of the interests of
Certificateholders or the Trustee in the related Mortgage Loan, the party
discovering the breach shall give prompt written notice of the breach to the
other parties. The Seller, within 90 days of its discovery or receipt of notice
that such breach has occurred (whichever occurs earlier), shall cure the breach
in all material respects or, subject to the Mortgage Loan Purchase Agreement or
Section 2.04 of this Agreement, as applicable, shall purchase the Mortgage Loan
or any property acquired with respect thereto from the Trustee; provided,
however, that if there is a breach of any representation set forth in the
Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, and the Mortgage Loan or the related property acquired with respect
thereto has been sold, then the Seller shall pay, in lieu of the Purchase Price,
any excess of the Purchase Price over the Net Liquidation Proceeds received upon
such sale. (If the Net Liquidation Proceeds exceed the Purchase Price, any
excess shall be paid to the Seller to the
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extent not required by law to be paid to the borrower.) Any such purchase by the
Seller shall be made by providing an amount equal to the Purchase Price to the
Master Servicer for deposit in the Master Servicer Collection Account and
written notification detailing the components of such Purchase Price. The
Depositor shall notify the Trustee and submit to the Trustee or the Custodian,
as its agent, a Request for Release, and the Trustee shall release, or the
Trustee shall cause the Custodian to release, to the Seller the related Mortgage
File and the Trustee shall execute and deliver all instruments of transfer or
assignment furnished to it by the Seller, without recourse, as are necessary to
vest in the Seller title to and rights under the Mortgage Loan or any property
acquired with respect thereto. Such purchase shall be deemed to have occurred on
the date on which the Purchase Price in available funds is received by the
Trustee. The Trustee or the Master Servicer shall amend the Mortgage Loan
Schedule to reflect such repurchase and shall promptly notify the Master
Servicer and the Rating Agencies of such amendment. Enforcement of the
obligation of the Seller to purchase (or substitute a Substitute Mortgage Loan
for) any Mortgage Loan or any property acquired with respect thereto (or pay the
Purchase Price as set forth in the above proviso) as to which a breach has
occurred and is continuing shall constitute the sole remedy respecting such
breach available to the Certificateholders or the Trustee on their behalf.
Section 2.04 SUBSTITUTION OF MORTGAGE LOANS. Notwithstanding anything
to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan
pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of
this Agreement, the Seller may, no later than the date by which such purchase by
the Seller would otherwise be required, tender to the Trustee a Substitute
Mortgage Loan accompanied by a certificate of an authorized officer of the
Seller that such Substitute Mortgage Loan conforms to the requirements set forth
in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase
Agreement or this Agreement, as applicable; provided, however, that substitution
pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this
Agreement, as applicable, in lieu of purchase shall not be permitted after the
termination of the two-year period beginning on the Startup Day; provided,
further, that if the breach would cause the Mortgage Loan to be other than a
"qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure
or substitution must occur within 90 days from the date the breach was
discovered. The Trustee or the Custodian, as its agent, shall examine the
Mortgage File for any Substitute Mortgage Loan in the manner set forth in
Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the
Seller, in writing, within five Business Days after receipt, whether or not the
documents relating to the Substitute Mortgage Loan satisfy the requirements of
the fourth sentence of Subsection 2.02(a). Within two Business Days after such
notification, the Seller shall provide to the Trustee for deposit in the
Distribution Account the amount, if any, by which the Outstanding Principal
Balance as of the next preceding Due Date of the Mortgage Loan for which
substitution is being made, after giving effect to Scheduled Principal due on
such date, exceeds the Outstanding Principal Balance as of such date of the
Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such
date, which amount shall be treated for the purposes of this Agreement as if it
were the payment by the Seller of the Purchase Price for the purchase of a
Mortgage Loan by the Seller. After such notification to the Seller and, if any
such excess exists, upon receipt of such deposit, the Trustee shall accept such
Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan
hereunder. In the event of such a substitution, accrued interest on the
Substitute Mortgage Loan for the month in
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which the substitution occurs and any Principal Prepayments made thereon during
such month shall be the property of the Trust Fund and accrued interest for such
month on the Mortgage Loan for which the substitution is made and any Principal
Prepayments made thereon during such month shall be the property of the Seller.
The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the
month of substitution shall be the property of the Seller and the Scheduled
Principal on the Mortgage Loan for which the substitution is made due on such
Due Date shall be the property of the Trust Fund. Upon acceptance of the
Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request
for Release for such Mortgage Loan), the Trustee shall release to the Seller the
related Mortgage File related to any Mortgage Loan released pursuant to the
Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, and shall execute and deliver all instruments of transfer or
assignment, without recourse, in form as provided to it as are necessary to vest
in the Seller title to and rights under any Mortgage Loan released pursuant to
the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable. The Seller shall deliver the documents related to the Substitute
Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase
Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable,
with the date of acceptance of the Substitute Mortgage Loan deemed to be the
Closing Date for purposes of the time periods set forth in those Subsections.
The representations and warranties set forth in the Mortgage Loan Purchase
Agreement shall be deemed to have been made by the Seller with respect to each
Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by
the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to
reflect such substitution and shall provide a copy of such amended Mortgage Loan
Schedule to the Trustee and the Rating Agencies.
Section 2.05 ISSUANCE OF CERTIFICATES.
(a) The Trustee acknowledges the assignment to it on behalf of the
Trust Fund of the Mortgage Loans and the other assets comprising the Trust Fund
and, concurrently therewith, has signed, and countersigned and delivered to the
Depositor, in exchange therefor, Certificates in such authorized denominations
representing such Percentage Interests as the Depositor has requested. The
Trustee agrees that it will hold the Mortgage Loans and such other assets as may
from time to time be delivered to it segregated on the books of the Trustee in
trust for the benefit of the Certificateholders.
(b) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey in trust to
the Trustee without recourse all the right, title and interest of the Depositor
in and to the assets of REMIC I for the benefit of the holders of the REMIC I
Regular Interests. The Trustee acknowledges receipt of the assets of REMIC I and
declares that it holds and will hold the same in trust for the exclusive use and
benefit of the holders of the REMIC I Regular Interests.
(c) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey in trust to
the Trustee without recourse all the right, title and interest of the Depositor
in and to the REMIC I Regular Interests and the other assets of REMIC II for the
benefit of the holders of the REMIC II Certificates. The Trustee acknowledges
receipt of the REMIC I Regular Interests (which are uncertificated) and the
other
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assets of REMIC II and declares that it holds and will hold the same in trust
for the exclusive use and benefit of the holders of the REMIC II Certificates.
Section 2.06 REPRESENTATIONS AND WARRANTIES CONCERNING THE DEPOSITOR.
The Depositor hereby represents and warrants to the Trustee, the Master Servicer
and the Securities Administrator as follows:
(i) the Depositor (a) is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and (b) is qualified and in good standing as a foreign
corporation to do business in each jurisdiction where such
qualification is necessary, except where the failure so to qualify
would not reasonably be expected to have a material adverse effect on
the Depositor's business as presently conducted or on the Depositor's
ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(ii) the Depositor has full corporate power to own its
property, to carry on its business as presently conducted and to enter
into and perform its obligations under this Agreement;
(iii) the execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate action
on the part of the Depositor; and neither the execution and delivery of
this Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will conflict
with or result in a breach of, or constitute a default under, any of
the provisions of any law, governmental rule, regulation, judgment,
decree or order binding on the Depositor or its properties or the
articles of incorporation or by-laws of the Depositor, except those
conflicts, breaches or defaults which would not reasonably be expected
to have a material adverse effect on the Depositor's ability to enter
into this Agreement and to consummate the transactions contemplated
hereby;
(iv) the execution, delivery and performance by the
Depositor of this Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the
giving of notice to, the registration with, or the taking of any other
action in respect of, any state, federal or other governmental
authority or agency, except those consents, approvals, notices,
registrations or other actions as have already been obtained, given or
made;
(v) this Agreement has been duly executed and delivered
by the Depositor and, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid and binding
obligation of the Depositor enforceable against it in accordance with
its terms (subject to applicable bankruptcy and insolvency laws and
other similar laws affecting the enforcement of the rights of creditors
generally);
(vi) there are no actions, suits or proceedings pending
or, to the knowledge of the Depositor, threatened against the
Depositor, before or by any court, administrative agency, arbitrator or
governmental body (i) with respect to any of the transactions
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contemplated by this Agreement or (ii) with respect to any other matter
which in the judgment of the Depositor will be determined adversely to
the Depositor and will if determined adversely to the Depositor
materially and adversely affect the Depositor's ability to enter into
this Agreement or perform its obligations under this Agreement; and the
Depositor is not in default with respect to any order of any court,
administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this
Agreement; and
(vii) immediately prior to the transfer and assignment to
the Trustee, each Mortgage Note and each Mortgage were not subject to
an assignment or pledge, and the Depositor had good and marketable
title to and was the sole owner thereof and had full right to transfer
and sell such Mortgage Loan to the Trustee free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security interest.
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ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 MASTER SERVICER. The Master Servicer shall supervise,
monitor and oversee the obligation of the Servicers to service and administer
their respective Mortgage Loans in accordance with the terms of the applicable
Servicing Agreement and shall have full power and authority to do any and all
things which it may deem necessary or desirable in connection with such master
servicing and administration. In performing its obligations hereunder, the
Master Servicer shall act in a manner consistent with Accepted Master Servicing
Practices. Furthermore, the Master Servicer shall oversee and consult with each
Servicer as necessary from time-to-time to carry out the Master Servicer's
obligations hereunder, shall receive, review and evaluate all reports,
information and other data provided to the Master Servicer by each Servicer and
shall cause each Servicer to perform and observe the covenants, obligations and
conditions to be performed or observed by such Servicer under the applicable
Servicing Agreement. The Master Servicer shall independently and separately
monitor each Servicer's servicing activities with respect to each related
Mortgage Loan, reconcile the results of such monitoring with such information
provided in the previous sentence on a monthly basis and coordinate corrective
adjustments to the Servicers' and Master Servicer's records, and based on such
reconciled and corrected information, the Master Servicer shall provide such
information to the Securities Administrator as shall be necessary in order for
it to prepare the statements specified in Section 6.04, and prepare any other
information and statements required to be forwarded by the Master Servicer
hereunder. The Master Servicer shall reconcile the results of its Mortgage Loan
monitoring with the actual remittances of the Servicers to the Protected Account
pursuant to the applicable Servicing Agreement.
If the Master Servicer and the Securities Administrator are the same
entity, then at any time the Master Servicer is terminated as Master Servicer,
the Securities Administrator shall likewise be removed as securities
administrator.
The Trustee shall furnish the Servicers and the Master Servicer with
any limited powers of attorney and other documents in form as provided to it
necessary or appropriate to enable the Servicers and the Master Servicer to
service and administer the related Mortgage Loans and REO Property. The Trustee
shall have no liability with respect to the use of any such limited power of
attorney.
The Trustee or the Custodian shall provide access to the records and
documentation in possession of the Trustee or the Custodian regarding the
related Mortgage Loans and REO Property and the servicing thereof to the
Certificateholders, the FDIC, and the supervisory agents and examiners of the
FDIC, such access being afforded only upon reasonable prior written request and
during normal business hours at the office of the Trustee or the Custodian;
provided, however, that, unless otherwise required by law, the Trustee or the
Custodian shall not be required to provide access to such records and
documentation if the provision thereof would violate the legal right to privacy
of any Mortgagor. The Trustee or the Custodian shall allow representatives of
the above entities to photocopy any of the records and documentation and shall
provide equipment for that purpose at a charge that covers the Trustee's or the
Custodian's actual costs.
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The Trustee shall execute and deliver to the related Servicer and the
Master Servicer upon request any court pleadings, requests for trustee's sale or
other documents necessary or desirable to (i) the foreclosure or trustee's sale
with respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Security Instrument;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or Security Instrument or
otherwise available at law or equity.
Section 3.02 REMIC-RELATED COVENANTS. For as long as each REMIC shall
exist, the Trustee and the Securities Administrator shall act in accordance
herewith to assure continuing treatment of such REMIC as a REMIC, and the
Trustee and the Securities Administrator shall comply with any directions of the
Depositor, the related Servicer or the Master Servicer to assure such continuing
treatment. In particular, the Trustee shall not (a) sell or permit the sale of
all or any portion of the Mortgage Loans or of any investment of deposits in an
Account unless such sale is as a result of a repurchase of the Mortgage Loans
pursuant to this Agreement or the Trustee has received a REMIC Opinion prepared
at the expense of the Trust Fund; and (b) other than with respect to a
substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of
this Agreement, as applicable, accept any contribution to any REMIC after the
Startup Day without receipt of a REMIC Opinion.
Section 3.03 MONITORING OF SERVICERS. (a) The Master Servicer shall be
responsible for reporting to the Trustee and the Depositor the compliance by
each Servicer with its duties under the related Servicing Agreement. In the
review of each Servicer's activities, the Master Servicer may rely upon an
officer's certificate of the Servicer with regard to such Servicer's compliance
with the terms of its Servicing Agreement. In the event that the Master
Servicer, in its judgment, determines that a Servicer should be terminated in
accordance with its Servicing Agreement, or that a notice should be sent
pursuant to such Servicing Agreement with respect to the occurrence of an event
that, unless cured, would constitute grounds for such termination, the Master
Servicer shall notify the Depositor and the Trustee thereof and the Master
Servicer shall issue such notice or take such other action as it deems
appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of such
Servicer thereunder and act as servicer of the related Mortgage Loans or to
cause the Trustee to enter in to a new Servicing Agreement with a successor
Servicer selected by the Master Servicer; provided, however, it is understood
and acknowledged by the parties hereto that there will be a period of transition
(not to exceed 90 days) before the actual servicing functions can be fully
transferred to such successor Servicer. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Servicing Agreements
and the pursuit of other appropriate remedies, shall be in such form and carried
out to such an extent and at such time as the Master Servicer, in its good faith
business judgment, would require were it the owner of the related Mortgage
Loans. The Master Servicer shall pay the costs of such enforcement at its own
expense subject to Section 3.03(c), provided that the Master Servicer shall not
be required
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to prosecute or defend any legal action except to the extent that the Master
Servicer shall have received reasonable indemnity for its costs and expenses in
pursuing such action.
(c) To the extent that the costs and expenses of the Master
Servicer related to any termination of a Servicer, appointment of a successor
Servicer or the transfer and assumption of servicing by the Master Servicer with
respect to any Servicing Agreement (including, without limitation, (i) all legal
costs and expenses and all due diligence costs and expenses associated with an
evaluation of the potential termination of the Servicer as a result of an event
of default by such Servicer and (ii) all costs and expenses associated with the
complete transfer of servicing, including all servicing files and all servicing
data and the completion, correction or manipulation of such servicing data as
may be required by the successor servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the successor
service to service the Mortgage Loans in accordance with the related Servicing
Agreement) are not fully and timely reimbursed by the terminated Servicer, the
Master Servicer shall be entitled to reimbursement of such costs and expenses
from the Master Servicer Collection Account pursuant to Section 4.03(b).
(d) The Master Servicer shall require each Servicer to comply with
the remittance requirements and other obligations set forth in the related
Servicing Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer, if any, that
it replaces.
Section 3.04 FIDELITY BOND. The Master Servicer, at its expense, shall
maintain in effect a blanket fidelity bond and an errors and omissions insurance
policy, affording coverage with respect to all directors, officers, employees
and other Persons acting on such Master Servicer's behalf, and covering errors
and omissions in the performance of the Master Servicer's obligations hereunder.
The errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
Section 3.05 POWER TO ACT; PROCEDURES. The Master Servicer shall master
service the Mortgage Loans and shall have full power and authority, subject to
the REMIC Provisions and the provisions of Article X hereof, to do any and all
things that it may deem necessary or desirable in connection with the master
servicing and administration of the Mortgage Loans, including but not limited to
the power and authority (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, (iii) to
collect any Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan, in each case, in accordance with the provisions of
this Agreement and the related Servicing Agreement, as applicable; provided,
however, that the Master Servicer shall not (and, consistent with its
responsibilities under Section 3.03, shall not permit any Servicer to) knowingly
or intentionally take any action, or fail to take (or fail to cause to be taken)
any action reasonably within its control and the scope of duties more
specifically set forth herein, that, under the REMIC Provisions, if taken or not
taken, as the case may be, would cause REMIC I or REMIC II to fail to qualify as
a REMIC or result in the imposition of a tax upon the Trust Fund (including
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but not limited to the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code) unless the Master Servicer has received an Opinion
of Counsel (but not at the expense of the Master Servicer) to the effect that
the contemplated action will not would cause REMIC I or REMIC II to fail to
qualify as a REMIC or result in the imposition of a tax upon REMIC I or REMIC
II, as the case may be. The Trustee shall furnish the Master Servicer, upon
written request from a Servicing Officer, with any limited powers of attorney
empowering the Master Servicer or any Servicer to execute and deliver
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and to foreclose upon or otherwise liquidate Mortgaged Property, and
to appeal, prosecute or defend in any court action relating to the Mortgage
Loans or the Mortgaged Property, in accordance with the applicable Servicing
Agreement and this Agreement, and the Trustee shall execute and deliver such
other documents, as the Master Servicer may request, to enable the Master
Servicer to master service and administer the Mortgage Loans and carry out its
duties hereunder, in each case in accordance with Accepted Master Servicing
Practices (and the Trustee shall have no liability for misuse of any such powers
of attorney by the Master Servicer or any Servicer). If the Master Servicer or
the Trustee has been advised that it is likely that the laws of the state in
which action is to be taken prohibit such action if taken in the name of the
Trustee or that the Trustee would be adversely affected under the "doing
business" or tax laws of such state if such action is taken in its name, the
Master Servicer shall join with the Trustee in the appointment of a co-trustee
pursuant to Section 9.11 hereof. In the performance of its duties hereunder, the
Master Servicer shall be an independent contractor and shall not, except in
those instances where it is taking action in the name of the Trustee, be deemed
to be the agent of the Trustee.
Section 3.06 DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS. To the extent
provided in the applicable Servicing Agreement, to the extent Mortgage Loans
contain enforceable due-on-sale clauses, the Master Servicer shall cause the
Servicers to enforce such clauses in accordance with the applicable Servicing
Agreement. If applicable law prohibits the enforcement of a due-on-sale clause
or such clause is otherwise not enforced in accordance with the applicable
Servicing Agreement, and, as a consequence, a Mortgage Loan is assumed, the
original Mortgagor may be released from liability in accordance with the
applicable Servicing Agreement.
Section 3.07 RELEASE OF MORTGAGE FILES. (a) Upon becoming aware of the
payment in full of any Mortgage Loan, or the receipt by any Servicer of a
notification that payment in full has been escrowed in a manner customary for
such purposes for payment to Certificateholders on the next Distribution Date,
the Servicer or the Master Servicer will, if required under the applicable
Servicing Agreement, promptly furnish to the Custodian, on behalf of the
Trustee, two copies of a certification substantially in the form of Exhibit D
hereto signed by a Servicing Officer or in a mutually agreeable electronic
format which will, in lieu of a signature on its face, originate from a
Servicing Officer (which certification shall include a statement to the effect
that all amounts received in connection with such payment that are required to
be deposited in the Protected Account maintained by the applicable Servicer
pursuant to Section 4.01 or by the applicable Servicer pursuant to its Servicing
Agreement have been or will be so deposited) and shall request that the
Custodian, on behalf of the Trustee, deliver to the applicable Servicer the
related Mortgage File. Upon receipt of such certification and request, the
Custodian, on behalf of the Trustee, shall no later than five Business Days (or,
to the extent that the applicable Servicer
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notifies the Seller that a document is not in the Servicer's possession as part
of the Servicing File which is needed for purposes of the Servicer complying
with any applicable law, within such shorter period as may be necessary to
enable the Servicer to comply with such law), release the related Mortgage File
to the applicable Servicer and the Trustee and Custodian shall have no further
responsibility with regard to such Mortgage File. Upon any such payment in full,
each Servicer is authorized, to give, as agent for the Trustee, as the mortgagee
under the Mortgage that secured the Mortgage Loan, an instrument of satisfaction
(or assignment of mortgage without recourse) regarding the Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or assignment, as the
case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of such payment, it being understood and agreed that no
expenses incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the Protected Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan and in accordance with the applicable Servicing
Agreement, the Trustee shall execute such documents as requested and as shall be
prepared and furnished to the Trustee by a Servicer or the Master Servicer (in
form reasonably acceptable to the Trustee) and as are necessary to the
prosecution of any such proceedings. In connection with the foregoing, the
Custodian, on behalf of the Trustee, shall, upon the request of a Servicer or
the Master Servicer, and delivery to the Custodian, on behalf of the Trustee, of
two copies of a Request for Release signed by a Servicing Officer substantially
in the form of Exhibit D (or in a mutually agreeable electronic format which
will, in lieu of a signature on its face, originate from a Servicing Officer),
release the related Mortgage File held in its possession or control to the
Servicer or the Master Servicer, as applicable. Such trust receipt shall
obligate the Servicer or the Master Servicer to return the Mortgage File to the
Custodian on behalf of the Trustee, when the need therefor by the Servicer or
the Master Servicer no longer exists unless the Mortgage Loan shall be
liquidated, in which case, upon receipt of a certificate of a Servicing Officer
similar to that hereinabove specified, the Mortgage File shall be released by
the Custodian, on behalf of the Trustee, to the Servicer or the Master Servicer.
Section 3.08 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER
SERVICER TO BE HELD FOR TRUSTEE.
(a) The Master Servicer shall transmit and each Servicer (to the
extent required by the related Servicing Agreement) shall transmit to the
Trustee or Custodian such documents and instruments coming into the possession
of the Master Servicer or such Servicer from time to time as are required by the
terms hereof, or in the case of the Servicers, the applicable Servicing
Agreement, to be delivered to the Trustee or Custodian. Any funds received by
the Master Servicer or by a Servicer in respect of any Mortgage Loan or which
otherwise are collected by the Master Servicer or by a Servicer as Liquidation
Proceeds or Insurance Proceeds in respect of any Mortgage Loan shall be held for
the benefit of the Trustee and the Certificateholders subject to the Master
Servicer's right to retain or withdraw from the Master Servicer Collection
Account the Master Servicing Compensation and other amounts provided in this
Agreement, and to the right of each Servicer to retain its Servicing Fee and
other amounts as provided in the applicable Servicing Agreement. The Master
Servicer shall, and (to the extent provided in the applicable Servicing
Agreement) shall cause each Servicer to, provide access to information and
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documentation regarding the Mortgage Loans to the Trustee, its agents and
accountants at any time upon reasonable request and during normal business
hours, and to Certificateholders that are savings and loan associations, banks
or insurance companies, the Office of Thrift Supervision, the FDIC and the
supervisory agents and examiners of such Office and Corporation or examiners of
any other federal or state banking or insurance regulatory authority if so
required by applicable regulations of the Office of Thrift Supervision or other
regulatory authority, such access to be afforded without charge but only upon
reasonable request in writing and during normal business hours at the offices of
the Master Servicer designated by it. In fulfilling such a request the Master
Servicer shall not be responsible for determining the sufficiency of such
information.
(b) All Mortgage Files and funds collected or held by, or under
the control of, the Master Servicer, in respect of any Mortgage Loans, whether
from the collection of principal and interest payments or from Liquidation
Proceeds or Insurance Proceeds, shall be held by the Master Servicer for and on
behalf of the Trustee and the Certificateholders and shall be and remain the
sole and exclusive property of the Trustee; provided, however, that the Master
Servicer and each Servicer shall be entitled to setoff against, and deduct from,
any such funds any amounts that are properly due and payable to the Master
Servicer or such Servicer under this Agreement or the applicable Servicing
Agreement.
Section 3.09 STANDARD HAZARD INSURANCE AND FLOOD INSURANCE POLICIES.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the related Servicing Agreements to maintain
or cause to be maintained standard fire and casualty insurance and, where
applicable, flood insurance, all in accordance with the provisions of the
related Servicing Agreements. It is understood and agreed that such insurance
shall be with insurers meeting the eligibility requirements set forth in the
applicable Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require such
additional insurance.
(b) Pursuant to Section 4.01 and 4.02, any amounts collected by
the Servicers or the Master Servicer, or by any Servicer, under any insurance
policies (other than amounts to be applied to the restoration or repair of the
property subject to the related Mortgage or released to the Mortgagor in
accordance with the applicable Servicing Agreement) shall be deposited into the
Master Servicer Collection Account, subject to withdrawal pursuant to Section
4.02 and 4.03 in accordance with the terms and conditions of the related
Servicing Agreement. Any cost incurred by the Master Servicer or any Servicer in
maintaining any such insurance if the Mortgagor defaults in its obligation to do
so shall be added to the amount owing under the Mortgage Loan where the terms of
the Mortgage Loan so permit; provided, however, that the addition of any such
cost shall not be taken into account for purposes of calculating the
distributions to be made to Certificateholders and shall be recoverable by the
Master Servicer or such Servicer pursuant to Section 4.02 and 4.03.
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Section 3.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS. The
Master Servicer shall (to the extent provided in the applicable Servicing
Agreement) cause the related Servicer to, prepare and present on behalf of the
Trustee and the Certificateholders all claims under the Insurance Policies and
take such actions (including the negotiation, settlement, compromise or
enforcement of the insured's claim) as shall be necessary to realize recovery
under such policies. Any proceeds disbursed to the Master Servicer (or disbursed
to a Servicer and remitted to the Master Servicer) in respect of such policies,
bonds or contracts shall be promptly deposited in the Master Servicer Collection
Account upon receipt, except that any amounts realized that are to be applied to
the repair or restoration of the related Mortgaged Property as a condition
precedent to the presentation of claims on the related Mortgage Loan to the
insurer under any applicable Insurance Policy need not be so deposited (or
remitted).
