AMERIQUEST MORTGAGE SECURITIES INC.
Depositor
AMERIQUEST MORTGAGE COMPANY
Master Servicer
U.S. BANK NATIONAL ASSOCIATION
Trustee
and
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trust Administrator
___________________________________________
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2002
_________________________________________
Asset-Backed Pass-Through Certificates
Series 2002-3
TABLE OF CONTENTS
SECTION PAGE
------- ----
ARTICLE I
DEFINITIONS
1.01. Defined Terms...................................................................................6
1.02. Allocation of Certain Interest Shortfalls......................................................62
1.03 Rights of the NIMS Insurer.....................................................................63
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
2.01. Conveyance of Mortgage Loans...................................................................64
2.02. Acceptance of REMIC I by the Trustee...........................................................66
2.03. Repurchase or Substitution of Mortgage Loans by the Originator or the
Depositor; Payment of Prepayment Charge Payment Amounts........................................67
2.04. [Reserved].....................................................................................71
2.05. Representations, Warranties and Covenants of the Master Servicer...............................71
2.06. Issuance of the REMIC I Regular Interests and the Class R-I Interest...........................74
2.07. Conveyance of the REMIC I Regular Interests; Acceptance of REMIC II by
the Trustee....................................................................................74
2.08. Conveyance of the REMIC II Regular Interests; Acceptance of REMIC III by
the Trustee....................................................................................75
2.09. Issuance of Class R Certificates...............................................................75
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
3.01. Master Servicer to Act as Master Servicer......................................................76
3.02. Collection of Certain Mortgage Loan Payments...................................................78
3.03. [Reserved].....................................................................................79
3.04. Collection Account, Escrow Account and Distribution Account....................................79
3.05. Permitted Withdrawals From the Collection Account, Escrow Account
and Distribution Account.......................................................................83
3.06. Investment of Funds in the Collection Account, the Escrow Account, the
REO Account and the Distribution Account.......................................................86
3.07. Payment of Taxes, Insurance and Other Charges..................................................87
3.08. Maintenance of Hazard Insurance................................................................88
3.09. Maintenance of Mortgage Blanket Insurance......................................................88
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SECTION PAGE
3.10. Fidelity Bond; Errors and Omissions Insurance..................................................89
3.11. Enforcement of Due-On-Sale Clauses; Assumption Agreements......................................89
3.12. Realization Upon Defaulted Mortgage Loans......................................................90
3.13. Title, Management and Disposition of REO Property..............................................92
3.14. [Reserved].....................................................................................95
3.15. Reports of Foreclosure and Abandonment of Mortgaged Properties.................................95
3.16. Optional Purchase of Defaulted Mortgage Loans..................................................95
3.17. Trust Administrator to Cooperate; Release of Mortgage Files....................................96
3.18. Servicing Compensation.........................................................................97
3.19. Statement as to Compliance.....................................................................98
3.20. Independent Public Accountants' Servicing Report...............................................98
3.21. Access to Certain Documentation................................................................99
3.22. [Reserved].....................................................................................99
3.23. Advance Facility...............................................................................99
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
4.01. Distributions.................................................................................101
4.02. Statements to Certificateholders..............................................................111
4.03. Remittance Reports and Other Reports to the Trust Administrator and the
Trustee; Advances.............................................................................115
4.04. Allocation of Realized Losses.................................................................117
4.05. Compliance with Withholding Requirements......................................................118
4.06. Commission Reporting..........................................................................119
4.07. Net WAC Rate Carryover Reserve Account........................................................119
4.08. Initial Deposit Account.......................................................................120
4.09. Excess Net WAC Rate Reserve Fund..............................................................121
ARTICLE V
THE CERTIFICATES
5.01. The Certificates..............................................................................123
5.02. Registration of Transfer and Exchange of Certificates.........................................125
5.03. Mutilated, Destroyed, Lost or Stolen Certificates.............................................130
5.04. Persons Deemed Owners.........................................................................130
5.05. Certain Available Information.................................................................130
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
6.01. Liability of the Depositor and the Master Servicer............................................132
6.02. Merger or Consolidation of the Depositor or the Master Servicer...............................132
6.03. Limitation on Liability of the Depositor, the Master Servicer and Others......................132
6.04. Limitation on Resignation of the Master Servicer..............................................133
6.05. Rights of the Depositor in Respect of the Master Servicer.....................................134
6.06. Sub-Servicing Agreements Between the Master Servicer and Sub-Servicers........................134
6.07. Successor Sub-Servicers.......................................................................136
6.08. Liability of the Master Servicer..............................................................136
6.09. No Contractual Relationship Between Sub-Servicers and the NIMS Insurer, the
Trust Administrator, the Trustee or Certificateholders........................................136
6.10. Assumption or Termination of Sub-Servicing Agreements by Trust
Administrator.................................................................................137
6.11. Sub-Servicing Accounts........................................................................137
ARTICLE VII
DEFAULT
7.01. Master Servicer Events of Default.............................................................138
7.02. Trust Administrator or Trustee to Act; Appointment of Successor...............................140
7.03. Notification to Certificateholders............................................................142
7.04. Waiver of Master Servicer Events of Default...................................................143
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE TRUST ADMINISTRATOR
8.01. Duties of Trustee.............................................................................144
8.02. Certain Matters Affecting the Trustee and the Trust Administrator.............................145
8.03. Neither the Trustee nor Trust Administrator Liable for Certificates or
Mortgage Loans................................................................................146
8.04. Trustee and Trust Administrator May Own Certificates..........................................147
8.05. Trustee's and Trust Administrator's Fees and Expenses.........................................147
8.06. Eligibility Requirements for Trustee and the Trust Administrator..............................148
8.07. Resignation and Removal of the Trustee and the Trust Administrator............................148
8.08. Successor Trustee.............................................................................149
8.09. Merger or Consolidation of Trustee............................................................150
8.10. Appointment of Co-Trustee or Separate Trustee.................................................150
8.11. Appointment of Custodians.....................................................................151
8.12. Appointment of Office or Agency...............................................................152
8.13. Representations and Warranties of the Trustee and the Trust Administrator.....................152
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SECTION PAGE
ARTICLE IX
TERMINATION
9.01 Termination Upon Repurchase or Liquidation of All Mortgage Loans..............................154
9.02 Additional Termination Requirements...........................................................156
ARTICLE X
REMIC PROVISIONS
10.01. REMIC Administration..........................................................................157
10.02. Prohibited Transactions and Activities........................................................160
10.03. Master Servicer and Trustee and Trust Administrator Indemnification...........................160
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01. Amendment.....................................................................................161
11.02. Recordation of Agreement; Counterparts........................................................162
11.03. Limitation on Rights of Certificateholders....................................................162
11.04. Governing Law.................................................................................163
11.05. Notices.......................................................................................163
11.06. Severability of Provisions....................................................................164
11.07. Notice to Rating Agencies and the NIMS Insurer................................................164
11.08. Article and Section References................................................................165
11.09. Grant of Security Interest....................................................................165
11.10 Third Party Rights............................................................................166
11.11 NIMS Insurer's Rights.........................................................................166
iv
Exhibits
Exhibit A-1 Form of Class AF-1 Certificate
Exhibit A-2 Form of Class AF-2 Certificate
Exhibit A-3 Form of Class AF-3 Certificate
Exhibit A-4 Form of Class AF-4 Certificate
Exhibit A-5 Form of Class AF-5 Certificate
Exhibit A-6 Form of Class AF-6 Certificate
Exhibit A-7 Form of Class AV-1 Certificate
Exhibit A-8 Form of Class AV-2 Certificate
Exhibit A-9 Form of Class M-1 Certificate
Exhibit A-10 Form of Class M-2 Certificate
Exhibit A-11 Form of Class M-3 Certificate
Exhibit A-12 Form of Class M-4 Certificate
Exhibit A-13 Form of Class CE Certificate
Exhibit A-14 Form of Class P Certificate
Exhibit A-15 Form of Class S Certificate
Exhibit A-16 Form of Class R Certificate
Exhibit B Form of Lost Note Affidavit
Exhibit C-1 Form of Trust Administrator's Initial Certification
Exhibit C-2 Form of Trust Administrator "s Final Certification
Exhibit C-3 Form of Trust Administrator's Receipt of Mortgage Note
Exhibit D Form of Mortgage Loan Purchase Agreement
Exhibit E-1 Request for Release
Exhibit E-2 Request for Release Mortgage Loans paid in full
Exhibit F-1 Form of Transferor Representation Letter and Form of Transferee Representation
Letter in Connection with Transfer of Class CE and Class P Certificates Pursuant to
Rule 144A Under the 1933 Act
Exhibit F-2 Form of Transfer Affidavit and Agreement and Form of Transferor Affidavit in
Connection with Transfer of Residual Certificates
Exhibit G Form of Certification with respect to ERISA and the Code
Exhibit H Loss Mitigation Action Plan
Schedule 1 Mortgage Loan Schedule
Schedule 2 Prepayment Charge Schedule
v
This Pooling and Servicing Agreement, is dated and effective
as of September 1, 2002, among AMERIQUEST MORTGAGE SECURITIES INC., as
Depositor, AMERIQUEST MORTGAGE COMPANY, as Master Servicer, U.S. Bank National
Association, as Trustee and DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trust
Administrator.
PRELIMINARY STATEMENT:
The Depositor intends to sell 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
each REMIC (as defined herein) created hereunder. The Trust Fund will consist of
a segregated pool of assets consisting of the Mortgage Loans and certain other
related assets subject to this Agreement.
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets (other than any Master Servicer Prepayment Charge Payment
Amounts, the Net WAC Rate Carryover Reserve Account, the Net WAC Rate Reserve
Fund and the Initial Deposit Account) subject to this Agreement as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC I." The Class R-I Interest will be the sole class of
"residual interests" in REMIC I for purposes of the REMIC Provisions (as defined
herein). The following table irrevocably sets forth the designation, the REMIC I
Remittance Rate, the initial Uncertificated Balance and, solely for purposes of
satisfying Treasury regulation section 1.860G-1(a)(4)(iii), the "latest possible
maturity date" for each of the REMIC I Regular Interests (as defined herein).
None of the REMIC I Regular Interests will be certificated.
REMIC I Initial Latest Possible
Designation Remittance Rate Uncertificated Balance Maturity Date(1)
---------------------------- --------------------------- ---------------------------------- -------------------------
I-LT1 Variable(2) $236,383,048.73 September 25, 0000
X-XX0 Variable(2) $329,952,850.81 September 25, 0000
X-XX0 Variable(2) $ 78,646,675.80 September 25, 2032
I-LTS1A Variable(2) $ 7,000,000.00 September 25, 0000
X-XXX0X Variable(2) $ 5,000,000.00 September 25, 2032
I-LTS1C Variable(2) $ 20,000,000.00 September 25, 2032
I-LTS2A Variable(2) $ 26,000,000.00 September 25, 0000
X-XXX0X Variable(2) $ 18,000,000.00 September 25, 2032
I-LTS2C Variable(2) $ 19,000,000.00 September 25, 2032
I-LTS2D Variable(2) $ 54,000,000.00 September 25, 2032
I-LTS3A Variable(2) $ 2,000,000.00 September 25, 0000
X-XXX0X Variable(2) $ 2,000,000.00 September 25, 2032
I-LTS3C Variable(2) $ 1,000,000.00 September 25, 2032
I-LTS3D Variable(2) $ 6,000,000.00 September 25, 0000
X-XXX Variable(2) $ 100.00 September 25, 2032
_______________
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date 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 Remittance Rate"
herein.
2
REMIC II
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II". The Class R-II Interest will be the sole class of
"residual interests" in REMIC II for purposes of the REMIC Provisions (as
defined herein). The following table irrevocably sets forth the designation, the
REMIC II Remittance Rate, the initial Uncertificated Balance and, solely for
purposes of satisfying Treasury regulation Section 1.860G- 1(a)(4)(iii), the
"latest possible maturity date" for each of the REMIC II Regular Interests (as
defined herein). None of the REMIC II Regular Interests will be certificated.
REMIC II Initial Latest Possible
Designation Remittance Rate Uncertificated Balance Maturity Date(1)
-------------------------- ------------------------- --------------------------------------- ---------------------------
II-LTAA Variable(2) $ 788,882,923.83 September 25, 2032
II-LTAF1 Variable(2) $ 808,640.00 September 25, 2032
II-LTAF2 Variable(2) $ 228,280.00 September 25, 2032
II-LTAF3 Variable(2) $ 509,160.00 September 25, 2032
II-LTAF4 Variable(2) $ 173,690.00 September 25, 2032
II-LTAF5 Variable(2) $ 244,530.00 September 25, 2032
II-LTAF6 Variable(2) $ 270,000.00 September 25, 2032
II-LTAV1 Variable(2) $ 3,720,890.00 September 25, 2032
II-LTAV2 Variable(2) $ 746,510.00 September 25, 2032
II-LTM1 Variable(2) $ 462,870.00 September 25, 2032
II-LTM2 Variable(2) $ 382,370.00 September 25, 2032
II-LTM3 Variable(2) $ 322,000.00 September 25, 2032
II-LTM4 Variable(2) $ 120,750.00 September 25, 2032
II-LTZZ Variable(2) $ 8,109,961.51 September 25, 2032
II-LTS1 Variable(2) N/A(3) September 25, 2032
II-LTS2 Variable(2) N/A(4) September 25, 2032
II-LTS3 Variable(2) N/A(5) September 25, 2032
II-LTP Variable(2) $ 100.00 September 25, 2032
________________
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for each REMIC II Regular Interest.
(2) Calculated in accordance with the definition of "REMIC II Remittance Rate"
herein.
(3) REMIC II Regular Interest II-LTS1 will not have an Initial Uncertificated
Balance, but will accrue interest on its Uncertificated Notional Amount
outstanding from time to time which shall equal the aggregate Initial
Uncertificated Balances of REMIC I Interests X-XXX0X, X-XXX0X and I-LTS1C.
(4) REMIC II Regular Interest II-LTS2 will not have an Initial Uncertificated
Balance, but will accrue interest on its Uncertificated Notional Amount
outstanding from time to time which shall equal the aggregate Initial
Uncertificated Balances of REMIC I Interests I-LTS2A, X-XXX0X, X-XXX0X and
I-LTS2D.
(5) REMIC II Regular Interest II-LTS3 will not have an Initial Uncertificated
Balance, but will accrue interest on its Uncertificated Notional Amount
outstanding from time to time which shall equal the aggregate Initial
Uncertificated Balances of REMIC I Interests I-LTS3A, X-XXX0X, X-XXX0X and
I-LTS3D.
3
REMIC III
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC III." The Class R-III Interest will evidence the sole class
of "residual interests" in REMIC III for purposes of the REMIC Provisions under
federal income tax law. The following table irrevocably sets forth the
designation, the Pass-Through Rate, the initial aggregate Certificate Principal
Balance and, solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for the indicated
Classes of Certificates.
Initial Aggregate Latest Possible
Designation Pass-Through Rate Certificate Principal Balance Maturity Date(1)
---------------------------------- ----------------------- --------------------------------- ----------------------------
Class AF-1 Variable(2) $ 80,864,000.00 September 25, 2032
Class AF-2 Variable(2) $ 22,828,000.00 September 25, 2032
Class AF-3 Variable(2) $ 50,916,000.00 September 25, 2032
Class AF-4 Variable(2) $ 17,369,000.00 September 25, 2032
Class AF-5 Variable(2) $ 24,453,000.00 September 25, 2032
Class AF-6 Variable(2) $ 27,000,000.00 September 25, 2032
Class AV1 Variable(2) $372,089,000.00 September 25, 2032
Class AV2 Variable(2) $ 74,651,000.00 September 25, 2032
Class M-1 Variable(2) $ 46,287,000.00 September 25, 2032
Class M-2 Variable(2) $ 38,237,000.00 September 25, 2032
Class M-3 Variable(2) $ 32,200,000.00 September 25, 2032
Class M-4 Variable(2) $ 12,075,000.00 September 25, 2032
Class S Variable(2) N/A(3) September 25, 2032
Class CE Variable(3) $ 6,013,575.34 September 25, 2032
Class P N/A(4) $ 100.00 September 25, 2032
________________
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loans with the latest maturity date has been designated as
the "latest possible maturity date" for each Class of Certificates.
(2) Calculated in accordance with the definition of "Pass-Through Rate" herein.
(3) The Class S Certificates will not have a Certificate Principal Balance, but
will receive all amounts distributed to REMIC II Regular Interest II-LTS1,
REMIC II Regular Interest II-LTS2 and REMIC II Regular Interest II- LTS3.
(4) The Class CE Certificates will accrue interest at their variable
Pass-Through Rate on the Notional Amount of the Class CE Certificates
outstanding from time to time which shall equal the Uncertificated Balance
of the REMIC II Regular Interests. The Class CE Certificates will not
accrue interest on their Certificate Principal Balance. (5) The Class P
Certificates will not accrue interest.
4
As of the Cut-off Date, the Group I Mortgage Loans had an
aggregate Scheduled Principal Balance equal to $268,383,148.73, the Group II
Mortgage Loans had an aggregate Scheduled Principal Balance equal to
$446,952,850.81 and the Group III Mortgage Loans had an aggregate Scheduled
Principal Balance equal to $89,646,675.80.
In consideration of the mutual agreements herein contained,
the Depositor, the Master Servicer, the Trustee and the Trust Administrator
agree as follows:
5
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including, without
limitation, in the Preliminary Statement hereto, the following words and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. Unless otherwise specified, all calculations
described herein shall be made on the basis of a 360-day year consisting of
twelve 30-day months and all calculations on each Regular Interest shall be made
on the basis of a 360-day year and the actual number of days in the month.
"Accrued Certificate Interest": With respect to any Class of
Certificates (other than the Class P Certificates and the Residual Certificates)
and each Distribution Date, interest accrued during the related Interest Accrual
Period at the Pass-Through Rate for such Certificate for such Distribution Date
on the Certificate Principal Balance, in the case of the Class A Certificates
and the Mezzanine Certificates, or on the Notional Amount, in the case of the
Class S Certificates and the Class CE Certificates, of such Certificate
immediately prior to such Distribution Date. The Class P Certificates are not
entitled to distributions in respect of interest and, accordingly, will not
accrue interest. All distributions of interest on the Class AV Certificates and
the Mezzanine Certificates will be calculated on the basis of a 360-day year and
the actual number of days in the applicable Interest Accrual Period. All
distributions of interest on the Class AF Certificates, the Class S Certificates
and the Class CE Certificates will be based on a 360-day year consisting of
twelve 30- day months. Accrued Certificate Interest with respect to each
Distribution Date, as to any Class A Certificate, Mezzanine Certificate, Class S
Certificate or Class CE Certificate, shall be reduced by an amount equal to the
portion allocable to such Certificate pursuant to Section 1.02 hereof of the sum
of (a) the aggregate Prepayment Interest Shortfall, if any, for such
Distribution Date to the extent not covered by payments pursuant to Section
4.03(e) or allocated to the Class CE Certificates and (b) the aggregate amount
of any Relief Act Interest Shortfall, if any, for such Distribution Date. In
addition, Accrued Certificate Interest with respect to each Distribution Date,
as to any Class CE Certificate, shall be reduced by an amount equal to the
portion allocable to such Class CE Certificate of Realized Losses, if any,
pursuant to Section 4.04 hereof. Notwithstanding the foregoing, for federal
income tax purposes and under the REMIC Provisions, the Accrued Certificate
Interest for the Class S Certificates and any Distribution Date will be deemed
to be 100% of the Uncertificated Interest for REMIC II Regular Interest II-LTS1,
REMIC II Regular Interest II-LTS2 and REMIC II Regular Interest II-LTS3 for such
Distribution Date.
"Adjustment Date": With respect to each Group II Mortgage Loan
and Group III Mortgage Loan, the first day of the month in which the Mortgage
Rate of such Mortgage Loan changes pursuant to the related Mortgage Note. The
first Adjustment Date following the Cut-off Date as to each Group II Mortgage
Loan and Group III Mortgage Loan is set forth in the Mortgage Loan Schedule.
"Administration Fee": The amount payable to the Trust
Administrator on each Distribution Date pursuant to Section 8.05 as compensation
for all services rendered by it or the
6
Trustee in the execution of the trust hereby created and in the exercise and
performance of any of the powers and duties of the Trust Administrator and the
Trustee hereunder, which amount shall equal the Administration Fee Rate accrued
for one month multiplied by the aggregate Scheduled Principal Balance of the
Mortgage Loans and any REO Properties as of the second preceding Due Date (or,
in the case of the initial Distribution Date, as of the Cut-off Date),
calculated on the basis of a 360-day year consisting of twelve 30-day months.
The fee payable to the Trustee for all services rendered by it in the execution
of the trust hereby created and the exercise and performance of any of the
powers and duties of the Trustee hereunder will be paid by the Trust
Administrator out of the Trust Administrator's own funds or out of the
Administration Fee received by the Trust Administrator.
"Administration Fee Rate": 0.003% per annum.
"Advance": As to any Mortgage Loan or REO Property, any
advance made by the Master Servicer in respect of any Distribution Date
representing the aggregate of all payments of principal and interest, net of the
Servicing Fee, that were due during the related Due Period on the Mortgage Loans
and that were delinquent on the related Determination Date, plus certain amounts
representing assumed payments not covered by any current net income on the
Mortgaged Properties acquired by foreclosure or deed in lieu of foreclosure as
determined pursuant to Section 4.03.
"Affiliate": With respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
"Applicable Regulations": As to any Mortgage Loan, all
federal, state and local laws, statutes, rules and regulations applicable
thereto.
"Assignment": An assignment of Mortgage, notice of transfer or
equivalent instrument, in recordable form (excepting therefrom if applicable,
the mortgage recordation information which has not been returned by the
applicable recorder's office and/or the assignee's name), which is sufficient
under the laws of the jurisdiction wherein the related Mortgaged Property is
located to reflect of record the sale of the Mortgage.
"Available Funds": With respect to any Distribution Date, an
amount equal to (1) the sum of (a) the aggregate of the amounts on deposit in
the Collection Account and Distribution Account as of the close of business on
the related Determination Date, (b) the aggregate of any amounts received in
respect of an REO Property withdrawn from any REO Account and deposited in the
Distribution Account for such Distribution Date pursuant to Section 3.13, (c)
the aggregate of any amounts deposited in the Distribution Account by the Master
Servicer in respect of Prepayment Interest Shortfalls for such Distribution Date
pursuant to Section 4.03(e), (d) the
7
aggregate of any Advances made by the Master Servicer for such Distribution Date
pursuant to Section 4.03, (e) the aggregate of any advances made by the Trust
Administrator or the Trustee, as applicable, for such Distribution Date pursuant
to Section 7.02(b) and (f) with respect to the first Distribution Date, the
Initial Deposit, reduced (to not less than zero) by (2) the sum of (x) the
portion of the amount described in clause (1)(a) above that represents (i)
Monthly Payments on the Mortgage Loans received from a Mortgagor on or prior to
the Determination Date but due during any Due Period subsequent to the related
Due Period, (ii) Principal Prepayments on the Mortgage Loans received after the
related Prepayment Period (together with any interest payments received with
such Principal Prepayments to the extent they represent the payment of interest
accrued on the Mortgage Loans during a period subsequent to the related
Prepayment Period), (iii) Liquidation Proceeds and Insurance Proceeds received
in respect of the Mortgage Loans after the related Prepayment Period, (iv)
amounts reimbursable or payable to the Depositor, the Master Servicer, the
Trustee, the Trust Administrator, the Originator or any Sub-Servicer pursuant to
Section 3.05 or Section 3.06 or otherwise payable in respect of Extraordinary
Trust Fund Expenses, (v) Stayed Funds, (vi) the Administration Fee payable from
the Distribution Account pursuant to Section 8.05, (vii) amounts deposited in
the Collection Account or the Distribution Account in error and (viii) the
amount of any Prepayment Charges collected by the Master Servicer and the amount
of any Master Servicer Prepayment Charge Payment Amounts and (y) amounts
reimbursable to the Trustee or the Trust Administrator, as applicable, for an
advance made pursuant to Section 7.02(b) which advance the Trustee or Trust
Administrator, as applicable, has determined to be nonrecoverable from the
Stayed Funds in respect of which it was made.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978 (Title 11
of the United States Code), as amended.
"Bankruptcy Loss": With respect to any Mortgage Loan, a
Realized Loss resulting from a Deficient Valuation or Debt Service Reduction.
"Book-Entry Certificate": Any Certificate registered in the
name of the Depository or its nominee. Initially, the Book-Entry Certificates
will be the Class A Certificates and the Mezzanine Certificates.
"Book-Entry Custodian": The custodian appointed pursuant to
Section 5.01.
"Business Day": Any day other than a Saturday, a Sunday or a
day on which banking or savings and loan institutions in the State of
California, the State of New York, or in the city in which the Corporate Trust
Office of the Trust Administrator or the Corporate Trust Office of the Trustee
is located, are authorized or obligated by law or executive order to be closed.
"Certificate": Any one of the Depositor's Asset-Backed
Pass-Through Certificates, Series 2002-3, Class AF-1, Class AF-2, Class AF-3,
Class AF-4, Class AF-5, Class AF-6, Class AV- 1, Class AV-2, Class M-1, Class
M-2, Class M-3, Class M-4, Class S, Class CE, Class P and Class R, issued under
this Agreement.
"Certificate Factor": With respect to any Class of Regular
Certificates as of any Distribution Date, a fraction, expressed as a decimal
carried to six places, the numerator of which
8
is the aggregate Certificate Principal Balance (or the Notional Amount, in the
case of the Class S Certificates and the Class CE Certificates) of such Class of
Certificates on such Distribution Date (after giving effect to any distributions
of principal and allocations of Realized Losses in reduction of the Certificate
Principal Balance (or the Notional Amount, in the case of the Class S
Certificates and the Class CE Certificates) of such Class of Certificates to be
made on such Distribution Date, and the denominator of which is the initial
aggregate Certificate Principal Balance (or the Notional Amount, in the case of
the Class S Certificates and the Class CE Certificates) of such Class of
Certificates as of the Closing Date.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register, except that a
Disqualified Organization or a Non-United States Person shall not be a Holder of
a Residual Certificate for any purposes hereof and, solely for the purposes of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor or the Master Servicer or any Affiliate thereof shall be
deemed not to be outstanding and the Voting Rights to which it is entitled shall
not be taken into account in determining whether the requisite percentage of
Voting Rights necessary to effect any such consent has been obtained, except as
otherwise provided in Section 11.01. The Trustee, the Trust Administrator and
the NIMS Insurer may conclusively rely upon a certificate of the Depositor or
the Master Servicer in determining whether a Certificate is held by an Affiliate
thereof. All references herein to "Holders" or "Certificateholders" shall
reflect the rights of Certificate Owners as they may indirectly exercise such
rights through the Depository and participating members thereof, except as
otherwise specified herein; provided, however, that the Trustee, the Trust
Administrator and the NIMS Insurer shall be required to recognize as a "Holder"
or "Certificateholder" only the Person in whose name a Certificate is registered
in the Certificate Register.
"Certificate Margin": With respect to the Class AV-1
Certificates and, for purposes of the Marker Rate, REMIC II Regular Interest
II-LTAV1, 0.29% in the case of each Distribution Date through and including the
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans (and properties acquired in respect thereof) remaining in the
Trust Fund is reduced to less than 10% of the aggregate principal balance of the
Initial Mortgage Loans as of the Cut-off Date, or 0.58%, in the case of any
Distribution Date thereafter.
With respect to the Class AV-2 Certificates and, for purposes
of the Marker Rate, REMIC II Regular Interest II-LTAV2, 0.30% in the case of
each Distribution Date through and including the Distribution Date on which the
aggregate principal balance of the Mortgage Loans (and properties acquired in
respect thereof) remaining in the Trust Fund is reduced to less than 10% of the
aggregate Stated Principal Balance of the Initial Mortgage Loans as of the
Cut-off Date, or 0.60%, in the case of any Distribution Date thereafter.
With respect to the Class M-1 Certificates and, for purposes
of the Marker Rate, REMIC II Regular Interest II-LTM1, 0.70% in the case of each
Distribution Date through and including the Distribution Date on which the
aggregate principal balance of the Mortgage Loans (and properties acquired in
respect thereof) remaining in the Trust Fund is reduced to less than 10% of the
aggregate Stated Principal Balance of the Initial Mortgage Loans as of the
Cut-off Date, or 1.05%, in the case of any Distribution Date thereafter.
9
With respect to the Class M-2 Certificates and, for purposes
of the Marker Rate, REMIC II Regular Interest II-LTM2, 1.25% in the case of each
Distribution Date through and including the Distribution Date on which the
aggregate principal balance of the Mortgage Loans (and properties acquired in
respect thereof) remaining in the Trust Fund is reduced to less than 10% of the
aggregate Stated Principal Balance of the Initial Mortgage Loans as of the
Cut-off Date, or 1.875%, in the case of any Distribution Date thereafter.
With respect to the Class M-3 Certificates and, for purposes
of the Marker Rate, REMIC II Regular Interest II-LTM3, 1.90% in the case of each
Distribution Date through and including the Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans (and properties
acquired in respect thereof) remaining in the Trust Fund is reduced to less than
10% of the aggregate principal balance of the Initial Mortgage Loans as of the
Cut-off Date, or 2.85%, in the case of any Distribution Date thereafter.
With respect to the Class M-4 Certificates and, for purposes
of the Marker Rate, REMIC II Regular Interest II-LTM4, 2.15% in the case of each
Distribution Date through and including the Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans (and properties
acquired in respect thereof) remaining in the Trust Fund is reduced to less than
10% of the aggregate principal balance of the Initial Mortgage Loans as of the
Cut-off Date, or 3.225%, in the case of any Distribution Date thereafter.
"Certificate Owner": With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant or on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent.
"Certificate Principal Balance": With respect to each Class A
Certificate, Mezzanine Certificate or Class P Certificate as of any date of
determination, the Certificate Principal Balance of such Certificate on the
Distribution Date immediately prior to such date of determination, minus all
distributions allocable to principal made thereon and in the case of a Mezzanine
Certificate, Realized Losses allocated thereto on such immediately prior
Distribution Date (or, in the case of any date of determination up to and
including the first Distribution Date, the initial Certificate Principal Balance
of such Certificate, as stated on the face thereof). With respect to each Class
CE Certificate as of any date of determination, an amount equal to the
Percentage Interest evidenced by such Certificate times the excess, if any, of
(A) the then aggregate Uncertificated Balances of the REMIC II Regular Interests
over (B) the then aggregate Certificate Principal Balances of the Class A
Certificates, the Mezzanine Certificates and the Class P Certificates then
outstanding.
"Certificate Register" and "Certificate Registrar": The
register maintained and the registrar appointed pursuant to Section 5.02.
"Class": Collectively, all of the Certificates bearing the
same class designation. "Class A Certificate": Any one of the Class AF
Certificates, the Class AV-1 Certificates or the Class AV-2 Certificates.
10
"Class A Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (i) the Class AF Principal
Distribution Amount, (ii) the Class AV-1 Principal Distribution Amount and (iii)
the Class AV-2 Principal Distribution Amount.
"Class AF Allocation Percentage": With respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is (x) the Group I Principal Remittance Amount for such Distribution Date
and the denominator of which is (y) the Principal Remittance Amount for such
Distribution Date.
"Class AF Certificates": The Class AF-1 Certificates, the
Class AF-2 Certificates, the Class AF-3 Certificates, the Class AF-4
Certificates, the Class AF-5 Certificates and the Class AF-6 Certificates.
"Class AF Principal Distribution Amount": With respect to any
Distribution Date and the Class AF Certificates, the excess of (x) the aggregate
Certificate Principal Balance of the Class AF Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) 66.50% and
(ii) the aggregate Stated Principal Balance of the Group I Mortgage Loans as of
the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) and (B) the aggregate Stated Principal Balance of the
Group I Mortgage Loans as of the last day of the related Due Period (after
giving effect to scheduled payments of principal due during the related Due
Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) minus $1,341,915.74.
"Class AF-1 Certificate": Any one of the Class AF-1
Certificates executed by the Trustee or the Trust Administrator, and
authenticated and delivered by the Certificate Registrar, substantially in the
form annexed hereto as Exhibit A-1 and evidencing a Regular Interest in REMIC
III for purposes of the REMIC Provisions.
"Class AF-2 Certificate": Any one of the Class AF-2
Certificates executed by the Trustee or the Trust Administrator, and
authenticated and delivered by the Certificate Registrar, substantially in the
form annexed hereto as Exhibit A-2 and evidencing a Regular Interest in REMIC
III for purposes of the REMIC Provisions.
"Class AF-3 Certificate": Any one of the Class AF-3
Certificates executed by the Trustee or the Trust Administrator, and
authenticated and delivered by the Certificate Registrar, substantially in the
form annexed hereto as Exhibit A-3 and evidencing a Regular Interest in REMIC
III for purposes of the REMIC Provisions.
"Class AF-4 Certificate": Any one of the Class AF-4
Certificates executed by the Trustee or the Trust Administrator, and
authenticated and delivered by the Certificate Registrar, substantially in the
form annexed hereto as Exhibit A-4 and evidencing a Regular Interest in REMIC
III for purposes of the REMIC Provisions.
11
"Class AF-5 Certificate": Any one of the Class AF-5
Certificates executed by the Trustee or the Trust Administrator, and
authenticated and delivered by the Certificate Registrar, substantially in the
form annexed hereto as Exhibit A-5 and evidencing a Regular Interest in REMIC
III for purposes of the REMIC Provisions.
"Class AF-6 Certificate": Any one of the Class AF-6
Certificates executed by the Trustee or the Trust Administrator, and
authenticated and delivered by the Certificate Registrar, substantially in the
form annexed hereto as Exhibit A-6 and evidencing a Regular Interest in REMIC
III for purposes of the REMIC Provisions.
"Class AV Certificates": The Class AV-1 Certificates and the
Class AV-2 Certificates.
"Class AV-1 Allocation Percentage": With respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is (x) the Group II Principal Remittance Amount for such Distribution Date
and the denominator of which is (y) the Principal Remittance Amount for such
Distribution Date.
"Class AV-1 Certificate": Any one of the Class AV-1
Certificates executed by the Trustee or the Trust Administrator, and
authenticated and delivered by the Certificate Registrar, substantially in the
form annexed hereto as Exhibit A-7 and evidencing a Regular Interest in REMIC
III for purposes of the REMIC Provisions.
"Class AV-1 Principal Distribution Amount": With respect to
any Distribution Date and the Class AV-1 Certificates, the excess of (x) the
Certificate Principal Balance of the Class AV-1 Certificates immediately prior
to such Distribution Date over (y) the lesser of (A) the product of (i) 66.50%
and (ii) the aggregate Stated Principal Balance of the Group II Mortgage Loans
as of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) and (B) the aggregate Stated Principal Balance of the
Group II Mortgage Loans as of the last day of the related Due Period (after
giving effect to scheduled payments of principal due during the related Due
Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) minus $2,234,764.25.
"Class AV-2 Allocation Percentage": With respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is (x) the Group III Principal Remittance Amount for such Distribution
Date and the denominator of which is (y) the Principal Remittance Amount for
such Distribution Date.
"Class AV-2 Certificate": Any one of the Class AV-2
Certificates executed by the Trustee or the Trust Administrator, and
authenticated and delivered by the Certificate Registrar, substantially in the
form annexed hereto as Exhibit A-8 and evidencing a Regular Interest in REMIC
III for purposes of the REMIC Provisions.
12
"Class AV-2 Principal Distribution Amount": With respect to
any Distribution Date and the Class AV-2 Certificates, the excess of (x) the
Certificate Principal Balance of the Class AV-2 Certificates immediately prior
to such Distribution Date over (y) the lesser of (A) the product of (i) 66.50%
and (ii) the aggregate Stated Principal Balance of the Group III Mortgage Loans
as of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) and (B) the aggregate Stated Principal Balance of the
Group III Mortgage Loans as of the last day of the related Due Period (after
giving effect to scheduled payments of principal due during the related Due
Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) minus $448,233.38.
"Class CE Certificate": Any one of the Class CE Certificates
executed by the Trustee or the Trust Administrator, and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed hereto
as Exhibit A-13 and evidencing a Regular Interest in REMIC III for purposes of
the REMIC Provisions.
"Class Exemption": A class exemption granted by the DOL, which
provides relief from certain of the prohibited transaction provisions of ERISA
and the related excise tax provisions of the Code.
"Class M-1 Certificate": Any one of the Class M-1 Certificates
executed by the Trustee or the Trust Administrator, and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed hereto
as Exhibit A-9 and evidencing a Regular Interest in REMIC III for purposes of
the REMIC Provisions.
"Class M-1 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
and (ii) the Certificate Principal Balance of the Class M-1 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 78.00% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) minus $4,024,913.38.
"Class M-2 Certificate": Any one of the Class M-2 Certificates
executed by the Trustee or the Trust Administrator, and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed hereto
as Exhibit A-10 and evidencing a Regular Interest in REMIC III for purposes of
the REMIC Provisions.
"Class M-2 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class A Certificates
13
(after taking into account the payment of the Class A Principal Distribution
Amount on such Distribution Date), (ii) the Certificate Principal Balance of the
Class M-1 Certificates (after taking into account the payment of the Class M-1
Principal Distribution Amount on such Distribution Date) and (iii) the
Certificate Principal Balance of the Class M-2 Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) 87.50% and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus $4,024,913.38.
"Class M-3 Certificate": Any one of the Class M-3 Certificates
executed by the Trustee or the Trust Administrator, and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed hereto
as Exhibit A-11 and evidencing a Regular Interest in REMIC III for purposes of
the REMIC Provisions.
"Class M-3 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(ii) the Certificate Principal Balance of the Class M-1 Certificates (after
taking into account the payment of the Class M-1 Principal Distribution Amount
on such Distribution Date), (iii) the Certificate Principal Balance of the Class
M-2 Certificates (after taking into account the payment of the Class M-1
Principal Distribution Amount on such Distribution Date) and (iv) the
Certificate Principal Balance of the Class M-3 Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) 95.50% and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus $4,024,913.38.
"Class M-4 Certificate": Any one of the Class M-4 Certificates
executed by the Trustee or the Trust Administrator, and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed hereto
as Exhibit A-12 and evidencing a Regular Interest in REMIC III for purposes of
the REMIC Provisions.
"Class M-4 Principal Distribution Amount": With respect to any
Distribution Date, the excess of (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(ii) the Certificate Principal Balance of the Class M-1 Certificates (after
taking into account the payment of the Class M-1 Principal Distribution Amount
on such Distribution Date), (iii) the Certificate Principal Balance of the Class
M-2 Certificates (after taking into account
14
the payment of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the payment of the Class M-3 Principal Distribution
Amount on such Distribution Date), and (v) the Certificate Principal Balance of
the Class M-4 Certificates immediately prior to such Distribution Date over (y)
the lesser of (A) the product of (i) 98.50% and (ii) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and (B)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) minus $4,024,913.38.
"Class P Certificate": Any one of the Class P Certificates
executed by the Trustee or the Trust Administrator, and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed hereto
as Exhibit A-14, representing the right to distributions as set forth herein and
therein and evidencing a regular interest in REMIC III.
"Class R Certificate": Any one of the Class R Certificates
executed by the Trustee or the Trust Administrator, and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed hereto
as Exhibit A-16 and evidencing the ownership of the Class R-I Interest, the
Class R-II Interest and the Class R-III Interest.
"Class R-I Interest": The uncertificated Residual Interest in
REMIC I.
"Class R-II Interest": The uncertificated Residual Interest in
REMIC II.
"Class R-III Interest": The uncertificated Residual Interest
in REMIC III.
"Class S Certificate": Any one of the Class S Certificates
executed by the Trustee or the Trust Administrator, and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed hereto
as Exhibit A-15 and evidencing a Regular Interest in REMIC III for purposes of
the REMIC Provisions.
"Class S Rate":
With respect to REMIC II Regular Interest II-LTS1:
(A) in the case of the 1st Distribution Date through the 30th
Distribution Date, a per annum rate equal to the excess of (i) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LT1 over (ii)
the excess (but not less than zero) of (x) the REMIC I Remittance Rate
for REMIC I Regular Interest I-LT1 over (y) 6.00% per annum; and
(B) in the case of each Distribution Date thereafter, 0.00%
per annum.
With respect to REMIC II Regular Interest II-LTS2:
15
(A) in the case of the 1st Distribution Date through the 30th
Distribution Date, a per annum rate equal to the excess of (i) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LT2 over (ii)
the excess (but not less than zero) of (x) the REMIC I Remittance Rate
for REMIC I Regular Interest I-LT2 over (y) 6.00% per annum; and
(B) in the case of each Distribution Date thereafter, 0.00%
per annum.
With respect to REMIC II Regular Interest II-LTS3:
(A) in the case of the 1st Distribution Date through the 30th
Distribution Date, a per annum rate equal to the excess of (i) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LT3 over (ii)
the excess (but not less than zero) of (x) the REMIC I Remittance Rate
for REMIC I Regular Interest I-LT1 over (y) 6.00% per annum; and
(B) in the case of each Distribution Date thereafter, 0.00%
per annum.
"Closing Date": September 4, 2002.
"Code": The Internal Revenue Code of 1986.
"Collection Account": The account or accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a), which shall be
entitled "Ameriquest Mortgage Company, as Master Servicer for U.S. Bank National
Association, as Trustee, in trust for the registered holders of Ameriquest
Mortgage Securities Inc., Asset-Backed Pass-Through Certificates, Series
2002-3." The Collection Account must be an Eligible Account.
"Commission": The Securities and Exchange Commission.
"Compensating Interest": As defined in Section 4.03(e) hereof.
"Corporate Trust Office": The principal corporate trust office
of the Trust Administrator or the Trustee, as the case may be, at which at any
particular time its corporate trust business in connection with this Agreement
shall be administered, which office with respect to the Trust Administrator, at
the date of the execution of this instrument is located at 0000 Xxxx Xx. Xxxxxx
Xxxxx, Xxxxx Xxx, XX 00000-0000, or at such other address as the Trust
Administrator may designate from time to time by notice to the
Certificateholders, the Depositor, the Master Servicer and the Trustee and with
respect to the Trustee, at the date of the execution of this instrument is
located at 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, or at such other
address as the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor, the Master Servicer and the Trust
Administrator.
"Corresponding Certificate": With respect to (A)(i) REMIC II
Regular Interest II- LTAF1, (ii) REMIC II Regular Interest II-LTAF2, (iii) REMIC
II Regular Interest II-LTAF3, (iv) REMIC II Regular Interest II-LTAF4, (v) REMIC
II Regular Interest II-LTAF5, (vi) REMIC II Regular Interest II-LTAF6, (vii)
REMIC II Regular Interest II-LTAV-1, (viii) REMIC II Regular Interest II-LTAV-2,
(ix) REMIC II Regular Interest II-LTM1, (x) REMIC II Regular Interest II- LTM2,
(xi) REMIC II Regular Interest II-LTM3, (xii) REMIC II Regular Interest II-LTM4
and (xiii) REMIC II Regular Interest II-LTP, (B)(i) the Class AF-1 Certificates,
(ii) the Class AF-2 Certificates, (iii) the Class AF-3 Certificates, (iv) the
Class AF-4 Certificates, (v) the Class AF-5 Certificates, (vi) the Class AF-6
Certificates, (vii) the Class AV-1 Certificates, (viii) the Class AV-2
Certificates, (ix) the Class M-1 Certificates, (x) the Class M-2 Certificates,
(xi) the Class M-3 Certificates, (xii) the Class M-4 Certificates and (xiii)
Class P Certificates, respectively.
"Credit Enhancement Percentage": For any Distribution Date,
the percentage equivalent of a fraction, calculated after taking into account
distributions of principal on the Mortgage Loans and distribution of the Group I
Principal Distribution Amount, the Group II Principal Distribution Amount and
the Group III Principal Distribution Amount to the Certificates then entitled to
distributions of principal on such Distribution Date, the numerator of which is
the sum of the aggregate Certificate Principal Balances of the Mezzanine
Certificates and the Class CE Certificates, and the denominator of which is the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day of
the related Due Period (after giving effect to scheduled payments of principal
due during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period).
"Cumulative Loss Percentage": With respect to any Distribution
Date, the percentage equivalent of a fraction, the numerator of which is the
aggregate amount of Realized Losses incurred from the Cut-off Date to the last
day of the preceding calendar month and the denominator of which is the
aggregate Stated Principal Balance of the Initial Mortgage Loans as of the
Cut-off Date.
"Custodian": A Custodian, which shall initially be Deutsche
Bank National Trust Company.
"Cut-off Date": With respect to any Initial Mortgage Loan, the
close of business on the later of (i) the date of origination of such Mortgage
Loan or (ii) September 1, 2002. With respect to all Qualified Substitute
Mortgage Loans, their respective dates of substitution. References herein to the
"Cut-off Date," when used with respect to more than one Mortgage Loan, shall be
to the respective Cut-off Dates for such Mortgage Loans.
"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code, except such a
reduction resulting from a Deficient Valuation.
"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.
"Definitive Certificates": As defined in Section 5.01(b).
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be
replaced by a Qualified Substitute Mortgage Loan.
16
"Delinquency Percentage": With respect to any Distribution
Date, the percentage equivalent of a fraction, the numerator of which is the
aggregate Stated Principal Balance of all Mortgage Loans as of the last day of
the previous calendar month that, as of such last day of the previous calendar
month, are 60 or more days delinquent (measured under the OTS delinquency
calculation methodology), are in foreclosure, have been converted to REO
Properties or have related borrowers that are the subject of bankruptcy
proceedings, and the denominator of which is the aggregate Stated Principal
Balance of the Mortgage Loans and REO Properties as of the last day of the
previous calendar month; provided, however, that any Mortgage Loan purchased by
the Master Servicer pursuant to Section 3.16(a) shall not be included in either
the numerator or the denominator for purposes of calculating the Delinquency
Percentage.
"Depositor": Ameriquest Mortgage Securities Inc., a Delaware
corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository, for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
CEDE & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934, as amended.
"Depository Institution": Any depository institution or trust
company, including the Trustee and the Trust Administrator, that (a) is
incorporated under the laws of the United States of America or any State
thereof, (b) is subject to supervision and examination by federal or state
banking authorities and (c) has outstanding unsecured commercial paper or other
short-term unsecured debt obligations that are rated P-1 by Xxxxx'x, F-1 by
Fitch and A-1 by S&P (or comparable ratings if Xxxxx'x, Fitch and S&P are not
the Rating Agencies).
"Depository Participant": A broker, dealer, bank or other
financial institution or other Person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date": With respect to each Distribution Date,
the 10th day of the calendar month in which such Distribution Date occurs or, if
such 10th day is not a Business Day, the Business Day immediately preceding such
10th day.
"Directly Operate": With respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers, the performance of any construction work thereon or any use
of such REO Property in a trade or business conducted by REMIC I other than
through an Independent Contractor; provided, however, that the Trustee (or the
Master Servicer on behalf of the Trustee) shall not be considered to Directly
Operate an REO Property solely because the Trustee (or the Master Servicer on
behalf of the Trustee) establishes rental terms, chooses tenants, enters into or
renews leases, deals with taxes and insurance, or makes decisions as to repairs
or capital expenditures with respect to such REO Property.
17
"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, 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, (v) an "electing
large partnership" and (vi) any other Person so designated by the Trustee or the
Trust Administrator based upon an Opinion of Counsel that the holding of an
Ownership Interest in a Residual Certificate by such Person may cause any Trust
REMIC or any Person having an Ownership Interest in any Class of Certificates
(other than such Person) to incur a liability for any federal tax imposed under
the Code that would not otherwise be imposed but for the Transfer of an
Ownership Interest in a 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 by the Trust Administrator pursuant to Section 3.04(e) which
shall be entitled "Deutsche Bank National Trust Company, as Trust Administrator,
in trust for the registered holders of Ameriquest Mortgage Securities Inc.,
Asset-Backed Pass-Through Certificates, Series 2002-3." The Distribution Account
must be an Eligible Account.
"Distribution Date": The 25th day of any month, or if such
25th day is not a Business Day, the next succeeding Business Day, commencing in
October 2002.
"Due Date": With respect to each Distribution Date, the first
day of the calendar month in which such Distribution Date occurs, which is the
day of the month on which the Monthly Payment is due on a Mortgage Loan,
exclusive of any days of grace.
"Due Period": With respect to any Distribution Date, the
period commencing on the second day of the month immediately preceding the month
in which such Distribution Date occurs and ending on the related Due Date.
"Eligible Account": Any of (i) an account or accounts
maintained with a Depository Institution or trust company the short-term
unsecured debt obligations of which are rated P-1 by Xxxxx'x, F-1 by Fitch and
A-1+ by S&P (or comparable ratings if Xxxxx'x, Fitch and S&P are not the Rating
Agencies) at the time any amounts are held on deposit therein, (ii) an account
or accounts the deposits in which are fully insured by the FDIC or (iii) a trust
account or accounts maintained with the corporate trust department of a federal
or state chartered depository institution or trust company acting in its
fiduciary capacity. Eligible Accounts may bear interest.
"ERISA": The Employee Retirement Income Security Act of 1974,
as amended.
18
"Escrow Account": The account or accounts created and
maintained pursuant to Section 3.04(c).
"Escrow Payments": The amounts constituting taxes, and/or fire
and hazard insurance premiums escrowed by the Mortgagor with the mortgagee
pursuant to a voluntary escrow agreement related to any Mortgage Loan.
"Estate in Real Property": A fee simple estate or leasehold
estate in a parcel of land.
"Excess Group Net WAC Pass-Through Rate Amount": For any
Distribution Date and the Class AF Certificates, the positive excess, if any, of
(i) the amount of interest accrued on the Class AF Certificates for such
Distribution Date calculated at the Net WAC Pass-Through Rate for the Class AF
Certificates over (ii) the amount of interest accrued on the Class AF
Certificates at the Pool Net WAC Pass-Through Rate. For any Distribution Date
and the Class AV-1 Certificates, the positive excess, if any, of (i) the amount
of interest accrued on the Class AV-1 Certificates for such Distribution Date
calculated at the Net WAC Pass-Through Rate for the Class AV-1 Certificates over
(ii) the amount of interest accrued on the Class AV-1 Certificates at the Pool
Net WAC Pass- Through Rate. For any Distribution Date and the Class AV-2
Certificates, the positive excess, if any, of (i) the amount of interest accrued
on the Class AV-2 Certificates for such Distribution Date calculated at the Net
WAC Pass-Through Rate for the Class AV-2 Certificates over (ii) the amount of
interest accrued on the Class AV-2 Certificates at the Pool Net WAC Pass-Through
Rate.
"Excess Net WAC Rate Reserve Fund": As defined in Section
4.09.
"Excess Overcollateralized Amount": With respect to the Class
A Certificates and the Mezzanine Certificates and any Distribution Date, the
excess, if any, of (i) the Overcollateralized Amount for such Distribution Date
(calculated for this purpose only after assuming that 100% of the Principal
Remittance Amount on such Distribution Date has been distributed) over (ii) the
Overcollateralization Target Amount for such Distribution Date.
"Excess Pool Net WAC Rate Amount": For any Distribution Date
and the Class AF Certificates, the positive excess, if any, of (i) the amount of
interest accrued on such Class AF Certificate for such Distribution Date
calculated at the Pool Net WAC Rate over (ii) the amount of interest accrued on
such Class AF Certificate at the Net WAC Rate for such Class AF Certificate. For
any Distribution Date and the Class AV-1 Certificates, the positive excess, if
any, of (i) the amount of interest accrued on the Class AV-1 Certificates for
such Distribution Date calculated at the Pool Net WAC Rate over (ii) the amount
of interest accrued on such Class AV-1 Certificates at the Net WAC Rate for the
Class AV-1 Certificates. For any Distribution Date and the Class AV-2
Certificates, the positive excess, if any, of (i) the amount of interest accrued
on the Class AV-2 Certificates for such Distribution Date calculated at the Pool
Net WAC Rate over (ii) the amount of interest accrued on such Class AV-2
Certificates at the Net WAC Rate for the Class AV-2 Certificates.
"Expense Adjusted Mortgage Rate": With respect to any Mortgage
Loan (or the related REO Property), as of any date of determination, a per annum
rate of interest equal to the applicable Mortgage Rate thereon as of the first
day of the month preceding the month in which the
19
Distribution Date occurs minus the sum of (i) the Administration Fee Rate and
(ii) the Servicing Fee Rate.
"Expense Adjusted Maximum Mortgage Rate": With respect to any
Mortgage Loan (or the related REO Property), as of any date of determination, a
per annum rate of interest equal to the applicable Mortgage Rate (in the case of
any Group I Mortgage Loan) or Maximum Mortgage Rate (in the case of any Group II
Mortgage Loan or Group III Mortgage Loan) thereon as of the first day of the
month preceding the month in which the Distribution Date occurs minus the sum of
(i) the Administration Fee Rate and (ii) the Servicing Fee Rate.
"Extraordinary Trust Fund Expense": Any amounts reimbursable
to the Trustee or the Trust Administrator, or any director, officer, employee or
agent of the Trustee or the Trust Administrator, from the Trust Fund pursuant to
Section 8.05, any amounts payable from the Distribution Account in respect of
taxes pursuant to Section 10.01(g)(iii) and any amounts payable by the Trust
Administrator for the recording of the assignments of mortgage pursuant to
Section 2.01.
"Xxxxxx Mae": Xxxxxx Xxx, formally known as the Federal
National Mortgage Association, or any successor thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Recovery Determination": With respect to any defaulted
Mortgage Loan or any REO Property (other than a Mortgage Loan or REO Property
purchased by the Originator, the Depositor or the Master Servicer pursuant to or
as contemplated by Section 2.03, Section 3.16(a) or Section 9.01), a
determination made by the Master Servicer that all Insurance Proceeds,
Liquidation Proceeds and other payments or recoveries which the Master Servicer,
in its reasonable good faith judgment, expects to be finally recoverable in
respect thereof have been so recovered. The Master Servicer shall maintain
records, prepared by a Servicing Officer, of each Final Recovery Determination
made thereby.
"Fitch": Fitch Ratings, or its successor in interest.
"Formula Rate": For any Distribution Date and the Class AV
Certificates and the Mezzanine Certificates, the lesser of (i) LIBOR plus the
related Certificate Margin and (ii) the Maximum Cap Rate.
"Xxxxxxx Mac": Xxxxxxx Mac, formally known as the Federal Home
Loan Mortgage Corporation, or any successor thereto.
"Gross Margin": With respect to each Group II Mortgage Loan
and Group III Mortgage Loan, the fixed percentage set forth in the related
Mortgage Note that is added to the Index on each Adjustment Date in accordance
with the terms of the related Mortgage Note to determine the Mortgage Rate for
such Group II Mortgage Loan or Group III Mortgage Loan, as applicable.
20
"Group I Interest Remittance Amount": With respect to any
Distribution Date, that portion of the Available Funds for such Distribution
Date allocable to interest on the Group I Mortgage Loans.
"Group I Mortgage Loan": A first lien Mortgage Loan which
provides for a fixed Mortgage Rate payable with respect thereto. The Group I
Mortgage Loans are identified as such on the Mortgage Loan Schedule.
"Group I Principal Distribution Amount": With respect to any
Distribution Date, the sum of (i) the principal portion of each Monthly Payment
on the Group I Mortgage Loans due during the related Due Period, whether or not
received on or prior to the related Determination Date; (ii) the Stated
Principal Balance of any Group I Mortgage Loan that was purchased during the
related Prepayment Period pursuant to or as contemplated by Section 2.03,
Section 3.16(a) or Section 9.01 and the amount of any shortfall deposited in the
Collection Account in connection with the substitution of a Deleted Mortgage
Loan in Loan Group I pursuant to Section 2.03 during the related Prepayment
Period; (iii) the principal portion of all other unscheduled collections
(including, without limitation, Principal Prepayments, Insurance Proceeds,
Liquidation Proceeds and REO Principal Amortization) received during the related
Prepayment Period on the Group I Mortgage Loans, net of any portion thereof that
represents a recovery of principal for which an advance was made by the Master
Servicer pursuant to Section 4.03 in respect of a preceding Distribution Date;
and (iv) the Class AF Allocation Percentage of the amount of any
Overcollateralization Increase Amount for such Distribution Date MINUS (v) the
Class AF Allocation Percentage of the amount of any Overcollateralization
Reduction Amount for such Distribution Date.
"Group I Principal Remittance Amount": With respect to any
Distribution Date, the sum of the amounts set forth in clauses (i) through (iii)
of the definition of Group I Principal Distribution Amount.
"Group II Interest Remittance Amount": With respect to any
Distribution Date, that portion of the Available Funds for such Distribution
Date allocable to interest on the Group II Mortgage Loans.
"Group II Mortgage Loan": Each of the Mortgage Loans
identified in the Mortgage Loan Schedule as having a Mortgage Rate that is
subject to adjustment. The Group II Mortgage Loans are identified as such on the
Mortgage Loan Schedule.
"Group II Principal Distribution Amount": With respect to any
Distribution Date, the sum of (i) the principal portion of each Monthly Payment
on the Group II Mortgage Loans due during the related Due Period, whether or not
received on or prior to the related Determination Date; (ii) the Stated
Principal Balance of any Group II Mortgage Loan that was purchased during the
related Prepayment Period pursuant to or as contemplated by Section 2.03,
Section 3.16(a) or Section 9.01 and the amount of any shortfall deposited in the
Collection Account in connection with the substitution of a Deleted Mortgage
Loan in Loan Group II pursuant to Section 2.03 during the related Prepayment
Period; (iii) the principal portion of all other unscheduled collections
(including, without limitation, Principal Prepayments, Insurance Proceeds,
Liquidation Proceeds and REO Principal Amortization) received during the related
Prepayment Period on the Group II Mortgage Loans, net
21
of any portion thereof that represents a recovery of principal for which an
advance was made by the Master Servicer pursuant to Section 4.03 in respect of a
preceding Distribution Date; and (iv) the Class AV-1 Allocation Percentage of
the amount of any Overcollateralization Increase Amount for such Distribution
Date MINUS (v) the Class AV-1 Allocation Percentage of the amount of any
Overcollateralization Reduction Amount for such Distribution Date.
"Group II Principal Remittance Amount": With respect to any
Distribution Date, the sum of the amounts set forth in clauses (i) through (iii)
of the definition of Group II Principal Distribution Amount.
"Group III Interest Remittance Amount": With respect to any
Distribution Date, that portion of the Available Funds for such Distribution
Date allocable to interest on the Group III Mortgage Loans.
"Group III Mortgage Loan": Each of the Mortgage Loans
identified in the Mortgage Loan Schedule as having a Mortgage Rate that is
subject to adjustment. The Group III Mortgage Loans are identified as such on
the Mortgage Loan Schedule.
"Group III Principal Distribution Amount": With respect to any
Distribution Date, the sum of (i) the principal portion of each Monthly Payment
on the Group III Mortgage Loans due during the related Due Period, whether or
not received on or prior to the related Determination Date; (ii) the Stated
Principal Balance of any Group III Mortgage Loan that was purchased during the
related Prepayment Period pursuant to or as contemplated by Section 2.03,
Section 3.16(a) or Section 9.01 and the amount of any shortfall deposited in the
Collection Account in connection with the substitution of a Deleted Mortgage
Loan in Loan Group III pursuant to Section 2.03 during the related Prepayment
Period; (iii) the principal portion of all other unscheduled collections
(including, without limitation, Principal Prepayments, Insurance Proceeds,
Liquidation Proceeds and REO Principal Amortization) received during the related
Prepayment Period on the Group III Mortgage Loans, net of any portion thereof
that represents a recovery of principal for which an advance was made by the
Master Servicer pursuant to Section 4.03 in respect of a preceding Distribution
Date; and (iv) the Class AV-2 Allocation Percentage of the amount of any
Overcollateralization Increase Amount for such Distribution Date MINUS (v) the
Class AV-2 Allocation Percentage of the amount of any Overcollateralization
Reduction Amount for such Distribution Date.
"Group III Principal Remittance Amount": With respect to any
Distribution Date, the sum of the amounts set forth in clauses (i) through (iii)
of the definition of Group III Principal Distribution Amount.
"Indenture": An indenture relating to the issuance of notes
which may or may not be guaranteed by the NIMS Insurer.
"Independent": When used with respect to any specified Person,
any such Person who (a) is in fact independent of the Depositor, the Master
Servicer, the Originator and their respective Affiliates, (b) does not have any
direct financial interest in or any material indirect financial interest in the
Depositor, the Originator, the Master Servicer or any Affiliate thereof, and (c)
is not connected with the Depositor, the Originator, the Master Servicer or any
Affiliate thereof
22
as an officer, employee, promoter, underwriter, trustee, trust administrator,
partner, director or Person performing similar functions; provided, however,
that a Person shall not fail to be Independent of the Depositor, the Originator,
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.
"Independent Contractor": Either (i) any Person (other than
the Master Servicer) that would be an "independent contractor" with respect to
REMIC I within the meaning of Section 856(d)(3) of the Code if REMIC I were a
real estate investment trust (except that the ownership tests set forth in that
section shall be considered to be met by any Person that owns, directly or
indirectly, 35% or more of any Class of Certificates), so long as REMIC I does
not receive or derive any income from such Person and provided that the
relationship between such Person and REMIC I is at arm's length, all within the
meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any other Person
(including the Master Servicer) if the Trustee and the Trust Administrator have
received an Opinion of Counsel to the effect that the taking of any action in
respect of any REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such REO Property to cease to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (determined
without regard to the exception applicable for purposes of Section 860D(a) of
the Code), or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Index": With respect to each Group II Mortgage Loan and Group
III Mortgage Loan and each related Adjustment Date, the average of the interbank
offered rates for six-month United States dollar deposits in the London market
as published in THE WALL STREET JOURNAL and as most recently available as of the
first business day 45 days or more prior to such Adjustment Date, as specified
in the related Mortgage Note.
"Initial Deposit": $0.00 in cash to be deposited by the
Depositor with the Trust Administrator for deposit into the Initial Deposit
Account on or before the Closing Date, relating to (i) Initial Mortgage Loans
having a first Due Date in the Due Period relating to the Distribution Date in
November 2002 and (ii) the initial Interest Accrual Period.
"Initial Deposit Account": The Initial Deposit Account
established in accordance with Section 4.08 hereof and maintained by the Trust
Administrator, which shall be entitled "Initial Deposit Account, Deutsche Bank
National Trust Company, as agent for U.S. Bank National Association, as Trustee,
in trust for the registered holders of Ameriquest Mortgage Securities Inc.,
Asset-Backed Pass-Through Certificates, Series 2002-3" and which must be an
Eligible Account.
"Initial Mortgage Loan": Any of the Mortgage Loans included in
REMIC I as of the Closing Date.
"Insurance Proceeds": Proceeds of any title policy, hazard
policy or other insurance policy covering a Mortgage Loan, to the extent such
proceeds are not to be applied to the restoration of the related Mortgaged
Property or released to the Mortgagor in accordance with the procedures that the
Master Servicer would follow in servicing mortgage loans held for its own
account, subject to the terms and conditions of the related Mortgage Note and
Mortgage.
23
"Interest Accrual Period": With respect to any Distribution
Date and the Class AV Certificates and the Mezzanine Certificates, the period
commencing on the Distribution Date in the month immediately preceding the month
in which such Distribution Date occurs (or, in the case of the first
Distribution Date, commencing on the Closing Date) and ending on the day
preceding such Distribution Date. With respect to any Distribution Date and the
Class AF Certificates, the Class S Certificates, the Class CE Certificates, the
REMIC II Regular Interests and the REMIC I Regular Interests, the one-month
period ending on the last day of the calendar month preceding the month in which
such Distribution Date occurs.
"Interest Carry Forward Amount": With respect to any
Distribution Date and any Class of Class A Certificates, Class S Certificates or
Mezzanine Certificates, the sum of (i) the amount, if any, by which (a) the
Interest Distribution Amount for such Class of Certificates as of the
immediately preceding Distribution Date exceeded (b) the actual amount
distributed on such Class of Certificates in respect of interest on such
immediately preceding Distribution Date and (ii) the amount of any Interest
Carry Forward Amount for such Class of Certificates remaining unpaid from the
previous Distribution Date, plus accrued interest on such sum calculated at the
related Pass- Through Rate for the most recently ended Interest Accrual Period.
"Interest Determination Date": With respect to the Class AV
Certificates, the Mezzanine Certificates, and solely for purposes of calculating
the Marker Rate REMIC II Regular Interest II-LTAV1, REMIC II Regular Interest
II-LTAV2, REMIC II Regular Interest II-LTM1, REMIC II Regular Interest II-LTM2,
REMIC II Regular Interest II-LTM3 and REMIC II Regular Interest II-LTM4 and any
Interest Accrual Period therefor, the second London Business Day preceding the
commencement of such Interest Accrual Period.
"Interest Distribution Amount": With respect to any
Distribution Date, any Class A Certificate, any Mezzanine Certificate, any Class
S Certificate and any Class CE Certificate, the aggregate Accrued Certificate
Interest on the Certificates of such Class for such Distribution Date plus,
solely for federal income tax purposes, the amount of the Excess Group Net WAC
Pass- Through Rate Amount, if any, for such Class for such Distribution Date and
reduced by the amount of Excess Pool Net WAC Pass-Through Rate Amount, if any,
for such Class for such Distribution Date.
"Late Collections": With respect to any Mortgage Loan and any
Due Period, all amounts received subsequent to the Determination Date
immediately following such Due Period, whether as late payments of Monthly
Payments or as Insurance Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal and/or interest due (without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note) but delinquent for such Due Period and not previously recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made as to such Mortgage Loan; or (iii) such Mortgage
Loan is removed from REMIC I by reason of its being purchased, sold or replaced
pursuant to or as contemplated by Section 2.03, Section 3.16(a) or Section 9.01.
With respect to any REO Property, either of the following events: (i) a Final
Recovery
24
Determination is made as to such REO Property; or (ii) such REO Property is
removed from REMIC I by reason of its being purchased pursuant to Section 9.01.
"Liquidation Proceeds": The amount (other than Insurance
Proceeds or amounts received in respect of the rental of any REO Property prior
to REO Disposition) received by the Master Servicer in connection with (i) the
taking of all or a part of a Mortgaged Property by exercise of the power of
eminent domain or condemnation, (ii) the liquidation of a defaulted Mortgage
Loan through a trustee's sale, foreclosure sale or otherwise, or (iii) the
repurchase, substitution or sale of a Mortgage Loan or an REO Property pursuant
to or as contemplated by Section 2.03, Section 3.13, Section 3.16(a) or Section
9.01.
