EXECUTION COPY
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.,
DEPOSITOR
JPMORGAN CHASE BANK,
TRUSTEE
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
MASTER SERVICER AND SECURITIES ADMINISTRATOR
and
EMC MORTGAGE CORPORATION
SELLER AND COMPANY
------------------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2004
------------------------------------------------------------
Structured Asset Mortgage Investments II Inc.
Bear Xxxxxxx ALT-A Trust, Mortgage Pass-Through Certificates
Series 2004-11
ARTICLE I
Definitions
ARTICLE II
Conveyance of Mortgage Loans; Original Issuance of Certificates
Section 2.01 Conveyance of Mortgage Loans to Trustee......................38
Section 2.02 Acceptance of Mortgage Loans by Trustee......................40
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase
Agreement....................................................42
Section 2.04 Substitution of Mortgage Loans...............................43
Section 2.05 Issuance of Certificates.....................................44
Section 2.06 Representations and Warranties Concerning the Depositor......44
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01 Master Servicer..............................................46
Section 3.02 REMIC-Related Covenants......................................47
Section 3.03 Monitoring of Servicers......................................47
Section 3.04 Fidelity Bond................................................48
Section 3.05 Power to Act; Procedures.....................................48
Section 3.06 Due-on-Sale Clauses; Assumption Agreements...................49
Section 3.07 Release of Mortgage Files....................................49
Section 3.08 Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee..............................50
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies.......51
Section 3.10 Presentment of Claims and Collection of Proceeds.............51
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies.......52
Section 3.12 Trustee to Retain Possession of Certain Insurance
Policies and Documents.......................................52
Section 3.13 Realization Upon Defaulted Mortgage Loans....................52
Section 3.14 Compensation for the Master Servicer.........................53
Section 3.15 REO Property.................................................53
Section 3.16 Annual Officer's Certificate as to Compliance................54
Section 3.17 Annual Independent Accountant's Servicing Report.............54
Section 3.18 Reports Filed with Securities and Exchange Commission........55
Section 3.19 The Company..................................................55
Section 3.20 UCC..........................................................55
Section 3.21 Optional Purchase of Defaulted Mortgage Loans................56
ARTICLE IV
Accounts
Section 4.01 Protected Accounts...........................................57
Section 4.02 Master Servicer Collection Account...........................58
Section 4.03 Permitted Withdrawals and Transfers from the Master
Servicer Collection Account..................................59
Section 4.04 Distribution Account.........................................60
Section 4.05 Permitted Withdrawals and Transfers from the
Distribution Account.........................................60
Section 4.06 Reserve Fund.................................................60
Section 4.07 Class XP Reserve Account.....................................60
ARTICLE V
Certificates
Section 5.01 Certificates.................................................63
Section 5.02 Registration of Transfer and Exchange of Certificates........69
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates............72
Section 5.04 Persons Deemed Owners........................................73
Section 5.05 Transfer Restrictions on Residual Certificates...............73
Section 5.06 Restrictions on Transferability of Certificates..............74
Section 5.07 ERISA Restrictions...........................................75
Section 5.08 Rule 144A Information........................................76
ARTICLE VI
Payments to Certificateholders
Section 6.01.1 Distributions on the Group I Certificates....................77
Section 6.01.2 Distributions on the Group II Certificates...................77
Section 6.02.1 Allocation of Losses and Subsequent Recoveries on the
Group I Certificates.........................................77
Section 6.02.2 Allocation of Losses and Subsequent Recoveries on the
Group II Certificates........................................82
Section 6.03 Payments.....................................................84
Section 6.04 Statements to Certificateholders.............................85
Section 6.05 Monthly Advances.............................................87
Section 6.06 Compensating Interest Payments...............................87
Section 6.07 Distributions on REMIC I Regular Interests and REMIC II
Regular Interests............................................88
ARTICLE VII
The Master Servicer
Section 7.01 Liabilities of the Master Servicer...........................89
Section 7.02 Merger or Consolidation of the Master Servicer...............89
Section 7.03 Indemnification of the Trustee, the Master Servicer and
the Securities Administrator.................................89
Section 7.04 Limitations on Liability of the Master Servicer and
Others.......................................................90
Section 7.05 Master Servicer Not to Resign................................91
Section 7.06 Successor Master Servicer....................................91
Section 7.07 Sale and Assignment of Master Servicing......................91
ARTICLE VIII
Default
Section 8.01 Events of Default............................................93
Section 8.02 Trustee to Act; Appointment of Successor.....................94
Section 8.03 Notification to Certificateholders...........................95
Section 8.04 Waiver of Defaults...........................................95
Section 8.05 List of Certificateholders...................................96
ARTICLE IX
Concerning the Trustee and the Securities Administrator
Section 9.01 Duties of Trustee............................................97
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator................................................99
Section 9.03 Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans..............................100
Section 9.04 Trustee and Securities Administrator May Own Certificates...101
Section 9.05 Trustee's and Securities Administrator's Fees and
Expenses....................................................101
Section 9.06 Eligibility Requirements for Trustee and Securities
Administrator...............................................101
Section 9.07 Insurance...................................................102
Section 9.08 Resignation and Removal of the Trustee and Securities
Administrator...............................................102
Section 9.09 Successor Trustee and Successor Securities Administrator....103
Section 9.10 Merger or Consolidation of Trustee or Securities
Administrator...............................................104
Section 9.11 Appointment of Co-Trustee or Separate Trustee...............104
Section 9.12 Federal Information Returns and Reports to
Certificateholders; REMIC Administration....................105
ARTICLE X
Termination
Xxxxxxx 00.00 Xxxxxxxxxxx Xxxx Xxxxxxxxxx by EMC or its Designee or
Liquidation of the Mortgage Loans...........................108
Section 10.02 Additional Termination Requirements.........................110
ARTICLE XI
Miscellaneous Provisions
Section 11.01 Intent of Parties...........................................112
Section 11.02 Amendment...................................................112
Section 11.03 Recordation of Agreement....................................113
Section 11.04 Limitation on Rights of Certificateholders..................113
Section 11.05 Acts of Certificateholders..................................114
Section 11.06 Governing Law...............................................115
Section 11.07 Notices.....................................................115
Section 11.08 Severability of Provisions..................................116
Section 11.09 Successors and Assigns......................................116
Section 11.10 Article and Section Headings................................116
Section 11.11 Counterparts................................................116
Section 11.12 Notice to Rating Agencies...................................116
APPENDIX
Appendix 1 - Calculation of Class Y Principal Reduction Amount
EXHIBITS
Exhibit A-1 - Form of Class I-A Certificates
Exhibit A-2 - Form of Class I-M-1 and Class I-M-2 Certificates
Exhibit A-3 - Form of Class I-B-1 and Class I-B-2 Certificates
Exhibit A-4 - Form of Class R Certificates
Exhibit A-5 - Form of Class B-IO Certificates
Exhibit A-6 - Form of Class XP Certificates
Exhibit A-7 - Form of Class II-A Certificates
Exhibit A-8 - Form of Class XX-X-0, XX-X-0, XX-X-0 Certificates
Exhibit A-9 - Form of Class XX-X-0, XX-X-0, XX-X-0 Certificates
Exhibit B - Mortgage Loan Schedule
Exhibit C - [Reserved]
Exhibit D - Request for Release of Documents
Exhibit E - Form of Affidavit pursuant to Section 860E(e)(4)
Exhibit F-1 - Form of Investment Letter
Exhibit F-2 - Form of Rule 144A and Related Matters Certificate
Exhibit G - Form of Custodial Agreement
Exhibit H-1 - Bank of America Servicing Agreement
Exhibit H-2 -
Countrywide Servicing Agreement
Exhibit H-3 - EMC Servicing Agreement
Exhibit X-0 - XxxxXxxx Xxxxxxxxx Xxxxxxxxx
Xxxxxxx X-0 - XxxxxXxxxx Servicing Agreement
Exhibit H-6 - SouthTrust
Servicing Agreement
Exhibit I - Assignment Agreements
Exhibit J - Mortgage Loan Purchase Agreement
Exhibit K - Form of Trustee Limited Power of Attorney
43
POOLING AND SERVICING AGREEMENT
Pooling and Servicing Agreement dated as of September 1, 2004, among
Structured Asset Mortgage Investments II Inc., a Delaware corporation, as
depositor (the "Depositor"), JPMorgan Chase Bank, a New York banking
corporation, not in its individual capacity but solely as trustee (the
"Trustee"), Xxxxx Fargo Bank, National Association, as master servicer (in
such capacity, the "Master Servicer") and as securities administrator (in
such capacity, the "Securities Administrator"), and EMC Mortgage Corporation,
as seller (in such capacity, the "Seller") and as company (in such capacity,
the "Company").
PRELIMINARY STATEMENT
On or prior to the Closing Date, the Depositor acquired the Mortgage
Loans from the Seller. On the Closing Date, the Depositor will sell the
Mortgage Loans and certain other property to the Trust Fund and receive in
consideration therefor Certificates evidencing the entire beneficial
ownership interest in the Trust Fund.
The Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC I to be treated for federal income tax purposes as
a REMIC. On the Startup Day, the REMIC I Regular Interests will be
designated "regular interests" in such REMIC.
The Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC II to be treated for federal income tax purposes as
a REMIC. On the Startup Day, the REMIC II Regular Interests will be
designated "regular interests" in such REMIC.
The Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC III to be treated for federal income tax purposes
as a REMIC. On the Startup Day, the REMIC III Regular Interests will be
designated "regular interests" in such REMIC.
The Trustee on behalf of the Trust shall make an election for the
assets constituting REMIC IV to be treated for federal income tax purposes as
a REMIC. On the Startup Day, the REMIC IV Regular Interests will be
designated "regular interests" in such REMIC.
The Class R Certificate will evidence ownership of the "residual
interest" in each REMIC.
The Group I Loans will have an Outstanding Principal Balance as of the
Cut-off Date, after deducting all Scheduled Principal due on or before the
Cut-off Date, of $814,705,945. The Group II-1 Loans will have an Outstanding
Principal Balance as of the Cut-off Date, after deducting all Scheduled
Principal due on or before the Cut-off Date, of $60,783,249. The Group II-2
Loans will have an Outstanding Principal Balance as of the Cut-off Date,
after deducting all Scheduled Principal due on or before the Cut-off Date, of
$162,051,194. The Group II-3 Loans will have an Outstanding Principal
Balance as of the Cut-off Date, after deducting all Scheduled Principal due
on or before the Cut-off Date, of $66,575,965. The Group II-4 Loans will
have an Outstanding Principal Balance as of the Cut-off Date, after deducting
all Scheduled Principal due on or before the Cut-off Date, of $37,991,132.
The Group II-5 Loans will have an Outstanding Principal Balance as of the
Cut-off Date, after deducting all Scheduled Principal due on or before the
Cut-off Date, of $111,556,973. The Group II-6 Loans will have an Outstanding
Principal Balance as of the Cut-off Date, after deducting all Scheduled
Principal due on or before the Cut-off Date, of $48,938,919.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Securities Administrator, the Seller, the
Company and the Trustee agree as follows:
ARTICLE I
Definitions
Whenever used in this Agreement, the following words and phrases,
unless otherwise expressly provided or unless the context otherwise requires,
shall have the meanings specified in this Article.
Accepted Master Servicing Practices: With respect to any Mortgage
Loan, as applicable, either (x) those customary mortgage servicing practices
of prudent mortgage servicing institutions that master service mortgage loans
of the same type and quality as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located, to the extent applicable to the
Trustee or the Master Servicer (except in its capacity as successor to a
Servicer), or (y) as provided in the Servicing Agreement, to the extent
applicable to any Servicer, but in no event below the standard set forth in
clause (x).
Account: The Master Servicer Collection Account, the Distribution
Account, the Protected Account or the Class XP Reserve Account, as the
context may require.
Accrued Certificate Interest: For any Group II Certificate (other than
the Class R Certificates) for any Distribution Date, the interest accrued
during the related Interest Accrual Period at the applicable Pass-Through
Rate on the Certificate Principal Balance or Notional Balance, as applicable,
of such Group II Certificate immediately prior to such Distribution Date, on
the basis of a 360-day year consisting of twelve 30-day months, less (i) in
the case of a Group II Senior Certificate, such Group II Certificate's share
of any Net Interest Shortfall from the related Mortgage Loans and, after the
Cross-Over Date, the interest portion of any Realized Losses on the related
Mortgage Loans, in each case allocated thereto in accordance with
Section 6.02.2(g) and (ii) in the case of a Group II Subordinate Certificate,
such Certificate's share of any Net Interest Shortfall from the related
Mortgage Loans and the interest portion of any Realized Losses on the related
Mortgage Loans, in each case allocated thereto in accordance with
Section 6.02.2(g).