Section 3.11 MAINTENANCE OF THE PRIMARY MORTGAGE INSURANCE POLICIES.
(a) The Master Servicer shall not take, or permit any Servicer (to
the extent such action is prohibited under the applicable Servicing Agreement)
to take, any action that would result in noncoverage under any applicable
Primary Mortgage Insurance Policy of any loss which, but for the actions of such
Master Servicer or Servicer, would have been covered thereunder. The Master
Servicer shall use its best reasonable efforts to cause each Servicer (to the
extent required under the related Servicing Agreement) to keep in force and
effect (to the extent that the Mortgage Loan requires the Mortgagor to maintain
such insurance), primary mortgage insurance applicable to each Mortgage Loan in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. The Master Servicer shall not, and shall not permit
any Servicer (to the extent required under the related Servicing Agreement) to,
cancel or refuse to renew any such Primary Mortgage Insurance Policy that is in
effect at the date of the initial issuance of the Mortgage Note and is required
to be kept in force hereunder except in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each
Servicer (to the extent required under the related Servicing Agreement) to
present, on behalf of the Trustee and the Certificateholders, claims to the
insurer under any Primary Mortgage Insurance Policies and, in this regard, to
take such reasonable action as shall be necessary to permit recovery under any
Primary Mortgage Insurance Policies respecting defaulted Mortgage Loans.
Pursuant to Section 4.01 and 4.02, any amounts collected by the Master Servicer
or any Servicer under any Primary Mortgage Insurance Policies shall be deposited
in the Master Servicer Collection Account, subject to withdrawal pursuant to
Section 4.03.
Section 3.12 TRUSTEE TO RETAIN POSSESSION OF CERTAIN INSURANCE POLICIES
AND DOCUMENTS.
The Trustee or the Custodian shall retain possession and custody of the
originals (to the extent available) of any Primary Mortgage Insurance Policies,
or certificate of insurance if applicable, and any certificates of renewal as to
the foregoing as may be issued from time to time as contemplated by this
Agreement. Until all amounts distributable in respect of the Certificates have
been distributed in full and the Master Servicer otherwise has fulfilled its
obligations under
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this Agreement, the Trustee or its Custodian shall also retain possession and
custody of each Mortgage File in accordance with and subject to the terms and
conditions of this Agreement. The Master Servicer shall promptly deliver or
cause to be delivered to the Trustee or the Custodian upon the execution or
receipt thereof the originals of any Primary Mortgage Insurance Policies, any
certificates of renewal, and such other documents or instruments that constitute
portions of the Mortgage File that come into the possession of the Master
Servicer from time to time.
Section 3.13 REALIZATION UPON DEFAULTED MORTGAGE LOANS. The Master
Servicer shall cause each Servicer (to the extent required under the related
Servicing Agreement) to foreclose upon, repossess or otherwise comparably
convert the ownership of Mortgaged Properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, all in
accordance with the terms and conditions of the applicable Servicing Agreement.
Section 3.14 COMPENSATION FOR THE MASTER SERVICER.
The Master Servicer will be entitled to all income and gain realized
from any investment of funds in the Distribution Account and the Master Servicer
Collection Account, pursuant to Article IV, for the performance of its
activities hereunder. Servicing compensation in the form of assumption fees, if
any, late payment charges, as collected, if any, or otherwise (but not including
any prepayment premium or penalty) shall be retained by the applicable Servicer
and shall not be deposited in the Protected Account. The Master Servicer shall
be required to pay all expenses incurred by it in connection with its activities
hereunder and shall not be entitled to reimbursement therefor except as provided
in this Agreement.
Section 3.15 REO PROPERTY.
(a) In the event the Trust Fund acquires ownership of any REO
Property in respect of any related Mortgage Loan, the deed or certificate of
sale shall be issued to the Trustee, or to its nominee, on behalf of the related
Certificateholders. The Master Servicer shall, to the extent provided in the
applicable Servicing Agreement, cause the applicable Servicer to sell, any REO
Property as expeditiously as possible and in accordance with the provisions of
this Agreement and the related Servicing Agreement, as applicable. Pursuant to
its efforts to sell such REO Property, the Master Servicer shall cause the
applicable Servicer to protect and conserve, such REO Property in the manner and
to the extent required by the applicable Servicing Agreement, in accordance with
the REMIC Provisions and in a manner that does not result in a tax on "net
income from foreclosure property" or cause such REO Property to fail to qualify
as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code.
(b) The Master Servicer shall, to the extent required by the
related Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Protected Account.
(c) The Master Servicer and the applicable Servicer, upon the
final disposition of any REO Property, shall be entitled to reimbursement for
any related unreimbursed Monthly Advances and other unreimbursed advances as
well as any unpaid Servicing Fees from
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Liquidation Proceeds received in connection with the final disposition of such
REO Property; provided, that any such unreimbursed Monthly Advances as well as
any unpaid Servicing Fees may be reimbursed or paid, as the case may be, prior
to final disposition, out of any net rental income or other net amounts derived
from such REO Property.
(d) To the extent provided in the related Servicing Agreement, the
Liquidation Proceeds from the final disposition of the REO Property, net of any
payment to the Master Servicer and the applicable Servicer as provided above
shall be deposited in the Protected Account on or prior to the Determination
Date in the month following receipt thereof and be remitted by wire transfer in
immediately available funds to the Master Servicer for deposit into the related
Master Servicer Collection Account on the next succeeding Servicer Remittance
Date.
Section 3.16 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
(a) The Master Servicer shall deliver to the Trustee and the
Rating Agencies on or before March 15 of each year, commencing on March 15,
2006, an Officer's Certificate, certifying that with respect to the period
ending December 31 of the prior year: (i) such Servicing Officer has reviewed
the activities of such Master Servicer during the preceding calendar year or
portion thereof and its performance under this Agreement, (ii) to the best of
such Servicing Officer's knowledge, based on such review, such Master Servicer
has performed and fulfilled its duties, responsibilities and obligations under
this Agreement in all material respects throughout such year, or, if there has
been a default in the fulfillment of any such duties, responsibilities or
obligations, specifying each such default known to such Servicing Officer and
the nature and status thereof, (iii) nothing has come to the attention of such
Servicing Officer to lead such Servicing Officer to believe that any Servicer
has failed to perform any of its duties, responsibilities and obligations under
its Servicing Agreement in all material respects throughout such year, or, if
there has been a material default in the performance or fulfillment of any such
duties, responsibilities or obligations, specifying each such default known to
such Servicing Officer and the nature and status thereof.
(b) Copies of such statements shall be provided to any
Certificateholder upon request, by the Master Servicer or by the Trustee at the
Master Servicer's expense if the Master Servicer failed to provide such copies
(unless (i) the Master Servicer shall have failed to provide the Trustee with
such statement or (ii) the Trustee shall be unaware of the Master Servicer's
failure to provide such statement).
Section 3.17 ANNUAL INDEPENDENT ACCOUNTANT'S SERVICING REPORT. If the
Master Servicer has, during the course of any fiscal year, directly serviced any
of the Mortgage Loans, then the Master Servicer at its expense shall cause a
nationally recognized firm of independent certified public accountants to
furnish a statement to the Trustee, the Rating Agencies and the Depositor on or
before March 15 of each year, commencing on March 15, 2006 to the effect that,
with respect to the most recently ended fiscal year, such firm has examined
certain records and documents relating to the Master Servicer's performance of
its servicing obligations under this Agreement and pooling and servicing and
trust agreements in material respects similar to this Agreement and to each
other and that, on the basis of such examination conducted substantially in
compliance with
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the audit program for mortgages serviced for Xxxxxxx Mac or the Uniform Single
Attestation Program for Mortgage Bankers, such firm is of the opinion that the
Master Servicer's activities have been conducted in compliance with this
Agreement, or that such examination has disclosed no material items of
noncompliance except for (i) such exceptions as such firm believes to be
immaterial, (ii) such other exceptions as are set forth in such statement and
(iii) such exceptions that the Uniform Single Attestation Program for Mortgage
Bankers or the Audit Program for Mortgages Serviced by Xxxxxxx Mac requires it
to report. Copies of such statements shall be provided to any Certificateholder
upon request by the Master Servicer, or by the Trustee at the expense of the
Master Servicer if the Master Servicer shall fail to provide such copies. If
such report discloses exceptions that are material, the Master Servicer shall
advise the Trustee whether such exceptions have been or are susceptible of cure,
and will take prompt action to do so.
Section 3.18 REPORTS FILED WITH SECURITIES AND EXCHANGE COMMISSION.
(a) Within 15 days after each Distribution Date, the Master
Servicer shall, in accordance with industry standards, file with the Commission
via the Electronic Data Gathering and Retrieval System ("XXXXX"), a Form 8-K (or
other comparable form containing the same or comparable information or other
information mutually agreed upon) with a copy of the statement to the Trustee
who shall make available on its website a copy of the statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior to
March 30, 2006 (and each year thereafter unless a Form 15D Suspension
Notification has been filed pursuant to Section 3.18(d) below), the Master
Servicer shall prepare and file a Form 10-K, in substance conforming to industry
standards, with respect to the Trust Fund. Each such Form 10-K shall include as
exhibits each Servicer's annual statement of compliance and annual accountant's
report as described in the related Servicing Agreement, in each case to the
extent timely delivered to the Master Servicer. If they are not so timely
delivered, the Master Servicer shall file an amended Form 10-K including such
documents as exhibits reasonably promptly after they are delivered to the Master
Servicer. The Form 10-K shall also include a certification in the form attached
hereto as Exhibit K, in compliance with Rules 13a-14 and 15d-14 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and any
additional directives of the Commission, which shall be signed by a Servicing
Officer of the Master Servicer. The Depositor hereby grants to the Master
Servicer a limited power of attorney to execute and file the Form 8-K and Form
10-K on behalf of the Depositor. Such power of attorney shall continue until
either the earlier of (i) receipt by the Master Servicer from the Depositor of
written termination of such power of attorney and (ii) the termination of the
Trust Fund. The Depositor agrees to promptly furnish to the Master Servicer,
from time to time upon request, such further information, reports and financial
statements within its control related to this Agreement and the Mortgage Loans
as the Master Servicer reasonably deems appropriate to prepare and file all
necessary reports with the Commission. Notwithstanding the foregoing sentence,
the Master Servicer shall have no responsibility to file any items other than
those specified in this Section 3.18; provided, however, the Master Servicer
will cooperate with the Depositor in connection with any additional filings with
respect to the Trust Fund as the Depositor deems necessary under the Exchange
Act. Copies of all reports filed by the Master Servicer under the Exchange Act
shall be sent to: the Depositor c/o Merrill Xxxxx & Co. Inc. Attn: Managing
Director-Analysis and Control. Fees and expenses
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incurred by the Master Servicer in connection with this Section 3.18 shall not
be reimbursable from the Trust Fund except as pursuant to Sections 7.04(c)
hereof.
(b) The Master Servicer shall indemnify and hold harmless the
Trustee, the Depositor and their respective officers, directors and Affiliates
from and against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments and other costs and
expenses arising out of or based upon a breach of the Master Servicer's
obligations under this Section 3.18 or the Master Servicer's negligence, bad
faith or willful misconduct in connection therewith.
(c) If, after the Closing Date (a) the Xxxxxxxx-Xxxxx Act of 2002
is amended, (b) Rules 13a-14 and 15d-14 under the Exchange Act and any related
directives of the Commission are modified or superseded by any subsequent
statement, rule, directive or regulation of the Commission or any division
thereof, or (c) any future releases, rules and regulations are published by the
Commission from time to time pursuant to the Xxxxxxxx-Xxxxx Act of 2002, which
in any such case affect the form or substance of the required certification
under Rule 13a-14 and 15d-14 of the Exchange Act such that, in the reasonable
judgment of the Master Servicer, the required certification is materially more
onerous than the form of the requirement attached hereto as Exhibit K as of the
Closing Date, the Master Servicer, the Depositor and the Mortgage Loan Seller
shall negotiate in good faith to determine how to amend the certification
attached hereto as Exhibit K or any of the provisions in this Section 3.18 to
comply with any such new requirements. Notwithstanding any other provision of
this Agreement, the provisions of this Section 3.18 may be amended by the
Depositor, the Master Servicer and the Trustee without the consent of the
Certificateholders.
(d) Prior to January 30th of the first year in which the Master
Servicer is able to do so under applicable law, the Master Servicer shall file
with the Commission a Form 15D Suspension Notification with respect to the Trust
Fund.
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ARTICLE IV
ACCOUNTS
Section 4.01 PROTECTED ACCOUNTS. (a) The Master Servicer shall enforce
the obligation of each Servicer to establish and maintain a Protected Account in
accordance with the applicable Servicing Agreement, with records to be kept with
respect thereto on a Mortgage Loan by Mortgage Loan basis, into which accounts
shall be deposited within 48 hours (or as of such other time specified in the
related Servicing Agreement) of receipt all collections of principal and
interest on any Mortgage Loan and with respect to any REO Property received by a
Servicer, including Principal Prepayments, Insurance Proceeds, Liquidation
Proceeds, Subsequent Recoveries and advances made from the Servicer's own funds
(less servicing compensation as permitted by the applicable Servicing Agreement
in the case of any Servicer) and all other amounts to be deposited in the
Protected Account. The Servicer is hereby authorized to make withdrawals from
and deposits to the related Protected Account for purposes required or permitted
by this Agreement. To the extent provided in the related Servicing Agreement,
the Protected Account shall be held in a Designated Depository Institution and
segregated on the books of such institution in the name of the Trustee for the
benefit of Certificateholders.
(b) To the extent provided in the related Servicing Agreement,
amounts on deposit in a Protected Account may be invested in Permitted
Investments in the name of the Trustee for the benefit of Certificateholders
and, except as provided in the preceding paragraph, not commingled with any
other funds, such Permitted Investments to mature, or to be subject to
redemption or withdrawal, no later than the date on which such funds are
required to be withdrawn for deposit in the Master Servicer Collection Account,
and shall be held until required for such deposit. The income earned from
Permitted Investments made pursuant to this Section 4.01 shall be paid to the
related Servicer under the applicable Servicing Agreement, and the risk of loss
of moneys required to be distributed to the Certificateholders resulting from
such investments shall be borne by and be the risk of the related Servicer, as
set forth in applicable Servicing Agreement. The related Servicer (to the extent
provided in the Servicing Agreement) shall deposit the amount of any such loss
in the Protected Account within two Business Days of receipt of notification of
such loss but not later than the second Business Day prior to the Distribution
Date on which the moneys so invested are required to be distributed to the
Certificateholders.
(c) To the extent provided in the related Servicing Agreement and
subject to this Article IV, on or before each Servicer Remittance Date, the
related Servicer shall withdraw or shall cause to be withdrawn from the
Protected Accounts and shall immediately deposit or cause to be deposited in the
Master Servicer Collection Account amounts representing the following
collections and payments (other than with respect to principal of or interest on
the Mortgage Loans due on or before the Cut-off Date) with respect to each Loan
Group:
(i) Monthly Payments on the Mortgage Loans received or
any related portion thereof advanced by the Servicers pursuant to the
Servicing Agreements which were due on or before the related Due Date,
net of the amount thereof comprising the Servicing Fees;
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(ii) Principal Prepayments in Full and any Liquidation
Proceeds received by the Servicers with respect to such Mortgage Loans
in the related Prepayment Period, with interest to the date of
prepayment or liquidation, net of the amount thereof comprising the
Servicing Fees;
(iii) Curtailments received by the Servicers, other than
First Republic and Washington Mutual, for such Mortgage Loans in the
related Prepayment Period; and
(iv) Any amount to be used as a Monthly Advance.
(d) Withdrawals by the Master Servicer may be made from an Account
only to make remittances as provided in Section 4.01(c), 4.02 and 4.03; to
reimburse the Master Servicer or a Servicer for Monthly Advances which have been
recovered by subsequent collection from the related Mortgagor; to remove amounts
deposited in error; to remove fees, charges or other such amounts deposited on a
temporary basis; or to clear and terminate the account at the termination of
this Agreement in accordance with Section 10.01. As provided in Sections 4.01(c)
and 4.02(b) certain amounts otherwise due to the Servicers may be retained by
them as set forth in the related Servicing Agreement and need not be deposited
in the Master Servicer Collection Account.
Section 4.02 MASTER SERVICER COLLECTION ACCOUNT. (a) The Master
Servicer shall establish and maintain in the name of the Trustee, for the
benefit of the Certificateholders, the Master Servicer Collection Account as a
segregated trust account or accounts. The Master Servicer will deposit in the
Master Servicer Collection Account as identified by the Master Servicer and as
received by the Master Servicer, the following amounts:
(i) Any amounts withdrawn from a Protected Account or
other permitted account;
(ii) Any Monthly Advance and any Compensating Interest
Payments;
(iii) Any Insurance Proceeds or Liquidation Proceeds or
Subsequent Recoveries received by or on behalf of the Master Servicer
or which were not deposited in a Protected Account or other permitted
account;
(iv) The repurchase price with respect to any Mortgage
Loans repurchased and all proceeds of any Mortgage Loans or property
acquired in connection with the optional termination of the trust;
(v) Any amounts required to be deposited with respect to
losses on investments of deposits in an Account; and
(vi) Any other amounts received by or on behalf of the
Master Servicer and required to be deposited in the Master Servicer
Collection Account pursuant to this Agreement.
(b) All amounts deposited to the Master Servicer Collection
Account shall be held by the Master Servicer in the name of the Trustee in trust
for the benefit of the Certificateholders in
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accordance with the terms and provisions of this Agreement. The requirements for
crediting the Master Servicer Collection Account or the Distribution Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of (i) prepayment or late
payment charges or assumption, tax service, statement account or payoff,
substitution, satisfaction, release and other like fees and charges and (ii) the
items enumerated in Subsections 4.05(a)(i), (ii), (iii), (iv), (vi), (vii),
(viii), (ix), (xi) and (xii) with respect to the Securities Administrator, need
not be credited by the Master Servicer or the related Servicer to the
Distribution Account or the Master Servicer Collection Account, as applicable.
In the event that the Master Servicer shall deposit or cause to be deposited to
the Distribution Account any amount not required to be credited thereto, the
Trustee, upon receipt of a written request therefor signed by a Servicing
Officer of the Master Servicer, shall promptly transfer such amount to the
Master Servicer from the Distribution Account, any provision herein to the
contrary notwithstanding.
(c) The amount at any time credited to the Master Servicer
Collection Account shall be invested, in the name of the Trustee, or its
nominee, for the benefit of the Certificateholders, in Permitted Investments as
directed by Master Servicer. All Permitted Investments shall mature or be
subject to redemption or withdrawal on or before, and shall be held until, the
next succeeding Distribution Account Deposit Date. Any and all investment
earnings on amounts on deposit in the Master Servicer Collection Account from
time to time shall be for the account of the Master Servicer. The Master
Servicer from time to time shall be permitted to withdraw or receive
distribution of any and all investment earnings from the Master Servicer
Account. The risk of loss of moneys required to be distributed to the
Certificateholders resulting from such investments shall be borne by and be the
risk of the Master Servicer. The Master Servicer shall deposit the amount of any
such loss in the Master Servicer Collection Account within two Business Days of
receipt of notification of such loss but not later than the second Business Day
prior to the Distribution Date on which the moneys so invested are required to
be distributed to the Certificateholders.
Section 4.03 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE MASTER
SERVICER COLLECTION ACCOUNT. (a) The Master Servicer will, from time to time on
demand of the Master Servicer, the Trustee or the Securities Administrator, make
or cause to be made such withdrawals or transfers from the Master Servicer
Collection Account as the Master Servicer has designated for such transfer or
withdrawal pursuant to the Servicing Agreements. The Master Servicer may clear
and terminate the Master Servicer Collection Account pursuant to Section 10.01
and remove amounts from time to time deposited in error.
(b) On an ongoing basis, the Master Servicer shall withdraw from
the Master Servicer Collection Account (i) any expenses recoverable by the
Trustee, the Master Servicer or the Securities Administrator pursuant to this
Agreement, including but not limited to Sections 2.01(b), 3.03, 7.04 and 9.05
and (ii) any amounts payable to the Master Servicer as set forth in Section
3.14.
(c) In addition, on or before each Distribution Account Deposit
Date, the Master Servicer shall deposit in the Distribution Account (or remit to
the Trustee for deposit therein) any
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Monthly Advances required to be made by the Master Servicer with respect to the
Mortgage Loans.
(d) No later than 3:00 p.m. New York time on each Distribution
Account Deposit Date, the Master Servicer will transfer all Available Funds on
deposit in the Master Servicer Collection Account with respect to the related
Distribution Date to the Trustee for deposit in the Distribution Account.
Section 4.04 DISTRIBUTION ACCOUNT. (a) The Trustee shall establish and
maintain in the name of the Trustee, for the benefit of the Certificateholders,
the Distribution Account as a segregated trust account or accounts.
(b) All amounts deposited to the Distribution Account shall be
held by the Trustee in the name of the Trustee in trust for the benefit of the
Certificateholders in accordance with the terms and provisions of this
Agreement.
(c) The Distribution Account shall constitute a trust account of
the Trust Fund segregated on the books of the Trustee and held by the Trustee in
trust in its Corporate Trust Office, and the Distribution Account and the funds
deposited therein shall not be subject to, and shall be protected to the maximum
extent permitted by applicable law from, all claims, liens, and encumbrances of
any creditors or depositors of the Trustee or the Master Servicer (whether made
directly, or indirectly through a liquidator or receiver of the Trustee or the
Master Servicer). The Distribution Account shall be an Eligible Account. The
amount at any time credited to the Distribution Account shall be (i) fully
insured by the FDIC to the maximum coverage provided thereby or (ii) invested in
the name of the Trustee, in such Permitted Investments selected by the Master
Servicer or deposited in demand deposits with such depository institutions as
selected by the Master Servicer, provided that time deposits of such depository
institutions would be a Permitted Investment. All Permitted Investments shall
mature or be subject to redemption or withdrawal on or before, and shall be held
until, the next succeeding Distribution Date if the obligor for such Permitted
Investment is the Trustee or, if such obligor is any other Person, the Business
Day preceding such Distribution Date. All investment earnings on amounts on
deposit in the Distribution Account or benefit from funds uninvested therein
from time to time shall be for the account of the Master Servicer. The Master
Servicer shall be permitted to withdraw or receive distribution of any and all
investment earnings from the Distribution Account on each Distribution Date. If
there is any loss on a Permitted Investment or demand deposit, the Master
Servicer shall remit the amount of the loss to the Trustee who shall deposit
such amount in the Distribution Account. With respect to the Distribution
Account and the funds deposited therein, the Master Servicer shall take such
action as may be necessary to ensure that the Certificateholders shall be
entitled to the priorities afforded to such a trust account (in addition to a
claim against the estate of the Trustee) as provided by 12 U.S.C. ss. 92a(e),
and applicable regulations pursuant thereto, if applicable, or any applicable
comparable state statute applicable to state chartered banking corporations.
Section 4.05 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE DISTRIBUTION
ACCOUNT. (a) The Trustee will, from time to time on demand of the Master
Servicer or the Securities Administrator, make or cause to be made such
withdrawals or transfers from the Distribution
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Account as the Master Servicer or the Securities Administrator has designated
for such transfer or withdrawal pursuant to the Servicing Agreements or as the
Securities Administrator has instructed hereunder for the following purposes
(limited in the case of amounts due the Master Servicer to those not withdrawn
from the Master Servicer Collection Account in accordance with the terms of this
Agreement):
(i) to reimburse the Master Servicer or any Servicer for
any Monthly Advance of its own funds or any advance of such Servicer's
own funds, the right of the Master Servicer or a Servicer to
reimbursement pursuant to this subclause (i) being limited to amounts
received on a particular Mortgage Loan (including, for this purpose,
the Purchase Price therefor, Insurance Proceeds and Liquidation
Proceeds) which represent late payments or recoveries of the principal
of or interest on such Mortgage Loan respecting which such Monthly
Advance or advance was made;
(ii) to reimburse the Master Servicer or any Servicer from
Insurance Proceeds or Liquidation Proceeds relating to a particular
Mortgage Loan for amounts expended by the Master Servicer or such
Servicer in good faith in connection with the restoration of the
related Mortgaged Property which was damaged by an Uninsured Cause or
in connection with the liquidation of such Mortgage Loan;
(iii) to reimburse the Master Servicer or any Servicer from
Insurance Proceeds relating to a particular Mortgage Loan for insured
expenses incurred with respect to such Mortgage Loan and to reimburse
the Master Servicer or such Servicer from Liquidation Proceeds from a
particular Mortgage Loan for Liquidation Expenses incurred with respect
to such Mortgage Loan; provided that the Master Servicer shall not be
entitled to reimbursement for Liquidation Expenses with respect to a
Mortgage Loan to the extent that (i) any amounts with respect to such
Mortgage Loan were paid as Excess Liquidation Proceeds pursuant to
clause (xi) of this Subsection 4.03 (a) to the Master Servicer; and
(ii) such Liquidation Expenses were not included in the computation of
such Excess Liquidation Proceeds;
(iv) to pay the Master Servicer or any Servicer, as
appropriate, from Liquidation Proceeds or Insurance Proceeds received
in connection with the liquidation of any Mortgage Loan, the amount
which it or such Servicer would have been entitled to receive under
subclause (ix) of this Subsection 4.03(a) as servicing compensation on
account of each defaulted scheduled payment on such Mortgage Loan if
paid in a timely manner by the related Mortgagor;
(v) to pay the Master Servicer or any Servicer from the
Purchase Price for any Mortgage Loan, the amount which it or such
Servicer would have been entitled to receive under subclause (ix) of
this Subsection 4.03 (a) as servicing compensation;
(vi) to reimburse the Master Servicer or any Servicer for
advances of funds pursuant to Sections, and the right to reimbursement
pursuant to this subclause being limited to amounts received on the
related Mortgage Loan (including, for this purpose,
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the Purchase Price therefor, Insurance Proceeds and Liquidation
Proceeds) which represent late recoveries of the payments for which
such advances were made;
(vii) to reimburse the Master Servicer or any Servicer for
any Monthly Advance or advance, after a Realized Loss has been
allocated with respect to the related Mortgage Loan if the Monthly
Advance or advance has not been reimbursed pursuant to clauses (i) and
(vi);
(viii) to pay the Master Servicer as set forth in Section
3.14;
(ix) to reimburse the Master Servicer for expenses, costs
and liabilities incurred by and reimbursable to it pursuant to this
Agreement, including but not limited to Sections 3.03, 7.04(c) and (d);
(x) to pay to the Master Servicer, as additional
servicing compensation, any Excess Liquidation Proceeds to the extent
not retained by the related Servicer;
(xi) to reimburse or pay any Servicer any such amounts as
are due thereto under the applicable Servicing Agreement and have not
been retained by or paid to the Servicer, to the extent provided in the
related Servicing Agreement;
(xii) to reimburse the Trustee or the Securities
Administrator for expenses, costs and liabilities incurred by or
reimbursable to it pursuant to this Agreement;
(xiii) to remove amounts deposited in error; and
(xiv) to clear and terminate the Distribution Account
pursuant to Section 10.01.