"Loan Group": Loan Group I, Loan Group II or Loan Group III,
as the context requires.
"Loan Group I": The group of Mortgage Loans identified in the
Mortgage Loan Schedule as having been assigned to Loan Group I.
"Loan Group II": The group of Mortgage Loans identified in the
Mortgage Loan Schedule as having been assigned to Loan Group II.
"Loan Group III": The group of Mortgage Loans identified in
the Mortgage Loan Schedule as having been assigned to Loan Group III.
"Loan-to-Value Ratio": As of any date of determination, the
fraction, expressed as a percentage, the numerator of which is the principal
balance of the related Mortgage Loan at such date and the denominator of which
is the Value of the related Mortgaged Property.
"Lockout Certificate Percentage": With respect to the Class
AF-6 Certificates and any Distribution Date, the percentage equal to the
aggregate Certificate Principal Balance of the Class AF-6 Certificates
immediately prior to such Distribution Date divided by the aggregate Certificate
Principal Balances of the Class AF Certificates immediately prior to such
Distribution Date.
"Lockout Distribution Percentage": With respect to the Class
AF-6 Certificates and any Distribution Date, the indicated percentage of the
Lockout Certificate Percentage for such Distribution Date:
DISTRIBUTION DATE OCCURRING IN PERCENTAGE
---------------------------------------- ----------------------------
October 2002 through September 2005 0%
October 2005 through September 2007 45%
October 2007 through September 2008 80%
October 2008 through September 2009 100%
October 2009 and thereafter 300%
25
"London Business Day": Any day on which banks in the City of
London are open and conducting transactions in United States dollars.
"Loss Mitigation Action Plan": The policies and procedures set
forth in Exhibit H hereto relating to the realization on delinquent Mortgage
Loans, which are incorporated by reference into this Agreement shall be deemed a
part hereof.
"Lost Note Affidavit": With respect to any Mortgage Loan as to
which the original Mortgage Note has been permanently lost, misplaced or
destroyed and has not been replaced, an affidavit from the Seller certifying
that the original Mortgage Note has been lost, misplaced or destroyed (together
with a copy of the related Mortgage Note) and indemnifying the Trust Fund
against any loss, cost or liability resulting from the failure to deliver the
original Mortgage Note in the form of Exhibit B hereto.
"Marker Rate": With respect to the Class CE Certificates and
any Distribution Date, a per annum rate equal to two (2) times the weighted
average of the REMIC II Remittance Rate for each of the REMIC II Regular
Interests, with the rate on each REMIC II Regular Interest (other than REMIC II
Regular Interest II-LTZZ and REMIC II Regular Interest II-LTS) subject to a cap
equal to the related Pass-Through Rate (in the case of REMIC II Regular Interest
II-LTAF1, REMIC II Regular Interest II-LTAF2, REMIC II Regular Interest
II-LTAF3, REMIC II Regular Interest II- LTAF4, REMIC II Regular Interest
II-LTAF5 and REMIC II Regular Interest II-LTAF6) or the related Formula Rate (in
the case of REMIC II Regular Interest II-LTAV1, REMIC II Regular Interest
II-LTAV2, REMIC II Regular Interest II-LTM1, REMIC II Regular Interest II-LTM2,
REMIC II Regular Interest II-LTM3 and REMIC II Regular Interest II-LTM4) for the
purpose of this calculation for such Distribution Date and with the rate on
REMIC II Regular Interest II-LTZZ subject to a cap of zero for the purpose of
this calculation: provided, however, that solely for this purpose, calculations
of the REMIC II Remittance Rate and the related caps with respect to REMIC II
Regular Interest II-LTAV1, REMIC II Regular Interest II-LTAV2, REMIC II Regular
Interest II-LTM1, REMIC II Regular Interest II-LTM2, REMIC II Regular Interest
II-LTM3 and REMIC I Regular Interest II-LTM4 shall be multiplied by a fraction,
the numerator of which is the actual number of days in the Interest Accrual
Period and the denominator of which is 30.
"Master Servicer": Ameriquest Mortgage Company or any
successor master servicer appointed as herein provided, in its capacity as
Master Servicer hereunder.
"Master Servicer Event of Default": One or more of the events
described in Section 7.01.
"Master Servicer Prepayment Charge Payment Amount": The
amounts payable by the Master Servicer in respect of any waived Prepayment
Charges pursuant to Section 2.03(b).
"Master Servicer Remittance Date": With respect to any
Distribution Date, 3:00 p.m. New York time on the last Business Day preceding
the related Distribution Date.
26
"Master Servicer Reporting Date": With respect to any
Distribution Date, 3:00 p.m. New York time on the 18th day of the calendar month
in which such Distribution Date occurs or, if such 18th day is not a Business
Day, the Business Day immediately succeeding such 18th day.
"Master Servicer Termination Test": With respect to any
Distribution Date, the Master Servicer Termination Test will be failed if the
Cumulative Loss Percentage exceeds 4.00%.
"Maximum Cap Rate": For any Distribution Date with respect to
the Class AV-1 Certificates, a per annum rate equal to the product of (x)(A) the
weighted average of the Expense Adjusted Maximum Mortgage Rates of the Group II
Mortgage Loans, weighted based on their Scheduled Principal Balances as of the
first day of the calendar month preceding the month in which the Distribution
Date occurs (after giving effect to unscheduled collections of principal
received during the related Prepayment Period) less (B) the REMIC II Remittance
Rate for REMIC II Regular Interest II-LTS2 for such Distribution Date multiplied
by a fraction, the numerator of which is the Notional Amount for REMIC II
Regular Interest II-LTS2 immediately prior to such Distribution Date and the
denominator of which is the aggregate outstanding Stated Principal Balance of
the Group II Mortgage Loans as of the first day of the month preceding the month
of such Distribution Date and (y) a fraction, the numerator of which is 30 and
the denominator of which is the actual number of days elapsed in the related
Interest Accrual Period.
For any Distribution Date with respect to the Class AV-2
Certificates, a per annum rate equal to the product of (x)(A) the weighted
average of the Expense Adjusted Maximum Mortgage Rates of the Group III Mortgage
Loans, weighted based on their Scheduled Principal Balances as of the first day
of the calendar month preceding the month in which the Distribution Date occurs
(after giving effect to unscheduled collections of principal received during the
related Prepayment Period) less (B) the REMIC II Remittance Rate for REMIC II
Regular Interest II-LTS3 for such Distribution Date multiplied by a fraction,
the numerator of which is the Notional Amount for REMIC II Regular Interest
II-LTS3 immediately prior to such Distribution Date and the denominator of which
is the aggregate outstanding Stated Principal Balance of the Group III Mortgage
Loans as of the first day of the month preceding the month of such Distribution
Date and (y) a fraction, the numerator of which is 30 and the denominator of
which is the actual number of days elapsed in the related Interest Accrual
Period.
For any Distribution Date with respect to the Mezzanine
Certificates, a per annum rate equal to the product of (x)(A) the weighted
average of the Expense Adjusted Maximum Mortgage Rates of the Mortgage Loans,
weighted based on their Scheduled Principal Balances as of the first day of the
calendar month preceding the month in which the Distribution Date occurs (after
giving effect to unscheduled collections of principal received during the
related Prepayment Period) less (B) the REMIC II Remittance Rate for REMIC II
Regular Interest II-LTS1 for such Distribution Date multiplied by a fraction,
the numerator of which is the Notional Amount for REMIC II Regular Interest
II-LTS1 immediately prior to such Distribution Date and the denominator of which
is the aggregate outstanding Stated Principal Balance of the Mortgage Loans as
of the first day of the month preceding the month of such Distribution Date, (C)
the REMIC II Remittance Rate for REMIC II Regular Interest II-LTS2 for such
Distribution Date multiplied by a fraction, the numerator of which is the
Notional Amount for REMIC II Regular Interest II-LTS2 immediately prior to such
Distribution Date and the denominator of which is the aggregate outstanding
Stated
27
Principal Balance of the Mortgage Loans as of the first day of the month
preceding the month of such Distribution Date and (D) the REMIC II Remittance
Rate for REMIC II Regular Interest II-LTS3 for such Distribution Date multiplied
by a fraction, the numerator of which is the Notional Amount for REMIC II
Regular Interest II-LTS3 immediately prior to such Distribution Date and the
denominator of which is the aggregate outstanding Stated Principal Balance of
the Mortgage Loans as of the first day of the month preceding the month of such
Distribution Date and (y) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days elapsed in the related
Interest Accrual Period.
"Maximum II-LTZZ Uncertificated Interest Deferral Amount":
With respect to any Distribution Date, the excess of (i) accrued interest at the
REMIC II Remittance Rate applicable to REMIC II Regular Interest II-LTZZ for
such Distribution Date on a balance equal to the Uncertificated Balance of REMIC
II Regular Interest II-LTZZ minus the REMIC II Overcollateralization Amount, in
each case for such Distribution Date, over (ii) Uncertificated Interest on REMIC
II Regular Interest II-LTAF1, REMIC II Regular Interest II-LTAF2, REMIC II
Regular Interest II-LTAF3, REMIC II Regular Interest II-LTAF4, REMIC II Regular
Interest II- LTAF5, REMIC II Regular Interest II-LTAF6, REMIC II Regular
Interest II-LTAV1, REMIC II Regular Interest II-LTAV2, REMIC II Regular Interest
II-LTM1, REMIC II Regular Interest II- LTM2, REMIC II Regular Interest II-LTM3
and REMIC Regular Interest II-LTM4 for such Distribution Date, with the rate on
each such REMIC II Regular Interest subject to a cap equal to the related
Pass-Through Rate (in the case of REMIC II Regular Interest II-LTAF1, REMIC II
Regular Interest II-LTAF2, REMIC II Regular Interest II-LTAF3, REMIC II Regular
Interest II-LTAF4, REMIC II Regular Interest II-LTAF5 and REMIC II Regular
Interest II-LTAF6) or the related Formula Rate (in the case of REMIC II Regular
Interest II-LTAV1, REMIC II Regular Interest II- LTAV2, REMIC II Regular
Interest II-LTM1, REMIC II Regular Interest II-LTM2, REMIC II Regular Interest
II-LTM3 and REMIC II Regular Interest II-LTM4), provided, however, that solely
for this purpose, calculations of the REMIC II Remittance Rate and the related
caps with respect to REMIC II Regular Interest II-LTAV1, REMIC II Regular
Interest II-LTAV2, REMIC II Regular Interest II-LTM1, REMIC II Regular Interest
II-LTM2, REMIC II Regular Interest II-LTM3 and REMIC I Regular Interest II-LTM4
shall be multiplied by a fraction, the numerator of which is the actual number
of days in the Interest Accrual Period and the denominator of which is 30.
"Maximum Mortgage Rate": With respect to each Group II
Mortgage Loan and Group III Mortgage Loan, the percentage set forth in the
related Mortgage Note as the maximum Mortgage Rate thereunder.
"Mezzanine Certificate": Any Class M-1 Certificates, Class M-2
Certificates, Class M-3 Certificates or Class M-4 Certificates.
"Minimum Mortgage Rate": With respect to each Group II
Mortgage Loan and Group III Mortgage Loan, the percentage set forth in the
related Mortgage Note as the minimum Mortgage Rate thereunder.
"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
28
Deficient Valuation and/or Debt Service Reduction with respect to such Mortgage
Loan and (ii) 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 Master Servicer pursuant to Section 3.02;
and (c) on the assumption that all other amounts, if any, due under such
Mortgage Loan are paid when due.
"Moody's": Xxxxx'x Investors Service, 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
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
"Mortgage Loan": Each mortgage loan transferred and assigned
to the Trustee pursuant to Section 2.01 or Section 2.03(d) of this Agreement, as
held from time to time held as a part of REMIC I, the Mortgage Loans so held
being identified in the Mortgage Loan Schedule.
"Mortgage Loan Purchase Agreement": The agreement between the
Originator and the Depositor, regarding the transfer of the Mortgage Loans by
the Originator to or at the direction of the Depositor, substantially in the
form of Exhibit D annexed hereto.
"Mortgage Loan Schedule": As of any date, the list of Mortgage
Loans included in REMIC I on such date, separately identifying the Group I
Mortgage Loans, the Group II Mortgage Loans and the Group III Mortgage Loans,
attached hereto as Schedule 1. The Mortgage Loan Schedule shall set forth the
following information with respect to each Mortgage Loan:
(1) the Originator's Mortgage Loan identifying number;
(2) the Mortgagor's name;
(3) the street address of the Mortgaged Property including the state and zip code;
(4) a code indicating whether the Mortgaged Property is owner-occupied;
(5) the type of Residential Dwelling constituting the Mortgaged Property;
(6) the original months to maturity;
(7) the Loan-to-Value Ratio at origination;
(8) the Mortgage Rate in effect immediately following the Cut-off Date;
(9) the date on which the first Monthly Payment was due on the Mortgage Loan;
29
(10) the stated maturity date;
(11) the amount of the Monthly Payment due on the first Due Date after the Cut-
off Date;
(12) the last Due Date on which a Monthly Payment was actually applied to the
unpaid Stated Principal Balance;
(13) the original principal amount of the Mortgage Loan;
(14) the Scheduled Principal Balance of the Mortgage Loan as of the close of
business on the Cut-off Date;
(15) with respect to each Group II Mortgage Loan and Group III Mortgage Loan,
the Gross Margin;
(16) a code indicating the purpose of the Mortgage Loan (I.E., purchase refinance
debt consolidation cashout, or refinance debt consolidation no cashout);
(17) with respect to each Group II Mortgage Loan and Group III Mortgage Loan,
the Maximum Mortgage Rate;
(18) with respect to each Group II Mortgage Loan and Group III Mortgage Loan,
the Minimum Mortgage Rate;
(19) the Mortgage Rate at origination;
(20) with respect to each Group II Mortgage Loan and Group III
Mortgage Loan, the Periodic Rate Cap and the maximum first Adjustment
Date Mortgage Rate adjustment;
(21) a code indicating the documentation program (I.E., Full Documentation,
Limited Documentation or Stated Income);
(22) with respect to each Group II Mortgage Loan and Group III
Mortgage Loan, the first Adjustment Date immediately following the
Cut-off Date;
(23) the risk grade;
(24) the Value of the Mortgaged Property;
(25) the sale price of the Mortgaged Property, if applicable; and
(26) the FICO score of the primary Mortgagor.
The Mortgage Loan Schedule shall set forth the following
information with respect to the Mortgage Loans in the aggregate as of the
Cut-off Date: (1) the number of Mortgage Loans;
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(2) the current principal balance of the Mortgage Loans; (3) the weighted
average Mortgage Rate of the Mortgage Loans; and (4) the weighted average
maturity of the Mortgage Loans. The Mortgage Loan Schedule shall be amended from
time to time by the Depositor in accordance with the provisions of this
Agreement. With respect to any Qualified Substitute Mortgage Loan, the Cut-off
Date shall refer to the related Cut-off Date for such Mortgage Loan, determined
in accordance with the definition of Cut-off Date herein.
"Mortgage Note": The original executed note or other evidence
of the indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Pool": The pool of Mortgage Loans, identified on
Schedule 1 from time to time, and any REO Properties acquired in respect
thereof.
"Mortgage Rate": With respect to each Mortgage Loan, the
annual rate at which interest accrues on such Mortgage Loan from time to time in
accordance with the provisions of the related Mortgage Note, which rate (i) with
respect to each Group I Mortgage Loan shall remain constant at the rate set
forth in the Mortgage Loan Schedule as the Mortgage Rate in effect immediately
following the Cut-off Date and (ii) with respect to each Group II Mortgage Loan
and Group III Mortgage Loan, (A) as of any date of determination until the first
Adjustment Date following the Cut-off Date shall be the rate set forth in the
Mortgage Loan Schedule as the Mortgage Rate in effect immediately following the
Cut-off Date and (B) as of any date of determination thereafter shall be the
rate as adjusted on the most recent Adjustment Date equal to the sum, rounded to
the nearest 0.125% as provided in the Mortgage Note, of the Index, as most
recently available as of a date prior to the Adjustment Date as set forth in the
related Mortgage Note, plus the related Gross Margin; provided that the Mortgage
Rate on such Group II Mortgage Loan or Group III Mortgage Loan on any Adjustment
Date shall never be more than the lesser of (i) the sum of the Mortgage Rate in
effect immediately prior to the Adjustment Date plus the related Periodic Rate
Cap, if any, and (ii) the related Maximum Mortgage Rate, and shall never be less
than the greater of (i) the Mortgage Rate in effect immediately prior to the
Adjustment Date less the Periodic Rate Cap, if any, and (ii) the related Minimum
Mortgage Rate. With respect to each Mortgage Loan that becomes an REO Property,
as of any date of determination, the annual rate determined in accordance with
the immediately preceding sentence as of the date such Mortgage Loan became an
REO Property.
"Mortgaged Property": The underlying property identified in
the related Mortgage as securing a Mortgage Loan, including any REO Property,
consisting of an Estate in Real Property improved by a Residential Dwelling
(excluding for purposes of construing the representations or warranties made in
the Mortgage Loan Purchase Agreement, any improvements thereupon not considered
by the appraiser in determining the value of such Mortgaged Property).
"Mortgagor": The obligor on a Mortgage Note.
"Net Monthly Excess Cashflow": With respect to any
Distribution Date, the sum of (i) any Overcollateralization Reduction Amount for
such Distribution Date and (ii) the excess of (x) the Available Funds for such
Distribution Date over (y) the sum for such Distribution Date of (A) the Senior
Interest Distribution Amount payable to the holders of the Class A Certificates
and the Class
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S Certificates and the Interest Distribution Amounts payable to the Mezzanine
Certificates and (B) the Principal Remittance Amount.
"Net Mortgage Rate": With respect to any Mortgage Loan (or the
related REO Property) as of any date of determination, a per annum rate of
interest equal to the then applicable Mortgage Rate for such Mortgage Loan minus
the Servicing Fee Rate.
"Net WAC Pass-Through Rate": With respect to the Class AF
Certificates and any Distribution Date, a per annum rate equal to (A) the
weighted average of the Expense Adjusted Net Mortgage Rates of the Group I
Mortgage Loans weighted on the basis of the outstanding Stated Principal
Balances of the Group I Mortgage Loans as of the first day of the month
preceding the month of such Distribution Date less (B) the REMIC II Remittance
Rate for REMIC II Regular Interest II-LTS1 for such Distribution Date multiplied
by a fraction, the numerator of which is the Notional Amount for REMIC II
Regular Interest II-LTS1 immediately prior to such Distribution Date and the
denominator of which is the aggregate outstanding Stated Principal Balance of
the Group I Mortgage Loans as of the first day of the month preceding the month
of such Distribution Date. For federal income tax purposes, the economic
equivalent of such rate shall be expressed as the REMIC II Remittance Rate of
the REMIC II Regular Interest for which such Class of Certificates is the
Corresponding Certificate.
With respect to the Class AV-1 Certificates and any
Distribution Date, a per annum rate equal to the product of (x)(A) the weighted
average of the Expense Adjusted Net Mortgage Rates of the Group II Mortgage
Loans weighted on the basis of the outstanding Stated Principal Balances of the
Group II Mortgage Loans as of the first day of the month preceding the month of
such Distribution Date less (B) the REMIC II Remittance Rate for REMIC II
Regular Interest II- LTS2 for such Distribution Date multiplied by a fraction,
the numerator of which is the Notional Amount for REMIC II Regular Interest
II-LTS2 immediately prior to such Distribution Date and the denominator of which
is the aggregate outstanding Stated Principal Balance of the Group II Mortgage
Loans as of the first day of the month preceding the month of such Distribution
Date and (y) a fraction, the numerator of which is 30 and the denominator of
which is the actual number of days elapsed in the related Interest Accrual
Period. For federal income tax purposes, the economic equivalent of such rate
shall be expressed as the REMIC II Remittance Rate of the REMIC II Regular
Interest for which such Class of Certificates is the Corresponding Certificate.
With respect to the Class AV-2 Certificates and any
Distribution Date, a per annum rate equal to the product of (x)(A) the weighted
average of the Expense Adjusted Net Mortgage Rates of the Group III Mortgage
Loans weighted on the basis of the outstanding Stated Principal Balances of the
Group III Mortgage Loans as of the first day of the month preceding the month of
such Distribution Date less (B) the REMIC II Remittance Rate for REMIC II
Regular Interest II- LTS3 for such Distribution Date multiplied by a fraction,
the numerator of which is the Notional Amount for REMIC II Regular Interest
II-LTS3 immediately prior to such Distribution Date and the denominator of which
is the aggregate outstanding Stated Principal Balance of the Group III Mortgage
Loans as of the first day of the month preceding the month of such Distribution
Date and (y) a fraction, the numerator of which is 30 and the denominator of
which is the actual number of days elapsed in the related Interest Accrual
Period. For federal income tax purposes, the economic
32
equivalent of such rate shall be expressed as the REMIC II Remittance Rate of
the REMIC II Regular Interest for which such Class of Certificates is the
Corresponding Certificate.
With respect to the Mezzanine Certificates and any
Distribution Date, a per annum rate equal to the product of (x)(A) the weighted
average of the Expense Adjusted Net Mortgage Rates of the Mortgage Loans
weighted on the basis of the outstanding Stated Principal Balances of the
Mortgage Loans as of the first day of the month preceding the month of such
Distribution Date less (B) the REMIC II Remittance Rate for REMIC II Regular
Interest II-LTS1 for such Distribution Date multiplied by a fraction, the
numerator of which is the Notional Amount for REMIC II Regular Interest II-LTS1
immediately prior to such Distribution Date and the denominator of which is the
aggregate outstanding Stated Principal Balance of the Mortgage Loans as of the
first day of the month preceding the month of such Distribution Date, (C) the
REMIC II Remittance Rate for REMIC II Regular Interest II-LTS2 for such
Distribution Date multiplied by a fraction, the numerator of which is the
Notional Amount for REMIC II Regular Interest II-LTS2 immediately prior to such
Distribution Date and the denominator of which is the aggregate outstanding
Stated Principal Balance of the Mortgage Loans as of the first day of the month
preceding the month of such Distribution Date and (D) the REMIC II Remittance
Rate for REMIC II Regular Interest II-LTS3 for such Distribution Date multiplied
by a fraction, the numerator of which is the Notional Amount for REMIC II
Regular Interest II-LTS3 immediately prior to such Distribution Date and the
denominator of which is the aggregate outstanding Stated Principal Balance of
the Mortgage Loans as of the first day of the month preceding the month of such
Distribution Date and (y) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days elapsed in the related
Interest Accrual Period. For federal income tax purposes, the economic
equivalent of such rate shall be expressed as the REMIC II Remittance Rate of
the REMIC II Regular Interest for which such Class of Certificates is the
Corresponding Certificate.
With respect to REMIC II Regular Interest II-LTS1 and any
Distribution Date, a per annum rate equal to the weighted average of the Expense
Adjusted Net Mortgage Rates of the Group I Mortgage Loans weighted on the basis
of the outstanding Stated Principal Balances of the Group I Mortgage Loans as of
the first day of the month preceding the month of such Distribution Date.
With respect to REMIC II Regular Interest II-LTS2 and any
Distribution Date, a per annum rate equal to the weighted average of the Expense
Adjusted Net Mortgage Rates of the Group II Mortgage Loans weighted on the basis
of the outstanding Stated Principal Balances of the Group II Mortgage Loans as
of the first day of the month preceding the month of such Distribution Date.
With respect to REMIC II Regular Interest II-LTS3 and any
Distribution Date, a per annum rate equal to the weighted average of the Expense
Adjusted Net Mortgage Rates of the Group III Mortgage Loans weighted on the
basis of the outstanding Stated Principal Balances of the Group III Mortgage
Loans as of the first day of the month preceding the month of such Distribution
Date.
"Net WAC Rate Carryover Amount": With respect to the Class A
Certificates, the Mezzanine Certificates and the Class S Certificates and any
Distribution Date, the sum of the excess of (i) the amount of interest such
Certificates would have accrued on such Distribution Date had such Pass-Through
Rate been calculated at the Formula Rate (in the case of the Class AV
Certificates and the Mezzanine Certificates), or the applicable fixed rate (in
the case of the Class AF Certificates and
33
the Class S Certificates), over (ii) the amount of interest such Class of
Certificates accrued at the related Net WAC Pass-Through Rate for such
Distribution Date and (B) the related Net WAC Rate Carryover Amount for the
previous Distribution Date not previously paid, together with interest thereon
at a rate equal to the Formula Rate (in the case of the Class AV Certificates
and the Mezzanine Certificates) or the applicable fixed rate (in the case of the
Class AF Certificates and the Class S Certificates), as the case may be, in each
case for the Interest Accrual Period for the current Distribution Date.
"Net WAC Rate Carryover Reserve Account": The Net WAC Rate
Carryover Reserve Account established and maintained pursuant to Section 4.07.
"New Lease": Any lease of REO Property entered into on behalf
of REMIC I, including any lease renewed or extended on behalf of REMIC I, if
REMIC I has the right to renegotiate the terms of such lease.
"NIMS Insurer": Any insurer that is guaranteeing certain
payments under notes issued by a trust, the principal assets of which include
all or a portion of the Class CE Certificates, the Class P Certificates and/or
the Class R Certificates.
"Nonrecoverable Advance": Any 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 the Master Servicer, will not or, in the case of
a proposed Advance, would not be ultimately recoverable from related Late
Collections, Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan or
REO Property as provided herein.
"Nonrecoverable Servicing Advance": Any 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 the Master Servicer, will
not or, in the case of a proposed Servicing Advance, would not be ultimately
recoverable from related Late Collections, Insurance Proceeds or Liquidation
Proceeds on such Mortgage Loan or REO Property as provided herein.
"Non-United States Person": Any Person other than a United
States Person.
"Notional Amount": With respect to the Class CE Certificates
and any Distribution Date, the aggregate Uncertificated Balances of the REMIC II
Regular Interests immediately prior to such Distribution Date. With respect to
the Class S Certificates and the 1st Distribution Date through the 8th
Distribution Date, an amount equal to the Uncertificated Notional Amount for the
REMIC I Regular Interest I-LTS1A, REMIC I Regular Interest I-LTS2A and REMIC I
Regular Interest I- LTS3A, immediately prior to such Distribution Date. With
respect to the Class S Certificates and the 9th Distribution Date through the
16th Distribution Date, an amount equal to the Uncertificated Notional Amount
for the REMIC I Regular Interest I-LTS1B, REMIC I Regular Interest I-LTS2B and
REMIC I Regular Interest I-LS3B, immediately prior to such Distribution Date.
With respect to the Class S Certificates and the 17th Distribution Date through
the 24th Distribution Date, an amount equal to the Uncertificated Notional
Amount for the REMIC I Regular Interest I-LTS1C, REMIC I Regular Interest
I-LTS2C and REMIC I Regular Interest I-LS3C, immediately prior to such
Distribution Date. With respect to the Class S Certificates and the 25th
Distribution Date through
34
the 30th Distribution Date, an amount equal to the Uncertificated Notional
Amount for the REMIC I Regular Interest I-LTS1C, REMIC I Regular Interest
I-LTS2D and REMIC I Regular Interest I- LS3D, immediately prior to such
Distribution Date.
"Officers' Certificate": With respect to the Depositor, a
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President or a vice president (however denominated), and by the Treasurer,
the Secretary, or one of the assistant treasurers or assistant secretaries. With
respect to the Master Servicer, any officer who is authorized to act for the
Master Servicer in matters relating to this Agreement, and whose action is
binding upon the Master Servicer, initially including those individuals whose
names appear on the list of authorized officers delivered at the closing.
"Offered Certificate": Any one of the Class A Certificates,
the Mezzanine Certificates and the Class S Certificates, issued under this
Agreement.
"One-Month LIBOR": With respect to the Class AV Certificates,
the Mezzanine Certificates, REMIC II Regular Interest II-LTAV1, REMIC II Regular
Interest II-LTAV2, REMIC II Regular Interest II-LTM1, REMIC II Regular Interest
II-LTM2, REMIC II Regular Interest II- LTM3 and REMIC II Regular Interest
II-LTM4 and any Interest Accrual Period therefor, the rate determined by the
Trust Administrator on the related Interest Determination Date on the basis of
the offered rate for one-month U.S. dollar deposits, as such rate appears on
Telerate Page 3750 as of 11:00 a.m. (London time) on such Interest Determination
Date; provided that if such rate does not appear on Telerate Page 3750, the rate
for such date will be determined on the basis of the offered rates of the
Reference Banks for one-month U.S. dollar deposits, as of 11:00 a.m. (London
time) on such Interest Determination Date. In such event, the Trust
Administrator will request the principal London office of each of the Reference
Banks to provide a quotation of its rate. If on such Interest Determination
Date, two or more Reference Banks provide such offered quotations, One-Month
LIBOR for the related Interest Accrual Period shall be the arithmetic mean of
such offered quotations (rounded upwards if necessary to the nearest whole
multiple of 1/16%). If on such Interest Determination Date, fewer than two
Reference Banks provide such offered quotations, One-Month LIBOR for the related
Interest Accrual Period shall be the higher of (i) LIBOR as determined on the
previous Interest Determination Date and (ii) the Reserve Interest Rate.
Notwithstanding the foregoing, if, under the priorities described above, LIBOR
for an Interest Determination Date would be based on LIBOR for the previous
Interest Determination Date for the third consecutive Interest Determination
Date, the Trust Administrator shall select, after consultation with the NIMS
Insurer, an alternative comparable index (over which the Trust Administrator has
no control), used for determining one-month Eurodollar lending rates that is
calculated and published (or otherwise made available) by an independent party.
"Opinion of Counsel": A written opinion of counsel, who may,
without limitation, be salaried counsel for the Depositor or the Master Servicer
acceptable to the Trustee, if such opinion is delivered to the Trustee, or
acceptable to the Trust Administrator, if such opinion is delivered to the Trust
Administrator, except that any opinion of counsel relating to (a) the
qualification of any Trust REMIC as a REMIC or (b) compliance with the REMIC
Provisions must be an opinion of Independent counsel.
35
"Originator": Ameriquest Mortgage Company, or its successor in
interest, in its capacity as originator under the Mortgage Loan Purchase
Agreement.
"Overcollateralized Amount": With respect to any Distribution
Date, the excess, if any, of (a) the aggregate Stated Principal Balances of the
Mortgage Loans and REO Properties immediately following such Distribution Date
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) over (b) the sum of the
aggregate Certificate Principal Balances of the Class A Certificates, the
Mezzanine Certificates and the Class P Certificates as of such Distribution Date
(after giving effect to distributions to be made on such Distribution Date).
"Overcollateralization Deficiency Amount": With respect to any
Distribution Date, the excess, if any, of (a) the Overcollateralization Target
Amount applicable to such Distribution Date over (b) the Overcollateralized
Amount applicable to such Distribution Date (calculated for this purpose only,
after taking into account the distributions to be made of the Principal
Remittance Amount on such Distribution Date).
"Overcollateralization Increase Amount": With respect to any
Distribution Date, the lesser of (a) the Overcollateralization Deficiency Amount
as of such Distribution Date (after taking into account the payment of the Group
I Principal Distribution Amount, the Group II Principal Distribution Amount and
the Group III Principal Distribution Amount on such Distribution Date, exclusive
of the payment of any Overcollateralization Increase Amount) and (b) the amount
of Accrued Certificate Interest payable on the Class CE Certificates on such
Distribution Date as reduced by Realized Losses allocated thereto with respect
to such Distribution Date pursuant to Section 4.04.
"Overcollateralization Reduction Amount": With respect to any
Distribution Date, an amount equal to the lesser of (a) the Excess
Overcollateralized Amount and (b) the Principal Remittance Amount.
"Overcollateralization Target Amount": With respect to any
Distribution Date (i) prior to the Stepdown Date, $6,037,370.07, (ii) on or
after the Stepdown Date provided a Trigger Event is not in effect, the greater
of (x) 1.50% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) and (y) $4,024,913.38, (iii) on or after the Stepdown
Date and if a Trigger Event is in effect, the Overcollateralization Target
Amount for the immediately preceding Distribution Date.
"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.
36
"Pass-Through Rate": With respect to the Class AF-1
Certificates and any Distribution Date, the lesser of (x) 2.54% per annum and
(y) the Pool Net WAC Pass-Through Rate for such class for such Distribution
Date.
With respect to the Class AF-2 Certificates and any
Distribution Date, the lesser of (x) 3.07% per annum and (y) the Pool WAC
Pass-Through Rate for such class for such Distribution Date.
With respect to the Class AF-3 Certificates and any
Distribution Date, the lesser of (x) 3.70% per annum and (y) the Pool WAC
Pass-Through Rate for such class for such Distribution Date.
With respect to the Class AF-4 Certificates and any
Distribution Date, the lesser of (x) 4.64% per annum and (y) the Pool Net WAC
Pass-Through Rate for such class for such Distribution Date.
With respect to the Class AF-5 Certificates and any
Distribution Date, the lesser of (x) 5.47% per annum in the case of each
Distribution Date through and including the Distribution Date on which the
aggregate principal balance of the Mortgage Loans (and properties acquired in
respect thereof) remaining in the Trust Fund is reduced to less than 10% of the
aggregate principal balance of the Initial Mortgage Loans as of the Cut-off
Date, or 5.97% per annum, in the case of any Distribution Date thereafter and
(y) the Pool Net WAC Pass-Through Rate for such class for such Distribution
Date.
With respect to the Class AF-6 Certificates and any
Distribution Date, the lesser of (x) 5.03% per annum in the case of each
Distribution Date through and including the Distribution Date on which the
aggregate principal balance of the Mortgage Loans (and properties acquired in
respect thereof) remaining in the Trust Fund is reduced to less than 10% of the
aggregate principal balance of the Initial Mortgage Loans as of the Cut-off
Date, or 5.53% per annum, in the case of any Distribution Date thereafter and
(y) the Pool Net WAC Pass-Through Rate for such class for such Distribution
Date.
With respect to the Class AV Certificates and the Mezzanine
Certificates and any Distribution Date, the lesser of (x) the related Formula
Rate for such Distribution Date and (y) the Pool Net WAC Pass-Through Rate for
such Distribution Date.
With respect to REMIC II Regular Interest II-LTS1, REMIC II
Regular Interest II- LTS2 and REMIC II Regular Interest II-LTS3 and any
Distribution Date, the lesser of (x) 6.00% per annum for the 1st Distribution
Date through the 30th Distribution Date and (y) the related Net WAC Pass-Through
Rate for such Distribution Date.
With respect to the Class CE Certificates and any Distribution
Date, a rate per annum equal to the percentage equivalent of a fraction, the
numerator of which is the sum of the amounts calculated pursuant to clauses (A)
through (O) below, and the denominator of which is the Uncertificated Balance of
the REMIC II Regular Interests. For purposes of calculating the
37
Pass-Through Rate for the Class CE Certificates, the numerator is equal to the
sum of the following components:
(A) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAA minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTAA;
(B) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAF1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTAF1;
(C) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAF2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTAF2;
(D) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAF3 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTAF3;
(E) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAF4 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTAF4;
(F) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAF5 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTAF5;
(G) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAF6 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTAF6;
(H) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAV1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTAV1;
(I) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAV2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTAV2;
(J) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTM1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTM1;
(K) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTM2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTM2;
38
(L) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTM3 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTM3;
(M) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTM4 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTM4;
(N) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTZZ minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTZZ; and
(O) 100% of the interest on REMIC II Regular Interest II-LTP
"Percentage Interest": With respect to any Class of
Certificates (other than the Residual Certificates), the undivided percentage
ownership in such Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the initial Certificate Principal Balance
represented by such Certificate and the denominator of which is the aggregate
initial Certificate Principal Balance of all of the Certificates of such Class.
The Class A Certificates and the Mezzanine Certificates are issuable only in
minimum Percentage Interests corresponding to minimum initial Certificate
Principal Balances of $25,000 and integral multiples of $1.00 in excess thereof.
The Class S Certificates are issuable only in minimum Percentage Interests
corresponding to minimum initial Notional Amounts of $25,000 and integral
multiples of $1.00 in excess thereof. The Class P Certificates are issuable only
in minimum Percentage Interests corresponding to minimum initial Certificate
Principal Balances of $20 and integral multiples thereof. The Class CE
Certificates are issuable only in minimum Percentage Interests corresponding to
minimum initial Certificate Principal Balances of $10,000 and integral multiples
of $1.00 in excess thereof; provided, however, that a single Certificate of such
Class of Certificates may be issued having a Percentage Interest corresponding
to the remainder of the aggregate initial Certificate Principal Balance of such
Class or to an otherwise authorized denomination for such Class plus such
remainder. With respect to any Residual Certificate, the undivided percentage
ownership in such Class evidenced by such Certificate, as set forth on the face
of such Certificate. The Residual Certificates are issuable in Percentage
Interests of 20% and multiples thereof.
"Periodic Rate Cap": With respect to each Group II Mortgage
Loan and Group III Mortgage Loan and any Adjustment Date therefor, the fixed
percentage set forth in the related Mortgage Note, which is the maximum amount
by which the Mortgage Rate for such Mortgage Loan may increase or decrease
(without regard to the Maximum Mortgage Rate or the Minimum Mortgage Rate) on
such Adjustment Date from the Mortgage Rate in effect immediately prior to such
Adjustment Date.
"Permitted Investments": Any one or more of the following
obligations or securities acquired at a purchase price of not greater than par,
regardless of whether issued by the Depositor, the Master Servicer, the NIMS
Insurer, the Trustee, the Trust Administrator or any of their respective
Affiliates:
39
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of,
or bankers' acceptances (which shall each have an original maturity of
not more than 90 days and, in the case of bankers' acceptances, shall
in no event have an original maturity of more than 365 days or a
remaining maturity of more than 30 days) denominated in United States
dollars and issued by, any Depository Institution;
(iii) repurchase obligations with respect to any security
described in clause (i) above entered into with a Depository
Institution (acting as principal);
(iv) securities bearing interest or sold at a discount that
are issued by any corporation incorporated under the laws of the United
States of America or any state thereof and that are rated by each
Rating Agency that rates such securities in its highest long-term
unsecured rating categories at the time of such investment or
contractual commitment providing for such investment;
(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 30 days after the date of
acquisition thereof) that is rated by each Rating Agency that rates
such securities in its highest short-term unsecured debt rating
available at the time of such investment;
(vi) units of money market funds, including money market funds
advised by the Trust Administrator or an Affiliate thereof, that have
been rated "Aaa" by Moody's, "AAA" by Fitch and "AAA" by S & P; and
(viii) if previously confirmed in writing to the Trustee and
the Trust Administrator and consented to by the NIMS Insurer, any other
demand, money market or time deposit, or any other obligation, security
or investment, as may be acceptable to the Rating Agencies as a
permitted investment of funds backing securities having ratings
equivalent to its highest initial rating of the Class A Certificates;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
"Permitted Transferee": Any Transferee of a Residual
Certificate other than a Disqualified Organization or Non-United States Person.
40
"Person": Any individual, corporation, partnership, joint
venture, association, joint- stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Plan": Any employee benefit plan or certain other retirement
plans and arrangements, including individual retirement accounts and annuities,
Xxxxx plans and bank collective investment funds and insurance company general
or separate accounts in which such plans, accounts or arrangements are invested,
that are subject to ERISA and Section 4975 of the Code.
"Pool Net WAC Pass-Through Rate": A per annum rate (not less
than zero) equal to the weighted average of:
(a) the REMIC I Remittance Rate with respect to REMIC I
Regular Interest I-LT1 for such Distribution Date weighted on the basis
of the Uncertificated Balance of REMIC I Regular Interest I-LT1;
(b) the REMIC I Remittance Rate with respect to REMIC I
Regular Interest I-LT2 for such Distribution Date weighted on the basis
of the Uncertificated Balance of REMIC I Regular Interest I-LT2;
(c) the REMIC I Remittance Rate with respect to REMIC I
Regular Interest I-LT3 for such Distribution Date weighted on the basis
of the Uncertificated Balance of REMIC I Regular Interest I-LT3;
(d) the REMIC I Remittance Rate with respect to REMIC I
Regular Interest I- LTP for such Distribution Date weighted on the
basis of the Uncertificated Balance of REMIC I Regular Interest I-LTP.
"Prepayment Assumption": As defined in the Prospectus
Supplement.
"Prepayment Charge": With respect to any Prepayment Period,
any prepayment premium, penalty or charge payable by the a Mortgagor in
connection with any Principal Prepayment pursuant to the terms of the related
Mortgage Note as from time to time held as a part of the Trust Fund, the
Prepayment Charges so held being identified in the Prepayment Charge Schedule
(other than any Master Servicer Prepayment Charge Payment Amount).
"Prepayment Charge Schedule": As of any date, the list of
Prepayment Charges included in the Trust Fund on such date, attached hereto as
Schedule 2 (including the prepayment charge summary attached thereto). The
Prepayment Charge Schedule shall set forth the following information with
respect to each Prepayment Charge:
(i) the Master Servicer's Mortgage Loan identifying
number;
(ii) a code indicating the type of Prepayment Charge;
41
(iii) the date on which the first Monthly Payment was due
on the related Mortgage Loan;
(iv) the term of the Prepayment Charge;
(v) the original principal balance of the related
Mortgage Loan;
(vi) the principal balance of the related Mortgage Loan as
of the Cut-off Date;
The Prepayment Charge Schedule shall be amended from time to
time by the Master Servicer in accordance with the provisions of this Agreement
and a copy of such amended Prepayment Charge Schedule shall be furnished by the
Master Servicer to the NIMS Insurer.
"Prepayment Interest Excess": With respect to any Distribution
Date, for each Mortgage Loan that was the subject of a Principal Prepayment in
full during the portion of the related Prepayment Period occurring between the
first day and the Determination Date of the calendar month in which such
Distribution Date occurs, an amount equal to interest (to the extent received)
at the applicable Net Mortgage Rate on the amount of such Principal Prepayment
for the number of days commencing on the first day of the calendar month in
which such Distribution Date occurs and ending on the last date through which
interest is collected from the related Mortgagor.
"Prepayment Interest Shortfall": With respect to any
Distribution Date, for each Mortgage Loan that was the subject of a Principal
Prepayment in full during the portion of the related Prepayment Period occurring
between the first day of the related Prepayment Period and the last day of the
calendar month preceding the month in which such Distribution Date occurs, an
amount equal to interest at the applicable Net Mortgage Rate on the amount of
such Principal Prepayment for the number of days commencing on the day after the
last date on which interest is collected from the related Mortgagor and ending
on the last day of the calendar month preceding such Distribution Date. The
obligations of the Master Servicer in respect of any Prepayment Interest
Shortfall are set forth in Section 4.03(e).
"Prepayment Period": With respect to any Distribution Date,
the period commencing on the day after the Determination Date in the calendar
month preceding the calendar month in which such Distribution Date occurs (or,
in the case of the first Distribution Date, commencing on September 1, 2002) and
ending on the Determination Date of the calendar month in which such
Distribution Date occurs.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing the full
amount of scheduled interest due on any Due Date in any month or months
subsequent to the month of prepayment.
"Principal Remittance Amount": With respect to any
Distribution Date, the sum of (i) the Group I Principal Remittance Amount, (ii)
the Group II Principal Remittance Amount and (iii) the Group III Principal
Remittance Amount.
42
"Prospectus Supplement": The Prospectus Supplement, dated
August 29, 2002, relating to the public offering of the Offered Certificates.
"PTCE": A Prohibited Transaction Class Exemption.
"Purchase Price": With respect to any Mortgage Loan or REO
Property to be purchased pursuant to or as contemplated by Section 2.03, Section
3.16(a) or Section 9.01, and as confirmed by an Officers' Certificate from the
Master Servicer to the Trustee and the Trust Administrator, 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 9.01), (ii) in the case of
(x) a Mortgage Loan, accrued interest on such Stated Principal Balance at the
applicable Net Mortgage 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 Master Servicer, which payment or advance had as of the date of purchase
been distributed pursuant to Section 4.01, through the end of the calendar month
in which the purchase is to be effected and (y) an REO Property, the sum of (1)
accrued interest on such Stated Principal Balance at the applicable Net Mortgage
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 Master Servicer
through the end of the calendar month immediately preceding the calendar month
in which such REO Property was acquired, plus (2) REO Imputed Interest for such
REO Property for each calendar month commencing with the calendar month in which
such REO Property was acquired and ending with the calendar month in which such
purchase is to be effected, net of the total of all net rental income, Insurance
Proceeds, Liquidation Proceeds and Advances that as of the date of purchase had
been distributed as or to cover REO Imputed Interest pursuant to Section 4.01,
(iii) any unreimbursed Servicing Advances and Advances and any unpaid Servicing
Fees allocable to such Mortgage Loan or REO Property, (iv) any amounts
previously withdrawn from the Collection Account in respect of such Mortgage
Loan or REO Property pursuant to Sections 3.05(a)(v) and 3.16(a), and (v) in the
case of a Mortgage Loan required to be purchased pursuant to Section 2.03,
expenses reasonably incurred or to be incurred by the Master Servicer, the NIMS
Insurer, the Trustee or the Trust Administrator in respect of the breach or
defect giving rise to the purchase obligation.
"Qualified Substitute Mortgage Loan": A mortgage loan
substituted for a Deleted Mortgage Loan pursuant to the terms of this Agreement
which must, on the date of such substitution, (i) have 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 Scheduled
Principal Balance of the Deleted Mortgage Loan as of the Due Date in the
calendar month during which the substitution occurs, (ii) have a Mortgage Rate
not less than (and not more than one percentage point in excess of) the Mortgage
Rate of the Deleted Mortgage Loan, (iii) with respect to any Group II Mortgage
Loan or Group III Mortgage Loan, have a Maximum Mortgage Rate not less than the
Maximum Mortgage Rate on the Deleted Mortgage Loan, (iv) with respect to any
Group II Mortgage Loan or Group III Mortgage Loan, have a Minimum Mortgage Rate
not less than the Minimum Mortgage Rate of the Deleted Mortgage Loan, (v) with
respect to any Group II Mortgage Loan or Group III Mortgage Loan, have a Gross
Margin equal to the Gross Margin of the Deleted Mortgage Loan, (vi) with respect
to any Group II Mortgage Loan or Group III Mortgage Loan, have a next Adjustment
Date not more than two months later than the next Adjustment Date on the Deleted
Mortgage Loan, (vii) have a remaining term to maturity not greater than (and not
more than one year
43
less than) that of the Deleted Mortgage Loan, (viii) have the same Due Date as
the Due Date on the Deleted Mortgage Loan, (ix) have a Loan-to-Value Ratio as of
the date of substitution equal to or lower than the Loan-to-Value Ratio of the
Deleted Mortgage Loan as of such date, (x) have a risk grading determined by the
Originator at least equal to the risk grading assigned on the Deleted Mortgage
Loan, (xi) have been underwritten or reunderwritten by the Originator in
accordance with the same underwriting criteria and guidelines as the Deleted
Mortgage Loan, (xii) have a Prepayment Charge provision at least equal to the
Prepayment Charge provision of the Deleted Mortgage Loan (xiii) conform to each
representation and warranty set forth in Section 6 of the Mortgage Loan Purchase
Agreement applicable to the Deleted Mortgage Loan. In the event that one or more
mortgage loans are substituted for one or more Deleted Mortgage Loans, the
amounts described in clause (i) hereof shall be determined on the basis of
aggregate principal balances, the Mortgage Rates described in clause (ii) hereof
shall be determined on the basis of weighted average Mortgage Rates, the risk
gradings described in clause (x) hereof shall be satisfied as to each such
mortgage loan, the terms described in clause (vii) hereof shall be determined on
the basis of weighted average remaining terms to maturity, the Loan-to-Value
Ratios described in clause (ix) hereof shall be satisfied as to each such
mortgage loan and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (xi) hereof must be satisfied
as to each Qualified Substitute Mortgage Loan or in the aggregate, as the case
may be.
"Rating Agency or Rating Agencies": Xxxxx'x, Fitch and S&P or
their successors. If such agencies or their successors are no longer in
existence, "Rating Agencies" shall be such nationally recognized statistical
rating agencies, or other comparable Persons, designated by the Depositor,
notice of which designation shall be given to the Trustee, the Trust
Administrator and the Master Servicer.
"Realized Loss": With respect to each Mortgage Loan as to
which a Final Recovery Determination has been made, an amount (not less than
zero) equal to (i) the unpaid principal balance of such Mortgage Loan as of the
commencement of the calendar month in which the Final Recovery Determination was
made, plus (ii) accrued interest from the Due Date as to which interest was last
paid by the Mortgagor through the end of the calendar month in which such Final
Recovery Determination was made, calculated in the case of each calendar month
during such period (A) at an annual rate equal to the annual rate at which
interest was then accruing on such Mortgage Loan and (B) on a principal amount
equal to the Stated Principal Balance of such Mortgage Loan as of the close of
business on the Distribution Date during such calendar month, plus (iii) any
amounts previously withdrawn from the Collection Account in respect of such
Mortgage Loan pursuant to Section 3.05(a)(v) and Section 3.12(c), minus (iv) the
proceeds, if any, received in respect of such Mortgage Loan during the calendar
month in which such Final Recovery Determination was made, net of amounts that
are payable therefrom to the Master Servicer with respect to such Mortgage Loan
pursuant to Section 3.05(a)(ii).
With respect to any REO Property as to which a Final Recovery
Determination has been made, an amount (not less than zero) equal to (i) the
unpaid principal balance of the related Mortgage Loan as of the date of
acquisition of such REO Property on behalf of REMIC I, plus (ii) accrued
interest from the Due Date as to which interest was last paid by the Mortgagor
in respect of the related Mortgage Loan through the end of the calendar month
immediately preceding the calendar month in which such REO Property was
acquired, calculated in the case of each calendar
44
month during such period (A) at an annual rate equal to the annual rate at which
interest was then accruing on the related Mortgage Loan and (B) on a principal
amount equal to the Stated Principal Balance of the related Mortgage Loan as of
the close of business on the Distribution Date during such calendar month, plus
(iii) REO Imputed Interest for such REO Property for each calendar month
commencing with the calendar month in which such REO Property was acquired and
ending with the calendar month in which such Final Recovery Determination was
made, plus (iv) any amounts previously withdrawn from the Collection Account in
respect of the related Mortgage Loan pursuant to Section 3.05(a)(v) and Section
3.12(c), minus (v) the aggregate of all Advances made by the Master Servicer in
respect of such REO Property or the related Mortgage Loan for which the Master
Servicer has been or, in connection with such Final Recovery Determination, will
be reimbursed pursuant to Section 3.13 out of rental income, Insurance Proceeds
and Liquidation Proceeds received in respect of such REO Property, minus (vi)
the total of all net rental income, Insurance Proceeds and Liquidation Proceeds
received in respect of such REO Property that has been, or in connection with
such Final Recovery Determination, will be transferred to the Distribution
Account pursuant to Section 3.13.
With respect to each Mortgage Loan which has become the
subject of a Deficient Valuation, the difference between the principal balance
of the Mortgage Loan outstanding immediately prior to such Deficient Valuation
and the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation.
With respect to each Mortgage Loan which has become the
subject of a Debt Service Reduction, the portion, if any, of the reduction in
each affected Monthly Payment attributable to a reduction in the Mortgage Rate
imposed by a court of competent jurisdiction. Each such Realized Loss shall be
deemed to have been incurred on the Due Date for each affected Monthly Payment.
"Record Date": With respect to each Distribution Date and any
Book-Entry Certificate (other than the Class AF Certificates and the Class S
Certificates), the Business Day immediately preceding such Distribution Date.
With respect to each Distribution Date and any other Class of Certificates,
including any Definitive Certificates, the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
"Reference Banks": Xxxxxxx'x Bank PLC, The Tokyo Mitsubishi
Bank and National Westminster Bank PLC and their successors in interest;
provided, however, that if any of the foregoing banks are not suitable to serve
as a Reference Bank, then any leading banks selected by the Trust Administrator
(after consultation with the NIMS Insurer) which are engaged in transactions in
Eurodollar deposits in the international Eurocurrency market (i) with an
established place of business in London, (ii) not controlling, under the control
of or under common control with the Depositor or any Affiliate thereof and (iii)
which have been designated as such by the Trust Administrator.
"Refinanced Mortgage Loan": A Mortgage Loan the proceeds of
which were not used to purchase the related Mortgaged Property.
"Regular Certificate": Any Class A Certificate, Mezzanine
Certificate, Class S Certificate, Class P Certificate or Class CE Certificate.
45
"Regular Interest": A "regular interest" in a REMIC within the
meaning of Section 860G(a)(1) of the Code.
"Relief Act": The Soldiers' and Sailors' Civil Relief Act of
1940, as amended or any applicable state law providing similar relief.
"Relief Act Interest Shortfall": With respect to any
Distribution Date and any Mortgage Loan, any reduction in the amount of interest
collectible on such Mortgage Loan for the most recently ended calendar month as
a result of the application of the Relief Act.
"REMIC": A "real estate mortgage investment conduit" within
the meaning of Section 860D of the Code.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder,
with respect to which a REMIC election is to be made, consisting of: (i) such
Mortgage Loans and Prepayment Charges as from time to time are subject to this
Agreement, together with the Mortgage Files relating thereto, and together with
all collections thereon and proceeds thereof, (ii) any REO Property, together
with all collections thereon and proceeds thereof, (iii) the Trustee's rights
with respect to the Mortgage Loans under all insurance policies, required to be
maintained pursuant to this Agreement and any proceeds thereof, (iv) the
Depositor's rights under the Mortgage Loan Purchase Agreement (including any
security interest created thereby) to the extent conveyed pursuant to Section
2.01 and (v) the Collection Account (other than any amounts representing any
Master Servicer Prepayment Charge Payment Amounts), the Distribution Account
(other than any amounts representing any Master Servicer Prepayment Charge
Payment Amounts) and any REO Account and such assets that are deposited therein
from time to time and any investments thereof, together with any and all income,
proceeds and payments with respect thereto. Notwithstanding the foregoing,
however, REMIC I specifically excludes any Master Servicer Prepayment Charge
Payment Amounts, the Initial Deposit Account, the Net WAC Rate Carryover Reserve
Account, the Excess Net WAC Rate Reserve Fund, all payments and other
collections of principal and interest due on the Mortgage Loans on or before the
Cut-off Date and all Prepayment Charges payable in connection with Principal
Prepayments made before the Cut-off Date.
"REMIC I Regular Interest": Any of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a "regular interest" in REMIC I. Each REMIC I Regular Interest
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto. The
designations for the respective REMIC I Regular Interests are set forth in the
Preliminary Statement hereto.
"REMIC I Regular Interest I-LT1": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LT1
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and
46
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LT2": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LT2
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LT3": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LT3
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTS1A": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTS1A
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTS1B": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Xxxxxxxx X-XXX0X
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTS1C": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTS1C
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTS2A": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTS2A
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
47
"REMIC I Regular Interest I-LTS2B": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Xxxxxxxx X-XXX0X
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTS2C": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTS2C
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTS2D": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTS2D
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTS3A": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTS3A
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTS3B": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Xxxxxxxx X-XXX0X
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTS3C": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTS3C
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTS3D": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTS3D
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and
48
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTP": One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTP
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time and shall be entitled to any Prepayment Charges collected by the Master
Servicer and to a distribution of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance as
set forth in the Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to each REMIC I
Regular Interest, the weighted average of the Expense Adjusted Mortgage Rates of
the Mortgage Loans.
"REMIC II": The segregated pool of assets consisting of all of
the REMIC I Regular Interests conveyed in trust to the Trustee for the benefit
of the REMIC III Certificateholders pursuant to Section 2.08, and all amounts
deposited therein, with respect to which a separate REMIC election is to be
made.
"REMIC II Interest Loss Allocation Amount": With respect to
any Distribution Date, an amount (subject to adjustment based on the actual
number of days elapsed in the respective Interest Accrual Periods for the
indicated Regular Interests for such Distribution Date) equal to (a) the product
of (i) the aggregate Stated Principal Balance of the Mortgage Loans and REO
Properties then outstanding and (ii) the REMIC II Remittance Rate for REMIC II
Regular Interest II-LTAA minus the Marker Rate, divided by (b) 12.
"REMIC II Overcollateralized Amount": With respect to any date
of determination, (i) 1% of the aggregate Uncertificated Balances of the REMIC
II Regular Interests minus (ii) the aggregate of the Uncertificated Balances of
REMIC II Regular Interest II-LTAF1, REMIC II Regular Interest II-LTAF2, REMIC II
Regular Interest II-LTAF3, REMIC II Regular Interest II-LTAF4, REMIC II Regular
Interest II-LTAF5, REMIC II Regular Interest II-LTAF6, REMIC II Regular Interest
II-LTAV1, REMIC II Regular Interest II-LTAV2, REMIC II Regular Interest II-LTM1,
REMIC II Regular Interest II-LTM2, REMIC II Regular Interest II-LTM3 and REMIC
II Regular Interest II-LTM4, in each case as of such date of determination.
"REMIC II Principal Loss Allocation Amount": With respect to
any Distribution Date, an amount equal to the product of (i) the aggregate
Stated Principal Balance of the Mortgage Loans and REO Properties outstanding
and (ii) 1 minus a fraction, the numerator of which is two times the aggregate
of the Uncertificated Balances of REMIC II Regular Interest II-LTAF1, REMIC II
Regular Interest II-LTAF2, REMIC II Regular Interest II-LTAF3, REMIC II Regular
Interest II- LTAF4, REMIC II Regular Interest II-LTAF5, REMIC II Regular
Interest II-LTAF6, REMIC II Regular Interest II-LTAV1, REMIC II Regular Interest
II-LTAV2, REMIC II Regular Interest II- LTM1, REMIC II Regular Interest II-LTM2,
REMIC II Regular Interest II-LTM3 and REMIC II Regular Interest II-LTM4 and the
denominator of which is the aggregate of the Uncertificated Balances of REMIC II
Regular Interest II-LTAF1, REMIC II Regular Interest II-LTAF2, REMIC II Regular
Interest II-LTAF3, REMIC II Regular Interest II-LTAF4, REMIC II Regular Interest
II- LTAF5, REMIC II Regular Interest II-LTAF6, REMIC II Regular Interest
II-LTAV1, REMIC II
49
Regular Interest II-LTAV2, REMIC II Regular Interest II-LTM1, REMIC II Regular
Interest II- LTM2, REMIC II Regular Interest II-LTM3 and REMIC II Regular
Interest II-LTM4.
"REMIC II Regular Interest": Any of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a "regular interest" in REMIC II. Each REMIC II Regular Interest
shall accrue interest at the related REMIC II Remittance Rate in effect from
time to time or shall otherwise be entitled to interest as set forth herein, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto. The designations for
the respective REMIC II Regular Interests are set forth in the Preliminary
Statement hereto.
"REMIC II Regular Interest II-LTAA": One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest II-LTAA
shall accrue interest at the related REMIC II Remittance Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTAF1": One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest II-LTAF1
shall accrue interest at the related REMIC II Remittance Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTAF2": One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest II-LTAF2
shall accrue interest at the related REMIC II Remittance Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTAF3": One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest II-LTAF3
shall accrue interest at the related REMIC II Remittance Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTAF4": One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest II-LTAF4
shall accrue interest at the related REMIC II Remittance Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
50
"REMIC II Regular Interest II-LTAF5": One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest II-LTAF5
shall accrue interest at the related REMIC II Remittance Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTAF6": One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest II-LTAF6
shall accrue interest at the related REMIC II Remittance Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTAV1": One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest II-LTAV1
shall accrue interest at the related REMIC II Remittance Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTAV2": One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest II-LTAV2
shall accrue interest at the related REMIC II Remittance Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTM1": One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest II-LTM1
shall accrue interest at the related REMIC II Remittance Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTM2": One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest II-LTM2
shall accrue interest at the related REMIC II Remittance Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTM3": One of the separate
non-certificated beneficial ownership interests in REMIC III issued hereunder
and designated as a Regular Interest in REMIC II. REMIC II Regular Interest
II-LTM3 shall accrue interest at the related REMIC II Remittance Rate in effect
from time to time, and shall be entitled to distributions of principal, subject
to the terms and
51
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTM4": One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest II-LTM4
shall accrue interest at the related REMIC II Remittance Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTP": One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest II-LTP
shall be entitled to any Prepayment Charges collected by the Master Servicer and
to a distribution of principal, subject to the terms and conditions hereof, in
an aggregate amount equal to its initial Uncertificated Balance as set forth in
the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTS1": One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest II-LTS1
shall accrue interest at the related REMIC II Remittance Rate on its
Uncertificated Notional Amount, as in effect from time to time. REMIC II Regular
Interest II- LTS1 has no principal balance and is not entitled to distributions
of principal.
"REMIC II Regular Interest II-LTS2": One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest II-LTS2
shall accrue interest at the related REMIC II Remittance Rate on its
Uncertificated Notional Amount, as in effect from time to time. REMIC II Regular
Interest II- LTS2 has no principal balance and is not entitled to distributions
of principal.
"REMIC II Regular Interest II-LTS3": One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest II-LTS3
shall accrue interest at the related REMIC II Remittance Rate on its
Uncertificated Notional Amount, as in effect from time to time. REMIC II Regular
Interest II- LTS2 has no principal balance and is not entitled to distributions
of principal.
"REMIC II Regular Interest II-LTZZ": One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest II-LTZZ
shall accrue interest at the related REMIC II Remittance Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
"REMIC II Remittance Rate": With respect to each REMIC II
Regular Interest (other than REMIC II Regular Interests II-LTS1, II-LTS2 and
II-LTS3) and each Distribution Date, a per annum rate equal to the weighted
average of (x) the REMIC I Remittance Rate with respect to REMIC I Regular
Interest I-LT1, REMIC I Regular Interest I-LT2, REMIC I Regular Interest I-LT3
52
and REMIC I Regular Interest I-LTP for such Distribution Date and (y) the
excess, if any, of (i) the REMIC I Remittance Rate with respect to REMIC I
Regular Xxxxxxxxx X-XXX0X, X-XXX0X, X-XXX0X, I-LTS1D, I-LTS2A, I-LTS2B, I-LTS2C,
I-LTS2D, I-LTS3A, X-XXX0X, X-XXX0X and I-LTS3D for such Distribution Date over
(ii) the applicable Class S Rate, weighted on the basis of the Uncertificated
Balance of (x) REMIC I Regular Interest I-LT1, REMIC I Regular Interest I-LT2,
REMIC I Regular Interest I-LT3 and REMIC I Regular Interest I-LTP and (y) REMIC
I Regular Xxxxxxxxx X-XXX0X, X-XXX0X, X-XXX0X, I-LTS1D, I-LTS2A, I-LTS2B,
I-LTS2C, I-LTS2D, I-LTS3A, X-XXX0X, X-XXX0X and I-LTS3D, respectively.
With respect to REMIC II Regular Interest II-LTS1, REMIC II
Regular Interest II- LTS2 and REMIC II Regular Interest II-LTS3, the applicable
Class S Rate.
"REMIC II Overcollateralization Target Amount": 1% of the
Overcollateralization Target Amount.
"REMIC III": The segregated pool of assets consisting of all
of the REMIC II Regular Interests conveyed in trust to the Trustee, for the
benefit of the REMIC III Certificateholders pursuant to Section 2.09, and all
amounts deposited therein, with respect to which a separate REMIC election is to
be made.
"REMIC III Certificate": Any Regular Certificate or Class R
Certificate.
"REMIC III Certificateholder": The Holder of any REMIC III
Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Section
860A through 860G of the Code, and related provisions, and proposed, temporary
and final regulations and published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.
"Remittance Report": A report in form and substance that is
acceptable to the Trust Administrator and the NIMS Insurer on a magnetic disk or
tape prepared by the Master Servicer pursuant to Section 4.03 with such
additions, deletions and modifications as agreed to by the Trust Administrator
and the Master Servicer.
"Rents from Real Property": With respect to any REO Property,
gross income of the character described in Section 856(d) of the Code as being
included in the term "rents from real property."
"REO Account": Each of the accounts maintained by the Master
Servicer in respect of an REO Property pursuant to Section 3.13 which account
may be the Collection Account subject to Section 3.13.
"REO Disposition": The sale or other disposition of an REO
Property on behalf of REMIC I.
53
"REO Imputed Interest": As to any REO Property, for any
calendar month during which such REO Property was at any time part of REMIC I,
one month's interest at the applicable Net Mortgage Rate on the Stated Principal
Balance of such REO Property (or, in the case of the first such calendar month,
of the related Mortgage Loan, if appropriate) as of the close of business on the
Distribution Date in such calendar month.
"REO Principal Amortization": With respect to any REO
Property, for any calendar month, the excess, if any, of (a) the aggregate of
all amounts received in respect of such REO Property during such calendar month,
whether in the form of rental income, sale proceeds (including, without
limitation, that portion of the Termination Price paid in connection with a
purchase of all of the Mortgage Loans and REO Properties pursuant to Section
9.01 that is allocable to such REO Property) or otherwise, net of any portion of
such amounts (i) payable pursuant to Section 3.13(c) in respect of the proper
operation, management and maintenance of such REO Property or (ii) payable or
reimbursable to the Master Servicer pursuant to Section 3.13(d) for unpaid
Servicing Fees in respect of the related Mortgage Loan and unreimbursed
Servicing Advances and Advances in respect of such REO Property or the related
Mortgage Loan, over (b) the REO Imputed Interest in respect of such REO Property
for such calendar month.
"REO Property": A Mortgaged Property acquired by the Master
Servicer on behalf of REMIC I through foreclosure or deed-in-lieu of
foreclosure, as described in Section 3.13.
"Request for Release": A release signed by a Servicing
Officer, in the form of Exhibit E-1 or Exhibit E-2 attached hereto.
"Reserve Interest Rate": With respect to any Interest
Determination Date, the rate per annum that the Trust Administrator determines
to be either (i) the arithmetic mean (rounded upwards if necessary to the
nearest whole multiple of 1/16%) of the one-month U.S. dollar lending rates
which New York City banks selected by the Trust Administrator are quoting on the
relevant Interest Determination Date to the principal London offices of leading
banks in the London interbank market or (ii) in the event that the Trust
Administrator can determine no such arithmetic mean, the lowest one-month U.S.
dollar lending rate which New York City banks selected by the Trust
Administrator are quoting on such Interest Determination Date to leading
European banks.
"Residential Dwelling": Any one of the following: (i) an
attached or detached one- family dwelling, (ii) a detached two- to four-family
dwelling, (iii) a one-family dwelling unit in a condominium project or (iv) a
detached or attached one-family dwelling in a planned unit development, none of
which is a co-operative, mobile or manufactured home (unless such mobile or
manufactured home is defined as real property under applicable state law).