Affiliate: As to any Person, any other Person controlling, controlled
by or under common control with such Person. "Control" means the power to
direct the management and policies of a Person, directly or indirectly,
whether through ownership of voting securities, by contract or otherwise.
"Controlled" and "Controlling" have meanings correlative to the foregoing.
The Trustee may conclusively presume that a Person is not an Affiliate of
another Person unless a Responsible Officer of the Trustee has actual
knowledge to the contrary.
Aggregate Subordinate Optimal Principal Amount: With respect to any
Distribution Date, the sum of the Subordinate Optimal Principal Amounts for
all Loan Groups in Loan Group II for such Distribution Date.
Agreement: This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
Allocable Share: With respect to any Class of Group II Subordinate
Certificates and any Distribution Date, an amount equal to the product of (i)
the Aggregate Subordinate Optimal Principal Amount and (ii) the fraction, the
numerator of which is the Certificate Principal Balance of such Class and the
denominator of which is the aggregate Certificate Principal Balance of all
Classes of the Group II Subordinate Certificates; provided, however, that no
Class of Group II Subordinate Certificates (other than the outstanding Class
of Group II Subordinate Certificates with the lowest numerical designation)
shall be entitled on any Distribution Date to receive distributions pursuant
to clauses (ii), (iii) and (v) of the definition of Subordinate Optimal
Principal Amount unless the related Class Prepayment Distribution Trigger for
such Distribution Date has been satisfied (any amount distributable pursuant
to clauses (ii), (iii) and (v) of the definition of Subordinate Optimal
Principal Amount shall be distributed among the Classes entitled thereto, pro
rata based on their respective Certificate Principal Balances); provided,
further, that if on a Distribution Date, the Certificate Principal Balance of
any Class of Group II Subordinate Certificates for which the related
Class Prepayment Distribution Trigger has been satisfied is reduced to zero,
such Class's remaining Allocable Share shall be distributed to the remaining
Classes of Group II Subordinate Certificates sequentially beginning with the
Class with the lowest numerical designation in reduction of their respective
Certificate Principal Balances.
Applicable Credit Rating: For any long-term deposit or security, a
credit rating of AAA in the case of S&P or Aaa in the case of Moody's (or
with respect to investments in money market funds, a credit rating of "AAAm"
or "AAAm-G" in the case of S&P and the highest rating given by Moody's for
money market funds in the case of Moody's). For any short-term deposit or
security, or a rating of A-l+ in the case of S&P or Prime-1 in the case of
Moody's.
Applicable State Law: For purposes of Section 9.12(d), the Applicable
State Law shall be (a) the law of the State of New York and (b) such other
state law whose applicability shall have been brought to the attention of the
Securities Administrator and the Trustee by either (i) an Opinion of Counsel
reasonably acceptable to the Securities Administrator and the Trustee
delivered to it by the Master Servicer or the Depositor, or (ii) written
notice from the appropriate taxing authority as to the applicability of such
state law.
Applied Realized Loss Amount: With respect to any Distribution Date and
a Class of Group I Offered Certificates, the sum of the Realized Losses with
respect to the Group I Mortgage Loans, which are to be applied in reduction
of the Certificate Principal Balance of such Class of Group I Offered
Certificates pursuant to this Agreement in an amount equal to the amount, if
any, by which, (i) the aggregate Certificate Principal Balance of all of the
Group I Certificates (after all distributions of principal on such
Distribution Date) exceeds (ii) the aggregate Stated Principal Balance of all
of the Group I Mortgage Loans for such Distribution Date. The Applied
Realized Loss Amount shall be allocated first to the Class I-B-2
Certificates, the Class I-B-1 Certificates, the Class I-M-2 Certificates and
the Class I-M-1 Certificates, in that order (so long as their respective
Certificate Principal Balances have not been reduced to zero), and thereafter
Realized Losses with respect to the Group I Mortgage Loans shall be allocated
to the Class I-A-2 Certificates and Class I-A-1 Certificates, in that order,
until the Certificate Principal Balance of each such Class has been reduced
to zero.
Appraised Value: For any Mortgaged Property related to a Mortgage
Loan, the amount set forth as the appraised value of such Mortgaged Property
in an appraisal made for the mortgage originator in connection with its
origination of the related Mortgage Loan.
Assignment Agreements: The agreements attached hereto as Exhibit I,
whereby the Servicing Agreements were assigned to the Trustee for the benefit
of the Certificateholders.
Assumed Final Distribution Date: November 25, 2034, or if such day is
not a Business Day, the next succeeding Business Day.
Available Funds: With respect to any Distribution Date and each Loan
Group in Loan Group II, an amount equal to the aggregate of the following
amounts with respect to the Mortgage Loans in the related Loan Group: (a)
all previously undistributed payments on account of principal (including the
principal portion of Scheduled Payments, Principal Prepayments and the
principal portion of Net Liquidation Proceeds) and all previously
undistributed payments on account of interest received after the Cut-off Date
and on or prior to the related Determination Date, (b) any Monthly Advances
and Compensating Interest Payments by the Servicer or the Master Servicer
with respect to such Distribution Date, (c) any reimbursed amount in
connection with losses on investments of deposits in certain eligible
investments in respect of the Mortgage Loans in the related Loan Group and
(d) any amount allocated from the Available Funds of another Loan Group in
accordance with Section 6.01.2(a)(H) under, except:
(i) all payments that were due on or before the Cut-off Date;
(ii) all Principal Prepayments and Liquidation Proceeds received after the
applicable Prepayment Period;
(iii) all payments, other than Principal Prepayments, that represent early
receipt of Scheduled Payments due on a date or dates subsequent to the
related Due Date;
(iv) amounts received on particular Mortgage Loans as late payments of
principal or interest and respecting which, and to the extent that, there are
any unreimbursed Monthly Advances;
(v) amounts representing Monthly Advances determined to be Nonrecoverable
Advances;
(vi) any investment earnings on amounts on deposit in the Master Servicer
Collection Account and the Distribution Account and amounts permitted to be
withdrawn from the Master Servicer Collection Account and the Distribution
Account pursuant to this Agreement;
(vii) amounts needed to pay the Servicing Fees or to reimburse any Servicer
or the Master Servicer for amounts due under the Servicing Agreement and the
Agreement to the extent such amounts have not been retained by, or paid
previously to, such Servicer or the Master Servicer;
(viii) amounts applied to pay any fees with respect to any lender-paid
primary mortgage insurance policy; and
(ix) any expenses or other amounts reimbursable to the Trustee, the
Securities Administrator, the Master Servicer and the Custodian pursuant to
Section 7.04(c) or Section 9.05.
Average Loss Severity Percentage: With respect to any Distribution
Date and each Loan Group in Loan Group II, the percentage equivalent of a
fraction, the numerator of which is the sum of the Loss Severity Percentages
for each Mortgage Loan in such Loan Group which had a Realized Loss and the
denominator of which is the number of Mortgage Loans in the related Loan
Group which had Realized Losses.
Bank of America: Bank of America, National Association, and its
successor in interest.
Bank of America Servicing Agreement: The Flow Mortgage Loan Sale and
Servicing Agreement, dated March 1, 2003, as amended by Amendment No. 2 to
Flow Mortgage Loan Sale and Servicing Agreement, dated August 25, 2004,
between Bank of America and EMC attached hereto as Exhibit H-1.
Bankruptcy Code: The United States Bankruptcy Code, as amended as
codified in 11 U.S.C. §§ 101-1330.
Bankruptcy Loss: With respect to any Mortgage Loan, any Deficient
Valuation or Debt Service Reduction related to such Mortgage Loan as reported
by the Servicer to the Master Servicer.
Basis Risk Shortfall: With respect to any Distribution Date and each
Class of Group I Offered Certificates for which the Pass-Through Rate is
based upon the applicable Net Rate Cap, the excess, if any, of (a) the amount
of Current Interest that such Class would have been entitled to receive on
such Distribution Date had the applicable Pass-Though Rate been calculated at
a per annum rate equal to the lesser of (i) One-Month LIBOR plus the related
Margin and (ii) 11.50% over (b) the amount of Current Interest on such Class
of Offered Certificates calculated using a Pass-Though Rate equal to the
applicable Net Rate Cap for such Distribution Date.
Basis Risk Shortfall Carry Forward Amount: With respect to any
Distribution Date and each Class of Group I Offered Certificates, Basis Risk
Shortfalls for all previous Distribution Dates not previously paid from any
source including the Excess Cashflow and payments under the Cap Contracts,
together with interest thereon at a rate equal to the related Pass-Through
Rate for such Class of Offered Certificates for such Distribution Date.
Book-Entry Certificates: Initially, the Senior Certificates and
Offered Subordinate Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which the New York Stock Exchange or Federal Reserve is closed or on
which banking institutions in the jurisdiction in which the Trustee, the
Master Servicer, Custodian, any Servicer or the Securities Administrator are
authorized or obligated by law or executive order to be closed.
Calendar Quarter: January 1 through March 31, April 1 through June 30,
July 1 through September 30, or October 1 through December 31, as applicable.
Cap Contract: With respect to any of the Class I-A-1, Class I-A-2,
Class I-M-1, Class I-M-2, Class I-B-1 or Class I-B-2 Certificates, the
respective cap contracts, dated September 30, 2004, between the Trustee, on
behalf of the Class I-A-1, Class I-A-2, Class I-M-1, Class I-M-2, Class I-B-1
or Class I-B-2 Certificateholders, as the case may be, and Bear Xxxxxxx
Financial Products Inc.
Cap Contract Payment Amount: With respect to any Distribution Date and
a Cap Contract, the amounts received from such Cap Contract, if any, on such
Distribution Date.
Certificate: Any mortgage pass-through certificate evidencing a
beneficial ownership interest in the Trust Fund signed and countersigned by
the Trustee in substantially the forms annexed hereto as Exhibits X-0, X-0,
X-0, X-0, X-0, X-0, X-0, A-8 and A-9 with the blanks therein appropriately
completed.
Certificate Group: With respect to Loan Group II-1, the Class II-A-1
Certificates, with respect to Loan Group II-2, the Class II-A-2 Certificates,
with respect to Loan Group II-3, the Class II-A-3 Certificates, with respect
to Loan Group II-4, the Class II-A-4 Certificates, with respect to Loan Group
II-5, the Class II-A-5 Certificates and the the Class II-X-A-5 Certificates,
with respect to Loan Group II-6, the Class II-A-6a Certificates and the Class
II-A-6b Certificates.
Certificate Owner: Any Person who is the beneficial owner of a
Certificate registered in the name of the Depository or its nominee.
Certificate Principal Balance: With respect to any Certificate (other
than the Class II-X-A-5, Class B-IO or Class R Certificates) as of any
Distribution Date, the initial principal amount of such Certificate plus, in
the case of a Subordinate Certificates, any Subsequent Recoveries added to
the Certificate Principal Balance of such Certificates pursuant to Section
6.02.1(b) or Section 6.02.2(h) hereof, and reduced by (i) all amounts
distributed on previous Distribution Dates on such Certificate with respect
to principal, (ii) solely in the case of the Group II Certificates, the
principal portion of all Realized Losses (other than Realized Losses
resulting from Debt Service Reductions) allocated prior to such Distribution
Date to such Certificate, taking account of the applicable Loss Allocation
Limitation, (iii) solely in the case of the Group I Certificates, any Applied
Realized Loss Amounts allocated to such Class on previous Distribution Dates,
and (iv) in the case of a Group II Subordinate Certificate, such
Certificate's pro rata share, if any, of the applicable Subordinate
Certificate Writedown Amount for previous Distribution Dates. With respect
to any Class of Certificates, the Certificate Principal Balance thereof will
equal the sum of the Certificate Principal Balances of all Certificates in
such Class. The initial Certificate Principal Balance (if any) for each
Class of Certificates is set forth in Section 5.01(c)(iv).
Certificate Register: The register maintained pursuant to
Section 5.02.
Certificateholder: A Holder of a Certificate.
Class: With respect to the Certificates, any of Class I-A-1, Class
I-A-2, Class II-A-1, Class II-A-2, Class II-A-3, Class II-A-4, Class II-A-5,
Class II-X-A-5, Class II-A-6a, Class II-A-6b, Class I-M-1, Class I-M-2, Class
R, Class I-B-1, Class I-B-2, Class II-B-1, Class II-B-2, Class II-B-3, Class
II-B-4, Class II-B-5, Class II-B-6, Class B-IO and Class XP Certificates.
Class A Certificates: The Class I-A Certificates and the Class II-A
Certificates.
Class B Certificates: The Class I-B Certificates and the Class II-B
Certificates.