(b) The Master Servicer shall keep and maintain separate
accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of
accounting for any reimbursement from the Distribution Account pursuant to
subclauses (i) through (vi), inclusive, and (viii) or with respect to any such
amounts which would have been covered by such subclauses had the amounts not
been retained by the Master Servicer without being deposited in the Distribution
Account under Section 4.02(b).
(c) On each Distribution Date, the Trustee shall distribute the
Available Funds for each Loan Group to the Holders of the Certificates as
instructed by the Master Servicer or the Securities Administrator in accordance
with Section 6.01.
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ARTICLE V
CERTIFICATES
Section 5.01 THE CERTIFICATES.
Each of the Class I-A, Class II-A-1, Class II-A-2, Class III-A, Class
M-1, Class M-2, Class M-3, Class B-1, Class B-2, Class B-3, Class R-I and Class
R-II Certificates shall be substantially in the forms annexed hereto as
exhibits, and shall, on original issue, be executed, authenticated and delivered
by the Trustee to or upon the receipt of a written order to Authenticate from
the Depositor concurrently with the sale and assignment to the Trustee of the
Trust Fund. Each Class of the Certificates (other than the Residual
Certificates) shall be initially evidenced by one or more Certificates
representing a Percentage Interest with a minimum dollar denomination of $50,000
and integral dollar multiples of $1 in excess thereof. The Residual Certificates
will be issued in registered, certificated form in minimum denominations of a
25% Percentage Interest. Provided however, that one Certificate of each such
Class of Certificates may be in a different denomination so that the sum of the
denominations of all outstanding Certificates of such Class shall equal the
Class Certificate Balance of such Class on the Closing Date.
The Certificates shall be executed on behalf of the Trust Fund by
manual or facsimile signature on behalf of the Trustee by a Responsible 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 Trust Fund, notwithstanding that such individuals or
any of them have ceased to be so authorized prior to the authentication 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 such Certificate shall have been
manually authenticated by the Trustee substantially in the form provided for
herein, and such authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. Subject to Section 5.02(c), the Certificates, other
than the Class B-1, Class B-2, Class B-3 and Residual Certificates
(collectively, the "Private Certificates"), shall be Book-Entry Certificates.
Section 5.02 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Certificate Registrar shall cause to be kept at the
Corporate Trust Office a Certificate Register in which, subject to such
reasonable regulations as it may prescribe, the Certificate Registrar shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Trustee shall initially serve as
Certificate Registrar for the purpose of registering Certificates and transfers
and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate at any
office or agency of the Certificate Registrar maintained for such purpose
pursuant to the foregoing paragraph and, in the case of a Class R Certificate,
upon satisfaction of the conditions set forth below, the Trustee
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on behalf of the Trust shall execute, authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Certificates of the
same aggregate Percentage Interest.
At the option of the Certificateholders, Certificates may be exchanged
for other Certificates in authorized denominations and the same aggregate
Percentage Interests, upon surrender of the Certificates to be exchanged at any
such office or agency. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute on behalf of the Trust and 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 (if so required by the Trustee or the Certificate
Registrar) be duly endorsed by, or be accompanied by a written instrument of
transfer satisfactory to the Trustee and the Certificate Registrar duly executed
by, the Holder thereof or his attorney duly authorized in writing.
(b) Except as provided in paragraph (c) 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 such Certificates may not
be transferred by the Trustee except to another Depository; (ii) the Depository
shall maintain book-entry records with respect to the Certificate Owners and
with respect to ownership and transfers of such Certificates; (iii) ownership
and transfers of registration of such 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 for all
purposes deal with the Depository as representative of the Certificate Owners
for purposes of exercising the rights of Holders under this Agreement, and
requests and directions for and votes of such representative shall not be deemed
to be inconsistent if they are made with respect to different Certificate
Owners; (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 Certificate Owners; and (vii) the
direct participants of the Depository shall have no rights under this Agreement
under or with respect to any of the Certificates held on their behalf by the
Depository, and the Depository may be treated by the Trustee and its agents,
employees, officers and directors as the absolute owner of the Certificates for
all purposes whatsoever.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owners. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners
that it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures. The parties hereto are
hereby authorized to execute a representation letter with the Depository or take
such other action as may be necessary or desirable to register a Book-Entry
Certificate to the Depository. In the event of any conflict between the terms of
any such representation letter and this Agreement, the terms of this Agreement
shall control.
(c) If (i)(x) the Depository or the Depositor advises the Trustee
in writing that the Depository is no longer willing or able to discharge
properly its responsibilities as Depository and (y) the Trustee or the Depositor
is unable to locate a qualified successor, (ii) the Depositor,
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at its sole option, with the consent of the Trustee, elects to terminate the
book-entry system through the Depository or (iii) after the occurrence of an
Event of Default, the Certificate Owners of each Class of Book-Entry
Certificates representing Percentage Interests of such Classes aggregating not
less than 51% advises the Trustee and the Depository Participants in writing
that the continuation of a book-entry system through the Depository to the
exclusion of definitive, fully registered certificates (the "Definitive
Certificates") to Certificate Owners is no longer in the best interests of the
Certificate Owners. Upon surrender to the Certificate Registrar of the
Book-Entry Certificates by the Depository, accompanied by registration
instructions from the Depository for registration, the Trustee shall, at the
Depositor's expense, execute on behalf of the Trust and authenticate the
Definitive Certificates. Neither the Depositor nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, the Trustee, the Certificate Registrar, the Servicer,
any Paying Agent and the Depositor shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
(d) Except with respect to the initial transfer of the Private
Certificates by the Depositor, no transfer, sale, pledge or other disposition of
any Private Certificate shall be made unless such disposition is exempt from the
registration requirements of the Securities Act of 1933, as amended (the "1933
Act"), and any applicable state securities laws or is made in accordance with
the 1933 Act and laws. In the event of any such transfer, made in reliance upon
an exemption from the 1933 Act, (i) the Trustee and the Depositor shall require
(a) the transferor to execute a representation letter (in substantially the form
attached hereto as Exhibit F-1) and the transferee to execute an investor
representation letter (in substantially the form attached hereto as Exhibit F-2)
and (b) a written Opinion of Counsel (which may be in-house counsel) acceptable
to and in form and substance reasonably satisfactory to the Trustee and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act or is being
made pursuant to the 1933 Act, which Opinion of Counsel shall not be an expense
of the Trustee or the Depositor or (ii) the Trustee shall require the transferee
to execute a Rule 144A Letter (in substantially the form attached hereto as
Exhibit F-3) acceptable to and in form and substance reasonably satisfactory to
the Depositor and the Trustee certifying to the Depositor and the Trustee the
facts surrounding such transfer, which certificate shall not be an expense of
the Trustee or the Depositor. The Holder of a Private Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee and
the Depositor 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.
Notwithstanding the foregoing, no certification or Opinion of Counsel
described in this Section 5.02(d) will be required in connection with the first
transfer by the Depositor or an Affiliate thereof of any Class R Certificate,
and the Depositor or such Affiliate hereby agree only to make such a transfer
to, to an "accredited investor" within the meaning of Rule 501(d) of the 1933
Act.
No transfer of an ERISA-Restricted Certificate shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee and the Depositor, (such requirement is satisfied only by the Trustee's
receipt of a representation letter from the transferee substantially
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in the form of Exhibit F-2 or F-3 hereto, as appropriate, on which the Trustee
and Depositor is authorized to rely), to the effect that either (A) such
transferee is not an employee benefit plan or arrangement subject to Section 406
of ERISA or a plan subject to Section 4975 of the Code (collectively, a "Plan"),
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 (a "Plan
Investor"), or (B) the proposed transfer and holding of such a Certificate and
the servicing, management and operation of the Trust: (I) will not result in a
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code
which is not covered under an individual or class prohibited transaction
exemption including but not limited to Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 84-14 (Class Exemption for Plan Asset
Transactions Determined by Independent Qualified Professional Asset Managers);
PTCE 91-38 (Class Exemption for Certain Transactions Involving Bank Collective
Investment Funds); PTCE 90-1 (Class Exemption for Certain Transactions Involving
Insurance Company Pooled Separate Accounts), PTCE 95-60 (Class Exemption for
Certain Transactions Involving Insurance Company General Accounts), and PTCE
96-23 (Class Exemption for Plan Asset Transactions Determined by In-House Asset
Managers) and (II) will not subject the Depositor, the Securities Administrator,
the Servicer or the Trustee to any obligation in addition to those undertaken in
the Agreement or (ii) in the case of any such ERISA-Restricted Certificate
presented for registration in the name of a Plan or a Plan Investor, an Opinion
of Counsel satisfactory to the Trustee which Opinion of Counsel shall not be an
expense of either the Trustee or the Trust, addressed to the Trustee, to the
effect that the purchase or holding of such Certificate will not result in the
assets of the Trust being deemed to be "Plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code, will not result in such
a prohibited transaction, and will not subject the Trustee, the Securities
Administrator, the Servicer or the Depositor to any obligation in addition to
those expressly undertaken in this Agreement or to any liability. For purposes
of clause (i) of the preceding sentence, such representations shall be deemed to
have been made to the Trustee by the transferee's acceptance of an
ERISA-Restricted Certificate (or the acceptance by a Certificate Owner of the
beneficial interest in any such Class of Certificates) unless the Trustee shall
have received from the transferee an alternative representation acceptable in
form and substance to the Depositor. Notwithstanding anything else to the
contrary herein, any purported transfer of a ERISA-Restricted Certificate to or
on behalf of a Plan or Plan Investor in violation of this paragraph shall be
void and of no effect.
Any transferee of an ERISA-Restricted Certificate which is a Book-Entry
Certificate will be deemed to have represented by virtue of its purchase or
holding of such Certificate (or interest therein) that either (a) such
transferee is not a Plan Investor or (b) such transferee meets the requirements
in (i)(B) of the immediately preceding paragraph.
Each beneficial owner of a Class M Certificate or any interest therein
shall be deemed to have represented, by virtue of its acquisition or holding of
that certificate or interest therein, that either (i) it is not a Plan or a Plan
Investor or investing with Plan assets, (ii) it has acquired and is holding such
certificate in reliance on the Prohibited Transaction Exemption 90-29 issued by
the Department of Labor, as amended ("Exemption"), and that it understands that
there are certain conditions to the availability of the Exemption, including
that the certificate must be rated, at the time of purchase, not lower than
"BBB-" (or its equivalent) by Fitch, Xxxxx'x or S&P, or (iii)
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(1) it is an insurance company, (2) the source of funds used to acquire or hold
the certificate or interest therein is an "insurance company general account,"
as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and
III of PTCE 95-60 have been satisfied.
If any Book-Entry Certificate (or any interest therein) is acquired or
held in violation of the provisions of Section 5.02(d) above, then the last
preceding transferee that is in compliance with such provisions shall be
restored, to the extent permitted by law, to all rights and obligations as
Certificate Owner thereof retroactive to the date of such Transfer of such
Certificate. The Trustee shall be under no liability to any Person for making
any payments due on such Certificate to such preceding transferee.
Any purported Certificate Owner whose acquisition or holding of any
Book-Entry Certificate (or interest therein) was effected in violation of the
restrictions in this Section 5.02(d) shall indemnify and hold harmless the
Depositor, the Trustee, the Servicer and the Trust Fund from and against any and
all liabilities, claims, costs or expenses incurred by such parties as a result
of such acquisition or holding.
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 to have
irrevocably appointed the Depositor or its designee as its attorney-in-fact to
negotiate the terms of any mandatory sale under clause (v) below and to execute
all instruments of transfer and to do all other things necessary in connection
with any such sale, 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 Person shall acquire an Ownership Interest in a
Class R Certificate unless such Ownership Interest is a pro rata
undivided interest.
(iii) In connection with any proposed transfer of any
Ownership Interest in a Class R Certificate, the Trustee shall as a
condition to registration of the transfer, require delivery to it, in
form and substance satisfactory to it, of each of the following:
(A) an affidavit in the form of Exhibit E-1
hereto from the proposed transferee to the effect that such
transferee is a Permitted Transferee and that it is not
acquiring its Ownership Interest in the Class R Certificate
that is the subject of the proposed transfer as a nominee,
trustee or agent for any Person who is not a Permitted
Transferee, and an affidavit in the form of Exhibit E-2 hereto
from the proposed transferor, representing and warranting,
among other things, that no proposed transfer is to impede the
assessment or collection of tax;
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(B) a covenant of the proposed transferee to the
effect that the proposed transferee agrees to be bound by and
to abide by the transfer restrictions applicable to the Class
R Certificates.
(C) Any attempted or purported transfer of any
Ownership Interest in a Class R Certificate in violation of
the provisions of this Section shall be absolutely null and
void and shall vest no rights in the purported transferee. If
any purported transferee shall, in violation of the provisions
of this Section, become a Holder of a Class R Certificate,
then the prior Holder of such Class R Certificate that is a
Permitted Transferee shall, upon discovery that the
registration of transfer of such Class R Certificate was not
in fact permitted by this Section, 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 distributions due
on such Class R 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 Trustee received
the documents specified in this clause (iii). The Trustee
shall be entitled to recover from any Holder of a Class R
Certificate that was in fact not a Permitted Transferee at the
time such distributions were made all distributions made on
such Class R Certificate. Any such distributions so recovered
by the Trustee shall be distributed and delivered by the
Trustee to the prior Holder of such Class R Certificate that
is a Permitted Transferee.
(iv) If any Person other than a Permitted Transferee
acquires any Ownership Interest in a Class R Certificate in violation
of the restrictions in this Section, then the Trustee shall have the
right but not the obligation, without notice to the Holder of such
Class R Certificate or any other Person having an Ownership Interest
therein, to notify the Depositor to arrange for the sale of such Class
R Certificate. The proceeds of such sale, net of commissions (which may
include commissions payable to the Depositor or its affiliates in
connection with such sale), expenses and taxes due, if any, will be
remitted by the Trustee to the previous Holder of such Class R
Certificate that is a Permitted Transferee, except that in the event
that the Trustee determines that the Holder of such Class R Certificate
may be liable for any amount due under this Section or any other
provisions of this Agreement, the Trustee may withhold a corresponding
amount from such remittance as security for such claim. The terms and
conditions of any sale under this clause (iv) shall be determined in
the sole discretion of the Trustee and it shall not be liable to any
Person having an Ownership Interest in a Class R Certificate as a
result of its exercise of such discretion.
(v) If any Person other than a Permitted Transferee
acquires any Ownership Interest in a Class R Certificate in violation
of the restrictions in this Section, then the Securities Administrator
upon receipt of reasonable compensation will provide to the Internal
Revenue Service, and to the persons specified in Sections 860E(e)(3)
and (6) of the Code, information needed to compute the tax imposed
under Section 860E(e)(5) of the Code on transfers of residual interests
to disqualified organizations.
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The foregoing provisions of this Section shall cease to apply to transfers
occurring on or after the date on which there shall have been delivered to the
Trustee, in form and substance satisfactory to the Trustee, (i) written
notification from each Rating Agency that the removal of the restrictions on
Transfer set forth in this Section will not cause such Rating Agency to
downgrade its rating of the Certificates and (ii) an Opinion of Counsel to the
effect that such removal will not cause any REMIC hereunder to fail to qualify
as a REMIC.
(e) No service charge shall be made for any registration of
transfer or exchange of Certificates of any Class, but the Certificate Registrar
may require 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.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled by the Certificate Registrar and disposed of pursuant to its
standard procedures.
Section 5.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (ii) there is delivered to
the Trustee, the Depositor and the Certificate Registrar 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 or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute on behalf of the Trust, authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and Percentage Interest. Upon the issuance of any new
Certificate under this Section, the Trustee or the Certificate Registrar 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 and the Certificate Registrar) in
connection therewith. Any duplicate Certificate issued pursuant to this Section,
shall constitute complete and indefeasible evidence of ownership in the Trust,
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.
Each Servicer, the Master Servicer, the Depositor, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of each Servicer, the
Master Servicer, the Depositor, the Certificate Registrar, any Paying Agent or
the Trustee may treat the Person, including a Depository, in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.01 and for all other purposes
whatsoever, and none of the Servicers, the Master Servicer, the Trust, the
Trustee nor any agent of any of them shall be affected by notice to the
contrary.
To the extent the Trustee, Certificate Registrar or any Paying Agent is
required pursuant to this Agreement to determine the identity of the beneficial
owner of a Book-Entry Certificate, any costs assessed by the Depository in
making such determination shall be an expense of the
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party making such request, but in no event shall such cost be an expense of the
Trust Fund. Section 5.05 Appointment of Paying Agent.
The Paying Agent shall make distributions to Certificateholders from
the Distribution Account pursuant to Section 4.01 and shall report the amounts
of such distributions to the Trustee. The duties of the Paying Agent may include
the obligation (i) to withdraw funds from the Distribution Account pursuant to
Section 3.11 and for the purpose of making the distributions referred to above
and (ii) to distribute statements and provide information to Certificateholders
as required hereunder. The Paying Agent hereunder shall at all times be an
entity duly incorporated and validly existing under the laws of the United
States of America or any state thereof, authorized under such laws to exercise
corporate trust powers and subject to supervision or examination by federal or
state authorities. The Paying Agent shall initially be the Trustee. The Trustee
may appoint a successor to act as Paying Agent, which appointment shall be
reasonably satisfactory to the Depositor and the Rating Agencies.
The Trustee shall cause the Paying Agent (if other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee that such Paying Agent shall hold all sums, if any,
held by it for payment to the Certificateholders in trust the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders and shall agree that it shall comply with all requirements of
the Code regarding the withholding of payments in respect of federal income
taxes due from Certificate Owners and otherwise comply with the provisions of
this Agreement applicable to it.
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ARTICLE VI
PAYMENTS TO CERTIFICATEHOLDERS
Section 6.01 DISTRIBUTIONS ON THE CERTIFICATES. (a) Interest and
principal on the Certificates will be distributed by the Trustee monthly on each
Distribution Date, commencing in February 2005, as instructed by the Master
Servicer or the Securities Administrator, in an aggregate amount equal to the
sum of the Available Funds for such Distribution Date. On each Distribution
Date, the Available Funds shall be distributed as follows:
(A) On each Distribution Date, the Group I Available
Funds will be distributed in the following order of priority
among the Group I Senior Certificates except as otherwise
noted:
first, to the Class I-A Certificates, the Accrued
Certificate Interest on the Class I-A Certificates
for such Distribution Date. As described below,
Accrued Certificate Interest on the Class I-A
Certificates is subject to reduction in the event of
certain interest shortfalls allocable thereto. Any
interest shortfalls shall be allocated to the Class
I-A Certificates as described below;
second, to the Class I-A Certificates, any Accrued
Certificate Interest thereon remaining undistributed
from previous Distribution Dates, to the extent of
remaining Group I Available Funds, any shortfall in
available amounts being allocated to the Class I-A
Certificates in proportion to the amount of such
Accrued Certificate Interest remaining undistributed
for the Class I-A Certificates for such Distribution
Date; and
third, to the Class I-A Certificates, in reduction of
the Class Certificate Balance thereof, the Group I
Senior Principal Distribution Amount for such
Distribution Date to the extent of remaining Group I
Available Funds, until the Class Certificate Balance
of such Class has been reduced to zero.
(B) On each Distribution Date, the Group II Available
Funds will be distributed in the following order of priority
among the Group II Senior Certificates except as otherwise
noted:
first, to the Class II-A-1 Certificates and Class
II-A-2 Certificates, pro rata, the Accrued
Certificate Interest on each class of Group II Senior
Certificates for such Distribution Date. As described
below, Accrued Certificate Interest on the Group II
Senior Certificates is subject to reduction in the
event of certain interest shortfalls allocable
thereto. Any interest shortfalls shall be allocated
to the Group II Senior Certificates as described
below;
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second, to the Class II-A-1 Certificates and Class
II-A-2 Certificates, pro rata, any Accrued
Certificate Interest thereon remaining undistributed
from previous Distribution Dates, to the extent of
remaining Group II Available Funds, any shortfall in
available amounts being allocated to the Class II
Senior Certificates in proportion to the amount of
such Accrued Certificate Interest remaining
undistributed for the Group II Senior Certificates
for such Distribution Date; and
third, to the Class II-A-1 Certificates and Class
II-A-2 Certificates, pro rata, in reduction of the
Class Certificate Balances thereof, the Group II
Senior Principal Distribution Amount for such
Distribution Date to the extent of remaining Group II
Available Funds, until the Class Certificate Balance
of such Classes have been reduced to zero.
(C) On each Distribution Date, the Group III Available
Funds will be distributed in the following order of priority
among the Group III Senior Certificates except as otherwise
noted:
first, to the Class III-A Certificates, the Accrued
Certificate Interest on the Class III-A Certificates
for such Distribution Date. As described below,
Accrued Certificate Interest on the Class III-A
Certificates is subject to reduction in the event of
certain interest shortfalls allocable thereto. Any
interest shortfalls shall be allocated to the Class
III-A Certificates as described below;
second, to the Class III-A Certificates, any Accrued
Certificate Interest thereon remaining undistributed
from previous Distribution Dates, to the extent of
remaining Group III Available Funds, any shortfall in
available amounts being allocated to the Class III-A
Certificates in proportion to the amount of such
Accrued Certificate Interest remaining undistributed
for the Class III-A Certificates for such
Distribution Date; and
third, to the Class III-A Certificates, in reduction
of the Class Certificate Balance thereof, the Group
III Senior Principal Distribution Amount for such
Distribution Date to the extent of remaining Group
III Available Funds, until the Class Certificate
Balance of such Class has been reduced to zero.
(D) On each Distribution Date on or prior to the
Distribution Date on which the Class Certificate Balances of
the Subordinate Certificates are reduced to zero (the "Credit
Support Depletion Date"), an amount equal to the sum of the
remaining Group I, Group II and Group III Available Funds
after the distributions in clauses (A), (B) and (C) above and
after any distributions required to be made pursuant to
clauses (E) and (F) below, will be distributed sequentially,
in the following order, to the Class M-1, Class M-2, Class
M-3, Class B-1, Class B-2 and Class B-3 Certificates, in each
case up to an amount equal to and in the
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following order: (a) the Accrued Certificate Interest thereon
for such Distribution Date, (b) any Accrued Certificate
Interest thereon remaining undistributed from previous
Distribution Dates and (c) such Class's Subordinate Principal
Distribution Amount for such Distribution Date, in each case
to the extent of the remaining Available Funds.
(E) On each Distribution Date prior to the Credit Support
Depletion Date but after the reduction of the aggregate Class
Certificate Balance of the related Senior Certificates of a
related Loan Group to zero, the remaining Class or Classes of
related Senior Certificates will be entitled to receive in
reduction of their Class Certificate Balances, pro rata based
upon their Class Certificate Balances immediately prior to
such Distribution Date, in addition to any principal
prepayments related to such remaining Senior Certificates'
respective Loan Group allocated to such Senior Certificates,
100% of the Principal Prepayments on any Mortgage Loan in the
Loan Group relating to the fully repaid Class or Classes of
Senior Certificates; provided, however, that if both (a) the
weighted average Subordinate Percentage equals or exceeds
approximately 7.00% on or after the Distribution Date in
February 2008 and (b) the aggregate Stated Principal Balance
of the Mortgage Loans delinquent 60 days or more, averaged
over the last six months, as a percentage of the aggregate
Class Certificate Balance of the Class M Certificates and
Class B Certificates, does not exceed 50%, then the additional
allocation of principal prepayments to the Senior Certificates
in accordance with this clause (E) will not be made.