"Residual Certificate": Any one 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": When used with respect to the Trustee
or the Trust Administrator, any director, any vice president, any assistant vice
president, any associate, any
54
assistant secretary, any trust officer or any other officer of the Trustee or
the Trust Administrator, as the case may be, customarily performing functions
similar to those performed by any of the above designated officers and, with
respect to a particular matter, to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Scheduled Principal Balance": With respect to any Mortgage
Loan: (a) as of the Cut-off Date, the outstanding principal balance of such
Mortgage Loan as of such date, net of the principal portion of all unpaid
Monthly Payments, if any, due on or before such date; (b) as of any Due Date
subsequent to the Cut-off Date up to and including the Due Date in the calendar
month in which a Liquidation Event occurs with respect to such Mortgage Loan,
the Scheduled Principal Balance of such Mortgage Loan as of the Cut-off Date,
minus the sum of (i) the principal portion of each Monthly Payment due on or
before such Due Date but subsequent to the Cut-off Date, whether or not
received, (ii) all Principal Prepayments received before such Due Date but after
the Cut-off Date, (iii) the principal portion of all Liquidation Proceeds and
Insurance Proceeds received before such Due Date but after the Cut-off Date, net
of any portion thereof that represents principal due (without regard to any
acceleration of payments under the related Mortgage and Mortgage Note) on a Due
Date occurring on or before the date on which such proceeds were received and
(iv) any Realized Loss incurred with respect thereto as a result of a Deficient
Valuation occurring before such Due Date, but only to the extent such Realized
Loss represents a reduction in the portion of principal of such Mortgage Loan
not yet due (without regard to any acceleration of payments under the related
Mortgage and Mortgage Note) as of the date of such Deficient Valuation; and (c)
as of any Due Date subsequent to the occurrence of a Liquidation Event with
respect to such Mortgage Loan, zero. With respect to any REO Property: (a) as of
any Due Date subsequent to the date of its acquisition on behalf of the Trust
Fund up to and including the Due Date in the calendar month in which a
Liquidation Event occurs with respect to such REO Property, an amount (not less
than zero) equal to the Scheduled Principal Balance of the related Mortgage Loan
as of the Due Date in the calendar month in which such REO Property was
acquired, minus the aggregate amount of REO Principal Amortization, if any, in
respect of such REO Property for all previously ended calendar months; and (b)
as of any Due Date subsequent to the occurrence of a Liquidation Event with
respect to such REO Property, zero.
"Senior Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (i) the Interest Distribution
Amount for such Distribution Date for the Class A Certificates, REMIC II Regular
Interest II-LTS1, REMIC II Regular Interest II-LTS2 and REMIC II Regular
Interest II-LTS3 and (ii) the Interest Carry Forward Amount with respect to the
Class A Certificates, REMIC II Regular Interest II-LTS1, REMIC II Regular
Interest II-LTS2 and REMIC II Regular Interest II-LTS3.
"Servicing Advances": The reasonable "out-of-pocket" costs and
expenses incurred by the Master Servicer in connection with a default,
delinquency or other unanticipated event by the Master Servicer in the
performance of its servicing obligations, including, but not limited to, the
cost of (i) the preservation, restoration and protection of a Mortgaged
Property, (ii) any enforcement or judicial proceedings, including foreclosures,
in respect of a particular Mortgage Loan, (iii) the management (including
reasonable fees in connection therewith) and liquidation of any REO Property and
(iv) the performance of its obligations under Section 3.01, Section 3.04(d),
Section 3.08, Section 3.12 and Section 3.13. The Master Servicer shall not be
required to make any
55
Servicing Advance in respect of a Mortgage Loan or REO Property that, in the
good faith business judgment of the Master Servicer, would not be ultimately
recoverable from related Insurance Proceeds or Liquidation Proceeds on such
Mortgage Loan or REO Property as provided herein.
"Servicing Fee": With respect to each Mortgage Loan and for
any calendar month, an amount equal to one month's interest (or in the event of
any payment of interest which accompanies a Principal Prepayment in full made by
the Mortgagor during such calendar month, interest for the number of days
covered by such payment of interest) at the applicable Servicing Fee Rate on the
same principal amount on which interest on such Mortgage Loan accrues for such
calendar month. A portion of such Servicing Fee may be retained by any
Sub-Servicer as its servicing compensation.
"Servicing Fee Rate": 0.50% per annum.
"Servicing Officer": Any employee 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 by the Master Servicer to the Trustee, the Trust
Administrator and the Depositor on the Closing Date, as such list may from time
to time be amended.
"Servicing Standard": The standards set forth in the first
paragraph of Section 3.01.
"Single Certificate": With respect to any Class of
Certificates (other than the Class P Certificates and the Residual
Certificates), a hypothetical Certificate of such Class evidencing a Percentage
Interest for such Class corresponding to an initial Certificate Principal
Balance or Notional Amount of $1,000. With respect to the Class P Certificates
and the Residual Certificates, a hypothetical Certificate of such Class
evidencing a 20% Percentage Interest in such Class.
"S&P": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or its successor in interest.
"Startup Day": With respect to each Trust REMIC, the day
designated as such pursuant to Section 10.01(b) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan:
(a) as of any date of determination up to but not including the Distribution
Date on which the proceeds, if any, of a Liquidation Event with respect to such
Mortgage Loan would be distributed, the Scheduled Principal Balance of such
Mortgage Loan as of the Cut-off Date, as shown in the Mortgage Loan Schedule,
minus the sum of (i) the principal portion of each Monthly Payment due on a Due
Date subsequent to the Cut-off Date, to the extent received from the Mortgagor
or advanced by the Master Servicer and distributed pursuant to Section 4.01 on
or before such date of determination, (ii) all Principal Prepayments received
after the Cut-off Date, to the extent distributed pursuant to Section 4.01 on or
before such date of determination, (iii) all Liquidation Proceeds and Insurance
Proceeds applied by the Master Servicer as recoveries of principal in accordance
with the provisions of Section 3.12, to the extent distributed pursuant to
Section 4.01 on or before such date of determination and (iv) any Realized Loss
incurred with respect thereto as a result of a Deficient Valuation made during
or
56
prior to the Prepayment Period for the most recent Distribution Date coinciding
with or preceding such date of determination; and (b) as of any date of
determination coinciding with or subsequent to the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, zero. With respect to any REO Property: (a) as of any date
of determination up to but not including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such REO Property would
be distributed, an amount (not less than zero) equal to the Stated Principal
Balance of the related Mortgage Loan as of the date on which such REO Property
was acquired on behalf of REMIC I, minus the sum of (i) if such REO Property was
acquired before the Distribution Date in any calendar month, the principal
portion of the Monthly Payment due on the Due Date in the calendar month of
acquisition, to the extent advanced by the Master Servicer and distributed
pursuant to Section 4.01 on or before such date of determination, and (ii) the
aggregate amount of REO Principal Amortization in respect of such REO Property
for all previously ended calendar months, to the extent distributed pursuant to
Section 4.01 on or before such date of determination; and (b) as of any date of
determination coinciding with or subsequent to the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such REO Property
would be distributed, zero.
"Stayed Funds": If the Master Servicer is the subject of a
proceeding under the federal Bankruptcy Code and the making of a Remittance (as
defined in Section 7.02(b)) is prohibited by Section 362 of the federal
Bankruptcy Code, funds that 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.
"Stepdown Date": The earlier to occur of (i) the first
Distribution Date on which the aggregate Certificate Principal Balance of the
Class A Certificates has been reduced to zero and (ii) the later to occur of (a)
the Distribution Date occurring in October 2005 and (b) the first Distribution
Date on which the Credit Enhancement Percentage (calculated for this purpose
only after taking into account distributions of principal on the Mortgage Loans
but prior to any distribution of the Principal Distribution Amount on the
Certificates then entitled to distributions of principal on such Distribution
Date) is equal to or greater than 33.50%.
"Sub-Servicer": Any Person with which the Master Servicer has
entered into a Sub- Servicing Agreement and which meets the qualifications of a
Sub-Servicer pursuant to Section 6.06.
"Sub-Servicing Account": An account established by a
Sub-Servicer which meets the requirements set forth in Section 6.11 and is
otherwise acceptable to the Master Servicer.
"Sub-Servicing Agreement": The written contract between the
Master Servicer and a Sub-Servicer relating to servicing and administration of
certain Mortgage Loans as provided in Section 6.06.
"Substitution Shortfall Amount": As defined in Section
2.03(d).
"Tax Returns": The federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss
57
Allocation, or any successor forms, to be filed on behalf of each REMIC in the
Trust Fund due to its classification as a REMIC under the REMIC Provisions,
together with any and all other information reports or returns that may be
required to be furnished to the Certificateholders or filed with the Internal
Revenue Service or any other governmental taxing authority under any applicable
provisions of federal, state or local tax laws.
"Telerate Page 3750": The display designated as page "3750" on
the Dow Xxxxx Telerate Capital Markets Report (or such other page as may replace
page 3750 on that report for the purpose of displaying London interbank offered
rates of major banks).
"Termination Price": As defined in Section 9.01.
"Terminator": As defined in Section 9.01.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer of any
Ownership Interest in a Certificate.
"Trigger Event": A Trigger Event has occurred with respect to
a Distribution Date if (i) the Delinquency Percentage exceeds 16.75% or (ii) the
percentage equivalent of a fraction, the numerator of which is the aggregate
amount of Realized Losses incurred from the Cut-off Date to the last day of the
related Due Period and the denominator of which is the aggregate Stated
Principal Balance of the Initial Mortgage Loans as of the Cut-off Date exceeds
the applicable percentages set forth below with respect to such Distribution
Date:
DISTRIBUTION DATE OCCURRING IN PERCENTAGE
---------------------------------------- ----------------------------
October 2005 through September 2006 2.75%
October 2006 through September 2007 4.50%
October 2007 through September 2008 5.75%
October 2008 through September 2009 6.50%
October 2009 and thereafter 6.75%
"Trust Administrator": Deutsche Bank National Trust Company, a
national banking association, or its successor in interest, or any successor
Trust Administrator appointed as herein provided.
"Trust Fund": Collectively, all of the assets of each Trust
REMIC, any Master Servicer Prepayment Charge Payment Amounts, the Initial
Deposit Account, the Net WAC Rate Carryover Reserve Account and the Excess Net
WAC Rate Reserve Fund.
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"Trust REMIC": Each of REMIC I, REMIC II and REMIC III.
"Trustee": U.S. Bank National Association, a national banking
association, or its successor in interest, or any successor trustee appointed as
herein provided.
"Uncertificated Balance": The amount of any REMIC I Regular
Interest or REMIC II Regular Interest (other than REMIC II Regular Interests
II-LTS1, II-LTS2 and II-LTS3) outstanding as of any date of determination. As of
the Closing Date, the Uncertificated Balance of each REMIC I Regular Interest
and each REMIC II Regular Interest (other than REMIC II Regular Interests
II-LTS1, II-LTS2 and II-LTS3) shall equal the amount set forth in the
Preliminary Statement hereto as its initial uncertificated balance. On each
Distribution Date, the Uncertificated Balance of each REMIC I Regular Interest
and each REMIC II Regular Interest (other than REMIC II Regular Interests
II-LTS1, II-LTS2 and II-LTS3) shall be reduced by all distributions of principal
made on such REMIC I Regular Interest or such REMIC II Regular Interest on such
Distribution Date pursuant to Section 4.01 and, if and to the extent necessary
and appropriate, shall be further reduced on such Distribution Date by Realized
Losses as provided in Section 4.04. The Uncertificated Balance of REMIC II
Regular Interest II-LTZZ shall be increased by interest deferrals as provided in
Section 4.01(a)(1)(B)(i). The Uncertificated Balance of each REMIC I Regular
Interest and each REMIC II Regular Interest shall never be less than zero.
"Uncertificated Interest": With respect to any REMIC I Regular
Interest for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the Uncertificated Balance thereof immediately
prior to such Distribution Date. With respect to any REMIC II Regular Interest
for any Distribution Date, one month's interest at the REMIC II Remittance Rate
applicable to such REMIC II Regular Interest for such Distribution Date, accrued
on the Uncertificated Balance or Uncertificated Notional Amount thereof
immediately prior to such Distribution Date. Uncertificated Interest in respect
of any REMIC I Regular Interest, REMIC II Regular Interest, shall accrue on the
basis of a 360-day year consisting of twelve 30-day months. Uncertificated
Interest with respect to each Distribution Date, as to any REMIC I Regular
Interest or REMIC II Regular Interest, shall be reduced by an amount equal to
the sum of (a) the aggregate Prepayment Interest Shortfall, if any, for such
Distribution Date to the extent not covered by payments pursuant to Section
4.03(e) and (b) the aggregate amount of any Relief Act Interest Shortfall, if
any allocated, in each case, to such REMIC I Regular Interest or REMIC II
Regular Interest pursuant to Section 1.02. In addition, Uncertificated Interest
with respect to each Distribution Date, as to any REMIC I Regular Interest or
REMIC II Regular Interest shall be reduced by Realized Losses, if any, allocated
to such REMIC I Regular Interest or REMIC II Regular Interest pursuant to
Section 1.02 and Section 4.04.
"Uncertificated Notional Amount": With respect to REMIC II
Regular Interest II- LTS1 and (i) the 1st Distribution Date through the 8th
Distribution Date, the Uncertificated Balance of REMIC I Regular Interests
I-LTS1A, (ii) the 9th Distribution Date through the 16th Distribution Date, the
Uncertificated Balance of REMIC I Regular Xxxxxxxx X-XXX0X and (iii) the 17th
Distribution Date through the 30th Distribution Date, the Uncertificated Balance
of REMIC I Regular Interest I- LTS1C.
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With respect to REMIC II Regular Interest II-LTS2 and (i) the
1st Distribution Date through the 8th Distribution Date, the Uncertificated
Balance of REMIC I Regular Interests I-LTS2A, (ii) the 9th Distribution Date
through the 16th Distribution Date, the Uncertificated Balance of REMIC I
Regular Interest I-LTS2B, (iii) the 17th Distribution Date through the 24th
Distribution Date, the Uncertificated Balance of REMIC I Regular Interest
I-LTS2C and (iv) the 25th Distribution Date through the 30th Distribution Date,
the Uncertificated Balance of REMIC I Regular Interest I-LTS2D.
With respect to REMIC II Regular Interest II-LTS3 and (i) the
1st Distribution Date through the 8th Distribution Date, the Uncertificated
Balance of REMIC I Regular Interests I-LTS3A, (ii) the 9th Distribution Date
through the 16th Distribution Date, the Uncertificated Balance of REMIC I
Regular Interest I-LTS3B, (iii) the 17th Distribution Date through the 24th
Distribution Date, the Uncertificated Balance of REMIC I Regular Interest
I-LTS3C and (iv) the 25th Distribution Date through the 30th Distribution Date,
the Uncertificated Balance of REMIC I Regular Interest I-LTS3D
"Underwriters' Exemption": An individual exemption issued by
the United States Department of Labor to UBS Securities Inc. in Prohibited
Transaction Exemption ("PTE") 91-22 at 56 F.R. 15933, amended on July 21, 1997
as PTE 97-34 at 62 F.R. 39021, further amended on November 13, 2000 by PTE
2000-58 at 65 F.R. 67765, and further amended on August 22, 2002, which
generally provides an exemption for offerings in which UBS Securities Inc. or
any person directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with UBS Securities Inc. is
an underwriter, placement agent or a manager or co- manager of the underwriting
syndicate or selling group where the entity and the offered securities meet
specified conditions. The Underwriters' Exemption, as amended, provides a
partial exemption from section 406 of ERISA and section 4975 of the Code for
transactions involving securities representing an interest in certain types of
entities and entitling the holder to payments with respect to the entity's
assets.
"Uninsured Cause": Any cause of damage to a Mortgaged Property
such that the complete restoration of such property is not fully reimbursable by
the hazard insurance policies required to be maintained pursuant to Section
3.08.
"United States Person": A citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States, any state thereof or the District of
Columbia (except, in the case of a partnership, to the extent provided in
regulations) provided that, solely for purposes of the restrictions on the
transfer of 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 required by the applicable operative
agreement to be 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 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
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to be treated as a United States person notwithstanding the previous sentence.
The term "United States" shall have the meaning set forth in Section 7701 of the
Code.
"Value": With respect to any Mortgaged Property, 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 the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, and (ii) the purchase price paid for the
related Mortgaged Property 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 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 of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989.
"Voting Rights": The portion of the voting rights of all of
the Certificates which is allocated to any Certificate. With respect to any date
of determination, 97% of all Voting Rights will be allocated among the holders
of the Class A Certificates, the Mezzanine Certificates and the Class CE
Certificates in proportion to the then outstanding Certificate Principal
Balances of their respective Certificates, 1% of all Voting Rights will be
allocated to the holders of the Class S Certificates in proportion to the then
outstanding Notional Amount of their Certificates, 1% of all Voting Rights will
be allocated to the holders of the Class P Certificates and 1% of all Voting
Rights will be allocated among the holders of the Residual Certificates. The
Voting Rights allocated to each Class of Certificate shall be allocated among
Holders of each such Class in accordance with their respective Percentage
Interests as of the most recent Record Date.
SECTION 1.02. Allocation of Certain Interest Shortfalls.
For purposes of calculating the amount of Accrued Certificate
Interest and the amount of the Interest Distribution Amount for the Class A
Certificates, the Mezzanine Certificates, the Class S Certificates and the Class
CE Certificates for any Distribution Date, (1) the aggregate amount of any
Prepayment Interest Shortfalls (to the extent not covered by payments by the
Master Servicer pursuant to Section 4.03(e)) and any Relief Act Interest
Shortfall incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated first, among the Class CE Certificates on a PRO RATA basis
based on, and to the extent of, one month's interest at the then applicable
respective Pass-Through Rate on the respective Notional Amount of each such
Certificate and thereafter, among the Class A Certificates, the Mezzanine
Certificates and the Class S Certificates on a PRO RATA basis based on, and to
the extent of, one month's interest at the then applicable respective
Pass-Through Rate on the respective Certificate Principal Balance or Notional
Amount of each such Certificate and (2) the aggregate amount of any Realized
Losses incurred for any Distribution Date and Net WAC Rate Carryover Amounts
incurred for any Distribution Date shall be allocated among the Class CE
Certificates on a PRO RATA basis based on, and to the extent of, one month's
interest at the then applicable respective Pass-Through Rate on the respective
Notional Amount of each such Certificate.
For purposes of calculating the amount of Uncertificated
Interest for the REMIC I Regular Interests for any Distribution Date, the
aggregate amount of any Prepayment Interest
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Shortfalls (to the extent not covered by payments by the Master Servicer
pursuant to Section 4.03(e)) and Relief Act Interest Shortfalls incurred in
respect of the Mortgage Loans for any Distribution Date shall be allocated
first, to REMIC I Regular Interest I-LT1, REMIC I Regular Interest I-LT2 and
REMIC I Regular Interest I-LT3 and then to REMIC I Regular Xxxxxxxxx X-XXX0X,
X-XXX0X, X-XXX0X, I-LTS1D, I-LTS2A, I-LTS2B, I-LTS2C, I-LTS2D, I-LTS3A, X-XXX0X,
X-XXX0X and I-LTS3D in each case to the extent of one month's interest at the
then applicable respective REMIC I Remittance Rate on the respective
Uncertificated Balance of each such REMIC I Regular Interest.
For purposes of calculating the amount of Uncertificated
Interest for the REMIC II Regular Interests for any Distribution Date, the
aggregate amount of any Prepayment Interest Shortfalls (to the extent not
covered by payments by the Master Servicer pursuant to Section 4.03(e)) and
Relief Act Interest Shortfalls incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated first, to Uncertificated Interest payable
to REMIC II Regular Interest II-LTAA and REMIC II Regular Interest II-LTZZ up to
an aggregate amount equal to the REMIC II Interest Loss Allocation Amount, 98%
and 2%, respectively, and thereafter among REMIC II Regular Interest II- LTAF1,
REMIC II Regular Interest II-LTAF2, REMIC II Regular Interest II-LTAF3, REMIC II
Regular Interest II-LTAF4, REMIC II Regular Interest II-LTAF5, REMIC II Regular
Interest II- LTAF6, REMIC II Regular Interest II-LTAV1, REMIC II Regular
Interest II-LTAV2, REMIC II Regular Interest II-LTM1, REMIC II Regular Interest
II-LTM2, REMIC II Regular Interest II-LTM3, REMIC II Regular Interest II-LTM4
and REMIC II Regular Interest II-LTZZ PRO RATA based on, and to the extent of,
one month's interest at the then applicable respective Pass-Through Rate on the
respective Uncertificated Balance of each such REMIC II Regular Interest.
SECTION 1.03 Rights of the NIMS Insurer.
Each of the rights of the NIMS Insurer set forth in this
Agreement shall exist so long as (i) the NIMS Insurer has undertaken to
guarantee certain payments of notes issued pursuant to the Indenture and (ii)
the notes issued pursuant to the Indenture remain outstanding or the NIMS
Insurer is owed amounts in respect of its guarantee of payment on such notes;
provided, however, the NIMS Insurer shall not have any rights hereunder so long
as (i) the NIMS Insurer has not undertaken to guarantee certain payments of
notes issued pursuant to the Indenture or (ii) any default has occurred and is
continuing under the insurance policy issued by the NIMS Insurer with respect to
such notes.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey to the
Trustee without recourse for the benefit of the Certificateholders all the
right, title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in and to the Mortgage Loans
identified on the Mortgage Loan Schedule, the rights of the Depositor under the
Mortgage Loan Purchase Agreement, and all other assets included or to be
included in REMIC I. Such assignment includes all interest and principal
received by the Depositor or the Master Servicer on or with respect to the
Mortgage Loans (other than payments of principal and interest due on such
Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers
to the Trust Administrator an executed copy of the Mortgage Loan Purchase
Agreement, and the Trust Administrator, on behalf of the Trustee and the
Certificateholders, acknowledges receipt of the same.
In connection with such transfer and assignment, the Depositor
does hereby deliver to, and deposit with, the Trust Administrator, as custodian
for the Trustee (in which capacity the Trust Administrator will, unless
otherwise specified, be acting under this Article II) the following documents or
instruments with respect to each Initial Mortgage Loan so transferred and
assigned (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without
recourse, or in the following form: "Pay to the order of U.S. Bank
National Association, as Trustee under the applicable agreement,
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, or with respect to any lost Mortgage Note, an
original Lost Note Affidavit; provided however, that such substitutions
of Lost Note Affidavits for original Mortgage Notes may occur only with
respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance
of which is less than or equal to 2.00% of the Pool Balance as of the
Cut-off Date;
(ii) the original Mortgage with evidence of recording thereon,
and a copy, certified by the appropriate recording office, of the
recorded power of attorney, if the Mortgage was executed pursuant to a
power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in
blank, without recourse;
(iv) the original recorded intervening 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) or the original
unrecorded intervening Assignments;
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(v) the original or copies of each assumption,
modification, written assurance or substitution agreement, if any; and
(vi) the original lenders's title insurance policy or an
attorney's opinion of title or similar guarantee of title acceptable to
mortgage lenders generally in the jurisdiction where the Mortgaged
Property is located, together with all endorsements or riders which
were issued with or subsequent to the issuance of such policy, or in
the event such original title policy is unavailable, a written
commitment or uniform binder or preliminary report of title issued by
the title insurance or escrow company.
If any of the documents referred to in Sections 2.01(ii),
(iii) or (iv) above has as of the Closing Date been submitted for recording but
either (x) has not been returned from the applicable public recording office or
(y) has been lost or such public recording office has retained the original of
such document, the obligations of the Depositor to deliver such documents shall
be deemed to be satisfied upon (1) delivery to the Trust Administrator, or to
the appropriate Custodian on behalf of the Trustee, of a copy of each such
document certified by the Originator in the case of (x) above or the applicable
public recording office in the case of (y) above to be a true and complete copy
of the original that was submitted for recording and (2) if such copy is
certified by the Originator, delivery to the Trust Administrator, or to the
appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of
either the original or a copy of such document certified by the applicable
public recording office to be a true and complete copy of the original. If the
original lender's title insurance policy was not delivered pursuant to Section
2.01(vi) above, the Depositor shall deliver or cause to be delivered to the
Trust Administrator, or to the appropriate Custodian on behalf of the Trustee,
promptly after receipt thereof, the original lender's title insurance policy.
The Depositor shall deliver or cause to be delivered to the Trust Administrator,
or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt
thereof any other original documents constituting a part of a Mortgage File
received with respect to any Mortgage Loan, including, but not limited to, any
original documents evidencing an assumption or modification of any Mortgage
Loan.
The Master Servicer (in its capacity as Originator) shall
promptly (and in no event later than thirty (30) Business Days, subject to
extension upon a mutual agreement between the Master Servicer and the Trust
Administrator, following the later of (i) the Closing Date, (ii) the date on
which the Originator receives the Assignment from the Custodian and (iii) the
date of receipt by the Master Servicer of the recording information for a
Mortgage) submit or cause to be submitted for recording, at no expense to the
Trust Fund, the Trustee or the Trust Administrator, in the appropriate public
office for real property records, each Assignment referred to in Sections
2.01(iii) and (iv) above and shall execute each original Assignment referred to
in section 2.01(iii) above in the following form: "U.S. Bank National
Association, as Trustee under the applicable agreement." In the event that any
such Assignment is lost or returned unrecorded because of a defect therein, the
Master Servicer (in its capacity as Originator) shall promptly prepare or cause
to be prepared a substitute Assignment or cure or cause to be cured such defect,
as the case may be, and thereafter cause each such Assignment to be duly
recorded. Notwithstanding the foregoing, however, for administrative convenience
and facilitation of servicing and to reduce closing costs, the Assignments of
Mortgage shall not be required to be submitted for recording with respect to any
Mortgage Loan in any jurisdiction where the Rating Agencies do not require
recordation in order to receive the ratings on the Certificates at the time of
their initial issuance; provided further, however, each
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Assignment of Mortgage shall be submitted for recording by the Master Servicer
(in its capacity as Originator) in the manner described above, at no expense to
the Trust Fund, the Trustee or the Trust Administrator, upon the earliest to
occur of: (i) reasonable direction by Holders of Certificates entitled to at
least 25% of the Voting Rights, (ii) failure of the Master Servicer Termination
Test, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating
to the Originator, (iv) the occurrence of a servicing transfer as described in
Section 7.02 hereof and (v) if the Originator is not the Master Servicer and
with respect to any one assignment of Mortgage, the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Mortgagor under the related Mortgage.
Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost
of recording the Assignments of Mortgage, such expense will be paid by the Trust
Administrator and shall be reimbursable to the Trust Administrator as an
Extraordinary Trust Fund Expense.
All original documents relating to the Mortgage Loans that are
not delivered to the Trust Administrator, or to the appropriate Custodian on
behalf of the Trustee, are and shall be held by or on behalf of the Originator,
the Depositor or the Master Servicer, as the case may be, in trust for the
benefit of the Trustee on behalf of the Certificateholders. In the event that
any such original document is required pursuant to the terms of this Section to
be a part of a Mortgage File, such document shall be delivered promptly to the
Trust Administrator, or to the appropriate Custodian on behalf of the Trustee.
Any such original document delivered to or held by the Depositor that is not
required pursuant to the terms of this Section to be a part of a Mortgage File,
shall be delivered promptly to the Master Servicer.
SECTION 2.02. Acceptance of REMIC I by the Trustee.
Subject to the provisions of Section 2.01 and subject to any
exceptions noted on the exception report described in the next paragraph below,
the Trust Administrator, on behalf of the Trustee acknowledges receipt (or, with
respect to Mortgage Loans subject to a Custodial Agreement, receipt by the
respective Custodian as the duly appointed agent of the Trustee) of the
documents referred to in Section 2.01 (other than such documents described in
Section 2.01(v)) above and all interests and all other assets included in the
definition of "REMIC I" under clauses (i), (iii), (iv) and (v) (to the extent of
amounts deposited into the Distribution Account) and declares that it, or such
Custodian as its agent, holds and will hold such documents and the other
documents delivered to it constituting a Mortgage File, and that it holds or
will hold all such assets and such other assets included in the definition of
"REMIC I" in trust for the exclusive use and benefit of all present and future
Certificateholders.
On or prior to the Closing Date, the Trust Administrator
agrees, for the benefit of the Certificateholders, to execute and deliver (or
cause the Custodian to execute and deliver) to the Depositor and the NIMS
Insurer an acknowledgment of receipt of the Mortgage Note (with any exceptions
noted), substantially in the form attached as Exhibit C-3 hereto.
The Trust Administrator agrees, for the benefit of the
Certificateholders, to review (or cause a Custodian on its behalf to review)
each Mortgage Note within 45 days of the Closing Date and to certify in
substantially the form attached hereto as Exhibit C-1 (or cause the Custodian to
certify in the form of the Initial Certification attached to the Custodial
Agreement) that, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or
65
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(v)) required to be delivered to it pursuant to this Agreement are
in its possession, (ii) such documents have been reviewed by it or such
Custodian and are not mutilated, torn or defaced unless initialed by the related
borrower and relate to such Mortgage Loan, (iii) based on its or the Custodian's
examination and only as to the foregoing, the information set forth in the
Mortgage Loan Schedule that corresponds to items (1) through (3), (6), (9),
(10), (13), (15) and (19) of the definition of "Mortgage Loan Schedule"
accurately reflects information set forth in the Mortgage File. It is herein
acknowledged that, in conducting such review, the Trust Administrator or such
Custodian was 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 (ii) to determine whether any Mortgage File
should include any of the documents specified in clause (v) of Section 2.01.
Prior to the first anniversary date of this Agreement the
Trust Administrator shall deliver to the Depositor, the Master Servicer, the
Trustee and the NIMS Insurer a final certification in the form annexed hereto as
Exhibit C-2 (or shall cause the Custodian to deliver to the Trustee, the
Depositor, the Master Servicer and the NIMS Insurer a final certification in the
form attached to the Custodial Agreement) evidencing the completeness of the
Mortgage Files, with any applicable exceptions noted thereon, with respect to
all of the Initial Mortgage Loans. Upon the request of the Master Servicer, any
exception report related to the final certification shall be provided in an
electronic computer readable format as mutually agreed upon by the Master
Servicer and the Trust Administrator.
If in the process of reviewing the Mortgage Files and making
or preparing, as the case may be, the certifications referred to above, the
Trust Administrator or any Custodian finds any document or documents
constituting a part of a Mortgage File to be missing, mutilated, torn or defaced
or does not conform to the requirements identified above, at the conclusion of
its review the Trust Administrator (or a Custodian on behalf of the Trustee)
shall so notify the Depositor, the NIMS Insurer, the Trustee and the Master
Servicer. In addition, upon the discovery by the Depositor, the NIMS Insurer,
the Master Servicer, the Trust Administrator or the Trustee of a breach of any
of the representations and warranties made by the Originator in the Mortgage
Loan Purchase Agreement in respect of any Mortgage Loan which materially
adversely affects such Mortgage Loan or the interests of the related
Certificateholders in such Mortgage Loan, the party discovering such breach
shall give prompt written notice to the other parties.
The Trust Administrator (or a Custodian on behalf of the
Trustee) shall, at the written request and expense of any Certificateholder,
provide a written report to such Certificateholder, of all Mortgage Files
released to the Master Servicer for servicing purposes.
SECTION 2.03. Repurchase or Substitution of Mortgage Loans
by the Originator or the Depositor; Payment of
Prepayment Charge Payment Amounts.
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(a) Upon discovery or receipt of notice (including notice
under Section 2.02) of any materially defective document in, or that a document
is missing from, the Mortgage File or of the breach by the Originator of any
representation, warranty or covenant under the Mortgage Loan Purchase Agreement
in respect of any Mortgage Loan which materially adversely affects the value of
such Mortgage Loan or the interest therein of the Certificateholders, the Trust
Administrator shall promptly notify the Originator, the NIMS Insurer and the
Master Servicer of such defect, missing document or breach and request that the
Originator deliver such missing document or cure such defect or breach within 90
days from the date the Originator was notified of such missing document, defect
or breach, and if the Originator does not deliver such missing document or cure
such defect or breach in all material respects during such period, the Master
Servicer (or, in accordance with Section 6.06(b), the Trust Administrator) shall
enforce the obligations of the Originator under the Mortgage Loan Purchase
Agreement to repurchase such Mortgage Loan from REMIC I at the Purchase Price
within 90 days after the date on which the Originator was notified (subject to
Section 2.03(d)) of such missing document, defect or breach, if and to the
extent that the Originator is obligated to do so under the Mortgage Loan
Purchase Agreement. The Purchase Price for the repurchased Mortgage Loan shall
be deposited in the Collection Account, and the Trust Administrator, upon
receipt of written certification from the Master Servicer of such deposit, shall
release to the Originator the related Mortgage File and shall request the
Trustee to (and the Trustee shall) execute and deliver such instruments of
transfer or assignment, in each case without recourse, as the Originator shall
furnish to it and as shall be necessary to vest in the Originator any Mortgage
Loan released pursuant hereto, and neither the Trust Administrator nor the
Trustee shall have any further responsibility with regard to such Mortgage File.
In lieu of repurchasing any such Mortgage Loan as provided above, if so provided
in the Mortgage Loan Purchase Agreement, the Originator may cause such Mortgage
Loan to be removed from REMIC I (in which case it shall become a Deleted
Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in
the manner and subject to the limitations set forth in Section 2.03(c). It is
understood and agreed that the obligation of the Originator to cure or to
repurchase (or to substitute for) any Mortgage Loan as to which a document is
missing, a material defect in a document exists or as to which such a breach has
occurred and is continuing shall constitute the sole remedy respecting such
omission, defect or breach available to the Trustee on behalf of the
Certificateholders.
(b)(i) Promptly upon the earlier of discovery by the Master
Servicer or receipt of notice by the Master Servicer of the breach of any
representation, warranty or covenant of the Master Servicer set forth in Section
2.05 which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the Master Servicer shall cure such
breach in all material respects.
(ii) Notwithstanding the provisions of Section 2.03(b)(i)
above,
(A) on the later of (x) the Master Servicer Remittance Date
next following the earlier of discovery by the Master Servicer or
receipt of notice by the Master Servicer of the breach of the
representation made by the Master Servicer in Section 2.05(vii), which
breach materially and adversely affects the interests of the Holders of
the Class P Certificates to any Prepayment Charge and (y) the Master
Servicer Remittance Date next following the Prepayment Period relating
to such a breach, the Master Servicer shall deposit into the Collection
Account the amount of the scheduled Prepayment Charge, less any amount
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collected and deposited by the Master Servicer into the Collection
Account in respect of such Prepayment Charge; and
(B) on the later of (x) the Master Servicer Remittance Date
next following the earlier of discovery by the Master Servicer or
receipt of notice by the Master Servicer of the breach of the covenant
made by the Master Servicer in Section 2.05(viii), which breach
materially and adversely affects the interests of the Holders of the
Class P Certificates to any Prepayment Charge and (y) the Master
Servicer Remittance Date next following the Prepayment Period relating
to such a breach, the Master Servicer shall deposit into the Collection
Account, as a Master Servicer Prepayment Charge Payment Amount, the
amount of the waived Prepayment Charge, but only to the extent required
under Section 2.03(b)(iii) below.
(iii) If with respect to any Prepayment Period,
(A) the dollar amount of Prepayment Charges that are the
subject of breaches by the Master Servicer of the covenant made by the
Master Servicer in Section 2.05(viii), which breaches materially and
adversely affects the interests of the Holders of the Class P
Certificates to such Prepayment Charges, exceeds
(B) 5% of the total dollar amount of Prepayment Charges
payable by Mortgagors in connection with Principal Prepayments on the
related Mortgage Loans that occurred during such Prepayment Period,
then the amount required to be paid by the Master Servicer pursuant to Section
2.03(b)(ii)(B) above shall be limited to an amount, that when added to the
amount of Prepayment Charges actually collected by the Master Servicer in
respect of Prepayment Charges relating to Principal Prepayments on the related
Mortgage Loans that occurred during such Prepayment Period, will yield a sum
equal to 95% of the total dollar amount of Prepayment Charges (exclusive of (A)
Prepayment Charges not enforced or collected upon because (i) the enforceability
thereof shall have been limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights generally or
(ii) the collectability thereof shall have been limited due to acceleration in
connection with a foreclosure or other involuntary payment and (B) Prepayment
Charges waived by the Master Servicer when such waiver does not breach the
covenant set forth in Section 2.05(viii)) payable by Mortgagors in connection
with Principal Prepayments on the related Mortgage Loans that occurred during
such Prepayment Period.
(c) Any substitution of Qualified Substitute Mortgage Loans
for Deleted Mortgage Loans made pursuant to Section 2.03(a), in the case of the
Originator, or Section 2.03(b), in the case of the Depositor, must be effected
prior to the date which is two years after the Startup Day for REMIC I.
As to any Deleted Mortgage Loan for which the Originator or
the Depositor substitutes a Qualified Substitute Mortgage Loan or Loans, such
substitution shall be effected by the Originator or the Depositor, as the case
may be, delivering to the Trust Administrator (or a Custodian on behalf of the
Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage
Note,
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the Mortgage, the Assignment to the Trustee, and such other documents and
agreements, with all necessary endorsements thereon, as are required by Section
2.01, together with an Officers' Certificate providing that each such Qualified
Substitute Mortgage Loan satisfies the definition thereof and specifying the
Substitution Shortfall Amount (as described below), if any, in connection with
such substitution. The Trust Administrator (or a Custodian on behalf of the
Trustee) shall acknowledge receipt for such Qualified Substitute Mortgage Loan
or Loans and, within ten Business Days thereafter, review such documents as
specified in Section 2.02 and deliver to the Depositor, the NIMS Insurer, the
Trustee and the Master Servicer, with respect to such Qualified Substitute
Mortgage Loan or Loans, a certification substantially in the form attached
hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one
year of the date of substitution, the Trust Administrator shall deliver to the
Depositor, the NIMS Insurer, the Trustee and the Master Servicer a certification
substantially in the form of Exhibit C-2 hereto with respect to such Qualified
Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon.
Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the
month of substitution are not part of REMIC I and will be retained by the
Depositor or the Originator, as the case may be. For the month of substitution,
distributions to Certificateholders will reflect the Monthly Payment due on such
Deleted Mortgage Loan on or before the Due Date in the month of substitution,
and the Depositor or the Originator, as the case may be, shall thereafter be
entitled to retain all amounts subsequently received in respect of such Deleted
Mortgage Loan. The Depositor shall give or cause to be given written notice to
the Certificateholders and the NIMS Insurer that such substitution has taken
place, shall amend the Mortgage Loan Schedule to reflect the removal of such
Deleted Mortgage Loan from the terms of this Agreement and the substitution of
the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such
amended Mortgage Loan Schedule to the Trustee, the Trust Administrator and the
NIMS Insurer. Upon such substitution, such Qualified Substitute Mortgage Loan or
Loans shall constitute part of the Mortgage Pool and shall be subject in all
respects to the terms of this Agreement and, in the case of a substitution
effected by the Originator, the Mortgage Loan Purchase Agreement, including all
applicable representations and warranties thereof.
For any month in which the Depositor or the Originator
substitutes one or more Qualified Substitute Mortgage Loans for one or more
Deleted Mortgage Loans, the Master Servicer will determine the amount (the
"Substitution Shortfall Amount"), if any, by which the aggregate Purchase Price
of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such
Qualified Substitute Mortgage Loan, the Scheduled Principal Balance thereof as
of the date of substitution, together with one month's interest on such
Scheduled Principal Balance at the applicable Net Mortgage Rate. On the date of
such substitution, the Depositor or the Originator, as the case may be, will
deliver or cause to be delivered to the Master Servicer for deposit in the
Collection Account an amount equal to the Substitution Shortfall Amount, if any,
and the Trust Administrator, upon receipt of the related Qualified Substitute
Mortgage Loan or Loans and certification by the Master Servicer of such deposit,
shall release to the Depositor or the Originator, as the case may be, the
related Mortgage File or Files and shall request the Trustee to (and the Trustee
shall) execute and deliver such instruments of transfer or assignment, in each
case without recourse, as the Depositor or the Originator, as the case may be,
shall deliver to it and as shall be necessary to vest therein any Deleted
Mortgage Loan released pursuant hereto.
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In addition, the Depositor or the Originator, as the case may
be, shall obtain at its own expense and deliver to the Trustee, the Trust
Administrator and the NIMS Insurer an Opinion of Counsel to the effect that such
substitution will not cause (a) any federal tax to be imposed on any Trust
REMIC, including without limitation, any federal tax imposed on "prohibited
transactions" under Section 860F(a)(1) of the Code or on "contributions after
the startup date" under Section 860G(d)(1) of the Code, or (b) any Trust REMIC
to fail to qualify as a REMIC at any time that any Certificate is outstanding.
(d) Upon discovery by the Depositor, the NIMS Insurer, the
Originator, the Master Servicer, the Trust Administrator or the Trustee that any
Mortgage Loan does not constitute a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code, the party discovering such fact shall within two
Business Days give written notice thereof to the other parties. In connection
therewith, the Originator or the Depositor shall repurchase or, subject to the
limitations set forth in Section 2.03(c), substitute one or more Qualified
Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the
earlier of discovery or receipt of such notice with respect to such affected
Mortgage Loan. Such repurchase or substitution shall be made by the Originator.
Any such repurchase or substitution shall be made in the same manner as set
forth in Section 2.03(a). The Trustee shall reconvey to the Depositor or the
Originator, as the case may be, the Mortgage Loan to be released pursuant hereto
in the same manner, and on the same terms and conditions, as it would a Mortgage
Loan repurchased for breach of a representation or warranty.
SECTION 2.04. [Reserved].
SECTION 2.05. Representations, Warranties and Covenants of
the Master Servicer.
The Master Servicer hereby represents, warrants and covenants
to the Trust Administrator and the Trustee, for the benefit of each of the Trust
Administrator, the Trustee, the Certificateholders and to the Depositor that as
of the Closing Date or as of such date specifically provided herein:
(i) The Master Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and is duly authorized and qualified to transact any and all
business contemplated by this Agreement to be conducted by the Master
Servicer in any state in which a Mortgaged Property is located or is
otherwise not required under applicable law to effect such
qualification and, in any event, is in compliance with the doing
business laws of any such State, to the extent necessary to ensure its
ability to enforce each Mortgage Loan and to service the Mortgage Loans
in accordance with the terms of this Agreement;
(ii) The Master Servicer has the full corporate power and
authority to service each Mortgage Loan, and to execute, deliver and
perform, and to enter into and consummate the transactions contemplated
by this Agreement and has duly authorized by all necessary corporate
action on the part of the Master Servicer the execution, delivery and
performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery thereof by the Depositor, the
Trust Administrator and the Trustee, constitutes a
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legal, valid and binding obligation of the Master Servicer, enforceable
against the Master Servicer in accordance with its terms, except to the
extent that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to the equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the
Master Servicer, the servicing of the Mortgage Loans by the Master
Servicer hereunder, the consummation of any other of the transactions
herein contemplated, and the fulfillment of or compliance with the
terms hereof are in the ordinary course of business of the Master
Servicer and will not (A) result in a breach of any term or provision
of the charter or by-laws of the Master Servicer or (B) conflict with,
result in a breach, violation or acceleration of, or result in a
default under, the terms of any other material agreement or instrument
to which the Master Servicer is a party or by which it may be bound, or
any statute, order or regulation applicable to the Master Servicer of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over the Master Servicer; and the Master Servicer
is not a party to, bound by, or in breach or violation of any indenture
or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it,
which materially and adversely affects or, to the Master Servicer's
knowledge, would in the future materially and adversely affect, (x) the
ability of the Master Servicer to perform its obligations under this
Agreement or (y) the business, operations, financial condition,
properties or assets of the Master Servicer taken as a whole;
(iv) The Master Servicer is an approved seller/servicer for
Xxxxxx Xxx or Xxxxxxx Mac in good standing and is a HUD approved
mortgagee pursuant to Section 203 and Section 211 of the National
Housing Act;
(v) Except as disclosed in the Prospectus Supplement, no
litigation is pending against the Master Servicer that would materially
and adversely affect the execution, delivery or enforceability of this
Agreement or the ability of the Master Servicer to service the Mortgage
Loans or to perform any of its other obligations hereunder in
accordance with the terms hereof;
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Master Servicer of, or compliance by the Master
Servicer with, this Agreement or the consummation of the transactions
contemplated by this Agreement, except for such consents, approvals,
authorizations or orders, if any, that have been obtained prior to the
Closing Date;
(vii) The information set forth in the Prepayment Charge
Schedule attached hereto as Schedule 2 (including the prepayment charge
summary attached thereto) is complete, true and correct in all material
respects at the date or dates respecting which such information is
furnished and each Prepayment Charge is permissible and enforceable in
accordance with its terms (except to the extent that (i) the
enforceability thereof may be limited by
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bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (ii) the collectability
thereof may be limited due to acceleration in connection with a
foreclosure or other involuntary payment;
(viii) The Master Servicer will not waive any Prepayment
Charge or part of a Prepayment Charge unless, (i) the enforceability
thereof shall have been limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights
generally or (ii) the collectability thereof shall have been limited
due to acceleration in connection with a foreclosure or other
involuntary payment or (iii) in the Master Servicer's reasonable
judgment as described in Section 3.01 hereof, (x) such waiver relates
to a default or a reasonably foreseeable default, (y) such waiver would
maximize recovery of total proceeds taking into account the value of
such Prepayment Charge and related Mortgage Loan and (z) doing so is
standard and customary in servicing similar Mortgage Loans (including
any waiver of a Prepayment Charge in connection with a refinancing of a
Mortgage Loan that is related to a default or a reasonably foreseeable
default). In no event will the Master Servicer waive a Prepayment
Charge in connection with a refinancing of a Mortgage Loan that is not
related to a default or a reasonably foreseeable default;
(ix) The information set forth in the "monthly tape"
provided to the Trustee or any of its affiliates is true and correct
in all material respects;
(x) With respect to each Mortgage Loan, the Assignment is in
recordable form; (except that the name of the assignee and the
recording information with respect to such Mortgage Loan is blank) and
each Mortgage Loan was originated in the name of the Master Servicer or
an affiliate thereof; and
(xi) The Master Servicer will fully furnish, in accordance
with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on
its borrower credit files to Equifax, Experian and Trans Union Credit
Information Company or their successors on a monthly basis .
It is understood and agreed that the representations,
warranties and covenants set forth in this Section 2.05 shall survive delivery
of the Mortgage Files to the Trust Administrator or to a Custodian, as the case
may be, and shall inure to the benefit of the Trust Administrator, the Trustee,
the Depositor and the Certificateholders. Upon discovery by any of the
Depositor, the NIMS Insurer, the Master Servicer, the Trust Administrator or the
Trustee of a breach of any of the foregoing representations, warranties and
covenants which materially and adversely affects the value of any Mortgage Loan,
Prepayment Charge or the interests therein of the Certificateholders, the party
discovering such breach shall give prompt written notice (but in no event later
than two Business Days following such discovery) to the NIMS Insurer, the Trust
Administrator and the Trustee. Subject to Section 7.01, the obligation of the
Master Servicer set forth in Section 2.03(b) to cure breaches (or in the case of
the representations, warranties and covenants set forth in Section 2.05(vii) and
Section 2.05(viii) above, to otherwise remedy such breaches pursuant to Section
2.03(b)) shall constitute the sole remedies against the Master Servicer
available to the Certificateholders, the Depositor, the Trust Administrator or
the Trustee on behalf of the Certificateholders respecting a breach of the
representations, warranties and covenants contained in this Section 2.05. The
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preceding sentence shall not, however, limit any remedies available to the
Certificateholders, the Depositor, the Trust Administrator or the Trustee on
behalf of the Certificateholders (other than in the case of the representations,
warranties and covenants set forth in Section 2.05(vii) and Section 2.05(viii)
above) pursuant to the Mortgage Loan Purchase Agreement signed by the Master
Servicer in its capacity as Originator, respecting a breach of the
representations, warranties and covenants of the Master Servicer in its capacity
as Originator contained in such Mortgage Loan Purchase Agreement.
SECTION 2.06. Issuance of the REMIC I Regular Interests and
the Class R-I Interest.
The Trustee acknowledges the assignment to it of the Mortgage
Loans and the delivery to it or the Trust Administrator of the Mortgage Files,
subject to the provisions of Section 2.01 and Section 2.02, together with the
assignment to it of all other assets included in REMIC I, the receipt of which
is hereby acknowledged. Concurrently with such assignment and delivery and in
exchange therefor, the Trustee or the Trust Administrator, pursuant to the
written request of the Depositor executed by an officer of the Depositor, has
executed, authenticated and delivered to or upon the order of the Depositor, the
Class R-I Interest in authorized denominations. The interests evidenced by the
Class R-I Interest, together with the REMIC I Regular Interests, constitute the
entire beneficial ownership interest in REMIC I. The rights of the Class R-I
Certificateholders and REMIC II (as holder of the REMIC I Regular Interests) to
receive distributions from the proceeds of REMIC I in respect of the Class R-I
Interest and the REMIC I Regular Interests, respectively, and all ownership
interests evidenced or constituted by the Class R-I Interest and the REMIC I
Regular Interests, shall be as set forth in this Agreement.
SECTION 2.07. Conveyance of the REMIC I Regular Interests;
Acceptance of REMIC II by the Trustee.
The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey to the
Trustee, without recourse all the right, title and interest of the Depositor in
and to the REMIC I Regular Interests for the benefit of the Class R
Certificateholders (as holder of the Class R-I Interest and Class R-II Interest)
and REMIC II (as holder of the REMIC I Regular Interest). The Trustee
acknowledges receipt of the REMIC I Regular Interests and declares that it holds
and will hold the same in trust for the exclusive use and benefit of all present
and future Class R Certificateholders (as holder of the Class R-I Interest and
Class R-II Interest) and REMIC II (as holder of the REMIC I Regular Interests).
The rights of the Class R Certificateholders (as holder of the Class R-I
Interest and Class R-II Interest) and REMIC II (as holder of the REMIC I Regular
Interest) to receive distributions from the proceeds of REMIC II in respect of
the Class R-II Interest and REMIC II Regular Interests, respectively, and all
ownership interests evidenced or constituted by the Class R-II Interest and the
REMIC I Regular Interests, shall be as set forth in this Agreement.
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SECTION 2.08. Conveyance of the REMIC II Regular Interests;
Acceptance of REMIC III by the Trustee.
The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey to the
Trustee, without recourse all the right, title and interest of the Depositor in
and to the REMIC II Regular Interests for the benefit of the Class R-
Certificateholders and REMIC III (as holder of the REMIC II Regular Interests).
The Trustee acknowledges receipt of the REMIC II Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of all present and future Class R Certificateholders and REMIC III (as holder of
the REMIC II Regular Interests). The rights of the Class R Certificateholders
and REMIC III (as holder of the REMIC II Regular Interests) to receive
distributions from the proceeds of REMIC III in respect of the Class R
Certificates and REMIC III Certificates, respectively, and all ownership
interests evidenced or constituted by the Class R Certificates and the REMIC III
Certificates, shall be as set forth in this Agreement.
SECTION 2.09. Issuance of Class R Certificates.
The Trustee acknowledges the assignment to it of the REMIC II
Regular Interests and, concurrently therewith and in exchange therefor, pursuant
to the written request of the Depositor executed by an officer of the Depositor,
the Trustee or the Trust Administrator has executed, authenticated and delivered
to or upon the order of the Depositor, the Class R Certificates in authorized
denominations. The interests evidenced by the Class R Certificates, together
with the REMIC III Certificates, constitute the entire beneficial ownership
interest in REMIC III.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Master Servicer to Act as Master Servicer.
The Master Servicer shall service and administer the Mortgage
Loans on behalf of the Trustee and in the best interests of and for the benefit
of the Certificateholders (as determined by the Master Servicer in its
reasonable judgment) in accordance with (i) the terms of the respective Mortgage
Loans and any insurance policies related thereto, (ii) all Applicable
Regulations, (iii) the terms of this Agreement, (iv) the Loss Mitigation Action
Plan, if applicable, and (v) to the extent consistent with the preceding
requirements, in the same manner in which it services and administers similar
mortgage loans for its own portfolio, giving due consideration to customary and
usual standards of practice of prudent mortgage lenders and loan servicers
administering similar mortgage loans but without regard to:
(i) any relationship that the Master Servicer, any
Sub-Servicer or any Affiliate of the Master Servicer or any
Sub-Servicer may have with the related Mortgagor;
(ii) the ownership of any Certificate by the Master Servicer
or any Affiliate of the Master Servicer;
(iii) the Master Servicer's obligation to make Advances or
Servicing Advances; or
(iv) the Master Servicer's or any Sub-Servicer's right to
receive compensation for its services hereunder or with respect to any
particular transaction (the "Servicing Standard").
Subject only to the above-described servicing standards and
the terms of this Agreement and of the respective Mortgage Loans, the Master
Servicer shall have full power and authority, acting alone or through
Sub-Servicers as provided in Section 6.06, to do or cause to be done any and all
things in connection with such servicing and administration which it may deem
necessary or desirable. Without limiting the generality of the foregoing, the
Master Servicer in its own name or in the name of a Sub-Servicer is hereby
authorized and empowered by the Trustee, in accordance with the servicing
standards set forth above, (i) to execute and deliver, on behalf of the
Certificateholders, the Trustee and the Trust Administrator, any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, or of forbearance, or of modification and all other comparable
instruments, with respect to the Mortgage Loans and the Mortgaged Properties,
(ii) to institute foreclosure proceedings or obtain a deed-in-lieu of
foreclosure to convert the ownership of such properties, and to hold or cause to
be held title to such properties, in the name of the Trust Fund, on behalf of
the Trustee, the Trust Administrator and the Certificateholders, (iii) to
market, sell and transfer title of REO Properties held in the name of the Trust
Fund to third party purchasers upon terms and conditions the Master Servicer
deems reasonable under the Servicing Standard, (4) to bring or respond to civil
actions or complaints (in its own name or that of the Trust Fund or the Trustee
on behalf of the Trust Fund) related to any Mortgage Loan, Mortgaged Property
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or REO Property held by the Trust Fund and (5) execute any other document
necessary or appropriate to enable the Master Servicer to carry out its
servicing and administrative duties hereunder consistent with the Servicing
Standard.
At the written request of the Master Servicer, the Trust
Administrator (on behalf of the Trustee) shall execute and furnish to the Master
Servicer such documents as are necessary or appropriate to enable the Master
Servicer to carry out its servicing and administrative duties hereunder. By
execution of this Agreement, the Trustee, on behalf of the Trust Fund, hereby
grants to the Master Servicer a power of attorney to execute any and all
documents necessary to carry out any and all servicing duties described in this
Agreement (including the taking of and transferring title of REO Properties to
third parties held in the name of the Trustee for the benefit of the Trust) and
expressly confirms that this paragraph along with the face page and a copy of
the signature page (duly executed) to this Agreement shall constitute the power
of attorney for evidentiary and/or recording purposes. Neither the Trustee nor
the Trust Administrator shall be liable for the actions of the Master Servicer
or any Sub-Servicers under such powers of attorney.
Subject to Section 3.04(d) hereof, in accordance with the
Servicing Standard, the Master Servicer shall advance or cause to be advanced
funds as necessary for the purpose of effecting the timely payment of taxes and
assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.04(d), and further as provided in Section
3.05(a). Any cost incurred by the Master Servicer or by Sub-Servicers in
effecting the timely payment of taxes and assessments on a Mortgaged Property
shall not, for the purpose of calculating distributions to Certificateholders,
be added to the unpaid principal balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit.
Consistent with the terms of this Agreement, the Master
Servicer may waive, modify or vary any term of any Mortgage Loan or consent to
the postponement of strict compliance with any such term or in any manner grant
indulgence to any Mortgagor if such waiver, modification, postponement or
indulgence is in conformity with the Servicing Standard; provided, however,
that:
(A) the Master Servicer, shall not make future advances
(except as provided in Section 4.03);
(B) the Master Servicer shall not permit any modification with
respect to any Mortgage Loan that would change the Mortgage Rate, defer
or forgive the payment of any principal or interest payments, reduce
the outstanding principal balance (except for reductions resulting from
actual payments of principal) or extend the final maturity date on such
Mortgage Loan (unless as provided in Section 3.02, (i) the Mortgagor is
in default with respect to the Mortgage Loan or (ii) such default is,
in the judgment of the Master Servicer, reasonably foreseeable); and
(C) the Master Servicer shall not consent to (i) partial
releases of Mortgages, (ii) alterations, (iii) removal, demolition or
division of properties subject to Mortgages, (iv) modification or (v)
second mortgage subordination agreements with respect to any Mortgage
Loan that would: (i) affect adversely the status of any Trust REMIC as
a REMIC,(ii) cause
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any Trust REMIC to be subject to a tax on "prohibited transactions" or
"contributions" pursuant to the REMIC Provisions, or (iii) both (x)
effect an exchange or reissuance of such Mortgage Loan under Section
1001 of the Code (or Treasury regulations promulgated thereunder) and
(y) cause any Trust REMIC constituting part of the Trust Fund to fail
to qualify as a REMIC under the Code or the imposition of any tax on
"prohibited transactions" or "contributions" after the Startup Day
under the REMIC Provisions.
To the extent consistent with the terms of this Agreement,
including Section 2.03 and Section 2.05, the Master Servicer may waive (or
permit a Sub-Servicer to waive) a Prepayment Charge only under the following
circumstances: (i) such waiver is standard and customary in servicing similar
Mortgage Loans and (ii) such waiver relates to a default or a reasonably
foreseeable default and would, in the reasonable judgment of the Master
Servicer, maximize recovery of total proceeds taking into account the value of
such Prepayment Charge and the related Mortgage Loan.
The Master Servicer may delegate its responsibilities under
this Agreement; provided, however, that no such delegation shall release the
Master Servicer from the responsibilities or liabilities arising under this
Agreement. All references to Master Servicer in this Agreement shall be deemed
to include any Sub-Servicer duly appointed by the Master Servicer pursuant to
this Agreement.
SECTION 3.02. Collection of Certain Mortgage Loan Payments.
The Master Servicer shall make reasonable efforts to collect
all payments called for under the terms and provisions of the Mortgage Loans,
and shall, to the extent such procedures shall be consistent with this Agreement
and the terms and provisions of any applicable insurance policies, follow such
collection procedures as it would follow with respect to mortgage loans
comparable to the Mortgage Loans and held for its own account. Consistent with
the foregoing, the Master Servicer may in its discretion (i) waive any late
payment charge or, if applicable, penalty interest, or (ii) extend the due dates
for the Monthly Payments due on a Mortgage Note for a period of not greater than
180 days; provided that any extension pursuant to clause (ii) above shall not
affect the amortization schedule of any Mortgage Loan for purposes of any
computation hereunder. The NIMS Insurer's prior written consent shall be
required for any modification, waiver or amendment if the amendment if the
aggregate number of outstanding Mortgage Loans which have been modified, waived
or amended exceeds 5% of the number of Mortgage Loans as of the Cut-off Date and
any Subsequent Cut-off Date. In the event of any such arrangement pursuant to
clause (ii) above, the Master Servicer shall make timely advances on such
Mortgage Loan during such extension pursuant to Section 4.03 and in accordance
with the amortization schedule of such Mortgage Loan without modification
thereof by reason of such arrangements.
Notwithstanding the foregoing, in the event that any Mortgage
Loan is in default or, in the judgment of the Master Servicer, such default is
reasonably foreseeable, the Master Servicer, consistent with the Servicing
Standard, may also waive, modify or vary any term of such Mortgage Loan
(including modifications that would change the Mortgage Rate, forgive the
payment of principal or interest or extend the final maturity date of such
Mortgage Loan), accept payment from the related Mortgagor of an amount less than
the Stated Principal Balance in final satisfaction of such Mortgage Loan, or
consent to the postponement of strict compliance with any such term or otherwise
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grant indulgence to any Mortgagor (any and all such waivers, modifications,
variances, forgiveness of principal or interest, postponements, or indulgences
collectively referred to herein as "forbearance"), provided, however, that in
determining which course of action permitted by this sentence it shall pursue,
the Master Servicer shall adhere to the Loss Mitigation Action Plan. The Master
Servicer's analysis supporting any forbearance and the conclusion that any
forbearance meets the standards of Section 3.01 and the Loss Mitigation Action
Plan shall be reflected in writing in the Mortgage File.
In the event that a shortfall in any collection on or
liability with respect to any Mortgage Loan results from or is attributable to
adjustments to Mortgage Rates, Monthly Payments or Stated Principal Balances
that were made by the Master Servicer in a manner not consistent with the terms
of the related Mortgage Note and this Agreement, the Master Servicer, upon
discovery or receipt of notice thereof, immediately shall deliver to the Trust
Administrator for deposit in the Distribution Account from its own funds the
amount of any such shortfall and shall indemnify and hold harmless the Trust
Fund, the Trustee, the Trust Administrator, the Depositor and any successor
master servicer in respect of any such liability. Such indemnities shall survive
the termination or discharge of this Agreement.
SECTION 3.03. [Reserved].
SECTION 3.04. Collection Account, Escrow Account and
Distribution Account.
(a) Collection Account. On behalf of the Trust Fund, the
Master Servicer shall segregate and hold all funds collected and received
pursuant to each Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain in the name of the Trustee one
or more accounts (such account or accounts, the "Collection Account") in
accordance with this Section 3.04, held in trust for the benefit of the Trustee,
the Trust Administrator and the Certificateholders.
(b) Deposits to the Collection Account. On behalf of the Trust
Fund, the Master Servicer shall deposit or cause to be deposited in the clearing
account (which account must be an Eligible Account) in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no event more than
one Business Day after the Master Servicer's receipt thereof, and shall
thereafter deposit in the Collection Account, in no event more than two Business
Days after the deposit of such funds into the clearing account, as and when
received or as otherwise required hereunder, and retain therein, the following
payments and collections received or made by it subsequent to the Cut-off Date
with respect to the Initial Mortgage Loans, or payments (other than Principal
Prepayments) received by it on or prior to the Cut-off Date but allocable to a
Due Period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans and REO Properties;
(ii) all payments on account of interest on the Mortgage Loans
and REO Properties adjusted to the Net Mortgage Rate;
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(iii) all Insurance Proceeds and Liquidation Proceeds (other
than proceeds to be held in the Escrow Account and applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with the Servicing Standard) and any amounts
received in respect of the rental of any REO Property prior to REO
Disposition;
(iv) all proceeds related to the purchase, substitution or
repurchase of any Mortgage Loan or REO Property in accordance with
Section 2.03;
(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.09 in connection with the deductible
clause in any blanket hazard insurance policy, such deposit being made
from the Master Servicer's own funds, without reimbursement therefor;
(vi) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with any losses
realized on Permitted Investments with respect to funds held in the
Collection Account;
(vii) all amounts required to be deposited in connection with
shortfalls in principal amount of Qualified Substitute Mortgage Loans
pursuant to Section 2.03 (for purposes of this clause (vii), the
Cut-off Date with respect to any Qualified Substitute Mortgage Loan
shall be deemed to be the date of substitution); and
(viii) all Prepayment Charges collected by the Master
Servicer, all Prepayment Charges payable by the Master Servicer
pursuant to Section 2.03(e)(ii)(A) and all Master Servicer Prepayment
Charge Payment Amounts payable by the Master Servicer pursuant to
Section 2.03(e)(ii)(B) as limited by Section 2.03(e)(iii).
The foregoing requirements for deposit to the Collection
Account shall be exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, payments in the nature of late payment
charges, assumption fees, insufficient funds charges, modification fees and
other ancillary fees (but not Prepayment Charges) need not be deposited by the
Master Servicer in the Collection Account and shall upon collection, belong to
the Master Servicer as additional compensation for its servicing activities. In
the event the Master Servicer shall deposit in the Collection Account any amount
not required to be deposited therein, it may at any time withdraw such amount
from the Collection Account, any provision herein to the contrary
notwithstanding.
(c) Escrow Account. The Master Servicer shall segregate and
hold all funds collected and received pursuant to each Mortgage Loan which
constitute Escrow Payments separate and apart from any of its own funds and
general assets and shall establish and maintain in the name of the Trustee one
or more accounts (such account or accounts, the "Escrow Account") held in trust
for the benefit of the Certificateholders, the Trustee and the Trust
Administrator.
(d) Deposits to the Escrow Account. The Master Servicer shall
deposit or cause to be deposited in the clearing account (which account must be
an Eligible Account) in which it customarily deposits payments and collections
on mortgage loans in connection with its mortgage loan servicing activities on a
daily basis, and in no event more than one Business Day after the
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Master Servicer's receipt thereof, and shall thereafter deposit in the Escrow
Account, in no event more than two Business Days after the deposit of such funds
into the clearing account, as and when received or as otherwise required
hereunder, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such items as
required under the terms of this Agreement; and
(ii) all Insurance Proceeds which are to be applied to the
restoration or repair of any Mortgaged Property.
(e) Distribution Account. On behalf of the Trust Fund, the
Trust Administrator shall segregate and hold all funds collected and received
pursuant to this Agreement separate and apart from any of its own funds and
general assets and shall establish and maintain in the name of the Trust Fund
one or more segregated accounts (such account or accounts, the "Distribution
Account"), held in trust for the benefit of the Certificateholders.
(f) Trust Administrator Deposits to the Distribution Account.
Upon receipt, the Trust Administrator shall deposit or cause to be deposited
into the Distribution Account all payments of any nature received from the
Master Servicer in accordance with this Agreement. The Trust Administrator shall
deposit in the Distribution Account any amounts required to be deposited
pursuant to Section 3.06 in connection with losses realized on Permitted
Investments with respect to funds held in the Distribution Account. Furthermore,
promptly upon receipt of any Stayed Funds, whether from the Master Servicer, a
trustee in bankruptcy, or federal bankruptcy court or other source, the Trust
Administrator shall deposit such funds in the Distribution Account, subject to
withdrawal thereof pursuant to Section 7.02(b) or as otherwise permitted
hereunder.
(g) Master Servicer Transfer of Funds to the Distribution
Account. On behalf of the Trust Fund, the Master Servicer shall deliver to the
Trust Administrator in immediately available funds for deposit in the
Distribution Account by 3:00 p.m. (New York time) on the Master Servicer
Remittance Date, (i) that portion of Available Funds (calculated without regard
to the references in clause (2) of the definition thereof to amounts that may be
withdrawn from the Distribution Account) for the related Distribution Date then
on deposit in the Collection Account, (ii) without duplication, the amount of
all Prepayment Charges collected by the Master Servicer, all Prepayment Charges
payable by the Master Servicer pursuant to Section 2.03(e)(ii)(A) and all Master
Servicer Prepayment Charge Payment Amounts payable by the Master Servicer
pursuant to Section 2.03(e)(ii)(B), subject to Section 2.03(e)(iii) (in each
case to the extent not related to Principal Prepayments occurring after the
related Prepayment Period) and (iii) any amounts reimbursable to an Advancing
Person pursuant to Section 3.23.