Class B-IO Pass-Through Rate: With respect to the Class B-IO
Certificates and any Distribution Date or the REMIC IV Regular Interest
B-IO-I, a per annum rate equal to the percentage equivalent of a fraction,
the numerator of which is the sum of the amounts calculated pursuant to
clauses (i) through (iii) below, and the denominator of which is the
aggregate principal balance of the REMIC II Regular Interests. For purposes
of calculating the Pass-Through Rate for the Class B-IO-I Certificates, the
numerator is equal to the sum of the following components:
1. the Uncertificated Pass-Through Rate for REMIC II Regular Interest LT1
minus the Marker Rate, applied to a notional amount equal to the
Uncertificated Principal Balance of REMIC I Regular Interest LT1;
2. the Uncertificated Pass-Through Rate for REMIC II Regular Interest LT2
minus the Marker Rate, applied to a notional amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LT2; and
3. the Uncertificated Pass-Through Rate for REMIC II Regular Interest LT4
minus twice the Marker Rate, applied to a notional amount equal to the
Uncertificated Principal Balance of REMIC Ii Regular Interest LT4.
Class I-A Certificates: The Class I-A-1 Certificates and the Class
I-A-2 Certificates.
Class I-A Principal Distribution Amount: For any Distribution Date, an
amount equal to the excess, if any, of (i) the aggregate Certificate
Principal Balance of the Class I-A Certificates immediately prior to such
Distribution Date over (ii) the excess of (a) the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date over (b) the
product of (1) the aggregate Stated Principal Balance of the Group I Mortgage
Loans for such Distribution Date and (2) the sum of (x) 12.70% and (y) the
Current Specified Overcollateralization Percentage for such Distribution Date.
Class I-B Certificates: The Class I-B-1 Certificates and the Class
I-B-2 Certificates.
Class I-B-1 Principal Distribution Amount: For any Distribution Date,
an amount equal to the excess, if any, of (i) the Certificate Principal
Balance of the Class I-B-1 Certificates immediately prior to such
Distribution Date over (ii) the excess of (a) the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date over (b) the
sum of (1) the aggregate Certificate Principal Balance of the Class I-A
Certificates (after taking into account the payment of the Class I-A
Principal Distribution Amount on such Distribution Date), (2) the Certificate
Principal Balance of the Class I-M-1 Certificates (after taking into account
the payment of the Class I-M-1 Principal Distribution Amount on such
Distribution Date), (3) the Certificate Principal Balance of the Class I-M-2
Certificates (after taking into account the payment of the Class I-M-2
Principal Distribution Amount on such Distribution Date) and (4) the product
of (x) the aggregate Stated Principal Balance of the Group I Mortgage Loans
for such Distribution Date and (y) the sum of 1.60% and the Current Specified
Overcollateralization Percentage for such Distribution Date.
Class I-B-2 Principal Distribution Amount: For any Distribution Date,
an amount equal to the excess, if any, of (i) the Certificate Principal
Balance of the Class I-B-2 Certificates immediately prior to such
Distribution Date over (ii) the excess of (a) the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date over (b) the
sum of (1) the aggregate Certificate Principal Balance of the Class I-A
Certificates (after taking into account the payment of the Class I-A
Principal Distribution Amount on such Distribution Date), (2) the Certificate
Principal Balance of the Class I-M-1 Certificates (after taking into account
the payment of the Class I-M-1 Principal Distribution Amount on such
Distribution Date), (3) the Certificate Principal Balance of the Class I-M-2
Certificates (after taking into account the payment of the Class I-M-2
Principal Distribution Amount on such Distribution Date), (4) the Certificate
Principal Balance of the Class I-B-1 Certificates (after taking into account
the payment of the Class I-B-1 Principal Distribution Amount on such
Distribution Date) and (5) the product of (x) the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date and (y) the
Current Specified Overcollateralization Percentage for such Distribution Date.
Class I-M-1 Principal Distribution Amount: For any Distribution Date,
an amount equal to the excess, if any, of (i) the Certificate Principal
Balance of the Class I-M-1 Certificates immediately prior to such
Distribution Date over (ii) the excess of (a) the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date over (b) the
sum of (1) the aggregate Certificate Principal Balance of the Class I-A
Certificates (after taking into account the payment of the Class I-A
Principal Distribution Amount on such Distribution Date) and (2) the product
of (x) the aggregate Stated Principal Balance of the Group I Mortgage Loans
for such Distribution Date and (y) the sum of (I) 7.60% and (II) the Current
Specified Overcollateralization Percentage for such Distribution Date.
Class I-M-2 Principal Distribution Amount: For any Distribution Date,
an amount equal to the excess, if any, of (i) the Certificate Principal
Balance of the Class I-M-2 Certificates immediately prior to such
Distribution Date over (ii) the excess of (a) the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date over (b) the
sum of (1) the aggregate Certificate Principal Balance of the Class I-A
Certificates (after taking into account the payment of the Class I-A
Principal Distribution Amount on such Distribution Date), (2) the Certificate
Principal Balance of the Class I-M-1 Certificates (after taking into account
the payment of the Class I-M-1 Principal Distribution Amount on such
Distribution Date) and (3) the product of (x) the aggregate Stated Principal
Balance of the Group I Mortgage Loans for such Distribution Date and (y) the
sum of (I) 3.70% and (II) the Current Specified Overcollateralization
Percentage for such Distribution Date.
Class II-A Certificates: The Class II-A-1, Class II-A-2, Class II-A-3,
Class II-A-4, Class II-A-5, Class II-X-A-5, Class II-A-6a and Class II-A-6b
Certificates.
Class II-B Certificates: The Class II-B-1, Class II-B-2, Class II-B-3,
Class II-B-4, Class II-B-5 and Class II-B-6 Certificates.
Class M Certificates: The Class I-M-1 Certificates and the Class I-M-2
Certificates.
Class Prepayment Distribution Trigger: For a Class of Group II
Subordinate Certificates for any Distribution Date, the Class Prepayment
Distribution Trigger is satisfied if the fraction (expressed as a
percentage), the numerator of which is the aggregate Certificate Principal
Balance of such Class and each Class of Group II Subordinate Certificates
subordinate thereto, if any, and the denominator of which is the Stated
Principal Balance of all of the Group II Mortgage Loans as of the related Due
Date, equals or exceeds such percentage calculated as of the Closing Date.
Class R Certificate: The Class R Certificates substantially in the
form annexed hereto as Exhibit A-9 and evidencing ownership of interests
designated as "residual interests" in REMIC I and REMIC II for purposes of
the REMIC Provisions. Component I of the Class R Certificates is designated
as the sole class of "residual interest" in REMIC I and Component II of the
Class R Certificates is designated as the sole class of "residual interest"
in REMIC II.
Class XP Reserve Account: The account established and maintained by
the Master Servicer pursuant to Section 4.07 hereof.
Class Y Principal Reduction Amounts: For any Distribution Date, the
amounts by which the Uncertificated Principal Balances of the Class Y Regular
Interests will be reduced on such Distribution Date by the allocation of
Realized Losses and the distribution of principal, determined as described in
Appendix I
Class Y Regular Interests: The Class Y-1, Class Y-2, Class Y-3, Class
Y-4, Class Y-5 and Class Y-6 Regular Interests.
Class Y-1 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Y-1 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Y-1 Regular Interest on such Distribution Date.
Class Y-1 Principal Reduction Amount : The Class Y Principal Reduction
Amount for the Class Y-1 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Y-1 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Y-2 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Y-2 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Y-2 Regular Interest on such Distribution Date.
Class Y-2 Principal Reduction Amount : The Class Y Principal Reduction
Amount for the Class Y-2 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Y-2 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Y-3 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Y-3 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Y-3 Regular Interest on such Distribution Date.
Class Y-3 Principal Reduction Amount : The Class Y Principal Reduction
Amount for the Class Y-3 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Y-3 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Y-4 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Y-4 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Y-1 Regular Interest on such Distribution Date.
Class Y-4 Principal Reduction Amount : The Class Y Principal Reduction
Amount for the Class Y-4 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Y-4 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Y-5 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Y-5 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Y-5 Regular Interest on such Distribution Date.
Class Y-5 Principal Reduction Amount : The Class Y Principal Reduction
Amount for the Class Y-1 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Y-5 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Y-6 Principal Distribution Amount: For any Distribution Date,
the excess, if any, of the Class Y-6 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Y-6 Regular Interest on such Distribution Date.
Class Y-6 Principal Reduction Amount : The Class Y Principal Reduction
Amount for the Class Y-1 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Y-6 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Z Principal Reduction Amounts: For any Distribution Date, the
amounts by which the Uncertificated Principal Balances of the Class Z Regular
Interests will be reduced on such Distribution Date by the allocation of
Realized Losses and the distribution of principal, which shall be in each
case the excess of (A) the sum of (x) the excess of the REMIC I Available
Distribution Amount for the related Group (i.e. the "related Group" for the
Class Z-1 Regular Interest is the Group II-1 Loans, the "related Group" for
the Class Z-2 Regular Interest is the Group II-2 Loans, the "related Group"
for the Class Z-3 Regular Interest is the Group II-3 Loans, the "related
Group" for the Class Z-4 Regular Interest is the Group II-4 Loans, the
"related Group" for the Class Z-5 Regular Interest is the Group II-5 Loans,
the "related Group" for the Class Z-6 Regular Interest is the Group II-6
Loans) over the sum of the amounts thereof distributable (i) in respect of
interest on such Class Z Regular Interest and the related Class Y Regular
Interest, (ii) to such Class Z Regular Interest and the related Class Y
Regular Interest pursuant to clause (c)(ii) of the definition of "REMIC I
Distribution Amount" and (iii) in the case of the Group I Loans, to the Class
R Residual Interest and (y) the amount of Realized Losses allocable to
principal for the related Group over (B) the Class Y Principal Reduction
Amount for the related Group.
Class Z Regular Interests: The Class Z-1, Class Z-2, Class Z-3, Class
Z-4, Class Z-5 and Class Z-6 Regular Interests.
Class Z-1 Principal Distribution Amount: For any Distribution Date, the
excess, if any, of the Class Z-1 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Z-1 Regular Interest on such Distribution Date.
Class Z-1 Principal Reduction Amount : The Class Z Principal Reduction
Amount for the Class Z-1 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Z-1 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Z-2 Principal Distribution Amount: For any Distribution Date, the
excess, if any, of the Class Z-2 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Z-2 Regular Interest on such Distribution Date.
Class Z-2 Principal Reduction Amount : The Class Z Principal Reduction
Amount for the Class Z-2 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Z-2 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Z-3 Principal Distribution Amount: For any Distribution Date, the
excess, if any, of the Class Z-3 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Z-3 Regular Interest on such Distribution Date .
Class Z-3 Principal Reduction Amount : The Class Z Principal Reduction
Amount for the Class Z-3 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Z-3 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Z-4 Principal Distribution Amount: For any Distribution Date, the
excess, if any, of the Class Z-4 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Z-4 Regular Interest on such Distribution Date.
Class Z-4 Principal Reduction Amount : The Class Z Principal Reduction
Amount for the Class Z-4 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Z-4 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Z-5 Principal Distribution Amount: For any Distribution Date, the
excess, if any, of the Class Z-5 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Z-5 Regular Interest on such Distribution Date.
Class Z-5 Principal Reduction Amount : The Class Z Principal Reduction
Amount for the Class Z-5 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Z-5 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Class Z-6 Principal Distribution Amount: For any Distribution Date, the
excess, if any, of the Class Z-6 Principal Reduction Amount for such
Distribution Date over the principal portion of Realized Losses allocated to
the Class Z-6 Regular Interest on such Distribution Date.
Class Z-6 Principal Reduction Amount : The Class Z Principal Reduction
Amount for the Class Z-6 Regular Interest as determined pursuant to the
provisons of the Appendix 1.
Class Z-6 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is
entitled to distributions as set forth herein.
Closing Date: September 30, 2004.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest Payment: As defined in Section 6.06.
Corporate Trust Office: The designated office of the Trustee where at
any particular time its corporate trust business with respect to this
Agreement shall be administered, which office at the date of the execution of
this Agreement is located at 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Institutional Trust Services/Global Debt, Bear Xxxxxxx
ALT-A Trust 2004-11. For the purpose of registration and transfer and
exchange only, the Corporate Trust Office shall be located at 0000 Xxxxx
Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxx, 00000, Attn: ITS Transfer Department.
Countrywide: Countrywide Home Loans, Inc., and its successor in
interest.
Countrywide Servicing: Countrywide Home Loans Servicing LP, and its
successor in interest.