(F) If on any Distribution Date on which the aggregate
Class Certificate Balance of any Class or Classes of Senior
Certificates would be greater than the aggregate Stated
Principal Balance of the Mortgage Loans in its related Loan
Group (the amount of such excess, the "Undercollateralized
Amount," and any such Class or Classes of Senior Certificates,
the "Undercollateralized Senior Certificates") and any
Subordinate Certificates are still outstanding in each case
after giving effect to distributions to be made on such
Distribution Date, (i) 100% of amounts otherwise allocable to
the Subordinate Certificates in respect of principal will be
distributed to the Undercollateralized Senior Certificates in
reduction of the Class Certificate Balances thereof, until the
aggregate Class Certificate Balance of such Class or Classes
of Undercollateralized Senior Certificates is equal to the
aggregate Stated Principal Balance of the Mortgage Loans in
its related Loan Group, and (ii) the Accrued Certificate
Interest otherwise allocable to the Subordinate Certificates
on such Distribution Date will be reduced, if necessary, and
distributed to such Class or Classes of Undercollateralized
Senior Certificates pursuant to clause first of clauses (A),
(B) or (C) above, as applicable, in an amount equal to the
Accrued Certificate Interest at the Pass-Through Rate for such
Class or Classes of Undercollateralized Senior Certificates
for such Distribution Date on a balance equal to the related
Undercollateralized Amount. Any such reduction in the Accrued
Certificate
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Interest on the Subordinate Certificates will be allocated to
the Class B-3, Class B-2, Class B-1, Class M-3, Class M-2 and
Class M-1 Certificates, in that order.
On each Distribution Date, any Available Funds remaining after payment
of interest and principal to the Classes of Certificates entitled thereto, as
described above, will be distributed to the Class R-II Certificates; provided
that if on any Distribution Date on and after the Credit Support Depletion Date
there are any Group I or Group II Available Funds remaining after payment of
interest and principal to a Class or Classes of Senior Certificates entitled
thereto, such amounts will be distributed to the other Classes of Senior
Certificates, pro rata, based upon their Class Certificate Balances, until all
amounts due to all Classes of Senior Certificates have been paid in full, before
any amounts are distributed to the Class R-II Certificates. It is not
anticipated that there will be any significant amounts remaining for such
distribution.
In addition to the foregoing distributions, with respect to any
Subsequent Recoveries, the Master Servicer shall deposit such amounts into the
Protected Account pursuant to Section 4.01(a). If, after taking into account
such Subsequent Recoveries, the amount of a Realized Loss is reduced, the amount
of such Subsequent Recoveries will be applied to increase the Class Certificate
Balance of the Class of Subordinate Certificates with the highest payment
priority to which Realized Losses have been allocated, including any class of
certificates to which a realized loss was previously allocated and whose Class
Certificate Balance has been reduced to zero, but not by more than the amount of
Realized Losses previously allocated to that Class of Certificates pursuant to
Section 6.02(a). The amount of any remaining Subsequent Recoveries will be
applied to increase the Class Certificate Balance of the Class of Certificates
with the next highest payment priority, up to the amount of such Realized Losses
previously allocated to that Class of Certificates pursuant to Section 6.02(a),
and so on. Holders of such Certificates will not be entitled to any payment in
respect of Current Interest on the amount of such increases for any Interest
Accrual Period preceding the Distribution Date on which such increase occurs.
Any such increases shall be applied to the Class Certificate Balance of each
Certificate of such Class in accordance with its respective Percentage Interest.
Section 6.02 ALLOCATION OF LOSSES. (a) On or prior to each
Determination Date, the Master Servicer shall determine the amount of any
Realized Loss in respect of each Mortgage Loan that occurred during the
immediately preceding calendar month.
(b) With respect to any Certificates on any Distribution Date, the
principal portion of each Realized Loss on a Mortgage Loan shall be allocated as
follows:
first, to the Class B-3 Certificates until the Class
Certificate Balance thereof has been reduced to zero;
second, to the Class B-2 Certificates until the Class
Certificate Balance thereof has been reduced to zero;
third, to the Class B-1 Certificates until the Class
Certificate Balance thereof has been reduced to zero;
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fourth, to the Class M-3 Certificates until the Class
Certificate Balance thereof has been reduced to zero;
fifth, to the Class M-2 Certificates until the Class
Certificate Balance thereof has been reduced to zero;
sixth, to the Class M-1 Certificates until the Class
Certificate Balance thereof has been reduced to zero;
seventh, if the Realized Loss occurs on a Mortgage Loan in a
Loan Group where the aggregate Stated Principal Balance of the Mortgage
Loans in such Loan Group is greater than the aggregate Class
Certificate Balance of the related Senior Certificates, the Realized
Loss will be allocated to any Senior Certificates related to a Loan
Group where the aggregate Stated Principal Balance of the Mortgage
Loans in such Loan Group is less than the aggregate Class Certificate
Balance of the related Senior Certificates (any such amount, the
"Deficiency Amount"), pro rata, based on the respective Deficiency
Amount, in each case until the amount by which the aggregate Stated
Principal Balance of the Mortgage Loans in the Loan Group in which the
Realized Loss occurs exceeds the aggregate Class Certificate Balance of
the related Senior Certificates until the Class Certificate Balances of
such Senior Certificates have been reduced to zero; provided, however,
that Realized Losses that would otherwise be allocable to the Class
II-A-1 Certificates will first be allocated to the Class II-A-2
Certificates until the Class Certificate Balance thereof has been
reduced to zero; and
eighth, to the Senior Certificates related to the Loan Group
in which the Realized Loss occurred, until the Class Certificate
Balances thereof have been reduced to zero; provided, however, that
Realized Losses that would otherwise be allocable to the Class II-A-1
Certificates will first be allocated to the Class II-A-2 Certificates
until the Class Certificate Balance thereof has been reduced to zero.
(c) Any allocation of a Realized Loss (other than a Debt Service
Reduction) to a Certificate will be made by reducing the Class Certificate
Balance thereof, in the case of the principal portion of such Realized Loss, in
each case until the Class Certificate Balance of such Class has been reduced to
zero, and the Accrued Certificate Interest thereon, in the case of the interest
portion of such Realized Loss, by the amount so allocated as of the Distribution
Date occurring in the month following the calendar month in which such Realized
Loss was incurred. In addition, any such allocation of a Realized Loss to a
Class M Certificate or Class B Certificate may also be made by operation of the
payment priority to the Senior Certificates set forth under "--Principal
Distributions on the Senior Certificates" and any Class of Class M Certificates
or Class B Certificates with a higher payment priority. As used herein, "Debt
Service Reduction" means a reduction in the amount of the monthly payment due to
certain bankruptcy proceedings, but does not include any permanent forgiveness
of principal. As used herein, "Subordination" refers to the provisions discussed
above for the sequential allocation of Realized Losses among the various
Classes, as well as all provisions effecting such allocations including the
priorities for distribution of cash flows in the amounts described herein.
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(d) Allocations of the principal portion of Debt Service
Reductions to the Class M Certificates and Class B Certificates will result from
the priority of distributions of the Available Funds as described herein, which
distributions shall be made first to the Senior Certificates, second to the
Class M Certificates in the order of their payment priority and third to the
Class B Certificates in the order of their payment priority. An allocation of
the interest portion of a Realized Loss as well as the principal portion of Debt
Service Reductions will not reduce the level of Subordination, as such term is
defined herein, until an amount in respect thereof has been actually disbursed
to the Senior Certificateholders, the Class M Certificateholders or the Class B
Certificateholders, as applicable. The holders of the Offered Certificates will
not be entitled to any additional payments with respect to Realized Losses from
amounts otherwise distributable on any Classes of Certificates subordinate
thereto. Accordingly, the Subordination provided to the Senior Certificates and
to each Class of Class M Certificates and Class B Certificates by the respective
Classes of Certificates subordinate thereto with respect to Realized Losses
allocated on any Distribution Date will be effected primarily by increasing the
Senior Percentage, or the respective Class M Percentage, of future distributions
of principal of the remaining Mortgage Loans. Thus, the Senior Certificates will
bear the entire amount of losses that are not allocated to the Class M
Certificates and Class B Certificates, which losses will be allocated among all
Classes of Senior Certificates as described herein.
(e) Any Excess Losses or other losses on the Mortgage Loans of a
type not covered by Subordination will be allocated on a pro rata basis among
the Certificates (any such Realized Losses so allocated to the Certificates will
be allocated without priority among the various Classes of Certificates). An
allocation of a Realized Loss on a "pro rata basis" among two or more Classes of
Certificates means an allocation to each such Class of Certificates on the basis
of its then outstanding Class Certificate Balance prior to giving effect to
distributions to be made on such Distribution Date in the case of an allocation
of the principal portion of a Realized Loss, or based on the Accrued Certificate
Interest thereon in respect of such Distribution Date in the case of an
allocation of the interest portion of a Realized Loss.
Section 6.03 PAYMENTS. (a) On each Distribution Date, other than the
final Distribution Date, the Trustee shall distribute to each Certificateholder
of record on the directly preceding Record Date the Certificateholder's pro rata
share of its Class (based on the aggregate Percentage Interest represented by
such Holder's Certificates) of all amounts required to be distributed on such
Distribution Date to such Class, based solely on information provided to the
Trustee by the Master Servicer or the Securities Administrator. The Securities
Administrator shall calculate the amount to be distributed to each Class and,
based on such amounts, the Securities Administrator shall determine the amount
to be distributed to each Certificateholder. All of the Securities
Administrator's calculations of payments shall be based solely on information
provided to the Securities Administrator by the Master Servicer or the
applicable Servicer. The Securities Administrator shall not be required to
confirm, verify or recompute any such information but shall be entitled to rely
conclusively on such information.
(b) Payment of the above amounts to each Certificateholder shall
be made (i) by check mailed to each Certificateholder entitled thereto at the
address appearing in the Certificate Register or (ii) upon receipt by the
Trustee on or before the fifth Business Day preceding the Record Date of written
instructions from a Certificateholder by wire transfer to a United States
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dollar account maintained by the payee at any United States depository
institution with appropriate facilities for receiving such a wire transfer;
provided, however, that the final payment in respect of each Class of
Certificates will be made only upon presentation and surrender of such
respective Certificates at the office or agency of the Trustee specified in the
notice to Certificateholders of such final payment.
Section 6.04 STATEMENTS TO CERTIFICATEHOLDERS. (a) Concurrently with
each distribution to Certificateholders, the Securities Administrator shall make
available to the parties hereto and each Certificateholder via the Securities
Administrator's internet website as set forth below, the following information:
(i) the amount of the distribution made on such
Distribution Date to the Holders of each Class of Certificates,
separately identified, allocable to principal;
(ii) the amount of the distribution made on such
Distribution Date to the Holders of each Class of Certificates
allocable to interest, separately identified;
(iii) the aggregate amount the Servicing Fee during the
related Due Period and such other customary information as the Trustee
deems necessary or desirable, or which a Certificateholder reasonably
requests, to enable Certificateholders to prepare their tax returns;
(iv) the aggregate amount of Monthly Advances for the
related Due Period;
(v) the aggregate Stated Principal Balance of the Group
I, Group II and Group III Mortgage Loans at the close of business at
the end of the related Due Period;
(vi) the number, weighted average remaining term to
maturity and weighted average Loan Rate of the Group I, Group II and
Group III Mortgage Loans as of the related Due Date;
(vii) the number and aggregate unpaid principal balance of
Group I, Group II and Group III Mortgage Loans (a) one month, two
months or three months delinquent on a contractual basis, (b) as to
which foreclosure proceedings have been commenced and (c) in bankruptcy
as of the close of business on the last day of the calendar month
preceding such Distribution Date;
(viii) with respect to any Group I, Group II and Group III
Mortgage Loan that became an REO Property during the preceding calendar
month, the Stated Principal Balance of such Group I, Group II and Group
III Mortgage Loan as of the date it became an REO Property;
(ix) the book value of any REO Property as of the close of
business on the last Business Day of the calendar month preceding the
Distribution Date, and, cumulatively, the total number and cumulative
principal balance of all REO Properties as of the close of business of
the last day of the preceding due period;
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(x) the aggregate amount of Principal Prepayments made
during the related Prepayment Period;
(xi) the aggregate amount of Realized Losses incurred
during the related Due Period and the cumulative amount of Realized
Losses;
(xii) the aggregate amount of Extraordinary Trust Fund
Expenses withdrawn from the Master Servicer Collection Account for such
Distribution Date;
(xiii) the Class Certificate Balance of each Class of
Certificates, after giving effect to the distributions made on such
Distribution Date;
(xiv) the aggregate amount of interest accrued at the
related Pass-Through Rate with respect to each Class during the related
Interest Accrual Period and the respective portions thereof, if any,
remaining unpaid following the distributions made in respect of such
Certificates on such Distribution Date;
(xv) the aggregate amount of any Prepayment Interest
Shortfalls for such Distribution Date as determined separately for each
Loan Group, to the extent not covered by Compensating Interest Payments
by the related Servicer or the Master Servicer pursuant to the related
Servicing Agreement or Section 6.06;
(xvi) the Group I, Group II and Group III Available Funds;
(xvii) the Pass-Through Rate for each Class of Certificates
for such Distribution Date; and
(xviii) the aggregate Stated Principal Balance of Group I,
Group II and Group III Mortgage Loans purchased by the Seller during
the related Due Period and indicating the Section of this Agreement
requiring or allowing the purchase of each such Group I, Group II and
Group III Mortgage Loan.
The information set forth above shall be calculated or reported, as the
case may be, by the Securities Administrator, based solely on, and to the extent
of, information provided to the Securities Administrator by the Master Servicer.
The Securities Administrator may conclusively rely on such information and shall
not be required to confirm, verify or recalculate any such information.
The Securities Administrator may make available each month, to any
interested party , the monthly statement to Certificateholders via the
Securities Administrator's website initially located at "xxx.xxxxxxx.xxx."
Assistance in using the website can be obtained by calling the Securities
Administrator's customer service desk at (000) 000-0000. Parties that are unable
to use the above distribution option are entitled to have a paper copy mailed to
them via first class mail by calling the customer service desk and indicating
such. The Securities Administrator shall have the right to change the way such
reports are distributed in order to make such distribution more
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convenient and/or more accessible to the parties, and the Securities
Administrator shall provide timely and adequate notification to all parties
regarding any such change.
(b) By January 30 of each year beginning in 2006, the Trustee will
furnish such report to each Holder of the Certificates of record at any time
during the prior calendar year as to the aggregate of amounts reported pursuant
to subclauses (a)(ii) and (a)(v) above with respect to the Certificates, plus
information with respect to the amount of servicing compensation and such other
customary information as the Securities Administrator may determine and advises
the Trustee to be necessary and/or to be required by the Internal Revenue
Service or by a federal or state law or rules or regulations to enable such
Holders to prepare their tax returns for such calendar year. Such obligations
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Securities Administrator or the
Trustee pursuant to the requirements of the Code.
Section 6.05 MONTHLY ADVANCES. If the Monthly Payment on a Mortgage
Loan that was due on a related Due Date and is delinquent other than as a result
of application of the Relief Act and for which the related Servicer was required
to make an advance pursuant to the related Servicing Agreement exceeds the
amount deposited in the Master Servicer Collection Account which will be used
for a Monthly Advance with respect to such Mortgage Loan, the Master Servicer
will deposit in the Master Servicer Collection Account not later than the
Distribution Account Deposit Date immediately preceding the related Distribution
Date an amount equal to such deficiency, net of the Servicing Fee for such
Mortgage Loan, except to the extent the Master Servicer determines any such
Monthly Advance to be nonrecoverable from Liquidation Proceeds, Insurance
Proceeds or future payments on the Mortgage Loan for which such Monthly Advance
was made. If the Master Servicer has not deposited the amount described above as
of the related Distribution Account Deposit Date, the Trustee will deposit in
the Master Servicer Collection Account not later than the related Distribution
Date, an amount equal to the remaining deficiency as of the Distribution Account
Deposit Date. Subject to the foregoing, the Master Servicer shall continue to
make such Monthly Advances through the date that the related Servicer is
required to do so under its Servicing Agreement. If applicable, on the
Distribution Account Deposit Date, the Master Servicer shall present an
Officer's Certificate to the Trustee (i) stating that the Master Servicer elects
not to make a Monthly Advance in a stated amount and (ii) detailing the reason
it deems the advance to be nonrecoverable.
Section 6.06 COMPENSATING INTEREST PAYMENTS. The Master Servicer shall
deposit in the Master Servicer Collection Account not later than each
Distribution Account Deposit Date an amount equal to the aggregate amounts
required to be paid by the Servicers under the Servicing Agreements with respect
to subclauses (a) and (b), as applicable, of the definition of Prepayment
Interest Shortfall with respect to the Mortgage Loans for the related
Distribution Date, and not so paid by the related Servicers (such amount, the
"Compensating Interest Payment"). The Master Servicer shall not be entitled to
any reimbursement of any Compensating Interest Payment.
Section 6.07 DISTRIBUTIONS ON THE REMIC I REGULAR INTERESTS.
(a) On each Distribution Date the Trustee shall be deemed to
distribute to itself, as the holder of the REMIC I Regular Interests,
Uncertificated REMIC Accrued Interest on the
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REMIC I Regular Interests for such Distribution Date, plus any Uncertificated
REMIC Accrued Interest thereon remaining unpaid from any previous Distribution
Date.
(b) On each Distribution Date, distributions of principal shall be
deemed to be made from amounts received on the Mortgage Loans to REMIC I Regular
Xxxxxxxxx X-X, X-X, XX-X, XX-X, XXX-X, III-B and ZZZ first, so as to keep the
Uncertificated Principal Balance of each REMIC I Regular Interest ending with
the designation "B" equal to 0.01% of the aggregate Stated Principal Balance of
the Mortgage Loans in the related Group; second, to each REMIC I Regular
Interest ending with the designation "A," so that the Uncertificated Principal
Balance of each such REMIC I Regular Interest is equal to 0.01% of the excess of
(x) the aggregate Stated Principal Balance of the Mortgage Loans in the related
Group over (y) the Class Certificate Balance of the Senior Certificates in the
related Group (except that if any such excess is a larger number than in the
preceding distribution period, the least amount of principal shall be
distributed to such REMIC I Regular Interests such that the REMIC I Subordinated
Balance Ratio is maintained); and third, any remaining principal to REMIC I
Regular Interest ZZZ. Realized Losses on the Mortgage Loans shall be applied
after all distributions have been made on each Distribution Date first, so as to
keep the Uncertificated Principal Balance of each REMIC I Regular Interest
ending with the designation "B" equal to 0.01% of the aggregate Stated Principal
Balance of the Mortgage Loans in the related Group; second, to each REMIC I
Regular Interest ending with the designation "A," so that the Uncertificated
Principal Balance of each such REMIC I Regular Interest is equal to 0.01% of the
excess of (x) the aggregate Stated Principal Balance of the Mortgage Loans in
the related Group over (y) the Class Certificate Balance of the Senior
Certificates in the related Group (except that if any such excess is a larger
number than in the preceding distribution period, the least amount of Realized
Losses shall be applied to such REMIC I Regular Interests such that the REMIC I
Subordinated Balance Ratio is maintained); and third, any remaining Realized
Losses on the Mortgage Loans shall be allocated to REMIC I Regular Interest ZZZ.
(c) Notwithstanding the deemed distributions on the REMIC I
Regular Interests described in this Section 6.07, distributions of funds from
the Distribution Account shall be made only in accordance with Section 6.01.
ARTICLE VII
THE MASTER SERVICER AND THE DEPOSITOR
Section 7.01 LIABILITIES OF THE MASTER SERVICER. The Master Servicer
shall be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by the Master Servicer, as the case may
be, herein. The Depositor shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by the
Depositor.
Section 7.02 MERGER OR CONSOLIDATION OF THE MASTER SERVICER.
(a) The Master Servicer and the Depositor will keep in full force
and effect its existence, rights and franchises as a corporation under the laws
of the state of its incorporation, and will obtain and preserve its
qualification to do business as a foreign corporation in each
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jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans and to perform its duties under this Agreement.
(b) Any Person into which the Master Servicer or the Depositor may
be merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor of the
Master Servicer hereunder, 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 7.03 INDEMNIFICATION OF THE TRUSTEE, THE MASTER SERVICER AND
THE SECURITIES ADMINISTRATOR. (a) The Master Servicer agrees to indemnify the
Indemnified Persons for, and to hold them harmless against, any loss, liability
or expense (including reasonable legal fees and disbursements of counsel)
incurred on their part that may be sustained in connection with, arising out of,
or relating to, any claim or legal action (including any pending or threatened
claim or legal action) relating to this Agreement or the Certificates (i)
related to the Master Servicer's failure to perform its duties in compliance
with this Agreement (except as any such loss, liability or expense shall be
otherwise reimbursable pursuant to this Agreement) or (ii) incurred by reason of
the Master Servicer's willful misfeasance, bad faith or gross negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder, provided, in each case, that with respect to
any such claim or legal action (or pending or threatened claim or legal action),
the Trustee shall have given the Master Servicer and the Depositor written
notice thereof promptly after the Trustee shall have with respect to such claim
or legal action knowledge thereof. This indemnity shall survive the resignation
or removal of the Trustee, Master Servicer or the Securities Administrator and
the termination of this Agreement.
(b) The Depositor will indemnify any Indemnified Person for any
loss, liability or expense of any Indemnified Person not otherwise referred to
in Subsection (a) above.
Section 7.04 LIMITATIONS ON LIABILITY OF THE MASTER SERVICER AND
OTHERS. Subject to the obligation of the Master Servicer to indemnify the
Indemnified Persons pursuant to Section 7.03:
(a) Neither the Master Servicer nor any of the directors,
officers, employees or agents of the Master Servicer shall be under any
liability to the Indemnified Persons, the Depositor, the Trust Fund or the
Certificateholders for taking any action or for refraining from taking any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Master Servicer or
any such Person against any breach of warranties or representations made herein
or any liability which would otherwise be imposed by reason of such Person's
willful misfeasance, bad faith or gross negligence in the performance of duties
or by reason of reckless disregard of obligations and duties hereunder.
(b) The Master Servicer and any director, officer, employee or
agent of the Master Servicer may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder.
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(c) The Master Servicer, the Custodian and any director, officer,
employee or agent of the Master Servicer or the Custodian shall be indemnified
by the Trust and held harmless thereby against any loss, liability or expense
(including reasonable legal fees and disbursements of counsel) incurred on their
part that may be sustained in connection with, arising out of, or related to,
any claim or legal action (including any pending or threatened claim or legal
action) relating to this Agreement, the Certificates or any Servicing Agreement
(except to the extent that the Master Servicer is indemnified by the Servicer
thereunder), other than (i) any such loss, liability or expense related to the
Master Servicer's failure to perform its duties in compliance with this
Agreement (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement), or to the Custodian's failure to
perform its duties under the Custodial Agreement, respectively, or (ii) any such
loss, liability or expense incurred by reason of the Master Servicer's or the
Custodian's willful misfeasance, bad faith or gross negligence in the
performance of duties hereunder or under the Custodial Agreement, as applicable,
or by reason of reckless disregard of obligations and duties hereunder or under
the Custodial Agreement, as applicable.
(d) The Master Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action that is not incidental to its
duties under this Agreement and that in its opinion may involve it in any
expense or liability; provided, however, the Master Servicer may in its
discretion, undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights and duties of the parties hereto
and the interests of 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 Master Servicer shall
be entitled to be reimbursed therefor out of the Master Servicer Collection
Account as provided by Section 4.03. Nothing in this Subsection 7.04(d) shall
affect the Master Servicer's obligation to supervise, or to take such actions as
are necessary to ensure, the servicing and administration of the Mortgage Loans
pursuant to Subsection 3.01(a).
(e) In taking or recommending any course of action pursuant to
this Agreement, unless specifically required to do so pursuant to this
Agreement, the Master Servicer shall not be required to investigate or make
recommendations concerning potential liabilities which the Trust Fund might
incur as a result of such course of action by reason of the condition of the
Mortgaged Properties but shall give notice to the Trustee if it has notice of
such potential liabilities.
(f) The Master Servicer shall not be liable for any acts or
omissions of any Servicer, except as otherwise expressly provided herein.
Section 7.05 MASTER SERVICER NOT TO RESIGN. Except as provided in
Section 7.07, the Master Servicer shall not resign from the obligations and
duties hereby imposed on it except upon a determination that any such duties
hereunder are no longer permissible under applicable law and such
impermissibility cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of
Independent Counsel to such effect delivered to the Trustee. No such resignation
by the Master Servicer shall become effective until MLMLI or the Trustee or a
successor to the Master Servicer reasonably satisfactory to the Trustee shall
have assumed the responsibilities and obligations of the Master Servicer in
accordance with Section
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8.02 hereof. The Trustee shall notify the Rating Agencies of the resignation of
the Master Servicer.
Section 7.06 SUCCESSOR MASTER SERVICER. In connection with the
appointment of any successor Master Servicer or the assumption of the duties of
the Master Servicer, MLMLI or the Trustee may make such arrangements for the
compensation of such successor master servicer out of payments on the Mortgage
Loans as MLMLI or the Trustee and such successor master servicer shall agree. If
the successor master servicer does not agree that such market value is a fair
price, such successor master servicer shall obtain two quotations of market
value from third parties actively engaged in the servicing of single-family
mortgage loans.