In addition, the Master Servicer shall deliver to the Trust
Administrator from time to time as required by this Agreement, for deposit and
the Trust Administrator shall so deposit, in the Distribution Account:
(i) any Advances, as required pursuant to Section 4.03;
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(ii) any amounts required to be deposited pursuant to Section
3.13 in connection with any REO Property;
(iii) any amounts to be paid in connection with a purchase of
Mortgage Loans and REO Properties pursuant to Section 3.16 and Section
9.01;
(iv) any Compensating Interest as required pursuant to Section
4.03(e);
(v) any Stayed Funds, as soon as permitted by the federal
bankruptcy court having jurisdiction in such matters;
(vi) any amounts required to be paid by the Master Servicer
pursuant to Section 3.06 in connection with any losses realized on
Permitted Investments with respect to funds held in the Collection
Account; and
(v) any amounts required to be paid to the Trust Administrator
or the Trustee from the assets of the Trust Fund on deposit in the
Collection Account pursuant to this Agreement, including but not
limited to amounts required to be paid to the Trust Administrator or
the Trustee pursuant to Section 7.02 and Section 8.05.
Funds held in the Collection Account pursuant to Section
3.04(b) may at any time be delivered by the Master Servicer to the Trust
Administrator for deposit into the Distribution Account and for all purposes of
this Agreement shall be deemed to be a part of the Collection Account until the
Business Day prior to the Distribution Date; provided, however, that the Trust
Administrator shall have the sole authority to withdraw any funds held pursuant
to this paragraph. In the event the Master Servicer shall deliver to the Trust
Administrator for deposit in the Distribution Account any amount not required to
be deposited therein, it may at any time request that the Trust Administrator
withdraw such amount from the Distribution Account and remit to it any such
amount, any provision herein to the contrary notwithstanding.
(h) Investment of Account Funds. Funds in on deposit in the
Collection Account, the Distribution Account, any REO Account and any Escrow
Account may be invested in Permitted Investments in accordance with the
provisions set forth in Section 3.06. Any investment earnings or interest paid
on funds deposited in the Collection Account, any REO Account and any Escrow
Account (subject to Section 3.05(b)) shall accrue to the benefit of the Master
Servicer and the Master Servicer shall be entitled to retain and withdraw such
interest from each such account on a daily basis. Any investment earnings or
interest paid on funds deposited in the Distribution Account, shall accrue to
the benefit of the Trust Administrator and the Trust Administrator shall be
entitled to retain and withdraw such interest from each such account on a daily
basis.
Funds on deposit in the Net WAC Rate Reserve Carryover Account
and the Initial Deposit Account may be invested in Permitted Investments in
accordance with Section 3.06 subject to any limitations set forth in Section
4.07 (with respect to the Net WAC Rate Carryover Reserve Account) and Section
4.08 (with respect to the Initial Deposit Account) and any investment earnings
or interest paid shall accrue to the benefit of the party designated in such
section.
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(i) Creation, Location and Subsequent Transfers of Accounts.
Each account created pursuant to this Agreement must be an Eligible Account. On
or prior to the Closing Date, the Master Servicer, the Trustee and the Trust
Administrator shall give notice, to each other, the NIMS Insurer and the
Depositor of the location of the any account created by it pursuant to this
Agreement. From time to time, the Master Servicer, the Trustee and the Trust
Administrator may each transfer any account created by it to a different
depository institution provided that upon such transfer the written notice is
provided to all other parties listed in the preceding sentence.
SECTION 3.05. Permitted Withdrawals From the Collection
Account, Escrow Account and Distribution
Account.
(a) Collection Account. The Master Servicer may, from time to
time, withdraw from the Collection Account for the following purposes or as
described in Section 4.03:
(i) to remit to the Trust Administrator for deposit in the
Distribution Account the amounts required to be so remitted pursuant to
Section 3.04(g) or permitted to be so remitted pursuant to the last
paragraph of Section 3.04(g);
(ii) subject to Section 3.12(c), to reimburse itself for (a)
any unpaid Servicing Fees, (b) any unreimbursed Servicing Advances and
(c) any unreimbursed Advances, the Master Servicer's right to reimburse
itself pursuant to this subclause (ii) being limited to any Late
Collections, Liquidation Proceeds, and Insurance Proceeds received on
the related Mortgage Loan and any amounts received in respect of the
rental of the related REO Property prior to an REO Disposition that
represent payments of principal and/or interest respecting which any
such advance was made;
(iii) to reimburse itself for (a) any unpaid Servicing Fees to
the extent not recoverable under Section 3.05(a)(ii) and (b) any unpaid
Advances or Servicing Advances that have been deemed Nonrecoverable
Advances or Nonrecoverable Servicing Advances;
(iv) to pay to itself any Prepayment Interest Excess;
(v) to reimburse itself for any amounts paid pursuant to
Section 3.12(b) (and not otherwise previously reimbursed);
(vi) to pay to itself as servicing compensation any interest
earned on funds in the Collection Account;
(vii) subject to Section 4.03(b), to reimburse the Master
Servicer in respect of any unreimbursed Advances to the extent of funds
held in the Collection Account for future distribution that were not
included in Available Funds for the preceding Distribution Date;
(viii) to reimburse the Master Servicer or the Depositor for
expenses incurred by or reimbursable to the Master Servicer or the
Depositor, as the case may be, pursuant to Section 6.03;
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(ix) to remit to the Trust Administrator or the Trustee any
amounts that the Trust Administrator or the Trustee, as applicable, is
permitted to be paid or reimbursed from the assets of the Trust Fund
pursuant to the terms of this Agreement, including the terms of Section
7.02(a) and Section 8.05 of this Agreement;
(x) to reimburse the NIMS Insurer, the Master Servicer (if the
Master Servicer is not an Affiliate of the Seller), the Trust
Administrator or the Trustee, as the case may be, for enforcement
expenses reasonably incurred in respect of the breach or defect giving
rise to the purchase obligation under Section 2.03 of this Agreement
that were included in the Purchase Price of the Mortgage Loan,
including any expenses arising out of the enforcement of the purchase
obligation;
(xi) to pay to the Master Servicer, the Depositor or the
Originator, as the case may be, with respect to each Mortgage Loan that
has previously been purchased or replaced pursuant to Section 2.03 or
Section 3.16(a) all amounts received thereon subsequent to the date of
purchase or substitution, as the case may be;
(xi) to transfer funds in the Collection Account maintained at
a particular depository to the Collection Account maintained at a
different depository, pursuant to Section 3.04(i); and
(xii) to clear and terminate the Collection Account upon the
termination of this Agreement.
On each Business Day as of the commencement of which the
balance on deposit in the Collection Account exceeds $75,000 following any
withdrawals pursuant to the next succeeding sentence, the amount of such excess
shall be remitted to the Trust Administrator, but only if the Collection Account
constitutes an Eligible Account solely pursuant to clause (ii) of the definition
of "Eligible Account." If the balance on deposit in the Collection Account
exceeds $75,000 as of the commencement of business on any Business Day and the
Collection Account constitutes an Eligible Account solely pursuant to clause
(ii) of the definition of "Eligible Account," the Master Servicer shall, on or
before 3:00 p.m. New York time on such Business Day, withdraw from the
Collection Account any and all amounts payable or reimbursable to the Depositor,
the Master Servicer, the Trust Administrator or any Sub-Servicer pursuant to
Section 3.05 and shall pay such amounts to the Persons entitled thereto.
The foregoing requirements for withdrawal from the Collection
Account shall be exclusive. In the event the Master Servicer shall deposit in
the Collection Account any amount not required to be deposited therein, it may
at any time withdraw such amount from the Collection Account, any provision
herein to the contrary notwithstanding.
The Master Servicer shall keep and maintain separate
accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of
justifying any withdrawal from the Collection Account, to the extent held by or
on behalf of it, pursuant to subclauses (ii), (iii), (iv), (v), (vi), (vii),
(viii) and (xi) above. The Master Servicer shall provide written notification to
the Trustee, the Trust
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Administrator and the NIMS Insurer on or prior to the next succeeding Master
Servicer Reporting Date, upon making any withdrawals from the Collection Account
pursuant to subclause (viii) above.
(b) Escrow Account. The Master Servicer may, from time to
time, withdraw from the Escrow Account for the following purposes:
(i) to effect payments of ground rents, taxes, assessments,
water rates, hazard insurance premiums and comparable items;
(ii) to reimburse the Master Servicer for any Servicing
Advance made by the Master Servicer with respect to a related Mortgage
Loan but only from amounts received on the related Mortgage Loan which
represent late payments or Late Collections of Escrow Payments
thereunder;
(iii) to refund to the Mortgagor any funds as may be
determined to be overages;
(iv) for transfer to the Collection Account in accordance with
the terms of this Agreement;
(v) for application to restoration or repair of the Mortgaged
Property;
(vi) to pay to the Master Servicer, or to the Mortgagor to the
extent required by the related Mortgage Loan or Applicable Regulations,
any interest paid on the funds deposited in the Escrow Account;
(vii) to clear and terminate the Escrow Account on the
termination of this Agreement; and
(viii) to transfer to the Collection Account any Insurance
Proceeds.
In the event the Master Servicer shall deposit in an Escrow
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from such Escrow Account, any provision herein to the
contrary notwithstanding. As part of its servicing duties, the Master Servicer
shall pay to the Mortgagor interest on funds in the Escrow Account, to the
extent required by the related Mortgage Loan or Applicable Regulations, and to
the extent that interest earned on funds in the Escrow Account is insufficient,
shall pay such interest from its own funds, without any reimbursement therefor.
The Master Servicer may pay to itself any excess interest on funds in the Escrow
Account, to the extent such action is in conformity with the Servicing Standard,
is permitted by law and such amounts are not required to be paid to Mortgagors
or used for any of the other purposes set forth above.
(c) Distribution Account. The Trust Administrator shall, from
time to time, make withdrawals from the Distribution Account, for any of the
following purposes:
(i) to make distributions to Certificateholders in accordance
with Section 4.01;
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(ii) to pay to itself and the Trustee amounts to which it is
entitled pursuant to Section 8.05;
(iii) to pay itself any interest income earned on funds
deposited in the Distribution Account pursuant to Section 3.06;
(iv) to reimburse itself pursuant to Section 7.01 and Section
7.02(b);
(v) to pay any amounts in respect of taxes pursuant to Section
10.01(g)(iii); and
(vi) to clear and terminate the Distribution Account pursuant
to Section 9.01.
SECTION 3.06. Investment of Funds in the Collection Account,
the Escrow Account, the REO Account and the
Distribution Account.
(a) The Master Servicer may direct any depository institution
maintaining the Collection Account, the Escrow Account (subject to Section
3.05(b)), and the REO Account and the Trust Administrator may direct any
depository institution maintaining the Distribution Account, (for purposes of
this Section 3.06, each an "Investment Account"), to invest the funds in such
Investment Account in one or more Permitted Investments bearing interest or sold
at a discount, and maturing, unless payable on demand, (i) no later than the
Business Day immediately preceding the date on which such funds are required to
be withdrawn from such account pursuant to this Agreement, if a Person other
than the Trust Administrator is the obligor thereon, and (ii) no later than the
date on which such funds are required to be withdrawn from such Investment
Account pursuant to this Agreement, if the Trust Administrator is the obligor
thereon. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trust Administrator on behalf of the Trustee (in its
capacity as such) or in the name of a nominee of the Trust Administrator. The
Trust Administrator shall be entitled to sole possession (except with respect to
investment direction of funds held in the Collection Account, the Escrow
Account, and the REO Account) over each such investment and (except with respect
to the income on funds held in the Collection Account, the Escrow Account and
the REO Account) the income thereon, and any certificate or other instrument
evidencing any such investment shall be delivered directly to the Trust
Administrator or its agent, together with any document of transfer necessary to
transfer title to such investment to the Trust Administrator or its nominee. In
the event amounts on deposit in an Investment Account are at any time invested
in a Permitted Investment payable on demand, the Trust Administrator shall:
(i) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount equal
to the lesser of (1) all amounts then payable thereunder and (2) the
amount required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly
upon determination by a Responsible Officer of the Trust Administrator
that such Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the Investment
Account.
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(b) All income in the nature of interest from the investment
of funds in the Collection Account, the Escrow Account (subject to Section
3.05(b)) and the REO Account shall be for the benefit of the Master Servicer as
compensation for the Master Servicer's services pursuant to this Agreement. The
Master Servicer shall deposit in the Collection Account, the Escrow Account, and
the REO Account from its own funds the amount of any loss incurred in respect of
any such Permitted Investment made with funds in such account immediately upon
realization of such loss.
(c) All income in the nature of interest or earnings from the
investment of funds in the Distribution Account shall be for the benefit of the
Trust Administrator as compensation for the Trust Administrator's services
pursuant to this Agreement. The Trust Administrator shall deposit in the
Distribution Account from its own funds the amount of any loss incurred on
Permitted Investments in the Distribution Account.
(d) Funds on deposit in the Net WAC Rate Carryover Reserve
Account and the Initial Deposit Account may be invested in Permitted Investments
in accordance with this Section 3.06 subject to any limitations set forth in
Section 4.07 (with respect to the Net WAC Rate Carryover Reserve Account) and
Section 4.08 (with respect to the Initial Deposit Account) and any investment
earnings or interest paid shall accrue to the benefit of the party designated in
such section and the party so designated shall deposit in the related account
from its own funds the amount of any loss incurred on Permitted Investments in
such account.
(e) Except as otherwise expressly provided in this Agreement,
if any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment, the Trust Administrator may and, subject to Section 8.01
and Section 8.02(a)(v), upon the request of the NIMS Insurer or the Holders of
Certificates representing more than 50% of the Voting Rights allocated to any
Class of Certificates, shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings.
SECTION 3.07. Payment of Taxes, Insurance and Other Charges.
With respect to each Mortgage Loan, the Master Servicer shall
maintain accurate records reflecting the status of ground rents, taxes,
assessments, water rates and other charges which are or may become a lien upon
the Mortgaged Property and the status of fire and hazard insurance coverage and,
as to those Mortgage Loans subject to a voluntary escrow agreement, shall
obtain, from time to time, all bills for the payment of such charges (including
renewal premiums) and shall effect payment thereof prior to the applicable
penalty or termination date and at a time appropriate for securing maximum
discounts allowable, employing for such purpose deposits of the Mortgagor in the
Escrow Account which shall have been estimated and accumulated by the Master
Servicer in amounts sufficient for such purposes, as allowed under the terms of
the Mortgage or Applicable Regulations. The Master Servicer assumes full
responsibility for the timely payment of all such bills and shall effect timely
payments of all such bills irrespective of the Mortgagor's faithful performance
in the payment of same or the making of the Escrow Payments and shall make
Servicing Advances from its own funds to effect such payments. To the extent
that the Mortgage does not provide for Escrow Payments, the Master Servicer
shall use reasonable efforts consistent with the Servicing
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Standard to determine that any such payments are made by the Mortgagor at the
time they first become due and shall ensure that the Mortgaged Property is not
lost to a tax lien as a result of nonpayment and that such Mortgaged Property is
not left uninsured.
SECTION 3.08. Maintenance of Hazard Insurance.
The Master Servicer shall cause to be maintained for each
Mortgage Loan fire insurance with extended coverage on the related Mortgaged
Property in an amount which is at least equal to the least of (i) the current
principal balance of such Mortgage Loan, (ii) the amount necessary to fully
compensate for any damage or loss to the improvements that are a part of such
property on a replacement cost basis and (iii) the maximum insurable value of
the improvements which are a part of such Mortgaged Property, in each case in an
amount not less than such amount as is necessary to avoid the application of any
coinsurance clause contained in the related hazard insurance policy. The Master
Servicer shall also cause to be maintained fire insurance with extended coverage
on each REO Property in an amount which is at least equal to the lesser of (i)
the maximum insurable value of the improvements which are a part of such
property and (ii) the outstanding principal balance of the related Mortgage
Loan, plus accrued interest at the Mortgage Rate and related Servicing Advances
(each measured at the time it became an REO Property). The Master Servicer will
comply in the performance of this Agreement with all reasonable rules and
requirements of each insurer under any such hazard policies. Any amounts to be
collected by the Master Servicer under any such policies (other than amounts to
be applied to the restoration or repair of the property subject to the related
Mortgage or amounts to be released to the Mortgagor in accordance with the
procedures that the Master Servicer would follow in servicing loans held for its
own account, subject to the terms and conditions of the related Mortgage and
Mortgage Note) shall be deposited in the Collection Account, subject to
withdrawal pursuant to Section 3.05, if received in respect of a Mortgage Loan,
or in the REO Account, subject to withdrawal pursuant to Section 3.13, if
received in respect of an REO Property. Any cost incurred by the Master Servicer
in maintaining any such insurance shall not, for the purpose of calculating
distributions to Certificateholders, be added to the unpaid principal balance of
the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan
so permit. It is understood and agreed that no earthquake or other additional
insurance is to be required of any Mortgagor other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Mortgaged Property or REO Property is
at any time in an area identified in the Federal Register by the Federal
Emergency Management Agency as having special flood hazards, the Master Servicer
will cause to be maintained a flood insurance policy in respect thereof. Such
flood insurance shall be in an amount equal to the lesser of (i) the unpaid
principal balance of the related Mortgage Loan; (ii) the maximum amount of such
insurance available for the related Mortgaged Property under the national flood
insurance program (assuming that the area in which such Mortgaged Property is
located is participating in such program) and (iii) the maximum insurable value
of the improvements which are part of the related Mortgaged Property.
SECTION 3.09. Maintenance of Mortgage Blanket Insurance.
In the event that the Master Servicer shall obtain and
maintain a blanket policy with an insurer having a General Policy Rating of A:V
or better in Best's Key Rating Guide (or such other rating that is comparable to
such rating) insuring against hazard losses on all of the Mortgage Loans,
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it shall conclusively be deemed to have satisfied its obligations as set forth
in the first two sentences of Section 3.08, it being understood and agreed that
such policy may contain a deductible clause, in which case the Master Servicer
shall, in the event that there shall not have been maintained on the related
Mortgaged Property or REO Property a policy complying with the first two
sentences of Section 3.08, and there shall have been one or more losses which
would have been covered by such policy, deposit to the Collection Account from
its own funds the amount not otherwise payable under the blanket policy because
of such deductible clause. In connection with its activities as administrator
and servicer of the Mortgage Loans, the Master Servicer agrees to prepare and
present, on behalf of itself, the Trustee, the Trust Administrator and
Certificateholders, claims under any such blanket policy in a timely fashion in
accordance with the terms of such policy.
SECTION 3.10. Fidelity Bond; Errors and Omissions Insurance.
The Master Servicer shall keep in force during the term of
this Agreement a policy or policies of insurance covering errors and omissions
for failure in the performance of the Master Servicer's obligations under this
Agreement, which policy or policies shall be in such form and amount that would
meet the requirements of Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of
the Mortgage Loans, unless the Master Servicer has obtained a waiver of such
requirements from Xxxxxx Mae or Xxxxxxx Mac. The Master Servicer shall also
maintain a fidelity bond in the form and amount that would meet the requirements
of Xxxxxx Mae or Xxxxxxx Mac, unless the Master Servicer has obtained a waiver
of such requirements from Xxxxxx Mae or Xxxxxxx Mac. The Master Servicer shall
provide the Trust Administrator and the NIMS Insurer (upon reasonable request)
with copies of any such insurance policies and fidelity bond. The Master
Servicer shall be deemed to have complied with this provision if an Affiliate of
the Master Servicer has such errors and omissions and fidelity bond coverage
and, by the terms of such insurance policy or fidelity bond, the coverage
afforded thereunder extends to the Master Servicer. Any such errors and
omissions policy and fidelity bond shall by its terms not be cancelable without
thirty days' prior written notice to the Trust Administrator. The Master
Servicer shall also cause each Sub-Servicer to maintain a policy of insurance
covering errors and omissions and a fidelity bond which would meet such
requirements.
SECTION 3.11. Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
The Master Servicer will, to the extent it has knowledge of
any conveyance or prospective conveyance of any Mortgaged Property by any
Mortgagor (whether by absolute conveyance or by contract of sale, and whether or
not the Mortgagor remains or is to remain liable under the Mortgage Note and/or
the Mortgage), exercise its rights to accelerate the maturity of such Mortgage
Loan under the "due-on-sale" clause, if any, applicable thereto; provided,
however, that the Master Servicer shall not exercise any such rights if
prohibited by law from doing so. If the Master Servicer reasonably believes it
is unable under applicable law to enforce such "due-on-sale" clause, or if any
of the other conditions set forth in the proviso to the preceding sentence
apply, the Master Servicer is authorized to enter into an assumption and
modification agreement from or with the person to whom such property has been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, to the extent permitted by applicable state
law, the Mortgagor remains liable thereon. The Master Servicer is also
authorized to enter into a substitution of liability agreement with such person,
pursuant to which the original
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Mortgagor is released from liability and such person is substituted as the
Mortgagor and becomes liable under the Mortgage Note, provided that no such
substitution shall be effective unless such person satisfies the underwriting
criteria of the Master Servicer. In connection with any assumption or
substitution, the Master Servicer shall apply such underwriting standards and
follow such practices and procedures as shall be normal and usual in its general
mortgage servicing activities and as it applies to other mortgage loans owned
solely by it. The Master Servicer shall not take or enter into any assumption
and modification agreement, however, unless (to the extent practicable in the
circumstances) it shall have received confirmation, in writing, of the continued
effectiveness of any applicable hazard insurance policy, or a new policy meeting
the requirements of this Section is obtained. Any fee collected by the Master
Servicer in respect of an assumption or substitution of liability agreement will
be retained by the Master Servicer as additional servicing compensation. In
connection with any such assumption, no material term of the Mortgage Note
(including but not limited to the related Mortgage Rate and the amount of the
Monthly Payment) may be amended or modified, except as otherwise required
pursuant to the terms thereof or otherwise permitted under Section 3.01. The
Master Servicer shall notify the Trust Administrator and any respective
Custodian that any such substitution or assumption agreement has been completed
by forwarding to the Trust Administrator or to such Custodian, as the case may
be, the executed original of such substitution or assumption agreement, which
document shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of such Mortgage File to the same extent as all
other documents and instruments constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision
of this Agreement, the Master Servicer shall not be deemed to be in default,
breach or any other violation of its obligations hereunder by reason of any
assumption of a Mortgage Loan by operation of law or by the terms of the
Mortgage Note or any assumption which the Master Servicer may be restricted by
law from preventing, for any reason whatever. For purposes of this Section 3.11,
the term "assumption" is deemed to also include a sale (of the Mortgaged
Property) subject to the Mortgage that is not accompanied by an assumption or
substitution of liability agreement.
SECTION 3.12. Realization Upon Defaulted Mortgage Loans.
(a) The Master Servicer shall, consistent with the Servicing
Standard and the Loss Mitigation Action Plan, foreclose upon or otherwise
comparably convert the ownership of properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.02. The Master Servicer shall be responsible for all costs and
expenses incurred by it in any such proceedings; provided, however, that such
costs and expenses will be recoverable as Servicing Advances by the Master
Servicer as contemplated in Section 3.05 and Section 3.13. The foregoing is
subject to the provision that, in any case in which Mortgaged Property shall
have suffered damage from an Uninsured Cause, the Master Servicer shall not be
required to expend its own funds toward the restoration of such property unless
it shall determine in its discretion that such restoration will increase the
proceeds of liquidation of the related Mortgage Loan after reimbursement to
itself for such expenses.
(b) Notwithstanding the foregoing provisions of this Section
3.12 or any other provision of this Agreement, with respect to any Mortgage Loan
as to which the Master Servicer has
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received actual notice of, or has actual knowledge of, the presence of any toxic
or hazardous substance on the related Mortgaged Property, the Master Servicer
shall not, on behalf of the Trustee, either (i) obtain title to such Mortgaged
Property as a result of or in lieu of foreclosure or otherwise or (ii) otherwise
acquire possession of, or take any other action with respect to, such Mortgaged
Property, if, as a result of any such action, the Trustee, the Trust Fund or the
Certificateholders would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Master Servicer has also previously
determined, based on its reasonable judgment and a report prepared by a Person
who regularly conducts environmental audits using customary industry standards,
that:
(1) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that it would be in the best economic
interest of the Trust Fund to take such actions as are necessary to
bring the Mortgaged Property into compliance therewith; and
(2) there are no circumstances present at such Mortgaged
Property relating to the use, management or disposal of any hazardous
substances, hazardous materials, hazardous wastes, or petroleum-based
materials for which investigation, testing, monitoring, containment,
clean-up or remediation could be required under any federal, state or
local law or regulation, or that if any such materials are present for
which such action could be required, that it would be in the best
economic interest of the Trust Fund to take such actions with respect
to the affected Mortgaged Property.
Notwithstanding the foregoing, if such environmental audit
reveals, or if the Master Servicer has actual knowledge or notice, that such
Mortgaged Property contains such toxic or hazardous wastes or substances, the
Master Servicer shall not foreclose or accept a deed in lieu of foreclosure
without the prior written consent of the NIMS Insurer.
The cost of the environmental audit report contemplated by
this Section 3.12 shall be advanced by the Master Servicer, subject to the
Master Servicer's right to be reimbursed therefor from the Collection Account as
provided in Section 3.05(a)(v), such right of reimbursement being prior to the
rights of Certificateholders to receive any amount in the Collection Account
received in respect of the affected Mortgage Loan or other Mortgage Loans.
If the Master Servicer determines, as described above, that it
is in the best economic interest of the Trust Fund to take such actions as are
necessary to bring any such Mortgaged Property into compliance with applicable
environmental laws, or to take such action with respect to the containment,
clean-up or remediation of hazardous substances, hazardous materials, hazardous
wastes or petroleum-based materials affecting any such Mortgaged Property, then
the Master Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund. The cost of any such compliance,
containment, cleanup or remediation shall be advanced by the Master Servicer,
subject to the Master Servicer's right to be reimbursed therefor from the
Collection Account as provided in Section 3.05(a)(v), such right of
reimbursement being prior to the rights of Certificateholders to receive any
amount in the Collection Account received in respect of the affected Mortgage
Loan or other Mortgage Loans.
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(c) Proceeds received in connection with any Final Recovery
Determination, as well as any recovery resulting from a partial collection of
Insurance Proceeds or Liquidation Proceeds, in respect of any Mortgage Loan,
will be applied in the following order of priority: first, to reimburse the
Master Servicer or any Sub-Servicer for any related unreimbursed Servicing
Advances and Advances, pursuant to Section 3.05(a)(ii); second, to accrued and
unpaid interest on the Mortgage Loan, to the date of the Final Recovery
Determination, or to the Due Date prior to the Distribution Date on which such
amounts are to be distributed if not in connection with a Final Recovery
Determination; and third, as a recovery of principal of the Mortgage Loan. If
the amount of the recovery so allocated to interest is less than the full amount
of accrued and unpaid interest due on such Mortgage Loan, the amount of such
recovery will be allocated by the Master Servicer as follows: first, to unpaid
Servicing Fees; and second, to the balance of the interest then due and owing.
The portion of the recovery so allocated to unpaid Servicing Fees shall be
reimbursed to the Master Servicer or any Sub-Servicer pursuant to Section
3.05(a)(ii).
SECTION 3.13. Title, Management and Disposition of REO
Property.
(a) The deed or certificate of sale of any REO Property shall
be taken in the name of the Trustee, or its nominee, in trust for the benefit of
the Certificateholders. Pursuant to the power of attorney granted in Section
3.01, the Master Servicer is hereby authorized to transfer the title of any REO
Property taken in the name of the Trustee to a third party purchaser pursuant to
this Section 3.13 without further documentation of its authority as
attorney-in-fact for the Trustee on behalf of the Trust. The Master Servicer, on
behalf of REMIC I (and on behalf of the Trustee for the benefit of the
Certificateholders), shall either sell any REO Property before the close of the
third taxable year after the year REMIC I acquires ownership of such REO
Property for purposes of Section 860G(a)(8) of the Code or request from the
Internal Revenue Service, no later than 60 days before the day on which the
three-year grace period would otherwise expire, an extension of the three-year
grace period, unless the Master Servicer shall have delivered to the Trustee,
the Trust Administrator, the NIMS Insurer and the Depositor an Opinion of
Counsel, addressed to the Trustee, the Trust Administrator, the NIMS Insurer and
the Depositor, to the effect that the holding by REMIC I of such REO Property
subsequent to three years after its acquisition will not result in the
imposition on any Trust REMIC of taxes on "prohibited transactions" thereof, as
defined in Section 860F of the Code, or cause any Trust REMIC to fail to qualify
as a REMIC under Federal law at any time that any Certificates are outstanding.
The Master Servicer shall manage, conserve, protect and operate each REO
Property for the benefit of the Certificateholders and solely for the purpose of
its prompt disposition and sale in a manner which does not cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by any Trust REMIC of
any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code, or any "net income from foreclosure property" which
is subject to taxation under the REMIC Provisions.
(b) The Master Servicer shall segregate and hold all funds
collected and received in connection with the operation of any REO Property
separate and apart from its own funds and general assets and shall establish and
maintain with respect to REO Properties an account held in trust for the Trustee
for the benefit of the Certificateholders (the "REO Account"), which shall be an
Eligible Account. The Master Servicer shall be permitted to allow the Collection
Account to serve as the REO Account, subject to separate ledgers for each REO
Property. The Master Servicer
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shall be entitled to retain or withdraw any interest income paid on funds
deposited in the REO Account.
(c) The Master Servicer shall have full power and authority,
subject only to the specific requirements and prohibitions of this Agreement
(including the Loss Mitigation Action Plan), to do any and all things in
connection with any REO Property as are consistent with the manner in which the
Master Servicer manages and operates similar property owned by the Master
Servicer or any of its Affiliates, all on such terms and for such period as the
Master Servicer deems to be in the best interests of Certificateholders and
appropriate to effect the prompt disposition and sale of the REO Property. In
connection therewith, the Master Servicer shall deposit, or cause to be
deposited in the clearing account (which account must be an Eligible Account) in
which it customarily deposits payments and collections on mortgage loans in
connection with its mortgage loan servicing activities on a daily basis, and in
no event more than one Business Day after the Master Servicer's receipt thereof,
and shall thereafter deposit in the REO Account, in no event more than two
Business Days after the deposit of such funds into the clearing account, all
revenues received by it with respect to an REO Property and shall withdraw
therefrom funds necessary for the proper operation, management and maintenance
of such REO Property including, without limitation:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon; and
(iii) all costs and expenses necessary to maintain such REO
Property.
To the extent that amounts on deposit in the REO Account with
respect to an REO Property are insufficient for the purposes set forth in
clauses (i) through (iii) above with respect to such REO Property, the Master
Servicer shall advance from its own funds such amount as is necessary for such
purposes if, but only if, the Master Servicer would make such advances if the
Master Servicer owned the REO Property and if in the Master Servicer's judgment,
the payment of such amounts will be recoverable from the rental or sale of the
REO Property.
Notwithstanding the Master Servicer's obligation to the
Certificateholders to manage and operate (including the collection of rents from
existing tenants and management of any leases acquired with the REO property to
the extent applicable) the REO Property from the date of acquisition until the
date of sale, none of the Master Servicer, the Trust Administrator or the
Trustee shall knowingly:
(i) authorize the Trust Fund to enter into, renew or extend
any New Lease with respect to any REO Property, if the New Lease by its
terms will give rise to any income that does not constitute Rents from
Real Property;
(ii) authorize any amount to be received or accrued under any
New Lease other than amounts that will constitute Rents from Real
Property;
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(iii) authorize any construction on any REO Property, other
than the completion of a building or other improvement thereon, and
then only if more than ten percent of the construction of such building
or other improvement was completed before default on the related
Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(iv) authorize any Person to Directly Operate any REO Property
on any date more than 90 days after its date of acquisition by the
Trust Fund;
unless, in any such case, the Master Servicer has obtained an Opinion of
Counsel, provided to the Trustee, the Trust Administrator and the NIMS Insurer,
to the effect that such action will not cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by REMIC I, and (B) the Master Servicer has
received written notice from the Trustee that it has received written consent
from the NIMS Insurer that the specific action may be taken.
The Master Servicer may contract with any Independent
Contractor for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) any such contract shall require, or shall be administered
to require, that the Independent Contractor pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed above and remit all related revenues
(net of such costs and expenses) to the Master Servicer as soon as
practicable, but in no event later than thirty days following the
receipt thereof by such Independent Contractor;
(iii) none of the provisions of this Section 3.13(c) relating
to any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Master Servicer of any of its
duties and obligations to the Trustee on behalf of the
Certificateholders with respect to the operation and management of any
such REO Property; and
(iv) the Master Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of such
REO Property.
The Master Servicer shall be entitled to enter into any
agreement with any Independent Contractor performing services for it related to
its duties and obligations hereunder for indemnification of the Master Servicer
by such Independent Contractor, and nothing in this Agreement shall be deemed to
limit or modify such indemnification. The Master Servicer shall be solely liable
for all fees owed by it to any such Independent Contractor, irrespective of
whether the Master Servicer's compensation pursuant to Section 3.18 is
sufficient to pay such fees. The Master Servicer shall not engage an Independent
Contractor to engage in any activities that the Master
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Servicer would not be permitted to engage in itself in accordance with the other
provisions of this Agreement (including the Loss Mitigation Action Plan).
(d) In addition to the withdrawals permitted under Section
3.13(c), the Master Servicer may from time to time make withdrawals from the REO
Account for any REO Property: (i) to pay itself or any Sub-Servicer unpaid
Servicing Fees in respect of the related Mortgage Loan; and (ii) to reimburse
itself or any Sub-Servicer for unreimbursed Servicing Advances and Advances made
in respect of such REO Property or the related Mortgage Loan. On the Master
Servicer Remittance Date, the Master Servicer shall withdraw from each REO
Account maintained by it and deposit into the Distribution Account in accordance
with Section 3.04(g)(ii), for distribution on the related Distribution Date in
accordance with Section 4.01, the income from the related REO Property received
during the prior calendar month, net of any withdrawals made pursuant to Section
3.13(c) or this Section 3.13(d).
(e) Subject to the time constraints set forth in Section
3.13(a), (including the constraint that the Master Servicer hold and manage each
REO Property "solely for the purpose of its prompt disposition") each REO
disposition shall be carried out by the Master Servicer at such price and upon
such terms and conditions as shall be in conformity with the requirements of the
Loss Mitigation Action Plan and as shall be normal and usual in its general
servicing activities for similar properties.
(f) The proceeds from the REO Disposition, net of any amount
required by law to be remitted to the Mortgagor under the related Mortgage Loan
and net of any payment or reimbursement to the Master Servicer or any
Sub-Servicer as provided above, shall be deposited in the Distribution Account
in accordance with Section 3.04(g)(ii) on the Master Servicer Remittance Date in
the month following the receipt thereof for distribution on the related
Distribution Date in accordance with Section 4.01. Any REO Disposition shall be
for cash only (unless changes in the REMIC Provisions made subsequent to the
Startup Day allow a sale for other consideration).
SECTION 3.14. [Reserved].
SECTION 3.15. Reports of Foreclosure and Abandonment of
Mortgaged Properties.
The Master Servicer shall file information returns with
respect to the receipt of mortgage interest received in a trade or business,
reports of foreclosures and abandonments of any Mortgaged Property and
cancellation of indebtedness income with respect to any Mortgaged Property as
required by Sections 6050H, 6050J and 6050P of the Code, respectively. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by such Sections 6050H, 6050J and 6050P of the Code.
SECTION 3.16. Optional Purchase of Defaulted Mortgage Loans.
(a)(i) The NIMS Insurer may, at its option, purchase a
Mortgage Loan which has become 90 or more days delinquent or for which the
Master Servicer has accepted a deed in lieu of foreclosure. Prior to purchase
pursuant to this Section 3.16(a)(i), the Master Servicer shall be
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required to continue to make Advances pursuant to Section 4.03. The NIMS Insurer
shall not use any procedure in selecting Mortgage Loans to be repurchased which
is materially adverse to the interests of the Certificateholders. The NIMS
Insurer shall purchase such delinquent Mortgage Loan at a price equal to the
Purchase Price of such Mortgage Loan. Any such purchase of a Mortgage Loan
pursuant to this Section 3.16(a)(i) shall be accomplished by remittance to the
Master Servicer for deposit in the Collection Account of the amount of the
Purchase Price. The Trust Administrator shall immediately request the Trustee to
(and the Trustee shall) effectuate the conveyance of such delinquent Mortgage
Loan to the NIMS Insurer to the extent necessary, and the Trust Administrator
shall promptly deliver all documentation to the NIMS Insurer.
(ii) During the first full calender month (but excluding the
last Business Day thereof) following a Mortgage Loan or related REO Property
becoming 90 days or more delinquent, the Master Servicer shall have the option,
but not the obligation to purchase from the Trust Fund any such Mortgage Loan or
related REO Property that is then still 90 days or more delinquent, which the
Master Servicer determines in good faith will otherwise become subject to
foreclosure proceedings (evidence of such determination to be delivered in
writing to the Trust Administrator prior to purchase), at a price equal to the
Purchase Price. The Purchase Price for any Mortgage Loan or related REO Property
purchased hereunder shall be deposited in the Collection Account, and the Trust
Administrator, upon written certification of such deposit, shall release or
cause to be released to the Master Servicer the related Mortgage File and shall
request the Trustee (and the Trustee shall) execute and the Trust Administrator
shall deliver such instruments of transfer or assignment, in each case without
recourse, as the Master Servicer shall furnish and as shall be necessary to vest
in the Master Servicer title to any Mortgage Loan or related REO Property
released pursuant hereto.
(b) If with respect to any delinquent Mortgage Loan or related
REO Property, the option of the Master Servicer set forth in the preceding
paragraph shall have arisen but the Master Servicer shall have failed to
exercise such option on or before the Business Day preceding the last Business
Day of the calender month following the calender month during which such
Mortgage Loan or related REO Property first became 90 days or more delinquent,
then such option shall automatically expire; provided, however, that if any such
Mortgage Loan or related REO Property shall cease to be 90 days or more
delinquent but then subsequently shall again become 90 days or more delinquent,
then the Master Servicer shall be entitled to another repurchase option with
respect to such Mortgage Loan or REO Property as provided in the preceding
paragraph.
SECTION 3.17. Trust Administrator to Cooperate; Release of
Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the
receipt by the Master Servicer of a notification that payment in full shall be
escrowed in a manner customary for such purposes, the Master Servicer will
promptly notify the the Trust Administrator and the Trustee and any related
Custodian by a certification in the form of Exhibit E-2 (which certification
shall include a statement to the effect that all amounts received or to be
received in connection with such payment which are required to be deposited in
the Collection Account pursuant to Section 3.04(b) have been or will be so
deposited) of a Servicing Officer and shall request delivery to it of the
Mortgage File. Upon receipt of such certification and request, the Trust
Administrator or such Custodian, as the case may be, shall promptly release (and
in no event more than three (3) Business Days thereafter) the related Mortgage
File to the Master Servicer. No expenses incurred in connection with any
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instrument of satisfaction or deed of reconveyance shall be chargeable to the
Collection Account or the Distribution Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any insurance policy relating to the Mortgage Loans, the Trust Administrator and
any related Custodian shall, upon request of the Master Servicer and delivery to
the Trustee, the Trust Administrator or such Custodian, as the case may be, of a
Request for Release in the form of Exhibit E-l, release the related Mortgage
File to the Master Servicer, and the Trustee shall, at the direction of the
Master Servicer, execute such documents as shall be necessary to the prosecution
of any such proceedings and the Master Servicer shall retain such Mortgage File
in trust for the benefit of the Certificateholders. Such Request for Release
shall obligate the Master Servicer to return each and every document previously
requested from the Mortgage File to the Trust Administrator or to such Custodian
when the need therefor by the Master Servicer no longer exists, unless the
Mortgage Loan has been liquidated and the Liquidation Proceeds relating to the
Mortgage Loan have been deposited in the Collection Account or the Mortgage File
or such document has been delivered to an attorney, or to a public trustee or
other public official as required by law, for purposes of initiating or pursuing
legal action or other proceedings for the foreclosure of the Mortgaged Property
either judicially or non-judicially, and the Master Servicer has delivered to
the Trust Administrator a certificate of a Servicing Officer certifying as to
the name and address of the Person to which such Mortgage File or such document
was delivered and the purpose or purposes of such delivery. Upon receipt of a
certificate of a Servicing Officer stating that such Mortgage Loan was
liquidated and that all amounts received or to be received in connection with
such liquidation that are required to be deposited into the Collection Account
have been so deposited, or that such Mortgage Loan has become an REO Property, a
copy of the Request for Release shall be released by the Trust Administrator or
such Custodian to the Master Servicer.
(c) Upon written certification of a Servicing Officer, the
Trust Administrator shall request the Trustee (and the Trustee shall) execute
and the Trust Administrator shall deliver to the Master Servicer any court
pleadings, requests for trustee's sale or other documents reasonably necessary
to the foreclosure or trustee's sale in respect of a Mortgaged Property or to
any legal action brought to obtain judgment against any Mortgagor on the
Mortgage Note or Mortgage or to obtain a deficiency judgment, or to enforce any
other remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity. Each such certification shall include a request
that such pleadings or documents be executed by the Trustee and a statement as
to the reason such documents or pleadings are required and that the execution
and delivery thereof by the Trustee will not invalidate or otherwise affect the
lien of the Mortgage, except for the termination of such a lien upon completion
of the foreclosure or trustee's sale.
SECTION 3.18. Servicing Compensation.
As compensation for the activities of the Master Servicer
hereunder, the Master Servicer shall be entitled to the Servicing Fee with
respect to each Mortgage Loan payable solely from payments of interest in
respect of such Mortgage Loan, subject to Section 4.03(e). In addition, the
Master Servicer shall be entitled to recover unpaid Servicing Fees out of
Insurance Proceeds or Liquidation Proceeds to the extent permitted by Section
3.05(a)(ii), out of general funds in the
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Collection Account to the extent permitted by Section 3.05(a) and out of amounts
derived from the operation and sale of an REO Property to the extent permitted
by Section 3.13. The right to receive the Servicing Fee may not be transferred
in whole or in part except in connection with the transfer of all of the Master
Servicer's responsibilities and obligations under this Agreement.
Additional servicing compensation in the form of assumption
fees, late payment charges, insufficient funds fees, reconveyance fees and other
similar fees and charges (other than Prepayment Charges) shall be retained by
the Master Servicer only to the extent such fees or charges are received by the
Master Servicer. The Master Servicer shall also be entitled pursuant to Section
3.05(a)(vi) to withdraw from the Collection Account, pursuant to Section 3.04(h)
to withdraw from any Escrow Account and pursuant to Section 3.13(b) to withdraw
from any REO Account, as additional servicing compensation, interest or other
income earned on deposits therein, subject to Section 3.06. The Master Servicer
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder (including premiums for the insurance required by
Section 3.08, Section 3.09 and Section 3.10, to the extent such premiums are not
paid by the related Mortgagors or by a Sub-Servicer, servicing compensation of
each Sub-Servicer, and to the extent provided in Section 8.05, the fees and
expenses of the Trustee and the Trust Administrator) and shall not be entitled
to reimbursement therefor except as specifically provided herein.
SECTION 3.19. Statement as to Compliance.
The Master Servicer will deliver to the Trust Administrator,
the Trustee, the NIMS Insurer, the Depositor and each Rating Agency on or before
April 30th of each calendar year commencing in 2003, an Officers' Certificate
stating, as to each signatory thereof, that (i) a review of the activities of
the Master Servicer during the preceding year and of performance under this
Agreement has been made under such officers' supervision and (ii) to the best of
such officers' knowledge, based on such review, the Master Servicer has
fulfilled all of its obligations under this Agreement throughout such year, or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof. Copies of any such statement shall be provided by the Trust
Administrator to any Certificateholder and to any Person identified to the Trust
Administrator as a prospective transferee of a Certificate, upon the request and
at the expense of the requesting party, provided that such statement is
delivered by the Master Servicer to the Trust Administrator.
SECTION 3.20. Independent Public Accountants' Servicing
Report.
Not later than April 30th of each calendar year commencing in
2003, the Master Servicer, at its expense, shall cause a nationally recognized
firm of independent certified public accountants to furnish to the Master
Servicer a report stating that (i) it has obtained a letter of representation
regarding certain matters from the management of the Master Servicer which
includes an assertion that the Master Servicer has complied with certain minimum
residential mortgage loan servicing standards, identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the servicing of residential mortgage
loans during the most recently completed fiscal year and (ii) on the basis of an
examination conducted by such firm in accordance with standards established by
the American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects,
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subject to such exceptions and other qualifications that may be appropriate. In
rendering its report such firm may rely, as to matters relating to the direct
servicing of residential mortgage loans by Sub- Servicers, upon comparable
reports of firms of independent certified public accountants rendered on the
basis of examinations conducted in accordance with the same standards (rendered
within one year of such report) with respect to those Sub-Servicers. Immediately
upon receipt of such report, the Master Servicer shall furnish a copy of such
report to the Trust Administrator, the NIMS Insurer and each Rating Agency.
Copies of such statement shall be provided by the Trust Administrator to any
Certificateholder upon request at the Master Servicer's expense, provided that
such statement is delivered by the Master Servicer to the Trust Administrator.
In the event such firm of independent certified public accountants requires the
Trust Administrator to agree to the procedures performed by such firm, the
Master Servicer shall direct the Trust Administrator in writing to so agree; it
being understood and agreed that the Trust Administrator will deliver such
letter of agreement in conclusive reliance upon the direction of the Master
Servicer, and the Trust Administrator has not made any independent inquiry or
investigation as to, and shall have no obligation or liability in respect of,
the sufficiency, validity or correctness of such procedures.
SECTION 3.21. Access to Certain Documentation.
The Master Servicer shall provide to the Office of Thrift
Supervision, the FDIC, and any other federal or state banking or insurance
regulatory authority that may exercise authority over any Certificateholder,
access to the documentation regarding the Mortgage Loans required by applicable
laws and regulations. Such access shall be afforded without charge, but only
upon reasonable request and during normal business hours at the offices of the
Master Servicer designated by it. In addition, access to the documentation
regarding the Mortgage Loans will be provided to any Certificateholder, the
Trust Administrator, the NIMS Insurer and to any Person identified to the Master
Servicer as a prospective transferee of a Certificate, upon reasonable request
during normal business hours at the offices of the Master Servicer designated by
it at the expense of the Person requesting such access. In each case, access to
any documentation regarding the Mortgage Loans may be conditioned upon the
requesting party's acknowledgment in writing of a confidentiality agreement
regarding any information that is required to remain confidential under the
Xxxxx-Xxxxx-Xxxxxx Act of 1999.
SECTION 3.22. [Reserved]
SECTION 3.23. Advance Facility.
(a) The Master Servicer and/or the Trustee on behalf of the
Trust Fund, in either case, with the consent of the NIMS Insurer, is hereby
authorized to enter into a facility with any Person which provides that such
Person (an "Advancing Person") may fund Advances and/or Servicing Advances under
this Agreement, although no such facility shall reduce or otherwise affect the
Master Servicer's obligation to fund such Advances and/or Servicing Advances. If
the Master Servicer enters into such an Advance Facility pursuant to this
Section 3.23, upon reasonable request of the Advancing Person, the Trustee shall
execute a letter of acknowledgment, confirming its receipt of notice of the
existence of such Advance Facility. To the extent that an Advancing Person funds
any Advance or any Servicing Advance and provides the Trust Administrator with
notice acknowledged by the Master Servicer that such Advancing Person is
entitled to reimbursement
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directly from the Trust Administrator pursuant to the terms of the Advance
Facility, such Advancing Person shall be entitled to receive reimbursement
pursuant to this Agreement for such amount to the extent provided in Section
3.23(b). Such notice from the Advancing Person must specify the amount of the
reimbursement, the Section of this Agreement that permits the applicable Advance
or Servicing Advance to be reimbursed and the section(s) of the Advance Facility
that entitle the Advancing Person to request reimbursement from the Trust
Administrator, rather than the Master Servicer, and include the Master
Servicer's acknowledgment thereto or proof of an Event of Default under the
Advance Facility. The Trustee and the Trust Administrator shall have no duty or
liability with respect to any calculation of any reimbursement to be paid to an
Advancing Person and shall be entitled to rely without independent investigation
on the Advancing Person's notice provided pursuant to this Section 3.23. An
Advancing Person whose obligations hereunder are limited to the funding of
Advances and/or Servicing Advances shall not be required to meet the
qualifications of a Sub-Servicer pursuant to Section 6.06 hereof. If the terms
of a facility proposed to be entered into with an Advancing Servicer by the
Trust Fund would not materially and adversely affect the interests of any
Certificateholder, then the NIMS Insurer shall not withhold its consent to the
Trust Fund's entering such facility.
(b) If an Advancing Person is entitled to reimbursement for
any particular Advance or Servicing Advance as set forth in Section 3.23(a),
then the Master Servicer shall not be permitted to reimburse itself therefor
under Section 3.05(a)(ii), Section 3.05(a)(iii), Section 3.05(a)(v) or Section
3.05(a)(vii), but instead the Master Servicer shall include such amounts in the
applicable remittance to the Trust Administrator made pursuant to Section
3.04(g) to the extent of amounts on deposit in the Collection Account on the
related Master Servicer Remittance Date. The Trust Administrator is hereby
authorized to pay to an Advancing Person reimbursements for Advances and
Servicing Advances from the Distribution Account to the same extent the Master
Servicer would have been permitted to reimburse itself for such Advances and/or
Servicing Advances in accordance with Section 3.05(a)(ii), Section 3.05(a)(iii),
Section 3.05(a)(v) or Section 3.05(a)(vii), as the case may be, had the Master
Servicer made such Advance or Servicing Advance.
(c) All Advances and Servicing Advances made pursuant to the
terms of this Agreement shall be deemed made and shall be reimbursed on a "first
in first out" (FIFO) basis.
(d) In the event the Master Servicer is terminated pursuant to
Section 7.01, the Advancing Person shall succeed to the terminated Master
Servicer's right of reimbursement set forth in Section 7.02(c) to the extent of
such Advancing Person's financing of Advances or Servicing Advances hereunder
then remaining unreimbursed.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a)(1)(A) On each Distribution Date, the following amounts, in
the following order of priority, shall be distributed by REMIC I to REMIC II on
account of the REMIC I Regular Interests or withdrawn from the Distribution
Account and distributed to the holders of the Class R Certificates (in respect
of the Class R-I Interest), as the case may be:
(i) first, to the Holders of REMIC I Regular Xxxxxxxxx
X-XXX0X, X-XXX0X, X-XXX0X, I-LTS1D, I-LTS2A, I-LTS2B, I-LTS2C, I-LTS2D,
I-LTS3A, X-XXX0X, X-XXX0X and I-LTS3D in an amount equal to (A) the
Uncertificated Interest for such Distribution Date, plus (B) any
amounts in respect thereof remaining unpaid from previous Distribution
Dates and second, to the Holders of REMIC I Regular Interest I-LT1,
REMIC I Regular Interest I-LT2, REMIC I Regular Interest I-LT3 and
REMIC I Regular Interest I-LTP, in an amount equal to (A) the
Uncertificated Interest for such Distribution Date, plus (B) any
amounts in respect thereof remaining unpaid from previous Distribution
Dates;
(ii) to the Holders of the REMIC I Regular Interest I-LTP, on
the Distribution Date immediately following the expiration of the
latest Prepayment Charge term as identified on the Mortgage Loan
Schedule or any Distribution Date thereafter until $100 has been
distributed pursuant to this clause;
(iii) on each Distribution Date, the remainder of the
Available Funds for such Distribution Date after the distributions made
pursuant to clause (i) and clause (ii) above, first, to the Holders of
REMIC I Regular Interest I-LT1, REMIC I Regular Interest I-LT2 and
REMIC I Regular Interest I-LT3 until the Uncertificated Balance of such
REMIC I Regular Interest is reduced to zero, and second, to the Holders
of REMIC I Regular Xxxxxxxxx X-XXX0X, X-XXX0X, X-XXX0X, I-LTS1D,
I-LTS2A, I-LTS2B, I-LTS2C, I-LTS2D, I-LTS3A, X-XXX0X, X-XXX0X and
I-LTS3D until the Uncertificated Balance of each such REMIC I Regular
Interest is reduced to zero; and
(iv) to the Holders of the Class R Certificates (in respect of
the Class R-I Interest), any amounts remaining after the distributions
pursuant to clauses (i) through (iii) above.
On each Distribution Date, all amounts representing Prepayment
Charges in respect of the Mortgage Loans received during the related Prepayment
Period will be distributed by REMIC I to the Holders of REMIC I Regular Interest
I-LTP. The payment of the foregoing amounts to the Holders of REMIC I Regular
Interest I-LTP shall not reduce the Uncertificated Balance thereof.
(B) On each Distribution Date, the following amounts, in the
following order of priority, shall be distributed by REMIC II to REMIC III on
account of the REMIC II Regular Interests or withdrawn from the Distribution
Account and distributed to the holders of the Class R Certificates (in respect
of the Class R-II Interest), as the case may be:
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(i) first, to the Holders of REMIC II Regular Interest
II-LTS1, REMIC II Regular Interest II-LTS2 and REMIC II Regular
Interest II-LTS3, PRO RATA, in an amount equal to (A) the
Uncertificated Interest for each such REMIC II Regular Interest for
such Distribution Date, plus (B) any amounts in respect thereof
remaining unpaid from previous Distribution Dates and then to Holders
of REMIC II Regular Interest II-LTAA, REMIC Regular Interest II-LTAF1,
REMIC Regular Interest II-LTAF2, REMIC Regular Interest II-LTAF3, REMIC
Regular Interest II-LTAF4, REMIC Regular Interest II-LTAF5, REMIC
Regular Interest II-LTAF6, REMIC II Regular Interest II-LTAV1, REMIC II
Regular Interest II-LTAV2, REMIC II Regular Interest II-LTM1, REMIC II
Regular Interest II-LTM2, REMIC Regular Interest II-LTM3, REMIC Regular
Interest II-LTM4, REMIC II Regular Interest II-LTZZ and REMIC II
Regular Interest II-LTP, PRO RATA, in an amount equal to (A) the
Uncertificated Interest for each such REMIC II Regular Interest for
such Distribution Date, plus (B) any amounts in respect thereof
remaining unpaid from previous Distribution Dates. Amounts payable as
Uncertificated Interest in respect of REMIC II Regular Interest II-LTZZ
shall be reduced and deferred when the REMIC II Overcollateralized
Amount is less than the REMIC II Overcollateralization Target Amount,
by the lesser of (x) the amount of such difference and (y) the Maximum
II-LTZZ Uncertificated Interest Deferral Amount and such amount will be
payable to the Holders of REMIC Regular Interest II-LTAF1, REMIC
Regular Interest II-LTAF2, REMIC Regular Interest II-LTAF3, REMIC
Regular Interest II-LTAF4, REMIC Regular Interest II-LTAF5, REMIC
Regular Interest II-LTAF6, REMIC II Regular Interest II-LTAV1, REMIC II
Regular Interest II-LTAV2, REMIC II Regular Interest II-LTM1, REMIC II
Regular Interest II-LTM2, REMIC Regular Interest II-LTM3 and REMIC
Regular Interest II-LTM4 in the same proportion as the
Overcollateralization Increase Amount is allocated to the Corresponding
Certificates;
(ii) second, to the Holders of REMIC II Regular Interests, in
an amount equal to the remainder of the Available Funds for such
Distribution Date after the distributions made pursuant to clause (i)
above, allocated as follows:
(a) to the Holders of REMIC II Regular Interest II-LTAA and
REMIC II Regular Interest II-LTP, 98.00% of such remainder (other than
amounts payable under clause (d) below), until the Uncertificated
Balance of such REMIC II Regular Interest is reduced to zero, provided,
however, that REMIC II Regular Interest II-LTP shall not be reduced
until the Distribution Date immediately following the expiration of the
latest Prepayment Charge as identified on the Prepayment Charge
Schedule or any Distribution Date thereafter, at which point such
amount shall be distributed to REMIC II Regular Interest II-LTP, until
$100 has been distributed pursuant to this clause;
(b) to the Holders of REMIC Regular Interest II-LTAF1, REMIC
Regular Interest II-LTAF2, REMIC Regular Interest II-LTAF3, REMIC
Regular Interest II-LTAF4, REMIC Regular Interest II-LTAF5, REMIC
Regular Interest II-LTAF6, REMIC II Regular Interest II-LTAV1, REMIC II
Regular Interest II-LTAV2, REMIC II Regular Interest II-LTM1, REMIC II
Regular Interest II-LTM2, REMIC Regular Interest II-LTM3 and REMIC
Regular Interest II-LTM4, 1.00% of such remainder (other than amounts
payable under clause (d) below), in the same proportion as principal
payments are allocated to the Corresponding
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Certificates, until the Uncertificated Balances of such REMIC II
Regular Interests are reduced to zero;
(c) to the Holders of REMIC II Regular Interest II-LTZZ, 1.00%
of such remainder (other than amounts payable under clause (d) below),
until the Uncertificated Balance of such REMIC II Regular Interest is
reduced to zero; then
(d) any remaining amount to the Holders of the Class R
Certificates (in respect of the Class R-II Interest); and
(iii) third, to REMIC II Regular Interest II-LTP, 100% of the
amount paid in respect of REMIC I Regular Interest I-LTP;
provided, however, that (i) 98.00% and (ii) 2.00% of any principal payments that
are attributable to an Overcollateralization Reduction Amount shall be allocated
to Holders of (i) REMIC II Regular Interest II-LTAA and REMIC II Regular
Interest II-LTP, in that order and (ii) REMIC II Regular Interest II-LTP,
respectively; provided that REMIC II Regular Interest II-LTP shall not be
reduced until the Distribution Date immediately following the expiration of the
latest Prepayment Charge as identified on the Prepayment Charge Schedule or any
Distribution Date thereafter, at which point such amount shall be distributed to
REMIC II Regular Interest II-LTP, until $100 has been distributed pursuant to
this clause.
(2) On the first Distribution Date, the Initial Deposit shall
be transferred from the Initial Deposit Account to the Distribution Account for
inclusion among the Available Funds for such Distribution Date.
(I) On each Distribution Date, the Trust Administrator shall
withdraw from the Distribution Account an amount equal to the Group I Interest
Remittance Amount and distribute to the Certificateholders the following
amounts, in the following order of priority:
(i) concurrently to the Holders of the Class AF Certificates
and the Class S Certificates (in respect of REMIC II Regular Interest
II-LTS1), an amount equal to the Senior Interest Distribution Amount
allocable to such Certificates, on a PRO RATA basis based on the
entitlement of each such Class; and
(ii) to the Holders of the Class AV-1 Certificates, the Class
AV-2 Certificates and the Class S Certificates (in respect of REMIC II
Regular Interest II-LTS2 and REMIC II Regular Interest II-LTS3), an
amount equal to the Senior Interest Distribution Amount allocable to
such Certificates, on a PRO RATA basis based on the entitlement of each
such Class, to the extent remaining unpaid after the distribution of
the Group II Interest Remittance Amount as set forth in Section
4.01(a)(2)(II)(i) below and the Group III Interest Remittance Amount as
set forth in Section 4.01(a)(2)(III)(i) below.
(II) On each Distribution Date, the Trust Administrator shall
withdraw from the Distribution Account an amount equal to the Group II Interest
Remittance Amount and distribute to the Certificateholders the following
amounts, in the following order of priority:
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(i) concurrently to the Holders of the Class AV-1 Certificates
and the Class S Certificates (in respect of REMIC II Regular Interest
II-LTS2), an amount equal to the Senior Interest Distribution Amount
allocable to such Certificates, on a PRO RATA basis based on the
entitlement of each such Class; and
(ii) to the Holders of the Class AF Certificates, the Class
AV-2 Certificates and the Class S Certificates (in respect of REMIC II
Regular Interest II-LTS1 and REMIC II Regular Interest II-LTS3), an
amount equal to the Senior Interest Distribution Amount allocable to
such Certificates, on a PRO RATA basis based on the entitlement of each
such Class, to the extent remaining unpaid after the distribution of
the Group I Interest Remittance Amount set forth in Section
4.01(a)(2)(I)(i) above and the Group III Interest Remittance Amount as
set forth in Section 4.01(a)(2)(III)(i) below.
(III) On each Distribution Date, the Trust Administrator shall
withdraw from the Distribution Account an amount equal to the Group III Interest
Remittance Amount and distribute to the Certificateholders the following
amounts, in the following order of priority:
(i) concurrently to the Holders of the Class AV-2 Certificates
and the Class S Certificates (in respect of REMIC II Regular Interest
II-LTS3), an amount equal to the Senior Interest Distribution Amount
allocable to such Certificates, on a PRO RATA basis based on the
entitlement of each such Class; and
(ii) to the Holders of the Class AF Certificates, the Class
AV-1 Certificates and the Class S Certificates (in respect of REMIC II
Regular Interest II-LTS1 and REMIC II Regular Interest II-LTS2), an
amount equal to the Senior Interest Distribution Amount allocable to
such Certificates, on a PRO RATA basis based on the entitlement of each
such Class, to the extent remaining unpaid after the distribution of
the Group I Interest Remittance Amount set forth in Section
4.01(a)(2)(I)(i) above and the Group II Interest Remittance Amount as
set forth in Section 4.01(a)(2)(II)(i) above.
(IV) On each Distribution Date, following the distributions
made pursuant to Section 4.01(a)(2)(I), (II) and (III) above, the Trust
Administrator shall withdraw from the Distribution Account an amount equal to
any remaining Group I Interest Remittance Amount, Group II Interest Remittance
Amount and Group III Interest Remittance Amount and distribute to the
Certificateholders the following amounts, in the following order of priority
(i) to the Holders of the Class M-1 Certificates, an amount
equal to the Interest Distribution Amount allocable to the Class M-1
Certificates;
(ii) to the Holders of the Class M-2 Certificates, an amount
equal to the Interest Distribution Amount allocable to the Class M-2
Certificates;
(iii) to the Holders of the Class M-3 Certificates, an amount
equal to the Interest Distribution Amount allocable to the Class M-3
Certificates; and
103
(iv) to the Holders of the Class M-4 Certificates, an amount
equal to the Interest Distribution Amount allocable to the Class M-4
Certificates.
(3)(I) On each Distribution Date (a) prior to the Stepdown
Date or (b) on which a Trigger Event is in effect, the Group I Principal
Distribution Amount shall be distributed in the following order of priority:
(i) to the Holders of the Class AF Certificates, allocated
among the Class AF Certificates and in the priority as set forth below,
until the Certificate Principal Balance thereof has been reduced to
zero;
(ii) to the holders of the Class AV-1 Certificates and the
Class AV-2 Certificates, on a PRO RATA basis based on the Class AV-1
Allocation Percentage and the Class AV-2 Allocation Percentage, after
taking into account the distribution of the Group II Principal
Distribution Amount pursuant to Section 4.01(a)(3)(II) below and the
Group III Principal Distribution Amount pursuant to Section
4.01(a)(3)(III) below, until the Certificate Principal Balances of such
Classes have been reduced to zero.
(II) On each Distribution Date (a) prior to the Stepdown Date
or (b) on which a Trigger Event is in effect, the Group II Principal
Distribution Amount shall be distributed in the following order of priority:
(i) to the Holders of the Class AV-1 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero;
(ii) to the holders of the Class AF Certificates (allocated
among the Class AF Certificates and in the priority as set forth below)
and the Class AV-2 Certificates, on a PRO RATA basis based on the Class
AF Allocation Percentage and the Class AV-2 Allocation Percentage,
after taking into account the distribution of the Group I Principal
Distribution Amount pursuant to Section 4.01(a)(3)(I) above and the
Group III Principal Distribution Amount pursuant to Section
4.01(a)(3)(III) below, until the Certificate Principal Balances of such
Classes have been reduced to zero.
(III) On each Distribution Date (a) prior to the Stepdown Date
or (b) on which a Trigger Event is in effect, the Group III Principal
Distribution Amount shall be distributed in the following order of priority:
(i) to the Holders of the Class AV-2 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero;
(ii) to the holders of the Class AF Certificates (allocated
among the Class AF Certificates and in the priority as set forth below)
and the Class AV-1 Certificates, on a PRO RATA basis based on the Class
AF Allocation Percentage and the Class AV-1 Allocation Percentage,
after taking into account the distribution of the Group I Principal
Distribution Amount pursuant to Section 4.01(a)(3)(I) above and the
Group II Principal Distribution
104
Amount pursuant to Section 4.01(a)(3)(II) above, until the Certificate
Principal Balances of such Classes have been reduced to zero.
(IV) On each Distribution Date (a) prior to the Stepdown Date
or (b) on which a Trigger Event is in effect, the sum of the Group I Principal
Distribution Amount, the Group II Principal Distribution Amount and the Group
III Principal Distribution Amount remaining undistributed for such Distribution
Date shall be distributed in the following order of priority:
(i) to the Holders of the Class M-1 Certificates, until the
Certificate Principal Balance of such Class has been reduced to zero;
(ii) to the Holders of the Class M-2 Certificates, until the
Certificate Principal Balance of such Class has been reduced to zero;
(iii) to the Holders of the Class M-3 Certificates, until the
Certificate Principal Balance of such Class has been reduced to zero;
and
(iv) to the Holders of the Class M-4 Certificates, until the
Certificate Principal Balance of such Class has been reduced to zero.
(V) On each Distribution Date (a) on or after the Stepdown
Date and (b) on which a Trigger Event is not in effect, the Group I Principal
Distribution Amount shall be distributed in the following order of priority;
(i) to the Holders of the Class AF Certificates, the Class AF
Principal Distribution Amount, allocated among the Class AF
Certificates and in the priority set forth below, until the Certificate
Principal Balance thereof has been reduced to zero;
(ii) to the extent of the portion, if any, of the Class AF
Principal Distribution Amount remaining undistributed pursuant to
Section 4.01(a)(3)(V)(i) above, to the Holders of the Class AV-1
Certificates and the Class AV-2 Certificates, on a PRO RATA basis based
on the Class AV-1 Allocation Percentage and the Class AV-2 Allocation
Percentage, after taking into account the distribution of the Group II
Principal Distribution Amount pursuant to Section 4.01(a)(3)(VI)(i)
below and the Group III Principal Distribution Amount pursuant to
Section 4.01(a)(3)(VII)(i) below, until the Certificate Principal
Balances of such Classes have been reduced to zero; and
(iii) to the holders of the Class AV-1 Certificates and the
Class AV-2 Certificates, on a PRO RATA basis based on the Class AV-1
Allocation Percentage and the Class AV-2 Allocation Percentage, after
taking into account the distribution of the Group II Principal
Distribution Amount pursuant to Section 4.01(a)(3)(VI)(i) below and the
Group III Principal Distribution Amount pursuant to Section
4.01(a)(3)(VII)(i) below, up to an amount equal to the Class AV-1
Principal Distribution Amount or the Class AV-2 Principal Distribution
Amount, as applicable, until the Certificate Principal Balances of such
Classes have been reduced to zero.