Countrywide Servicing Agreement: The Seller's Warranties and Servicing
Agreement, dated as of September 1, 2002, as amended, between Countrywide
Servicing and EMC attached hereto as Exhibit H-2.
Cross-Over Date: The first Distribution Date on which the aggregate
Certificate Principal Balance of the Group II Subordinate Certificates has
been reduced to zero.
Current Interest: As of any Distribution Date, with respect to each
Class of Group I Offered Certificates, (i) the interest accrued on the
Certificate Principal Balance or Notional Amount, as applicable, during the
related Interest Accrual Period at the applicable Pass-Through Rate plus any
amount previously distributed with respect to interest for such Certificate
that has been recovered as a voidable preference by a trustee in bankruptcy
minus (ii) the sum of (a) any Prepayment Interest Shortfall for such
Distribution Date, to the extent not covered by Compensating Interest
Payments and (b) any shortfalls resulting from the application of the Relief
Act during the related Due Period; provided, however, that for purposes of
calculating Current Interest for any such Class, amounts specified in clauses
(ii)(a) and (ii)(b) hereof for any such Distribution Date shall be allocated
first to the Class B-IO Certificates and the Residual Certificates in
reduction of amounts otherwise distributable to such Certificates on such
Distribution Date and then any excess shall be allocated to each other Class
of Certificates pro rata based on the respective amounts of interest accrued
pursuant to clause (i) hereof for each such Class on such Distribution Date.
Current Specified Overcollateralization Percentage: For any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is the Overcollateralization Target Amount, and the denominator of
which is the aggregate Stated Principal Balance of the Group I Mortgage Loans
for such Distribution Date.
Custodial Agreement: An agreement, dated as of the Closing Date among
the Depositor, the Master Servicer, the Trustee and the Custodian in
substantially the form of Exhibit G hereto.
Custodian: Xxxxx Fargo Bank, National Association, or any successor
custodian appointed pursuant to the provisions hereof and of the Custodial
Agreement.
Cut-off Date: September 1, 2004.
Cut-off Date Balance: $1,302,603,377.
Debt Service Reduction: Any reduction of the Scheduled Payments which
a Mortgagor is obligated to pay with respect to a Mortgage Loan as a result
of any proceeding under the Bankruptcy Code or any other similar state law or
other proceeding.
Deficient Valuation: With respect to any Mortgage Loan, a valuation of
the Mortgaged Property by a court of competent jurisdiction in an amount less
than the then outstanding indebtedness under the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy Code or
any other similar state law or other proceeding.
Delinquent: A Mortgage Loan is "Delinquent" if any payment due thereon
is not made pursuant to the terms of such Mortgage Loan by the close of
business on the day such payment is scheduled to be due. A Mortgage Loan is
"30 days delinquent" if such payment has not been received by the close of
business on the last day of the month immediately succeeding the month in
which such payment was due. For example, a Mortgage Loan with a payment due
on December 1 that remained unpaid as of the close of business on January 31
would then be considered to be 30 to 59 days delinquent. Similarly for "60
days delinquent," "90 days delinquent" and so on.
Depositor: Structured Asset Mortgage Investments II Inc., a Delaware
corporation, or its successors in interest.
Depository: The Depository Trust Company, the nominee of which is Cede
& Co., or any successor thereto.
Depository Agreement: The meaning specified in Section 5.01(a) hereof.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Designated Depository Institution: A depository institution
(commercial bank, federal savings bank, mutual savings bank or savings and
loan association) or trust company (which may include the Trustee), the
deposits of which are fully insured by the FDIC to the extent provided by law.
Determination Date: With respect to each Mortgage Loan, the
Determination Date as defined in the Servicing Agreement.
Disqualified Organization: Any of the following: (i) the United
States, any State or political subdivision thereof, any possession of the
United States, or any agency or instrumentality of any of the foregoing
(other than an instrumentality which is a corporation if all of its
activities are subject to tax and, except for the Xxxxxxx Mac or any
successor thereto, a majority of its board of directors is not selected by
such governmental unit), (ii) any foreign government, any international
organization, or any agency or instrumentality of any of the foregoing,
(iii) any organization (other than certain farmers' cooperatives described in
Section 521 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code (including the tax imposed by Section 511 of the Code on unrelated
business taxable income), (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code or (v) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the holding
of an ownership interest in a Residual Certificate by such Person may cause
any 2004-11 REMIC contained in the Trust or any Person having an ownership
interest in the Residual Certificate (other than such Person) to incur a
liability for any federal tax imposed under the Code that would not otherwise
be imposed but for the transfer of an ownership interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
Distribution Account: The trust account or accounts created and
maintained pursuant to Section 4.04, which shall be denominated "JPMorgan
Chase Bank, as Trustee f/b/o holders of Structured Asset Mortgage Investments
II Inc., Bear Xxxxxxx ALT-A Trust 2004-11, Mortgage Pass-Through
Certificates, Series 2004-11 - Distribution Account." The Distribution
Account shall be an Eligible Account.
Distribution Account Deposit Date: The Business Day prior to each
Distribution Date.
Distribution Date: The 25th day of any month, beginning in the month
immediately following the month of the Closing Date, or, if such 25th day is
not a Business Day, the Business Day immediately following.
DTC Custodian: JPMorgan Chase Bank, or its successors in interest as
custodian for the Depository.
Due Date: With respect to each Mortgage Loan, the date in each month
on which its Scheduled Payment is due if such due date is the first day of a
month and otherwise is deemed to be the first day of the following month or
such other date specified in the related Servicing Agreement.
Due Period: With respect to any Distribution Date and each Mortgage
Loan, the period commencing on the second day of the month preceding the
calendar month in which the Distribution Date occurs and ending at the close
of business on the first day of the month in which the Distribution Date
occurs.
Eligible Account: Any of (i) a segregated account maintained with a
federal or state chartered depository institution (A) the short-term
obligations of which are rated A-1 or better by Standard & Poor's and P-1 by
Xxxxx'x at the time of any deposit therein or (B) insured by the FDIC (to the
limits established by such Corporation), the uninsured deposits in which
account are otherwise secured such that, as evidenced by an Opinion of
Counsel (obtained by the Person requesting that the account be held pursuant
to this clause (i)) delivered to the Trustee prior to the establishment of
such account, the Certificateholders will have a claim with respect to the
funds in such account and a perfected first priority security interest
against any collateral (which shall be limited to Permitted Investments, each
of which shall mature not later than the Business Day immediately preceding
the Distribution Date next following the date of investment in such
collateral or the Distribution Date if such Permitted Investment is an
obligation of the institution that maintains the Distribution Account)
securing such funds that is superior to claims of any other depositors or
general creditors of the depository institution with which such account is
maintained, (ii) a segregated trust account or accounts maintained with a
federal or state chartered depository institution or trust company with trust
powers acting in its fiduciary capacity or (iii) a segregated account or
accounts of a depository institution acceptable to the Rating Agencies (as
evidenced in writing by the Rating Agencies that use of any such account as
the Distribution Account will not have an adverse effect on the then-current
ratings assigned to the Classes of Certificates then rated by the Rating
Agencies). Eligible Accounts may bear interest.
EMC: EMC Mortgage Corporation, and any successor thereto.
EMC Servicing Agreement: The Servicing Agreement, dated as of September
1, 2004, between Structured Asset Mortgage Investments II Inc. and EMC as
attached hereto as Exhibit H-3.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Event of Default: As defined in Section 8.01.
EverHome: EverHome Mortgage Company (formerly known as Alliance
Mortgage Corporation), and any successor thereto.
EverHome Servicing Agreement: The Servicing Agreement, dated as of June
1, 2003, between EverHome (as successor to Alliance Mortgage Company) and EMC
attached hereto as Exhibit H-4.
Excess Cashflow: With respect to any Distribution Date, the Remaining
Excess Spread for such Distribution Date; provided, however, that the Excess
Cashflow shall include Principal Funds on and after the Distribution Date on
which the aggregate Certificate Principal Balance of the Class I-A, Class
I-M-1, Class I-M-2, Class I-B-1 and Class I-B-2 Certificates has been reduced
to zero (other than Principal Funds otherwise distributed to the Holders of
Class I-A, Class I-M-1, Class I-M-2, Class I-B-1 and Class I-B-2 Certificates
on such Distribution Date).
Excess Liquidation Proceeds: To the extent that such amount is not
required by law to be paid to the related Mortgagor, the amount, if any, by
which Liquidation Proceeds with respect to a Liquidated Mortgage Loan exceed
the sum of (i) the Outstanding Principal Balance of such Mortgage Loan and
accrued but unpaid interest at the related Mortgage Interest Rate through the
last day of the month in which the related Liquidation Date occurs, plus
(ii) related Liquidation Expenses.
Excess Spread: With respect to any Distribution Date, the excess, if
any, of (i) the Interest Funds for such Distribution Date over (ii) the sum
of the Current Interest on the Group I Offered Certificates and Interest
Carry Forward Amounts on the Class I-A Certificates, in each case on such
Distribution Date.
Extra Principal Distribution Amount: With respect to any Distribution
Date, the lesser of (i) the excess, if any, of the Overcollateralization
Target Amount for such Distribution Date over the Overcollateralization
Amount for such Distribution Date and (ii) the Excess Spread for such
Distribution Date.
Xxxxxx Xxx: Federal National Mortgage Association and any successor
thereto.
FDIC: Federal Deposit Insurance Corporation and any successor thereto.
Final Certification: The certification substantially in the form of
Exhibit Three to the Custodial Agreement.
Fractional Undivided Interest: With respect to any Class of
Certificates, the fractional undivided interest evidenced by any Certificate
of such Class the numerator of which is the Certificate Principal Balance of
such Certificate and the denominator of which is the Certificate Principal
Balance of such Class. With respect to the Certificates in the aggregate,
the fractional undivided interest evidenced by (i) a Residual Certificate
will be deemed to equal 1.0% and (ii) a Certificate of any other Class will
be deemed to equal 99.0% multiplied by a fraction, the numerator of which is
the Certificate Principal Balance of such Certificate and the denominator of
which is the aggregate Certificate Principal Balance of all the Certificates.
Xxxxxxx Mac: Xxxxxxx Mac, formerly the Federal Home Loan Mortgage
Corporation, and any successor thereto.
Global Certificate: Any Private Certificate registered in the name of
the Depository or its nominee, beneficial interests in which are reflected on
the books of the Depository or on the books of a Person maintaining an
account with such Depository (directly or as an indirect participant in
accordance with the rules of such depository).
GreenPoint: GreenPoint Mortgage Funding, Inc., and any successor
thereto.
GreenPoint Servicing Agreement: The Purchase, Warranties and Servicing
Agreement, dated as of September 1, 2003, between GreenPoint and EMC attached
hereto as Exhibit H-5.
Gross Margin: As to each Mortgage Loan, the fixed percentage set forth
in the related Mortgage Note and indicated on the Mortgage Loan Schedule
which percentage is added to the related Index on each Interest Adjustment
Date to determine (subject to rounding, the minimum and maximum Mortgage
Interest Rate and the Periodic Rate Cap) the Mortgage Interest Rate until the
next Interest Adjustment Date.
Group I Certificates: The Group I Senior Certificates, the Group I
Subordinate Certificates and the Group I Non-Offered Subordinate Certificates.
Group I Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Group I Non-Offered Subordinate Certificates: The Class XP and the
Class B-IO Certificates.
Group I Offered Certificates: The Group I Senior Certificates and the
Group I Offered Subordinate Certificates.
Group I Offered Subordinate Certificates: The Class I-M-1, Class I-M-2,
Class I-B-1 and Class I-B-2 Certificates.
Group I Senior Certificates: The Class I-A Certificates.
Group I Subordinate Certificates: The Group I Offered Subordinate
Certificates and the Group I Non-Offered Subordinate Certificates.
Group II Certificates: The Group II Senior Certificates and the Group
II Subordinate Certificates.
Group II Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Group II Non-Offered Subordinate Certificates: The Class II-B-4, Class
II-B-5 and Class II-B-6.
Group II Offered Certificates: The Group II Senior Certificates and
the Group II Offered Subordinate Certificates.
Group II Offered Subordinate Certificates: The Class II-B-1, Class
II-B-2 and Class II-B-3 Certificates.
Group II Senior Certificates: The Class II-A-1, Class II-A-2, Class
II-A-3, Class II-A-4, Class II-A-5, Class II-X-A-5, Class II-A-6a and Class
II-A-6b Certificates.
Group II Subordinate Certificates: The Group II Offered Subordinate
Certificates and the Group II Non-Offered Subordinate Certificates.
Group II-1 Certificates: The Class II-A-1 Certificates.
Group II-1 Loans: The Mortgage Loans identified as such on the Mortgage
Loan Schedule.