Section 7.07 SALE AND ASSIGNMENT OF MASTER SERVICING. The Master
Servicer may sell and assign its rights and delegate its duties and obligations
in its entirety as Master Servicer under this Agreement; provided, however,
that: (i) the purchaser or transferee accepting such assignment and delegation
(a) shall be a Person which shall be qualified to service mortgage loans for
Xxxxxx Xxx or Xxxxxxx Mac; (b) shall have a net worth of not less than
$10,000,000 (unless otherwise approved by each Rating Agency pursuant to clause
(ii) below); (c) shall be reasonably satisfactory to the Trustee (as evidenced
in a writing signed by the Trustee); and (d) shall execute and deliver to the
Trustee an agreement, in form and substance reasonably satisfactory to the
Trustee, which contains an assumption by such Person of the due and punctual
performance and observance of each covenant and condition to be performed or
observed by it as master servicer under this Agreement, any custodial agreement
from and after the effective date of such agreement; (ii) each Rating Agency
shall be given prior written notice of the identity of the proposed successor to
the Master Servicer and each Rating Agency's rating of the Certificates in
effect immediately prior to such assignment, sale and delegation will not be
downgraded, qualified or withdrawn as a result of such assignment, sale and
delegation, as evidenced by a letter to such effect delivered to the Master
Servicer and the Trustee; and (iii) the Master Servicer assigning and selling
the master servicing shall deliver to the Trustee an Officer's Certificate and
an Opinion of Independent Counsel, each stating that all conditions precedent to
such action under this Agreement have been completed and such action is
permitted by and complies with the terms of this Agreement. No such assignment
or delegation shall affect any liability of the Master Servicer arising prior to
the effective date thereof.
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ARTICLE VIII
DEFAULT
Section 8.01 EVENTS OF DEFAULT. "Event of Default," wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) and
only with respect to the defaulting Master Servicer:
(i) The Master Servicer fails to cause to be deposited in
the Distribution Account any amount so required to be deposited
pursuant to this Agreement, and such failure continues unremedied for a
period of three Business Days after the date upon which written notice
of such failure, requiring the same to be remedied, shall have been
given to the Master Servicer; or
(ii) The Master Servicer fails to observe or perform in
any material respect any other material covenants and agreements set
forth in this Agreement to be performed by it, which covenants and
agreements materially affect the rights of Certificateholders, and such
failure continues unremedied for a period of 60 days after the date on
which written notice of such failure, properly requiring the same to be
remedied, shall have been given to the Master Servicer by the Trustee
or to the Master Servicer and the Trustee by the Holders of
Certificates evidencing Percentage Interests aggregating not less than
25% of the Trust Fund; or
(iii) There is entered against the Master Servicer a decree
or order by a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator,
receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding up or liquidation of its affairs, and the continuance of any
such decree or order is unstayed and in effect for a period of 60
consecutive days, or an involuntary case is commenced against the
Master Servicer under any applicable insolvency or reorganization
statute and the petition is not dismissed within 60 days after the
commencement of the case; or
(iv) The Master Servicer consents to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshaling of assets and liabilities or similar proceedings of
or relating to the Master Servicer or substantially all of its
property; or the Master Servicer admits in writing its inability to pay
its debts generally as they become due, files a petition to take
advantage of any applicable insolvency or reorganization statute, makes
an assignment for the benefit of its creditors, or voluntarily suspends
payment of its obligations; or
(v) The Master Servicer assigns or delegates its duties
or rights under this Agreement in contravention of the provisions
permitting such assignment or delegation under Sections 7.05 or 7.07.
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In each and every such case, so long as such Event of Default with respect to
the Master Servicer shall not have been remedied, either the Trustee or the
Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the principal of the Trust Fund, by notice in writing to the Master
Servicer (and to the Trustee if given by such Certificateholders), with a copy
to the Rating Agencies, and with the consent of MLMLI, may terminate all of the
rights and obligations (but not the liabilities) of the Master Servicer under
this Agreement and in and to the Mortgage Loans and/or the REO Property serviced
by the Master Servicer and the proceeds thereof. Upon the receipt by the Master
Servicer of the written notice, all authority and power of the Master Servicer
under this Agreement, whether with respect to the Certificates, the Mortgage
Loans, REO Property or under any other related agreements (but only to the
extent that such other agreements relate to the Mortgage Loans or related REO
Property) shall, subject to Section 8.02, automatically and without further
action pass to and be vested in the Trustee pursuant to this Section 8.01; and,
without limitation, the Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the Master Servicer as attorney-in-fact or otherwise,
any and all documents and other instruments and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer's rights and obligations hereunder, including, without limitation, the
transfer to the Trustee of (i) the property and amounts which are then or should
be part of the Trust or which thereafter become part of the Trust; and (ii)
originals or copies of all documents of the Master Servicer reasonably requested
by the Trustee to enable it to assume the Master Servicer's duties thereunder.
In addition to any other amounts which are then, or, notwithstanding the
termination of its activities under this Agreement, may become payable to the
Master Servicer under this Agreement, the Master Servicer shall be entitled to
receive, out of any amount received on account of a Mortgage Loan or related REO
Property, that portion of such payments which it would have received as
reimbursement under this Agreement if notice of termination had not been given.
The termination of the rights and obligations of the Master Servicer shall not
affect any obligations incurred by the Master Servicer prior to such
termination.
Section 8.02 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR. (a) Upon the
receipt by the Master Servicer of a notice of termination pursuant to Section
8.01 or an Opinion of Independent Counsel pursuant to Section 7.05 to the effect
that the Master Servicer is legally unable to act or to delegate its duties to a
Person which is legally able to act, the Trustee shall automatically become the
successor in all respects to the Master Servicer in its capacity under this
Agreement and the transactions set forth or provided for herein and shall
thereafter be subject to all the responsibilities, duties, liabilities and
limitations on liabilities relating thereto placed on the Master Servicer by the
terms and provisions hereof; provided, however, that MLMLI shall have the right
to either (a) immediately assume the duties of the Master Servicer or (b) select
a successor Master Servicer; provided further, however, that the Trustee shall
have no obligation whatsoever with respect to any liability (other than advances
deemed recoverable and not previously made) incurred by the Master Servicer at
or prior to the time of termination. As compensation therefor, the Trustee shall
be entitled to all funds relating to the Mortgage Loans which the Master
Servicer would have been entitled to retain if the Master Servicer had continued
to act hereunder, except for those amounts due the Master Servicer as
reimbursement permitted under this Agreement for
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advances previously made or expenses previously incurred. Notwithstanding the
above, or anything herein to the contrary, the Trustee, if it becomes Master
Servicer, shall have no responsibility or obligation (i) to repurchase or
substitute any Mortgage Loan, (ii) for any representation or warranty of the
Master Servicer hereunder, and (iii) for any act or omission of either a
predecessor or successor Master Servicer other than the Trustee. The Trustee may
conduct any activity required of it as Master Servicer hereunder through an
Affiliate or through an agent. Neither the Trustee nor any other successor
Master Servicer shall be deemed to be in default hereunder due to any act or
omission of a predecessor Master Servicer, including but not limited to failure
to timely deliver to the Trustee distribution instructions, any funds required
to be deposited to the Trust Fund, or any breach of its duty to cooperate with a
transfer of master servicing. Notwithstanding the above, the Trustee may, if it
shall be unwilling so to act, or shall, if it is legally unable so to act,
appoint or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution which is a Xxxxxx Mae- or
Xxxxxxx Mac-approved servicer, and with respect to a successor to the Master
Servicer only, having a net worth of not less than $10,000,000, as the successor
to the Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder;
provided, that the Trustee shall obtain a letter from each Rating Agency that
the ratings, if any, on each of the Certificates will not be lowered as a result
of the selection of the successor to the Master Servicer. Pending appointment of
a successor to the Master Servicer hereunder, the Trustee shall 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 the Mortgage Loans as it and such successor shall
agree; provided, however, that the provisions of Section 7.06 shall apply, no
such compensation shall be in excess of that permitted the Trustee under this
Subsection 8.02(a), and that such successor shall undertake and assume the
obligations of the Trustee to pay compensation to any third Person acting as an
agent or independent contractor in the performance of master servicing
responsibilities hereunder. The Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession.
(b) If the Trustee shall succeed to any duties of the Master
Servicer respecting the Mortgage Loans as provided herein, it shall do so in a
separate capacity and not in its capacity as Trustee and, accordingly, the
provisions of Article IX shall be inapplicable to the Trustee in its duties as
the successor to the Master Servicer in the servicing of the Mortgage Loans
(although such provisions shall continue to apply to the Trustee in its capacity
as Trustee); the provisions of Article VII, however, shall apply to it in its
capacity as successor master servicer.
Section 8.03 NOTIFICATION TO CERTIFICATEHOLDERS. Upon any termination
or appointment of a successor to the Master Servicer, the Trustee shall give
prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register and to the Rating Agencies.
Section 8.04 WAIVER OF DEFAULTS. The Trustee shall transmit by mail to
all Certificateholders, within 60 days after the occurrence of any Event of
Default known to the Trustee, unless such Event of Default shall have been
cured, notice of each such Event of Default hereunder known to the Trustee. The
Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the Trust Fund may, on behalf of all Certificateholders, waive
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any default by the Master Servicer in the performance of its obligations
hereunder and the consequences thereof, except a default in the making of or the
causing to be made any required distribution on the Certificates. Upon any such
waiver of a past default, such default shall be deemed to cease to exist, and
any Event of Default arising therefrom shall be deemed to have been timely
remedied for every purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereon except to the
extent expressly so waived. The Trustee shall give notice of any such waiver to
the Rating Agencies.
Section 8.05 LIST OF CERTIFICATEHOLDERS. Upon written request of three
or more Certificateholders of record, for purposes of communicating with other
Certificateholders with respect to their rights under this Agreement, the
Trustee will afford such Certificateholders access during business hours to the
most recent list of Certificateholders held by the Trustee.
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ARTICLE IX
CONCERNING THE TRUSTEE ANDTHE SECURITIES ADMINISTRATOR
Section 9.01 DUTIES OF TRUSTEE. (a) The Trustee, prior to the
occurrence of an Event of Default and after the curing or waiver of all Events
of Default which may have occurred, and the Securities Administrator each
undertake to perform such duties and only such duties as are specifically set
forth in this Agreement as duties of the Trustee and the Securities
Administrator, respectively. If an Event of Default has occurred and has not
been cured or waived, the Trustee shall exercise such of the rights and powers
vested in it by this Agreement, and subject to Section 8.02(b) use the same
degree of care and skill in their exercise, as a prudent person would exercise
under the circumstances in the conduct of his own affairs.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments which are specifically
required to be furnished to the Trustee and the Securities Administrator
pursuant to any provision of this Agreement, the Trustee and the Securities
Administrator, respectively, shall examine them to determine whether they are in
the form required by this Agreement; provided, however, that neither the Trustee
nor the Securities Administrator shall be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Master Servicer; provided, further,
that neither the Trustee nor the Securities Administrator shall be responsible
for the accuracy or verification of any calculation provided to it pursuant to
this Agreement.
(c) On each Distribution Date, the Trustee shall make monthly
distributions and the final distribution to the Certificateholders from funds in
the Distribution Account as provided in Sections 6.01 and 10.01 herein based
solely on the report of the Securities Administrator.
(d) No provision of this Agreement shall be construed to relieve
the Trustee or the Securities Administrator from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct;
provided, however, that:
(i) Prior to the occurrence of an Event of Default, and
after the curing or waiver of all such Events of Default which may have
occurred, the duties and obligations of the Trustee and the Securities
Administrator shall be determined solely by the express provisions of
this Agreement, neither the Trustee nor the Securities Administrator
shall be liable except for the performance of their respective 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 or the Securities Administrator and, in the absence
of bad faith on the part of the Trustee or the Securities
Administrator, respectively, the Trustee or the Securities
Administrator, respectively, 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 or the
Securities Administrator, respectively, and conforming to the
requirements of this Agreement;
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(ii) Neither the Trustee nor the Securities Administrator
shall be liable in its individual capacity for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee or an officer of the Securities Administrator,
respectively, unless it shall be proved that the Trustee or the
Securities Administrator, respectively, was negligent in ascertaining
the pertinent facts;
(iii) Neither the Trustee nor the Securities Administrator
shall be liable with respect to any action taken, suffered or omitted
to be taken by it in good faith in accordance with the directions of
the Holders of Certificates evidencing Percentage Interests aggregating
not less than 25% of the Trust Fund, if such action or non-action
relates to the time, method and place of conducting any proceeding for
any remedy available to the Trustee or the Securities Administrator,
respectively, or exercising any trust or other power conferred upon the
Trustee or the Securities Administrator, respectively, under this
Agreement;
(iv) The Trustee shall not be required to take notice or
be deemed to have notice or knowledge of any default or Event of
Default unless a Responsible Officer of the Trustee's Corporate Trust
Office shall have actual knowledge thereof. In the absence of such
notice, the Trustee may conclusively assume there is no such default or
Event of Default;
(v) The Trustee shall not in any way be liable by reason
of any insufficiency in any Account held by or in the name of Trustee
unless it is determined by a court of competent jurisdiction that the
Trustee's gross negligence or willful misconduct was the primary cause
of such insufficiency (except to the extent that the Trustee is obligor
and has defaulted thereon);
(vi) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Trustee or the Securities
Administrator 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 or the Securities Administrator,
respectively, has been advised of the likelihood of such loss or damage
and regardless of the form of action; and
(vii) None of the Securities Administrator, the Depositor,
the Master Servicer, any Servicer or the Trustee shall be responsible
for the acts or omissions of the other, it being understood that this
Agreement shall not be construed to render them partners, joint
venturers or agents of one another.
Neither the Trustee nor the Securities Administrator shall be required
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there is reasonable ground for believing that the repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in this Agreement
shall in any event require the Trustee or the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer hereunder or under the Servicing Agreements,
except during such time, if any, as the Trustee shall be the successor to, and
be
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vested with the rights, duties, powers and privileges of, the Master Servicer in
accordance with the terms of this Agreement.
(e) All funds received by the Master Servicer and the Trustee and
required to be deposited in the Master Servicer Collection Account or
Distribution Account pursuant to this Agreement will be promptly so deposited by
the Master Servicer and the Trustee.
(f) Except for those actions that the Trustee or the Securities
Administrator is required to take hereunder, neither the Trustee nor the
Securities Administrator shall have any obligation or liability to take any
action or to refrain from taking any action hereunder in the absence of written
direction as provided hereunder.
Section 9.02 CERTAIN MATTERS AFFECTING THE TRUSTEE AND THE SECURITIES
ADMINISTRATOR. Except as otherwise provided in Section 9.01:
(i) The Trustee and the Securities Administrator may rely
and shall be protected in acting or refraining from acting in reliance
on any resolution, certificate of a Depositor, Master Servicer or
Servicer, 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;
(ii) The Trustee and the Securities Administrator may
consult with counsel and any advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection with
respect to any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator
shall be under any obligation to exercise any of the trusts or powers
vested in it by this Agreement, other than its obligation to give
notices pursuant to 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 against the costs,
expenses and liabilities which may be incurred therein or thereby.
Nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default of which a
Responsible Officer of the Trustee's Corporate Trust Office has actual
knowledge (which has not been cured or waived), subject to Section
8.02(b), to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their
exercise, as a prudent person would exercise under the circumstances in
the conduct of his own affairs;
(iv) Prior to the occurrence of an Event of Default
hereunder and after the curing or waiver of all Events of Default which
may have occurred, neither the Trustee nor the Securities Administrator
shall be liable in its individual capacity 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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(v) Neither the Trustee nor the Securities Administrator
shall 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 to do so by Holders of
Certificates evidencing Percentage Interests aggregating not less than
25% of the Trust Fund and provided that the payment within a reasonable
time to the Trustee or the Securities Administrator, as applicable, 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 or the
Securities Administrator, as applicable, reasonably assured to the
Trustee or the Securities Administrator, as applicable, by the security
afforded to it by the terms of this Agreement. The Trustee or the
Securities Administrator may require reasonable indemnity against such
expense or liability as a condition to taking any such action. The
reasonable expense of every such examination shall be paid by the
Certificateholders requesting the investigation;
(vi) The Trustee and the Securities Administrator may
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or through Affiliates, agents or attorneys;
provided, however, that the Trustee may not appoint any agent to
perform its custodial functions with respect to the Mortgage Files or
paying agent functions under this Agreement without the express written
consent of the Master Servicer, which consent will not be unreasonably
withheld. Neither the Trustee nor the Securities Administrator shall be
liable or responsible for the misconduct or negligence of any of the
Trustee's or the Securities Administrator's agents or attorneys or a
custodian or paying agent appointed hereunder by the Trustee or the
Securities Administrator with due care and, when required, with the
consent of the Master Servicer;
(vii) Should the Trustee or the Securities Administrator
deem the nature of any action required on its part, other than a
payment or transfer under Subsection 4.01(b) or Section 4.02, to be
unclear, the Trustee or the Securities Administrator, respectively, may
require prior to such action that it be provided by the Depositor with
reasonable further instructions;
(viii) The right of the Trustee or the Securities
Administrator to perform any discretionary act enumerated in this
Agreement shall not be construed as a duty, and neither the Trustee nor
the Securities Administrator shall be accountable for other than its
negligence or willful misconduct in the performance of any such act;
(ix) Neither the Trustee nor the Securities Administrator
shall be required to give any bond or surety with respect to the
execution of the trust created hereby or the powers granted hereunder,
except as provided in Subsection 9.07; and
(x) Neither the Trustee nor the Securities Administrator
shall have any duty to conduct any affirmative investigation as to the
occurrence of any condition requiring the repurchase of any Mortgage
Loan by the Seller pursuant to this Agreement or the Mortgage Loan
Purchase Agreement, as applicable, or the eligibility of any Mortgage
Loan for purposes of this Agreement.
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Section 9.03 TRUSTEE AND SECURITIES ADMINISTRATOR NOT LIABLE FOR
CERTIFICATES OR MORTGAGE LOANS. The recitals contained herein and in the
Certificates (other than the signature and countersignature of the Trustee on
the Certificates) shall be taken as the statements of the Depositor, and neither
the Trustee nor the Securities Administrator shall have any responsibility for
their correctness. Neither the Trustee nor the Securities Administrator makes
any representation as to the validity or sufficiency of the Certificates (other
than the signature and countersignature of the Trustee on the Certificates) or
of any Mortgage Loan except as expressly provided in Sections 2.02 and 2.05
hereof; provided, however, that the foregoing shall not relieve the Trustee or
the Custodian of the obligation to review the Mortgage Files pursuant to
Sections 2.02 and 2.04. The Trustee's signature and countersignature (or
countersignature of its agent) on the Certificates shall be solely in its
capacity as Trustee of the Trust Fund and shall not constitute the Certificates
an obligation of the Trustee in any other capacity. Neither the Trustee or the
Securities Administrator shall be accountable for the use or application by the
Depositor of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Depositor with respect to
the Mortgage Loans. Subject to the provisions of Section 2.05, neither the
Trustee nor the Securities Administrator shall not be responsible for the
legality or validity of this Agreement or any document or instrument relating to
this Agreement, the validity of the execution of this Agreement or of any
supplement hereto or instrument of further assurance, or the validity, priority,
perfection or sufficiency of the security for the Certificates issued hereunder
or intended to be issued hereunder. Neither the Trustee nor the Securities
Administrator shall at any time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Mortgage or any
Mortgage Loan, or the perfection and priority of any Mortgage or the maintenance
of any such perfection and priority, or for or with respect to the sufficiency
of the Trust Fund or its ability to generate the payments to be distributed to
Certificateholders, under this Agreement. Neither the Trustee nor the Securities
Administrator shall have any responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to record this Agreement other than any continuation statements
filed by the Trustee pursuant to Section 3.20.
Section 9.04 TRUSTEE AND SECURITIES ADMINISTRATOR MAY OWN CERTIFICATES.
The Trustee and the Securities Administrator in its individual capacity or in
any capacity other than as Trustee hereunder may become the owner or pledgee of
any Certificates with the same rights it would have if it were not Trustee or
the Securities Administrator, as applicable, and may otherwise deal with the
parties hereto.
Section 9.05 TRUSTEE'S AND SECURITIES ADMINISTRATOR'S FEES AND
EXPENSES. The fees and expenses of the Trustee and the Securities Administrator
shall be paid by the Master Servicer in accordance with a side letter agreement.
In addition, the Trustee and the Securities Administrator will be entitled to
recover from the Master Servicer Collection Account pursuant to Section 4.03(b)
all reasonable out-of-pocket expenses, disbursements and advances and the
expenses of the Trustee and the Securities Administrator, respectively, in
connection with any Event of Default, any breach of this Agreement or any claim
or legal action (including any pending or threatened claim or legal action)
incurred or made by the Trustee or the Securities Administrator, respectively,
in the administration of the trusts hereunder (including the reasonable
compensation,
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expenses and disbursements of its counsel) except any such expense, disbursement
or advance as may arise from its negligence or intentional misconduct or which
is the responsibility of the Certificateholders or the Trust Fund hereunder. If
funds in the Master Servicer Collection Account are insufficient therefor, the
Trustee and the Securities Administrator shall recover such expenses from the
Depositor. Such compensation and reimbursement obligation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust.
Section 9.06 ELIGIBILITY REQUIREMENTS FOR TRUSTEE AND SECURITIES
ADMINISTRATOR. (a) The Trustee and any successor Trustee and the Securities
Administrator and any successor Securities Administrator shall during the entire
duration of this Agreement be a state bank or trust company or a national
banking association organized and doing business under the laws of such state or
the United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus and undivided profits of at
least $40,000,000 or, in the case of a successor Trustee, $50,000,000, subject
to supervision or examination by federal or state authority and, in the case of
the Trustee, rated "BBB" or higher by S&P and Fitch with respect to their
long-term rating and rated "BBB" or higher by S&P and Fitch with respect to any
outstanding long-term unsecured unsubordinated debt, and, in the case of a
successor Trustee or successor Securities Administrator other than pursuant to
Section 9.10, rated in one of the two highest long-term debt categories of, or
otherwise acceptable to, each of the Rating Agencies. If the Trustee 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 9.06 the combined capital and surplus of such corporation shall be
deemed to be its total equity capital (combined capital and surplus) as set
forth in its most recent report of condition so published. In case at any time
the Trustee or the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 9.06, the Trustee or the
Securities Administrator shall resign immediately in the manner and with the
effect specified in Section 9.08.
(b) In addition, the Securities Administrator (i) may not be an
Underlying Seller, Master Servicer, Servicer, the Depositor or an affiliate of
the Depositor unless the Securities Administrator is in an institutional trust
department of the relevant entity, (ii) must be authorized to exercise corporate
trust powers under the laws of its jurisdiction of organization, and (iii) must
be rated at least "A/F1" by Fitch, if Fitch is a Rating Agency, or the
equivalent rating by S&P or Moody's, or such other rating as is acceptable to
Fitch as provided in an Rating Agency Confirmation. If no successor Securities
Administrator shall have been appointed and shall have accepted appointment
within 60 days after the Securities Administrator ceases to be the Securities
Administrator pursuant to Section 9.08, then the Trustee shall perform the
duties of the Securities Administrator pursuant to this Agreement until such
time as a new Securities Administrator is appointed. The Trustee shall notify
the Rating Agencies of any change of Securities Administrator.
Section 9.07 INSURANCE. The Trustee and the Securities Administrator,
at their own expense, shall at all times maintain and keep in full force and
effect: (i) fidelity insurance, (ii) theft of documents insurance and (iii)
forgery insurance (which may be collectively satisfied by a "Financial
Institution Bond" and/or a "Bankers' Blanket Bond"). All such insurance shall be
in amounts, with standard coverage and subject to deductibles, as are customary
for insurance
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typically maintained by banks or their affiliates which act as custodians for
investor-owned mortgage pools. A certificate of an officer of the Trustee or the
Securities Administrator as to the Trustee's or the Securities Administrator's,
respectively, compliance with this Section 9.07 shall be furnished to any
Certificateholder upon reasonable written request.
Section 9.08 RESIGNATION AND REMOVAL OF THE TRUSTEE AND SECURITIES
ADMINISTRATOR. (a) The Trustee and the Securities Administrator may at any time
resign and be discharged from the Trust hereby created by giving written notice
thereof to the Depositor and the Master Servicer, with a copy to the Rating
Agencies. Upon receiving such notice of resignation, the Depositor shall
promptly appoint a successor Trustee or successor Securities Administrator, as
applicable, by written instrument, in triplicate, one copy of which instrument
shall be delivered to each of the resigning Trustee or Securities Administrator,
as applicable, the successor Trustee or Securities Administrator, as applicable.
If no successor Trustee or Securities Administrator shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or Securities Administrator may petition any
court of competent jurisdiction for the appointment of a successor Trustee or
Securities Administrator. If the Securities Administrator and the Master
Servicer and the same entity, then at any time the Securities Administrator
resigns or is removed as Securities Administrator, the Master Servicer shall
likewise be terminated as Master Servicer.
(b) If at any time the Trustee or the Securities Administrator
shall cease to be eligible in accordance with the provisions of Section 9.06 and
shall fail to resign after written request therefor by the Depositor or if at
any time the Trustee or the Securities Administrator shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or the Securities Administrator, as applicable, or of its property shall
be appointed, or any public officer shall take charge or control of the Trustee
or the Securities Administrator, as applicable, or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, then the
Depositor shall promptly remove the Trustee, or shall be entitled to remove the
Securities Administrator, as applicable, and appoint a successor Trustee or
Securities Administrator, as applicable, by written instrument, in triplicate,
one copy of which instrument shall be delivered to each of the Trustee or
Securities Administrator, as applicable, so removed, the successor Trustee or
Securities Administrator, as applicable.
(c) The Holders of Certificates evidencing Percentage Interests
aggregating not less than 51% of the Trust Fund may at any time remove the
Trustee or the Securities Administrator and appoint a successor Trustee or
Securities Administrator by written instrument or instruments, in quadruplicate,
signed by such Holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Depositor, the Master
Servicer, the Securities Administrator (if the Trustee is removed), the Trustee
(if the Securities Administrator is removed), and the Trustee or Securities
Administrator so removed and the successor so appointed.