105
(VI) On each Distribution Date (a) on or after the Stepdown
Date and (b) on which a Trigger Event is not in effect, the Group II Principal
Distribution Amount shall be distributed in the following order of priority;
(i) to the Holders of the Class AV-1 Certificates, the Class
AV-1 Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
(ii) to the extent of the portion, if any, of the Class AV-1
Principal Distribution Amount remaining undistributed pursuant to
Section 4.01(a)(3)(VI)(i) above, to the Holders of the Class AF
Certificates (allocated among the Class AF Certificates and in the
priority set forth below) and the Class AV-2 Certificates, on a PRO
RATA basis based on the Class AF Allocation Percentage and the Class
AV-2 Allocation Percentage, after taking into account the distribution
of the Group I Principal Distribution Amount pursuant to Section
4.01(a)(3)(V)(i) above and the Group III Principal Distribution Amount
pursuant to Section 4.01(a)(3)(VII)(i) below, until the Certificate
Principal Balances of such Classes have been reduced to zero; and
(iii) to the holders of the Class AF Certificates (allocated
among the Class AF Certificates and in the priority set forth below)
and the Class AV-2 Certificates, on a PRO RATA basis based on the Class
AF Allocation Percentage and the Class AV-2 Allocation Percentage,
after taking into account the distribution of the Group I Principal
Distribution Amount pursuant to Section 4.01(a)(3)(V)(i) above and the
Group III Principal Distribution Amount pursuant to Section
4.01(a)(3)(VII)(i) below, up to an amount equal to the Class AF
Principal Distribution Amount or the Class AV-2 Principal Distribution
Amount, as applicable, until the Certificate Principal Balances of such
Classes have been reduced to zero.
(VII) On each Distribution Date (a) on or after the Stepdown
Date and (b) on which a Trigger Event is not in effect, the Group III Principal
Distribution Amount shall be distributed in the following order of priority;
(i) to the Holders of the Class AV-2 Certificates, the Class
AV-2 Principal Distribution Amount, until the Certificate Principal
Balance thereof has been reduced to zero;
(ii) to the extent of the portion, if any, of the Class AV-2
Principal Distribution Amount remaining undistributed pursuant to
Section 4.01(a)(3)(VII)(i) above, to the Holders of the Class AF
Certificates (allocated among the Class AF Certificates and in the
priority set forth below) and the Class AV-1 Certificates, on a PRO
RATA basis based on the Class AF Allocation Percentage and the Class
AV-1 Allocation Percentage, after taking into account the distribution
of the Group I Principal Distribution Amount pursuant to Section
4.01(a)(3)(V)(i) above and the Group III Principal Distribution Amount
pursuant to Section 4.01(a)(3)(VI)(i) above, until the Certificate
Principal Balances of such Classes have been reduced to zero; and
106
(iii) to the holders of the Class AF Certificates (allocated
among the Class AF Certificates and in the priority set forth below)
and the Class AV-1 Certificates, on a PRO RATA basis based on the Class
AF Allocation Percentage and the Class AV-1 Allocation Percentage,
after taking into account the distribution of the Group I Principal
Distribution Amount pursuant to Section 4.01(a)(3)(V)(i) above and the
Group II Principal Distribution Amount pursuant to Section
4.01(a)(3)(VI)(i) above, up to an amount equal to the Class AF
Principal Distribution Amount or the Class AV-1 Principal Distribution
Amount, as applicable, until the Certificate Principal Balances of such
Classes have been reduced to zero.
(VIII) On each Distribution Date (a) on or after the Stepdown
Date and (b) on which a Trigger Event is not in effect, the sum of the Group I
Principal Distribution Amount, the Group II Principal Distribution Amount and
the Group III Principal Distribution Amount remaining undistributed for such
Distribution Date shall be distributed in the following order of priority:
(i) to the holders of the Class M-1 Certificates, the Class
M-1 Principal Distribution Amount until the Certificate Principal
Balance thereof has been reduced to zero;
(ii) to the holders of the Class M-2 Certificates, the Class
M-2 Principal Distribution Amount until the Certificate Principal
Balance thereof has been reduced to zero;
(iii) to the holders of the Class M-3 Certificates, the Class
M-3 Principal Distribution Amount until the Certificate Principal
Balance thereof has been reduced to zero; and
(iv) to the holders of the Class M-4 Certificates, the Class
M-4 Principal Distribution Amount until the Certificate Principal
Balance thereof has been reduced to zero.
With respect to the Class AF Certificates, all principal
distributions will be distributed as follows: first, to the Holders of the Class
AF-6 Certificates, the Lockout Distribution Percentage, until the Certificate
Principal Balance of the Class AF-6 Certificates has been reduced to zero;
second, to the Holders of the Class AF-1 Certificates, until the Certificate
Principal Balance of the Class AF-1 Certificates has been reduced to zero;
third, to the Holders of the Class AF-2 Certificates, until the Certificate
Principal Balance of the Class AF-2 Certificates has been reduced to zero;
fourth, to the Holders of the Class AF-3 Certificates, until the Certificate
Principal Balance of the Class AF-3 Certificates has been reduced to zero;
fifth, to the Holders of the Class AF-4 Certificates, until the Certificate
Principal Balance of the Class AF-4 Certificates has been reduced to zero;
sixth, to the Holders of the Class AF-5 Certificates, until the Certificate
Principal Balance of the Class AF- 5 Certificates has been reduced to zero and
seventh, to the Holders of the Class AF-6 Certificates, until the Certificate
Principal Balance of the Class AF-6 Certificates has been reduced to zero.
(4) On each Distribution Date, the Net Monthly Excess
Cashflow shall be distributed as follows:
(i) to the Holders of the Class or Classes of Certificates
then entitled to receive distributions in respect of principal, in an
amount equal to the Overcollateralization Increase
107
Amount, applied to reduce the Certificate Principal Balance of such
Certificates until the aggregate Certificate Principal Balance of such
Certificates is reduced to zero;
(ii) to the Holders of the Class M-1 Certificates, in an
amount equal to the Interest Carry Forward Amount allocable to such
Class of Certificates;
(iii) to the Holders of the Class M-2 Certificates, in an
amount equal to the Interest Carry Forward Amount allocable to such
Class of Certificates;
(iv) to the Holders of the Class M-3 Certificates, in an
amount equal to the Interest Carry Forward Amount allocable to such
Class of Certificates;
(v) to the Holders of the Class M-4 Certificates, in an amount
equal to the Interest Carry Forward Amount allocable to such Class of
Certificates;
(vi) to the Net WAC Rate Carryover Reserve Account, the amount
required by Section 4.07(b);
(vii) to the Holders of the Class CE Certificates the Interest
Distribution Amount and any remaining Overcollateralization Reduction
Amount; and
(viii) to the Holders of the Class R Certificates, any
remaining amounts; provided that if such Distribution Date is the
Distribution Date immediately following the expiration of the latest
Prepayment Charge term as identified on the Mortgage Loan Schedule or
any Distribution Date thereafter, then any such remaining amounts will
be distributed first, to the Holders of the Class P Certificates, until
the Certificate Principal Balance thereof has been reduced to zero; and
second, to the Holders of the Class R Certificates.
(b) On each Distribution Date, after making the distributions
of the Available Funds as set forth above, the Trust Administrator shall FIRST,
withdraw from the Net WAC Rate Carryover Reserve Account all income from the
investment of funds in the Net WAC Rate Carryover Reserve Account and distribute
such amount to the Holders of the Class CE Certificates, and SECOND, withdraw
from the Net WAC Rate Carryover Reserve Account, to the extent of amounts
remaining on deposit therein, the amount of any Net WAC Rate Carryover Amount
for such Distribution Date and distribute such amount FIRST, concurrently, to
the Class A Certificates and the Class S Certificates on a PRO RATA basis based
on the respective Net WAC Rate Carryover Amounts for such Classes of
Certificates, until each such amount has been paid in full; SECOND, to the Class
M-1 Certificates, THIRD, to the Class M-2 Certificates, FOURTH, to the Class M-3
Certificates and FIFTH, to the Class M-4 Certificates, in each case to the
extent the Net WAC Carryover Amount is allocable to each such Class.
On each Distribution Date, the Trust Administrator shall
withdraw any amounts then on deposit in the Distribution Account that represent
Prepayment Charges collected by the Master Servicer, Prepayment Charges payable
by the Master Servicer pursuant to Section 2.03(b)(ii)(A) and Master Servicer
Prepayment Charge Payment Amounts payable by the Master servicer pursuant to
Section 2.03(b)(ii)(B), subject to Section 2.03(b)(iii), in each case to the
extent not related to
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Principal Prepayments occurring after the related Prepayment Period, and the
Trust Administrator shall distribute such amounts to the Holders of the Class P
Certificates. Such distributions shall not be applied to reduce the Certificate
Principal Balance of the Class P Certificates.
(c) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated PRO RATA among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Payments in respect of each Class of Certificates on each
Distribution Date shall be made to the Holders of the respective Class of record
on the related Record Date (except as otherwise provided in Section 4.01(e) or
Section 9.01 respecting the final distribution on such Class), based on the
aggregate Percentage Interest represented by their respective Certificates, and
shall be made by wire transfer of immediately available funds to the account of
any such Holder at a bank or other entity having appropriate facilities
therefor, if such Holder shall have so notified the Trust Administrator in
writing at least five Business Days prior to the Record Date immediately prior
to such Distribution Date, or otherwise by check mailed by first class mail to
the address of such Holder appearing in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trust
Administrator maintained for such purpose pursuant to Section 8.12 or such other
location specified in the notice to Certificateholders of such final
distribution.
Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Trust
Administrator, the Certificate Registrar, the Depositor or the Master Servicer
shall have any responsibility therefor except as otherwise provided by this
Agreement or applicable law.
(d) The rights of the Certificateholders to receive
distributions in respect of the Certificates, and all interests of the
Certificateholders in such distributions, shall be as set forth in this
Agreement. Neither the Holders of any Class of Certificates nor the Trustee, the
Trust Administrator nor the Master Servicer shall in any way be responsible or
liable to the Holders of any other Class of Certificates in respect of amounts
properly previously distributed on the Certificates.
(e) Except as otherwise provided in Section 9.01, whenever the
Trust Administrator expects that the final distribution with respect to any
Class of Certificates will be made on the next Distribution Date, the Trust
Administrator shall, no later than five (5) days after the related Determination
Date, mail to each Holder on such date of such Class of Certificates a notice to
the effect that:
(i) the Trust Administrator expects that the final
distribution with respect to such Class of Certificates will be made on
such Distribution Date, but only upon presentation and surrender of
such Certificates at the office of the Trust Administrator therein
specified or its agent, and
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(ii) no interest shall accrue on such Certificates from and
after the end of the related Interest Accrual Period.
Any funds not distributed to any Holder or Holders of
Certificates of such Class on such Distribution Date because of the failure of
such Holder or Holders to tender their Certificates shall, on such date, be set
aside and held in trust by the Trust Administrator and credited to the account
of the appropriate non-tendering Holder or Holders. If any Certificates as to
which notice has been given pursuant to this Section 4.01(e) shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trust Administrator shall mail a second notice to the remaining
non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trust Administrator shall, directly or
through an agent, mail a final notice to remaining non-tendering
Certificateholders concerning surrender of their Certificates but shall continue
to hold any remaining funds for the benefit of non-tendering Certificateholders.
The costs and expenses of maintaining the funds in trust and of contacting such
Certificateholders shall be paid out of the assets remaining in such trust fund.
If within one year after the final notice any such Certificates shall not have
been surrendered for cancellation, the Trust Administrator shall pay to Deutsche
Bank Securities all such amounts, and all rights of non-tendering
Certificateholders in or to such amounts shall thereupon cease. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
by the Trust Administrator as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with this
Section 4.01(e).
(f) Notwithstanding anything to the contrary herein, (i) in no
event shall the Certificate Principal Balance of a Class A Certificate or a
Mezzanine Certificate be reduced more than once in respect of any particular
amount both (a) allocated to such Certificate in respect of Realized Losses
pursuant to Section 4.04 and (b) distributed to the Holder of such Certificate
in reduction of the Certificate Principal Balance thereof pursuant to this
Section 4.01 from Net Monthly Excess Cashflow and (ii) in no event shall the
Uncertificated Balance of a REMIC I Regular Interest or REMIC II Regular
Interest to be reduced more than once in respect of any particular amount both
(a) allocated to such REMIC I Regular Interest or REMIC II Regular Interest in
respect of Realized Losses pursuant to Section 4.04 and (b) distributed on such
REMIC I Regular Interest or REMIC II Regular Interest in reduction of the
Uncertificated Balance thereof pursuant to this Section 4.01.
SECTION 4.02. Statements to Certificateholders.
On each Distribution Date, the Trust Administrator shall
prepare and make available to each Holder of the Regular Certificates and the
NIMS Insurer, a statement as to the distributions made on such Distribution Date
setting forth:
(i) the amount of the distribution made on such Distribution
Date to the Holders of the Certificates of each Class allocable to
principal, and the amount of distribution made on such Distribution
Date to the Holders of the Class P Certificates allocable to Prepayment
Charges or Master Servicer Prepayment Charge Payment Amounts;
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(ii) the amount of the distribution made on such Distribution
Date to the Holders of the Certificates of each Class allocable to
interest;
(iii) the aggregate Servicing Fee received by the Master
Servicer during the related Due Period and such other customary
information as the Trust Administrator deems necessary or desirable, or
which a Certificateholder reasonably requests, to enable
Certificateholders to prepare their tax returns;
(iv) the aggregate amount of Advances for such Distribution
Date;
(v) the aggregate Stated Principal Balance of the Mortgage
Loans and any REO Properties as of the close of business on such
Distribution Date;
(vi) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Loans as of the related Due Date;
(vii) the number and aggregate unpaid principal balance of
Mortgage Loans (a) delinquent 30-59 days, (b) delinquent 60-89 days,
(c) delinquent 90 or more days in each case, as of the last day of the
preceding calendar month, (d) as to which foreclosure proceedings have
been commenced and (e) with respect to which the related Mortgagor has
filed for protection under applicable bankruptcy laws, with respect to
whom bankruptcy proceedings are pending or with respect to whom
bankruptcy protection is in force;
(viii) with respect to any Mortgage Loan that became an REO
Property during the preceding calendar month, the loan number of such
Mortgage Loan, the unpaid principal balance and the Stated Principal
Balance of such Mortgage Loan as of the date it became an REO Property;
(ix) the book value and the Stated Principal Balance of any
REO Property as of the close of business on the last Business Day of
the calendar month preceding the Distribution Date;
(x) the aggregate amount of Principal Prepayments made during
the related Prepayment Period;
(xi) the aggregate amount of Realized Losses incurred during
the related Prepayment Period (or, in the case of Bankruptcy Losses
allocable to interest, during the related Due Period), separately
identifying whether such Realized Losses constituted Bankruptcy Losses
and the aggregate amount of Realized Losses incurred since the Closing
Date;
(xii) the aggregate amount of Extraordinary Trust Fund
Expenses withdrawn from the Collection Account or the Distribution
Account for such Distribution Date;
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(xiii) the aggregate Certificate Principal Balance of the each
Class of Certificates, after giving effect to the distributions, and
allocations of Realized Losses, made on such Distribution Date,
separately identifying any reduction thereof due to allocations of
Realized Losses;
(xiv) the Certificate Factor for each such Class of
Certificates applicable to such Distribution Date;
(xv) the Interest Distribution Amount in respect of the Class
A Certificates, the Class S Certificates, the Mezzanine Certificates
and the Class CE Certificates for such Distribution Date and the
Interest Carry Forward Amount, if any, with respect to the Class A
Certificates, the Class S Certificates, the Mezzanine Certificates and
the Class S Certificates on such Distribution Date, and in the case of
the Class A Certificates, the Mezzanine Certificates, the Class S
Certificates and the Class CE Certificates, separately identifying any
reduction thereof due to allocations of Realized Losses, Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls;
(xvi) the aggregate amount of any Prepayment Interest
Shortfall for such Distribution Date, to the extent not covered by
payments by the Master Servicer pursuant to Section 4.03(e) or
allocated to the Class CE Certificates;
(xvii) the aggregate amount of Relief Act Interest Shortfalls
for such Distribution Date;
(xviii) the Overcollateralization Target Amount and the Credit
Enhancement Percentage for such Distribution Date;
(xix) the Overcollateralization Increase Amount, if any, for
such Distribution Date;
(xx) the Overcollateralization Reduction Amount, if any, for
such Distribution Date;
(xxi) with respect to any Mortgage Loan as to which
foreclosure proceedings have been concluded, the loan number and unpaid
principal balance of such Mortgage Loan as of the date of such
conclusion of foreclosure proceedings;
(xxii) with respect to Mortgage Loans as to which a Final
Liquidation has occurred, the number of Mortgage Loans, the unpaid
principal balance of such Mortgage Loans as of the date of such Final
Liquidation and the amount of proceeds (including Liquidation Proceeds
and Insurance Proceeds) collected in respect of such Mortgage Loans;
(xxiii) the respective Pass-Through Rates applicable to the
Class A Certificates, the Mezzanine Certificates, the Class S
Certificates and the Class CE Certificates for such Distribution Date
and the Pass-Through Rate applicable to the Class AV Certificates and
the Mezzanine Certificates for the immediately succeeding Distribution
Date;
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(xxiv) the amount on deposit in the Net WAC Rate Carryover
Reserve Account as of the Determination Date; and
(xxv) the Net WAC Rate Carryover Amount for the Class A
Certificates, the Class S Certificates and the Mezzanine Certificates,
if any, for such Distribution Date and the amount remaining unpaid
after reimbursements therefor on such Distribution Date.
The Trust Administrator will make such statement (and, at its
option, any additional files containing the same information in an alternative
format) available each month to Certificateholders, the NIMS Insurer, the Master
Servicer, the Trustee and the Rating Agencies via the Trust Administrator's
internet website. The Trust Administrator's internet website shall initially be
located at http:\\xxx-xxxx.xxx.xxxxxxxx-xxxx.xxx/xxxx and assistance in using
the website can be obtained by calling the Trust Administrator's customer
service desk at 0-000-000-0000. Parties that are unable to use the above
distribution options are entitled to have a paper copy mailed to them via first
class mail by calling the customer service desk and indicating such. The Trust
Administrator shall have the right to change the way such statements are
distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Trust Administrator shall provide timely
and adequate notification to all above parties regarding any such changes.
In the case of information furnished pursuant to subclauses
(i) through (iii) above, the amounts shall be expressed as a dollar amount per
Single Certificate of the relevant Class.
Within a reasonable period of time after the end of each
calendar year, the Trust Administrator shall furnish to the NIMS Insurer and
each Person who at any time during the calendar year was a Holder of a Regular
Certificate a statement containing the information set forth in subclauses (i)
through (iii) above, aggregated for such calendar year or applicable portion
thereof during which such person was a Certificateholder. Such obligation of the
Trust Administrator shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Trust
Administrator pursuant to any requirements of the Code as from time to time are
in force.
Within a reasonable period of time after the end of each
calendar year, the Trust Administrator shall furnish to the NIMS Insurer and
each Person who at any time during the calendar year was a Holder of a Residual
Certificate a statement setting forth the amount, if any, actually distributed
with respect to the Residual Certificates, as appropriate, aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trust Administrator shall be deemed to
have been satisfied to the extent that substantially comparable information
shall be prepared by the Trust Administrator and furnished to such Holders
pursuant to the rules and regulations of the Code as are in force from time to
time.
The Trust Administrator shall, upon request, furnish to each
Certificateholder and the NIMS Insurer, during the term of this Agreement, such
periodic, special, or other reports or information, whether or not provided for
herein, as shall be reasonable with respect to the Certificateholder, or
otherwise with respect to the purposes of this Agreement, all such reports or
information to be provided at the expense of the Certificateholder in accordance
with such
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reasonable and explicit instructions and directions as the Certificateholder may
provide. For purposes of this Section 4.02, the Trust Administrator's duties are
limited to the extent that the Trust Administrator receives timely reports as
required from the Master Servicer.
On each Distribution Date the Trust Administrator shall
provide Bloomberg Financial Markets, L.P. ("Bloomberg") CUSIP level factors for
each class of Certificates as of such Distribution Date, using a format and
media mutually acceptable to the Trust Administrator and Bloomberg.
SECTION 4.03. Remittance Reports and Other Reports to the
Trust Administrator and the Trustee; Advances;
Payments in Respect of Prepayment Interest \
Shortfalls.
(a) On the Master Servicer Reporting Date, the Master Servicer
shall deliver to the Trust Administrator and the NIMS Insurer by telecopy (or by
such other means as the Master Servicer, the Trust Administrator and the NIMS
Insurer may agree from time to time) a Remittance Report with respect to the
related Distribution Date. Such Remittance Report will include (i) the amount of
Advances to be made by the Master Servicer in respect of the related
Distribution Date, the aggregate amount of Advances outstanding after giving
effect to such Advances, and the aggregate amount of Nonrecoverable Advances in
respect of such Distribution Date and (ii) such other information with respect
to the Mortgage Loans as the Trust Administrator may reasonably require to
perform the calculations necessary to make the distributions contemplated by
Section 4.01 and to prepare the statements to Certificateholders contemplated by
Section 4.02. The Trust Administrator shall not be responsible to recompute,
recalculate or verify any information provided to it by the Master Servicer.
Not later than fifteen days after each Distribution Date, the
Master Servicer shall forward to the Trust Administrator, the Trustee, the NIMS
Insurer and the Depositor a statement prepared by the Master Servicer setting
forth the status of the Collection Account as of the close of business on such
Distribution Date and showing, for the period covered by such statement, the
aggregate amount of deposits into and withdrawals from the Collection Account of
each category of deposit specified in Section 3.04(b) and each category of
withdrawal specified in Section 3.05. Such statement may be in the form of the
then current Xxxxxx Xxx Monthly Accounting Report for its Guaranteed Mortgage
Pass-Through Program with appropriate additions and changes, and shall also
include information as to the aggregate of the outstanding principal balances of
all of the Mortgage Loans as of the last day of the calendar month immediately
preceding such Distribution Date. Copies of such statement shall be provided by
the Trust Administrator to any Certificateholder and to any Person identified to
the Trust Administrator as a prospective transferee of a Certificate, upon
request at the expense of the requesting party, provided such statement is
delivered by the Master Servicer to the Trust Administrator.
(b) The amount of Advances to be made by the Master Servicer
for any Distribution Date shall equal, subject to Section 4.03(d), the sum of
(i) the aggregate amount of Monthly Payments (with each interest portion thereof
net of the related Servicing Fee), due on the related Due Date in respect of the
Mortgage Loans, which Monthly Payments were delinquent as of the close of
business on the related Determination Date and (ii) with respect to each REO
Property,
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which REO Property was acquired during or prior to the related Prepayment Period
and as to which such REO Property an REO Disposition did not occur during the
related Prepayment Period, an amount equal to the excess, if any, of the Monthly
Payments (with each interest portion thereof net of the related Servicing Fee)
that would have been due on the related Due Date in respect of the related
Mortgage Loans, over the net income from such REO Property transferred to the
Distribution Account pursuant to Section 3.13 for distribution on such
Distribution Date.
On or before 3:00 p.m. New York time on the Master Servicer
Remittance Date, the Master Servicer shall remit in immediately available funds
to the Trust Administrator for deposit in the Distribution Account an amount
equal to the aggregate amount of Advances, if any, to be made in respect of the
Mortgage Loans and REO Properties for the related Distribution Date either (i)
from its own funds or (ii) from the Collection Account, to the extent of funds
held therein for future distribution (in which case, it will cause to be made an
appropriate entry in the records of Collection Account that amounts held for
future distribution have been, as permitted by this Section 4.03, used by the
Master Servicer in discharge of any such Advance) or (iii) in the form of any
combination of (i) and (ii) aggregating the total amount of Advances to be made
by the Master Servicer with respect to the Mortgage Loans and REO Properties.
Any amounts held for future distribution used by the Master Servicer to make a
Advance as permitted in the preceding sentence or withdrawn by the Master
Servicer as permitted in Section 3.05(a)(vii) in reimbursement of Advances
previously made shall be appropriately reflected in the Master Servicer's
records and replaced by the Master Servicer by deposit in the Collection Account
on or before any future Master Servicer Remittance Date to the extent that the
Available Funds for the related Distribution Date (determined without regard to
Advances to be made on the Master Servicer Remittance Date) shall be less than
the total amount that would be distributed to the Classes of Certificateholders
pursuant to Section 4.01 on such Distribution Date if such amounts held for
future distributions had not been so used to make Advances. The Trust
Administrator will provide notice to the Master Servicer, the Trustee and the
NIMS Insurer by telecopy by the close of business on any Master Servicer
Remittance Date in the event that the amount remitted by the Master Servicer to
the Trust Administrator on such date is less than the Advances required to be
made by the Master Servicer for the related Distribution Date.
(c) The obligation of the Master Servicer to make such
Advances is mandatory, notwithstanding any other provision of this Agreement but
subject to (d) below, and, with respect to any Mortgage Loan or REO Property,
shall continue until a Final Recovery Determination in connection therewith or
the removal thereof from REMIC I pursuant to any applicable provision of this
Agreement, except as otherwise provided in this Section.
(d) Notwithstanding anything herein to the contrary, no
Advance or Servicing Advance shall be required to be made hereunder by the
Master Servicer if such Advance or Servicing Advance would, if made, constitute
a Nonrecoverable Advance or Nonrecoverable Servicing Advance. The determination
by the Master Servicer that it has made a Nonrecoverable Advance or a
Nonrecoverable Servicing Advance or that any proposed Advance or Servicing
Advance, if made, would constitute a Nonrecoverable Advance or Nonrecoverable
Servicing Advance, respectively, shall be evidenced by an Officers' Certificate
of the Master Servicer delivered to the Trust Administrator, the Trustee and the
NIMS Insurer.
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(e) The Master Servicer shall deliver to the Trust
Administrator for deposit into the Distribution Account on or before 3:00 p.m.
New York time on the Master Servicer Remittance Date from its own funds an
amount ("Compensating Interest") equal to the lesser of (i) the aggregate of the
Prepayment Interest Shortfalls for the related Distribution Date resulting
solely from Principal Prepayments during the related Prepayment Period and (ii)
the amount of its aggregate Servicing Fee for the most recently ended calendar
month. The Master Servicer shall not have the right to reimbursement for any
amounts remitted to the Trust Administrator in respect of Prepayment Interest
Shortfalls. Such amounts so remitted shall be included in the Available Funds
and distributed therewith on the next Distribution Date. The Master Servicer
shall not be obligated to pay any amounts with respect to Relief Act Interest
Shortfalls.
SECTION 4.04. Allocation of Realized Losses.
(a) On or before each Determination Date, the Master Servicer
shall determine as to each Mortgage Loan and REO Property: (i) the total amount
of Realized Losses, if any, incurred in connection with any Final Recovery
Determinations made during the related Prepayment Period; (ii) whether and the
extent to which such Realized Losses constituted Bankruptcy Losses and (iii) the
respective portions of such Realized Losses allocable to interest and allocable
to principal. On or before each Determination Date, the Master Servicer shall
also determine as to each Mortgage Loan: (A) the total amount of Realized
Losses, if any, incurred in connection with any Deficient Valuations made during
the related Prepayment Period and (B) the total amount of Realized Losses, if
any, incurred in connection with Debt Service Reductions in respect of Monthly
Payments due during the related Due Period. The information described in the two
preceding sentences that is to be supplied by the Master Servicer shall be
evidenced by an Officers' Certificate delivered to the Trustee and the Trust
Administrator by the Master Servicer on the Master Servicer Reporting Date
immediately following the end of (x) in the case of Bankruptcy Losses allocable
to interest, the Due Period during which any such Realized Loss was incurred,
and (y) in the case of all other Realized Losses, the Prepayment Period during
which any such Realized Loss was incurred.
(b) All Realized Losses on the Mortgage Loans shall be
allocated to any REMIC II Regular Interest pursuant to Section 4.04(c), shall be
allocated by the Trust Administrator on each Distribution Date as follows:
first, to Net Monthly Excess Cashflow; second, to the Class CE Certificates,
until the Certificate Principal Balance thereof has been reduced to zero; third,
to the Class M-4 Certificates, until the Certificate Principal Balance thereof
has been reduced to zero; fourth, to the Class M-3 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; fifth, to the
Class M-2 Certificates, until the Certificate Principal Balance thereof has been
reduced to zero; and sixth, to the Class M-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero. All Realized Losses to be
allocated to the Certificate Principal Balances of all Classes on any
Distribution Date shall be so allocated after the actual distributions to be
made on such date as provided above. All references above to the Certificate
Principal Balance of any Class of Certificates shall be to the Certificate
Principal Balance of such Class immediately prior to the relevant Distribution
Date, before reduction thereof by any Realized Losses, in each case to be
allocated to such Class of Certificates, on such Distribution Date.
Any allocation of Realized Losses to a Mezzanine Certificate
on any Distribution Date shall be made by reducing the Certificate Principal
Balance thereof by the amount so allocated;
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any allocation of Realized Losses to a Class CE Certificate shall be made by
reducing the amount otherwise payable in respect thereof pursuant to Section
4.01(a)(4)(vii). No allocations of any Realized Losses shall be made to the
Certificate Principal Balances of the Class A Certificates or the Class P
Certificates.
As used herein, an allocation of a Realized Loss on a "PRO
RATA basis" among two or more specified Classes of Certificates means an
allocation on a PRO RATA basis, among the various Classes so specified, to each
such Class of Certificates on the basis of their then outstanding Certificate
Principal Balances prior to giving effect to distributions to be made on such
Distribution Date. All Realized Losses and all other losses allocated to a Class
of Certificates hereunder will be allocated among the Certificates of such Class
in proportion to the Percentage Interests evidenced thereby.
(c) All Realized Losses on the Mortgage Loans shall be
allocated by the Trust Administrator on each Distribution Date, first to REMIC I
Regular Interest I-LT1, REMIC I Regular Interest I-LT2 and REMIC I Regular
Interest I-LT3, until the Uncertificated Balance of each such REMIC I Regular
Interest has been reduced to zero and then to REMIC I Regular Xxxxxxxxx X-XXX0X,
X-XXX0X, X-XXX0X, I-LTS1D, I-LTS2A, I-LTS2B, I-LTS2C, I-LTS2D, I-LTS3A, X-XXX0X,
X-XXX0X and I-LTS3D, until the Uncertificated Balances have been reduced to
zero.
(d) All Realized Losses on the Mortgage Loans shall be
allocated by the Trust Administrator on each Distribution Date to the following
REMIC II Regular Interests in the specified percentages, as follows: first, to
Uncertificated Interest payable to the REMIC II Regular Interest II-LTAA and
REMIC II Regular Interest II-LTZZ up to an aggregate amount equal to the REMIC
II Interest Loss Allocation Amount, 98% and 2%, respectively; second, to the
Uncertificated Balances of the REMIC II Regular Interest II-LTAA and REMIC II
Regular Interest II-LTZZ up to an aggregate amount equal to the REMIC II
Principal Loss Allocation Amount, 98% and 2%, respectively; third, to the
Uncertificated Balances of REMIC II Regular Interest II-LTAA, REMIC II Regular
Interest II-LTM4 and REMIC II Regular Interest II-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
II-LTM4 has been reduced to zero; fourth to the Uncertificated Balances of REMIC
II Regular Interest II-LTAA, REMIC II Regular Interest II-LTM3 and REMIC II
Regular Interest II-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Balance of REMIC II Regular Interest II-LTM3 has been reduced to zero; fifth to
the Uncertificated Balances of REMIC II Regular Interest II-LTAA, REMIC II
Regular Interest II-LTM2 and REMIC II Regular Interest II-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
II-LTM2 has been reduced to zero; and sixth to the Uncertificated Balances of
REMIC II Regular Interest II-LTAA, REMIC II Regular Interest II-LTM1 and REMIC
II Regular Interest II-LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Balance of REMIC II Regular Interest II-LTM1 has been reduced to
zero.
SECTION 4.05. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the
Trust Administrator shall comply with all federal withholding requirements
respecting payments to Certificateholders of interest or original issue discount
that the Trust Administrator reasonably believes are applicable under the Code.
The consent of Certificateholders shall not be required for such withholding. In
the
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event the Trust Administrator does withhold any amount from interest or original
issue discount payments or advances thereof to any Certificateholder pursuant to
federal withholding requirements, the Trust Administrator shall indicate the
amount withheld to such Certificateholders.
SECTION 4.06. Commission Reporting.
Within 15 days after each Distribution Date, the Trust
Administrator shall file with the Commission via the Electronic Data Gathering
and Retrieval System, a Form 8-K with a copy of the statement to
Certificateholders for such Distribution Date as an exhibit thereto. After
December 31, 2002 and prior to January 30, 2003, the Trust Administrator shall
file a Form 15 Suspension Notification with respect to the Trust Fund, if
applicable. After December 31, 2002 and prior to March 31, 2003, the Trust
Administrator shall file a Form 10-K, in substance conforming to industry
standards, with respect to the Trust Fund. The Depositor hereby grants to the
Trust Administrator a limited power of attorney to execute and file each such
document on behalf of the Depositor. Such power of attorney shall continue until
the earlier of (i) receipt by the Trust Administrator from the Depositor of
written termination of such power of attorney and (ii) the termination of the
Trust Fund. Promptly after filing any Form 8-K or Form 10-K pursuant to this
Section 4.06, the Trust Administrator shall deliver a copy of such Form 8-K or
Form 10-K, as the case may be, to the Depositor. The Depositor agrees to
promptly furnish to the Trust Administrator, 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 Trust Administrator
reasonably deems appropriate to prepare and file all necessary reports with the
Commission.
SECTION 4.07. Net WAC Rate Carryover Reserve Account.
(a) No later than the Closing Date, the Trust Administrator
shall establish and maintain with itself, as agent for the Trustee, a separate,
segregated trust account titled, "Net WAC Rate Carryover Reserve Account,
Deutsche Bank National Trust Company, as agent for U.S. Bank National
Association, as Trustee, in trust for the registered holders of Ameriquest
Mortgage Securities Inc., Asset-Backed Pass-Through Certificates, Series
2002-3." On the Closing Date, the Depositor will deposit, or cause to be
deposited, into the Net WAC Rate Carryover Reserve Account $1,000.
(b) On each Distribution Date as to which there is a Net WAC
Rate Carryover Amount payable to the Class A Certificates, the Class S
Certificates or the Mezzanine Certificates, the Trust Administrator has been
directed by the Class CE Certificateholders to, and therefore will, deposit into
the Net WAC Rate Carryover Reserve Account the amount of such Net WAC Rate
Carryover Amount, rather than distributing such amounts to the Class CE
Certificateholders. On each such Distribution Date, the Trust Administrator
shall hold all such amounts for the benefit of the Holders of the Class A
Certificates, the Class S Certificates and the Mezzanine Certificates, and will
distribute such amounts to the Holders of the Class A Certificates, the Class S
Certificates and the Mezzanine Certificates in the amounts and priorities set
forth in Section 4.01(a). If no Net WAC Rate Carryover Amounts are payable on a
Distribution Date, the Trust Administrator shall deposit into the Net WAC Rate
Carryover Reserve Account on behalf of the Class CE Certificateholders, from
amounts otherwise distributable to the Class CE Certificateholders, an amount
such that when
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added to other amounts already on deposit in the Net WAC Rate Carryover Reserve
Account, the aggregate amount on deposit therein is equal to $1,000.
(c) For federal and state income tax purposes, the Class CE
Certificateholders will be deemed to be the owners of the Net WAC Rate Carryover
Reserve Account and all amounts deposited into the Net WAC Rate Carryover
Reserve Account (other than the Initial Deposit therein of $1,000) shall be
treated as amounts distributed by REMIC III to the Holders of the Class CE
Certificates. Upon the termination of the Trust, or the payment in full of the
Class A Certificates, the Class S Certificates and the Mezzanine Certificates,
all amounts remaining on deposit in the Net WAC Rate Carryover Reserve Account
will be released by the Trust and distributed to the Class CE Certificateholders
or their designees. The Net WAC Rate Carryover Reserve Account will be part of
the Trust but not part of any REMIC and any payments to the Holders of the Class
A Certificates, the Class S Certificates or the Mezzanine Certificates of Net
WAC Rate Carryover Amounts will not be payments with respect to a "regular
interest" in a REMIC within the meaning of Code Section 860(G)(a)(1).
(d) By accepting a Class CE Certificate, each Class CE
Certificateholder hereby agrees to direct the Trust Administrator, and the Trust
Administrator hereby is directed, to deposit into the Net WAC Rate Carryover
Reserve Account the amounts described above on each Distribution Date as to
which there is any Net WAC Rate Carryover Amount rather than distributing such
amounts to the Class CE Certificateholders. By accepting a Class CE Certificate,
each Class CE Certificateholder further agrees that such direction is given for
good and valuable consideration, the receipt and sufficiency of which is
acknowledged by such acceptance.
(e) At the written direction of the Holders of a majority in
Percentage Interest in the Class CE Certificates, the Trust Administrator shall
direct any depository institution maintaining the Net WAC Rate Carryover Reserve
Account to invest the funds in such account in one or more Permitted Investments
bearing interest or sold at a discount, and maturing, unless payable on demand,
(i) no later than the Business Day immediately preceding the date on which such
funds are required to be withdrawn from such account pursuant to this Agreement,
if a Person other than the Trust Administrator or an Affiliate manages or
advises such investment, and (ii) no later than the date on which such funds are
required to be withdrawn from such account pursuant to this Agreement, if the
Trust Administrator or an Affiliate manages or advises such investment. If no
investment direction of the Holders of a majority in Percentage Interest in the
Class CE Certificates with respect to the Net WAC Rate Carryover Reserve Account
is received by the Trust Administrator, the Trust Administrator shall invest the
funds in the Deutsche Bank Institutional Cash Management Fund 16-79 so long as
it is a Permitted Investment. Interest earned on such investment shall be
deposited into the Net WAC Rate Carryover Reserve Account.
(f) For federal tax return and information reporting, the
right of the Holders of the Class A Certificates, the Class S Certificates and
the Mezzanine Certificates to receive payments from the Net WAC Rate Carryover
Reserve Account in respect of any Net Wac Rate Carryover Amount shall be
assigned a value of zero.
SECTION 4.08. Initial Deposit Account.
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On behalf of the Trust Fund, the Trust Administrator shall
establish and maintain the Initial Deposit Account, held in trust for the
benefit of the Certificateholders. On the Closing Date, the Depositor shall
remit or cause to be remitted to the Trust Administrator, for deposit in the
Initial Deposit Account, the Initial Deposit and the Trust Administrator shall
deposit the Initial Deposit, to the extent received by it, into the Initial
Deposit Account and invest such funds as directed by the Depositor. The Initial
Deposit Account shall be treated as an "outside reserve fund" under applicable
Treasury regulations and shall not be part of any Trust REMIC.
All income in the nature of interest from the investment of
funds in the Initial Deposit Account shall be for the benefit of the Depositor.
The Depositor shall remit from its own funds to the Trust Administrator for
deposit in the Initial Deposit Account the amount of any loss incurred on
Permitted Investments in the Initial Deposit Account, and the Trust
Administrator shall deposit such amount remitted to it by the Depositor into the
Initial Deposit Account. Any investment earnings on the Initial Deposit Account
shall be treated as owned by the Depositor and will be taxable to the Depositor.
The Trust Administrator shall be required to withdraw such earnings from the
Initial Deposit Account and remit the same to the Depositor on the first
Distribution Date, and shall thereupon terminate such accounts.
SECTION 4.09. Excess Net WAC Rate Reserve Fund.
No later than the Closing Date, the Trust Administrator shall
establish and maintain with itself a separate, segregated trust account titled,
"Net WAC Rate Reserve Fund, Deutsche Bank National Trust Company, as agent for
U.S. Bank National Association, as Trustee, in trust for registered Holders of
Ameriquest Mortgage Securities Inc., Asset-Backed Pass-Through Certificates,
Series 2002-3."
On each Distribution Date as to which there is an Excess Group
Net WAC Pass- Through Rate Amount payable on the Class A Certirficates or the
Class CE Certificates, the Trust Administrator has been directed by the Class A
Certificateholders to, and therefore shall, deposit into the Excess Net WAC
Reserve Fund, the Excess Pool Net WAC Pass-Through Rate Amount, rather than
distributing such amounts to the applicable Class A Certificateholders. On each
such Distribution Date, the Trust Administrator shall hold all such amounts for
the benefit of the Holders of the applicable Class A Certificates or the Class
CE Certificates, and shall distribute such amounts to the Holders of the
applicable Class A Certificates and/or the Class CE Certificates to the extent
of the Excess Pool Net WAC Pass-Through Rate Amount.
For federal and state income tax purposes, the Class CE
Certificateholders will be deemed to be the owners of the Excess Net WAC Reserve
Fund and all amounts deposited into the Excess Net WAC Rate Reserve Fund shall
be treated as amounts distributed by REMIC III to the Holders of the Class CE
Certificates. Upon the termination of the Trust Fund, or the payment in full of
the Class A Certificates and the Class S Certificates, all amounts remaining on
deposit in the Excess Net WAC Rate Reserve Fund shall be released by the Trust
Fund and distributed to the Class CE Certificateholders or their designees. The
Excess Net WAC Rate Reserve Fund shall be part of the Trust Fund but not part of
any Trust REMIC and any payments to the Holders of the Class A Certificates or
the Class CE Certificates of Excess Group Net WAC Pass-Through Rate Amount will
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not be payments with respect to a "regular interest" in a REMIC within the
meaning of Code Section 860(G)(a)(1).
By accepting a Class A Certificate, such Certificateholders
hereby agree to direct the Trust Administrator, and the Trust Administrator
hereby is directed, to deposit into the Excess Net WAC Rate Reserve Fund the
amounts described above on each Distribution Date as to which there is any
Excess Pool Net WAC Pass-Through Rate Amount rather than distributing such
amounts to the Class A Certificateholders, as applicable. By accepting a Class A
Certificate, each such Certificateholder further agrees that such direction is
given for good and valuable consideration, the receipt and sufficiency of which
is acknowledged by such acceptance.
Amounts on deposit in the Excess Net WAC Rate Reserve fund
will remain uninvested..
For federal tax return and information reporting, the right of
the Class A Certificateholders and the Class CE Certificates to receive payments
from the Excess Net WAC Rate Reserve Fund in respect of any Excess Pool Net WAC
Pass-Through Rate Amount shall be assigned a value of zero.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates in the aggregate will represent the
entire beneficial ownership interest in the Mortgage Loans and all other assets
included in REMIC I. At the Closing Date, the aggregate Certificate Principal
Balance of the Certificates will equal the aggregate Stated Principal Balance of
the Mortgage Loans.
The Certificates will be substantially in the forms annexed
hereto as Exhibits A-1 through A-16. The Certificates of each Class will be
issuable in registered form only, in denominations of authorized Percentage
Interests as described in the definition thereof. Each Certificate will share
ratably in all rights of the related Class.
Upon original issue, the Certificates shall be executed and
delivered by the Trustee, or the Trust Administrator on behalf of the Trustee,
and the Trustee, or the Trust Administrator on behalf of the Trustee, shall
cause the Certificates to be authenticated by the Certificate Registrar to or
upon the order of the Depositor. The Certificates shall be executed and attested
by manual or facsimile signature on behalf of the Trustee or the Trust
Administrator by an authorized signatory. Certificates bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Trustee or the Trust Administrator shall bind the Trustee or the Trust
Administrator, as applicable, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided herein
executed by the Certificate Registrar by manual signature, and such certificate
of authentication 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.
(b) The Offered Certificates shall initially be issued as one
or more Certificates held by the Book-Entry Custodian or, if appointed to hold
such Certificates as provided below, the Depository and registered in the name
of the Depository or its nominee and, except as provided below, registration of
such Certificates may not be transferred by the Trust Administrator except to
another Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. The Certificate Owners
shall hold their respective Ownership Interests in and to such Certificates
through the book-entry facilities of the Depository and, except as provided
below, shall not be entitled to definitive, fully registered Certificates
("Definitive Certificates") in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall only transfer the Ownership
Interests in the Book-Entry Certificates of Certificate Owners it represents or
of brokerage firms for which it acts as agent in accordance with the
Depository's normal procedures. The Trust Administrator is hereby initially
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appointed as the Book-Entry Custodian and hereby agrees to act as such in
accordance herewith and in accordance with the agreement that it has with the
Depository authorizing it to act as such. The Book-Entry Custodian may, and if
it is no longer qualified to act as such, the Book-Entry Custodian shall,
appoint, by a written instrument delivered to the Depositor, the Master
Servicer, the Trustee, the Trust Administrator (if the Trust Administrator is
not the Book-Entry Custodian) and any other transfer agent (including the
Depository or any successor Depository) to act as Book-Entry Custodian under
such conditions as the predecessor Book-Entry Custodian and the Depository or
any successor Depository may prescribe, provided that the predecessor Book-Entry
Custodian shall not be relieved of any of its duties or responsibilities by
reason of any such appointment of other than the Depository. If the Trust
Administrator resigns or is removed in accordance with the terms hereof, the
Trustee or, if it so elects, the Depository shall immediately succeed to its
predecessor's duties as Book-Entry Custodian. The Depositor shall have the right
to inspect, and to obtain copies of, any Certificates held as Book-Entry
Certificates by the Book-Entry Custodian.
The Trust Administrator, the Trustee, the Master Servicer and
the Depositor may for all purposes (including the making of payments due on the
Book-Entry Certificates) deal with the Depository as the authorized
representative of the Certificate Owners with respect to the Book-Entry
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trust Administrator may establish a
reasonable record date in connection with solicitations of consents from or
voting by Certificateholders and shall give notice to the Depository of such
record date.
If (i)(A) the Depositor advises the Trust Administrator in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (B) the Depositor is unable to locate a
qualified successor, (ii) the Depositor at its option advises the Trust
Administrator in writing that it elects to terminate the book-entry system
through the Depository or (iii) after the occurrence of a Master Servicer Event
of Default, Certificate Owners representing in the aggregate not less than 51%
of the Ownership Interests of the Book-Entry Certificates advise the Trust
Administrator through the Depository, in writing, that the continuation of a
book-entry system through the Depository is no longer in the best interests of
the Certificate Owners, the Trust Administrator shall notify all Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Trust Administrator of the Book-Entry Certificates
by the Book-Entry Custodian or the Depository, as applicable, accompanied by
registration instructions from the Depository for registration of transfer, the
Trust Administrator shall issue the Definitive Certificates. Such Definitive
Certificates will be issued in minimum denominations of $25,000, except that any
beneficial ownership that was represented by a Book-Entry Certificate in an
amount less than $25,000 immediately prior to the issuance of a Definitive
Certificate shall be issued in a minimum denomination equal to the amount
represented by such Book-Entry Certificate. None of the Depositor, the Master
Servicer, the Trust Administrator or the Trustee shall be liable for any delay
in the delivery of such instructions and may conclusively rely on, and shall be
protected in relying
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on, such instructions. Upon the issuance of Definitive Certificates all
references herein to obligations imposed upon or to be performed by the
Depository shall be deemed to be imposed upon and performed by the Trust
Administrator, to the extent applicable with respect to such Definitive
Certificates, and the Trust Administrator shall recognize the Holders of the
Definitive Certificates as Certificateholders hereunder.
SECTION 5.02. Registration of Transfer and Exchange of
Certificates.
(a) The Trust Administrator shall cause to be kept at one of
the offices or agencies to be appointed by the Trust Administrator in accordance
with the provisions of Section 8.12 a Certificate Register for the Certificates
in which, subject to such reasonable regulations as it may prescribe, the Trust
Administrator shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. The Trust
Administrator will initially serve as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. The Certificate Registrar may appoint, by a written instrument
delivered to the Master Servicer and the Depositor, any other bank or trust
company to act as Certificate Registrar under such conditions as the predecessor
Certificate Registrar may prescribe, provided that the predecessor Certificate
Registrar shall not be relieved of any of its duties or responsibilities
hereunder by reason of such appointment. If the Trust Administrator shall at any
time not be the Certificate Registrar, the Trust Administrator shall have and
maintain the right to inspect the Certificate Register or to obtain a copy
thereof at all reasonable times, and to rely conclusively upon a certificate of
the Certificate Registrar as to the information set forth in the Certificate
Register.
(b) No transfer of any Class CE Certificate, Class P
Certificate or Residual Certificate shall be made unless that 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 a Class CE Certificate, Class P Certificate or
Residual Certificate is to be made without registration or qualification (other
than in connection with the initial transfer of any such Certificate by the
Depositor to an affiliate of the Depositor), the Trust Administrator and the
Certificate Registrar shall each require receipt of: (i) if such transfer is
purportedly being made in reliance upon Rule 144A under the 1933 Act, written
certifications from the Certificateholder desiring to effect the transfer and
from such Certificateholder's prospective transferee, substantially in the forms
attached hereto as Exhibit F-1; and (ii) in all other cases, an Opinion of
Counsel satisfactory to it that such transfer may be made without such
registration (which Opinion of Counsel shall not be an expense of the Depositor,
the Trustee, the Trust Administrator, the Master Servicer, in its capacity as
such, or the Trust Fund), together with copies of the written certification(s)
of the Certificateholder desiring to effect the transfer and/or such
Certificateholder's prospective transferee upon which such Opinion of Counsel is
based, if any. None of the Depositor, the Certificate Registrar, the Trustee or
the Trust Administrator is obligated to register or qualify the Class CE
Certificates, the Class P Certificates or the Residual Certificates under the
1933 Act or any other securities laws or to take any action not otherwise
required under this Agreement to permit the transfer of such Certificates
without registration or qualification. Any Certificateholder desiring to effect
the transfer of a Class CE Certificate, a Class P Certificate or a Residual
Certificate shall, and does hereby agree to, indemnify
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the Trustee, the Trust Administrator, 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.
(c) No transfer of a Class CE Certificate, Class P Certificate
or Residual Certificate or any interest therein shall be made to any 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 acquiring such Certificates
with "Plan Assets" of a Plan within the meaning of the Department of Labor
regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as certified
by such transferee in the form of Exhibit G, unless the Depositor, the Trustee,
the Trust Administrator and the Master Servicer are provided with an Opinion of
Counsel which establishes to the satisfaction of the Depositor, the Trustee, the
Trust Administrator and the Master Servicer that the purchase of such
Certificates is permissible under applicable law, will not constitute or result
in any prohibited transaction under ERISA or Section 4975 of the Code and will
not subject the Depositor, the Master Servicer, the Trustee, the Trust
Administrator or the Trust Fund to any obligation or liability (including
obligations or liabilities under ERISA or Section 4975 of the Code) in addition
to those undertaken in this Agreement, which Opinion of Counsel shall not be an
expense of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator or the Trust Fund. Neither an Opinion of Counsel nor any
certification will be required in connection with the initial transfer of any
such Certificate by the Depositor to an affiliate of the Depositor (in which
case, the Depositor or any affiliate thereof shall have deemed to have
represented that such affiliate is not a Plan or a Person investing Plan Assets)
and the Trust Administrator shall be entitled to conclusively rely upon a
representation (which, upon the request of the Trust Administrator, shall be a
written representation) from the Depositor of the status of such transferee as
an affiliate of the Depositor.
Each beneficial owner of a Mezzanine Certificates 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 investor, (ii) it has acquired and is holding such Mezzanine
Certificates in reliance on the Underwriters' Exemption, and that it understands
that there are certain conditions to the availability of the Underwriters'
Exemption, including that the Mezzanine Certificates must be rated, at the time
of purchase, not lower than "BBB-" (or its equivalent) by Xxxxx'x, Fitch 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 Class CE Certificate, Class P Certificate or Residual
Certificate or any interest therein is acquired or held in violation of the
provisions of the preceding paragraph, the next preceding permitted beneficial
owner will be treated as the beneficial owner of that Certificate retroactive to
the date of transfer to the purported beneficial owner. Any purported beneficial
owner whose acquisition or holding of any such Certificate or interest therein
was effected in violation of the provisions of the preceding paragraph shall
indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the
Trust Administrator, the NIMS Insurer and the Trust Fund from and against any
and all liabilities, claims, costs or expenses incurred by those parties as a
result of that acquisition or holding.
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(d)(i) Each Person who has or who acquires any Ownership
Interest in a Residual 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 authorized the Certificate
Registrar or its designee under clause (iii)(A) below to deliver payments to a
Person other than such Person and to negotiate the terms of any mandatory sale
under clause (iii)(B) below and to execute all instruments of Transfer and to do
all other things necessary in connection with any such sale. The rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Certificate Registrar of any change or impending
change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it and shall not register the Transfer of any
Residual Certificate until its receipt of an affidavit and agreement (a
"Transfer Affidavit and Agreement"), in the form attached hereto as
Exhibit F-2 from the proposed Transferee, in form and substance
satisfactory to the Certificate Registrar, representing and warranting,
among other things, that such Transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in the Residual
Certificate that is the subject of the proposed Transfer as a nominee,
trustee or agent for any Person that is not a Permitted Transferee,
that for so long as it retains its Ownership Interest in a Residual
Certificate, it will endeavor to remain a Permitted Transferee, and
that it has reviewed the provisions of this Section 5.02(d) and agrees
to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of the Certificate Registrar who is assigned to
this transaction has actual knowledge that the proposed Transferee is
not a Permitted Transferee, no Transfer of an Ownership Interest in a
Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (x) to require a Transfer Affidavit
and Agreement from any other Person to whom such Person attempts to
transfer its Ownership Interest in a Residual Certificate and (y) not
to transfer its Ownership Interest unless it provides a Transferor
Affidavit (in the form attached hereto as Exhibit F-2), to the
Certificate Registrar stating that, among other things, it has no
actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in
a Residual Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Certificate Registrar written notice
that it is a "pass-through interest holder" within the meaning of
temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring an Ownership Interest in a Residual Certificate, if it
is, or is holding an Ownership Interest in a Residual Certificate on
behalf of, a "pass-through interest holder."
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(ii) The Certificate Registrar will register the Transfer of
any Residual Certificate only if it shall have received the Transfer Affidavit
and Agreement and all of such other documents as shall have been reasonably
required by the Certificate Registrar as a condition to such registration. In
addition, no Transfer of a Residual Certificate shall be made unless the
Certificate Registrar shall have received a representation letter from the
Transferee of such Certificate to the effect that such Transferee is a Permitted
Transferee.
(iii)(A) If any purported Transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section 5.02(d),
then the last preceding Permitted Transferee shall be restored, to the extent
permitted by law, to all rights as holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. The Certificate
Registrar shall be under no liability to any Person for any registration of
Transfer of a Residual Certificate that is in fact not permitted by this Section
5.02(d) or for making any payments due on such Certificate to the holder thereof
or for taking any other action with respect to such holder under the provisions
of this Agreement.
(B) If any purported Transferee shall become a holder of a
Residual Certificate in violation of the restrictions in this Section
5.02(d) and to the extent that the retroactive restoration of the
rights of the holder of such Residual Certificate as described in
clause (iii)(A) above shall be invalid, illegal or unenforceable, then
the Certificate Registrar shall have the right, without notice to the
holder or any prior holder of such Residual Certificate, to sell such
Residual Certificate to a purchaser selected by the Certificate
Registrar on such terms as the Certificate Registrar may choose. Such
purported Transferee shall promptly endorse and deliver each Residual
Certificate in accordance with the instructions of the Certificate
Registrar. Such purchaser may be the Certificate Registrar itself or
any Affiliate of the Certificate Registrar. The proceeds of such sale,
net of the commissions (which may include commissions payable to the
Certificate Registrar or its Affiliates), expenses and taxes due, if
any, will be remitted by the Certificate Registrar to such purported
Transferee. The terms and conditions of any sale under this clause
(iii)(B) shall be determined in the sole discretion of the Certificate
Registrar, and the Certificate Registrar shall not be liable to any
Person having an Ownership Interest in a Residual Certificate as a
result of its exercise of such discretion.
(iv) The Trust Administrator shall make available to the
Internal Revenue Service and those Persons specified by the REMIC Provisions all
information necessary to compute any tax imposed (A) as a result of the Transfer
of an Ownership Interest in a Residual Certificate to any Person who is a
Disqualified Organization, including the information described in Treasury
regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the
"excess inclusions" of such Residual Certificate and (B) as a result of any
regulated investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of the Code
that holds an Ownership Interest in a Residual Certificate having as among its
record holders at any time any Person which is a Disqualified Organization.
Reasonable compensation for providing such information may be accepted by the
Trust Administrator.
(v) The provisions of this Section 5.02(d) set forth prior to
this subsection (v) may be modified, added to or eliminated, provided that there
shall have been delivered to the Trust
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Administrator at the expense of the party seeking to modify, add to or eliminate
any such provision the following:
(A) written notification from each Rating Agency to the effect
that the modification, addition to or elimination of such provisions
will not cause such Rating Agency to downgrade its then-current ratings
of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trust Administrator, to the effect that such modification of,
addition to or elimination of such provisions will not cause any Trust
REMIC to cease to qualify as a REMIC and will not cause any Trust
REMIC, as the case may be, to be subject to an entity-level tax caused
by the Transfer of any Residual Certificate to a Person that is not a
Permitted Transferee or (y) a Person other than the prospective
transferee to be subject to a REMIC-tax caused by the Transfer of a
Residual Certificate to a Person that is not a Permitted Transferee.
The Trust Administrator shall forward to the NIMS Insurer a
copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at any office or agency of the Trust
Administrator maintained for such purpose pursuant to Section 8.12, the Trust
Administrator shall execute and the Certificate Registrar shall authenticate and
deliver, in the name of the designated Transferee or Transferees, one or more
new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Certificate may
be exchanged for other Certificates of the same Class with authorized
denominations and a like aggregate Percentage Interest, upon surrender of such
Certificate to be exchanged at any office or agency of the Trust Administrator
maintained for such purpose pursuant to Section 8.12. Whenever any Certificates
are so surrendered for exchange the Trustee, or the Trust Administrator on
behalf of the Trustee, shall execute and cause the Certificate Registrar to
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive. Every Certificate presented or surrendered for
transfer or exchange shall (if so required by the Trust Administrator) be duly
endorsed by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Trust Administrator and the Certificate Registrar duly
executed by, the Holder thereof or his attorney duly authorized in writing. In
addition, with respect to each Class R Certificate, the Holder thereof may
exchange, in the manner described above, such Class R Certificate for three
separate Certificates, each representing such Holder's respective Percentage
Interest in the Class R-1 Interest, the Class R-2 Interest and the Class R-3
Interest, respectively, in each case that was evidenced by the Class R
Certificate being exchanged.
(g) No service charge to the Certificateholders shall be made
for any transfer or exchange of Certificates, but the Trust Administrator 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.
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(h) All Certificates surrendered for transfer and exchange
shall be canceled and destroyed by the Certificate Registrar in accordance with
its customary procedures.
(i) The Trust Administrator will cause the Certificate
Registrar (unless the Trust Administrator is acting as Certificate Registrar) to
provide notice to the Trust Administrator of each transfer of a Certificate and
to provide the Trust Administrator with an updated copy of the Certificate
Register on the first Business Day in January and June of each year, commencing
in June 2003.
(j) Any attempted or purported transfer of any Certificate in
violation of the provisions of Section 5.02(c) hereof shall be void ab initio
and such Certificate shall be considered to have been held continuously by the
prior permitted Holder.
SECTION 5.03. Mutilated, Destroye d, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the Trust
Administrator or the Certificate Registrar, or the Trust Administrator and the
Certificate Registrar receive evidence to their satisfaction of the destruction,
loss or theft of any Certificate, and (ii) there is delivered to the Trustee,
the Trust Administrator, the NIMS Insurer 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 actual knowledge by the Trustee, the Trust Administrator
or the Certificate Registrar that such Certificate has been acquired by a bona
fide purchaser, the Trustee, or the Trust Administrator on behalf of the
Trustee, shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of the same
Class and of like denomination and Percentage Interest. Upon the issuance of any
new Certificate under this Section, the Trust Administrator 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 Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the applicable REMIC created hereunder, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.04. Persons Deemed Owners.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator, the NIMS Insurer, the Certificate Registrar and any agent of any
of them may treat the Person 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 Depositor,
the Master Servicer, the Trustee, the Trust Administrator, the Certificate
Registrar, the NIMS Insurer for any agent of any of them shall be affected by
notice to the contrary.
SECTION 5.05. Certain Available Information.
On or prior to the date of the first sale of any Class CE
Certificate, Class P Certificate or Residual Certificate to an Independent third
party, the Depositor shall provide to the Trust Administrator ten copies of any
private placement memorandum or other disclosure document used
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by the Depositor in connection with the offer and sale of the Class CE
Certificates, Class P Certificates or the Residual Certificates. In addition, if
any such private placement memorandum or disclosure document is revised, amended
or supplemented at any time following the delivery thereof to the Trust
Administrator, the Depositor promptly shall inform the Trust Administrator of
such event and shall deliver to the Trust Administrator ten copies of the
private placement memorandum or disclosure document, as revised, amended or
supplemented. The Trust Administrator shall maintain at its Corporate Trust
Office and shall make available free of charge during normal business hours for
review by any Holder of a Certificate or any Person identified to the Trust
Administrator as a prospective transferee of a Certificate, originals or copies
of the following items: (i) in the case of a Holder or prospective transferee of
a Class CE Certificate, a Class P Certificate or a Residual Certificate, the
private placement memorandum or other disclosure document relating to such
Certificates, if any, in the form most recently provided to the Trust
Administrator; and (ii) in all cases, (A) this Agreement and any amendments
hereof entered into pursuant to Section 11.01, (B) all monthly statements
required to be delivered to Certificateholders of the relevant Class pursuant to
Section 4.02 since the Closing Date, and all other notices, reports, statements
and written communications delivered to the Certificateholders of the relevant
Class pursuant to this Agreement since the Closing Date, (C) all certifications
delivered by a Responsible Officer of the Trust Administrator since the Closing
Date pursuant to Section 10.01(h), (D) any and all Officers' Certificates
delivered to the Trust Administrator by the Master Servicer since the Closing
Date to evidence the Master Servicer's determination that any Advance or
Servicing Advance was, or if made, would be a Nonrecoverable Advance or
Nonrecoverable Servicing Advance, respectively, and (E) any and all Officers'
Certificates delivered to the Trust Administrator by the Master Servicer since
the Closing Date pursuant to Section 4.04(a). Copies and mailing of any and all
of the foregoing items will be available from the Trust Administrator upon
request at the expense of the person requesting the same.
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ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Liability of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer each shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
by this Agreement and undertaken hereunder by the Depositor and the Master
Servicer herein.
SECTION 6.02. Merger or Consolidation of the Depositor or the
Master Servicer.
Subject to the following paragraph, the Depositor will keep in
full effect its existence, rights and franchises as a corporation under the laws
of the jurisdiction of its incorporation. Subject to the following paragraph,
the Master Servicer will keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation and its qualification as an approved conventional seller/servicer
for Xxxxxx Xxx or Xxxxxxx Mac in good standing. The Depositor and the Master
Servicer each will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of this Agreement, the
Certificates or any of the Mortgage Loans and to perform its respective duties
under this Agreement.
The Depositor or the Master Servicer may be merged or
consolidated with or into any Person, or transfer all or substantially all of
its assets to any Person, in which case any Person resulting from any merger or
consolidation to which the Depositor or the Master Servicer shall be a party, or
any Person succeeding to the business of the Depositor or the Master Servicer,
shall be the successor of the Depositor or the Master Servicer, as the case may
be, hereunder, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of
Xxxxxx Mae or Xxxxxxx Mac; and provided further that the Rating Agencies'
ratings of the Class A Certificates, the Class S Certificates and the Mezzanine
Certificates in effect immediately prior to such merger or consolidation will
not be qualified, reduced or withdrawn as a result thereof (as evidenced by a
letter to such effect from the Rating Agencies).
SECTION 6.03. Limitation on Liability of the Depositor, the
Master Servicer and Others.
None of the Depositor, the NIMS Insurer, the Master Servicer
or any of the directors, officers, employees or agents of the Depositor or the
Master Servicer shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, the NIMS
Insurer, the Master Servicer or any such person against any breach of
warranties, representations or covenants made herein, or against any specific
liability imposed on the Master Servicer pursuant hereto, or against any
liability which
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would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Depositor, the NIMS Insurer, the Master
Servicer, the Trustee or the Trust Administrator and any director, officer,
employee or agent of the Depositor, the NIMS Insurer, the Master Servicer, the
Trustee or the Trust Administrator may rely in good faith on any document of any
kind which, PRIMA FACIE, is properly executed and submitted by any Person
respecting any matters arising hereunder.
The Depositor, the NIMS Insurer, the Master Servicer and any
director, officer, employee or agent of the Depositor, the NIMS Insurer or the
Master Servicer shall be indemnified and held harmless by the Trust Fund against
any loss, liability or expense incurred in connection with any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense relating to any specific Mortgage Loan or Mortgage Loans (except as
any such loss, liability or expense shall be otherwise reimbursable pursuant to
this Agreement) or any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of duties hereunder or
by reason of reckless disregard of obligations and duties hereunder. Neither the
Depositor, the NIMS Insurer nor the Master Servicer shall be under any
obligation to appear in, prosecute or defend any legal action unless such action
is related to its respective duties under this Agreement and, in its opinion,
does not involve it in any expense or liability; provided, however, that each of
the Depositor, the NIMS Insurer and 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, unless the
Depositor or the Master Servicer acts without the consent of Holders of
Certificates entitled to at least 51% of the Voting Rights (which consent shall
not be necessary in the case of litigation or other legal action by either to
enforce their respective rights or defend themselves hereunder), the legal
expenses and costs of such action and any liability resulting therefrom (except
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of duties hereunder or by reason of
reckless disregard of obligations and duties hereunder) shall be expenses, costs
and liabilities of the Trust Fund, and the Depositor, the NIMS Insurer and the
Master Servicer shall be entitled to be reimbursed therefor from the Collection
Account as and to the extent provided in Section 3.05, any such right of
reimbursement being prior to the rights of the Certificateholders to receive any
amount in the Collection Account.