Group II-2 Certificates: The Class II-A-2 Certificates.
Group II-2 Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Group II-3 Certificates: The Class II-A-3 Certificates.
Group II-3 Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Group II-4 Certificates: The Class II-A-4 Certificates.
Group II-4 Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Group II-5 Certificates: The Class II-A-5 Certificates and Class
II-X-A-5 Certificates.
Group II-5 Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Group II-6 Certificates: The Class II-A-6a Certificates and the Class
II-A-6b Certificates.
Group II-6 Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Holder: The Person in whose name a Certificate is registered in the
Certificate Register, except that, subject to Sections 11.02(b) and 11.05(e),
solely for the purpose of giving any consent pursuant to this Agreement, any
Certificate registered in the name of the Depositor, the Master Servicer or
the Trustee or any Affiliate thereof shall be deemed not to be outstanding
and the Fractional Undivided Interest evidenced thereby shall not be taken
into account in determining whether the requisite percentage of Fractional
Undivided Interests necessary to effect any such consent has been obtained.
Indemnified Persons: The Trustee, the Master Servicer, the Custodian
and the Securities Administrator and their officers, directors, agents and
employees and, with respect to the Trustee, any separate co-trustee and its
officers, directors, agents and employees.
Independent: When used with respect to any specified Person, this term
means that such Person (a) is in fact independent of the Depositor or the
Master Servicer and of any Affiliate of the Depositor or the Master Servicer,
(b) does not have any direct financial interest or any material indirect
financial interest in the Depositor or the Master Servicer or any Affiliate
of the Depositor or the Master Servicer and (c) is not connected with the
Depositor or the Master Servicer or any Affiliate as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing
similar functions.
Index: The index, if any, specified in a Mortgage Note by reference to
which the related Mortgage Interest Rate will be adjusted from time to time.
Individual Certificate: Any Private Certificate registered in the name
of the Holder other than the Depository or its nominee.
Initial Certification: The certification substantially in the form of
Exhibit One to the Custodial Agreement.
Institutional Accredited Investor: Any Person meeting the requirements
of Rule 501(a)(l), (2), (3) or (7) of Regulation D under the Securities Act
or any entity all of the equity holders in which come within such paragraphs.
Insurance Policy: With respect to any Mortgage Loan, any standard
hazard insurance policy, flood insurance policy or title insurance policy.
Insurance Proceeds: Amounts paid by the insurer under any Insurance
Policy covering any Mortgage Loan or Mortgaged Property other than amounts
required to be paid over to the Mortgagor pursuant to law or the related
Mortgage Note or Security Instrument and other than amounts used to repair or
restore the Mortgaged Property or to reimburse insured expenses, including
the related Servicer's costs and expenses incurred in connection with
presenting claims under the related Insurance Policies.
Interest Accrual Period: With respect to each Distribution Date, for
each Class of Group II Certificates, the calendar month preceding the month
in which such Distribution Date occurs. The Interest Accrual Period for the
Group I Offered Certificates will be the period from and including the
preceding distribution date (or from the Closing Date, in the case of the
first Distribution Date) to and including the day prior to the current
Distribution Date.
Interest Adjustment Date: With respect to a Mortgage Loan, the date,
if any, specified in the related Mortgage Note on which the Mortgage Interest
Rate is subject to adjustment.
Interest Carryforward Amount: As of the first Distribution Date and
with respect to each Class of Group I Offered Certificates, zero, and for
each Distribution Date thereafter, the sum of (i) the excess of (a) the
Current Interest for such Class with respect to prior Distribution Dates over
(b) the amount actually distributed to such Class of Group I Certificates
with respect to interest on or after such prior Distribution Dates and (ii)
interest thereon (to the extent permitted by applicable law) at the
applicable Pass-Through Rate for such Class for the related Interest Accrual
Period including the Interest Accrual Period relating to such Distribution
Date.
Interest Funds: For any Distribution Date and Loan Group I, (i) the
sum, without duplication, of (a) all scheduled interest collected in respect
to the related Group I Mortgage Loans during the related Due Period less the
related Servicing Fee, (b) all Monthly Advances relating to interest with
respect to the related Group I Mortgage Loans made on or prior to the related
Distribution Account Deposit Date, (c) all Compensating Interest Payments
with respect to the Group I Mortgage Loans and required to be remitted by the
Master Servicer pursuant to this Agreement or the related Servicer pursuant
to the related Servicing Agreement with respect to such Distribution Date,
(d) Liquidation Proceeds with respect to the related Group I Mortgage Loans
collected during the related Prepayment Period (or, in the case of Subsequent
Recoveries, during the related Due Period), to the extent such Liquidation
Proceeds relate to interest, (e) all amounts relating to interest with
respect to each related Group I Mortgage Loan purchased by EMC pursuant to
Sections 2.02 and 2.03 or by the Depositor pursuant to Section 3.21 during
the related Due Period and (f) all amounts in respect of interest paid by EMC
pursuant to Section 10.01 in respect to Loan Group I, in each case to the
extent remitted by EMC or its designee, as applicable, to the Distribution
Account pursuant to this Agreement minus (ii) all amounts relating to
interest required to be reimbursed pursuant to Sections 4.01, 4.03 and 4.05
or as otherwise set forth in this Agreement and allocated to Loan Group I.
Interest Shortfall: With respect to any Distribution Date and each
Mortgage Loan that during the related Prepayment Period was the subject of a
Principal Prepayment or constitutes a Relief Act Mortgage Loan, an amount
determined as follows:
(a) Partial principal prepayments received during the relevant
Prepayment Period: The difference between (i) one month's interest at the
applicable Net Rate on the amount of such prepayment and (ii) the amount of
interest for the calendar month of such prepayment (adjusted to the
applicable Net Rate) received at the time of such prepayment;
(b) Principal prepayments in full received during the relevant Prepayment
Period: The difference between (i) one month's interest at the applicable
Net Rate on the Stated Principal Balance of such Mortgage Loan immediately
prior to such prepayment and (ii) the amount of interest for the calendar
month of such prepayment (adjusted to the applicable Net Rate) received at
the time of such prepayment; and
(c) Relief Act Mortgage Loans: As to any Relief Act Mortgage Loan, the
excess of (i) 30 days' interest (or, in the case of a principal prepayment in
full, interest to the date of prepayment) on the Stated Principal Balance
thereof (or, in the case of a principal prepayment in part, on the amount so
prepaid) at the related Net Rate over (ii) 30 days' interest (or, in the case
of a principal prepayment in full, interest to the date of prepayment) on
such Stated Principal Balance (or, in the case of a Principal Prepayment in
part, on the amount so prepaid) at the annual interest rate required to be
paid by the Mortgagor as limited by application of the Relief Act.
Interim Certification: The certification substantially in the form of
Exhibit Two to the Custodial Agreement.
Investment Letter: The letter to be furnished by each Institutional
Accredited Investor which purchases any of the Private Certificates in
connection with such purchase, substantially in the form set forth as
Exhibit F-1 hereto.
Lender-Paid PMI Rate: With respect to each Mortgage Loan covered by a
lender-paid primary mortgage insurance policy, the premium to be paid by the
applicable Servicer out of interest collections on the related Mortgage Loan,
as stated in the Mortgage Loan Schedule.
LIBOR Business Day: Any day other than a Saturday or a Sunday or a day
on which banking institutions in the city of London, England are required or
authorized by law to be closed.
LIBOR Determination Date: With respect to each Class of Offered
Certificates and for the first Interest Accrual Period, September 28, 2004.
With respect to each Class of Offered Certificates and any Interest Accrual
Period thereafter, the second LIBOR Business Day preceding the commencement
of such Interest Accrual Period.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which the
Servicer or the Master Servicer has determined that all amounts it expects to
recover from or on account of such Mortgage Loan have been recovered.
Liquidation Date: With respect to any Liquidated Mortgage Loan, the
date on which the Master Servicer or the Servicer has certified that such
Mortgage Loan has become a Liquidated Mortgage Loan.
Liquidation Expenses: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the Master
Servicer or the Servicer in connection with the liquidation of such Mortgage
Loan and the related Mortgage Property, such expenses including (a) property
protection expenses, (b) property sales expenses, (c) foreclosure and sale
costs, including court costs and reasonable attorneys' fees, and (d) similar
expenses reasonably paid or incurred in connection with liquidation.
Liquidation Proceeds: Amounts received in connection with the
liquidation of a defaulted Mortgage Loan, whether through trustee's sale,
foreclosure sale, Insurance Proceeds, condemnation proceeds or otherwise and
Subsequent Recoveries.
Loan Group: Loan Group I, Loan Group II, Loan Group II-1, Loan Group
II-2, Loan Group II-3, Loan Group II-4, Loan Group II-5 or Loan Group II-6,
as applicable.
Loan Group I: The group of Mortgage Loans designated as belonging to
Loan Group I on the Mortgage Loan Schedule.
Loan Group II: Any of Loan Group II-1, Loan Group II-2, Loan Group
II-3, Loan Group II-4, Loan Group II-5 or Loan Group II-6.
Loan Group II-1: The group of Mortgage Loans designated as belonging
to Loan Group II-1 on the Mortgage Loan Schedule.
Loan Group II-2: The group of Mortgage Loans designated as belonging
to Loan Group II-2 on the Mortgage Loan Schedule.
Loan Group II-3: The group of Mortgage Loans designated as belonging
to Loan Group II-3 on the Mortgage Loan Schedule.
Loan Group II-4: The group of Mortgage Loans designated as belonging
to Loan Group II-4 on the Mortgage Loan Schedule.
Loan Group II-5: The group of Mortgage Loans designated as belonging
to Loan Group II-5 on the Mortgage Loan Schedule.
Loan Group II-6: The group of Mortgage Loans designated as belonging
to Loan Group II-6 on the Mortgage Loan Schedule.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the fraction,
expressed as a percentage, the numerator of which is the original principal
balance of the related Mortgage Loan and the denominator of which is the
Original Value of the related Mortgaged Property.
Loss Allocation Limitation: The meaning specified in Section 6.02.2(c)
hereof.
Loss Severity Percentage: With respect to any Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the amount of
Realized Losses incurred on a Mortgage Loan and the denominator of which is
the Stated Principal Balance of such Mortgage Loan immediately prior to the
liquidation of such Mortgage Loan.
Lost Notes: The original Mortgage Notes that have been lost, as
indicated on the Mortgage Loan Schedule.
Margin: With respect to any Distribution Date on or prior to the first
possible Optional Termination Date with respect to the Group I Mortgage Loans
and (i) with respect to the Class I-A-1 Certificates, 0.34% per annum, (ii)
with respect to the Class I-A-2 Certificates, 0.42% per annum, (iii) with
respect to the Class I-M-1 Certificates, 0.60% per annum, (iv) with respect
to the Class I-M-2 Certificates, 1.05% per annum, (v) with respect to the
Class I-B-1 Certificates, 1.80% per annum, and (vi) with respect to the Class
I-B-2 Certificates, 1.80% per annum; and with respect to any Distribution
Date after the first possible Optional Termination Date and (i) with respect
to the Class I-A-1 Certificates, 0.68% per annum, (ii) with respect to the
Class I-A-2 Certificates, 0.84% per annum, (iii) with respect to the Class
I-M-1 Certificates, 0.90% per annum, (iv) with respect to the Class I-M-2
Certificates, 1.575% per annum, (v) with respect to the Class I-B-1
Certificates, 2.70% per annum, and (vi) with respect to the Class I-B-2
Certificates, 2.70% per annum.
Marker Rate: With respect to the Class B-IO Certificates or the REMIC
IV Regular Interest B-IO-I and any Distribution Date, in relation to the
REMIC II Regular Interests LT1, LT2, LT3 and LT4, a per annum rate equal to
two (2) times the weighted average of the Uncertificated REMIC II
Pass-Through Rates for REMIC II Regular Interest LT2 and REMIC II Regular
Interest LT3. With respect to the Class B-IO Certificates or the REMIC III
Regular Interest B-IO-I and any Distribution Date, in relation to the
REMIC II Regular Interests LT5, LT6 and LT-Y2, a per annum rate equal to two
(2) times the weighted average of the Uncertificated REMIC II Pass-Through
Rates for REMIC II Regular Interest LT6.
Master Servicer: As of the Closing Date, Xxxxx Fargo Bank, National
Association and, thereafter, its respective successors in interest that meet
the qualifications of the Servicing Agreements and this Agreement.