(d) No resignation or removal of the Trustee or the Securities
Administrator and appointment of a successor Trustee or Securities Administrator
pursuant to any of the provisions of this Section 9.08 shall become effective
except upon appointment of and acceptance of such appointment by the successor
Trustee or Securities Administrator as provided in Section 9.09.
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Section 9.09 SUCCESSOR TRUSTEE AND SUCCESSOR SECURITIES ADMINISTRATOR.
(a) Any successor Trustee or Securities Administrator appointed as provided in
Section 9.08 shall execute, acknowledge and deliver to the Depositor and to its
predecessor Trustee or Securities Administrator an instrument accepting such
appointment hereunder. The resignation or removal of the predecessor Trustee or
Securities Administrator shall then become effective and such successor Trustee
or Securities Administrator, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Trustee or
Securities Administrator herein. The predecessor Trustee or Securities
Administrator shall after payment of its outstanding fees and expenses promptly
deliver to the successor Trustee or Securities Administrator, as applicable, all
assets and records of the Trust held by it hereunder, and the Depositor and the
predecessor Trustee or Securities Administrator, as applicable, 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 or Securities Administrator, as applicable, all such rights, powers,
duties and obligations.
(b) No successor Trustee or Securities Administrator shall accept
appointment as provided in this Section 9.09 unless at the time of such
acceptance such successor Trustee or Securities Administrator shall be eligible
under the provisions of Section 9.06.
(c) Upon acceptance of appointment by a successor Trustee or
Securities Administrator as provided in this Section 9.09, the successor Trustee
or Securities Administrator shall mail notice of the succession of such Trustee
or Securities Administrator hereunder to all Certificateholders at their
addresses as shown in the Certificate Register and to the Rating Agencies. The
Depositor shall pay the cost of any mailing by the successor Trustee or
Securities Administrator.
Section 9.10 MERGER OR CONSOLIDATION OF TRUSTEE OR SECURITIES
ADMINISTRATOR. Any state bank or trust company or national banking association
into which the Trustee or the Securities Administrator may be merged or
converted or with which it may be consolidated or any state bank or trust
company or national banking association resulting from any merger, conversion or
consolidation to which the Trustee or the Securities Administrator,
respectively, shall be a party, or any state bank or trust company or national
banking association succeeding to all or substantially all of the corporate
trust business of the Trustee or the Securities Administrator, respectively,
shall be the successor of the Trustee or the Securities Administrator,
respectively, hereunder, provided such state bank or trust company or national
banking association shall be eligible under the provisions of Section 9.06. Such
succession shall be valid 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.
Section 9.11 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE. (a)
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust or property constituting the same may at the time be located, the
Depositor 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 and the Depositor to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees,
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of all or any part of the Trust, and to vest in such Person or Persons, in such
capacity, such title to the Trust, or any part thereof, and, subject to the
other provisions of this Section 9.11, such powers, duties, obligations, rights
and trusts as the Depositor and the Trustee may consider necessary or desirable.
(b) If the Depositor shall not have joined in such appointment
within 15 days after the receipt by it of a written request so to do, the
Trustee shall have the power to make such appointment without the Depositor.
(c) No co-trustee or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor Trustee under Section 9.06
hereunder and no notice to Certificateholders of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 9.08
hereof.
(d) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 9.11, all rights, powers, duties and
obligations conferred or imposed upon the Trustee and required to be conferred
on such co-trustee shall be conferred or imposed upon and exercised or performed
by the Trustee and such separate trustee or co-trustee jointly, 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
Master 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 Trust or any portion thereof
in any such jurisdiction) shall be exercised and performed by such separate
trustee or co-trustee at the direction of the Trustee.
(e) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, 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 IX. 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.
(f) To the extent not prohibited by law, any separate trustee or
co-trustee may, at any time, request the Trustee, its agent or attorney-in-fact,
with full power and authority, to do any lawful act under or with respect to
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.
(g) No trustee under this Agreement shall be personally liable by
reason of any act or omission of another trustee under this Agreement. The
Depositor and the Trustee acting jointly may at any time accept the resignation
of or remove any separate trustee or co-trustee.
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Section 9.12 FEDERAL INFORMATION RETURNS AND REPORTS TO
CERTIFICATEHOLDERS; REMIC ADMINISTRATION. (a) For federal income tax purposes,
the taxable year of each of REMIC I and REMIC II shall be a calendar year and
the Securities Administrator shall maintain or cause the maintenance of the
books of each such REMIC on the accrual method of accounting.
(b) The Securities Administrator shall prepare and file or cause
to be filed with the Internal Revenue Service, and the Trustee shall sign,
federal tax information returns or elections required to be made hereunder with
respect to each of REMIC I and REMIC II, the Trust Fund, if applicable, and the
Certificates containing such information and at the times and in the manner as
may be required by the Code or applicable Treasury regulations, and shall
furnish to each Holder of Certificates at any time during the calendar year for
which such returns or reports are made such statements or information at the
times and in the manner as may be required thereby, including, without
limitation, reports relating to interest, original issue discount and market
discount or premium (using a constant prepayment assumption of 25% CPR for the
Mortgage Loans). The Securities Administrator will apply for an Employee
Identification Number from the IRS under Form SS-4 or any other acceptable
method for all tax entities. In connection with the foregoing, the Securities
Administrator shall timely prepare and file, and the Trustee shall sign, IRS
Form 8811, which shall provide the name and address of the person who can be
contacted to obtain information required to be reported to the holders of
regular interests in each of REMIC I and REMIC II (the "REMIC Reporting Agent").
The Trustee shall make elections to treat each of REMIC I and REMIC II as a
REMIC (which elections shall apply to the taxable period ending December 31,
2005 and each calendar year thereafter) in such manner as the Code or applicable
Treasury regulations may prescribe, and as described by the Securities
Administrator. The Trustee shall sign all tax information returns filed pursuant
to this Section and any other returns as may be required by the Code. The Holder
of the Class R-I Certificate is hereby designated as the "Tax Matters Person"
(within the meaning of Treas. Reg. ss.ss.1.860F-4(d)) for REMIC I and the Holder
of the Class R-II Certificate is hereby designated as the "Tax Matters Person"
for REMIC II. The Securities Administrator is hereby designated and appointed as
the agent of each such Tax Matters Person. Any Holder of a Residual Certificate
will by acceptance thereof appoint the Securities Administrator as agent and
attorney-in-fact for the purpose of acting as Tax Matters Person for each of
REMIC I and REMIC II during such time as the Securities Administrator does not
own any such Residual Certificate. In the event that the Code or applicable
Treasury regulations prohibit the Trustee from signing tax or information
returns or other statements, or the Securities Administrator from acting as
agent for the Tax Matters Person, the Trustee and the Securities Administrator
shall take whatever action that in its sole good faith judgment is necessary for
the proper filing of such information returns or for the provision of a tax
matters person, including designation of the Holder of a Residual Certificate to
sign such returns or act as tax matters person. Each Holder of a Residual
Certificate shall be bound by this Section.
(c) The Securities Administrator shall provide upon request and
receipt of reasonable compensation, such information as required in Section
860D(a)(6)(B) of the Code to the Internal Revenue Service, to any Person
purporting to transfer a Residual Certificate to a Person other than a
transferee permitted by Section 5.05(b), and to any regulated investment
company, real estate investment trust, common trust fund, partnership, trust,
estate, organization described in
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Section 1381 of the Code, or nominee holding an interest in a pass-through
entity described in Section 860E(e)(6) of the Code, any record holder of which
is not a transferee permitted by Section 5.05(b) (or which is deemed by statute
to be an entity with a disqualified member).
(d) The Securities Administrator shall prepare and file or cause
to be filed, and the Trustee shall sign, any state income tax returns required
under Applicable State Law with respect to each of REMIC I and REMIC II or the
Trust Fund.
(e) Notwithstanding any other provision of this Agreement, the
Trustee and the Securities Administrator shall comply with all federal
withholding requirements respecting payments to Certificateholders of interest
or original issue discount on the Mortgage Loans, that the Trustee or the
Securities Administrator reasonably believes are applicable under the Code. The
consent of Certificateholders shall not be required for such withholding. In the
event the Trustee or the Securities Administrator withholds any amount from
interest or original issue discount payments or advances thereof to any
Certificateholder pursuant to federal withholding requirements, the Trustee or
the Securities Administrator shall, together with its monthly report to such
Certificateholders, indicate such amount withheld.
(f) The Trustee and the Securities Administrator agree to
indemnify the Trust Fund and the Depositor for any taxes and costs including,
without limitation, any reasonable attorneys fees imposed on or incurred by the
Trust Fund, the Depositor or the Master Servicer, as a result of a breach of the
Trustee's covenants and the Securities Administrator's covenants, respectively,
set forth in this Section 9.12; provided, however, such liability and obligation
to indemnify in this paragraph shall not be joint and several and neither the
Trustee nor the Securities Administrator shall be liable or be obligated to
indemnify the Trust Fund for the failure by the other to perform any duty under
this Agreement or the breach by the other of any covenant in this Agreement.
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ARTICLE X
TERMINATION
Section 10.01 TERMINATION.
(a) The respective obligations and responsibilities of the Master
Servicer, the Depositor and the Trustee created hereby (other than the
obligation of the Trustee to make certain payments to Certificateholders after
the final Distribution Date and the obligation of the Master Servicer to send
certain notices as hereinafter set forth) shall terminate upon notice to the
Trustee upon the earliest of (i) the Distribution Date on which the Class
Certificate Balance of each Class of Certificates has been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
and (iii) the optional purchase by the Master Servicer of the Mortgage Loans as
described below. Notwithstanding the foregoing, in no event shall the trust
created hereby continue beyond the earlier of (i) the Assumed Final Distribution
Date and (ii) the expiration of 21 years from the death of the last survivor of
the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States
to the Court of St. James's, living on the date hereof.
The Master Servicer may, at its option, terminate this Agreement on any
date on which the aggregate Stated Principal Balance of the Mortgage Loans is
10% or less of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date, or by purchasing, on the next succeeding Distribution Date,
all of the outstanding Mortgage Loans and REO Properties at a price equal to the
sum of the outstanding Stated Principal Balance of the Mortgage Loans and
accrued and unpaid interest thereon at the weighted average of the Mortgage
Interest Rates through the end of the Due Period preceding the final
Distribution Date plus unreimbursed Servicing Advances, Monthly Advances and any
unpaid Servicing Fees allocable to such Mortgage Loans and REO Properties (the
"Termination Price").
In connection with any such purchase pursuant to the preceding
paragraph, the Master Servicer shall deposit in the Distribution Account all
amounts then on deposit in the Master Servicer Collection Account (less amounts
permitted to be withdrawn by the Master Servicer pursuant to Section 4.03),
which deposit shall be deemed to have occurred immediately preceding such
purchase.
Any such purchase shall be accomplished by deposit into the
Distribution Account on the Business Day before such Distribution Date of the
Termination Price and the delivery of an opinion of counsel that such
termination is a "qualified liquidation" under Section 860F of the Code.
(b) Notice of any termination, specifying the Distribution Date
(which shall be a date that would otherwise be a Distribution Date) upon which
the Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and cancellation, shall be given promptly by
the Trustee upon the Trustee receiving notice of such date from the Master
Servicer, by letter to the Certificateholders mailed not earlier than the 15th
day and not later than the 25th day of the month next preceding the month of
such final distribution specifying (1) the Distribution Date upon which final
distribution of the Certificates will be made upon
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presentation and surrender of such Certificates at the office or agency of the
Trustee therein designated, (2) the amount of any such final distribution and
(3) 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 or agency of the Trustee therein specified.
(c) Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed to the Holders of the Certificates on the
Distribution Date for such final distribution, in proportion to the Percentage
Interests of their respective Class and to the extent that funds are available
for such purpose, an amount equal to the amount required to be distributed to
such Holders in accordance with the provisions of Section 6.01 for such
Distribution Date.
(d) In the event that all Certificateholders shall not surrender
their Certificates for final payment and cancellation on or before such final
Distribution Date, the Trustee shall promptly following such date cause all
funds in the Distribution Account not distributed in final distribution to
Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate servicing account for
the benefit of such Certificateholders, and the Master Servicer (if the Master
Servicer has exercised its right to purchase the Mortgage Loans) or the Trustee
(in any other case) 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 nine months after the
second notice all the Certificates shall not have been surrendered for
cancellation, the Class R Certificateholders shall be entitled to all unclaimed
funds and other assets which remain subject hereto, and the Trustee upon
transfer of such funds shall be discharged of any responsibility for such funds,
and the Certificateholders shall look to the Class R Certificateholders for
payment.
Section 10.02 ADDITIONAL TERMINATION REQUIREMENTS. (a) In the event
that the Master Servicer exercises its purchase option as provided in Section
10.01, the Trust Fund shall be terminated in accordance with the following
additional requirements, unless the Trustee shall have been furnished with an
Opinion of Counsel to the effect that the failure of the Trust to comply with
the requirements of this Section will not (i) result in the imposition of taxes
on "prohibited transactions" of the Trust as defined in Section 860F of the Code
or (ii) cause any REMIC constituting part of the Trust Fund to fail to qualify
as a REMIC at any time that any Certificates are outstanding:
(i) Within 90 days prior to the final Distribution Date,
the Trustee shall adopt and sign a plan of complete liquidation of the
Trust Fund as provided to it by the Master Servicer, meeting the
requirements of a "qualified liquidation" under Section 860F of the
Code and any regulations thereunder; and
(ii) At or after the time of adoption of such a plan of
complete liquidation and at or prior to the final Distribution Date,
the Trustee shall sell all of the assets of the Trust to the Master
Servicer for cash pursuant to the terms of the plan of complete
liquidation.
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(iii) at or after the time of adoption of such a plan of
complete liquidation of any of REMIC I and REMIC II, and at or prior to
the final Distribution Date relating thereto, the Trustee shall sell
for cash all of the assets of the Trust, to or at the direction of the
Depositor, and REMIC I and REMIC II, shall terminate at such time.
(b) By their acceptance of Certificates, the Holders thereof
hereby agree to appoint the Trustee as their attorney in fact to: (i) adopt such
a plan of complete liquidation (and the Certificateholders hereby appoint the
Trustee as their attorney in fact to sign such plan) as appropriate and (ii) to
take such other action in connection therewith as may be reasonably required to
carry out such plan of complete liquidation all in accordance with the terms
hereof.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 INTENT OF PARTIES. The parties intend that each of REMIC
I and REMIC II shall be treated as a REMIC for federal income tax purposes and
that the provisions of this Agreement should be construed in furtherance of this
intent.
Section 11.02 AMENDMENT. (a) This Agreement may be amended from time to
time by the Depositor, the Master Servicer, the Securities Administrator and the
Trustee, and the Assignment Agreements may be amended from time to time by the
Depositor, the Master Servicer and the Trustee, without notice to or the consent
of any of the Certificateholders, to cure any ambiguity, to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions herein or therein, to comply with any
changes in the Code or to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be inconsistent with the
provisions of this Agreement; provided, however, that such action shall not, as
evidenced by an Opinion of Independent Counsel, addressed to the Trustee,
adversely affect in any material respect the interests of any Certificateholder
or adversely affect the status of any REMIC created hereunder as a REMIC.
(b) This Agreement may also be amended from time to time by the
Master Servicer, the Depositor, the Securities Administrator and the Trustee,
and the Assignment Agreements may also be amended from time to time by the
Master Servicer and the Trustee, with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 51% of the Trust Fund
or of the applicable Class or Classes, if such amendment affects only such Class
or Classes, 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 Certificateholders; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Regular Certificate without the consent of the Holder of such Regular
Certificate, (ii) reduce the aforesaid percentage of Certificates the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all Certificates then outstanding, or (iii) cause REMIC I or REMIC II
to fail to qualify as a REMIC for federal income tax purposes, as evidenced by
an Opinion of Independent Counsel which shall be provided to the Trustee other
than at the Trustee's expense. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
Section 11.02(b), Certificates registered in the name of or held for the benefit
of the Depositor, the Securities Administrator, the Master Servicer, or the
Trustee or any Affiliate thereof shall be entitled to vote their Percentage
Interests with respect to matters affecting such Certificates.
(c) Promptly after the execution of any such amendment, the
Trustee shall furnish a copy of such amendment or written notification of the
substance of such amendment to each Certificateholder, with a copy to the Rating
Agencies.
(d) In the case of an amendment under Subsection 11.02(b) above,
it shall not be necessary for the Certificateholders to approve the particular
form of such an amendment. Rather, it shall be sufficient if the
Certificateholders approve the substance of the amendment.
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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.
(e) Prior to the execution of any amendment to this Agreement, the
Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this
Agreement and will not adversely affect the status of any REMIC created
hereunder. The Trustee and the Securities Administrator may, but shall not be
obligated to, enter into any such amendment which affects the Trustee's or the
Securities Administrator's own respective rights, duties or immunities under
this Agreement.
Section 11.03 RECORDATION OF AGREEMENT. To the extent permitted by
applicable law, 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 Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere. The Depositor
shall effect such recordation, at the expense of the Trust upon the request in
writing of a Certificateholder, but only if such direction is accompanied by an
Opinion of Counsel (provided at the expense of the Certificateholder requesting
recordation) to the effect that such recordation would materially and
beneficially affect the interests of the Certificateholders or is required by
law.
Section 11.04 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS. (a) The death
or incapacity of any Certificateholder shall not terminate this Agreement or the
Trust, nor entitle such Certificateholder's legal representatives or heirs to
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of the Trust, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
(b) Except as expressly provided in this Agreement, no
Certificateholders shall have any right to vote or in any manner otherwise
control the operation and management of the Trust, 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 establish the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholders be under any liability to any third Person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon, under or with respect to this Agreement against the
Depositor, the Securities Administrator, the Master Servicer or any successor to
any such parties unless (i) such Certificateholder previously shall have given
to the Trustee a written notice of a continuing default, as herein provided,
(ii) the Holders of Certificates evidencing Percentage Interests aggregating not
less than 51% of the Trust Fund shall have made written request upon 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 and expenses and liabilities to be incurred
therein or thereby, and (iii) the Trustee, for 60 days after its receipt of such
notice,
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request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding.
(d) No one or more Certificateholders shall have any right by
virtue of any provision of this Agreement to affect the rights of any other
Certificateholders or to obtain or seek to obtain priority or preference over
any other such Certificateholder, or to enforce any right under this Agreement,
except in the manner herein provided and for the equal, ratable and common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 11.04, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.05 ACTS OF CERTIFICATEHOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by Certificateholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Certificateholders in person or by an agent duly appointed in writing.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is expressly required, to the Depositor. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Agreement and conclusive in favor of the Trustee and the
Depositor, if made in the manner provided in this Section 11.05.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority. The fact and date of the execution of any such
instrument or writing, or the authority of the individual executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing on such Certificates, except an endorsement in
accordance with Section 5.02 made on a Regular Certificate presented in
accordance with Section 5.04) shall be proved by the Certificate Register, and
neither the Trustee, the Securities Administrator, the Depositor, the Master
Servicer nor any successor to any such parties shall be affected by any notice
to the contrary.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action of the holder of any Regular Certificate shall
bind every future holder of the same Regular Certificate and the holder of every
Regular Certificate issued upon the registration of transfer or exchange
thereof, if applicable, or in lieu thereof with respect to anything done,
omitted or suffered to be done by the Trustee, the Securities Administrator, the
Depositor, the Master Servicer or any successor to any such party in reliance
thereon, whether or not notation of such action is made upon such Certificates.
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(e) In determining whether the Holders of the requisite percentage
of Certificates evidencing Percentage Interests have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Certificates
owned by the Trustee, the Securities Administrator, the Depositor, the Master
Servicer or any Affiliate thereof shall be disregarded, except as otherwise
provided in Section 11.02(b) and except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Certificates which the Trustee knows
to be so owned shall be so disregarded. Certificates which have been pledged in
good faith to the Trustee, the Securities Administrator, the Depositor, the
Master Servicer or any Affiliate thereof may be regarded as outstanding if the
pledgor establishes to the satisfaction of the Trustee the pledgor's right to
act with respect to such Certificates and that the pledgor is not an Affiliate
of the Trustee, the Securities Administrator, the Depositor, or the Master
Servicer, as the case may be.
Section 11.06 GOVERNING LAW. THIS AGREEMENT AND THE CERTIFICATES SHALL
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS RULES AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.07 NOTICES. All demands and notices hereunder shall be in
writing and shall be deemed given when delivered at (including delivery by
facsimile) or mailed by registered mail, return receipt requested, postage
prepaid, or by recognized overnight courier, to (i) in the case of the
Depositor, 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Vice
President-Servicing, telecopier number: (000) 000-0000, or to such other address
as may hereafter be furnished to the other parties hereto in writing; (ii) in
the case of the Trustee, at its Corporate Trust Office, or such other address as
may hereafter be furnished to the other parties hereto in writing; (iii) in the
case of the MLMLI, 4 World Financial Center, New York, New York 10281,
Attention: Vice President-Servicing, telecopier number: (000) 000-0000, or to
such other address as may hereafter be furnished to the other parties hereto in
writing; (iv) in the case of the Master Servicer or Securities Administrator,
Xxxxx Fargo Bank, N.A., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention MLMI
Series 2005-A1, or, in the case of overnight deliveries, 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: MLMI Series 2005-A1, facsimile
no.: (000) 000-0000, or such other address as may hereafter be furnished to the
other parties hereto in writing; (v) in the case of the Custodian, Xxxxx Fargo
Bank, N.A., 0000 00xx Xxxxxx Xxxxxxxxx, XX 0031, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: MLMI Series 2005-A1; or such other address as may hereafter be
furnished to the other parties hereto in writing; or (vi) in the case of the
Rating Agencies, Fitch, Inc./RMBS, Xxx Xxxxx Xxxxxx Xxxxx - 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 and Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any notice delivered
to the Depositor, the Master Servicer, the Securities Administrator or the
Trustee under this Agreement shall be effective only upon receipt. Any notice
required or permitted to be mailed to a Certificateholder, unless otherwise
provided herein, shall be given by first-class mail, postage prepaid, at the
address of such Certificateholder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given when mailed, whether or not the
Certificateholder receives such notice.
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Section 11.08 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 severed 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 11.09 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto.
Section 11.10 ARTICLE AND SECTION HEADINGS. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 11.11 COUNTERPARTS. This Agreement may be executed in two or
more counterparts each of which when so executed and delivered shall be an
original but all of which together shall constitute one and the same instrument.
Section 11.12 NOTICE TO RATING AGENCIES. The article and section
headings herein are for convenience of reference only, and shall not limited or
otherwise affect the meaning hereof. The Trustee shall promptly provide notice
to each Rating Agency with respect to each of the following of which it has
actual knowledge:
1. Any material change or amendment to this Agreement or the
Servicing Agreements;
2. The occurrence of any Event of Default that has not been
cured;
3. The resignation or termination of the Master Servicer, the
Trustee or the Securities Administrator;
4. The repurchase or substitution of Mortgage Loans;
5. The final payment to Certificateholders; and
6. Any change in the location of the Master Servicer Collection
Account or the Distribution Account.
Section 11.13 THIRD PARTY BENEFICIARY. For purposes of Sections 3.07,
3.08, 3.15(c), 4.01 and 4.05 of this Agreement, Washington Mutual Bank, FA shall
be considered a third party beneficiary entitled to all the rights and benefits
accruing to any servicer herein as if it were a direct party to this agreement.
-117-
IN WITNESS WHEREOF, the Depositor, the Trustee, the Master Servicer and
the Securities Administrator have caused their names to be signed hereto by
their respective officers thereunto duly authorized as of the day and year first
above written.
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Depositor
By: /s/ Xxxx Park
---------------------------------------
Name: Xxxx Park
Title: Authorized Signatory
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Securities Administrator
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
-118-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 31st day of January, 2005, before me, a notary public in and for
said State, personally appeared Xxxx Park, known to me to be an Authorized
Signatory of Xxxxxxx Xxxxx Mortgage Investors, Inc., the corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxx
-----------------------
Notary Public
[Notarial Seal]
-119-
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 31st day of January, 2005, before me, a notary public in and for
said State, personally appeared Xxxxx Xxxxxx, known to me to be an Assistant
Vice President of Wachovia Bank, National Association, the entity that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxxxx X. Xxxx
-----------------------
Notary Public
[Notarial Seal]
-120-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 31st day of January, 2005, before me, a notary public in and for
said State, personally appeared Xxxxxx Xxxxxx, known to me to be a Vice
President of Xxxxx Fargo Bank, N.A., the entity that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said entity, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxxxx
-----------------------
Notary Public
[Notarial Seal]
-121-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 31st day of January, 2005, before me, a notary public in and for
said State, personally appeared Xxxxxx Xxxxxx, known to me to be a Vice
President of Xxxxx Fargo Bank, N.A., the entity that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said entity, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxxxx
-----------------------
Notary Public
[Notarial Seal]
-122-
EXHIBIT A-1
FORM OF CLASS [_-A-_][M-_] 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 (THE "CODE").
[THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES
[THE CLASS M-1 CERTIFICATES AND THE CLASS M-2 CERTIFICATES] AND THE RESIDUAL
CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
[EACH BENEFICIAL OWNER OF A CLASS M CERTIFICATE OR ANY
INTEREST THEREIN SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS
ACQUISITION OR HOLDING OF THAT CERTIFICATE OR INTEREST THEREIN, THAT EITHER (I)
IT IS NOT A PLAN OR A PLAN INVESTOR OR INVESTING WITH PLAN ASSETS, (II) IT HAS
ACQUIRED AND IS HOLDING SUCH CERTIFICATE IN RELIANCE ON THE PROHIBITED
TRANSACTION EXEMPTION 90-29 ISSUED BY THE DEPARTMENT OF LABOR, AS AMENDED
("EXEMPTION"), AND THAT IT UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE
AVAILABILITY OF THE EXEMPTION, INCLUDING THAT THE CERTIFICATE MUST BE RATED, AT
THE TIME OF PURCHASE, NOT LOWER THAN "BBB-" (OR ITS EQUIVALENT) BY FITCH,
XXXXX'X OR S&P, OR (III) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS
USED TO ACQUIRE OR HOLD THE CERTIFICATE OR INTEREST THEREIN IS AN "INSURANCE
COMPANY GENERAL ACCOUNT," AS SUCH TERM IS DEFINED IN PTCE 95-60, AND (3) THE
CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED.]