SECTION 6.04. Limitation on Resignation of the Master
Servicer.
The Master Servicer shall not resign from the obligations and
duties hereby imposed on it except (i) upon determination that its duties
hereunder are no longer permissible under applicable law or (ii) with the
written consent of the Trustee, the Trust Administrator, the NIMS Insurer and
written confirmation from each Rating Agency (which confirmation shall be
furnished to the Depositor, the NIMS Insurer, the Trust Administrator and the
Trustee) that such resignation will not cause such Rating Agency to reduce the
then current rating of the Class A Certificates, the Class S Certificates or the
Mezzanine Certificates. Any such determination pursuant to clause (i) of the
preceding sentence permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect obtained at the expense of the
Master Servicer and delivered to the Trustee, the Trust Administrator and the
NIMS Insurer. No resignation of the Master Servicer shall become effective until
the Trustee, the Trust Administrator or a successor servicer acceptable to the
NIMS Insurer shall have assumed the Master Servicer's responsibilities, duties,
liabilities
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(other than those liabilities arising prior to the appointment of such
successor) and obligations under this Agreement.
Except as expressly provided herein, the Master Servicer shall
not assign or transfer any of its rights, benefits or privileges hereunder to
any other Person, nor delegate to or subcontract with, nor authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer are transferred to a successor master
servicer, the entire amount of the Servicing Fee and other compensation payable
to the Master Servicer pursuant hereto shall thereafter be payable to such
successor master servicer.
SECTION 6.05. Rights of the Depositor in Respect of the Master
Servicer.
The Master Servicer shall afford (and any Sub-Servicing
Agreement shall provide that each Sub-Servicer shall afford) the Depositor, the
NIMS Insurer, the Trust Administrator and the Trustee, upon reasonable notice,
during normal business hours, access to all records maintained by the Master
Servicer (and any such Sub-Servicer) in respect of the Master Servicer's rights
and obligations hereunder and access to officers of the Master Servicer (and
those of any such Sub- Servicer) responsible for such obligations. Upon request,
the Master Servicer shall furnish to the Depositor, the NIMS Insurer, the Trust
Administrator and the Trustee its (and any such Sub- Servicer's) most recent
financial statements and such other information relating to the Master
Servicer's capacity to perform its obligations under this Agreement that it
possesses. To the extent such information is not otherwise available to the
public, the Depositor, the NIMS Insurer, the Trust Administrator and the Trustee
shall not disseminate any information obtained pursuant to the preceding two
sentences without the Master Servicer's (or any such Sub-Servicer's) written
consent, except as required pursuant to this Agreement or to the extent that it
is appropriate to do so (i) in working with legal counsel, auditors, taxing
authorities or other governmental agencies, rating agencies or reinsurers or
(ii) pursuant to any law, rule, regulation, order, judgment, writ, injunction or
decree of any court or governmental authority having jurisdiction over the
Depositor, the Trustee, the Trust Administrator or the Trust Fund, and in either
case, the Depositor, the NIMS Insurer, the Trust Administrator or the Trustee,
as the case may be, shall use its best efforts to assure the confidentiality of
any such disseminated non-public information. The Depositor may, but is not
obligated to, enforce the obligations of the Master Servicer under this
Agreement and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of the Master Servicer under this Agreement or
exercise the rights of the Master Servicer under this Agreement; provided that
the Master Servicer shall not be relieved of any of its obligations under this
Agreement by virtue of such performance by the Depositor or its designee. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer and is not obligated to supervise the
performance of the Master Servicer under this Agreement or otherwise.
SECTION 6.06. Sub-Servicing Agreements Between the Master
Servicer and Sub-Servicers.
(a) The Master Servicer may enter into Sub-Servicing
Agreements (provided that such agreements would not result in a withdrawal or a
downgrading by any Rating Agency of the
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ratings on any Class of Certificates and the NIMS Insurer shall have consented
to such Sub-Servicing Agreement) with Sub-Servicers, for the servicing and
administration of the Mortgage Loans.
Each Sub-Servicer shall be (i) authorized to transact business
in the state or states in which the related Mortgaged Properties it is to
service are situated, if and to the extent required by applicable law to enable
the Sub-Servicer to perform its obligations hereunder and under the Sub-
Servicing Agreement, (ii) an institution approved as a mortgage loan originator
by the Federal Housing Administration or an institution the deposit accounts in
which are insured by the FDIC and (iii) a Xxxxxxx Mac or Xxxxxx Mae approved
mortgage servicer. Each Sub-Servicing Agreement must impose on the Sub-Servicer
requirements conforming to the provisions set forth in Section 6.11 and provide
for servicing of the Mortgage Loans consistent with the terms of this Agreement.
The Master Servicer will examine each Sub-Servicing Agreement and will be
familiar with the terms thereof. The terms of any Sub-Servicing Agreement will
not be inconsistent with any of the provisions of this Agreement. The Master
Servicer and the Sub-Servicers may enter into and make amendments to the
Sub-Servicing Agreements or enter into different forms of Sub-Servicing
Agreements; provided, however, that any such amendments or different forms shall
be consistent with and not violate the provisions of this Agreement, and that no
such amendment or different form shall be made or entered into which could be
reasonably expected to be materially adverse to the interests of the
Certificateholders, without the consent of the Holders of Certificates entitled
to at least 66% of the Voting Rights. Any variation without the consent of the
Holders of Certificates entitled to at least 66% of the Voting Rights from the
provisions set forth in Section 6.11 relating to insurance or priority
requirements of Sub-Servicing Accounts, or credits and charges to the Sub-
Servicing Accounts or the timing and amount of remittances by the Sub-Servicers
to the Master Servicer, are conclusively deemed to be inconsistent with this
Agreement and therefore prohibited. The Master Servicer shall deliver to the
Trust Administrator and the NIMS Insurer copies of all Sub- Servicing
Agreements, and any amendments or modifications thereof, promptly upon the
Master Servicer's execution and delivery of such instruments.
(b) As part of its servicing activities hereunder, the Master
Servicer (except as otherwise provided in the last sentence of this paragraph),
for the benefit of the Trust Administrator, the Trustee and the
Certificateholders, shall enforce the obligations of each Sub-Servicer under the
related Sub-Servicing Agreement and of the Originator under the Mortgage Loan
Purchase Agreement, including, without limitation, any obligation to make
advances in respect of delinquent payments as required by a Sub-Servicing
Agreement, or to purchase a Mortgage Loan on account of missing or defective
documentation or on account of a breach of a representation, warranty or
covenant, as described in Section 2.03(a). Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Sub-Servicing
Agreements, and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as the Master Servicer, in
its good faith business judgment, would require were it the owner of the related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement at
its own expense, and shall be reimbursed therefor only (i) from a general
recovery resulting from such enforcement, to the extent, if any, that such
recovery exceeds all amounts due in respect of the related Mortgage Loans or
(ii) from a specific recovery of costs, expenses or attorneys' fees against the
party against whom such enforcement is directed. Enforcement of the Mortgage
Loan Purchase Agreement against the Originator shall be effected by the Master
Servicer to the extent it is not the Originator,
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and otherwise by the Trust Administrator, in accordance with the foregoing
provisions of this paragraph.
SECTION 6.07. Successor Sub-Servicers.
The Master Servicer, with the consent of the NIMS Insurer,
shall be entitled to terminate any Sub-Servicing Agreement and the rights and
obligations of any Sub-Servicer pursuant to any Sub-Servicing Agreement in
accordance with the terms and conditions of such Sub-Servicing Agreement. In the
event of termination of any Sub-Servicer, all servicing obligations of such Sub-
Servicer shall be assumed simultaneously by the Master Servicer without any act
or deed on the part of such Sub-Servicer or the Master Servicer, and the Master
Servicer either shall service directly the related Mortgage Loans or shall enter
into a Sub-Servicing Agreement with a successor Sub-Servicer which qualifies
under Section 6.06.
Any Sub-Servicing Agreement shall include the provision that
such agreement may be immediately terminated by the Trust Administrator or the
Trustee without fee, in accordance with the terms of this Agreement, in the
event that the Master Servicer shall, for any reason, no longer be the Master
Servicer (including termination due to a Master Servicer Event of Default).
SECTION 6.08. Liability of the Master Servicer.
Notwithstanding any Sub-Servicing Agreement, any of the
provisions of this Agreement relating to agreements or arrangements between the
Master Servicer and a Sub-Servicer or reference to actions taken through a
Sub-Servicer or otherwise, the Master Servicer shall remain obligated and
primarily liable to the Trustee, the Trust Administrator and the
Certificateholders for the servicing and administering of the Mortgage Loans in
accordance with the provisions of Section 3.01 without diminution of such
obligation or liability by virtue of such Sub-Servicing Agreements or
arrangements or by virtue of indemnification from the Sub-Servicer and to the
same extent and under the same terms and conditions as if the Master Servicer
alone were servicing and administering the Mortgage Loans. The Master Servicer
shall be entitled to enter into any agreement with a Sub-Servicer for
indemnification of the Master Servicer by such Sub-Servicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
SECTION 6.09. No Contractual Relationship Between
Sub-Servicers and the NIMS Insurer, the Trust
Administrator, the Trustee or
Certificateholders.
Any Sub-Servicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Sub-Servicer
in its capacity as such shall be deemed to be between the Sub-Servicer and the
Master Servicer alone, and the NIMS Insurer, the Trustee, the Trust
Administrator and Certificateholders shall not be deemed parties thereto and
shall have no claims, rights, obligations, duties or liabilities with respect to
the Sub-Servicer except as set forth in Section 6.10. The Master Servicer shall
be solely liable for all fees owed by it to any Sub- Servicer, irrespective of
whether the Master Servicer's compensation pursuant to this Agreement is
sufficient to pay such fees.
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SECTION 6.10. Assumption or Termination of Sub-Servicing
Agreements by Trust Administrator.
In the event the Master Servicer shall for any reason no
longer be the master servicer (including termination due to a Master Servicer
Event of Default), the Trust Administrator or its designee shall thereupon
assume (or cause its designee or the successor master servicer for the Trust
Administrator appointed pursuant to Section 7.02 to assume) all of the rights
and obligations of the Master Servicer under each Sub-Servicing Agreement that
the Master Servicer may have entered into, unless the Trust Administrator elects
to terminate any Sub-Servicing Agreement in accordance with its terms as
provided in Section 6.07. Upon such assumption, the Trust Administrator, its
designee or the successor servicer for the Trust Administrator appointed
pursuant to Section 7.02 shall be deemed, subject to Section 6.07, to have
assumed all of the Master Servicer's interest therein and to have replaced the
Master Servicer as a party to each Sub-Servicing Agreement to the same extent as
if each Sub-Servicing Agreement had been assigned to the assuming party, except
that (i) the Master Servicer shall not thereby be relieved of any liability or
obligations under any Sub- Servicing Agreement and (ii) none of the Trust
Administrator, its designee or any successor Master Servicer shall be deemed to
have assumed any liability or obligation of the Master Servicer that arose
before it ceased to be the Master Servicer.
The Master Servicer at its expense shall, upon request of the
Trust Administrator, deliver to the assuming party all documents and records
relating to each Sub-Servicing Agreement and the Mortgage Loans then being
serviced and an accounting of amounts collected and held by or on behalf of it,
and otherwise use its best efforts to effect the orderly and efficient transfer
of the Sub-Servicing Agreements to the assuming party.
SECTION 6.11. Sub-Servicing Accounts.
In those cases where a Sub-Servicer is servicing a Mortgage
Loan pursuant to a Sub- Servicing Agreement, the Sub-Servicer will be required
to establish and maintain one or more accounts (collectively, the "Sub-Servicing
Account"). The Sub-Servicing Account shall be an Eligible Account. The
Sub-Servicer shall deposit in the clearing account (which account must be an
Eligible Account) in which it customarily deposits payments and collections on
mortgage loans in connection with its mortgage loan servicing activities on a
daily basis, and in no event more than one Business Day after the Sub-Servicer's
receipt thereof, all proceeds of Mortgage Loans received by the Sub-Servicer
less its servicing compensation to the extent permitted by the Sub-Servicing
Agreement, and shall thereafter deposit such amounts in the Sub-Servicing
Account, in no event more than two Business Days after the deposit of such funds
into the clearing account. The Sub- Servicer shall thereafter deposit such
proceeds in the Collection Account or remit such proceeds to the Master Servicer
for deposit in the Collection Account not later than two Business Days after the
deposit of such amounts in the Sub-Servicing Account. For purposes of this
Agreement, the Master Servicer shall be deemed to have received payments on the
Mortgage Loans when the Sub-Servicer receives such payments.
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ARTICLE VII
DEFAULT
SECTION 7.01. Master Servicer Events of Default.
"Master Servicer Event of Default," wherever used herein,
means any one of the following events:
(i) any failure by the Master Servicer to remit to the Trust
Administrator for distribution to the Certificateholders any payment
(other than a Advance required to be made from its own funds on any
Master Servicer Remittance Date pursuant to Section 4.03) required to
be made under the terms of the Certificates and this Agreement which
continues unremedied for a period of one Business Day after the date
upon which written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer by the
Depositor, the Trust Administrator or the Trustee (in which case notice
shall be provided by telecopy), or to the Master Servicer, the
Depositor, the Trust Administrator and the Trustee by the NIMS Insurer
or the Holders of Certificates entitled to at least 25% of the Voting
Rights; or
(ii) any failure on the part of the Master Servicer duly to
observe or perform in any material respect any of the covenants or
agreements on the part of the Master Servicer contained in the
Certificates or in this Agreement (or, if the Master Servicer is the
Originator, the failure of the Originator to repurchase a Mortgage Loan
as to which a breach has been established that requires a repurchase
pursuant to the terms of Section 7 of the Mortgage Loan Purchase
Agreement) which continues unremedied for a period of 45 days after the
earlier of (i) the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master
Servicer by the Depositor, the Trust Administrator or the Trustee, or
to the Master Servicer, the Depositor, the Trust Administrator and the
Trustee by the NIMS Insurer or the Holders of Certificates entitled to
at least 25% of the Voting Rights and (ii) actual knowledge of such
failure by a Servicing Officer of the Master Servicer; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law or the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer and if such proceeding is being contested by the Master
Servicer in good faith, such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days or results in
the entry of an order for relief or any such adjudication or
appointment; or
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and
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liabilities or similar proceedings of or relating to the Master
Servicer or of or relating to all or substantially all of its
property; or
(v) the Master Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(vi) any failure by the Master Servicer of the Master Servicer
Termination Test; or
(vii) any failure of the Master Servicer to make any Advance
on any Master Servicer Remittance Date required to be made from its own
funds pursuant to Section 4.03 which continues unremedied until 3:00
p.m. New York time on the Business Day immediately following the Master
Servicer Remittance Date.
If a Master Servicer Event of Default described in clauses (i)
through (vi) of this Section shall occur, then, and in each and every such case,
so long as such Master Servicer Event of Default shall not have been remedied,
the Depositor, the NIMS Insurer, the Trust Administrator or the Trustee may, and
at the written direction of the Holders of Certificates entitled to at least 51%
of Voting Rights, then at the direction of the NIMS Insurer, the Trustee shall,
by notice in writing to the Master Servicer (and to the Depositor and the Trust
Administrator if given by the Trustee or to the Trustee and the Trust
Administrator if given by the Depositor), terminate all of the rights and
obligations of the Master Servicer in its capacity as Master Servicer under this
Agreement, to the extent permitted by law, and in and to the Mortgage Loans and
the proceeds thereof. If a Master Servicer Event of Default described in clause
(vii) hereof shall occur, the Trustee shall, by notice in writing to the Master
Servicer, the Trust Administrator and the Depositor, terminate all of the rights
and obligations of the Master Servicer in its capacity as Master Servicer under
this Agreement and in and to the Mortgage Loans and the proceeds thereof and the
Trust Administrator, or the Trustee, as applicable, or a successor Master
Servicer appointed in accordance with Section 7.02, shall immediately make such
Advance and assume, pursuant to Section 7.02, the duties of a successor Master
Servicer. On or after the receipt by the Master Servicer of such written notice,
all authority and power of the Master Servicer under this Agreement, whether
with respect to the Certificates (other than as a Holder of any Certificate) or
the Mortgage Loans or otherwise, shall pass to and be vested in the Trust
Administrator pursuant to and under this Section and, without limitation, the
Trust Administrator is hereby authorized and empowered, as attorney-in-fact or
otherwise, to execute and deliver on behalf of and at the expense of the Master
Servicer, 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, at its sole cost and expense, promptly (and in any event no
later than ten Business Days subsequent to such notice) to provide the Trust
Administrator with all documents and records requested by it to enable it to
assume the Master Servicer's functions under this Agreement, and to cooperate
with the Trust Administrator and the Trustee in effecting the termination of the
Master Servicer's responsibilities and rights under this Agreement, including,
without limitation, the transfer within one Business Day to the Trust
Administrator for administration by it of all cash amounts which at the time
shall be or should have been credited by the Master Servicer to the Collection
Account held
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by or on behalf of the Master Servicer, the Distribution Account or any REO
Account or Servicing Account held by or on behalf of the Master Servicer or
thereafter be received with respect to the Mortgage Loans or any REO Property
serviced by the Master Servicer (provided, however, that the Master Servicer
shall continue to be entitled to receive all amounts accrued or owing to it
under this Agreement on or prior to the date of such termination, whether in
respect of Advances or otherwise, and shall continue to be entitled to the
benefits of Section 6.03, notwithstanding any such termination, with respect to
events occurring prior to such termination). For purposes of this Section 7.01,
neither the Trustee nor the Trust Administrator shall be deemed to have
knowledge of a Master Servicer Event of Default unless a Responsible Officer of
the Trustee or the Trust Administrator, as applicable, assigned to and working
in the Trustee's or the Trust Administrator's, as the case may be, Corporate
Trust Office has actual knowledge thereof or unless written notice is received
by the Trustee or the Trust Administrator, as applicable, of any such event and
such notice references the Certificates, REMIC I or this Agreement.
The Trustee and the Trust Administrator shall be entitled to
be reimbursed by the Master Servicer (or by the Trust Fund if the Master
Servicer is unable to fulfill its obligations hereunder) for all costs
associated with the transfer of servicing from the predecessor servicer,
including without limitation, any costs or expenses associated with the complete
transfer of all servicing data and the completion, correction or manipulation of
such servicing data as may be required by the Trustee and the Trust
Administrator to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee or the Trust Administrator to service the
Mortgage Loans properly and effectively.
SECTION 7.02. Trust Administrator or Trustee to Act;
Appointment of Successor.
(a) On and after the time the Master Servicer receives a
notice of termination, the Trust Administrator (and in the event the Trust
Administrator fails in its obligation, the Trustee) shall be the successor in
all respects to the Master Servicer in its capacity as Master Servicer under
this Agreement and the transactions set forth or provided for herein and shall
be subject to all the responsibilities, duties and liabilities relating thereto
and arising thereafter placed on the Master Servicer (except for any
representations or warranties of the Master Servicer under this Agreement, the
responsibilities, duties and liabilities contained in Section 2.03(c) and its
obligation to deposit amounts in respect of losses pursuant to Section 3.06) by
the terms and provisions hereof including, without limitation, the Master
Servicer's obligations to make Advances pursuant to Section 4.03; provided,
however, that if the Trust Administrator or the Trustee is prohibited by law or
regulation from obligating itself to make advances regarding delinquent mortgage
loans, then the Trustee or the Trust Administrator, as applicable, shall not be
obligated to make Advances pursuant to Section 4.03; and provided further, that
any failure to perform such duties or responsibilities caused by the Master
Servicer's failure to provide information required by Section 7.01 shall not be
considered a default by the Trustee or the Trust Administrator, as applicable,
as successor to the Master Servicer hereunder; provided, however, it is
understood and acknowledged by the parties that there will be a period of
transition (not to exceed 90 days) before the servicing transfer is fully
effected. As compensation therefor, effective from and after the time the Master
Servicer receives a notice of termination or immediately upon assumption of the
obligations to make Advances, the Trustee or the Trust Administrator, as
applicable, shall be entitled to the Servicing Fee and all funds relating to the
Mortgage Loans to which the Master Servicer would have been entitled if it had
continued to
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act hereunder (other than amounts which were due or would become due to the
Master Servicer prior to its termination or resignation). Notwithstanding the
above and subject to the next paragraph, the Trustee or the Trust Administrator,
as applicable, may, if it shall be unwilling to so act, or shall, if it is
unable to so act or if it is prohibited by law from making advances regarding
delinquent mortgage loans, or if the Holders of Certificates entitled to at
least 51% of the Voting Rights or the NIMS Insurer so request in writing to the
Trustee or the Trust Administrator, as applicable, promptly appoint or petition
a court of competent jurisdiction to appoint, an established mortgage loan
servicing institution acceptable to each Rating Agency and the NIMS Insurer and
having a net worth of not less than $15,000,000 as the successor to the Master
Servicer under this Agreement in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer under this
Agreement. No appointment of a successor to the Master Servicer under this
Agreement shall be effective until the assumption by the successor of all of the
Master Servicer's responsibilities, duties and liabilities hereunder. In
connection with such appointment and assumption described herein, the Trustee or
the Trust Administrator, as applicable, may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the Master Servicer as such hereunder. The Depositor,
the Trustee, the Trust Administrator and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Pending appointment of a successor to the Master Servicer under this
Agreement, the Trustee or the Trust Administrator, as applicable, shall act in
such capacity as hereinabove provided.
Upon removal or resignation of the Master Servicer, the Trust
Administrator, with the cooperation of the Depositor, (x) shall solicit bids for
a successor Master Servicer as described below and (y) pending the appointment
of a successor Master Servicer as a result of soliciting such bids, shall serve
as Master Servicer of the Mortgage Loans serviced by such predecessor Master
Servicer. The Trust Administrator shall solicit, by public announcement, bids
from housing and home finance institutions, banks and mortgage servicing
institutions meeting the qualifications set forth above (including the Trust
Administrator or any affiliate thereof) (including that such mortgage loan
servicing institution be acceptable to each Rating Agency and the NIMS Insurer).
Such public announcement shall specify that the successor Master Servicer shall
be entitled to the servicing compensation agreed upon between the Trust
Administrator, the successor Master Servicer and the Depositor; provided,
however, that no such fee shall exceed the Servicing Fee. Within thirty days
after any such public announcement, the Trust Administrator, with the
cooperation of the Depositor, shall negotiate in good faith and effect the sale,
transfer and assignment of the servicing rights and responsibilities hereunder
to the qualified party submitting the highest satisfactory bid as to the price
they will pay to obtain such servicing. The Trust Administrator upon receipt of
the purchase price shall pay such purchase price to the Master Servicer being so
removed, after deducting from any sum received by the Trust Administrator from
the successor to the Master Servicer in respect of such sale, transfer and
assignment all costs and expenses of any public announcement and of any sale,
transfer and assignment of the servicing rights and responsibilities reasonably
incurred hereunder. After such deductions, the remainder of such sum shall be
paid by the Trust Administrator to the Master Servicer at the time of such sale.
(b) If the Master Servicer fails to remit to the Trust
Administrator for distribution to the Certificateholders any payment required to
be made under the terms of the Certificates and this Agreement (for purposes of
this Section 7.02(b), a "Remittance") because the Master Servicer is the subject
of a proceeding under the federal Bankruptcy Code and the making of such
Remittance is
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prohibited by Section 362 of the federal Bankruptcy Code, the Trust
Administrator shall upon notice of such prohibition, regardless of whether it
has received a notice of termination under Section 7.01, advance the amount of
such Remittance by depositing such amount in the Distribution Account on the
related Distribution Date. The Trustee or the Trust Administrator, as
applicable, shall be obligated to make such advance only if (i) such advance, in
the good faith judgment of the Trustee or the Trust Administrator, as
applicable, can reasonably be expected to be ultimately recoverable from Stayed
Funds and (ii) the Trustee or the Trust Administrator, as applicable, is not
prohibited by law from making such advance or obligating itself to do so. Upon
remittance of the Stayed Funds to the Trust Administrator or the deposit thereof
in the Distribution Account by the Master Servicer, a trustee in bankruptcy or a
federal bankruptcy court, the Trustee or the Trust Administrator, as applicable,
may recover the amount so advanced, without interest, by withdrawing such amount
from the Distribution Account; however, nothing in this Agreement shall be
deemed to affect the Trustee's or the Trust Administrator's, as applicable,
rights to recover from the Master Servicer's own funds interest on the amount of
any such advance. If the Trustee or the Trust Administrator, as the case may be,
at any time makes an advance under this Subsection which it later determines in
its good faith judgment will not be ultimately recoverable from the Stayed Funds
with respect to which such advance was made, the Trustee or the Trust
Administrator, as applicable, shall be entitled to reimburse itself for such
advance, without interest, by withdrawing from the Distribution Account, out of
amounts on deposit therein, an amount equal to the portion of such advance
attributable to the Stayed Funds.
(c) If the Master Servicer is terminated pursuant to Section
7.01, then the successor Master Servicer shall not be permitted to reimburse
itself directly for Advances or Servicing Advances under Section 3.05(a)(ii),
Section 3.05(a)(iii), Section 3.05(a)(v) or Section 3.05(a)(vii) if the Master
Servicer has not been fully reimbursed for its Advances and Servicing Advances,
but instead the successor Master Servicer shall include such amounts in the
applicable remittance to the Trust Administrator made pursuant to Section
3.04(g) to the extent of amounts on deposit in the Collection Account on the
related Master Servicer Remittance Date. The Trust Administrator is hereby
authorized to pay to the terminated Master Servicer (or the related Advancing
Person in accordance with Section 3.23) and the successor Master Servicer, as
applicable, reimbursements for Advances and Servicing Advances from the
Distribution Account to the same extent each such Master Servicer would have
been permitted to reimburse itself for such Advances and/or Servicing Advances
in accordance with Section 3.05(a)(ii), Section 3.05(a)(iii), Section 3.05(a)(v)
or Section 3.05(a)(vii), as the case may be. All Advances and Servicing Advances
made pursuant to the terms of this Agreement shall be deemed made and shall be
reimbursed on a "first in-first out" (FIFO) basis. At such time as the Master
Servicer (or related Advancing Person) has been reimbursed for all Advances and
Servicing Advances made by it, the successor Master Servicer shall no longer be
required to remit in accordance with the first sentence of this Section 7.02(c)
and shall then be permitted to reimburse itself directly for Advances and
Servicing Advances in accordance with Section 3.05(a)(ii), Section 3.05(a)(iii),
Section 3.05(a)(v) or Section 3.05(a)(vii).
SECTION 7.03. Notification to Certificateholders.
(a) Upon any termination of the Master Servicer pursuant to
Section 7.01 above or any appointment of a successor to the Master Servicer
pursuant to Section 7.02 above, the Trust Administrator shall give prompt
written notice thereof to Certificateholders and the NIMS Insurer at their
respective addresses appearing in the Certificate Register.
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(b) Not later than the later of 60 days after the occurrence
of any event, which constitutes or which, with notice or lapse of time or both,
would constitute a Master Servicer Event of Default or five days after a
Responsible Officer of the Trustee or the Trust Administrator becomes aware of
the occurrence of such an event, the Trustee or the Trust Administrator shall
transmit by mail to the NIMS Insurer and to all Holders of Certificates notice
of each such occurrence, unless such default or Master Servicer Event of Default
shall have been cured or waived.
SECTION 7.04. Waiver of Master Servicer Events of Default.
The Holders representing at least 66% of the Voting Rights
(with the consent of the NIMS Insurer) evidenced by all Classes of Certificates
affected by any default or Master Servicer Event of Default hereunder may waive
such default or Master Servicer Event of Default; provided, however, that a
default or Master Servicer Event of Default under clause (i) or (vii) of Section
7.01 may be waived only by all of the Holders of the Regular Certificates (with
the consent of the NIMS Insurer). Upon any such waiver of a default or Master
Servicer Event of Default, such default or Master Servicer Event of Default
shall cease to exist and shall be deemed to have been remedied for every purpose
hereunder. No such waiver shall extend to any subsequent or other default or
Master Servicer Event of Default or impair any right consequent thereon except
to the extent expressly so waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE AND THE TRUST ADMINISTRATOR
SECTION 8.01. Duties of Trustee.
The Trustee and the Trust Administrator, prior to the
occurrence of a Master Servicer Event of Default and after the curing of all
Master Servicer Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this
Agreement. During a Master Servicer Event of Default, each of the Trustee and
the Trust Administrator shall exercise such of the rights and powers vested in
it by this Agreement, and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs. Any permissive right of the Trustee or
the Trust Administrator enumerated in this Agreement shall not be construed as a
duty.
Each of the Trustee and the Trust Administrator, upon receipt
of all resolutions, certificates, statements, opinions, reports, documents,
orders or other instruments furnished to the Trustee and the Trust Administrator
which are specifically required to be furnished pursuant to any provision of
this Agreement, shall examine them to determine whether they conform on their
face to the requirements of this Agreement. If any such instrument is found not
to conform on its face to the requirements of this Agreement in a material
manner, the Trustee and the Trust Administrator, as the case may be, shall take
such action as it deems appropriate to have the instrument corrected, and if the
instrument is not corrected to its respective satisfaction, such dissatisfied
party will provide notice thereof to the Certificateholders and the NIMS
Insurer.
No provision of this Agreement shall be construed to relieve
the Trustee or the Trust Administrator from liability for its own negligent
action, its own negligent failure to act or its own misconduct; provided,
however, that:
(i) Prior to the occurrence of a Master Servicer Event of
Default, and after the curing of all such Master Servicer Events of
Default which may have occurred, the duties and obligations of each of
the Trustee and the Trust Administrator shall be determined solely by
the express provisions of this Agreement, neither the Trustee nor the
Trust Administrator shall be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement,
no implied covenants or obligations shall be read into this Agreement
against the Trustee or the Trust Administrator and, in the absence of
bad faith on the part of the Trustee or the Trust Administrator, as
applicable, the Trustee or the Trust Administrator, as the case may be,
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 Trust Administrator, as the
case may be, that conform to the requirements of this Agreement;
(ii) Neither the Trustee nor the Trust Administrator shall be
personally liable for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee or the Trust
Administrator, as applicable, unless it shall be proved that the
Trustee or the Trust Administrator, as applicable, was negligent in
ascertaining the pertinent facts; and
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(iii) Neither the Trustee nor the Trust Administrator shall be
personally liable with respect to any action taken, suffered or omitted
to be taken by it in good faith in accordance with the direction of the
NIMS Insurer or the Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee or the Trust
Administrator, as applicable, or exercising any trust or power
conferred upon it, under this Agreement.
Neither the Trustee nor the Trust 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 it to perform, or be responsible for the
manner of performance of, any of the obligations of the Master Servicer under
this Agreement, except during such time, if any, as the Trustee or the Trust
Administrator, as applicable, shall be the successor to, and be vested with the
rights, duties, powers and privileges of, the Master Servicer in accordance with
the terms of this Agreement.
SECTION 8.02. Certain Matters Affecting the Trustee and the
Trust Administrator.
(a) Except as otherwise provided in Section 8.01:
(i) Each of the Trustee and the Trust Administrator may
request and rely upon and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate, certificate of
auditors or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal, bond or other paper
or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) Each of the Trustee and the Trust Administrator may
consult with counsel and any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
with such Opinion of Counsel;
(iii) Neither the Trustee nor the Trust Administrator shall be
under any obligation to exercise any of the trusts or powers vested in
it by this Agreement or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of
any of the Certificateholders or the NIMS Insurer, pursuant to the
provisions of this Agreement, unless such Certificateholders or the
NIMS Insurer, as applicable, shall have offered to the Trustee or the
Trust Administrator, as applicable, security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities which
may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee or the Trust Administrator of the
obligation, upon the occurrence of a Master Servicer Event of Default
(which has not been cured or waived), 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
or use under the circumstances in the conduct of such person's own
affairs;
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(iv) Neither the Trustee nor the Trust Administrator shall be
personally liable for any action taken, suffered or omitted by it in
good faith and believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of a Master Servicer Event of
Default hereunder and after the curing of all Master Servicer Events of
Default which may have occurred, neither the Trustee nor the Trust
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 the NIMS Insurer or the Holders of Certificates entitled to at least
25% of the Voting Rights; provided, however, that if the payment within
a reasonable time to the Trustee or the Trust 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 Trust Administrator, as applicable, not reasonably
assured to the Trustee or the Trust Administrator, as applicable, by
such Certificateholders, the Trustee or the Trust Administrator, as
applicable, may require reasonable indemnity against such expense, or
liability from such Certificateholders or the NIMS Insurer as a
condition to taking any such action;
(vi) Each of the Trustee and the Trust Administrator may
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys; and
(vii) Neither the Trustee nor the Trust Administrator shall be
personally liable for any loss resulting from the investment of funds
held in the Collection Account, the Escrow Account or the REO Account
made at the direction of the Master Servicer pursuant to Section 3.06.
(b) All rights of action under this Agreement or under any of
the Certificates, enforceable by the Trustee or the Trust Administrator, may be
enforced by it without the possession of any of the Certificates, or the
production thereof at the trial or other proceeding relating thereto, and any
such suit, action or proceeding instituted by the Trustee or the Trust
Administrator shall be brought in the name of the Trustee for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
SECTION 8.03. Neither the Trustee nor Trust Administrator
Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other
than the signature of the Trustee or the Trust Administrator, on behalf of the
Trustee, the authentication of the Certificate Registrar on the Certificates,
the acknowledgments of the Trustee and the Trust Administrator contained in
Article II and the representations and warranties of the Trustee and the Trust
Administrator in Section 8.13) shall be taken as the statements of the Depositor
and neither the Trustee nor the Trust Administrator assumes any responsibility
for their correctness. Neither the Trustee nor the Trust Administrator make any
representations or warranties as to the validity or sufficiency of this
Agreement (other than as specifically set forth with respect to such party in
Section 8.13) or of the Certificates (other than with respect to the Trustee,
the signature of the
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Trustee and with respect to the Trust Administrator, the signature of the Trust
Administrator on behalf of the Trustee and authentication of the Certificate
Registrar on the Certificates) or of any Mortgage Loan or related document.
Neither the Trustee nor the Trust 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 or the Master Servicer in respect of the Mortgage Loans or deposited
in or withdrawn from the Collection Account by the Master Servicer, other than
with respect to the Trustee, any funds held by or on behalf of the Trustee
(other than by the Trust Administrator), and with respect to the Trust
Administrator, any amounts held by or on behalf of the Trust Administrator in
accordance with Section 3.04.
SECTION 8.04. Trustee and Trust Administrator May Own
Certificates.
Each of the Trustee and the Trust Administrator in its
individual capacity or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not Trustee or the
Trust Administrator, as applicable.
SECTION 8.05. Trustee's and Trust Administrator's Fees and
Expenses.
(a) The Trust Administrator shall withdraw from the
Distribution Account on each Distribution Date and pay to itself the
Administration Fee and, to the extent that the funds therein are at any time
insufficient for such purpose, the Depositor shall pay such fees. Each of the
Trustee and the Trust Administrator, or any director, officer, employee or agent
of the Trustee or the Trust Administrator, as applicable, shall be indemnified
by REMIC I and held harmless against any loss, liability or expense (not
including expenses, disbursements and advances incurred or made by the Trustee
or the Trust Administrator, as applicable, including the compensation and the
expenses and disbursements of its agents and counsel, in the ordinary course of
the Trustee's or Trust Administrator's, as the case may be, performance in
accordance with the provisions of this Agreement) incurred by the Trustee or the
Trust Administrator in connection with any claim or legal action or any pending
or threatened claim or legal action arising out of or in connection with the
acceptance or administration of its obligations and duties under this Agreement,
other than any loss, liability or expense (i) resulting from a breach of the
Master Servicer's obligations and duties under this Agreement and the Mortgage
Loans (for which the Master Servicer shall indemnify pursuant to Section
8.05(b)), (ii) that constitutes a specific liability of the Trustee or the Trust
Administrator, as applicable, pursuant to Section 10.01(c) or (iii) any loss,
liability or expense incurred by reason of its respective willful misfeasance,
bad faith or negligence in the performance of its respective duties hereunder or
by reason of reckless disregard of its respective obligations and duties
hereunder or as a result of a breach of its respective obligations under Article
X hereof. Any amounts payable to the Trustee or the Trust Administrator, or any
director, officer, employee or agent of the Trustee or the Trust Administrator,
as applicable, in respect of the indemnification provided by this paragraph (a),
or pursuant to any other right of reimbursement from the Trust Fund that the
Trustee or the Trust Administrator, or any director, officer, employee or agent
of the Trustee or the Trust Administrator, as applicable, may have hereunder in
its capacity as such, may be withdrawn by the Trust Administrator from the
Distribution Account at any time.
(b) The Master Servicer agrees to indemnify each of the
Trustee and the Trust Administrator from, and hold it harmless against, any
loss, liability or expense resulting from a breach of the Master Servicer's
obligations and duties under this Agreement. Such indemnity shall
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survive the termination or discharge of this Agreement and the resignation or
removal of the Trustee and the Trust Administrator. Any payment hereunder made
by the Master Servicer to the Trustee or the Trust Administrator shall be from
the Master Servicer's own funds, without reimbursement from the Trust Fund
therefor.
(c) The Master Servicer shall pay any annual rating agency
fees of the Rating Agencies for ongoing surveillance from its own funds without
right of reimbursement.
SECTION 8.06. Eligibility Requirements for Trustee and the
Trust Administrator.
Each of the Trustee and the Trust Administrator hereunder
shall at all times be a corporation or an association (other than the Depositor,
the Originator, the Master Servicer or any Affiliate of the foregoing) organized
and doing business under the laws of any state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by federal or state authority. If such corporation or association
publishes reports of conditions at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of conditions so published. In case at any time the
Trustee or the Trust Administrator shall cease to be eligible in accordance with
the provisions of this Section, the Trustee or the Trust Administrator, as the
case may be, shall resign immediately in the manner and with the effect
specified in Section 8.07.
SECTION 8.07. Resignation and Removal of the Trustee and the
Trust Administrator.
Either the Trustee or the Trust Administrator may at any time
resign and be discharged from the trust hereby created by giving written notice
thereof to the Depositor, the NIMS Insurer, the Master Servicer and the
Certificateholders. Upon receiving such notice of resignation of the Trustee,
the Depositor shall promptly appoint the Trust Administrator as successor
trustee, and the Trust Administrator shall serve in such capacity so long as it
continues to meet the eligibility requirements in Section 8.06 and is not
otherwise legally prohibited from serving as Trustee. If the Trust Administrator
is appointed successor trustee, it shall perform all obligations of the Trustee
and the Trust Administrator set forth herein. If the Trust Administrator is
unable to serve as successor trustee, the Depositor shall promptly appoint a
successor trustee or, if applicable, a trust administrator acceptable to the
NIMS Insurer by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee or Trust Administrator and to the successor
trustee or trust administrator, as applicable. A copy of such instrument shall
be delivered to the Certificateholders, the Trustee or the Trust Administrator,
as applicable, and the Master Servicer by the Depositor. If no successor trustee
or trust 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 Trust Administrator, as applicable, may petition any court
of competent jurisdiction for the appointment of a successor trustee or trust
administrator, as applicable.
If at any time the Trustee or the Trust Administrator shall
cease to be eligible in accordance with the provisions of Section 8.06 and shall
fail to resign after written request therefor
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by the Depositor (or in the case of the Trust Administrator, the Trustee) or the
NIMS Insurer, or if at any time the Trustee or the Trust Administrator shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
receiver of the Trustee or the Trust Administrator, as the case may be, or of
its respective property shall be appointed, or any public officer shall take
charge or control of the Trustee or the Trust Administrator, as the case may be,
or of its respective property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Depositor or the NIMS Insurer may remove
the Trustee or the Trust Administrator, as applicable, and appoint a successor
trustee or trust administrator, as applicable, acceptable to the NIMS Insurer by
written instrument, in duplicate, which instrument shall be delivered to the
Trustee or the Trust Administrator, as applicable, so removed and to the
successor trustee or trust administrator, as applicable. A copy of such
instrument shall be delivered to the Certificateholders and the Master Servicer
by the Depositor.
The Holders of Certificates entitled to at least 51% of the
Voting Rights (or the NIMS Insurer upon failure of the Trustee or the Trust
Administrator to perform its obligations hereunder) may at any time remove the
Trustee or the Trust Administrator, as the case may be, and appoint a successor
trustee or trust administrator, as applicable, acceptable to the NIMS Insurer by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Depositor, one complete set to the Trustee or the
Trust Administrator, as applicable, so removed and one complete set to the
successor so appointed. A copy of such instrument shall be delivered to the
Certificateholders and the Master Servicer by the Depositor.
Any resignation or removal of the Trustee or the Trust
Administrator and appointment of a successor trustee or trust administrator, as
applicable, pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor trustee or trust
administrator, as applicable, as provided in Section 8.08.
SECTION 8.08. Successor Trustee or Trust Administrator.
Any successor trustee or trust administrator appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the
Depositor, the NIMS Insurer, the Trustee or the Trust Administrator, as
applicable, and to its predecessor trustee or trust administrator, as
applicable, an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor trustee or trust administrator, as
applicable, shall become effective and such successor trustee or trust
administrator, as applicable, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee or
trust administrator herein. The predecessor trustee or trust administrator, as
applicable, shall deliver to the successor trustee or trust administrator, as
applicable, all Mortgage Files and related documents and statements, as well as
all moneys, held by it hereunder (other than any Mortgage Files at the time held
by a Custodian, which Custodian shall become the agent of any successor trustee
or trust administrator hereunder), and the Depositor and the predecessor trustee
or trust 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 trust
administrator, as the case may be, all such rights, powers, duties and
obligations.
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No successor trustee or trust administrator shall accept
appointment as provided in this Section unless at the time of such acceptance
such successor trustee or trust administrator, as the case may be, shall be
eligible under the provisions of Section 8.06 and the appointment of such
successor trustee or trust administrator shall not result in a downgrading of
any Class of Certificates by either Rating Agency, as evidenced by a letter from
each Rating Agency.
Upon acceptance of appointment by a successor trustee or trust
administrator as provided in this Section, the Depositor shall mail notice of
the succession of such trustee or trust administrator hereunder to all Holders
of Certificates at their addresses as shown in the Certificate Register. If the
Depositor fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee or trust administrator, the successor
trustee or trust administrator shall cause such notice to be mailed at the
expense of the Depositor.
SECTION 8.09. Merger or Consolidation of Trustee or the Trust
Administrator.
Any corporation or association into which either the Trustee
or the Trust Administrator may be merged or converted or with which it may be
consolidated or any corporation or association resulting from any merger,
conversion or consolidation to which the Trustee or the Trust Administrator, as
the case may be, shall be a party, or any corporation or association succeeding
to the business of the Trustee or the Trust Administrator, as applicable, shall
be the successor of the Trustee or the Trust Administrator, as the case may be,
hereunder, provided such corporation or association shall be eligible under the
provisions of Section 8.06, 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 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of REMIC I or property securing the same may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee and the NIMS Insurer to act as co-trustee or co-trustees, jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of REMIC I, and to vest in such Person or Persons, in such capacity, such title
to REMIC I, or any part thereof, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the Master
Servicer and the Trustee may consider necessary or desirable. Any such
co-trustee or separate trustee shall be subject to the written approval of the
Master Servicer and the NIMS Insurer. If the Master Servicer and the NIMS
Insurer shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, or in case a Master Servicer Event of
Default shall have occurred and be continuing, the Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 8.06 hereunder and no notice to Holders of Certificates of the
appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 8.08 hereof.
In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall
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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 by
the Trustee (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 REMIC I 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.
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 VIII. Each separate trustee and co-trustee, upon
its acceptance of the trust conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee and a
copy thereof given to the Depositor, the Master Servicer and the NIMS Insurer.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Depositor, the Master
Servicer and the Trust Administrator, appoint one or more Custodians to hold all
or a portion of the Mortgage Files as agent for the Trustee, by entering into a
Custodial Agreement. The appointment of any Custodian may at any time be
terminated and a substitute Custodian appointed therefor upon the reasonable
request of the Master Servicer to the Trustee, the consent to which shall not be
unreasonably withheld. The Trust Administrator shall pay any and all fees and
expenses of any Custodian in accordance with each Custodial Agreement (provided
that if expenses of the kind that would be reimbursable to the Trust
Administrator pursuant to Section 8.05 if incurred by the Trust Administrator
are incurred by the Custodian, the Trust Administrator shall be entitled to
reimbursement under Section 8.05 for such kind of expenses to the extent the
Trust Administrator has paid such expenses on behalf of the Custodian or for
which the Trust Administrator has reimbursed the Custodian). The Trustee
initially appoints the Custodian as Custodian, and the Depositor, the Master
Servicer and the Trust Administrator consent to such appointment. Subject to
Article VIII hereof, the Trust Administrator agrees to comply with the terms of
each Custodial Agreement and to enforce the terms and provisions thereof against
the Custodian for the benefit of the Certificateholders having an interest in
any Mortgage File held by such Custodian. Each Custodian shall be a depository
institution or trust company subject to supervision by federal or state
authority, shall have combined capital and surplus of at least $10,000,000 and
shall be qualified to do business in the jurisdiction in which it holds any
Mortgage File. Each Custodial Agreement may be amended only as provided in
Section
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11.01. In no event shall the appointment of any Custodian pursuant to a
Custodial Agreement diminish the obligations of the Trust Administrator
hereunder.
SECTION 8.12. Appointment of Office or Agency.
The Trust Administrator will designate an office or agency in
the City of New York where the Certificates may be surrendered for registration
of transfer or exchange, and presented for final distribution, and where notices
and demands to or upon the Trust Administrator in respect of the Certificates
and this Agreement may be delivered. As of the Closing Date, the Trust
Administrator designates the office of its agent located c/o DTC Transfer Agent
Services, 00 Xxxxx Xxxxxx, Xxxxxxxx Xxxx Entrance, Xxx Xxxx, XX 00000 for such
purposes.
SECTION 8.13. Representations and Warranties of the Trustee
and the Trust Administrator.
Each of the Trustee and the Trust Administrator hereby
represents and warrants, solely as to itself, to the Master Servicer, the
Trustee or the Trust Administrator, as applicable, and the Depositor, as of the
Closing Date, that:
(i) It is a national banking association duly organized,
validly existing and in good standing under the laws of the United
States.
(ii) The execution and delivery of this Agreement by it, and
the performance and compliance with the terms of this Agreement by it,
will not violate its charter or bylaws or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets.
(iii) It has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of it, enforceable against it in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
receivership, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) It is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order
or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority,
which violation, in its good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of it to perform
its obligations under this Agreement or its financial condition.
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(vi) No litigation is pending or, to the best knowledge,
threatened against it which would prohibit it from entering into this
Agreement or, in its good faith reasonable judgment, is likely to
materially and adversely affect either its ability to perform its
obligations under this Agreement or its financial condition.
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ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
(a) Subject to Section 9.02, the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer, the
Trust Administrator and the Trustee (other than the obligations of the Master
Servicer to the Trustee and the Trust Administrator pursuant to Section 8.05 and
of the Master Servicer to provide for and the Trust Administrator to make
payments in respect of the REMIC I Regular Interests, the REMIC II Regular
Interests or the Classes of Certificates as hereinafter set forth) shall
terminate upon payment to the Certificateholders and the deposit of all amounts
held by or on behalf of the Trustee and the Trust Administrator and required
hereunder to be so paid or deposited on the Distribution Date coinciding with or
following the earlier to occur of (i) the purchase by the Terminator (as defined
below) of all Mortgage Loans and each REO Property remaining in REMIC I and (ii)
the final payment or other liquidation (or any advance with respect thereto) of
the last Mortgage Loan or REO Property remaining in REMIC I; provided, however,
that in no event shall the trust created hereby continue beyond 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. Xxxxx,
living on the date hereof. The purchase by the Terminator of all Mortgage Loans
and each REO Property remaining in REMIC I shall be at a price (the "Termination
Price") equal to the greater of (A) the aggregate Purchase Price of all the
Mortgage Loans included in REMIC I, plus the appraised value of each REO
Property, if any, included in REMIC I, such appraisal to be conducted by an
appraiser mutually agreed upon by the Terminator and the Trust Administrator in
their reasonable discretion and (B) the aggregate fair market value of all of
the assets of REMIC I (as determined by the Terminator and the Trust
Administrator, as of the close of business on the third Business Day next
preceding the date upon which notice of any such termination is furnished to
Certificateholders pursuant to the third paragraph of this Section 9.01) plus
amounts necessary to retire the principal balance of each class of notes issued
pursuant to the Indenture.
(b) The Master Servicer (or if the Master Servicer Fails to
exercise such right, the NIMS Insurer) shall have the right (the party
exercising such right, the "Terminator"), to purchase all of the Mortgage Loans
and each REO Property remaining in REMIC I pursuant to clause (i) of the
preceding paragraph no later than the Determination Date in the month
immediately preceding the Distribution Date on which the Certificates will be
retired; provided, however, that the Terminator may elect to purchase all of the
Mortgage Loans and each REO Property remaining in REMIC I pursuant to clause (i)
above only (A) if the aggregate Stated Principal Balance of the Mortgage Loans
and each REO Property remaining in the Trust Fund at the time of such election
is less than 10% of the aggregate Stated Principal Balance of the Initial
Mortgage Loans as of the Cut- off Date and (B) if the Terminator is the Master
Servicer and is an affiliate of the Originator, the Master Servicer shall have
delivered to the Trustee, the Trust Administrator and the NIMS Insurer a written
certification that the burdens of servicing the Mortgage Loans and REO
Properties remaining in REMIC I exceed the benefits of the Servicing Fees that
would be realized by the Master Servicer if it continued to service such assets
on behalf of the Trust Fund. By acceptance of the Residual Certificates, the
Holders of the Residual Certificates agree, in connection with any
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termination hereunder, to assign and transfer any amounts in excess of par, and
to the extent received in respect of such termination, to pay any such amounts
to the Holders of the Class CE Certificates.
(c) Notice of the liquidation of the REMIC I Regular Interests
shall be given promptly by the Trust Administrator by letter to
Certificateholders mailed (a) in the event such notice is given in connection
with the purchase of the Mortgage Loans and each REO Property by the Terminator,
not earlier than the 15th day and not later than the 25th day of the month next
preceding the month of the final distribution on the Certificates or (b)
otherwise during the month of such final distribution on or before the
Determination Date in such month, in each case specifying (i) the Distribution
Date upon which the Trust Fund will terminate and final payment in respect of
the REMIC I Regular Interests, the REMIC II Regular Interests and the
Certificates will be made upon presentation and surrender of the related
Certificates at the office of the Trust Administrator therein designated, (ii)
the amount of any such final payment, (iii) that no interest shall accrue in
respect of the REMIC I Regular Interests, the REMIC II Regular Interests or the
Certificates from and after the Interest Accrual Period relating to the final
Distribution Date therefor and (iv) that the Record Date otherwise applicable to
such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Certificates at the office of the Trust
Administrator. The Trust Administrator shall give such notice to the Certificate
Registrar at the time such notice is given to Certificateholders. In the event
such notice is given in connection with the purchase of all of the Mortgage
Loans and each REO Property remaining in REMIC I by the Terminator, the
Terminator shall deliver to the Trust Administrator for deposit in the
Distribution Account not later than the last Business Day preceding the final
Distribution Date on the Certificates an amount in immediately available funds
equal to the above-described purchase price. Upon certification to the Trust
Administrator by a Servicing Officer of the making of such final deposit, the
Trust Administrator shall promptly release or cause to be released to the
Terminator the Mortgage Files for the remaining Mortgage Loans, and the Trust
Administrator shall request the Trustee to (and the Trustee shall) execute all
assignments, endorsements and other instruments necessary to effectuate such
transfer.
(d) Upon presentation of the Certificates by the
Certificateholders on the final Distribution Date, the Trust Administrator shall
distribute to each Certificateholder so presenting and surrendering its
Certificates the amount otherwise distributable on such Distribution Date in
accordance with Section 4.01 in respect of the Certificates so presented and
surrendered. Any funds not distributed to any Holder or Holders of Certificates
being retired on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
in trust by the Trust Administrator and credited to the account of the
appropriate non-tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trust Administrator shall mail a second notice to the remaining non-
tendering Certificateholders to surrender their Certificates for cancellation in
order to receive the final distribution with respect thereto. If within one year
after the second notice all such Certificates shall not have been surrendered
for cancellation, the Trust Administrator shall, directly or through an agent,
mail a final notice to remaining related non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining the funds in trust and of contacting such Certificateholders shall
be paid out of the assets remaining in the trust funds. If within one year after
the final notice any such Certificates shall not have been surrendered for
cancellation, the Trust Administrator shall pay to Deutsche Bank Securities all
such amounts, and all rights of non-tendering Certificateholders in or to such
amounts shall thereupon cease. No
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interest shall accrue or be payable to any Certificateholder on any amount held
in trust by the Trust Administrator as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with this Section 9.01.
Immediately following the deposit of funds in trust hereunder
in respect of the Certificates, the Trust Fund shall terminate.
SECTION 9.02 Additional Termination Requirements.
(a) In the event that the Terminator purchases all the
Mortgage Loans and each REO Property or the final payment on or other
liquidation of the last Mortgage Loan or REO Property remaining in REMIC I
pursuant to Section 9.01, the Trust Fund shall be terminated in accordance with
the following additional requirements:
(i) The Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to each Trust REMIC's final
Tax Return pursuant to Treasury regulation Section 1.860F-1 and shall
satisfy all requirements of a qualified liquidation under Section 860F
of the Code and any regulations thereunder, as evidenced by an Opinion
of Counsel obtained at the expense of the Terminator;
(ii) During such 90-day liquidation period, and at or prior to
the time of making of the final payment on the Certificates, the
Trustee shall sell all of the assets of REMIC I to the Terminator for
cash; and
(iii) At the time of the making of the final payment on the
Certificates, the Trust Administrator shall distribute or credit, or
cause to be distributed or credited, to the Holders of the Residual
Certificates all cash on hand in the Trust Fund (other than cash
retained to meet claims), and the Trust Fund shall terminate at that
time.
(b) At the expense of the applicable Terminator (or in the
event of termination under Section 9.01(a)(ii), at the expense of the Trust
Administrator), the Trust Administrator shall prepare or cause to be prepared
the documentation required in connection with the adoption of a plan of
liquidation of each Trust REMIC pursuant to this Section 9.02.
(c) By their acceptance of Certificates, the Holders thereof
hereby agree to authorize the Trustee to specify the 90-day liquidation period
for each Trust REMIC which authorization shall be binding upon all successor
Certificateholders.
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ARTICLE X
REMIC PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The Trustee shall elect to treat each Trust REMIC as a
REMIC under the Code and, if necessary, under applicable state law. Each such
election will be made by the Trustee on Form 1066 or other appropriate federal
tax or information return or any appropriate state return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued. For the purposes of the REMIC election in respect of REMIC I, the REMIC
I Regular Interests shall be designated as the Regular Interests in REMIC I and
the Class R-I Interest shall be designated as the Residual Interest in REMIC I.
The REMIC II Regular Interests shall be designated as the Regular Interests in
REMIC II and the Class R-II Interest shall be designated as the Residual
Interest in REMIC II. The Class A Certificates, the Mezzanine Certificates, the
Class S Certificates, the Class CE Certificates and the Class P Certificates
shall be designated as the Regular Interests in REMIC III and the Class R-III
Interest shall be designated as the Residual Interest in REMIC III. Neither the
Trustee nor the Trust Administrator shall permit the creation of any "interests"
in any Trust REMIC (within the meaning of Section 860G of the Code) other than
the REMIC I Regular Interests, the REMIC II Regular Interests and the interests
represented by the Certificates.
(b) The Closing Date is hereby designated as the "Startup Day"
of each Trust REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Trust Administrator shall pay out of its own funds,
without any right of reimbursement, any and all expenses relating to any tax
audit of the Trust Fund caused by the Trust Administrator (including, but not
limited to, any professional fees or any administrative or judicial proceedings
with respect to any Trust REMIC that involve the Internal Revenue Service or
state tax authorities), other than the expense of obtaining any tax related
Opinion of Counsel except as specified herein. The Trust Administrator, as agent
for each Trust REMIC's tax matters person, shall (i) act on behalf of the Trust
Fund in relation to any tax matter or controversy involving any Trust REMIC and
(ii) represent the Trust Fund in any administrative or judicial proceeding
relating to an examination or audit by any governmental taxing authority with
respect thereto. The holder of the largest Percentage Interest of each Class of
Residual Certificates shall be designated, in the manner provided under Treasury
regulations section 1.860F-4(d) and Treasury regulations section
301.6231(a)(7)-1, as the tax matters person of the related REMIC created
hereunder. By their acceptance thereof, the holder of the largest Percentage
Interest of the Residual Certificates hereby agrees to irrevocably appoint the
Trust Administrator or an Affiliate as its agent to perform all of the duties of
the tax matters person for the Trust Fund.
(d) The Trust Administrator shall prepare, the Trustee shall
sign and the Trust Administrator shall file all of the Tax Returns in respect of
each REMIC created hereunder. The expenses of preparing and filing such returns
shall be borne by the Trust Administrator without any right of reimbursement
therefor. The Master Servicer shall provide on a timely basis to the Trustee and
the Trust Administrator or its designee such information with respect to the
assets of the Trust Fund as is in its possession and reasonably required by the
Trustee and the Trust Administrator to enable it to perform its obligations
under this Article.
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(e) The Trust Administrator shall perform on behalf of each
Trust REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the Internal Revenue Service or any state or local
taxing authority. Among its other duties, as required by the Code, the REMIC
Provisions or other such compliance guidance, the Trust Administrator shall
provide (i) to any Transferor of a Residual Certificate such information as is
necessary for the application of any tax relating to the transfer of a Residual
Certificate to any Person who is not a Permitted Transferee, (ii) to the
Certificateholders such information or reports as are required by the Code or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption as
required) and (iii) to the Internal Revenue Service the name, title, address and
telephone number of the person who will serve as the representative of each
Trust REMIC. The Master Servicer shall provide on a timely basis to the Trustee
and the Trust Administrator such information with respect to the assets of the
Trust Fund, including, without limitation, the Mortgage Loans, as is in its
possession and reasonably required by the Trustee and the Trust Administrator to
enable each of them to perform their respective obligations under this
subsection. In addition, the Depositor shall provide or cause to be provided to
the Trust Administrator, within ten (10) days after the Closing Date, all
information or data that the Trust Administrator reasonably determines to be
relevant for tax purposes as to the valuations and issue prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flow of the Certificates.
(f) The Trustee and the Trust Administrator shall take such
action and shall cause each REMIC created hereunder to take such action as shall
be necessary to create or maintain the status thereof as a REMIC under the REMIC
Provisions (and the Master Servicer shall assist it, to the extent reasonably
requested by it). The Trustee and the Trust Administrator shall not take any
action, cause the Trust Fund to take any action or fail to take (or fail to
cause to be taken) any action that, under the REMIC Provisions, if taken or not
taken, as the case may be, could (i) endanger the status of any Trust REMIC as a
REMIC or (ii) 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) (either such event, an "Adverse REMIC Event")
unless the Trustee, the Trust Administrator and the NIMS Insurer have received
an Opinion of Counsel, addressed to the Trustee and the Trust Administrator (at
the expense of the party seeking to take such action but in no event at the
expense of the Trustee or the Trust Administrator) to the effect that the
contemplated action will not, with respect to any Trust REMIC, endanger such
status or result in the imposition of such a tax, nor shall the Master Servicer
take or fail to take any action (whether or not authorized hereunder) as to
which the Trustee, the Trust Administrator and the NIMS Insurer has advised it
in writing that it has received an Opinion of Counsel to the effect that an
Adverse REMIC Event could occur with respect to such action. In addition, prior
to taking any action with respect to any Trust REMIC or the respective assets of
each, or causing any Trust REMIC to take any action, which is not contemplated
under the terms of this Agreement, the Master Servicer will consult with the
Trustee, the Trust Administrator, the NIMS Insurer or its designee, in writing,
with respect to whether such action could cause an Adverse REMIC Event to occur
with respect to any Trust REMIC, and the Master Servicer shall not take any such
action or cause any Trust REMIC to take any such action as to which the Trustee,
the Trust Administrator or the NIMS Insurer has advised it in writing that an
Adverse REMIC Event could occur. The Trustee, the Trust Administrator or the
NIMS Insurer may consult with counsel to make such written advice, and the cost
of same shall be borne by the party seeking to take the
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action not permitted by this Agreement, but in no event shall such cost be an
expense of the Trustee or the Trust Administrator, as applicable. At all times
as may be required by the Code, the Master Servicer (in its capacity as
Originator) on behalf of the Trust Administrator will ensure that substantially
all of the assets of any Trust REMIC will consist of "qualified mortgages" as
defined in Section 860G(a)(3) of the Code and "permitted investments" as defined
in Section 860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited
transactions" of any REMIC created hereunder as defined in Section 860F(a)(2) of
the Code, on the "net income from foreclosure property" of such REMIC as defined
in Section 860G(c) of the Code, on any contributions to any such REMIC after the
Startup Day therefor pursuant to Section 860G(d) of the Code, or any other tax
is imposed by the Code or any applicable provisions of state or local tax laws,
such tax shall be charged (i) to the Trust Administrator pursuant to Section
10.03 hereof, if such tax arises out of or results from a breach by the Trust
Administrator of any of its obligations under this Article X, (ii) to the Master
Servicer pursuant to Section 10.03 hereof, if such tax arises out of or results
from a breach by the Master Servicer of any of its obligations under Article III
or this Article X, or otherwise (iii) against amounts on deposit in the
Distribution Account and shall be paid by withdrawal therefrom.
(h) On or before April 15th of each calendar year, commencing
April 15, 2003, the Trust Administrator shall deliver to the Master Servicer,
the NIMS Insurer and each Rating Agency a Certificate from a Responsible Officer
of the Trust Administrator stating, without regard to any action taken by any
party other than the Trust Administrator, the Trust Administrator's compliance
with this Article X.
(i) The Trust Administrator shall, for federal income tax
purposes, maintain books and records with respect to each Trust REMIC on a
calendar year and on an accrual basis. The Trust Administrator will apply for an
Employer Identification Number for the Trust Fund from the Internal Revenue
Service via a Form SS-4 or such other form as is appropriate.
(j) Following the Startup Day, neither the Trustee nor the
Trust Administrator shall accept any contributions of assets to any Trust REMIC
other than in connection with any Qualified Substitute Mortgage Loan delivered
in accordance with Section 2.03 unless it shall have received an Opinion of
Counsel to the effect that the inclusion of such assets in the Trust Fund will
not cause the related REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding or subject such REMIC to any tax under the REMIC
Provisions or other applicable provisions of federal, state and local law or
ordinances.
(k) None of the Trustee, the Trust Administrator or the Master
Servicer shall enter into any arrangement by which any Trust REMIC will receive
a fee or other compensation for services nor permit any such REMIC to receive
any income from assets other than the Mortgage Pool which are deemed to
constitute "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code.
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SECTION 10.02. Prohibited Transactions and Activities.
None of the Depositor, the Master Servicer, the Trust
Administrator or the Trustee shall sell, dispose of or substitute for any of the
Mortgage Loans (except in connection with (i) the foreclosure of a Mortgage
Loan, including but not limited to, the acquisition or sale of a Mortgaged
Property acquired by deed in lieu of foreclosure, (ii) the bankruptcy of REMIC
I, (iii) the termination of REMIC I pursuant to Article IX of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a purchase
of Mortgage Loans pursuant to Article II or III of this Agreement), nor acquire
any assets for any Trust REMIC (other than REO Property acquired in respect of a
defaulted Mortgage Loan), nor sell or dispose of any investments in the
Collection Account or the Distribution Account for gain, nor accept any
contributions to any Trust REMIC after the Closing Date (other than a Qualified
Substitute Mortgage Loan delivered in accordance with Section 2.03), unless it
has received an Opinion of Counsel, addressed to the Trustee, the Trust
Administrator and the NIMS Insurer (at the expense of the party seeking to cause
such sale, disposition, substitution, acquisition or contribution but in no
event at the expense of the Trustee or the Trust Administrator) that such sale,
disposition, substitution, acquisition or contribution will not (a) affect
adversely the status of any Trust REMIC as a REMIC or (b) cause any Trust REMIC
to be subject to a tax on "prohibited transactions" or "contributions" pursuant
to the REMIC Provisions.
SECTION 10.03. Master Servicer and Trustee and Trust
Administrator Indemnification.
(a) The Trustee agrees to indemnify the Trust Fund, the NIMS
Insurer, the Depositor, the Trust Administrator and the Master Servicer for any
taxes and costs including, without limitation, any reasonable attorneys fees
imposed on or incurred by the Trust Fund, the Depositor, the Trust Administrator
or the Master Servicer, caused solely by the Trustee's failure to act in
accordance with its standard of care set forth in this Article X.
(b) The Trust Administrator agrees to indemnify the Trust
Fund, the NIMS Insurer, the Depositor, the Trustee and the Master Servicer for
any taxes and costs including, without limitation, any reasonable attorneys fees
imposed on or incurred by the Trust Fund, the Depositor, the Trustee or the
Master Servicer, caused solely by the Trust Administrator's failure to act in
accordance with its standard of care set forth in this Article X or any state,
local or franchise taxes imposed upon the Trust as a result of the location of
the Trust Administrator.
(c) The Master Servicer agrees to indemnify the Trust Fund,
the NIMS Insurer, the Depositor, the Trust Administrator and the Trustee for any
taxes and costs including, without limitation, any reasonable attorneys' fees
imposed on or incurred by the Trust Fund, the Depositor, the Trust Administrator
or the Trustee, as a result of a breach of the Master Servicer's covenants set
forth in Article III or this Article X or any state, local or franchise taxes
imposed upon the Trust as a result of the location of the Master Servicer or any
subservicer.
159
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
This Agreement or any Custodial Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and, if applicable, the Custodian with the consent of the NIMS
Insurer and without the consent of any of the Certificateholders, (i) to cure
any ambiguity or defect, (ii) to correct, modify or supplement any provisions
herein (including to give effect to the expectations of Certificateholders), or
in any Custodial Agreement, or (iii) to make any other provisions with respect
to matters or questions arising under this Agreement or in any Custodial
Agreement which shall not be inconsistent with the provisions of this Agreement
or such Custodial Agreement, provided that such action shall not, as evidenced
by an Opinion of Counsel delivered to the Trustee and the Trust Administrator,
adversely affect in any material respect the interests of any Certificateholder,
as evidenced by (i) an Opinion of Counsel delivered to the Master Servicer, the
Trust Administrator and the Trustee or (ii) confirmation from the Rating
Agencies that such amendment will not result in the reduction or withdrawal of
the rating of any outstanding Class of Certificates. No amendment shall be
deemed to adversely affect in any material respect the interests of any
Certificateholder who shall have consented thereto, and no Opinion of Counsel
shall be required to address the effect of any such amendment on any such
consenting Certificateholder.