Master Servicer Certification: A written certification covering
servicing of the Mortgage Loans by the Servicers and signed by an officer of
the Master Servicer that complies with (i) the Xxxxxxxx-Xxxxx Act of 2002, as
amended from time to time, and (ii) the February 21, 2003 Statement by the
Staff of the Division of Corporation Finance of the Securities and Exchange
Commission Regarding Compliance by Asset-Backed Issuers with Exchange Act
Rules 13a-14 and 15d-14, as in effect from time to time; provided that if,
after the Closing Date (a) the Xxxxxxxx-Xxxxx Act of 2002 is amended, (b) the
Statement referred to in clause (ii) is modified or superceded by any
subsequent statement, rule or regulation of the Securities and Exchange
Commission or any statement of a division thereof, or (c) any future
releases, rules and regulations are published by the Securities and Exchange
Commission from time to time pursuant to the Xxxxxxxx-Xxxxx Act of 2002,
which in any such case affects the form or substance of the required
certification and results in the required certification being, in the
reasonable judgment of the Master Servicer, materially more onerous than the
form of the required certification as of the Closing Date, the Master
Servicer Certification shall be as agreed to by the Master Servicer and the
Depositor following a negotiation in good faith to determine how to comply
with any such new requirements.
Master Servicer Collection Account: The trust account or accounts
created and maintained pursuant to Section 4.02, which shall be denominated
"JPMorgan Chase Bank, as Trustee f/b/o holders of Structured Asset Mortgage
Investments II Inc., Bear Xxxxxxx ALT-A Trust 2004-11, Mortgage Pass-Through
Certificates, Series 2004-11, Collection Account." The Master Servicer
Collection Account shall be an Eligible Account.
Master Servicing Compensation: The meaning specified in Section 3.14.
Material Defect: The meaning specified in Section 2.02(a).
Maximum Lifetime Mortgage Rate: The maximum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes
in the applicable Index.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor thereto.
MERS® System: The system of recording transfers of Mortgage Loans
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans registered
with MERS on the MERS® System.
Minimum Lifetime Mortgage Rate: The minimum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes
in the applicable Index.
MOM Loan: With respect to any Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination thereof.
Monthly Advance: An advance of principal or interest required to be
made by the applicable Servicer pursuant to the related Servicing Agreement
or the Master Servicer pursuant to Section 6.05.
Monthly Delinquency Percentage: With respect to a Distribution Date,
the percentage equivalent of a fraction, the numerator of which is the
aggregate Stated Principal Balance of the Group I Mortgage Loans that are 60
days or more Delinquent or are in bankruptcy or foreclosure or are REO
Properties for such Distribution Date and the denominator of which is the
aggregate Stated Principal Balance of Group I Mortgage Loans for such
Distribution Date.
Moody's: Xxxxx'x Investors Service, Inc. or its successor in interest.
Mortgage: The mortgage, deed of trust or other instrument creating a
first priority lien on an estate in fee simple or leasehold interest in real
property securing a Mortgage Loan.
Mortgage File: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan and any additional documents
required to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate at which interest accrues from
time to time on any Mortgage Loan pursuant to the related Mortgage Note,
which rate is initially equal to the "Mortgage Interest Rate" set forth with
respect thereto on the Mortgage Loan Schedule.
Mortgage Loan: A mortgage loan transferred and assigned to the Trustee
pursuant to Section 2.01 or Section 2.04 and held as a part of the Trust
Fund, as identified in the Mortgage Loan Schedule (which shall include,
without limitation, with respect to each Mortgage Loan, each related Mortgage
Note, Mortgage and Mortgage File and all rights appertaining thereto),
including a mortgage loan the property securing which has become an REO
Property.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase Agreement
dated as of September 30, 2004, between EMC, as seller, and Structured Asset
Mortgage Investments II Inc., as purchaser, and all amendments thereof and
supplements thereto, attached as Exhibit J.
Mortgage Loan Schedule: The schedule, attached hereto as Exhibit B
with respect to the Mortgage Loans and as amended from time to time to
reflect the repurchase or substitution of Mortgage Loans pursuant to this
Agreement.
Mortgage Note: The originally executed note or other evidence of the
indebtedness of a Mortgagor under the related Mortgage Loan.
Mortgaged Property: Land and improvements securing the indebtedness of
a Mortgagor under the related Mortgage Loan or, in the case of REO Property,
such REO Property.
Mortgagor: The obligor on a Mortgage Note.
Net Interest Shortfall: With respect to any Distribution Date, the
Interest Shortfall, if any, for such Distribution Date net of Compensating
Interest Payments made with respect to such Distribution Date.
Net Liquidation Proceeds: As to any Liquidated Mortgage Loan,
Liquidation Proceeds net of (i) Liquidation Expenses which are payable
therefrom to the Servicer or the Master Servicer in accordance with the
Servicing Agreement or this Agreement and (ii) unreimbursed advances by the
Servicer or the Master Servicer and Monthly Advances.
Net Rate: With respect to each Mortgage Loan, the Mortgage Interest
Rate in effect from time to time less the sum of (1) the Servicing Fee Rate
and (2) the Lender Paid PMI Rate, if any, attributable thereto, in each case
expressed as a per annum rate.
Net Rate Cap: For any Distribution Date and each of the Group I Offered
Certificates, the weighted average of the Net Rates of the Group I Mortgage
Loans as of the beginning of the related Due Period, weighted on the basis of
the Stated Principal Balances thereof as of the preceding Distribution Date,
as adjusted to an effective rate reflecting the accrual of interest on the
basis of a 360-day year and the actual number of days elapsed in the related
Interest Accrual Period. For federal income tax purposes, the Net Rate Cap
(a) with respect to the Group I Offered Certificates, is equal to the
Uncertificated REMIC II Pass-Through Rate for the REMIC II Regular Interests
LT1 and LT2, (b) with respect to the Class I-A-2 Certificates, is equal to
the Uncertificated Pass-Through Rate for the REMIC II Regular Interests LT5,
LT6 and LT-Y2 and (c) with respect to the Class M Certificates and Class I-B
Certificates is the weighted average of the Uncertificated REMIC II
Pass-Through Rates on the LT-Y1 and LT-Y2 REMIC II Regular Interests,
weighted on the basis of their respective Uncertificated Principal Balances.
Non-Offered Subordinate Certificates: The Group I Non-Offered
Subordinate Certificates and the Group II Non-Offered Subordinate
Certificates.
Nonrecoverable Advance: Any advance or Monthly Advance (i) which was
previously made or is proposed to be made by the Master Servicer, the Trustee
(as successor Master Servicer) or the applicable Servicer and (ii) which, in
the good faith judgment of the Master Servicer, the Trustee or the applicable
Servicer , will not or, in the case of a proposed advance or Monthly Advance,
would not, be ultimately recoverable by the Master Servicer, the Trustee (as
successor Master Servicer) or the applicable Servicer from Liquidation
Proceeds, Insurance Proceeds or future payments on the Mortgage Loan for
which such advance or Monthly Advance was made or is proposed to be made.
Notional Amount: The Notional Amount of (i) the Class II-X-A-5
Certificates immediately prior to any Distribution Date is equal to the
Certificate Principal Balance of the Class II-A-5 Certificates and (ii) the
Class B-IO Certificates immediately prior to any Distribution Date is equal
to the aggregate of the Uncertificated Principal Balances of the REMIC II
Regular Interests.
Offered Certificates: The Group I Offered Certificates and the Group
II Offered Certificates.
Offered Subordinate Certificates: The Group I Offered Subordinate
Certificates and the Group II Offered Subordinate Certificates.
Officer's Certificate: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a Vice President or
Assistant Vice President or other authorized officer of the Master Servicer
or the Depositor, as applicable, and delivered to the Trustee, as required by
this Agreement.
One-Month LIBOR: With respect to any Interest Accrual Period, the rate
determined by the Securities Administrator on the related LIBOR Determination
Date on the basis of the rate for U.S. dollar deposits for one month that
appears on Telerate Screen Page 3750 as of 11:00 a.m. (London time) on such
LIBOR Determination Date; provided that the parties hereto acknowledge that
One-Month LIBOR for the first Interest Accrual Period shall equal [1.84]% per
annum. If such rate does not appear on such page (or such other page as may
replace that page on that service, or if such service is no longer offered,
such other service for displaying One-Month LIBOR or comparable rates as may
be reasonably selected by the Securities Administrator), One-Month LIBOR for
the applicable Interest Accrual Period will be the Reference Bank Rate. If no
such quotations can be obtained by the Securities Administrator and no
Reference Bank Rate is available, One-Month LIBOR will be One-Month LIBOR
applicable to the preceding Interest Accrual Period.
Opinion of Counsel: A written opinion of counsel who is or are
acceptable to the Trustee and who, unless required to be Independent (an
"Opinion of Independent Counsel"), may be internal counsel for the Company,
the Master Servicer or the Depositor.
Optional Termination Date: With respect to the Group I Mortgage Loans,
the Distribution Date on which the aggregate Stated Principal Balance of the
Group I Mortgage Loans is less than 20% of the Cut-off Date Balance and with
respect to the Group II Mortgage Loans, the Distribution Date on which the
aggregate Stated Principal Balance of the Group II Mortgage Loans is less
than 10% of the Cut-off Date Balance.
Original Group II Subordinate Principal Balance: The sum of the
aggregate Certificate Principal Balances of each Class of Group II
Subordinate Certificates as of the Closing Date.
Original Value: The lesser of (i) the Appraised Value or (ii) the
sales price of a Mortgaged Property at the time of origination of a Mortgage
Loan, except in instances where either clauses (i) or (ii) is unavailable,
the other may be used to determine the Original Value, or if both clauses
(i) and (ii) are unavailable, Original Value may be determined from other
sources reasonably acceptable to the Depositor.
Outstanding Mortgage Loan: With respect to any Due Date, a Mortgage
Loan which, prior to such Due Date, was not the subject of a Principal
Prepayment in full, did not become a Liquidated Mortgage Loan and was not
purchased or replaced.
Outstanding Principal Balance: As of the time of any determination,
the principal balance of a Mortgage Loan remaining to be paid by the
Mortgagor, or, in the case of an REO Property, the principal balance of the
related Mortgage Loan remaining to be paid by the Mortgagor at the time such
property was acquired by the Trust Fund less any Net Liquidation Proceeds
with respect thereto to the extent applied to principal.
Overcollateralization Amount: With respect to any Distribution Date,
the excess, if any, of (a) the aggregate Stated Principal Balance of the
Group I Mortgage Loans for such Distribution Date over (b) the aggregate
Certificate Principal Balance of the Group I Offered Certificates on such
Distribution Date (after taking into account the payment of principal other
than any Extra Principal Distribution Amount on such Certificates).
Overcollateralization Target Amount: $2,851,471.
Pass-Through Rate: As to each Class of Certificates, the REMIC I
Regular Interests and REMIC II Regular Interests, the rate of interest
determined as provided with respect thereto, in Section 5.01(c). Any monthly
calculation of interest at a stated rate shall be based upon annual interest
at such rate divided by twelve.
Periodic Rate Cap: With respect to each Mortgage Loan, the maximum
adjustment that can be made to the Mortgage Interest Rate on each Interest
Adjustment Date in accordance with its terms, regardless of changes in the
applicable Index.
Permitted Investments: Any one or more of the following obligations or
securities held in the name of the Trustee for the benefit of the
Certificateholders:
(i) direct obligations of, and obligations the timely payment of which are
fully guaranteed by the United States of America or any agency or
instrumentality of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America;
(ii) (a) demand or time deposits, federal funds or bankers' acceptances
issued by any depository institution or trust company incorporated under the
laws of the United States of America or any state thereof (including the
Trustee or the Master Servicer or its Affiliates acting in its commercial
banking capacity) and subject to supervision and examination by federal
and/or state banking authorities, provided that the commercial paper and/or
the short-term debt rating and/or the long-term unsecured debt obligations of
such depository institution or trust company at the time of such investment
or contractual commitment providing for such investment have the Applicable
Credit Rating or better from each Rating Agency and (b) any other demand or
time deposit or certificate of deposit that is fully insured by the Federal
Deposit Insurance Corporation;
(iii) repurchase obligations with respect to (a) any security described in
clause (i) above or (b) any other security issued or guaranteed by an agency
or instrumentality of the United States of America, the obligations of which
are backed by the full faith and credit of the United States of America, in
either case entered into with a depository institution or trust company
(acting as principal) described in clause (ii)(a) above where the Trustee
holds the security therefor;
(iv) securities bearing interest or sold at a discount issued by any
corporation (including the Trustee or the Master Servicer or its Affiliates)
incorporated under the laws of the United States of America or any state
thereof that have the Applicable Credit Rating or better from each Rating
Agency at the time of such investment or contractual commitment providing for
such investment; provided, however, that securities issued by any particular
corporation will not be Permitted Investments to the extent that investments
therein will cause the then outstanding principal amount of securities issued
by such corporation and held as part of the Trust to exceed 10% of the
aggregate Outstanding Principal Balances of all the Mortgage Loans and
Permitted Investments held as part of the Trust;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
having the Applicable Credit Rating or better from each Rating Agency at the
time of such investment;
(vi) a Reinvestment Agreement issued by any bank, insurance company or other
corporation or entity;
(vii) any other demand, money market or time deposit, obligation, security or
investment as may be acceptable to each Rating Agency as evidenced in writing
by each Rating Agency to the Trustee; and
(viii) any money market or common trust fund having the Applicable
Credit Rating or better from each Rating Agency, including any such fund for
which the Trustee or the Master Servicer or any affiliate of the Trustee or
the Master Servicer acts as a manager or an advisor; provided, however, that
no instrument or security shall be a Permitted Investment if such instrument
or security evidences a right to receive only interest payments with respect
to the obligations underlying such instrument or if such security provides
for payment of both principal and interest with a yield to maturity in excess
of 120% of the yield to maturity at par or if such instrument or security is
purchased at a price greater than par.