[IF ANY BOOK-ENTRY CERTIFICATE (OR ANY INTEREST THEREIN) IS
ACQUIRED OR HELD IN VIOLATION OF THE PROVISIONS OF SECTION 5.02(D) OF THE
POOLING AND SERVICING AGREEMENT, THEN THE LAST PRECEDING TRANSFEREE THAT IS IN
COMPLIANCE WITH SUCH PROVISIONS SHALL BE RESTORED, TO THE EXTENT PERMITTED BY
LAW, TO ALL RIGHTS AND OBLIGATIONS AS CERTIFICATE OWNER THEREOF RETROACTIVE TO
THE DATE OF SUCH TRANSFER OF SUCH CERTIFICATE. THE TRUSTEE SHALL BE
UNDER NO LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS DUE ON SUCH CERTIFICATE
TO SUCH PRECEDING TRANSFEREE.]
[ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING
OF ANY BOOK-ENTRY CERTIFICATE (OR INTEREST THEREIN) WAS EFFECTED IN VIOLATION OF
THE RESTRICTIONS IN SECTION 5.02(D) OF THE AGREEMENT SHALL INDEMNIFY AND HOLD
HARMLESS THE DEPOSITOR, THE TRUSTEE, THE SERVICER AND THE TRUST FUND FROM AND
AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH
PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.]
A-1-2
MLMI Series 2005-A1, Class [_-A-_][M-_] Aggregate [Class Certificate
Balance] of the Class [_-A-_][M-_]
Certificates as of the Issue Date:
$----------
Pass-Through Rate: __________ Initial [Class Certificate Balance] of this Class
[_-A-_][M-_] Certificate as of the Issue Date
$----------
Date of Agreement and Cut-off Date: Master Servicer:
January 1, 2005 Xxxxx Fargo Bank, N.A.
First Distribution Date: February 25, 2005 Trustee: Wachovia Bank, National Association
No. __ Issue Date: January 31, 2005
CUSIP: ___________
DISTRIBUTIONS IN REDUCTION OF THE [CLASS CERTIFICATE BALANCE] OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING [CLASS CERTIFICATE BALANCE] HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE PASS-THROUGH CERTIFICATE
MLMI SERIES 2005-A1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of one- to four-family, fixed-rate and
adjustable-rate mortgage loans secured by first liens on residential property
(the "Mortgage Loans") formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
XXXXXXX XXXXX MORTGAGE INVESTORS, INC., THE MASTER SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that Cede & Co. is the registered owner of a
Percentage Interest obtained by dividing the denomination of this Certificate by
the aggregate [Class Certificate Balance] of the Class [_-A-_][M-_] Certificates
as of the Issue Date in that certain beneficial
A-1-3
ownership interest evidenced by all the Class [_-A-_][M-_] Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc.
(hereinafter called the "Depositor," which term includes any successor entity
under the Agreement), Xxxxx Fargo Bank, N.A. as master servicer (in such
capacity, the "Master Servicer") and securities administrator (in such capacity,
the "Securities Administrator"), and Wachovia Bank, National Association (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. 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.
Interest on this Certificate will accrue during the period
specified in the Agreement on the [Class Certificate Balance] hereof at a per
annum rate equal to the Pass-Through Rate set forth above and as further
described in the Agreement.
Pursuant to the terms of the Agreement, distributions 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 (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the 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 the Holders of Class [_-A-_][M-_] Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Trustee in writing at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class [_-A-_][M-_]
Certificates, or otherwise by check mailed by first class mail to the address of
the Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trustee for that purpose as provided in
the Agreement.
[As described above, each any transferee of a Class M
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of that certificate or interest therein,
that either (i) it is not a Plan or a Plan Investor or investing with Plan
assets, (ii) it has acquired and is holding such certificate in reliance on the
Prohibited Transaction Exemption 90-29 issued by the Department of Labor, as
amended ("Exemption"), and that it understands that there are certain conditions
to the availability of the Exemption, including that the certificate must be
rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by
Fitch, Xxxxx'x or S&P, or (iii) (1) it is an insurance company, (2) the source
of funds used to acquire or hold the certificate or interest therein is an
"insurance company general account," as such term is defined in PTCE 95-60, and
(3) the conditions in Sections I and III of PTCE 95-60 have been satisfied.]
A-1-4
[If any Book-Entry Certificate (or any interest therein) is
acquired or held in violation of the provisions of Section 5.02(d) of the
Agreement, then the last preceding Transferee that is in compliance with such
provisions shall be restored, to the extent permitted by law, to all rights and
obligations as Certificate Owner thereof retroactive to the date of such
Transfer of such Certificate. The Trustee shall be under no liability to any
Person for making any payments due on such Certificate to such preceding
Transferee.]
[Any purported Certificate Owner whose acquisition or holding
of any Book-Entry Certificate (or interest therein) was effected in violation of
the restrictions in Section 5.02(d) of the Agreement shall indemnify and hold
harmless the Depositor, the Trustee, the Servicer and the Trust Fund from and
against any and all liabilities, claims, costs or expenses incurred by such
parties as a result of such acquisition or holding.]
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate [Class Certificate Balance] of the Class of Certificates specified
on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer and the Trustee and the rights
of the Holders of the Certificates under the Agreement at any time by the
Depositor, the Master Servicer and the Trustee, with the consent of the Holders
of Certificates evidencing Percentage Interests aggregating not less than 51% of
the Trust Fund or of the applicable Class or Classes, if such amendment affects
only such Class or Classes, 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 Certificateholders. 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 herefor 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 set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other 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
A-1-5
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations 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 of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and the
Certificate Registrar and any agent of the Depositor, the Master Servicer, the
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar nor any
such agent shall be affected by notice to the contrary.
This certificate shall be governed by and construed in
accordance with the laws of the state of New York.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trustee
and required to be paid to them pursuant to the Agreement following the earlier
of (i) the final payment (or any advance with respect thereto) on or other
liquidation of the last Mortgage Loan remaining in the Trust Fund and (ii) the
optional purchase by the party designated in the Agreement at a price determined
as provided in the Agreement from the Trust Fund of all the Mortgage Loans and
all property acquired in respect of such Mortgage Loans remaining therein. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all the Mortgage Loans and all property acquired
in respect of any Mortgage Loan remaining therein at a price determined as
provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Loan Balance of the Mortgage Loans at the time of purchase being
less than 1% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
A-1-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: _____________, 2005
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: ___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class [_-A-_][M-_] Certificates referred to
in the within-mentioned Agreement.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ____________________________________
Authorized Signatory
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
-------------
(Cust) (Minor)
under Uniform
Gifts to Minors
Act
--------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in
the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the Mortgage Pass-Through Certificate and
hereby authorize(s) the registration of transfer of such interest to assignee on
the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
--------------------------------------------------------------------------------
-------------------------------------------------------------------------------.
Dated:
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
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.
EXHIBIT A-2
FORM OF CLASS [B-_] 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 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND THE
CLASS M CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE CODE WILL BE REGISTERED
EXCEPT IN ACCORDANCE WITH SECTION 5.02(D) OF THE AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
A-2-1
MLMI Series 2005-A1, Class [B-_] Aggregate Certificate Principal Balance
of Class [B-_] Certificates as of
the Issue Date:
$____________________
Pass Through Rate: __________ Denomination: $__________
Date of Agreement and Cut-off Date: Master Servicer:
January 1, 2005 Xxxxx Fargo Bank, N.A.
First Distribution Date: February 25, 2005 Trustee: Wachovia Bank, National Association
Issue Date: January 31, 2005
No. __ CUSIP: __________
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional, one- to four-family, fixed-rate
and adjustable-rate mortgage loans secured by first liens on residential
property (the "Mortgage Loans") formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
MLMI SERIES 2005-A1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
XXXXXXX XXXXX MORTGAGE INVESTORS, INC., THE MASTER SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that ____________________ is the registered
owner of a Percentage Interest (obtained by dividing the denomination of this
Certificate by the aggregate Certificate Principal Balance of the Class [B-_]
Certificates as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class [B-_] Certificates in the Trust Fund created
A-2-2
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc. (hereinafter called
the "Depositor," which term includes any successor entity under the Agreement),
Xxxxx Fargo Bank, N.A. as master servicer (in such capacity, the "Master
Servicer") and securities administrator (in such capacity, the "Securities
Administrator"), and Wachovia Bank, National Association (the "Trustee"), a
summary of certain of the pertinent provisions of which is set forth hereafter.
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.
Pursuant to the terms of the Agreement, distributions 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 (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the 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 the Holders of Class [B-_] Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Trustee in writing at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class [B-_] Certificates, or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trustee for that purpose as provided in
the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer and the Trustee and the rights
of the Holders of the Certificates under the Agreement at any time by the
Depositor, the Master Servicer and the Trustee, with the consent of
A-2-3
the Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the Trust Fund or of the applicable Class or Classes, if such
amendment affects only such Class or Classes, 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
Certificateholders. 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 herefor 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 set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other 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 evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, (i) unless such transfer is made in reliance upon
Rule 144A (as evidenced by the investment letter delivered to the Trustee, in
substantially the form attached to the Agreement as Exhibit F-3) under the 1933
Act, the Trustee and the Depositor shall require a written Opinion of Counsel
(which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act,
which Opinion of Counsel shall not be an expense of the Trustee or the Depositor
or (ii) the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Agreement as Exhibit F-2)
and the transferee to execute an investment letter (in substantially the form
attached to the Agreement as Exhibit F-2) acceptable to and in form and
substance reasonably satisfactory to the Depositor and the Trustee certifying to
the Depositor and the Trustee the facts surrounding such transfer, which
investment letter shall not be an expense of the Trustee or the Depositor. None
of the Depositor, the Certificate Registrar or the Trustee is obligated to
register or qualify the Class of Certificates specified on the face hereof under
the 1933 Act or any other securities law or to take any action not otherwise
A-2-4
required under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Depositor, the
Certificate Registrar and the Master 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 this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any person using Plan Assets to acquire this Certificate
shall be made except in accordance with Section 5.02(d) of the Agreement. No
service charge will be made for any such registration of transfer or exchange of
Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and the
Certificate Registrar and any agent of the Depositor, the Master Servicer, the
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar nor any
such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trustee
and required to be paid to them pursuant to the Agreement following the earlier
of (i) the Distribution Date on which the Certificate Principal Balance of each
Class of Certificates has been reduced to zero, (ii) the final payment (or any
advance with respect thereto) on or other liquidation of the last Mortgage Loan
remaining in the Trust Fund and (iii) the optional purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from the Trust Fund of all the Mortgage Loans and all property acquired in
respect of such Mortgage Loans remaining therein. The Agreement permits, but
does not require, the party designated in the Agreement to purchase from the
Trust Fund all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan remaining therein at a price determined as provided in the
Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Loan
Balance of the Mortgage Loans at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
A-2-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: _____________, 2005
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: ___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class [B-_] Certificates referred to
in the within-mentioned Agreement.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ____________________________________
Authorized Signatory
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
------------
(Cust) (Minor)
under Uniform
Gifts to Minors
Act
------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in
the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following
address:________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------
Signature by or on behalf of assignor
------------------------------------
Signature Guaranteed
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.
EXHIBIT A-3
FORM OF CLASS [R-_] CERTIFICATE
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC"), AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE CODE WILL BE REGISTERED
EXCEPT IN ACCORDANCE WITH SECTION 5.02(D) OF THE AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (I) AN AFFIDAVIT TO THE TRUSTEE
THAT (A) SUCH TRANSFEREE IS NOT (1) THE UNITED STATES OR ANY POSSESSION THEREOF,
ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING, (2) ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION
521 OF THE CODE) THAT IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE, (3) ANY ORGANIZATION DESCRIBED IN SECTION 1381(A)(2)(C) OF THE CODE (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (1), (2) OR (3) SHALL HEREINAFTER
BE REFERRED TO AS A "DISQUALIFIED ORGANIZATION") OR (4) AN AGENT OF A
DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE
ASSESSMENT OR COLLECTION OF TAX, AND (II) SUCH TRANSFEREE SATISFIES CERTAIN
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE
PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE
DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH AND THE PROVISIONS
OF SECTION 5.02(D) OF THE AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A
DISQUALIFIED ORGANIZATION IS PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP OF
THIS CERTIFICATE.
A-3-2
MLMI Series 2005-A1, Class [R-_] Percentage Interest: 100%
Date of Agreement and Cut-off Date: Master Servicer: Xxxxx Fargo Bank,
January 1, 2005 N.A.
First Distribution Date: February 25, 2005 Trustee: Wachovia Bank, National Association
No. __ Issue Date: January 31, 2005
CUSIP: __________
MORTGAGE PASS-THROUGH CERTIFICATE
MLMI SERIES 2005-A1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of one-to four-family, fixed-rate and
adjustable-rate mortgage loans secured by first liens on residential property
(the "Mortgage Loans") formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
XXXXXXX XXXXX MORTGAGE INVESTORS, INC., THE MASTER SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that ____________________, is a registered
owner of a 100% Percentage Interest specified above in that certain beneficial
ownership interest evidenced by all the Class [R-_] Certificates in the Trust
Fund created pursuant to a Pooling and Servicing Agreement, dated as specified
above (the "Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc.
(hereinafter called the "Depositor," which term includes any successor entity
under the Agreement), Xxxxx Fargo Bank, N.A. as master servicer (in such
capacity, the "Master Servicer") and securities administrator (in such capacity,
the "Securities Administrator"), and Wachovia Bank, National Association (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. 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.
Pursuant to the terms of the Agreement, distributions 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 (each, a "Distribution Date"), commencing
on the First Distribution Date specified
A-3-3
above, to the Person in whose name this Certificate is registered on the 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 the Holders of
Class [R_] Certificates on such Distribution Date pursuant to the Agreement.
This Certificate does not have a Class Certificate Balance or
Pass-Through Rate and will be entitled to distributions only to the extent set
forth in the Agreement. In addition, any distribution of the proceeds of any
remaining assets of the Trust will be made only upon presentment and surrender
of this Certificate at the Corporate Trust Office.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the related Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the related Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer and the Trustee and the rights
of the Holders of the Certificates under the Agreement at any time by the
Depositor, the Master Servicer and the Trustee, with the consent of the Holders
of Certificates evidencing Percentage Interests aggregating not less than 51% of
the Trust Fund or of the applicable Class or Classes, if such amendment affects
only such Class or Classes, 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 Certificateholders. 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 herefor 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 set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other 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 evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
A-3-4
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Class [R-_]
Certificate shall be made unless such disposition is exempt from the
registration requirements of the Securities Act of 1933, as amended (the "1933
Act"), and any applicable state securities laws or is made in accordance with
the 1933 Act and laws. In the event of any such transfer, made in reliance upon
an exemption from the 1933 Act, (i) the Trustee and the Depositor shall require
(a) the transferor to certify in writing the facts surrounding the transfer (in
substantially the form attached to the Agreement as Exhibit E-2), and the
transferee to execute an investment letter (in substantially the form attached
to the Agreement as Exhibit E-1) and (b) a written Opinion of Counsel (which may
be in-house counsel) acceptable to and in form and substance reasonably
satisfactory to the Trustee and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall not be an expense of the Trustee or the Depositor. The
Holder of this Class [R-_] Certificate desiring to effect such transfer shall,
and does hereby agree to, indemnify the Trustee and the Depositor 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 this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any person using Plan Assets to acquire this Certificate
shall be made except in accordance with Section 5.02(d) of the Agreement.
Prior to registration of any transfer, sale or other
disposition of this Certificate, the proposed transferee shall provide to the
Trustee (i) an affidavit to the effect that such transferee is any Person other
than a Disqualified Organization or the agent (including a broker, nominee or
middleman) of a Disqualified Organization, and (ii) a certificate that
acknowledges that (A) the Class R Certificates have been designated as a
residual interest in a REMIC, (B) it will include in its income a PRO RATA share
of the net income of the Trust Fund and that such income may be an "excess
inclusion," as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects to
have the financial means to satisfy all of its tax obligations including those
relating to holding the Class [R-_] Certificates. Notwithstanding the
registration in the Certificate Register of any transfer, sale or other
disposition of this Certificate to a Disqualified Organization or an agent
(including a broker, nominee or middleman) of a Disqualified Organization, such
registration shall be deemed to be of no legal force or effect whatsoever and
such Person shall not be deemed to be a Certificateholder for any purpose,
including, but not limited to, the receipt of distributions in respect of this
Certificate.
The Holder of this Certificate, by its acceptance hereof,
shall be deemed to have consented to the provisions of Section 5.02 of the
Agreement and to any amendment of the Agreement deemed necessary by counsel of
the Depositor to ensure that the transfer of this
A-3-5
Certificate to any Person other than a Permitted Transferee or any other Person
will not cause the REMIC to cease to qualify as a REMIC or cause the imposition
of a tax upon the REMIC.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and the
Certificate Registrar and any agent of the Depositor, the Master Servicer, the
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar nor any
such agent shall be affected by notice to the contrary.
This certificate shall be governed by and construed in
accordance with the laws of the state of New York.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trustee
and required to be paid to them pursuant to the Agreement following the earlier
of (i) the final payment (or any advance with respect thereto) on or other
liquidation of the last Mortgage Loan remaining in the Trust Fund and (ii) the
optional purchase by the party designated in the Agreement at a price determined
as provided in the Agreement from the Trust Fund of all the Mortgage Loans and
all property acquired in respect of such Mortgage Loans remaining therein. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all the Mortgage Loans and all property acquired
in respect of any Mortgage Loan remaining therein at a price determined as
provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Loan Balance of the Mortgage Loans at the time of purchase being
less than 1% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
A-3-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: _____________, 2005
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: ___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class [R-_] Certificates referred to
in the within-mentioned Agreement.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ____________________________________
Authorized Signatory
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
------------
(Cust) (Minor)
under Uniform
Gifts to Minors
Act
------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in
the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following
address:________________________________________________________________________
________________________________________________________________________________
Dated:
------------------------------------
Signature by or on behalf of assignor
------------------------------------
Signature Guaranteed
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.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
[Provided Upon Request]
B-1
EXHIBIT C
[RESERVED]
C-1
EXHIBIT D
REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx Fargo Bank, N.A.
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx Xxxxxxxxx 00000
Attn: ______________________
Re: Custodial Agreement dated as of _________, among
_________________, _____, and Xxxxx Fargo Bank, N.A., as
Custodian
In connection with the administration of the Mortgage Loans held by you
as Custodian for the Owner pursuant to the above-captioned Custody Agreement, we
request the release, and hereby acknowledge receipt, of the Custodian's Mortgage
File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
1. Mortgage Paid in full
-----------------
2. Foreclosure
-----------------
3. Substitution
-----------------
4. Other Liquidation (Repurchases, etc.)
-----------------
5. Nonliquidation Reason:________________________
-----------------
By: ___________________________
(authorized signer)
Issuer:________________________
________________________
Address:_______________________
Date: ______________________
D-1
Custodian
---------
Xxxxx Fargo Bank, N.A.
Please acknowledge the execution of the above request by your signature and date
below:
Please acknowledge the execution of the above request by your signature and date
below:
------------------------- --------------------
Signature Date
Documents returned to Custodian:
------------------------- --------------------
Custodian Date
D-2
EXHIBIT E-1
FORM OF TRANSFER AFFIDAVIT
Affidavit pursuant to Section
860E(e)(4) of the Internal Revenue
Code of 1986, as amended, and for
other purposes
STATE OF )
)ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Investor] (the
"Investor"), a [savings institution] [corporation] duly organized and existing
under the laws of [the State of _____] [the United States], on behalf of which
he makes this affidavit.
2. That (i) the Investor is not a "disqualified organization" as
defined in Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the "Code"), and will not be a disqualified organization as of [Closing Date]
[date of purchase]; (ii) it is not acquiring the Xxxxxxx Xxxxx Mortgage
Investors, Inc. Mortgage Pass-Through Certificates, MLMI Series 2005-A1, Class
R-__ Certificates (the "Residual Certificates") for the account of a
disqualified organization; (iii) it consents to any amendment of the Pooling and
Servicing Agreement that shall be deemed necessary by Xxxxxxx Xxxxx Mortgage
Investors, Inc. (upon advice of counsel) to constitute a reasonable arrangement
to ensure that the Residual Certificates will not be owned directly or
indirectly by a disqualified organization; and (iv) it will not transfer such
Residual Certificates unless (a) it has received from the transferee an
affidavit in substantially the same form as this affidavit containing these same
four representations and (b) as of the time of the transfer, it does not have
actual knowledge that such affidavit is false.
3. That the Investor is one of the following: (i) a citizen or resident
of the United States, (ii) a corporation or partnership (including an entity
treated as a corporation or partnership for federal income tax purposes) created
or organized in, or under the laws of, the United States or any state thereof or
the District of Columbia (except, in the case of a partnership, to the extent
provided in regulations), provided that no partnership or other entity treated
as a partnership for United States federal income tax purposes shall be treated
as a United States Person unless all persons that own an interest in such
partnership either directly or through any entity that is not a corporation for
United States federal income tax purposes are United States Persons, (iii) an
estate whose income is subject to United States federal income tax regardless of
its source, or (iv) a trust other than a "foreign trust," as defined in Section
7701 (a)(31) of the Code.
4. That the Investor's taxpayer identification number is
______________________.
E-1-1
5. That no purpose of the acquisition of the Residual Certificates is
to avoid or impede the assessment or collection of tax.
6. That the Investor understands that, as the holder of the Residual
Certificates, the Investor may incur tax liabilities in excess of any cash flows
generated by such Residual Certificates.
7. That the Investor intends to pay taxes associated with holding the
Residual Certificates as they become due.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[Title of Officer] this ____ day of _________, 20__.
[NAME OF INVESTOR]
By: ______________________________________
[Name of Officer]
[Title of Officer]
[Address of Investor for receipt of
distributions]
Address of Investor for
receipt of tax
information:
E-1-2
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE
________ , 20__
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Trustee]
Attention: Xxxxxxx Xxxxx Mortgage Investors, Inc, Series _______
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, MLMI Series 2005-A1,
Class [_____]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Seller") to _____________________(the "Purchaser")
of $______________ Initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, MLMI Series ________, Class R-__ (the
"Certificates"), pursuant to Section 5.02 of the Pooling and Servicing
Agreement, dated as of January 1, 2005 among Xxxxxxx Xxxxx Mortgage Investors,
Inc., (the "Depositor"), Xxxxx Fargo Bank, N.A. as master servicer (in such
capacity, the "Master Servicer") and securities administrator (in such capacity,
the "Securities Administrator"), and Wachovia Bank, National Association, as
trustee (the "Trustee"). All terms used herein and not otherwise defined shall
have the meanings set forth in the Pooling and Servicing Agreement. The Seller
hereby certifies, represents and warrants to, and covenants with, the Company
and the Trustee that:
1. No purpose of the Seller relating to the transfer of the Certificate
by the Seller to the Purchaser is or will be to impede the assessment or
collection of any tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee and the Master Servicer a transfer affidavit and agreement in the form
attached to the Pooling and Servicing Agreement as Exhibit E-1. The Seller does
not know or believe that any representation contained therein is false.
3. The Seller has at the time of the transfer conducted a reasonable
investigation of the financial condition of the Purchaser as contemplated by
Treasury Regulations Section 1.860E- 1(c)(4)(i) and, as a result of that
investigation, the Seller has determined that the Purchaser has historically
paid its debts as they become due and has found no significant evidence to
indicate that the Purchaser will not continue to pay its debts as they become
due in the future. The Seller understands that the transfer of a Class R-__
Certificate may not be respected for United States income tax purposes (and the
Seller may continue to be liable for
X-0-0
Xxxxxx Xxxxxx income taxes Associated therewith) unless the Seller has conducted
such an investigation.
4. The Seller has no actual knowledge that the proposed Transferee is
not both a United States Person and a Permitted Transferee.
Very truly yours,
-------------------------------
(Seller)
By:
-----------------------------
Name:
Title:
E-2-2
EXHIBIT F-1
FORM OF TRANSFEROR REPRESENTATION LETTER
____________, 200___
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, MLMI Series 2005-A1,
Class [ _]
Ladies and Gentlemen:
In connection with the sale by ___________ (the "Seller") to ________
(the "Purchaser") of $_________ Initial Certificate Principal Balance of
Mortgage Pass-Through Certificates, Series 2005-A1, Class _____ (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of January 1, 2005 among Xxxxxxx
Xxxxx Mortgage Investors, Inc., (the "Depositor"), Xxxxx Fargo Bank, N.A. as
master servicer (in such capacity, the "Master Servicer") and securities
administrator (in such capacity, the "Securities Administrator"), and Wachovia
Bank, National Association, as trustee (the "Trustee"). The Seller hereby
certifies, represents and warrants to, and covenants with, the Depositor and the
Trustee that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act in any
manner set forth in the foregoing sentence with respect to any Certificate. The
Seller has not and will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Pooling and Servicing Agreement.