This Agreement or any Custodial Agreement may also be amended
from time to time by the Depositor, the Master Servicer, the NIMS Insurer, the
Trust Administrator and the Trustee with the consent of the NIMS Insurer and the
Holders of Certificates entitled to at least 66% of the Voting Rights for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or any Custodial Agreement or of modifying
in any manner the rights of the Holders of Certificates; 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 Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates (as evidenced by either (i) an Opinion of
Counsel delivered to the Trustee or (ii) written notice to the Depositor, the
Servicer and the Trustee from the Rating Agencies that such action will not
result in the reduction or withdrawal of the rating of any outstanding Class of
Certificates with respect to which it is a Rating Agency) in a manner other than
as described in (i), or (iii) modify the consents required by the immediately
preceding clauses (i) and (ii) without the consent of the Holders of all
Certificates then outstanding. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 11.01, Certificates registered in the name of the Depositor or the
Master Servicer or any Affiliate thereof shall be entitled to Voting Rights with
respect to matters affecting such Certificates.
Notwithstanding any contrary provision of this Agreement, none
of the Trustee, the Trust Administrator or the NIMS Insurer shall consent to any
amendment to this Agreement unless it shall have first received an Opinion of
Counsel satisfactory to the NIMS Insurer to the effect that such amendment will
not result in the imposition of any tax on any Trust REMIC pursuant to the
160
REMIC Provisions or cause any Trust REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding.
Notwithstanding any of the other provisions of this Section
11.01, none of the Depositor, the Master Servicer, the Trust Administrator or
the Trustee shall enter into any amendment of this Agreement that would
significantly change the permitted activities of the Trust Fund without the
consent of the NIMS Insurer and the holders of Certificates that represent more
than 50.00% of the aggregate Certificate Principal Balance of all Certificates.
Promptly after the execution of any such amendment the Trustee
shall furnish a copy of such amendment to each Certificateholder.
It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee and the Trust
Administrator may prescribe.
The cost of any Opinion of Counsel to be delivered pursuant to
this Section 11.01 shall be borne by the Person seeking the related amendment,
but in no event shall such Opinion of Counsel be an expense of the Trustee or
the Trust Administrator.
Each of the Trustee and the Trust Administrator may, but shall
not be obligated to enter into any amendment pursuant to this Section that
affects its respective rights, duties and immunities under this Agreement or
otherwise.
SECTION 11.02. Recordation of Agreement; Counterparts.
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 Master Servicer at the expense of the Certificateholders, but
only upon direction of the Trustee or the Trust Administrator accompanied by an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, 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
161
the Trust Fund, nor otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of any of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless (i)
such Holder previously shall have given to the Trustee and the Trust
Administrator a written notice of default and of the continuance thereof, as
hereinbefore provided, and (ii) the Holders of Certificates entitled to at least
25% of the Voting Rights shall have made written request upon the Trustee and
the Trust Administrator to institute such action, suit or proceeding in the name
of the Trustee hereunder and shall have offered to the Trustee and the Trust
Administrator such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee or
the Trust Administrator, for 15 days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee and the Trust Administrator, that no one or more Holders of Certificates
shall have any right in any manner whatsoever by virtue of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of such Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Agreement, except
in the manner herein provided and for the equal, ratable and common benefit of
all Certificateholders. For the protection and enforcement of the provisions of
this Section, each and every Certificateholder and the Trustee and the Trust
Administrator shall be entitled to such relief as can be given either at law or
in equity.
SECTION 11.04. Governing Law.
This Agreement shall be construed in accordance with the laws
of the State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws excluding the choice
of laws provisions therein.
SECTION 11.05. Notices.
All directions, demands, requests, authorizations and notices
hereunder shall be in writing and shall be deemed to have been duly given when
received if personally delivered at or mailed by first class mail, postage
prepaid, or by express delivery service, facsimile, electronic mail or delivered
in any other manner specified herein, to (a) in the case of the Depositor, 0000
Xxxx & Xxxxxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000, Attention: Capital
Markets (telecopy number (000) 000-0000), or such other address or telecopy
number as may hereafter be furnished to the Master Servicer, the NIMS Insurer,
the Trust Administrator and the Trustee in writing by the Depositor, (b) in the
case of the Master Servicer, 0000 Xxxx & Xxxxxxx Xxxx, 00xx Xxxxx, Xxxxxx,
000
Xxxxxxxxxx 00000, Attention: General Counsel (telecopy number: (000) 000-0000),
or such other address or telecopy number as may hereafter be furnished to the
Trustee, the Trust Administrator, the NIMS Insurer and the Depositor in writing
by the Master Servicer, (c) in the case of the Trust Administrator, Deutsche
Bank National Trust Company, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, XX
00000-0000, Attention: Trust Administration-AQ0203 (telecopy number: (714)
247-6009), or such other address or telecopy number as may hereafter be
furnished to the Master Servicer, the Trustee, the NIMS Insurer and the
Depositor in writing by the Trust Administrator, (d) in the case of the Trustee,
the U.S. Bank National Association, 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx
00000, Attention: Structured Finance/AMSI 2002-3 (telecopy number (612)
244-0089), or such other address or telecopy number as may be furnished to the
Master Servicer, the Trust Administrator, the Depositor and the NIMS Insurer in
writing by the Trustee and (e) in the case of the NIMS Insurer, such address
furnished to the Depositor, the Master Servicer, the Trustee and the Trust
Administrator in writing by the NIMS Insurer. Any notice required or permitted
to be given to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder 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. A copy of any notice required to be
telecopied hereunder also shall be mailed to the appropriate party in the manner
set forth above.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. Notice to Rating Agencies and the NIMS Insurer.
The Trust Administrator shall use its best efforts promptly to
provide notice to the Rating Agencies and the NIMS Insurer with respect to each
of the following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Master Servicer Event of Default that
has not been cured or waived;
3. The resignation or termination of the Master Servicer or
the Trustee or the Trust Administrator;
4. The repurchase or substitution of Mortgage Loans pursuant
to or as contemplated by Section 2.03;
5. The final payment to the Holders of any Class of
Certificates;
163
6. Any change in the location of the Collection Account or the
Distribution Account;
7. Any event that would result in the inability of the Trust
Administrator, were it to succeed as Master Servicer, to make advances
regarding delinquent Mortgage Loans; and
8. The filing of any claim under the Master Servicer's blanket
bond and errors and omissions insurance policy required by Section 3.09
or the cancellation or material modification of coverage under any such
instrument.
In addition, the Trust Administrator shall promptly furnish to
each Rating Agency and the NIMS Insurer copies of each report to
Certificateholders described in Section 4.02 and the Master Servicer, as
required pursuant to Section 3.19 and Section 3.20, shall promptly furnish to
each Rating Agency copies of the following:
1. Each annual statement as to compliance described in Section
3.19; and
2. Each annual independent public accountants' servicing
report described in Section 3.20.
Any such notice pursuant to this Section 11.07 shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by first class mail, postage prepaid, or by express delivery service
to Xxxxx'x Investors Service, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, to
Fitch Ratings, 0 Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and to Standard &
Poor's, a division of the XxXxxx-Xxxx Companies, Inc., 00 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, or such other addresses as the Rating Agencies may designate in
writing to the parties hereto.
SECTION 11.08. Article and Section References.
All article and section references used in this Agreement,
unless otherwise provided, are to articles and sections in this Agreement.
SECTION 11.09. Grant of Security Interest.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans by the Depositor to the Trustee be, and be
construed as, a sale of the Mortgage Loans by the Depositor and not a pledge of
the Mortgage Loans by the Depositor to secure a debt or other obligation of the
Depositor or the Originator. However, in the event that, notwithstanding the
aforementioned intent of the parties, the Mortgage Loans are held to be property
of the Depositor or the Originator, then, (a) it is the express intent of the
parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Depositor to the Trustee to secure a debt or other obligation of the Depositor
or the Originator and (b)(1) this Agreement shall also be deemed to be a
security agreement within the meaning of Articles 8 and 9 of the Uniform
Commercial Code as in effect from time to time in the State of New York; (2) the
conveyance provided for in Section 2.01 hereof shall be deemed to be a grant by
the Originator and the Depositor to the Trustee of a security interest in all of
the Originator's and the Depositor's right, title and interest in and to the
Mortgage Loans and
164
all amounts payable to the holders of the Mortgage Loans in accordance with the
terms thereof and all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, instruments, securities or other property, including
without limitation all amounts, other than investment earnings, from time to
time held or invested in the Collection Account and the Distribution Account,
whether in the form of cash, instruments, securities or other property; (3) the
obligations secured by such security agreement shall be deemed to be all of the
Depositor's obligations under this Agreement, including the obligation to
provide to the Certificateholders the benefits of this Agreement relating to the
Mortgage Loans and the Trust Fund; and (4) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law. Accordingly, the Depositor hereby grants to the Trustee a
security interest in the Mortgage Loans and all other property described in
clause (2) of the preceding sentence, for the purpose of securing to the Trustee
the performance by the Depositor of the obliga tions described in clause (3) of
the preceding sentence. Notwithstanding the foregoing, the parties hereto intend
the conveyance pursuant to Section 2.01 and the transfer pursuant to the
Mortgage Loan Purchase Agreement to be a true, absolute and unconditional sale
of the Mortgage Loans and assets constituting the Trust Fund by the Depositor to
the Trustee.
SECTION 11.10 Third Party Rights.
The NIMS Insurer shall be deemed a third-party beneficiary of
this Agreement to the same extent as if it were a party hereto, and shall have
the right to enforce the provisions of this Agreement.
SECTION 11.11 NIMS Insurer's Rights.
Notwithstanding anything to the contrary anywhere in this
Agreement, all rights of the NIMS Insurer hereunder (i) shall not be operable
whenever an Insurer Default or an Insurer Insolvency Event and a Backup Insurer
Default (as defined in the Indenture) shall have occurred and be continuing and
(ii) except in the case of any right to indemnification hereunder shall
permanently cease to be operable upon the later to occur of (A) the payment in
full of the NIM Notes as provided in the Indenture and (B) the payment in full
to the NIMS Insurer of any amounts owed to the NIMS Insurer as provided in the
Indenture.
165
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the
Trust Administrator and the Trustee have caused their names to be signed hereto
by their respective officers thereunto duly authorized, in each case as of the
day and year first above written.
AMERIQUEST MORTGAGE SECURITIES INC.,
as Depositor
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: CFO
AMERIQUEST MORTGAGE COMPANY,
as Master Servicer
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: CFO/EVP
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trust Administrator
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Associate
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Associate
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ X. Xxxxxxxxxxxxxx
------------------------------------
Name: X. Xxxxxxxxxxxxxx
Title: Vice President
000
XXXXX XX XXXXXXXXXX )
) ss.:
COUNTY OF ORANGE )
On the ___ day of September 2002, before me, a notary public
in and for said State, personally appeared ____________, known to me to be an
________________ of Ameriquest Mortgage Securities 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]
000
XXXXX XX XXXXXXXXXX )
) ss.:
COUNTY OF ORANGE )
On the __th day of September 2002, before me, a notary public
in and for said State, personally appeared __________________, known to me to be
a _________________ of Ameriquest Mortgage Company, 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]
000
XXXXX XX XXXXXXXXXX )
) ss.:
COUNTY OF )
On the ___ day of Sepember 2002, before me, a notary public in
and for said State, personally appeared _________________, known to me to be an
____________________ of Deutsche Bank National Trust Company, one of the
entities 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 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.
------------------------------------
Notary Public
[Notarial Seal]
169
STATE OF )
) ss.:
COUNTY OF )
On the ___ day of September 2002, before me, a notary public
in and for said State, personally appeared _________________, known to me to be
an ____________________ of U.S. Bank National Association, one of the entities
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
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.
------------------------------------
Notary Public
[Notarial Seal]
pm
170
EXHIBIT A-1
FORM OF CLASS AF-1 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").
Series 2002-3, Class AF-1 Aggregate Certificate Principal Balance of
the Class AF-1 Certificates as of the Issue
Date: Pass-Through Rate: 2.54% per annum
$80,864,000.00
Date of Pooling and Servicing Agreement and Denomination: $80,864,000.00
Cut-off Date: September 1, 2002
Master Servicer: Ameriquest Mortgage
First Distribution Date: September 25, 2002 Company
No. 1 Trustee: U.S. Bank National Association
Trust Administrator: Deutsche Bank National
Trust Company
Issue Date: September 4, 2002
CUSIP: 03072S CL 7
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.
A-1-1
ASSET-BACKED 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
adjustable-rate and fixed-rate first lien mortgage loans (the "Mortgage Loans")
formed and sold by
AMERIQUEST MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
AMERIQUEST MORTGAGE SECURITIES INC., THE MASTER SERVICER, THE TRUSTEE,
THE TRUST ADMINISTRATOR 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 Certificate Principal Balance of the Class AF-1 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class AF-1 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Ameriquest Mortgage Securities Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Master Servicer,
the Trustee and the Trust Administrator, 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 AF-1 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 Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date 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
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the Agreement.
A-1-2
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
be the lesser of (x) the per annum rate set forth on the face hereof and (y) the
Net WAC Pass-Through Rate for such Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset- Backed Pass-Through Certificates of the Series
specified on the face hereof (herein 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
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights. 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 therein set forth, 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 Trust Administrator 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 Trust Administrator 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 therein set forth, 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 Trust Administrator may require
payment of a sum sufficient to cover any tax
A-1-3
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Trustee, the Trust Administrator 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 Trust Administrator, 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 to the Certificateholders of all
amounts held by the Trust Administrator 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 other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in REMIC I, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from REMIC I of all the Mortgage Loans and all property acquired in respect of
such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from REMIC I all the Mortgage Loans and
all property acquired in respect of any Mortgage Loan 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 Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans at the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Trust Administrator assumes any
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-1-4
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: September __, 2002
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Trust Administrator
By:__________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class AF-1 Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Certificate Registrar
By:__________________________
Authorized Signatory
A-1-5
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
-----------------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right if Minors Act
survivorship and not as tenants ______________________
in common (State)
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)
a Percentage Interest equal to____% evidenced by the within Asset-Backed
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
A-1-6
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.
X-0-0
XXXXXXX X-0
FORM OF CLASS AF-2 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").
Series 2002-3, Class AF-2 Aggregate Certificate Principal Balance of the
Class AF-2 Certificates as of the Issue Date:
Pass-Through Rate: 3.07% per annum
$22,828,000.00
Date of Pooling and Servicing Agreement Denomination: $22,828,000.00
and Cut-off Date: September 1, 2002
Master Servicer: Ameriquest Mortgage
First Distribution Date: September 25, 2002 Company
No. 1 Trustee: U.S. Bank National Association
Trust Administrator: Deutsche Bank National
Trust Company
Issue Date: September 4, 2002
CUSIP: 03072S CM 5
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.
A-2-1
ASSET-BACKED 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
adjustable-rate and fixed-rate first lien mortgage loans (the "Mortgage Loans")
formed and sold by
AMERIQUEST MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
AMERIQUEST MORTGAGE SECURITIES INC., THE MASTER SERVICER, THE TRUSTEE,
THE TRUST ADMINISTRATOR 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 Certificate Principal Balance of the Class AF-2 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class AF-2 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Ameriquest Mortgage Securities Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Master Servicer,
the Trustee and the Trust Administrator, 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 AF-2 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 Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date 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
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the Agreement.
A-2-2
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
be the lesser of (x) the per annum rate set forth on the face hereof and (y) the
Net WAC Pass-Through Rate for such Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset- Backed Pass-Through Certificates of the Series
specified on the face hereof (herein 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
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights. 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 therein set forth, 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 Trust Administrator 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 Trust Administrator 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 therein set forth, 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 Trust Administrator may require
payment of a sum sufficient to cover any tax
A-2-3
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Trustee, the Trust Administrator 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 Trust Administrator, 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 to the Certificateholders of all
amounts held by the Trust Administrator 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 other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in REMIC I, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from REMIC I of all the Mortgage Loans and all property acquired in respect of
such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from REMIC I all the Mortgage Loans and
all property acquired in respect of any Mortgage Loan 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 Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans at the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Trust Administrator assumes any
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-2-4
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: September __, 2002
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Trust Administrator
By:__________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class AF-2 Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Certificate Registrar
By:__________________________
Authorized Signatory
A-2-5
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
-----------------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right if Minors Act
survivorship and not as tenants ______________________
in common (State)
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)
a Percentage Interest equal to____% evidenced by the within Asset-Backed
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
A-2-6
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.
X-0-0
XXXXXXX X-0
FORM OF CLASS AF-3 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").
Series 2002-3, Class AF-3 Aggregate Certificate Principal Balance of the
Class AF-3 Certificates as of the Issue Date:
Pass-Through Rate: 3.70% per annum
$50,916,000.00
Date of Pooling and Servicing Agreement Denomination: $50,916,000.00
and Cut-off Date: September 1, 2002
Master Servicer: Ameriquest Mortgage
First Distribution Date: September 25, 2002 Company
No. 1 Trustee: U.S. Bank National Association
Trust Administrator: Deutsche Bank National
Trust Company
Issue Date: September 4, 2002
CUSIP: 03072S CN 3
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.
A-2-8
ASSET-BACKED 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
adjustable-rate and fixed-rate first lien mortgage loans (the "Mortgage Loans")
formed and sold by
AMERIQUEST MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
AMERIQUEST MORTGAGE SECURITIES INC., THE MASTER SERVICER, THE TRUSTEE,
THE TRUST ADMINISTRATOR 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 Certificate Principal Balance of the Class AF-3 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class AF-3 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Ameriquest Mortgage Securities Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Master Servicer,
the Trustee and the Trust Administrator, 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 AF-3 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 Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date 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
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the Agreement.
A-2-9
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
be the lesser of (x) the per annum rate set forth on the face hereof and (y) the
Net WAC Pass-Through Rate for such Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset- Backed Pass-Through Certificates of the Series
specified on the face hereof (herein 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
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights. 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 therein set forth, 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 Trust Administrator 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 Trust Administrator 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 therein set forth, 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 Trust Administrator may require
payment of a sum sufficient to cover any tax
A-2-10
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Trustee, the Trust Administrator 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 Trust Administrator, 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 to the Certificateholders of all
amounts held by the Trust Administrator 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 other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in REMIC I, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from REMIC I of all the Mortgage Loans and all property acquired in respect of
such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from REMIC I all the Mortgage Loans and
all property acquired in respect of any Mortgage Loan 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 Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans at the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Trust Administrator assumes any
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-2-11
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: September __, 2002
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Trust Administrator
By:__________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class AF-3 Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK NATIONAL
TRUST COMPANY
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
-----------------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right if Minors Act
survivorship and not as tenants ______________________
in common (State)
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)
a Percentage Interest equal to____% evidenced by the within Asset-Backed
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
A-2-13
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.
X-0-00
XXXXXXX X-0
FORM OF CLASS AF-4 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").
Series 2002-3, Class AF-4 Aggregate Certificate Principal Balance of the
Class AF-4 Certificates as of the Issue Date:
Pass-Through Rate: 4.64% per annum
$17,369,000.00
Date of Pooling and Servicing Agreement Denomination: $17,369,000.00
and Cut-off Date: September 1, 2002
Master Servicer: Ameriquest Mortgage
First Distribution Date: September 25, 2002 Company
No. 1 Trustee: U.S. Bank National Association
Trust Administrator: Deutsche Bank National
Trust Company
Issue Date: September 4, 2002
CUSIP: 03072S CP 8
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.
A-2-15
ASSET-BACKED 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
adjustable-rate and fixed-rate first lien mortgage loans (the "Mortgage Loans")
formed and sold by
AMERIQUEST MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
AMERIQUEST MORTGAGE SECURITIES INC., THE MASTER SERVICER, THE TRUSTEE,
THE TRUST ADMINISTRATOR 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 Certificate Principal Balance of the Class AF-4 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class AF-4 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Ameriquest Mortgage Securities Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Master Servicer,
the Trustee and the Trust Administrator, 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 AF-4 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 Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date 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
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the Agreement.
A-2-16
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
be the lesser of (x) the per annum rate set forth on the face hereof and (y) the
Net WAC Pass-Through Rate for such Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset- Backed Pass-Through Certificates of the Series
specified on the face hereof (herein 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
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights. 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 therein set forth, 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 Trust Administrator 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 Trust Administrator 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 therein set forth, 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 Trust Administrator may require
payment of a sum sufficient to cover any tax
A-2-17
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Trustee, the Trust Administrator 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 Trust Administrator, 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 to the Certificateholders of all
amounts held by the Trust Administrator and required to be paid to them pursuant
to the Agreement following the earlier of (i) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in REMIC I, and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan 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 Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate Stated Principal Balance of the Mortgage Loans at the
Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Trust Administrator assumes any
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-2-18
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: September __, 2002
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Trust Administrator
By:__________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class AF-4 Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK NATIONAL
TRUST COMPANY
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
-----------------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right if Minors Act
survivorship and not as tenants ______________________
in common (State)
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)
a Percentage Interest equal to____% evidenced by the within Asset-Backed
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
A-2-20
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.
X-0-00
XXXXXXX X-0
FORM OF CLASS AF-5 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").
Series 2002-3, Class AF-5 Aggregate Certificate Principal Balance of the
Class AF-5 Certificates as of the Issue Date:
Pass-Through Rate: 5.47% per annum
$24,453,000.00
Date of Pooling and Servicing Agreement Denomination: $24,453,000.00
and Cut-off Date: September 1, 2002
Master Servicer: Ameriquest Mortgage Company
First Distribution Date: September 25,
2002 Trustee: U.S. Bank National Association
No. 1 Trust Administrator: Deutsche Bank National
Trust Company
Issue Date: September 4, 2002
CUSIP: 03072S CQ 6
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.
A-2-22
ASSET-BACKED 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
adjustable-rate and fixed-rate first lien mortgage loans (the "Mortgage Loans")
formed and sold by
AMERIQUEST MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
AMERIQUEST MORTGAGE SECURITIES INC., THE MASTER SERVICER, THE TRUSTEE,
THE TRUST ADMINISTRATOR 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 Certificate Principal Balance of the Class AF-5 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class AF-5 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Ameriquest Mortgage Securities Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Master Servicer,
the Trustee and the Trust Administrator, 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 AF-5 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 Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date 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
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the Agreement.
A-2-23
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
be the lesser of (x) the per annum rate set forth on the face hereof and (y) the
Net WAC Pass-Through Rate for such Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset- Backed Pass-Through Certificates of the Series
specified on the face hereof (herein 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
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights. 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 therein set forth, 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 Trust Administrator 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 Trust Administrator 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 therein set forth, 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 Trust Administrator may require
payment of a sum sufficient to cover any tax
A-2-24
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Trustee, the Trust Administrator 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 Trust Administrator, 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 to the Certificateholders of all
amounts held by the Trust Administrator, 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 other liquidation (or any advance with respect thereto) of the
last Mortgage Loan remaining in REMIC I, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from REMIC I of all the Mortgage Loans and all property acquired in respect of
such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from REMIC I all the Mortgage Loans and
all property acquired in respect of any Mortgage Loan 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 Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans at the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Trust Administrator assumes any
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-2-25
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: September __, 2002
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Trust Administrator
By:__________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class AF-5 Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK NATIONAL
TRUST COMPANY
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
-----------------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right if Minors Act
survivorship and not as tenants ______________________
in common (State)
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)
a Percentage Interest equal to____% evidenced by the within Asset-Backed
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
A-2-27
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.
X-0-00
XXXXXXX X-0
FORM OF CLASS AF-6 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").
Series 2002-3, Class AF-6
Aggregate Certificate Principal Balance of
the Class AF-6 Certificates as of the Issue
Date:
Pass-Through Rate: 5.03% per annum $27,000,000.00
Date of Pooling and Servicing Agreement Denomination: $27,000,000.00
and Cut-off Date: September 1, 2002
Master Servicer: Ameriquest Mortgage
First Distribution Date: September 25, 2002 Company
No. 1 Trustee: U.S. Bank National Association
Trust Administrator: Deutsche Bank National
Trust Company
Issue Date: September 4, 2002
CUSIP: 03072S CR 4
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.
A-2-29
ASSET-BACKED 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
adjustable-rate and fixed-rate first lien mortgage loans (the "Mortgage Loans")
formed and sold by
AMERIQUEST MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
AMERIQUEST MORTGAGE SECURITIES INC., THE MASTER SERVICER, THE TRUSTEE,
THE TRUST ADMINISTRATOR 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 Certificate Principal Balance of the Class AF-6 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class AF-6 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Ameriquest Mortgage Securities Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Master Servicer,
the Trustee and the Trust Administrator, 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 AF-6 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 Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date 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
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the Agreement.
A-2-30
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
be the lesser of (x) the per annum rate set forth on the face hereof and (y) the
Net WAC Pass-Through Rate for such Distribution Date.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset- Backed Pass-Through Certificates of the Series
specified on the face hereof (herein 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
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights. 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 therein set forth, 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 Trust Administrator 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 Trust Administrator 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 therein set forth, 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 Trust Administrator may require
payment of a sum sufficient to cover any tax
A-2-31
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Trustee, the Trust Administrator 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 Trust Administrator, 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 to the Certificateholders of all
amounts held by the Trust Administrator 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 other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in REMIC I, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from REMIC I of all the Mortgage Loans and all property acquired in respect of
such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from REMIC I all the Mortgage Loans and
all property acquired in respect of any Mortgage Loan 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 Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans at the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Trust Administrator assumes any
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-2-32
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: September __, 2002
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Trust Administrator
By:__________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class AF-6 Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK NATIONAL
TRUST COMPANY
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
-----------------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right if Minors Act
survivorship and not as tenants ______________________
in common (State)
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)
a Percentage Interest equal to____% evidenced by the within Asset-Backed
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
A-2-34
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.
X-0-00
XXXXXXX X-0
FORM OF CLASS AV-1 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").
Series 2002-3, Class AV-1 Aggregate Certificate Principal Balance of the
Class AV-1 Certificates as of the Issue Date:
Pass-Through Rate: Variable $372,089,000.00
Date of Pooling and Servicing Agreement Denomination: $372,089,000.00
and Cut-off Date: September 1, 2002
Master Servicer: Ameriquest Mortgage
First Distribution Date: September 25, 2002 Company
No. 1 Trustee: U.S. Bank National Association
Trust Administrator: Deutsche Bank National
Trust Company
Issue Date: September 4, 2002
CUSIP: 03072S CY 9
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.
A-2-36
ASSET-BACKED 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
adjustable-rate and fixed-rate first lien mortgage loans (the "Mortgage Loans")
formed and sold by
AMERIQUEST MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
AMERIQUEST MORTGAGE SECURITIES INC., THE MASTER SERVICER, THE TRUSTEE,
THE TRUST ADMINISTRATOR 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 Certificate Principal Balance of the Class AV-1 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class AV-1 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Ameriquest Mortgage Securities Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Master Servicer,
the Trustee and the Trust Administrator, 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 AV-1 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 Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date 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
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the Agreement.
A-2-37
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
be the lesser of (x) the related Formula Rate for such Distribution Date and (y)
the Net WAC Pass-Through Rate for such Distribution Date. For any Distribution
Date and this Certificate, the Formula Rate is the lesser of (i) One-Month LIBOR
plus the Certificate Margin and (ii) the Maximum Cap Rate. The Certificate
Margin for this Certificate is with respect to this Certificate is 0.29% in the
case of each Distribution Date through and including the Distribution Date on
which the aggregate principal balance of the Mortgage Loans (and properties
acquired in respect thereof) remaining in the Trust is reduced to less than 10%
of the aggregate principal balance of the Mortgage Loans as of the Cut-off Date,
or 0.58% in the case of any Distribution Date thereafter.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset- Backed Pass-Through Certificates of the Series
specified on the face hereof (herein 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
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights. 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 therein set forth, 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 Trust Administrator 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 Trust Administrator 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-2-38
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 therein set forth, 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 Trust Administrator 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, the Trust
Administrator and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Trustee, the Trust Administrator 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 Trust Administrator, 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 to the Certificateholders of all
amounts held by the Trust Administrator 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 other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in REMIC I, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from REMIC I of all the Mortgage Loans and all property acquired in respect of
such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from REMIC I all the Mortgage Loans and
all property acquired in respect of any Mortgage Loan 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 Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans at the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Trust Administrator assumes any
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-2-39
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: September __, 2002
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Trust Administrator
By:__________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class AV-1 Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK NATIONAL
TRUST COMPANY
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
-----------------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right if Minors Act
survivorship and not as tenants ______________________
in common (State)
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)
a Percentage Interest equal to____% evidenced by the within Asset-Backed
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
A-2-41
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.
X-0-00
XXXXXXX X-0
FORM OF CLASS AV-2 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").
Series 2002-3, Class AV-2 Aggregate Certificate Principal Balance of the
Class AV-2 Certificates as of the Issue Date:
Pass-Through Rate: Variable $74,651,000.00
Date of Pooling and Servicing Agreement Denomination: $74,651,000.00
and Cut-off Date: September 1, 2002
Master Servicer: Ameriquest Mortgage
First Distribution Date: September 25, 2002 Company
No. 1 Trustee: U.S. Bank National Association
Trust Administrator: Deutsche Bank National
Trust Company
Issue Date: September 4, 2002
CUSIP: 03072S CS 2
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.
A-2-43
ASSET-BACKED 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
adjustable-rate and fixed-rate first lien mortgage loans (the "Mortgage Loans")
formed and sold by
AMERIQUEST MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
AMERIQUEST MORTGAGE SECURITIES INC., THE MASTER SERVICER, THE TRUSTEE,
THE TRUST ADMINISTRATOR 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 Certificate Principal Balance of the Class AV-2 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class AV-2 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Ameriquest Mortgage Securities Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Master Servicer,
the Trustee and the Trust Administrator, 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 AV-2 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 Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date 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
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the Agreement.
A-2-44
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
be the lesser of (x) the related Formula Rate for such Distribution Date and (y)
the Net WAC Pass-Through Rate for such Distribution Date. For any Distribution
Date and this Certificate, the Formula Rate is the lesser of (i) One-Month LIBOR
plus the Certificate Margin and (ii) the Maximum Cap Rate. The Certificate
Margin for this Certificate is with respect to this Certificate is 0.30% in the
case of each Distribution Date through and including the Distribution Date on
which the aggregate principal balance of the Mortgage Loans (and properties
acquired in respect thereof) remaining in the Trust is reduced to less than 10%
of the aggregate principal balance of the Mortgage Loans as of the Cut-off Date,
or 0.60% in the case of any Distribution Date thereafter.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset- Backed Pass-Through Certificates of the Series
specified on the face hereof (herein 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
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights. 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 therein set forth, 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 Trust Administrator 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 Trust Administrator 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-2-45
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 therein set forth, 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 Trust Administrator 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, the Trust
Administrator and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Trustee, the Trust Administrator 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 Trust Administrator, 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 to the Certificateholders of all
amounts held by the Trust Administrator 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 other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in REMIC I, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from REMIC I of all the Mortgage Loans and all property acquired in respect of
such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from REMIC I all the Mortgage Loans and
all property acquired in respect of any Mortgage Loan 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 Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans at the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Trust Administrator assumes any
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-2-46
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: September __, 2002
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Trust Administrator
By:__________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class AV-2 Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK NATIONAL
TRUST COMPANY
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
-----------------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right if Minors Act
survivorship and not as tenants ______________________
in common (State)
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)
a Percentage Interest equal to____% evidenced by the within Asset-Backed
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
A-2-48
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.
X-0-00
XXXXXXX X-0
FORM OF CLASS M-1 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 CLASS A
CERTIFICATES AND THE CLASS SCERTIFICATES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
Series 2002-3, Class M-1 Aggregate Certificate Principal Balance of the
Class M-1 Certificates as of the Issue Date:
Pass-Through Rate: Variable $46,287,000.00
Date of Pooling and Servicing Agreement Denomination: $46,287,000.00
and Cut-off Date: September 1, 2002
Master Servicer: Ameriquest Mortgage
First Distribution Date: September 25, 2002 Company
No. 1 Trustee: U.S. Bank National Association
Trust Administrator: Deutsche Bank National
Trust Company
Issue Date: September 4, 2002
CUSIP: 03072S CU 7
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.
A-2-50
ASSET-BACKED 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
adjustable-rate and fixed-rate first lien mortgage loans (the "Mortgage Loans")
formed and sold by
AMERIQUEST MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
AMERIQUEST MORTGAGE SECURITIES INC., THE MASTER SERVICER, THE TRUSTEE,
THE TRUST ADMINISTRATOR 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 Certificate Principal Balance of the Class M-1 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class M-1 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Ameriquest Mortgage Securities Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Master Servicer,
the Trustee and the Trust Administrator, 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 M-1 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 Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date 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
Trust Administrator of the pendency of such distribution and only upon
presentation and
A-2-51
surrender of this Certificate at the office or agency appointed by the Trust
Administrator for that purpose as provided in the Agreement.
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
be the lesser of (x) the related Formula Rate for such Distribution Date and (y)
the Net WAC Pass-Through Rate for such Distribution Date. For any Distribution
Date and this Certificate, the Formula Rate is the lesser of (i) One-Month LIBOR
plus the Certificate Margin and (ii) the Maximum Cap Rate. The Certificate
Margin for this Certificate is with respect to this Certificate is 0.70% in the
case of each Distribution Date through and including the Distribution Date on
which the aggregate principal balance of the Mortgage Loans (and properties
acquired in respect thereof) remaining in the Trust is reduced to less than 10%
of the aggregate principal balance of the Mortgage Loans as of the Cut-off Date,
or 1.05% in the case of any Distribution Date thereafter.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset- Backed Pass-Through Certificates of the Series
specified on the face hereof (herein 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
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights. 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 therein set forth, 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 Trust Administrator 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 Trust Administrator 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
A-2-52
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 therein set forth, 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 Trust Administrator 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, the Trust
Administrator and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Trustee, the Trust Administrator 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 Trust Administrator, 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 to the Certificateholders of all
amounts held by the Trust Administrator 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 other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in REMIC I, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from REMIC I of all the Mortgage Loans and all property acquired in respect of
such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from REMIC I all the Mortgage Loans and
all property acquired in respect of any Mortgage Loan 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 Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans at the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Trust Administrator assumes any
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-2-53
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: September __, 2002
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Trust Administrator
By:__________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-1 Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK NATIONAL
TRUST COMPANY
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
-----------------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right if Minors Act
survivorship and not as tenants ______________________
in common (State)
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)
a Percentage Interest equal to____% evidenced by the within Asset-Backed
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
A-2-55
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.
X-0-00
XXXXXXX X-00
FORM OF CLASS M-2 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 CLASS A CERTIFICATES, THE CLASS
S CERTIFICATES AND THE CLASS M-1 CERTIFICATES TO THE EXTENT DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
Series 2002-3, Class M-2 Aggregate Certificate Principal Balance of the
Class M-2 Certificates as of the Issue Date:
Pass-Through Rate: Variable $38,237,000.00
Date of Pooling and Servicing Agreement Denomination: $38,237,000.00
and Cut-off Date: September 1, 2002
Master Servicer: Ameriquest Mortgage
First Distribution Date: September 25, 2002 Company
No. 1 Trustee: U.S. Bank National Association
Trust Administrator: Deutsche Bank National
Trust Company
Issue Date: September 4, 2002
CUSIP: 03072S CV 5
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.
A-3-1
ASSET-BACKED 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
adjustable-rate and fixed-rate first lien mortgage loans (the "Mortgage Loans")
formed and sold by
AMERIQUEST MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
AMERIQUEST MORTGAGE SECURITIES INC., THE MASTER SERVICER, THE TRUSTEE,
THE TRUST ADMINISTRATOR 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 Certificate Principal Balance of the Class M-2 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class M-2 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Ameriquest Mortgage Securities Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Master Servicer,
the Trustee and the Trust Administrator, 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 M-2 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 Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date 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
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the Agreement.
A-3-2
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
be the lesser of (x) the related Formula Rate for such Distribution Date and (y)
the Net WAC Pass-Through Rate for such Distribution Date. For any Distribution
Date and this Certificate, the Formula Rate is the lesser of (i) One-Month LIBOR
plus the Certificate Margin and (ii) the Maximum Cap Rate. The Certificate
Margin for this Certificate is with respect to this Certificate is 1.25% in the
case of each Distribution Date through and including the Distribution Date on
which the aggregate principal balance of the Mortgage Loans (and properties
acquired in respect thereof) remaining in the Trust is reduced to less than 10%
of the aggregate principal balance of the Mortgage Loans as of the Cut-off Date,
or 1.875% in the case of any Distribution Date thereafter.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset- Backed Pass-Through Certificates of the Series
specified on the face hereof (herein 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
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights. 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 therein set forth, 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 Trust Administrator 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 Trust Administrator 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-3-3
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 therein set forth, 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 Trust Administrator 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, the Trust
Administrator and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Trustee, the Trust Administrator 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 Trust Administrator, 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 to the Certificateholders of all
amounts held by the Trust Administrator 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 other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in REMIC I, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from REMIC I of all the Mortgage Loans and all property acquired in respect of
such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from REMIC I all the Mortgage Loans and
all property acquired in respect of any Mortgage Loan 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 Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans at the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Trust Administrator assumes any
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-3-4
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: September __, 2002
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Trust Administrator
By:__________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-2 Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK NATIONAL
TRUST COMPANY
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
-----------------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right if Minors Act
survivorship and not as tenants ______________________
in common (State)
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)
a Percentage Interest equal to____% evidenced by the within Asset-Backed
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
A-3-6
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.
A-3-7
EXHIBIT A-11
FORM OF CLASS M-3 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 CLASS A CERTIFICATES, THE CLASS
S CERTIFICATES, THE CLASS M-1 CERTIFICATES AND THE CLASS M-2
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
Series 2002-3, Class M-3 Aggregate Certificate Principal Balance of the
Class M-3 Certificates as of the Issue Date:
Pass-Through Rate: Variable $32,200,000.00
Date of Pooling and Servicing Agreement Denomination: $32,200,000.00
and Cut-off Date: September 1, 2002
Master Servicer: Ameriquest Mortgage
First Distribution Date: September 25, 2002 Company
No. 1 Trustee: U. S. Bank National Association
Trust Administrator: Deutsche Bank National
Trust Company
Issue Date: September 4, 2002
CUSIP: 03072S CW 3
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.
A-4-1
ASSET-BACKED 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
adjustable-rate and fixed-rate first lien mortgage loans (the "Mortgage Loans")
formed and sold by
AMERIQUEST MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
AMERIQUEST MORTGAGE SECURITIES INC., THE MASTER SERVICER, THE TRUSTEE,
THE TRUST ADMINISTRATOR 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 Certificate Principal Balance of the Class M-3 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class M-3 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Ameriquest Mortgage Securities Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Master Servicer,
the Trustee and the Trust Administrator, 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 M-3 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 Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date 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
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the Agreement.
A-4-2
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
be the lesser of (x) the related Formula Rate for such Distribution Date and (y)
the Net WAC Pass-Through Rate for such Distribution Date. For any Distribution
Date and this Certificate, the Formula Rate is the lesser of (i) One-Month LIBOR
plus the Certificate Margin and (ii) the Maximum Cap Rate. The Certificate
Margin for this Certificate is with respect to this Certificate is 1.90% in the
case of each Distribution Date through and including the Distribution Date on
which the aggregate principal balance of the Mortgage Loans (and properties
acquired in respect thereof) remaining in the Trust is reduced to less than 10%
of the aggregate principal balance of the Mortgage Loans as of the Cut-off Date,
or 2.85% in the case of any Distribution Date thereafter.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset- Backed Pass-Through Certificates of the Series
specified on the face hereof (herein 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
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights. 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 therein set forth, 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 Trust Administrator 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 Trust Administrator 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-4-3
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 therein set forth, 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 Trust Administrator 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, the Trust
Administrator and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Trustee, the Trust Administrator 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 Trust Administrator, 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 to the Certificateholders of all
amounts held by the Trust Administrator 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 other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in REMIC I, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from REMIC I of all the Mortgage Loans and all property acquired in respect of
such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from REMIC I all the Mortgage Loans and
all property acquired in respect of any Mortgage Loan 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 Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans at the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Trust Administrator assumes any
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-4-4
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: September __, 2002
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Trust Administrator
By:__________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-3 Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK NATIONAL
TRUST COMPANY
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
-----------------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right if Minors Act
survivorship and not as tenants ______________________
in common (State)
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)
a Percentage Interest equal to____% evidenced by the within Asset-Backed
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
A-4-6
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.
A-4-7
EXHIBIT A-11
FORM OF CLASS M-4 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 CLASS A CERTIFICATES, THE CLASS
S CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES
AND THE CLASS M-3 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
Series 2002-3, Class M-4 Aggregate Certificate Principal Balance of the
Class M-4 Certificates as of the Issue Date:
Pass-Through Rate: Variable $12,075,000.00
Date of Pooling and Servicing Agreement Denomination: $12,075,000.00
and Cut-off Date: September 1, 2002
Master Servicer: Ameriquest Mortgage
First Distribution Date: September 25, 2002 Company
No. 1 Trustee: U. S. Bank National Association
Trust Administrator: Deutsche Bank National
Trust Company
Issue Date: September 4, 2002
CUSIP: 03072S CX 1
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.
A-4-8
ASSET-BACKED 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
adjustable-rate and fixed-rate first lien mortgage loans (the "Mortgage Loans")
formed and sold by
AMERIQUEST MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
AMERIQUEST MORTGAGE SECURITIES INC., THE MASTER SERVICER, THE TRUSTEE,
THE TRUST ADMINISTRATOR 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 Certificate Principal Balance of the Class M-4 Certificates as
of the Issue Date) in that certain beneficial ownership interest evidenced by
all the Class M-4 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among
Ameriquest Mortgage Securities Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Agreement), the Master Servicer,
the Trustee and the Trust Administrator, 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 M-4 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 Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date 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
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the Agreement.
A-4-9
The Pass-Through Rate applicable to the calculation of
interest payable with respect to this Certificate on any Distribution Date shall
be the lesser of (x) the related Formula Rate for such Distribution Date and (y)
the Net WAC Pass-Through Rate for such Distribution Date. For any Distribution
Date and this Certificate, the Formula Rate is the lesser of (i) One-Month LIBOR
plus the Certificate Margin and (ii) the Maximum Cap Rate. The Certificate
Margin for this Certificate is with respect to this Certificate is 2.15% in the
case of each Distribution Date through and including the Distribution Date on
which the aggregate principal balance of the Mortgage Loans (and properties
acquired in respect thereof) remaining in the Trust is reduced to less than 10%
of the aggregate principal balance of the Mortgage Loans as of the Cut-off Date,
or 3.225% in the case of any Distribution Date thereafter.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset- Backed Pass-Through Certificates of the Series
specified on the face hereof (herein 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
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trust Administrator and the
Trustee with the consent of the Holders of Certificates entitled to at least 66%
of the Voting Rights. 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 therein set forth, 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 Trust Administrator 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 Trust Administrator 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-4-10
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 therein set forth, 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 Trust Administrator 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, the Trust
Administrator and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Trustee, the Trust Administrator 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 Trust Administrator, 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 to the Certificateholders of all
amounts held by the Trust Administrator 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 other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in REMIC I, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from REMIC I of all the Mortgage Loans and all property acquired in respect of
such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from REMIC I all the Mortgage Loans and
all property acquired in respect of any Mortgage Loan 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 Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans at the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Trust Administrator assumes any
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-4-11
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: September __, 2002
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Trust Administrator
By:__________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-4 Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK NATIONAL
TRUST COMPANY
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
-----------------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right if Minors Act
survivorship and not as tenants ______________________
in common (State)
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)
a Percentage Interest equal to____% evidenced by the within Asset-Backed
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
A-4-13
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.
A-4-14
EXHIBIT A-12
FORM OF CLASS CE 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 A CERTIFICATES, THE CLASS S
CERTIFICATES AND THE MEZZANINE CERTIFICATES TO THE EXTENT DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
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.
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 COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
A-5-1
Series 2002-3, Class CE Aggregate Certificate Principal Balance of the
Class CE Certificates as of the Issue Date:
Date of Pooling and Servicing Agreement $6,013,575.34
and Cut-off Date: September 1, 2002
Denomination: $6,013,575.34
First Distribution Date: September 25,
2002 Master Servicer: Ameriquest Mortgage Company
No. 1 Trustee: U.S. Bank National Association
Aggregate Notional Amount of the Class Trust Administrator: Deutsche Bank National
CE Certificates as of the Issue Date: Trust Company
$804,982,675.34
Issue Date: September 4, 2002
Notional Amount: $804,982,675.34
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.
A-5-2
ASSET-BACKED 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
adjustable-rate and fixed-rate first lien mortgage loans (the "Mortgage Loans")
formed and sold by
AMERIQUEST MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
AMERIQUEST MORTGAGE SECURITIES INC., THE MASTER SERVICER, THE TRUSTEE,
THE TRUST ADMINISTRATOR 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 Ameriquest Securities L.L.C. 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
CE Certificates as of the Issue Date) in that certain beneficial ownership
interest evidenced by all the Class CE Certificates in REMIC III created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Ameriquest Mortgage Securities Inc. (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Master Servicer, the Trustee and the Trust Administrator, 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 CE 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 Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date 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
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the Agreement.
A-5-3
This Certificate is one of a duly authorized issue of
Certificates designated as Asset- Backed Pass-Through Certificates of the Series
specified on the face hereof (herein 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
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights. 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 therein set forth, 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 Trust Administrator 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 Trust Administrator 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 therein set forth, 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, the Trust Administrator and the Certificate
Registrar shall require receipt of (i) if such transfer is purportedly being
made in reliance
A-5-4
upon Rule 144A under the 1933 Act, written certifications from the Holder of the
Certificate desiring to effect the transfer, and from such Holder's prospective
transferee, substantially in the forms attached to the Agreement as Exhibit F-1,
and (ii) in all other cases, an Opinion of Counsel satisfactory to it that such
transfer may be made without such registration or qualification (which Opinion
of Counsel shall not be an expense of the Trust Fund or of the Depositor, the
Trustee, the Trust Administrator or the Master Servicer in their respective
capacities as such), together with copies of the written certification(s) of the
Holder of the Certificate desiring to effect the transfer and/or such Holder's
prospective transferee upon which such Opinion of Counsel is based. None of the
Depositor, the Certificate Registrar, the Trustee or the Trust Administrator 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 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(c) 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, the Trust
Administrator and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Trustee, the Trust Administrator 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 Trust Administrator, 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 to the Certificateholders of all
amounts held by the Trust Administrator and required to be paid to them pursuant
to the Agreement following the earlier of (i) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in REMIC I, and (ii) the purchase by the party designated in the
Agreement at a price determined as provided in the Agreement from REMIC I of all
the Mortgage Loans and all property acquired in respect of such Mortgage Loans.
The Agreement permits, but does not require, the party designated in the
Agreement to purchase from REMIC I all the Mortgage Loans and all property
acquired in respect of any Mortgage Loan 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 Stated
Principal Balance of the Mortgage Loans at the time of purchase being less than
10% of the aggregate Stated Principal Balance of the Mortgage Loans at the
Cut-off Date.
A-5-5
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Trust Administrator assumes any
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-5-6
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: September __, 2002
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Trust Administrator
By:__________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class CE Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK NATIONAL
TRUST COMPANY
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
-----------------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right if Minors Act
survivorship and not as tenants ______________________
in common (State)
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)
a Percentage Interest equal to____% evidenced by the within Asset-Backed
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
A-5-8
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.
A-5-9
EXHIBIT A-13
FORM OF CLASS P 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 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.
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 COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
Series 2002-3, Class P Aggregate Certificate Principal Balance of the
Class P Certificates as of the Issue Date:
Date of Pooling and Servicing Agreement $100.00
and Cut-off Date: September 1, 2002
Denomination: $100.00
First Distribution Date: September 25, 2002
Master Servicer: Ameriquest Mortgage
No. 1 Company
Trustee: U.S. Bank National Association
Trust Administrator: Deutsche Bank National
Trust Company
Issue Date: September 4, 2002
A-6-1
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.
ASSET-BACKED 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
adjustable-rate and fixed-rate first lien mortgage loans (the "Mortgage Loans")
formed and sold by
AMERIQUEST MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
AMERIQUEST MORTGAGE SECURITIES INC., THE MASTER SERVICER, THE TRUSTEE,
THE TRUST ADMINISTRATOR 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 Ameriquest Securities L.L.C. 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
P Certificates as of the Issue Date) in that certain beneficial ownership
interest evidenced by all the Class P Certificates in REMIC III created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Ameriquest Mortgage Securities Inc. (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement), the
Master Servicer, the Trustee and the Trust Administrator, 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 P 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 Trust
Administrator by wire transfer in immediately
A-6-2
available funds to the account of the Person entitled thereto if such Person
shall have so notified the Trust Administrator in writing at least five Business
Days prior to the Record Date immediately prior to such Distribution Date 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 Trust Administrator of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Trust Administrator for that purpose as
provided in the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset- Backed Pass-Through Certificates of the Series
specified on the face hereof (herein 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
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights. 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 therein set forth, 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 Trust Administrator 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 Trust Administrator 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 therein set forth, Certificates are exchangeable for new
A-6-3
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, the Trust Administrator and the Certificate
Registrar shall require receipt of (i) if such transfer is purportedly being
made in reliance upon Rule 144A under the 1933 Act, written certifications from
the Holder of the Certificate desiring to effect the transfer, and from such
Holder's prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee, the Trust Administrator or the Master
Servicer in their respective capacities as such), together with copies of the
written certification(s) of the Holder of the Certificate desiring to effect the
transfer and/or such Holder's prospective transferee upon which such Opinion of
Counsel is based. None of the Depositor, the Certificate Registrar, the Trustee
or the Trust Administrator 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 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 Trust Administrator, 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(c) 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, the Trust
Administrator and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Trustee, the Trust Administrator 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 Trust Administrator, 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 to the Certificateholders of all
amounts held by the Trust Administrator, on behalf of theTrustee and required to
be paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
A-6-4
Mortgage Loan remaining in REMIC I, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from REMIC I of all the Mortgage Loans and all property acquired in respect of
such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from REMIC I all the Mortgage Loans and
all property acquired in respect of any Mortgage Loan 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 Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans at the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Trust Administrator assumes any
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-6-5
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: September __, 2002
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Trust Administrator
By:__________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK NATIONAL
TRUST COMPANY
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
-----------------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right if Minors Act
survivorship and not as tenants ______________________
in common (State)
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)
a Percentage Interest equal to____% evidenced by the within Asset-Backed
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
A-6-7
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.
A-6-8
EXHIBIT A-14
FORM OF CLASS S 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").
Series 2002-3, Class S Aggregate Notional Amount of the Class S
Certificates as of the Issue Date:
Pass-Through Rate: Variable $35,000,000.00
Date of Pooling and Servicing Agreement Denomination: $35,000,000.00
and Cut-off Date: September 1, 2002
Master Servicer: Ameriquest Mortgage
First Distribution Date: September 25, 2002 Company
No.1 Trustee: U.S. Bank National Association
Trust Administrator: Deutsche Bank National
Trust Company
Issue Date: September 4, 2002
CUSIP: 03072S CT 0
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.
A-7-1
ASSET-BACKED 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
adjustable-rate and fixed-rate first lien mortgage loans (the "Mortgage Loans")
formed and sold by
AMERIQUEST MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
AMERIQUEST MORTGAGE SECURITIES INC., THE MASTER SERVICER, THE TRUSTEE,
THE TRUST ADMINISTRATOR 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 Notional Amount of the Class S Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class S
Certificates in REMIC III created pursuant to a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among Ameriquest Mortgage Securities
Inc. (hereinafter called the "Depositor," which term includes any successor
entity under the Agreement), the Master Servicer, the Trustee and the Trust
Administrator, 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 S 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 Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date 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
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the Agreement.
A-7-2
The Pass-Through Rate for the Class S Certificates will be
6.00% per annum for the 1st Distribution Date through the 30th Distribution
Date. After the 30th Distribution Date, the Pass- Through Rate for the Class S
Certificates will be 0.00% per annum.
This Certificate is one of a duly authorized issue of
Certificates designated as Asset- Backed Pass-Through Certificates of the Series
specified on the face hereof (herein 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
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trust Administrator and the
Trustee with the consent of the Holders of Certificates entitled to at least 66%
of the Voting Rights. 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 therein set forth, 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 Trust Administrator 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 Trust Administrator 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 therein set forth, 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 Trust Administrator may require
payment of a sum sufficient to cover any tax
A-7-3
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Trustee, the Trust Administrator 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 Trust Administrator, 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 to the Certificateholders of all
amounts held by the Trust Administrator 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 other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in REMIC I, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from REMIC I of all the Mortgage Loans and all property acquired in respect of
such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from REMIC I all the Mortgage Loans and
all property acquired in respect of any Mortgage Loan 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 Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans at the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Trust Administrator assumes any
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-7-4
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: September __, 2002
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Trust Administrator
By:__________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class S Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK NATIONAL
TRUST COMPANY
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
-----------------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right if Minors Act
survivorship and not as tenants ______________________
in common (State)
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)
a Percentage Interest equal to____% evidenced by the within Asset-Backed
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
A-7-6
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.
A-7-7
EXHIBIT A-15
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").
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 IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING 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 COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
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
A-8-1
1381(A)(2)(C) OF THE CODE (ANY SUCHPERSON 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 POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ANY PERSON THAT IS A DISQUALIFIED ORGANIZATION IS PROHIBITED
FROM ACQUIRING BENEFICIAL OWNERSHIP OF THIS CERTIFICATE.
Series 2002-3, Class R Aggregate Percentage Interest of the Class R
Certificates as of the Issue Date: 100.00%
Date of Pooling and Servicing Agreement Percentage Interest
and Cut-off Date: September 1, 2002
Denomination: 100% Percentage Interest
First Distribution Date: September 25, 2002
Master Servicer: Ameriquest Mortgage
No. 1 Company
Trustee: U.S. Bank National Association
Trust Administrator: Deutsche Bank National
Trust Company
Issue Date: September 4, 2002
A-8-2
ASSET-BACKED 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
adjustable-rate and fixed-rate first lien mortgage loans (the "Mortgage Loans")
formed and sold by
AMERIQUEST MORTGAGE SECURITIES INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
AMERIQUEST MORTGAGE SECURITIES INC., THE MASTER SERVICER, THE TRUSTEE,
THE TRUST ADMINISTRATOR 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 Ameriquest Securities L.L.C is the
registered owner of a Percentage Interest specified above in that certain
beneficial ownership interest evidenced by all the Class R Certificates in REMIC
III created pursuant to a Pooling and Servicing Agreement, dated as specified
above (the "Agreement"), among Ameriquest Mortgage Securities Inc. (hereinafter
called the "Depositor," which term includes any successor entity under the
Agreement), the Master Servicer, the Trustee and the Trust Administrator, 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 R 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 Trust
Administrator by wire transfer in immediately available funds to the account of
the Person entitled thereto if such Person shall have so notified the Trust
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date 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
Trust Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trust Administrator for that purpose as provided in the Agreement.
A-8-3
This Certificate is one of a duly authorized issue of
Certificates designated as Asset- Backed Pass-Through Certificates of the Series
specified on the face hereof (herein 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
Certificateholders, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Trustee, the Trust
Administrator and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Trustee and the Trust
Administrator with the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights. 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 therein set forth, 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 Trust Administrator 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 Trust Administrator 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 therein set forth, 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, the Trust Administrator and the Certificate
Registrar shall require receipt of (i) if such transfer is purportedly being
made in
A-8-4
reliance upon Rule 144A under the 1933 Act, written certifications from the
Holder of the Certificate desiring to effect the transfer, and from such
Holder's prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trust Administrator or the Master Servicer in
their respective capacities as such), together with copies of the written
certification(s) of the Holder of the Certificate desiring to effect the
transfer and/or such Holder's prospective transferee upon which such Opinion of
Counsel is based. None of the Depositor, the Certificate Registrar or the Trust
Administrator 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 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 Trust Administrator, 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(c) of the Agreement.
Prior to registration of any transfer, sale or other
disposition of this Certificate, the proposed transferee shall provide to the
Trust Administrator (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 Certificate to any Person
other than a Permitted Transferee or any other Person will not cause the Trust
Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the
REMIC.
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(c) of the Agreement.
A-8-5
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Trust Administrator 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, the Trust
Administrator and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Trustee, the Trust Administrator 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 Trust Administrator, 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 to the Certificateholders of all
amounts held by the Trust Administrator 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 other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in REMIC I, and (ii) the purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from REMIC I of all the Mortgage Loans and all property acquired in respect of
such Mortgage Loans. The Agreement permits, but does not require, the party
designated in the Agreement to purchase from REMIC I all the Mortgage Loans and
all property acquired in respect of any Mortgage Loan 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 Stated Principal Balance of the Mortgage Loans at the time of
purchase being less than 10% of the aggregate Stated Principal Balance of the
Mortgage Loans at the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and neither the Trustee nor the Trust Administrator assumes any
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-8-6
IN WITNESS WHEREOF, the Trust Administrator has caused this
Certificate to be duly executed.
Dated: September __, 2002
DEUTSCHE BANK NATIONAL
TRUST COMPANY
as Trust Administrator
By:__________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
DEUTSCHE BANK NATIONAL
TRUST COMPANY
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
-----------------------
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
JT TEN - as joint tenants with right if Minors Act
survivorship and not as tenants ______________________
in common (State)
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)
a Percentage Interest equal to____% evidenced by the within Asset-Backed
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
A-8-8
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.
A-8-9
EXHIBIT B
FORM OF LOST NOTE AFFIDAVIT
Loan #: ____________
Borrower: _____________
LOST NOTE AFFIDAVIT
I, as ____________________ of ______________________, a
_______________ corporation am authorized to make this Affidavit on behalf of
_____________________ (the "Seller"). In connection with the administration of
the Mortgage Loans held by ____________________, a _________________ corporation
as Seller on behalf of Ameriquest Mortgage Securities Inc. (the "Purchaser"),
_____________________ (the "Deponent"), being duly sworn, deposes and says that:
1. The Seller's address is: _____________________
_____________________
_____________________
2. The Seller previously delivered to the Purchaser a signed
Initial Certification with respect to such Mortgage and/or
Assignment of Mortgage;
3. Such Mortgage Note and/or Assignment of Mortgage was assigned
or sold to the Purchaser by ________________________, a
____________ corporation pursuant to the terms and provisions
of a Mortgage Loan Purchase Agreement dated as of __________
__, _____;
4. Such Mortgage Note and/or Assignment of Mortgage is not
outstanding pursuant to a request for release of Documents;
5. Aforesaid Mortgage Note and/or Assignment of Mortgage (the
"Original") has been lost;
6. Deponent has made or caused to be made a diligent search for
the Original and has been unable to find or recover same;
7. The Seller was the Seller of the Original at the time of the
loss; and
8. Deponent agrees that, if said Original should ever come into
Seller's possession, custody or power, Seller will immediately
and without consideration surrender the Original to the
Purchaser.
9. Attached hereto is a true and correct copy of (i) the Note,
endorsed in blank by the Mortgagee and (ii) the Mortgage or
Deed of Trust (strike one) which
B-1
secures the Note, which Mortgage or Deed of Trust is recorded
in the county where the property is located.
10. Deponent hereby agrees that the Seller (a) shall indemnify and
hold harmless the Purchaser, its successors and assigns,
against any loss, liability or damage, including reasonable
attorney's fees, resulting from the unavailability of any
Notes, including but not limited to any loss, liability or
damage arising from (i) any false statement contained in this
Affidavit, (ii) any claim of any party that has already
purchased a mortgage loan evidenced by the Lost Note or any
interest in such mortgage loan, (iii) any claim of any
borrower with respect to the existence of terms of a mortgage
loan evidenced by the Lost Note on the related property to the
fact that the mortgage loan is not evidenced by an original
note and (iv) the issuance of a new instrument in lieu thereof
(items (i) through (iv) above hereinafter referred to as the
"Losses") and (b) if required by any Rating Agency in
connection with placing such Lost Note into a Pass-Through
Transfer, shall obtain a surety from an insurer acceptable to
the applicable Rating Agency to cover any Losses with respect
to such Lost Note.
11. This Affidavit is intended to be relied upon by the Purchaser,
its successors and assigns. _____________________, a
______________ corporation represents and warrants that it has
the authority to perform its obligations under this Affidavit
of Lost Note.
Executed this ____ day, of ___________ ______.
SELLER
By:______________________
Name:
Title:
On this _____ day of ________, _____, before me appeared
_________________ to me personally known, who being duly sworn did say that he
is the _____________________ of ____________________ a ______________
corporation and that said Affidavit of Lost Note was signed and sealed on behalf
of such corporation and said acknowledged this instrument to be the free act and
deed of said corporation.
Signature:
[Seal]
B-2
EXHIBIT C-1
FORM OF TRUST ADMINISTRATOR'S INITIAL CERTIFICATION
[Date]
Ameriquest Mortgage Securities Inc.
0000 Xxxx & Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Ameriquest Mortgage Company
0000 Xxxx & Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Re: Pooling and Servicing Agreement, dated as of September 1,
2002, among Ameriquest Mortgage Securities Inc., Ameriquest
Mortgage Company, Deutsche Bank National Trust Company and
U.S. Bank National Association, Asset-Backed Mortgage
Pass-Through Certificates, Series 2002-3
-----------------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.01 of the Pooling and Servicing
Agreement, dated as of September 1, 2002, among Ameriquest Mortgage Securities
Inc. as Depositor, Ameriquest Mortgage Company, as master servicer, U.S. Bank
National Association as trustee and Deutsche Bank National Trust Company as
trust administrator, we hereby acknowledge that as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in 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(v))
required to be delivered to it pursuant to this Agreement are in its possession,
(ii) such documents have been reviewed by it or such Custodian and are not
mutilated, torn or defaced unless initialed by the related borrower and relate
to such Mortgage Loan, (iii) based on its or the Custodian's examination and
only as to the foregoing, the information set forth in the Mortgage Loan
Schedule that corresponds to items (1) through (3), (6), (9), (10), (13), (15)
and (19) of the definition of "Mortgage Loan Schedule" accurately reflects
information set forth in the Mortgage File.
The Trust Administrator was 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 (ii) to determine
whether any Mortgage File should include any of the documents specified in
clause (v) of Section 2.01.
C-1-1
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trust Administrator
By:______________________________
Name:
Title:
C-2-1
EXHIBIT C-2
FORM OF TRUST ADMINISTRATOR'S FINAL CERTIFICATION
[Date]
Ameriquest Mortgage Securities Inc.
0000 Xxxx & Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Ameriquest Mortgage Company
0000 Xxxx & Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Re: Pooling and Servicing Agreement, dated as of September 1,
2002, among Ameriquest Mortgage Securities Inc., Ameriquest
Mortgage Company, Deutsche Bank National Trust Company and
U.S. Bank National Association, Asset-Backed Mortgage
Pass-Through Certificates, Series 2002-3
-----------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling
and Servicing Agreement, the undersigned, as Trust Administrator, hereby
certifies that as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or listed on the attachment hereto),
it or a Custodian on its behalf has received each of the documents listed in
Section 2.01.
The Trust Administrator 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 Trust
Administrator makes no representations as to: (i) the validity, legality,
sufficiency, enforceability or genuineness of any of the documents contained in
the Mortgage File of any of the Mortgage Loans identified on the Mortgage Loan
Schedule, or (ii) the collectability, insurability, effectiveness or suitability
of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Pooling and
Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trust Administrator
By:______________________________
Name:
Title:
C-3-1
EXHIBIT C-3
FORM OF TRUST ADMINISTRATOR'S RECEIPT OF MORTGAGE NOTE
[Date]
Ameriquest Mortgage Securities Inc.
0000 Xxxx & Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Ameriquest Mortgage Company
0000 Xxxx & Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Re: Pooling and Servicing Agreement, dated as of September 1,
2002, among Ameriquest Mortgage Securities Inc., Ameriquest
Mortgage Company, Deutsche Bank National Trust Company and
U.S. Bank National Association, Asset-Backed Mortgage
Pass-Through Certificates, Series 2002-3
-----------------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.01 of the Pooling and Servicing Agreement, dated
as of September 1, 2002, among Ameriquest Mortgage Securities Inc. as Depositor,
Ameriquest Mortgage Company, as master servicer, U.S. Bank National Association
as trustee and Deutsche Bank National Trust Company as trust administrator, we
hereby acknowledge the receipt of the original Mortgage Note for each Mortgage
Loan with any exceptions thereto listed on Exhibit 1.
Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trust Administrator
By:______________________________
Name:
Title:
C-3-2
EXHIBIT D
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
D-1
MORTGAGE LOAN PURCHASE AGREEMENT
This is a Mortgage Loan Purchase Agreement (the "Agreement"),
dated August 29, 2002, between Ameriquest Mortgage Company, a Delaware
corporation (the "Originator") and Ameriquest Mortgage Securities Inc., a
Delaware corporation (the "Purchaser").
Preliminary Statement
---------------------
The Originator intends to sell the Mortgage Loans (as
hereinafter defined) to the Purchaser on the terms and subject to the conditions
set forth in this Agreement. The Purchaser shall deposit the Mortgage Loans into
a mortgage pool constituting the trust fund. The trust fund will be evidenced by
a single series of asset-backed pass-through certificates designated as Series
2002-3 (the "Certificates"). The Certificates will consist of sixteen classes of
certificates. The Class CE Certificates, the Class P Certificates and the Class
R Certificates (collectively, the "Ameriquest L.L.C. Certificates") will be
delivered to the Originator as partial consideration for the Mortgage Loans as
further described below.
The Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of September 1, 2002 (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor (in such capacity, the
"Depositor"), the Originator as master servicer (in such capacity the "Master
Servicer"), U.S. Bank National Association as trustee (in such capacity the
"Trustee") and Deutsche Bank National Trust Company as Trust Administrator (in
such capacity the "Trust Administrator"). Pursuant to the Pooling and Servicing
Agreement, the Depositor will assign all of its right, title and interest in and
to the Mortgage Loans, together with its rights under this Agreement, to the
Trustee for the benefit of the Certificateholders. Capitalized terms used but
not defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement.