Permitted Transferee: Any Person other than a Disqualified
Organization or an "electing large partnership" (as defined by Section 775 of
the Code).
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Physical Certificates: The Residual Certificates and the Private
Certificates.
Plan: The meaning specified in Section 5.07(a).
Prepayment Charge: With respect to any Mortgage Loan, the charges or
premiums, if any, due in connection with a full or partial prepayment of such
Mortgage Loan in accordance with the terms thereof.
Prepayment Charge Loan: Any Group I Mortgage Loan for which a
Prepayment Charge may be assessed and to which such Prepayment Charge the
Class XP Certificates are entitled, as indicated on the Mortgage Loan
Schedule.
Prepayment Interest Shortfall: With respect to any Distribution Date,
for each Mortgage Loan that was the subject of a partial Principal Prepayment
or a Principal Prepayment in full during the related Prepayment Period (other
than a Principal Prepayment in full resulting from the purchase of a Group I
Mortgage Loan pursuant to Section 2.02, 2.03, 3.21 or 10.01 hereof), the
amount, if any, by which (i) one month's interest at the applicable Net Rate
on the Stated Principal Balance of such Group I Mortgage Loan immediately
prior to such prepayment or in the case of a partial Principal Prepayment on
the amount of such prepayment exceeds (ii) the amount of interest paid or
collected in connection with such Principal Prepayment less the sum of (a)
any Prepayment Charges and (b) the related Servicing Fee.
Prepayment Period: With respect to a Distribution Date, the
immediately preceding calendar month in the case of the Mortgage Loans for
which EMC is the Servicer and in the case of the Mortgage Loans for which EMC
is not the Servicer, such period as is provided in the related Servicing
Agreement with respect to the related Servicer.
Primary Mortgage Insurance Policy: Any primary mortgage guaranty
insurance policy issued in connection with a Mortgage Loan which provides
compensation to a Mortgage Note holder in the event of default by the obligor
under such Mortgage Note or the related Security Instrument, if any or any
replacement policy therefor through the related Interest Accrual Period for
such Class relating to a Distribution Date.
Principal Distribution Amount: With respect to each Distribution Date,
an amount equal to the sum of (i) the Principal Funds for such Distribution
Date and (ii) any Extra Principal Distribution Amount for such Distribution
Date.
Principal Funds: the sum, without duplication, of
1. the Scheduled Principal collected on the Group I Mortgage Loans
during the related Due Period or advanced on or before the
related servicer advance date,
2. prepayments in respect of the Group I Mortgage Loans, exclusive
of any prepayment charges, collected in the related Prepayment
Period,
3. the Stated Principal Balance of each Group I Mortgage Loan that
was repurchased by the Depositor or the related Servicer during
the related Due Period,
4. the amount, if any, by which the aggregate unpaid principal
balance of any Substitute Mortgage Loans is less than the
aggregate unpaid principal balance of any deleted mortgage loans
delivered by the related Servicer in connection with a
substitution of a Group I Mortgage Loan during the related Due
Period,
5. all Liquidation Proceeds collected during the related Prepayment
Period (or in the case of Subsequent Recoveries, during the
related Due Period) on the Group I Mortgage Loans, to the extent
such Liquidation Proceeds relate to principal, less all related
Nonrecoverable Advances relating to principal reimbursed during
the related Due Period,
6. the principal portion of the purchase price of the assets of the
Trust allocated to Loan Group I upon the exercise by EMC or its
designee of its optional termination right with respect to the
Group I Mortgage Loans; minus
7. any amounts required to be reimbursed to EMC, the Depositor, a
Servicer, the Master Servicer, the Custodian, the Trustee or the
Securities Administrator and allocated to Loan Group I, as
provided in the Agreement.
Principal Prepayment: Any payment (whether partial or full) or other
recovery of principal on a Mortgage Loan which is received in advance of its
scheduled Due Date to the extent that it is not accompanied by an amount as
to interest representing scheduled interest due on any date or dates in any
month or months subsequent to the month of prepayment, including Insurance
Proceeds and Repurchase Proceeds, but excluding the principal portion of Net
Liquidation Proceeds received at the time a Mortgage Loan becomes a
Liquidation Mortgage Loan.
Private Certificates: The Class B-IO, Class XP, Class II-B-4,
Class II-B-5 and Class II-B-6 Certificates.
Prospectus: The prospectus, dated May 14, 2004, as supplemented by the
prospectus supplement dated September 29, 2004, relating to the offering of
the Offered Certificates.
Protected Account: An account established and maintained for the
benefit of Certificateholders by each Servicer with respect to the related
Mortgage Loans and with respect to REO Property pursuant to the related
Servicing Agreement.
QIB: A Qualified Institutional Buyer as defined in Rule 144A
promulgated under the Securities Act.
Qualified Insurer: Any insurance company duly qualified as such under
the laws of the state or states in which the related Mortgaged Property or
Mortgaged Properties is or are located, duly authorized and licensed in such
state or states to transact the type of insurance business in which it is
engaged and approved as an insurer by the Master Servicer, so long as the
claims paying ability of which is acceptable to the Rating Agencies for
pass-through certificates having the same rating as the Certificates rated by
the Rating Agencies as of the Closing Date.
Rating Agencies: Xxxxx'x and S&P.
Realized Loss: Any (i) Bankruptcy Loss or (ii) as to any Liquidated
Mortgage Loan, (x) the Outstanding Principal Balance of such Liquidated
Mortgage Loan plus accrued and unpaid interest thereon at the Mortgage
Interest Rate through the last day of the month of such liquidation, less (y)
the related Net Liquidation Proceeds with respect to such Mortgage Loan and
the related Mortgaged Property that are allocated to principal. In addition,
to the extent the Master Servicer receives Subsequent Recoveries with respect
to any Mortgage Loan, the amount of the Realized Loss with respect to that
Mortgage Loan will be reduced to the extent such recoveries are applied to
reduce the Certificate Principal Balance of any Class of Certificates on any
Distribution Date.
Realized Losses on the Mortgage Loans shall be allocated to the REMIC I
Regular Interests as follows: (1) The interest portion of Realized Losses and
Net Interest Shortfalls on the Group II-1 Loans, if any, shall be allocated
between the Class Y-1 and Class Z-1 Regular Interests pro rata according to
the amount of interest accrued but unpaid thereon, in reduction thereof; (2)
the interest portion of Realized Losses and Net Interest Shortfalls on the
Group II-2 Loans, if any, shall be allocated between the Class Y-2 and Class
Z-2 Regular Interests pro rata according to the amount of interest accrued
but unpaid thereon, in reduction thereof; (3) the interest portion of
Realized Losses and Net Interest Shortfalls on the Group II-3 Loans, if any,
shall be allocated between the Class Y-3 and Class Z-3 Regular Interests pro
rata according to the amount of interest accrued but unpaid thereon, in
reduction thereof; (4) the interest portion of Realized Losses and Net
Interest Shortfalls on the Group II-4 Loans, if any, shall be allocated
between the Class Y-4 and Class Z-4 Regular Interests pro rata according to
the amount of interest accrued but unpaid thereon, in reduction thereof; (5)
the interest portion of Realized Losses and Net Interest Shortfalls on the
Group II-5 Loans, if any, shall be allocated between the Class Y-5 and Class
Z-5 Regular Interests pro rata according to the amount of interest accrued
but unpaid thereon, in reduction thereof; and (6) the interest portion of
Realized Losses and Net Interest Shortfalls on the Group II-6 Loans, if any,
shall be allocated between the Class Y-6 and Class Z-6 Regular Interests pro
rata according to the amount of interest accrued but unpaid thereon, in
reduction thereof. Any interest portion of such Realized Losses in excess of
the amount allocated pursuant to the preceding sentence shall be treated as a
principal portion of Realized Losses not attributable to any specific
Mortgage Loan in such Group and allocated pursuant to the succeeding
sentences. The principal portion of Realized Losses with respect to the
Mortgage Loans shall be allocated to the REMIC I Regular Interests as
follows: (1) the principal portion of Realized Losses on the Group II-1 Loans
shall be allocated, first, to the Class Y-1 Regular Interest to the extent of
the Class Y-1 Principal Reduction Amount in reduction of the Uncertificated
Principal Balance of such Regular Interest and, second, the remainder, if
any, of such principal portion of such Realized Losses shall be allocated to
the Class Z-1 Regular Interest in reduction of the Uncertificated Principal
Balance thereof; (2) the principal portion of Realized Losses on the Group
II-2 Loans shall be allocated, first, to the Class Y-2 Regular Interest to
the extent of the Class Y-2 Principal Reduction Amount in reduction of the
Uncertificated Principal Balance of such Regular Interest and, second, the
remainder, if any, of such principal portion of such Realized Losses shall be
allocated to the Class Z-2 Regular Interest in reduction of the
Uncertificated Principal Balance thereof; (3) the principal portion of
Realized Losses on the Group II-3 Loans shall be allocated, first, to the
Class Y-3 Regular Interest to the extent of the Class Y-3 Principal Reduction
Amount in reduction of the Uncertificated Principal Balance of such Regular
Interest and, second, the remainder, if any, of such principal portion of
such Realized Losses shall be allocated to the Class Z-3 Regular Interest in
reduction of the Uncertificated Principal Balance thereof; (4) the principal
portion of Realized Losses on the Group II-4 Loans shall be allocated, first,
to the Class Y-4 Regular Interest to the extent of the Class Y-4 Principal
Reduction Amount in reduction of the Uncertificated Principal Balance of such
Regular Interest and, second, the remainder, if any, of such principal
portion of such Realized Losses shall be allocated to the Class Z-4 Regular
Interest in reduction of the Uncertificated Principal Balance thereof; (5)
the principal portion of Realized Losses on the Group II-5 Loans shall be
allocated, first, to the Class Y-5 Regular Interest to the extent of the
Class Y-5 Principal Reduction Amount in reduction of the Uncertificated
Principal Balance of such Regular Interest and, second, the remainder, if
any, of such principal portion of such Realized Losses shall be allocated to
the Class Z-5 Regular Interest in reduction of the Uncertificated Principal
Balance thereof; and (6) the principal portion of Realized Losses on the
Group II-6 Loans shall be allocated, first, to the Class Y-6 Regular Interest
to the extent of the Class Y-6 Principal Reduction Amount in reduction of the
Uncertificated Principal Balance of such Regular Interest and, second, the
remainder, if any, of such principal portion of such Realized Losses shall be
allocated to the Class Z-6 Regular Interest in reduction of the
Uncertificated Principal Balance thereof. For any Distribution Date,
reductions in the Uncertificated Principal Balances of the Class Y and Class
Z Regular Interest pursuant to this definition of Realized Loss shall be
determined, and shall be deemed to occur, prior to any reductions of such
Uncertificated Principal Balances by distributions on such Distribution Date.
Record Date: For each Class of Group I Certificates, the Business Day
preceding the applicable Distribution Date so long as such Class of
Certificates remains in book-entry form; and otherwise, the close of business
on the last Business Day of the month immediately preceding the month of such
Distribution Date. For each Class of Group II Certificates, the close of
business on the last Business Day of the month immediately preceding the
month of such Distribution Date.
Reference Bank: A leading bank selected by the Securities Administrator
that is engaged in transactions in Eurodollar deposits in the international
Eurocurrency market.