F-1-1
Very truly yours,
-----------------------------------
(Seller)
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
F-1-2
EXHIBIT F-2
FORM OF INVESTOR REPRESENTATION LETTER (NON-RULE 144A)
__________, 200__
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, MLMI Series 2005-A1, Class [R-__]
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
institutional "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 ("ERISA"), or a plan or arrangement that is subject to Section
4975 of the Internal Revenue Code of 1986, as amended ("Code"), 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) the proposed
transfer and holding of such a Certificate and the servicing, management and
operation of the Trust: (I) will not result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code which is not covered under an
individual or class prohibited transaction exemption including but not limited
to Department of Labor Prohibited Transaction Class Exemption ("PTCE") 84-14
(Class Exemption for Plan Asset Transactions Determined by Independent Qualified
Professional Asset Managers); PTCE 91-38 (Class Exemption for Certain
Transactions Involving Bank Collective Investment Funds); PTCE 90-1 (Class
Exemption for Certain Transactions Involving Insurance Company Pooled Separate
Accounts), PTCE 95-60 (Class Exemption for Certain Transactions Involving
Insurance Company General Accounts), and PTCE 96-23 (Class Exemption for Plan
Asset Transactions Determined by In-House Asset Managers) and (II) will not
subject the Depositor, the Servicer, the Master Servicer, the Securities
Administrator or the Trustee to any obligation in addition to those undertaken
in the Agreement, (e) we are acquiring the Certificates for investment for our
own account and not with a view to any distribution of
F-2-1
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 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
F-2-2
EXHIBIT F-3
FORM OF RULE 144A LETTER
__________, 2005
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, MLMI Series 2005-A1,
Class [R-__]
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 we are not an employee benefit plan that
is subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended ("Code"), nor are we acting on behalf
of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such acquisition or the proposed transfer and holding of
such a Certificate and the servicing, management and operation of the Trust: (I)
will not result in a prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code which is not covered under an individual or class
prohibited transaction exemption including but not limited to Department of
Labor Prohibited Transaction Class Exemption ("PTCE") 84-14 (Class Exemption for
Plan Asset Transactions Determined by Independent Qualified Professional Asset
Managers); PTCE 91-38 (Class Exemption for Certain Transactions Involving Bank
Collective Investment Funds); PTCE 90-1 (Class Exemption for Certain
Transactions Involving Insurance Company Pooled Separate Accounts), PTCE 95-60
(Class Exemption for Certain Transactions Involving Insurance Company General
Accounts), and PTCE 96-23 (Class Exemption for Plan Asset Transactions
Determined by In-House Asset Managers) and (II) will not subject the Depositor,
the Servicer, the Master Servicer, the Securities Administrator or the Trustee
to any obligation in addition to those undertaken in the Agreement, (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
F-3-1
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, (f) we are a "qualified institutional buyer"
as that term is defined in Rule 144A under the Act ("Rule 144A") and have
completed either of the forms of certification to that effect attached hereto as
Annex 1 or Annex 2, (g) we are aware that the sale to us is being made in
reliance on Rule 144A, and (h) 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 (A) 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 (B) pursuant to another exemption from registration under the Act.
Very truly yours,
_______________________________________
Print Name of Transferee
By:____________________________________
Authorized Officer
F-3-2
ANNEX I TO EXHIBIT F-2
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 $___________1 in securities (except for the 1
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
1 Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case,
Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
Ax.I to F-2-1
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.
___ 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.
Ax.I to F-2-2
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:_____________________________________
Ax.I to F-2-3
ANNEX II TO EXHIBIT F-2
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.
Ax II to F-2-1
5. The Buyer is familiar with Rule 144A and understands that the parties listed
in the Rule 144A Transferee Certificate to which this certification relates are
relying and will continue to rely on the statements made herein because one or
more sales to the Buyer will be in reliance on Rule 144A. In addition, The Buyer
will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, The undersigned will notify
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions herein.
Until such notice is given, The Buyer's purchase of the Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
------------------------------------------
Print Name of Buyer or Adviser
By:_______________________________________
Name:
Title:
IF AN ADVISER:
------------------------------------------
Print Name of Buyer
Date:_____________________________________
Ax II to F-2-2
EXHIBIT G
CUSTODIAL AGREEMENT
-------------------
THIS CUSTODIAL AGREEMENT (as amended and supplemented from
time to time, the "Agreement'), dated as of January 31, 2005, by and among
WACHOVIA BANK, NATIONAL ASSOCIATION, as trustee (including its successors under
the Pooling and Servicing Agreement defined below, the "Trustee"), XXXXXXX XXXXX
MORTGAGE INVESTORS, INC., as company (together with any successor in interest,
the "Company"), XXXXX FARGO BANK, N.A., as master servicer and securities
administrator (together with any successor in interest or successor under the
Pooling and Servicing Agreement referred to below, the "Master Servicer") and
XXXXX FARGO BANK, N.A., as custodian (together with any successor in interest or
any successor appointed hereunder, the "Custodian").
WITNESSETH THAT:
----------------
WHEREAS, the Company, the Master Servicer and the Trustee have
entered into a Pooling and Servicing Agreement, dated as of January 1, 2005,
relating to the issuance of Mortgage Pass-Through Certificates, MLMI Series
2005-A1 (as in effect on the date of this agreement, the "Original Pooling and
Servicing Agreement," and as amended and supplemented from time to time, the
"Pooling and Servicing Agreement"); and
WHEREAS, the Custodian has agreed to act as agent for the
Trustee for the purposes of receiving and holding certain documents and other
instruments delivered by the Company or the Master Servicer under the Pooling
and Servicing Agreement and the Servicers under their respective Servicing
Agreements, all upon the terms and conditions and subject to the limitations
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter set forth, the Trustee, the Company,
the Master Servicer and the Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement and not defined
herein shall have the meanings assigned in the Original Pooling and Servicing
Agreement, unless otherwise required by the context herein.
ARTICLE II
CUSTODY OF MORTGAGE DOCUMENTS
Section 2.1 Custodian to Act as Agent: Acceptance of Mortgage
Files. The Custodian, as the duly appointed agent of the Trustee for these
purposes, acknowledges (subject to any exceptions noted in the Initial
Certification referred to in Section 2.3(a) receipt of the Mortgage Files
relating to the Mortgage Loans identified on the schedule attached hereto (the
G-1
"Mortgage Files") and declares that it holds and will hold such Mortgage Files
as agent for the Trustee, in trust, for the use and benefit of all present and
future Certificateholders.
Section 2.2 Recordation of Assignments. If any Mortgage File
includes one or more assignments of Mortgage to the Trustee in a state which is
specifically excluded from the Opinion of Counsel delivered by the Seller to the
Trustee (with a copy to the Custodian) pursuant to the provisions of Section
2.01 of the Pooling and Servicing Agreement, the Custodian shall deliver each
such assignment to the Company for the purpose of recording it in the
appropriate public office for real property records, and the Company, at no
expense to the Custodian, shall promptly cause to be recorded in the appropriate
public office for real property records each such assignment of Mortgage and,
upon receipt thereof from such public office, shall return each such assignment
of Mortgage to the Custodian.
Section 2.3 Review of Mortgage Files.
(a) On or prior to the Closing Date, the Custodian agrees, for
the benefit of Certificateholders, to review, in accordance with the provisions
of Section 2.02 of the Pooling and Servicing Agreement, each such document, and
shall deliver to the Trustee an Initial Certification in the form annexed hereto
as Exhibit One evidencing receipt (subject to any exceptions noted therein) of a
Mortgage File for each of the Mortgage Loans listed on the Schedule attached
hereto (the "Mortgage Loan Schedule") and certifying that all such documents
have been executed and received and that such documents relate to the Mortgage
Loans identified on the Mortgage Loan Schedule, except for any exceptions listed
on Schedule A attached to such Initial Certification. The Custodian shall be
under no duty or obligation to inspect, review or examine said documents,
instruments, certificates or other papers to determine that the same are
genuine, enforceable, or appropriate for the represented purpose or that they
have actually been recorded or that they are other than what they purport to be
on their face.
(b) Not later than 180 days after the Closing Date, the
Custodian shall review the Mortgage Files as provided in Section 2.02 of the
Pooling and Servicing Agreement and deliver to the Trustee a Final Certification
in the form annexed hereto as Exhibit Two evidencing the completeness of the
Mortgage Files (subject to any exceptions noted therein).
(c) In reviewing the Mortgage Files as provided herein and in
the Pooling and Servicing Agreement, the Custodian shall make no representation
as to and shall not be responsible to verify (i) the validity, legality,
enforceability, due authorization, recordability, sufficiency or genuineness of
any of the documents included in any Mortgage File or (ii) the collectibility,
insurability, effectiveness or suitability of any of the documents in any
Mortgage File.
Upon receipt of written request from the Trustee, the
Custodian shall as soon as practicable supply the Trustee with a list of all of
the documents relating to the Mortgage Loans then contained in the Mortgage
Files.
Section 2.4 Notification of Breaches of Representations and
Warranties. Upon discovery by the Custodian of a breach of any representation or
warranty made by the Company as set forth in the Pooling and Servicing Agreement
with respect to a Mortgage Loan relating to
G-2
a Mortgage File, the Custodian shall give prompt written notice to the Company,
the related Servicer and the Trustee.
Section 2.5 Custodian to Cooperate: Release of Mortgage Files.
Upon receipt of written notice from the Master Servicer that the Mortgage Loan
Seller has repurchased a Mortgage Loan pursuant to Article II of the Pooling and
Servicing Agreement, and that the purchase price therefore has been deposited in
the Master Servicer Collection Account or the Distribution Account, then the
Custodian agrees to promptly release to the Mortgage Loan Seller the related
Mortgage File.
Upon the Custodian's receipt of a request for release (a
"Request for Release") substantially in the form of Exhibit D to the Pooling and
Servicing Agreement signed by a Servicing Officer of the related Servicer
stating that it has received payment in full of a Mortgage Loan or that payment
in full will be escrowed in a manner customary for such purposes, the Custodian
agrees promptly to release to the related Servicer the related Mortgage File.
The Company shall deliver to the Custodian and the Custodian agrees to accept
the Mortgage Note and other documents constituting the Mortgage File with
respect to any Substitute Mortgage Loan.
From time to time as is appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any Primary Insurance Policy, the related Servicer shall deliver to the
Custodian a Request for Release signed by a Servicing Officer requesting that
possession of all of the Mortgage File be released to the related Servicer and
certifying as to the reason for such release and that such release will not
invalidate any insurance coverage provided in respect of the Mortgage Loan under
any of the Insurance Policies. Upon receipt of the foregoing, the Custodian
shall deliver the Mortgage File to the related Servicer. The related Servicer
shall cause each Mortgage File or any document therein so released to be
returned to the Custodian when the need therefore by the related Servicer no
longer exists, unless (i) the Mortgage Loan has been liquidated and the
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Master Servicer Collection Account or the Distribution Account or (ii) the
Mortgage File or such document has been delivered to an attorney, or to a public
trustee or other public official as required by law, for purposes of initiating
or pursuing legal action or other proceedings for the foreclosure of the
Mortgaged Property either judicially or non-judicially, and the related Servicer
has delivered to the Custodian a certificate of a Servicing Officer certifying
as to the name and address of the Person to which such Mortgage File or such
document was delivered and the purpose or purposes of such delivery.
At any time that a Servicer is required to deliver to the
Custodian a Request for Release, the Servicer shall deliver two copies of the
Request for Release if delivered in hard copy or the Servicer may furnish such
Request for Release electronically to the Custodian, in which event the
Servicing Officer transmitting the same shall be deemed to have signed the
Request for Release. In connection with any Request for Release of a Mortgage
File because of a repurchase of a Mortgage Loan, the Serviced shall send to the
Trustee an assignment of mortgage, without recourse, representation or warranty
from the Trustee to the Mortgage Loan Seller and the related Mortgage Note which
shall be endorsed without recourse, representation or
G-3
warranty by the Trustee and the Trustee shall forward such documents to the
Mortgage Loan Seller. In connection with any Request for Release of a Mortgage
File because of the payment in full of a Mortgage Loan, the Serviced shall send
to the Trustee a certificate of satisfaction or other similar instrument to be
executed by or on behalf of the Trustee and returned to the related Servicer.
Section 2.6 Assumption Agreements. In the event that any
assumption agreement or substitution of liability agreement is entered into with
respect to any Mortgage Loan subject to this Agreement in accordance with the
terms and provisions of the Pooling and Servicing Agreement, the Master
Servicer, to the extent provided in the related Servicing Agreement, shall cause
the related Servicer to notify the Custodian that such assumption or
substitution agreement has been completed by forwarding to the Custodian the
original of such assumption or substitution agreement, which shall be added to
the related Mortgage File and, for all purposes, shall be considered a part of
such Mortgage File to the same extent as all other documents and instruments
constituting parts thereof.
ARTICLE III
CONCERNING THE CUSTODIAN
Section 3.1 Custodian a Bailee and Agent of the Trustee. With
respect to each Mortgage Note, Mortgage and other documents constituting each
Mortgage File which are delivered to the Custodian, the Custodian is exclusively
the bailee and agent of the Trustee and has no instructions to hold any Mortgage
Note or Mortgage for the benefit of any person other than the Trustee and the
Certificateholders and undertakes to perform such duties and only such duties as
are specifically set forth in this Agreement. Except upon compliance with the
provisions of Section 2.5 of this Agreement, no Mortgage Note, Mortgage or
Mortgage File shall be delivered by the Custodian to the Company, the Servicers
or the Master Servicer or otherwise released from the possession of the
Custodian.
Section 3.2 Reserved.
Section 3.3 Custodian May Own Certificates. The Custodian in
its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not Custodian.
Section 3.4 Master Servicer to Pay Custodian's Fees and
Expenses. The Master Servicer covenants and agrees to pay to the Custodian from
time to time, and the Custodian shall be entitled to, reasonable compensation
for all services rendered by it in the exercise and performance of any of the
powers and duties hereunder of the Custodian, and the Master Servicer will pay
or reimburse the Custodian upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Custodian in accordance with
any of the provisions of this Agreement (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ), except any such expense, disbursement or advance as
may arise from its negligence or bad faith or to the extent that such cost or
expense is indemnified by the Company pursuant to the Pooling and Servicing
Agreement.
G-4
Section 3.5 Custodian May Resign; Trustee May Remove
Custodian. The Custodian may resign from the obligations and duties hereby
imposed upon it as such obligations and duties relate to its acting as Custodian
of the Mortgage Loans. Upon receiving such notice of resignation, the Trustee
shall either take custody of the Mortgage Files itself and give prompt notice
thereof to the Company, the Master Servicer and the Custodian, or promptly
appoint a successor Custodian by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Custodian and one copy to
the successor Custodian. If the Trustee shall not have taken custody of the
Mortgage Files and no successor Custodian shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Custodian may petition any court of competent
jurisdiction for the appointment of a successor Custodian.
The Trustee may remove the Custodian at any time with the
consent of the Master Servicer. In such event, the Trustee shall appoint, or
petition a court of competent jurisdiction to appoint, a successor Custodian
hereunder. Any successor Custodian shall be a depository institution subject to
supervision or examination by federal or state authority, shall be able to
satisfy the other requirements contained in Section 3.7 and shall be
unaffiliated with the Servicer or the Company.
Any resignation or removal of the Custodian and appointment of
a successor Custodian pursuant to any of the provisions of this Section 3.5
shall become effective upon acceptance of appointment by the successor
Custodian. The Trustee shall give prompt notice to the Company and the Master
Servicer of the appointment of any successor Custodian. No successor Custodian
shall be appointed by the Trustee without the prior approval of the Company and
the Master Servicer.
Section 3.6 Merger or Consolidation of Custodian. Any Person
into which the Custodian may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any Person succeeding
to the business of the Custodian, shall be the successor of the Custodian
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.
Section 3.7 Representations of the Custodian. The Custodian
hereby represents that it is a depository institution subject to supervision or
examination by a federal or state authority, has a combined capital and surplus
of at least $15,000,000 and is qualified to do business in the jurisdictions in
which it will hold any Mortgage File.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.1 Notices. All notices, requests, consents and
demands and other communications required under this Agreement or pursuant to
any other instrument or document delivered hereunder shall be in writing and,
unless otherwise specifically provided, may be delivered personally, by telegram
or telex, or by registered or certified mail, postage prepaid, return receipt
requested, at the addresses specified on the signature page hereof (unless
changed
G-5
by the particular party whose address is stated herein by similar notice in
writing), in which case the notice will be deemed delivered when received.
Section 4.2 Amendments. No modification or amendment of or
supplement to this Agreement shall be valid or effective unless the same is in
writing and signed by all parties hereto, and neither the Company, the Master
Servicer nor the Trustee shall enter into any amendment hereof except as
permitted by the Pooling and Servicing Agreement. The Trustee shall give prompt
notice to the Custodian of any amendment or supplement to the Pooling and
Servicing Agreement and furnish the Custodian with written copies thereof.
Section 4.3 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 4.4 Recordation of Agreement. To the extent permitted
by applicable law, 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 Company and at the Trust's expense on
direction by the Trustee, but only upon direction accompanied by an Opinion of
Counsel reasonably satisfactory to the Company to the effect that the failure to
effect such recordation is likely to materially and adversely affect 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 shall
constitute but one and the same instrument.
Section 4.5 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.
G-6
IN WITNESS WHEREOF, this Agreement is executed as of the date
first above written.
Address: WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000 By:
Name:
Attention: Title:
Telecopy:
Confirmation:
Address: XXXXXXX XXXXX MORTGAGE
INVESTORS, INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 By:
Name: Xxxxxx Xxxx
Title: Managing Director
Address: XXXXX FARGO BANK, N.A.,
as Master Servicer
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
By:
Name:
Title:
Address: XXXXX FARGO BANK,N.A.,
as Custodian
0000 00xx Xxxxxx Xxxxxxxxx, XX 0031
Xxxxxxxxxxx, XX 00000
By:
Name:
Title:
X-0
XXXXX XX XXXXX XXXXXXXX )
) ss:
COUNTY OF MECKLENBURG )
On the 31st day of January 2005 before me, a notary public in
and for said State, personally appeared ___________________________, known to me
to be an _____________________ of Wachovia Bank, National Association, a
national banking association that executed the within instrument, and also known
to me to be the person who executed it on behalf of said national banking
association, and acknowledged to me that such national banking association
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-------------------------------
Notary Public
[SEAL]
X-0
XXXXX XX XXX XXXX )
)ss:
COUNTY OF NEW YORK )
On the 31st day of January 2005 before me, a notary public in
and for said State, personally appeared Xxxxxx Xxxx, known to me to be a
Managing Director of Xxxxxxx Xxxxx Mortgage Investors, Inc., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-------------------------------
Notary Public
[Notarial Seal]
X-0
XXXXX XX XXXXXXXX )
) ss:
COUNTY OF XXXXXX )
On the 31st day of January 2005 before me, a notary public in
and for said State, personally appeared ________________, known to me to be an
_________________________ of Xxxxx Fargo Bank, N.A., a national banking
association that executed the within instrument, and also known to me to be the
person who executed it on behalf of said national banking association, and
acknowledged to me that such national banking association executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-------------------------------
Notary Public
[SEAL]
X-00
XXXXX XX XXXXXXXXX )
)ss:
COUNTY OF HENNEPIN )
On the 31st day of January 2005 before me, a notary public in
and for said State, personally appeared ___________________, known to me to be
an ____________________ of Xxxxx Fargo Bank, N.A., a national banking
association that executed the within instrument, and also known to me to be the
person who executed it on behalf of said national banking association, and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-------------------------------
Notary Public
[Notarial Seal]
G-11
EXHIBIT ONE
FORM OF CUSTODIAN INITIAL CERTIFICATION
January 31, 2005
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Re: Pooling and Servicing Agreement, dated as of January 1, 2005,
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Xxxxx
Fargo Bank, N.A., as master servicer and securities
administrator, and Wachovia Bank, National Association, as
trustee, Mortgage Pass-Through Certificates, Series 2005-A1
----------------------------------------------------------------
Ladies and Gentlemen:
Attached is the Custodian's preliminary exception report delivered in
accordance with Section 2.02 of the referenced Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"). Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement.
The Custodian 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 Custodian makes no representations as to
(i) the validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) the existence of
any assumption, modification, written assurance, or substitution agreement, with
respect to any Mortgage File if no such documents appear in the Mortgage File
delivered to the Custodian.
XXXXX FARGO BANK, N.A.,
as Custodian
By: ___________________________________
Name:
Title:
G-12
EXHIBIT TWO
FORM OF CUSTODIAN FINAL CERTIFICATION
____________, 2005
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Re: Pooling and Servicing Agreement, dated as of January 1, 2005,
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Xxxxx
Fargo Bank, N.A., as master servicer and securities administrator
and Wachovia Bank, National Association, as trustee,Mortgage
Pass-Through Certificates, Series 2005-A1
-----------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, hereby certifies that, except as noted on
the Schedule of Exceptions attached hereto, for each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attachment hereto), it has received a complete Mortgage File which includes
the documents required to be included in the Mortgage File as set forth in the
Pooling and Servicing Agreement.
The undersigned has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The undersigned makes no
representation as to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any documents contained in any Mortgage File for any of the
Mortgage Loans listed on the Mortgage Loan Schedule to the Pooling and Servicing
Agreement, (ii) the collectability, insurability, effectiveness or suitability
of any such Mortgage Loan or (iii) whether any Mortgage File should include any
flood insurance policy, any rider, addends, surety or guaranty agreement, power
of attorney, buy down agreement, assumption agreement, modification agreement,
written assurance or substitution agreement.
G-13
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
XXXXX FARGO BANK, N.A.,
as Custodian
By: _______________________________
Name:
G-14
REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx Fargo Bank, N.A.
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: MLMI 2005-A1
Re: Custodial Agreement dated as of January 31, 2005, among Wachovia
Bank, National Association, as Trustee, Xxxxxxx Xxxxx Mortgage
Investors, Inc., as Company, Xxxxx Fargo Bank, N.A., as Master
Servicer and Securities Administrator, and Xxxxx Fargo Bank,
N.A., as Custodian
------------------------------------------------------
In connection with the administration of the Mortgage Loans held by you
as Custodian for the Owner pursuant to the above-captioned Custody Agreement, we
request the release, and hereby acknowledge receipt, of the Custodian's Mortgage
File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
1. Mortgage Paid in full
-----------------
2. Foreclosure
-----------------
3. Substitution
-----------------
4. Other Liquidation (Repurchases, etc.)
-----------------
5. Nonliquidation Reason:_____________________
-----------------
By:_________________________
(authorized singer)
Issuer:____________________
Address:___________________
Date: __________________
Custodian
---------
G-15
Xxxxx Fargo Bank, N.A.
Please acknowledge the execution of the above request by your signature and date
below:
__________________________________ __________________________________
Signature Date
Documents returned to Custodian:
__________________________________ __________________________________
Custodian Date
G-16
EXHIBIT H-1
SERVICING AGREEMENT
ABN AMRO Mortgage group, inc.
X-0-0
XXXXXXX X-0
SERVICING AGREEMENT
countrywide home loans servicing lp
X-0-0
XXXXXXX X-0
SERVICING AGREEMENT
FIRST REPUBLIC BANK
H-3-1
EXHIBIT H-4
SERVICING AGREEMENT
National city mortgage co.
X-0-0
XXXXXXX X-0
SERVICING AGREEMENT
WASHINGTON MUTUAL BANK, FA
H-5-1
EXHIBIT I-1
ASSIGNMENT AGREEMENT
ABN AMRO Mortgage group, inc.
(See Tab [_____])
I-1
EXHIBIT I-2
ASSIGNMENT AGREEMENT
countrywide home loans servicing lp
(See Tab [_____])
I-2
EXHIBIT I-3
ASSIGNMENT AGREEMENT
FIRST REPUBLIC BANK
(See Tab [_____])
I-3
EXHIBIT I-4
ASSIGNMENT AGREEMENT
National city mortgage co.
(See Tab [_____])
I-4
EXHIBIT I-5
ASSIGNMENT AGREEMENT
WASHINGTON MUTUAL BANK, FA
(See Tab [_____])
I-5
EXHIBIT J
Mortgage loan purchase AGREEMENT
(See Tab [___])
J-1
EXHIBIT K
FORM CERTIFICATION TO BE PROVIDED BY THE MASTER SERVICER
WITH FORM 10-K
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc.
Mortgage Pass-Through Certificates, Series 2005-A1
I, [identify the certifying individual], certify that:
l. I have reviewed this annual report on Form 10-K, and all
reports on Form 8-K containing distribution or servicing reports filed in
respect of periods included in the year covered by this annual report, of
Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Registrant");
2. Based on my knowledge, the information in these reports,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required
to be provided to the Trustee by the Master Servicer under the Pooling and
Servicing Agreement for inclusion in these reports is included in these reports;
4. I am responsible for reviewing the activities performed by
the Servicer under the Servicing Agreement and based upon my knowledge and the
annual compliance review required under the Servicing Agreement, and except as
disclosed in the reports, the Servicer has fulfilled its obligations under the
Servicing Agreement; and
5. The reports disclose all significant deficiencies relating
to the Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
or similar standard as set forth in the Servicing Agreement that is included in
these reports.
In giving the certifications above, I have reasonably relied
on information provided to me by the following unaffiliated parties:
----------------------------
----------------------------
----------------------------
K-1
Capitalized terms used but not defined herein have the
meanings ascribed to them in Pooling and Servicing Agreement, dated January 1,
2005, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Xxxxx Fargo
Bank, N.A., as master servicer and securities administrator and Wachovia Bank,
National Association, as trustee.
XXXXX FARGO BANK, N.A.
By:____________________________
Name:
Title:
Date:
K-2