The parties hereto agree as follows:
SECTION 1. AGREEMENT TO PURCHASE. The Originator agrees to
sell, and the Purchaser agrees to purchase, on or before September 4, 2002 (the
"Closing Date"), certain adjustable-rate and fixed-rate conventional residential
mortgage loans (the "Mortgage Loans"), having an aggregate principal balance as
of the close of business on the Cut-off Date of $805,009,028.00, after giving
effect to all payments due on the Mortgage Loans on or before the Cut- off Date
(the "Closing Balance"), whether or not received including the right to any
Prepayment Charges collected after the Cut-off Date from the Mortgagors in
connection with any Principal Prepayments on the Mortgage Loans. Any payments
(including Prepayment Charges) collected on or before the Cut-off Date,
including all scheduled payments of principal and interest due on or before the
Cut-off Date and collected after the Cut-off Date, shall belong to the
Originator.
SECTION 2. MORTGAGE LOAN SCHEDULE. The Purchaser and the
Originator have agreed upon which of the mortgage loans owned by the Originator
are to be purchased by the Purchaser pursuant to this Agreement, and the
Originator shall prepare or cause to be prepared on or prior to the Closing Date
a final schedule (the "Closing Schedule") describing such Mortgage
-2-
Loans and setting forth all of the Mortgage Loans to be purchased under this
Agreement, including the related Prepayment Charges. The Closing Schedule shall
conform to the requirements set forth in this Agreement and to the definition of
"Mortgage Loan Schedule" under the Pooling and Servicing Agreement. The Closing
Schedule shall be used as the Mortgage Loan Schedule under the Pooling and
Servicing Agreement.
SECTION 3. CONSIDERATION.
In consideration for the Mortgage Loans to be purchased
hereunder, the Purchaser shall, as described in Section 8, (i) pay to or upon
the order of the Originator in immediately available funds an amount (the
"Purchase Price") equal to the net sale proceeds of the Class A Certificates,
the Class Mezzanine Certificates and the Class S Certificates, and (ii) deliver
to Ameriquest Securities L.L.C., upon the order of the Originator, the Class CE
Certificates, the Class P Certificates and the Class R Certificates (the
"Ameriquest L.L.C. Certificates").
SECTION 4. TRANSFER OF THE MORTGAGE LOANS.
(a) POSSESSION OF MORTGAGE FILES. The Originator does
hereby sell to the Purchaser, without recourse but subject to the terms of this
Agreement, all of its right, title and interest in, to and under the Mortgage
Loans, including the related Prepayment Charges collected after the Cut-off
Date. The contents of each Mortgage File not delivered to the Purchaser or to
any assignee, transferee or designee of the Purchaser on or prior to the Closing
Date are and shall be held in trust by the Originator for the benefit of the
Purchaser or any assignee, transferee or designee of the Purchaser. Upon the
sale and contribution of the Mortgage Loans the ownership of each Mortgage Note,
the related Mortgage and the other contents of the related Mortgage File is
vested in the Purchaser and the ownership of all records and documents with
respect to the related Mortgage Loan prepared by or that come into the
possession of the Originator on or after the Closing Date shall immediately vest
in the Purchaser and shall be delivered immediately to the Purchaser or as
otherwise directed by the Purchaser.
(b) DELIVERY OF MORTGAGE LOAN DOCUMENTS. The
Originator will, on or prior to the Closing Date, deliver or cause to be
delivered to the Purchaser or any assignee, transferee or designee of the
Purchaser each of the following documents for each Mortgage Loan:
(i) the original Mortgage Note, endorsed in blank without
recourse or in the following form: "Pay to the order of U.S. Bank
National Association, as Trustee under the applicable agreement,
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, or with respect to any lost Mortgage Note, an
original Lost Note Affidavit; PROVIDED HOWEVER, that such substitutions
of Lost Note Affidavits for original Mortgage Notes may occur only with
respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance
of which is less than or equal to 2.00% of the Pool Balance as of the
Cut-off Date;
-3-
(ii) the original Mortgage with evidence of recording thereon,
and a copy, certified by the appropriate recording office, of the
recorded power of attorney, if the Mortgage was executed pursuant to a
power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in
blank, without recourse;
(iv) the original recorded intervening 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) or the original
unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an
attorney's opinion of title or similar, guarantee of title acceptable
to mortgage lenders generally in the jurisdiction where the Mortgaged
Property is located, together with all endorsements or riders which
were issued with or subsequent to the issuance of such policy, insuring
the priority of the Mortgage as a first lien on the Mortgaged Property
represented therein as a fee interest vested in the Mortgagor, or in
the event such original title policy is unavailable, a written
commitment or uniform binder or preliminary report of title issued by
the title insurance or escrow company.
If any document referred to in Section 4(b)(ii), 4(b)(iii) or
4(b)(iv) above has been submitted for recording but either (x) has not been
returned from the applicable public recording office or (y) has been lost or
such public recording office has retained the original of such document, the
obligations of the Originator hereunder shall be deemed to have been satisfied
upon (1) delivery by or on behalf of the Originator promptly upon receipt
thereof to the Purchaser or any assignee, transferee or designee of the
Purchaser of either the original or a copy of such document certified by the
Originator in the case of (x) above or the public recording office in the case
of (y) above to be a true and complete copy of the recorded original thereof and
(2) if such delivered copy is certified by the Originator then in addition
thereto delivery promptly upon receipt thereof of either the original or a copy
of such document certified by the public recording office to be a true and
complete copy of the original. In the event that the original lender's title
insurance policy has not yet been issued, the Originator shall deliver to the
Purchaser or any assignee, transferee or designee of the Purchaser a written
commitment or interim binder or preliminary report of title issued by the title
insurance or escrow company. Promptly upon receipt by the Originator of any such
original title insurance policy the Originator shall deliver such to the
Purchaser or any assignee, transferee or designee of the Purchaser.
The Originator shall promptly (and in no event later than
thirty (30) Business Days, subject to extension upon mutual agreement between
the Originator and the Trustee, following the
-4-
later of (i) the Closing Date, (ii) the date on which the Originator receives
the Assignment from the Trustee and (iii) the date of receipt by the Originator
of the recording information for a Mortgage) submit or cause to be submitted for
recording, at no expense to the Trust Fund, the Trust Administrator or the
Trustee, in the appropriate public office for real property records, each
Assignment referred to in (iii) and (iv) above and shall execute each original
Assignment referred to in (iii) in the following form: "U.S. Bank National
Association, as Trustee under the applicable agreement without recourse". In the
event that any such Assignment is lost or returned unrecorded because of a
defect therein, the Originator shall promptly prepare or cause to be prepared a
substitute Assignment or cure or cause to be cured such defect, as the case may
be, and thereafter cause each such Assignment to be duly recorded.
Notwithstanding the foregoing, however, for administrative convenience and
facilitation of servicing and to reduce closing costs, the Assignments shall not
be required to be submitted for recording with respect to any Mortgage Loan in
any jurisdiction where the Rating Agencies do not require recordation in order
to receive the ratings on the Certificates at the time of their initial
issuance; provided further, however, each Assignment of Mortgage shall be
submitted for recording by the Originator in the manner described above, at no
expense to the Trust Fund, the Trustee or the Trust Administrator, upon the
earliest to occur of: (i) reasonable direction by Holders of Certificates
entitled to at least 25% of the Voting Rights, (ii) failure of the Master
Servicer Termination Test, (iii) the occurrence of the bankruptcy or insolvency
of the Originator, (iv) the occurrence of a servicing transfer as described in
Section 7.02 of the Pooling and Servicing Agreement, and (v) if the Originator
is not the Master Servicer and with respect to any one Assignment of Mortgage,
the occurrence of a bankruptcy of the mortgagor under the related Mortgage or a
foreclosure of related Mortgage.
Each original document relating to a Mortgage Loan which is
not delivered to the Purchaser or its assignee, transferee or designee, if held
by the Originator, shall be so held for the benefit of the Purchaser or its
assignee, transferee or designee.
(c) ACCEPTANCE OF MORTGAGE LOANS. The documents
delivered pursuant to Section 4(b) hereof shall be reviewed by the Purchaser or
any assignee, transferee or designee of the Purchaser at any time before or
after the Closing Date (and with respect to each document permitted to be
delivered after the Closing Date within seven days of its delivery) to ascertain
that all required documents have been executed and received and that such
documents relate to the Mortgage Loans identified on the Mortgage Loan Schedule.
(d) RESERVED.
(e) TRANSFER OF INTEREST IN AGREEMENTS. The Purchaser
has the right to assign its interest under this Agreement, in whole or in part,
to the Trustee, as may be required to effect the purposes of the Pooling and
Servicing Agreement, without the consent of the Originator, and the assignee
shall succeed to the rights and obligations hereunder of the Purchaser. Any
expense reasonably incurred by or on behalf of the Purchaser, the Trust
Administrator or the Trustee in
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connection with enforcing any obligations of the Originator under this Agreement
will be promptly reimbursed by the Originator.
(f) EXAMINATION OF MORTGAGE FILES. Prior to the
Closing Date, the Originator shall either (i) deliver in escrow to the Purchaser
or to any assignee, transferee or designee of the Purchaser, for examination,
the Mortgage File pertaining to each Mortgage Loan or (ii) make such Mortgage
Files available to the Purchaser or to any assignee, transferee or designee of
the Purchaser for examination at the Trust Administrator's offices in Santa Ana,
California. Such examination may be made by the Purchaser, and its respective
designees, upon reasonable notice to the Originator, the Trust Administrator and
the Trustee during normal business hours before the Closing Date and within 60
days after the Closing Date. If any such person makes such examination prior to
the Closing Date and identifies any Mortgage Loans that do not conform to the
requirements of the Purchaser as described in this Agreement, such Mortgage
Loans shall be deleted from the Closing Schedule. The Purchaser may, at its
option and without notice to the Originator, purchase all or part of the
Mortgage Loans without conducting any partial or complete examination. The fact
that the Purchaser or any person has conducted or has failed to conduct any
partial or complete examination of the Mortgage Files shall not affect the
rights of the Purchaser or any assignee, transferee or designee of the Purchaser
to demand repurchase or other relief as provided herein or under the Pooling and
Servicing Agreement.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
ORIGINATOR.
The Originator hereby represents and warrants to the
Purchaser, as of the date hereof and as of the Closing Date, and covenants,
that:
(i) The Originator is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and is
duly authorized and qualified to transact any and all business contemplated by
this Agreement to be conducted by the Originator in any state in which a
Mortgaged Property is located or is otherwise not required under applicable law
to effect such qualification and, in any event, is in compliance with the doing
business laws of any such State, to the extent necessary to ensure its ability
to enforce each Mortgage Loan and to service the Mortgage Loans in accordance
with the terms of the Pooling and Servicing Agreement;
(ii) The Originator had the full corporate power and authority
to originate, hold and sell each Mortgage Loan and has the full corporate power
and authority to service each Mortgage Loan, and to execute, deliver and
perform, and to enter into and consummate the transactions contemplated by this
Agreement and has duly authorized by all necessary corporate action on the part
of the Originator the execution, delivery and performance of this Agreement; and
this Agreement, assuming the due authorization, execution and delivery thereof
by the Purchaser, constitutes a legal, valid and binding obligation of the
Originator, enforceable against the Originator in accordance with its terms,
except to the extent that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws relating
to creditors' rights generally and
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(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to the equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought;
(iii) The execution and delivery of this Agreement by the
Originator, the servicing of the Mortgage Loans by the Originator under the
Pooling and Servicing Agreement, the consummation of any other of the
transactions herein contemplated, and the fulfillment of or compliance with the
terms hereof are in the ordinary course of business of the Originator and will
not (A) result in a breach of any term or provision of the charter or by-laws of
the Originator or (B) conflict with, result in a breach, violation or
acceleration of, or result in a default under, the terms of any other material
agreement or instrument to which the Originator is a party or by which it may be
bound, or any statute, order or regulation applicable to the Originator of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Originator; and the Originator is not a party to, bound
by, or in breach or violation of any indenture or other agreement or instrument,
or subject to or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it, which materially and adversely affects or, to the Originator's
knowledge, would in the future materially and adversely affect, (x) the ability
of the Originator to perform its obligations under this Agreement or (y) the
business, operations, financial condition, properties or assets of the
Originator taken as a whole;
(iv) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by the Originator of, or compliance by the Originator with, this
Agreement or the consummation of the transactions contemplated hereby, or if any
such consent, approval, authorization or order is required, the Originator has
obtained the same;
(v) The Originator is an approved originator/servicer for
Xxxxxx Xxx or Xxxxxxx Mac in good standing and is a HUD approved mortgagee
pursuant to Section 203 and Section 211 of the National Housing Act; and
(vi) Except as otherwise disclosed in the Prospectus
Supplement, no litigation is pending against the Originator that would
materially and adversely affect the execution, delivery or enforceability of
this Agreement or the ability of the Originator to service the Mortgage Loans or
to perform any of its other obligations hereunder in accordance with the terms
hereof.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR
RELATING TO THE MORTGAGE LOANS.
The Originator hereby represents and warrants to the Purchaser
that as of the Closing Date:
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(i) The information set forth on the related Mortgage
Loan Schedule with respect to each Mortgage Loan is true and correct in all
material respects;
(ii) [Reserved];
(iii) No material error, omission, misrepresentation,
negligence, fraud or similar occurrence with respect to a Mortgage Loan has
taken place on the part of any person, including without limitation, the
Mortgagor, any appraiser, any builder or developer, or any other party involved
in the origination of the Mortgage Loan or in the application of any insurance
in relation to such Mortgage Loan;
(iv) All payments due prior to the Cut-off Date have
been made and none of the Mortgage Loans will have been contractually delinquent
for more than one calendar month more than once since the origination thereof;
(v) Each Mortgage is a valid and enforceable first
lien on the Mortgaged Property, including all improvements thereon, subject only
to (a) the lien of nondelinquent current real property taxes and assessments,
(b) covenants, conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording of such Mortgage, such
exceptions appearing of record being acceptable to mortgage lending institutions
generally or specifically reflected in the appraisal made in connection with the
origination of the related Mortgage Loan, and (c) other matters to which like
properties are commonly subject which do not materially interfere with the
benefits of the security intended to be provided by such Mortgage;
(vi) Immediately prior to the sale of the Mortgage
Loans to the Purchaser, the Originator had good title to, and was the sole legal
and beneficial owner of, each Mortgage Loan free and clear of any pledge, lien,
encumbrance or security interest and has full right and authority, subject to no
interest or participation of, or agreement with, any other party to sell and
assign the same;
(vii) There is no delinquent tax or assessment lien
against any Mortgaged Property;
(viii) There is no valid offset, defense or
counterclaim to any Mortgage Note or Mortgage, including the obligation of the
Mortgagor to pay the unpaid principal of or interest on such Mortgage Note, nor
will the operation of any of the terms of the Mortgage Note and the Mortgage, or
the exercise of any right thereunder, render the Mortgage unenforceable, in
whole or in part, or subject to any valid right of rescission, set-off,
counterclaim or defense, including the defense of usury and no such valid right
of rescission, set-off, counterclaim or defense has been asserted with respect
thereto;
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(ix) There are no mechanics' liens or claims for
work, labor or material rendered to the Mortgaged Property affecting any
Mortgaged Property which are or may be a lien prior to, or equal with, the lien
of the related Mortgage, except those which are insured against by the title
insurance policy referred to in (xiii) below;
(x) Subject to the Escrow Withhold referred to in
(xx) below, each Mortgaged Property is free of material damage and is in good
repair;
(xi) Each Mortgage Loan at origination complied in
all material respects with applicable local, state and federal laws, including,
without limitation, usury, equal credit opportunity, real estate settlement
procedures, truth-in-lending and disclosure laws, and consummation of the
transactions contemplated hereby will not involve the violation of any such
laws;
(xii) Neither the Originator nor any prior holder of
any Mortgage has modified the Mortgage in any material respect (except that a
Mortgage Loan may have been modified by a written instrument which has been
recorded, if necessary, to protect the interests of the Purchaser and which has
been delivered to the Trustee); satisfied, canceled or subordinated such
Mortgage in whole or in part; released the related Mortgaged Property in whole
or in part from the lien of such Mortgage; or executed any instrument of
release, cancellation, modification or satisfaction with respect thereto;
(xiii) A lender's policy of title insurance together
with a condominium endorsement, extended coverage endorsement, and an adjustable
rate mortgage endorsement (each as applicable) in an amount at least equal to
the Cut-off Date principal balance of each such Mortgage Loan or a commitment
(binder) to issue the same was effective on the date of the origination of each
Mortgage Loan, each such policy is valid and remains in full force and effect,
the transfer of the related Mortgage Loan to the Purchaser will not affect the
validity or enforceability of such policy and each such policy was issued by a
title insurer qualified to do business in the jurisdiction where the Mortgaged
Property is located and in a form acceptable to Xxxxxx Mae or Xxxxxxx Mac, which
policy insures the Originator and successor owners of indebtedness secured by
the insured Mortgage, as to the first priority lien of the Mortgage; no claims
have been made under such lender's title insurance policy and no prior holder of
the related Mortgage, including the Originator, has done, by act or omission,
anything which would impair the coverage of such lender's title insurance
policy;
(xiv) Each Mortgage Loan was originated by the
Originator (or, if generated on behalf of the Originator by a person other than
the Originator, is subject to the same underwriting standards and procedures
used by the Originator in originating mortgage loans directly) or by a savings
and loan association, savings bank, commercial bank, credit union, insurance
company or similar institution which is supervised and examined by a federal or
state authority (including a mortgage broker), or by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of
the National Housing Act;
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(xv) With respect to each Adjustable-Rate Mortgage
Loan, on each adjustment date, the Mortgage Rate will be adjusted to equal the
Index plus the Gross Margin, rounded to the nearest 0.125%, subject to the
Periodic Rate Cap, the Maximum Mortgage Rate and the Minimum Mortgage Rate. The
related Mortgage Note is payable on the first day of each month in
self-amortizing monthly installments of principal and interest, with interest
payable in arrears, and requires a monthly payment which is sufficient to fully
amortize the outstanding principal balance of the Mortgage Loan over its
remaining term and to pay interest at the applicable Mortgage Rate. No Mortgage
Loan is subject to negative amortization;
(xvi) All of the improvements which were included for
the purpose of determining the appraised value of the Mortgaged Property lie
wholly within the boundaries and building restriction lines of such property,
and no improvements on adjoining properties encroach upon the Mortgaged
Property, except those, if any, which are insured against by the lender's title
insurance policy referred to in (xiii) above.
(xvii) All inspections, licenses and certificates
required to be made or issued with respect to all occupied portions of the
Mortgaged Property including but not limited to certificates of occupancy, have
been made or obtained from the appropriate authorities and the Mortgaged
Property is lawfully occupied under applicable law except as may otherwise be
insured against by the lender's title insurance policy referred to in (xiii)
above.
(xviii) All parties which have had any interest in
the Mortgage, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located;
(xix) The Mortgage Note and the related Mortgage are
genuine, and each is the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms and with applicable laws. All
parties to the Mortgage Note and the Mortgage had legal capacity to execute the
Mortgage Note and the Mortgage and each Mortgage Note and Mortgage have been
duly and properly executed by such parties;
(xx) The proceeds of each Mortgage Loan have been
fully disbursed, there is no requirement for future advances thereunder and any
and all requirements as to completion of any on-site or off-site improvements
and as to disbursements of any escrow funds therefor have been complied with,
except any Mortgaged Property or Mortgage Loan subject to an Escrow Withhold as
defined in the Originator's underwriting guidelines. All costs, fees and
expenses incurred in making, closing or recording the Mortgage Loans were paid;
(xxi) The related Mortgage contains customary and
enforceable provisions which render the rights and remedies of the holder
thereof adequate for the realization against the
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Mortgaged Property of the benefits of the security, including, (i) in the case
of a Mortgage designated as a deed of trust, by trustee's sale, and (ii)
otherwise by judicial foreclosure. There is no homestead or other exemption
available to the Mortgagor which would materially interfere with the right to
sell the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage;
(xxii) With respect to each Mortgage constituting a
deed of trust, a trustee, duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is named in such
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(xxiii) There exist no deficiencies with respect to
escrow deposits and payments, if such are required, for which customary
arrangements for repayment thereof have not been made, and no escrow deposits or
payments of other charges or payments due the Originator have been capitalized
under the Mortgage or the related Mortgage Note;
(xxiv) The origination, collection and servicing
practices used by the Originator with respect to each Mortgage Loan have been in
all material respects legal, proper, reasonable and customary in the subprime
mortgage origination and servicing business;
(xxv) There is no pledged account or other security
other than real estate securing the Mortgagor's obligations;
(xxvi) No Mortgage Loan has a shared appreciation
feature, or other contingent interest feature;
(xxvii) The improvements upon each Mortgaged Property
are covered by a valid and existing hazard insurance policy with a generally
acceptable carrier that provides for fire extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is located
representing coverage not less than the lesser of the outstanding principal
balance of the related Mortgage Loan or the minimum amount required to
compensate for damage or loss on a replacement cost basis. All individual
insurance policies and flood policies referred to in clause (xxviii) below
contain a standard mortgagee clause naming the Originator or the original
mortgagee, and its successors in interest, as mortgagee, and the Originator has
received no notice that any premiums due and payable thereon have not been paid;
the Mortgage obligates the Mortgagor thereunder to maintain all such insurance,
including flood insurance, at the Mortgagor's cost and expense, and upon the
Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain
and maintain such insurance at the Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor, except as may be limited or
restricted by applicable law;
(xxviii) If the Mortgaged Property is in an area
identified in the Federal Register by the Federal Emergency Management Agency as
having special flood hazards, a flood
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insurance policy in a form meeting the requirements of the current guidelines of
the Flood Insurance Administration is in effect with respect to such Mortgaged
Property with a generally acceptable carrier in an amount representing coverage
not less than the least of (A) the original outstanding principal balance of the
Mortgage Loan, (B) the minimum amount required to compensate for damage or loss
on a replacement cost basis or (C) the maximum amount of insurance that is
available under the Flood Disaster Protection Act of 1973;
(xxix) There is no default, breach, violation or
event of acceleration existing under the Mortgage or the related Mortgage Note;
and the Originator has not waived any default, breach, violation or event of
acceleration;
(xxx) Each Mortgaged Property is improved by a one-
to four-family residential dwelling, including condominium units and dwelling
units in planned unit developments, which does not include (a) cooperatives or
(b) mobile homes and manufactured homes (as defined in the Xxxxxx Xxx
Seller-Servicer's Guide), except when the appraisal indicates that (i) the
mobile or manufactured home was built under the Federal Manufactured Home
Construction and Safety Standards of 1976 or (ii) otherwise assumes the
characteristics of site-built housing and meets local building codes, is readily
marketable, has been permanently affixed to the site, is not in a mobile home
"park," and is treated as real property under the applicable state law. With
respect to any Mortgage Loan that is secured by a leasehold estate, (a) the
lease is valid, in full force and effect; (b) all rents and other payments due
under the lease have been paid; (c) the lessee is not in default under any
provision of the lease; (d) the term of the lease exceeds the maturity date of
the related Mortgage Loan by at least five years and (e) the Mortgagee under the
Mortgage Loan is given notice and an opportunity to cure any defaults under the
lease;
(xxxi) There is no obligation on the part of the
Originator or any other party under the terms of the Mortgage or related
Mortgage Note to make payments in lieu of or in addition to those made by the
Mortgagor;
(xxxii) Any future advances made prior to the related
Purchase Date have been consolidated with the outstanding principal amount
secured by the Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term reflected on the Mortgage
Loan Schedule. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(xxxiii) Each Mortgage Loan was underwritten in
accordance with the Originator's underwriting guidelines;
(xxxiv) The Mortgage File contains an appraisal which
was performed by an appraiser who satisfied, and which was conducted in
accordance with, all of the applicable requirements of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, as amended;.
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(xxxv) None of the Mortgage Loans is a graduated
payment mortgage loan, nor is any Mortgage Loan subject to a temporary buydown
or similar arrangement;
(xxxvi) With respect to each Mortgage Loan, no loan
junior in lien priority to such Mortgage Loan and secured by the related
Mortgaged Property was originated by the Originator at the time of origination
of such Mortgage Loan;
(xxxvii) The Mortgage Loans comply in all material
respects with the description set forth under the heading "The Mortgage Pool" in
the Depositor's Prospectus Supplement, dated the date hereof (the "Prospectus
Supplement");
(xxxviii) The Mortgage contains an enforceable
provision for the acceleration of the payment of the unpaid principal balance of
the Mortgage Loan in the event that the Mortgaged Property is sold or
transferred without the prior written consent of the mortgagee thereunder,
except as may be limited by applicable law;
(xxxix) The information set forth in the Mortgage
Loan Schedule relating to the existence of a Prepayment Charge is complete, true
and correct in all material respects at the date or dates respecting which such
information is furnished and each Prepayment Charge is permissible and
enforceable in accordance with its terms upon the full and voluntary prepayment
by the Mortgagor under applicable law (except to the extent that: (1) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights generally; or
(2) the collectability thereof may be limited due to acceleration in connection
with a foreclosure or other involuntary payoff;
(xl) Each Mortgage Loan is an obligation that is
principally secured by real property for purposes of the REMIC Provisions of the
Code;
(xli) No Mortgage Loan is covered by the Home
Ownership and Equity Protection Act of 1994 ("HOEPA") and no Mortgage Loan is in
violation of any comparable state law;
(xlii) No proceeds from any Mortgage Loan were used
to finance single- premium credit insurance policies;
(xliii) No Mortgage Loan will impose a Prepayment
Charge for a term in excess of five years and no Mortgage Loan originated on or
after October 1, 2002 will impose a Prepayment Charge for a term in excess of
three years.
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SECTION 7. REPURCHASE OBLIGATION FOR DEFECTIVE DOCUMENTATION
AND FOR BREACH OF REPRESENTATION AND WARRANTY.
(a) The representations and warranties contained in Section 6
shall not be materially impaired by any review and examination of loan files or
other documents evidencing or relating to the Mortgage Loans or any failure on
the part of the Purchaser to review or examine such documents and shall inure to
the benefit of any assignee, transferee or designee of the Purchaser, including
the Trust Administrator on behalf of the Trustee for the benefit of the
Certificateholders.
Upon discovery by the Originator, the Purchaser or any
assignee, transferee or designee of the Purchaser of any materially defective
document in, or that any material document was not transferred by the Originator
(as listed on the Trust Administrator's Preliminary Exception Report), as part
of, any Mortgage File or of a breach of any of the representations and
warranties contained in Section 5 or Section 6 that materially and adversely
affects the value of any Mortgage Loan or the interest therein of the Purchaser
or the Purchaser's assignee, transferee or designee, the party discovering the
breach shall give prompt written notice to the other. Within ninety (90) days of
its discovery or its receipt of notice of any such missing documentation which
was not transferred to the Purchaser as described above or materially defective
documentation or any such breach of a representation and warranty the Originator
promptly shall deliver such missing document or cure such defect or breach in
all material respects, or in the event the Originator cannot deliver such
missing document or such defect or breach cannot be cured, the Originator shall,
within 90 days of its discovery or receipt of notice, either (i) repurchase the
affected Mortgage Loan at a price equal to the Purchase Price or (ii) pursuant
to the provisions of the Pooling and Servicing Agreement, cause the removal of
such Mortgage Loan from the Trust Fund and substitute one or more Qualified
Substitute Mortgage Loans. In the event that any Mortgage Loan is subject to a
breach of the representation and warranty in Section 6(xxxix) resulting in the
Master Servicer's inability to collect all or part of the Prepayment Charge from
the Mortgagor, in lieu of repurchase, the Originator shall be obligated to remit
to the Master Servicer (for deposit in the Collection Account) any shortfall in
the Prepayment Charge collected upon the Mortgagor's voluntary and full
principal prepayment.
The Originator shall amend the Closing Schedule to reflect the
withdrawal of such Mortgage Loan from the terms of this Agreement and the
Pooling and Servicing Agreement and the addition, if any, of a Qualified
Substitute Mortgage Loan. The Originator shall deliver to the Purchaser such
amended Closing Schedule and shall deliver such other documents as are required
by this Agreement or the Pooling and Servicing Agreement within five (5) days of
any such amendment. Any repurchase pursuant to this Section 7(a) shall be
accomplished by deposit in the Collection Account of the amount of the Purchase
Price in accordance with Section 2.03 of the Pooling and Servicing Agreement.
Any repurchase or substitution required by this Section shall be made in a
manner consistent with Section 2.03 of the Pooling and Servicing Agreement.
In addition, upon discovery by the Originator, the Purchaser,
or any assignee, transferee or designee of the Purchaser that any Mortgage Loan
does not constitute a "qualified
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mortgage" within the meaning of Section 860G(a)(3) of the Code, the party
discovering the breach shall give prompt written notice within five Business
Days to the others. Within ninety (90) days of its discovery or its receipt of
notice, the Originator promptly shall either (i) repurchase the affected
Mortgage Loan at the Purchase Price (as such term is defined in the Pooling and
Servicing Agreement) or (ii) pursuant to the provisions of the Pooling and
Servicing Agreement, cause the removal of such Mortgage Loan from the Trust Fund
and substitute one or more Qualified Substitute Mortgage Loans.
(b) It is understood and agreed that the obligations of the
Originator set forth in this Section 7 to cure, remit a Prepayment Charge
shortfall, repurchase or substitute for a defective Mortgage Loan constitute the
sole remedies of the Purchaser against the Originator respecting a missing or
defective material document or a breach of the representations and warranties
contained in Section 5 or Section 6.
SECTION 8. CLOSING; PAYMENT FOR THE MORTGAGE LOANS. The
closing of the purchase and sale of the Mortgage Loans shall be held at the New
York City office of Xxxxxxx Xxxxxxxx & Wood at 10:00 AM New York City time on
the Closing Date.
The closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the
Originator under this Agreement shall be true and
correct in all material respects as of the date as of
which they are made and no event shall have occurred
which, with notice or the passage of time, would
constitute a default under this Agreement;
(b) The Purchaser shall have received, or the attorneys
of the Purchaser shall have received in escrow (to be
released from escrow at the time of closing), all
Closing Documents as specified in Section 9 of this
Agreement, in such forms as are agreed upon and
acceptable to the Purchaser, duly executed by all
signatories other than the Purchaser as required
pursuant to the respective terms thereof;
(c) The Originator shall have delivered or caused to be
delivered and released to the Purchaser or to its
designee, all documents (including without
limitation, the Mortgage Loans) required to be so
delivered by the Purchaser pursuant to Section 2.01
of the Pooling and Servicing Agreement; and
(d) All other terms and conditions of this Agreement
shall have been complied with.
Subject to the foregoing conditions, the Purchaser shall
deliver or cause to be delivered to the Originator on the Closing Date, against
delivery and release by the Originator to the
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Trustee of all documents required pursuant to the Pooling and Servicing
Agreement, the consideration for the Mortgage Loans as specified in Section 3 of
this Agreement, by delivery to the Originator of the Purchase Price.
SECTION 9. CLOSING DOCUMENTS. Without limiting the generality
of Section 8 hereof, the closing shall be subject to delivery of each of the
following documents:
(a) An Officers' Certificate of the Originator, dated the
Closing Date, in form satisfactory to and upon which
the Purchaser and the Underwriters may rely, and
attached thereto copies of the certificate of
incorporation, by-laws and certificate of good
standing of the Originator under the laws of Delaware
and stating that the information contained in the
Prospectus Supplement, relating to the Mortgage
Loans, the Originator, and its loan portfolio, is
true and accurate in all material respects and does
not contain any untrue statement of a material fact
or omit to state a material fact required to be
stated therein or necessary to make the statements
therein, in light of the circumstances under which
they were made, not misleading and (ii) if the Class
CE Certificates and Class P Certificates are offered
on the Closing Date pursuant to a Private Placement
Memorandum, the Originator shall deliver an Officer's
Certificate stating that the same information
contained in such Private Placement Memorandum is
true and accurate in all material respects;
(b) An Officers' Certificate of the Originator, dated the
Closing Date, in form satisfactory to and upon which
the Purchaser and the Underwriters may rely, with
respect to certain facts regarding the sale of the
Mortgage Loans by the Originator to the Purchaser;
(c) An Opinion of Counsel of the Originator, dated the
Closing Date, in form satisfactory to and addressed
to the Purchaser and the Underwriters;
(d) Such opinions of counsel from the Purchaser's or
Originator's counsel as the Rating Agencies may
request in connection with the sale of the Mortgage
Loans by the Originator to the Purchaser or the
Originator's execution and delivery of, or
performance under, this Agreement and upon which the
Underwriters may rely;
(e) A letter from Deloitte & Touche L.L.P., certified
public accountants, dated the date hereof and to the
effect that they have performed certain specified
procedures as a result of which they determined that
certain information of an accounting, financial or
statistical nature set forth in the Prospectus
Supplement, under the captions "Summary of Prospectus
Supplement", "Risk Factors", "The Mortgage Pool",
"Yield on the Certificates", "Description of
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the Certificates", and "Pooling and Servicing
Agreement--The Originator and Master Servicer",
agrees with the records of the Originator;
(f) The Originator shall deliver for inclusion in the
Prospectus Supplement under the captions "The
Mortgage Pool--Underwriting Standards;
Representations" and "Pooling and Servicing
Agreement--The Originator and Master Servicer", or
for inclusion in other offering material such
publicly available information regarding its
financial condition and its mortgage loan
delinquency, foreclosure and loss experience,
underwriting standards, lending activities and loan
sales, production, and servicing and collection
practices, and any similar nonpublic, unaudited
financial information; and
(g) Such further information, certificates, opinions and
documents as the Purchaser or the Underwriters may
reasonably request.
SECTION 10. COSTS. The Originator shall pay (or shall
reimburse the Purchaser or any other Person to the extent that the Purchaser or
such other Person shall pay) all costs and expenses incurred in connection with
the transfer and delivery of the Mortgage Loans, including without limitation,
assignment of mortgage recording costs and/or fees for title policy endorsements
and continuations, the fees and expenses of the Originator's in-house
accountants and in-house attorneys, the costs and expenses incurred in
connection with producing the Originator's loan loss, foreclosure and
delinquency experience, and the costs and expenses incurred in connection with
obtaining the documents referred to in Sections 9(d) and 9(e) to the extent such
costs and expenses were not previously paid by the Originator. The Originator
shall pay (or shall reimburse the Purchaser or any other Person to the extent
that the Purchaser or such other Person shall pay) the costs and expenses of
printing (or otherwise reproducing) and delivering this Agreement, the Pooling
and Servicing Agreement, the Certificates, the prospectus, the prospectus
supplement, and the private placement memorandum relating to the Certificates
and other related documents, the initial fees, costs and expenses of the Trust
Administrator and the Trustee relating to the issuance of the initial
certification of the Trustee under Section 2.02 of the Pooling and Servicing
Agreement, the fees and expenses of the Originator's counsel in connection with
the preparation of all documents relating to the securitization of the Mortgage
Loans, the filing fee charged by the Securities and Exchange Commission for
registration of the Certificates, the cost of outside special counsel that may
be required for the Purchaser, the cost of obtaining the documents referred to
in Section 9(g) and the fees charged by any rating agency to rate the
Certificates. All other costs and expenses in connection with the transactions
contemplated hereunder shall be borne by the party incurring such expense.
SECTION 11. [Reserved]
SECTION 12. [Reserved]
-17-
SECTION 13. MANDATORY DELIVERY; GRANT OF SECURITY INTEREST.
The sale and delivery on the Closing Date of the Mortgage Loans described on the
Mortgage Loan Schedule in accordance with the terms and conditions of this
Agreement is mandatory. It is specifically understood and agreed that each
Mortgage Loan is unique and identifiable on the date hereof and that an award of
money damages would be insufficient to compensate the Purchaser for the losses
and damages incurred by the Purchaser in the event of the Originator's failure
to deliver the Mortgage Loans on or before the Closing Date. The Originator
hereby grants to the Purchaser a lien on and a continuing security interest in
the Originator's interest in each Mortgage Loan and each document and instrument
evidencing each such Mortgage Loan to secure the performance by the Originator
of its obligation hereunder, and the Originator agrees that it holds such
Mortgage Loans in custody for the Purchaser, subject to the Purchaser's (i)
right, prior to the Closing Date, to reject any Mortgage Loan to the extent
permitted by this Agreement, and (ii) obligation to deliver or cause to be
delivered the consideration for the Mortgage Loans pursuant to Section 8 hereof.
Any Mortgage Loans rejected by the Purchaser shall concurrently therewith be
released from the security interest created hereby. The Originator agrees that,
upon acceptance of the Mortgage Loans by the Purchaser or its designee and
delivery of payment to the Originator, that its security interest in the
Mortgage Loans shall be released. All rights and remedies of the Purchaser under
this Agreement are distinct from, and cumulative with, any other rights or
remedies under this Agreement or afforded by law or equity and all such rights
and remedies may be exercised concurrently, independently or successively.
Notwithstanding the foregoing, if on the Closing Date, each of the
conditions set forth in Section 8 hereof shall have been satisfied and the
Purchaser shall not have paid or caused to be paid the Purchase Price, or any
such condition shall not have been waived or satisfied and the Purchaser
determines not to pay or cause to be paid the Purchase Price, the Purchaser
shall immediately effect the redelivery of the Mortgage Loans, if delivery to
the Purchaser has occurred and the security interest created by this Section 13
shall be deemed to have been released.
SECTION 14. NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered to or mailed by registered mail, postage prepaid, or
transmitted by telex or telegraph and confirmed by a similar mailed writing, if
to the Purchaser, addressed to the Purchaser at 0000 Xxxx & Xxxxxxx Xxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxxxx 00000, Attention: General Counsel, or such other
address as may hereafter be furnished to the Originator in writing by the
Purchaser; if to the Originator, addressed to the Originator at 0000 Xxxx &
Xxxxxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000, Attention: General Counsel,
or to such other address as the Originator may designate in writing to the
Purchaser.
SECTION 15. SEVERABILITY OF PROVISIONS. Any part, provision,
representation or warranty of this Agreement which is prohibited or which is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation or warranty of this Agreement which
is prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating
-18-
the remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 16. AGREEMENT OF PARTIES. The Originator and the
Purchaser agree to execute and deliver such instruments and take such actions as
either of the others may, from time to time, reasonably request in order to
effectuate the purpose and to carry out the terms of this Agreement and the
Pooling and Servicing Agreement.
SECTION 17. SURVIVAL. The Originator agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the Purchaser, notwithstanding any investigation heretofore or
hereafter made by the Purchaser or on its behalf, and that the representations,
warranties and agreements made by the Originator herein or in any such
certificate or other instrument shall survive the delivery of and payment for
the Mortgage Loans and shall continue in full force and effect, notwithstanding
any restrictive or qualified endorsement on the Mortgage Notes and
notwithstanding subsequent termination of this Agreement, the Pooling and
Servicing Agreement or the Trust Fund.
SECTION 18. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS,
DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS (INCLUDING THE CHOICE OF LAW
PROVISIONS) AND DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND
THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW
SHALL APPLY TO THIS AGREEMENT.
SECTION 19. MISCELLANEOUS. This Agreement may be executed in
two or more counter-parts, each of which when so executed and delivered shall be
an original, but all of which together shall constitute one and the same
instrument. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. This Agreement
supersedes all prior agreements and understandings relating to the subject
matter hereof. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans by the Originator to the Purchaser as provided
in Section 4 hereof be, and be construed as, a sale of the Mortgage Loans by the
Originator to the Purchaser and not as a pledge of the Mortgage Loans by the
Originator to the Purchaser to secure a debt or other obligation of the
Originator. However, in the event that, notwithstanding the aforementioned
intent of the parties, the Mortgage Loans are
-19-
held to be property of the Originator, then, (a) it is the express intent of the
parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Originator to the Purchaser to secure a debt or other obligation of the
Originator and (b) (1) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code; (2) the conveyance provided for in Section 4 hereof shall be
deemed to be a grant by the Originator to the Purchaser of a security interest
in all of the Originator's right, title and interest in and to the Mortgage
Loans and all amounts payable to the holders of the Mortgage Loans in accordance
with the terms thereof and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all amounts, other than investment
earnings, from time to time held or invested in the Collection Account whether
in the form of cash, instruments, securities or other property; (3) the
possession by the Purchaser or its agent of Mortgage Notes, the related
Mortgages and such other items of property that constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession" for
purposes of perfecting the security interest pursuant to the New York Uniform
Commercial Code; and (4) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the
Purchaser for the purpose of perfecting such security interest under applicable
law. Any assignment of the interest of the Purchaser pursuant to Section 4(d)
hereof shall also be deemed to be an assignment of any security interest created
hereby. The Originator and the Purchaser shall, to the extent consistent with
this Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement and the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Originator and the Purchaser have
caused their names to be signed by their respective officers thereunto duly
authorized as of the date first above written.
AMERIQUEST MORTGAGE COMPANY
By:_______________________________
Name:
Title:
AMERIQUEST MORTGAGE SECURITIES
INC.
By:_______________________________
Name:
Title:
EXHIBIT E-1
REQUEST FOR RELEASE
(for Trustee)
LOAN INFORMATION
Name of Mortgagor: ______________________________
Master Servicer
Loan No.: ______________________________
TRUSTEE
Name: ______________________________
Address: ______________________________
______________________________
Trustee Mortgage
File No.: ______________________________
TRUST ADMINISTRATOR
Name: ______________________________
Address: ______________________________
______________________________
Trust Administrator
Mortgage File No.: ______________________________
DEPOSITOR
Name: AMERIQUEST MORTGAGE SECURITIES INC.
Address: ______________________________
Certificates: Asset-Backed Pass-Through
Certificates, Series 2002-3.
E-1-1
The undersigned Master Servicer hereby acknowledges
that it has received from _______________________, as Trustee for the Holders of
Asset-Backed Pass-Through Certificates, Series 2002-3, the documents referred to
below (the "Documents"). All capitalized terms not otherwise defined in this
Request for Release shall have the meanings given them in the Pooling and
Servicing Agreement, dated as of September 1, 2002, among the Trustee, the Trust
Administrator, the Depositor and the Master Servicer (the "Pooling and Servicing
Agreement").
( ) Promissory Note dated _______________, 20__, in the original principal
sum of $__________, made by _____________________, payable to, or
endorsed to the order of, the Trustee.
( ) Mortgage recorded on _________________________ as instrument no.
____________________ in the County Recorder's Office of the County of
_______________, State of __________________ in
book/reel/docket_________________ of official records at page/image
_____________.
( ) Deed of Trust recorded on ___________________ as instrument no.
________________ in the County Recorder's Office of the County of
_________________, State of ____________________ in book/reel/docket
_________________ of official records at page/image ______________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
__________________ as instrument no. _________ in the County Recorder's
Office of the County of _______________, State of
_______________________ in book/reel/docket ____________ of official
records at page/image ____________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( ) ---------------------------------------------
( ) ---------------------------------------------
( ) ---------------------------------------------
( ) ---------------------------------------------
The undersigned Master Servicer hereby acknowledges
and agrees as follows:
(1) The Master Servicer shall hold and retain
possession of the Documents in trust for the benefit of the Trustee, solely for
the purposes provided in the Agreement.
(2) The Master Servicer shall not cause or permit the
Documents to become subject to, or encumbered by, any claim, liens, security
interest, charges, writs of attachment or other impositions nor shall the Master
Servicer assert or seek to assert any claims or rights of setoff to or against
the Documents or any proceeds thereof.
E-1-2
(3) The Master Servicer shall return each and every
Document previously requested from the Mortgage File to the Trustee when the
need therefor no longer exists, unless the Mortgage Loan relating to the
Documents has been liquidated and the proceeds thereof have been remitted to the
Collection Account and except as expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including
any proceeds of proceeds, coming into the possession or control of the Master
Servicer shall at all times be earmarked for the account of the Trustee, and the
Master Servicer shall keep the Documents and any proceeds separate and distinct
from all other property in the Master Servicer's possession, custody or control.
Dated:
[MASTER SERVICER]
By: ______________________________
Name:
Title:
E-1-3
EXHIBIT E-2
REQUEST FOR RELEASE
[Mortgage Loans Paid in Full]
OFFICERS' CERTIFICATE AND TRUST RECEIPT ASSET-BACKED PASS-THROUGH
CERTIFICATES SERIES 2002-3
____________________________________________________ HEREBY CERTIFIES THAT
HE/SHE IS AN OFFICER OF THE MASTER SERVICER, HOLDING THE OFFICE SET FORTH
BENEATH HIS/HER SIGNATURE, AND HEREBY FURTHER CERTIFIES AS FOLLOWS:
WITH RESPECT TO THE MORTGAGE LOANS, AS THE TERM IS DEFINED IN THE POOLING AND
SERVICING AGREEMENT DESCRIBED IN THE ATTACHED SCHEDULE:
ALL PAYMENTS OF PRINCIPAL, PREMIUM (IF ANY), AND INTEREST HAVE BEEN
MADE.
LOAN NUMBER: _______________ BORROWER'S NAME: _______________
COUNTY: ______________________
WE HEREBY CERTIFY THAT ALL AMOUNTS RECEIVED IN CONNECTION WITH SUCH PAYMENTS,
WHICH ARE REQUIRED TO BE DEPOSITED IN THE COLLECTION ACCOUNT PURSUANT TO SECTION
3.10 OF THE POOLING AND SERVICING AGREEMENT, HAVE BEEN OR WILL BE CREDITED.
________________________________ DATED:
_____________________________
/ / VICE PRESIDENT
/ / ASSISTANT VICE PRESIDENT
E-2-1
EXHIBIT F-1
FORM OF TRANSFEROR REPRESENTATION LETTER
[DATED]
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Re: Ameriquest Mortgage Securities Inc., Asset-Backed Pass-Through
Certificates, Series 2002-3, Class ___, representing a ___%
Class ___ Percentage Interest
--------------------------------------------------------------
Ladies and Gentlemen:
In connection with the transfer by ________________ (the "Transferor")
to ________________ (the "Transferee") of the captioned mortgage pass-through
certificates (the "Certificates"), the Transferor hereby certifies as follows:
Neither the Transferor 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, (e)
has taken any other action, that (in the case of each of subclauses (a) through
(e) above) would constitute a distribution of the Certificates under the
Securities Act of 1933, as amended (the "1933 Act"), or would render the
disposition of any Certificate a violation of Section 5 of the 1933 Act or any
state securities law or would require registration or qualification pursuant
thereto. The Transferor will not act, nor has it authorized or will it authorize
any person to act, in any manner set forth in the foregoing sentence with
respect to any Certificate. The Transferor will not sell or otherwise transfer
any of the Certificates, except in compliance with the provisions of that
certain Pooling and Servicing Agreement, dated as of September 1, 2002, among
Ameriquest Mortgage Securities Inc. as Depositor, Ameriquest Mortgage Company as
Master Servicer, U.S. Bank National Association as Trustee and Deutsche Bank
National Trust Company as Trust Administrator (the "Pooling and Servicing
Agreement"), pursuant to which Pooling and Servicing Agreement the Certificates
were issued.
F-1-1
Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
Very truly yours,
[Transferor]
By: _______________________
Name:
Title:
F-1-2
FORM OF TRANSFEREE REPRESENTATION LETTER
[Date]
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Re: Ameriquest Mortgage Securities Inc., Asset-Backed
Pass-Through Certificates, Series 2002-3, Class ___,
representing a ___% Class ___ Percentage Interest
----------------------------------------------------
Ladies and Gentlemen:
In connection with the purchase from ______________________ (the "Transferor")
on the date hereof of the captioned trust certificates (the "Certificates"),
_______________ (the "Transferee") hereby certifies as follows:
1. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A ("Rule 144A") under the Securities Act of
1933 (the "1933 Act") and has completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. The
Transferee is aware that the sale to it is being made in reliance on
Rule 144A. The Transferee is acquiring the Certificates for its own
account or for the account of a qualified institutional buyer, and
understands that such Certificate may be resold, pledged or transferred
only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that
the resale, pledge or transfer is being made in reliance on Rule 144A,
or (ii) pursuant to another exemption from registration under the 1933
Act.
2. The Transferee has been furnished with all information
regarding (a) the Certificates and distributions thereon, (b) the
nature, performance and servicing of the Mortgage Loans, (c) the
Pooling and Servicing Agreement referred to below, and (d) any credit
enhancement mechanism associated with the Certificates, that it has
requested.
F-1-3
All capitalized terms used but not otherwise defined herein
have the respective meanings assigned thereto in the Pooling and Servicing
Agreement, dated as of September 1, 2002, among Ameriquest Mortgage Securities
Inc. as Depositor, Ameriquest Mortgage Company as Master Servicer, U.S. Bank
National Association as Trustee and Deutsche Bank National Trust Company as
Trust Administrator, pursuant to which the Certificates were issued.
[TRANSFEREE]
By: __________________________
Name:
Title:
F-1-4
ANNEX 1 TO EXHIBIT F-1
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and Deutsche Bank National Trust Company as Trust
Administrator, with respect to the mortgage pass-through certificates (the
"Certificates") described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
entity purchasing the Certificates (the "Transferee").
2. In connection with purchases by the Transferee, the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933 ("Rule 144A") because (i) the Transferee
owned and/or invested on a discretionary basis $______________________1 in
securities (except for the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ CORPORATION, ETC. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ BANK. The Transferee (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 Transferee (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 1Transferee must own and/or
invest on a discretionary basis at least $100,000,000 in
securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at
least $10,000,000 in securities. $25,000,000 as demonstrated
in its latest annual financial statements, A COPY OF WHICH IS
ATTACHED HERETO.
F-1-5
___ BROKER-DEALER. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934.
___ INSURANCE COMPANY. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, territory or the District of Columbia.
___ STATE OR LOCAL PLAN. The Transferee 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 Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ INVESTMENT ADVISOR. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee 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 Transferee, the
Transferee used the cost of such securities to the Transferee and did not
include any of the securities referred to in the preceding paragraph. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a majority-
owned, consolidated subsidiary of another enterprise and the Transferee is not
itself a reporting company under the Securities Exchange Act of 1934.
5. The Transferee acknowledges that it is familiar with Rule
144A and understands that the Transferor 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 Transferee may be in reliance on Rule 144A.
_____ _____ Will the Transferee be purchasing the
Yes No Certificates only for the Transferee's own
account?
F-1-6
6. If the answer to the foregoing question is "no", the
Transferee agrees that, in connection with any purchase of securities sold to
the Transferee for the account of a third party (including any separate account)
in reliance on Rule 144A, the Transferee will only purchase for the account of a
third party that at the time is a "qualified institutional buyer" within the
meaning of Rule 144A. In addition, the Transferee agrees that the Transferee
will not purchase securities for a third party unless the Transferee has
obtained a current representation letter from such third party or taken other
appropriate steps contemplated by Rule 144A to conclude that such third party
independently meets the definition of "qualified institutional buyer" set forth
in Rule 144A.
7. The Transferee 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 Transferee's purchase of the
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties updated annual financial statements promptly after they become
available.
Dated:
Print Name of Transferee
By: ___________________________
Name:
Title:
F-1-7
ANNEX 2 TO EXHIBIT F-1
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and Deutsche Bank National Trust Company, as
Trust Administrator, with respect to the mortgage pass-through certificates (the
"Certificates") described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the entity purchasing the
Certificates (the "Transferee") or, if the Transferee is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because the Transferee is part of a Family of
Investment Companies (as defined below), is such an officer of the investment
adviser (the "Adviser").
2. In connection with purchases by the Transferee, the
Transferee is a "qualified institutional buyer" as defined in Rule 144A because
(i) the Transferee is an investment company registered under the Investment
Company Act of 1940, and (ii) as marked below, the Transferee alone, or the
Transferee'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 Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used.
____ The Transferee owned $___________________ in securities (other
than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Transferee 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 Transferee'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 Transferee or are part of the
Transferee'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.
F-1-8
5. The Transferee is familiar with Rule 144A and understands
that the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A. In addition, the Transferee will
only purchase for the Transferee's own account.
6. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Certificates will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
Dated:
Print Name of Transferee or Advisor
By: ____________________________
Name:
Title:
IF AN ADVISER:
_______________________________________
Print Name of Transferee
F-1-9
FORM OF TRANSFEREE REPRESENTATION LETTER
The undersigned hereby certifies on behalf of the purchaser
named below (the "Purchaser") as follows:
1. I am an executive officer of the Purchaser.
2. The Purchaser is a "qualified institutional buyer", as
defined in Rule 144A, ("Rule 144A") under the Securities Act of 1933,
as amended.
3. As of the date specified below (which is not earlier than
the last day of the Purchaser's most recent fiscal year), the amount of
"securities", computed for purposes of Rule 144A, owned and invested on
a discretionary basis by the Purchaser was in excess of $100,000,000.
Name of Purchaser _____________________________________________________
_
By: (Signature) _____________________________________________________
Name of Signatory _____________________________________________________
Title _______________________________________________________________________
Date of this certificate ____________________________________________
Date of information provided in paragraph 3 ___________________________
F-1-10
EXHIBIT F-2
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
____________________________, being duly sworn, deposes,
represents and warrants as follows:
1. I am a ______________________ of __________________________
(the "Owner") a corporation duly organized and existing under the laws of
______________, the record owner of Ameriquest Mortgage Securities Inc.,
Asset-Backed Pass-Through Certificates, Series 2002-3, [Class R] (the "Class R
Certificates"), on behalf of whom I make this affidavit and agreement.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Pooling and Servicing Agreement pursuant to which the
Class R Certificates were issued.
2. The Owner (i) is and will be a "Permitted Transferee" as of
____________________, 2002 and (ii) is acquiring the Class R Certificates for
its own account or for the account of another Owner from which it has received
an affidavit in substantially the same form as this affidavit. A "Permitted
Transferee" is any person other than a "disqualified organization" or a
possession of the United States. For this purpose, a "disqualified organization"
means the United States, any state or political subdivision thereof, any agency
or instrumentality of any of the foregoing (other than an instrumentality all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income.
3. The Owner is aware (i) of the tax that would be imposed on
transfers of the Class R Certificates to disqualified organizations under the
Internal Revenue Code of 1986 that applies to all transfers of the Class R
Certificates after March 31, 1988; (ii) that such tax would be on the transferor
or, if such transfer is through an agent (which person includes a broker,
nominee or middleman) for a non-Permitted Transferee, on the agent; (iii) that
the person otherwise liable for the tax shall be relieved of liability for the
tax if the transferee furnishes to such person an affidavit that the transferee
is a Permitted Transferee and, at the time of transfer, such person does not
have actual knowledge that the affidavit is false; and (iv) that each of the
Class R Certificates may be a "noneconomic residual interest" within the meaning
of proposed Treasury regulations promulgated under the Code and that the
transferor of a "noneconomic residual interest" will remain liable for any taxes
due with respect to the income on such residual interest, unless no significant
purpose of the transfer is to impede the assessment or collection of tax.
F-2-1
4. The Owner is aware of the tax imposed on a "pass-through
entity" holding the Class R Certificates if, at any time during the taxable year
of the pass-through entity, a non- Permitted Transferee is the record holder of
an interest in such entity. (For this purpose, a "pass- through entity" includes
a regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Owner is aware that the Certificate Registrar will not
register the transfer of any Class R Certificate unless the transferee, or the
transferee's agent, delivers to the Certificate Registrar, among other things,
an affidavit in substantially the same form as this affidavit. The Owner
expressly agrees that it will not consummate any such transfer if it knows or
believes that any of the representations contained in such affidavit and
agreement are false.
6. The Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R Certificates will only be
owned, directly or indirectly, by an Owner that is a Permitted Transferee.
7. The Owner's taxpayer identification number is ____________.
8. The Owner has reviewed the restrictions set forth on the
face of the Class R Certificates and the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement under which the Class R Certificates were issued
(in particular, clauses (iii)(A) and (iii)(B) of Section 5.02(d) which authorize
the Trust Administrator to deliver payments to a person other than the Owner and
negotiate a mandatory sale by the Trust Administrator in the event that the
Owner holds such Certificate in violation of Section 5.02(d)); and that the
Owner expressly agrees to be bound by and to comply with such restrictions and
provisions.
9. The Owner is not acquiring and will not transfer the Class
R Certificates in order to impede the assessment or collection of any tax.
10. The Owner anticipates that it will, so long as it holds
the Class R Certificates, have sufficient assets to pay any taxes owed by the
holder of such Class R Certificates, and hereby represents to and for the
benefit of the person from whom it acquired the Class R Certificates that the
Owner intends to pay taxes associated with holding such Class R Certificates as
they become due, fully understanding that it may incur tax liabilities in excess
of any cash flows generated by the Class R Certificates.
11. The Owner has no present knowledge that it may become
insolvent or subject to a bankruptcy proceeding for so long as it holds the
Class R Certificates.
12. The Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding.
13. The Owner is not acquiring the Class R Certificates with
the intent to transfer the Class R Certificates to any person or entity that
will not have sufficient assets to pay any taxes
F-2-2
owed by the holder of such Class R Certificates, or that may become insolvent or
subject to a bankruptcy proceeding, for so long as the Class R Certificates
remain outstanding.
14. The Owner will, in connection with any transfer that it
makes of the Class R Certificates, obtain from its transferee the
representations required by Section 5.02(d) of the Pooling and Servicing
Agreement under which the Class R Certificate were issued and will not
consummate any such transfer if it knows, or knows facts that should lead it to
believe, that any such representations are false.
15. The Owner will, in connection with any transfer that it
makes of the Class R Certificates, deliver to the Certificate Registrar an
affidavit, which represents and warrants that it is not transferring the Class R
Certificates to impede the assessment or collection of any tax and that it has
no actual knowledge that the proposed transferee: (i) has insufficient assets to
pay any taxes owed by such transferee as holder of the Class R Certificates;
(ii) may become insolvent or subject to a bankruptcy proceeding for so long as
the Class R Certificates remains outstanding; and (iii) is not a "Permitted
Transferee".
16. The Owner is a citizen or resident of the United States, a
corporation or partnership (or other entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States, any state thereof or the District of Columbia
(except, in the case of a partnership or entity treated as a partnership, to the
extent provided in regulations), an estate the income of which is subject to
United States federal income taxation regardless of its source or a trust other
than a "foreign trust" described in section 7701(a)(31) of the Code.
F-2-3
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Vice] President, attested by its [Assistant] Secretary, this ____ day of
__________, 200__.
[OWNER]
By: ___________________________
Name:
Title: [Vice] President
ATTEST:
By: ______________________________
Name:
Title: [Assistant] Secretary
Personally appeared before me the above-named , known or
proved to me to be the same person who executed the foregoing instrument and to
be a [Vice] President of the Owner, and acknowledged to me that [he/she]
executed the same as [his/her] free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ____ day of __________,
200__.
______________________________
Notary Public
County of _____________________
State of ______________________
My Commission expires:
F-2-4
FORM OF TRANSFEROR AFFIDAVIT
STATE OF NEW YORK )
: ss. :
COUNTY OF NEW YORK )
_______________________________________, being duly sworn,
deposes, represents and warrants _____________________________ as follows:
1. I am a ____________________ of (the "Owner"), a corporation
duly organized and existing under the laws of ______________, on behalf of whom
I make this affidavit.
2. The Owner is not transferring the [Class R] (the "Residual
Certificates") to impede the assessment or collection of any tax.
3. The Owner has no actual knowledge that the Person that is
the proposed transferee (the "Purchaser") of the Residual Certificates: (i) has
insufficient assets to pay any taxes owed by such proposed transferee as holder
of the Residual Certificates; (ii) may become insolvent or subject to a
bankruptcy proceeding for so long as the Residual Certificates remain
outstanding and (iii) is not a Permitted Transferee.
4. The Owner understands that the Purchaser has delivered to
the Certificate Registrar a transfer affidavit and agreement in the form
attached to the Pooling and Servicing Agreement as Exhibit F-2. The Owner does
not know or believe that any representation contained therein is false.
5. At the time of transfer, the Owner has 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 Owner has determined that the Purchaser has
historically paid its debts as they became 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 Owner understands that the transfer of a
Residual Certificate may not be respected for United States income tax purposes
(and the Owner may continue to be liable for United States income taxes
associated therewith) unless the Owner has conducted such an investigation.
6. Capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Pooling and Servicing Agreement.
F-2-5
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Vice] President, attested by its [Assistant] Secretary, this ____ day of
___________, 200__.
[OWNER]
By: _________________________
Name:
Title: [Vice] President
ATTEST:
By: ______________________________
Name:
Title: [Assistant] Secretary
Personally appeared before me the above-named , known or
proved to me to be the same person who executed the foregoing instrument and to
be a [Vice] President of the Owner, and acknowledged to me that [he/she]
executed the same as [his/her] free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ____ day of __________,
200__.
______________________________
Notary Public
County of__________________________
State of___________________________
My Commission expires:
F-2-6
EXHIBIT G
FORM OF CERTIFICATION WITH RESPECT TO ERISA AND THE CODE
_____________, 200__
Ameriquest Mortgage Securities Inc. Deutsche Bank National Trust Company
0000 Xxxx & Xxxxxxx Xxxx 0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000 Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Ameriquest Mortgage Company
0000 Xxxx & Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Re: Ameriquest Mortgage Securities Inc. Asset-Backed Pass-Through
Certificates, Series 2002-3, Class [CE], [P], [R]
-------------------------------------------------------------
Dear Ladies and Gentlemen:
__________________________________ (the "Transferee") intends
to acquire from _____________________ (the "Transferor") $____________ Initial
Certificate Principal Balance of Ameriquest Mortgage Securities Inc.,
Asset-Backed Pass-Through Certificates, Series 2002-3, Class ___ (the
"Certificates"), issued pursuant to a Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") dated as of September 1, 2002 among
Ameriquest Mortgage Securities Inc. as depositor (the "Depositor"), Ameriquest
Mortgage Company as master servicer (the "Master Servicer"), U.S. Bank National
Trust Company as trustee (the "Trustee") and Deutsche Bank National Trust
Company as trust administrator (the "Trust Administrator"). Capitalized terms
used herein and not otherwise defined shall have the meanings assigned thereto
in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to, and covenants with the Depositor, the Trustee, the
Trust Administrator and the Master Servicer that the following statements in
either (1) or (2) are accurate:
The Certificates (i) are not being acquired by, and will not
be transferred to, any employee benefit plan within the meaning of section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
other retirement arrangement, including individual retirement accounts and
annuities, Xxxxx plans and bank collective investment funds and insurance
company general or separate accounts in which such plans, accounts or
arrangements are invested, that is subject to Section 406 of ERISA or Section
4975 of the Internal Revenue Code of 1986 (the "Code") (any of the foregoing, a
"Plan"), (ii) are not being acquired with "plan assets" of a Plan within the
meaning of the Department of Labor ("DOL") regulation, 29 C.F.R. ss. 2510.3-101,
and (iii) will not be transferred to any entity that is deemed to be investing
in plan assets within the meaning of the DOL regulation at 29
C.F.R.ss.2510.3-101.
Very truly yours,
By: ______________________________
Name:
Title:
G-1
EXHIBIT H
LOSS MITIGATION ACTION PLAN
DEFAULT MITIGATION ACTION SUPPORTING STANDARDS
------------------------- --------------------
Forbearance Workout Borrower documents a temporary financial
Defer any of the following: hardship resulting in request for a forbearance
1.accrued interest Borrower documents financial ability to pay
2.past due principal under the proposed forbearance terms
3.escrow advances Borrower expresses a willingness to perform.
4.corporate advances Current monthly payments are scheduled to be
5.ancillary fees made prior to late charge date during the
6.any combination of the above forbearance term
Loan Modification Workout Borrower documents a non-temporary financial
Any of the following: hardship resulting in the request for a loan
1.waive accrued interest modification
2.waive past due principal Borrower documents financial ability to pay
3.waive corporate advances under the proposed loan modification terms
4.waive ancillary fees Borrower does not have the ability to pay under
5.reduce principal the original loan terms
6.reduce interest rate Borrower expresses a willingness to perform
7.any combination of the above items No waiver of escrow advances (taxes and
8.any combination with the Forbearance insurance) is allowed
items
Short Sale Disposal Sale to a third party
Waive or negotiate a reduced amount of Independent appraisal supports sale price
any of the following: No cash to seller (borrower), excluding costs
1.accrued interest necessary to close
2.principal Borrower does not have the ability and/or
3.escrow advances willingness to pay
4.corporate advances Borrower no longer wants property
5.ancillary fees
6.prepayment charges
7.any combination of the above items
H-2
DEFAULT MITIGATION ACTION SUPPORTING STANDARDS
------------------------- --------------------
Short pay-off Disposal Refinance by independent third party Lender
Waive or negotiate a reduced amount of Independent appraisal supports new loan amount
any of the following: New loan is no cash out (i.e. no cash to borrower
1.accrued interest excluding costs necessary to close)
2.principal Borrower has expressed his/her unwillingness to
3.escrow advances pay
4.corporate advances Anticipated refinance time frame is less than
5.ancillary fees anticipated foreclosure time frame
6.prepayment charges
7.any combination of the above items
Deed-in-lieu Disposal Borrower has already or will abandon the
--------------------- property or is willing to vacate the property (in
a broom sweep condition) on a mutually agreeable
date
Borrower does not have the ability and/or
willingness to pay
Independent appraisal confirms property has a
value
Title is clean
Property appears to be resalable based on
condition and value shown in independent
appraisal
Property does not appear to have any
environmental or hazardous conditions (or such
conditions appear to be curable)
Foreclosure Disposal Borrower has already or will abandon the
-------------------- property (which may be by an eviction
proceeding or mutual agreement)
Borrower does not have the ability and/or
willingness to pay
Independent appraisal confirms property has a
value
Property appears to be resalable based on
condition and value shown in independent
appraisal
Property does not appear to have any
environmental or hazardous conditions (or such
conditions appear to be curable)
Workouts in the form of either a Forbearance or Loan Modification require that
the Borrower document the existence of a financial hardship leading to the
payment delinquency and document the ability to make the payments required
under the proposed Forbearance or Loan Modification.
H-3
If the Borrower fails to meet both of these conditions or the Borrower is
uncooperative, a Disposal Loss Mitigation Action will be employed to liquidate
the delinquent loan, assuming the Borrower does not otherwise cure the
existing default. Each of the Default Mitigation Actions and Supporting
Standards may not be applicable to each and every loan subject to a default in
its monthly payments and in those cases where a Default Mitigation Action or
Supporting Standard may be applicable, each is subject to amendment and/or
waiver on an individual basis pursuant to applicable federal, state and local
laws, decisional authorities, court orders, instructions of regulatory and/or
other governmental authorities, the advice of legal counsel, instructions from
the Trustee and changes in the loan servicing standards.
H-4
SCHEDULE 1
MORTGAGE LOAN SCHEDULE
Filed By Paper
Schedule-1-1
SCHEDULE 2
PREPAYMENT CHARGE SCHEDULE
Available Upon Request
Schedule-2-1