Reference Bank Rate: With respect to any Interest Accrual Period, the
arithmetic mean, rounded upwards, if necessary, to the nearest whole multiple
of 0.03125%, of the offered rates for United States dollar deposits for one
month that are quoted by the Reference Banks as of 11:00 a.m., New York City
time, on the related interest determination date to prime banks in the London
interbank market for a period of one month in amounts approximately equal to
the aggregate Certificate Principal Balance of all Classes of Group I Offered
Certificates for such Interest Accrual Period, provided that at least two
such Reference Banks provide such rate. If fewer than two offered rates
appear, the Reference Bank Rate will be the arithmetic mean, rounded upwards,
if necessary, to the nearest whole multiple of 0.03125%, of the rates quoted
by one or more major banks in New York City, selected by the securities
administrator, as of 11:00 a.m., New York City time, on such date for loans
in U.S. dollars to leading European banks for a period of one month in
amounts approximately equal to the aggregate Certificate Principal Balance of
all Classes of Group I Offered Certificates.
Reinvestment Agreements: One or more reinvestment agreements,
acceptable to the Rating Agencies, from a bank, insurance company or other
corporation or entity (including the Trustee).
Related Certificates (A) For each class of REMIC III Regular
Interests, the Class or Classes of Certificates show opposite the name of
such REMIC III Regular Interest in the following table:
REMIC III Regular Interest Classes of Certificates
XX-X-0 XX-X-0
XX-X-0 XX-X-0
XX-X-0 XX-X-0
XX-X-0 XX-X-0
XX-X-0 XX-X-0; II-X-A-5
II-A-6A II-A-6A
XX-X-0X XX-X-0X
XX-X-0 XX-X-0
XX-X-0 XX-X-0
II-B-3 II-B-3
XX-X-0 XX-X-0
XX-X-0 XX-X-0
XX-X-0 XX-X-0
For each class of REMIC IV Regular Interest, , the Class or Classes of
Certificates show opposite the name of such REMIC III Regular Interest in the
following table:
---------------------------------------------------------------------------------
REMIC IV Regular Interest Classes of Certificates
X-X-0 X-X-0
X-X-0 X-X-0
I-M-1 I-M-1
I-M-2 I-M-2
X-X-0 X-X-0
X-X-0 X-X-0
X-P X-P
B-IO-I and B-IO-P B-IO
II-A-1 II-A-1
II-A-2 II-A-2
XX-X-0 XX-X-0
XX-X-0 XX-X-0
XX-X-0 XX-X-0
II-X-A-5 II-X-A-5
II-A-6A II-A-6A
II-A-6B XX-X-0X
XX-X-0 XX-X-0
XX-X-0 XX-X-0
XX-X-0 II-B-3
XX-X-0 XX-X-0
XX-X-0 XX-X-0
XX-X-0 XX-X-0
Relief Act: The Servicemembers Civil Relief Act, as amended, or
similar state law.
Relief Act Mortgage Loan: Any Mortgage Loan as to which the Scheduled
Payment thereof has been reduced due to the application of the Relief Act.
Remaining Excess Spread: With respect to any Distribution Date, the
excess of the Excess Spread over the Extra Principal Distribution Amount for
such Distribution Date.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
REMIC Administrator: The Trustee; provided that if the REMIC
Administrator is found by a court of competent jurisdiction to no longer be
able to fulfill its obligations as REMIC Administrator under this Agreement
the Servicer or Trustee acting as Servicer shall appoint a successor REMIC
Administrator, subject to assumption of the REMIC Administrator obligations
under this Agreement.
REMIC Interest: Any of REMIC I, REMIC II, REMIC III and REMIC IV
Interests.
REMIC Opinion: An Opinion of Independent Counsel, to the effect that
the proposed action described therein would not, under the REMIC Provisions,
(i) cause any 2004-11 REMIC to fail to qualify as a REMIC while any regular
interest in such 2004-11 REMIC is outstanding, (ii) result in a tax on
prohibited transactions with respect to any 2004-11 REMIC or (iii) constitute
a taxable contribution to any 2004-11 REMIC after the Startup Day.
REMIC Provisions: The provisions of the federal income tax law
relating to REMICs, which appear at Sections 860A through 860G of the Code,
and related provisions and regulations promulgated thereunder, as the
foregoing may be in effect from time to time.
REMIC Regular Interest: Any of REMIC I, REMIC II, REMIC III and REMIC
IV Regular Interests.
REMIC I: The segregated pool of assets, with respect to which a REMIC
election is made pursuant to this Agreement, consisting of:
(a) the Group II Mortgage Loans and the related Mortgage Files and
collateral securing such Group II Mortgage Loans,
(b) all payments on and collections in respect of the Group II
Mortgage Loans due after the Cut-off Date as shall be on deposit in the
Master Servicer Collection Account or in the Distribution Account and
identified as belonging to the Trust Fund,
(c) property that secured a Group II Mortgage Loan and that has been
acquired for the benefit of the Certificateholders by foreclosure or deed in
lieu of foreclosure,
(d) the hazard insurance policies and Primary Mortgage Insurance
Policies, if any, relating to the Group II Mortgage Loans, and
(e) all proceeds of clauses (a) through (d) above.
REMIC I Available Distribution Amount: For each of the Group II Loan
Groups for any Distribution Date, the Available Funds for such Loan Group,
or, if the context so requires the aggregate of the Available Funds for all
Group II Loan Groups.
REMIC I Distribution Amount: For any Distribution Date, the REMIC I
Available Distribution Amount shall be distributed to the REMIC I Regular
Interests and the Class R Residual Interest in the following amounts and
priority:
(a) To the extent of the REMIC I Available Distribution Amount
for Loan Group II-1:
(i) first, to Class Y-1 and Class Z-1 Regular Interests and
Component I of the Class R Certificates, concurrently, the
Uncertificated Interest for such Classes remaining unpaid from previous
Distribution Dates, pro rata according to their respective shares of
such unpaid amounts;
(ii) second, to the Class Y-1 and Class Z-1 Regular Interests
and Component I of the Class R Certificates, concurrently, the
Uncertificated Interest for such Classes for the current Distribution
Date, pro rata according to their respective Uncertificated Interest;
(iii) third, to Component I of the Class R Certificates, until
the Uncertificated Principal Balance thereof has been reduced to zero;
and
(iv) fourth, to the Class Y-1 and Class Z-1 Regular Interests,
the Class Y-1 Principal Distribution Amount and the Class Z-1 Principal
Distribution Amount, respectively.
(b) To the extent of the REMIC I Available Distribution Amount for
Loan Group II-2:
(i) first, to the Class Y-2 and Class Z-2 Regular Interests,
concurrently, the Uncertificated Interest for such Classes remaining
unpaid from previous Distribution Dates, pro rata according to their
respective shares of such unpaid amounts;
(ii) second, to the Class Y-2 and Class Z-2 Regular Interests,
concurrently, the Uncertificated Interest for such Classes for the
current Distribution Date, pro rata according to their respective
Uncertificated Interest; and
(iii) third, to the Class Y-2 and Class Z-2 Regular Interests,
the Class Y-2 Principal Distribution Amount and the Class Z-2 Principal
Distribution Amount, respectively.
(c) To the extent of the REMIC I Available Distribution Amount for
Loan Group II-3:
(i) first, to the Class Y-3 and Class Z-3 Regular Interests,
concurrently, the Uncertificated Interest for such Classes remaining
unpaid from previous Distribution Dates, pro rata according to their
respective shares of such unpaid amounts;
(ii) second, to the Class Y-3 and Class Z-3 Regular Interests,
concurrently, the Uncertificated Interest for such Classes for the
current Distribution Date, pro rata according to their respective
Uncertificated Interest; and
(iii) third, to the Class Y-3 and Class Z-3 Regular Interests,
the Class Y-3 Principal Distribution Amount and the Class Z-3 Principal
Distribution Amount, respectively.
(d) To the extent of the REMIC I Available Distribution Amount for
Loan Group II-4:
(i) first, to the Class Y-4 and Class Z-4 Regular Interests,
concurrently, the Uncertificated Interest for such Classes remaining
unpaid from previous Distribution Dates, pro rata according to their
respective shares of such unpaid amounts;
(ii) second, to the Class Y-4 and Class Z-4 Regular Interests,
concurrently, the Uncertificated Interest for such Classes for the
current Distribution Date, pro rata according to their respective
Uncertificated Interest; and
(iii) third, to the Class Y-4 and Class Z-4 Regular Interests,
the Class Y-4 Principal Distribution Amount and the Class Z-4 Principal
Distribution Amount, respectively.
(e) To the extent of the REMIC I Available Distribution Amount for
Loan Group II-5:
(i) first, to the Class Y-5 and Class Z-5 Regular Interests,
concurrently, the Uncertificated Interest for such Classes remaining
unpaid from previous Distribution Dates, pro rata according to their
respective shares of such unpaid amounts;
(ii) second, to the Class Y-5 and Class Z-5 Regular Interests,
concurrently, the Uncertificated Interest for such Classes for the
current Distribution Date, pro rata according to their respective
Uncertificated Interest; and
(iii) third, to the Class Y-5 and Class Z-5 Regular Interests,
the Class Y-5 Principal Distribution Amount and the Class Z-5 Principal
Distribution Amount, respectively.
(f) To the extent of the REMIC I Available Distribution Amount for
Loan Group II-6:
(i) first, to the Class Y-6 and Class Z-6 Regular Interests,
concurrently, the Uncertificated Interest for such Classes remaining
unpaid from previous Distribution Dates, pro rata according to their
respective shares of such unpaid amounts;
(ii) second, to the Class Y-6 and Class Z-6 Regular Interests,
concurrently, the Uncertificated Interest for such Classes for the
current Distribution Date, pro rata according to their respective
Uncertificated Interest; and
(iii) third, to the Class Y-6 and Class Z-6 Regular Interests,
the Class Y-6 Principal Distribution Amount and the Class Z-6 Principal
Distribution Amount, respectively.
(g) To the extent of the REMIC I Available Distribution Amounts for
Loan Group II-1, Loan Group II-2, Loan Group II-3, Loan Group II-4, Loan
Group II-5 and Loan Group II-6 for such Distribution Date remaining after
payment of the amounts pursuant to paragraphs (a), (b), (c), (d), (e) and (f)
of this definition of "REMIC I Distribution Amount":
(i) first, to each Class of Class Y and Class Z Regular
Interests, pro rata according to the amount of unreimbursed Realized
Losses allocable to principal previously allocated to each such Class;
provided, however, that any amounts distributed pursuant to this
paragraph (d)(i) of this definition of "REMIC I Distribution Amount"
shall not cause a reduction in the Uncertificated Principal Balances of
any of the Class Y and Class Z Regular Interests; and
(ii) second, to the Component I of the Class R Certificates, the
Residual Distribution Amount for Component I of the Class R
Certificates for such Distribution Date.
REMIC I Interest: The REMIC I Regular Interests and Component I of the
Class R Certificates.
REMIC I Regular Interest: Any of the separate non-certificated
beneficial ownership interests in REMIC I set forth in Section 5.01(c) and
issued hereunder and designated as a "regular interest" in REMIC I. Each
REMIC I Regular Interest shall accrue interest at the Uncertificated
Pass-Through Rate specified for such REMIC I Interest in Section 5.01(c), and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in Section 5.01(c). The designations for the
respective REMIC I Regular Interests are set forth in Section 5.01(c).
REMIC II: (a)the Group I Mortgage Loans and the related Mortgage Files
and collateral securing such Group I Mortgage Loans, (b) all payments on
and collections in respect of the Group I Mortgage Loans due after the Cut
off Date as shall be on deposit in the Master Servicer Collection Account or
in the Distribution Account and identified as belonging to the Trust Fund,
(c) property that secured a Group I Mortgage Loan and that has been
acquired for the benefit of the Certificateholders by foreclosure or deed in
lieu of foreclosure, (d) the hazard insurance policies and Primary
Mortgage Insurance Policies, if any, related to the Group I Mortgage Loans
and (e) all proceeds of clauses (a) through (d) above.
REMIC II Available Distribution Amount: For any Distribution Date, the
Available Funds for Loan Group II.
REMIC II Distribution Amount: For any Distribution Date, the REMIC II
Available Distribution Amount shall be distributed by REMIC II to REMIC IV on
account of the REMIC II Regular Interests and to the Class R Certificates in
respect of Component II thereof, in the following order of priority:
1. to REMIC IV as the holder of REMIC II Regular Interest LT1, REMIC
II Regular Interest LT2, REMIC II Regular Interest LT3 and REMIC II Regular
Interest LT4, pro rata, in an amount equal to (A) their Uncertificated
Accrued Interest for such Distribution Date, plus (B) any amounts in respect
thereof remaining unpaid from previous Distribution Dates; and
2. on each Distribution Date, to REMIC IV as the holder of the
REMIC II Regular Interests, in an amount equal to the remainder of the REMIC
II Available Distribution Amount after the distributions made pursuant to
clause (i) above, allocated as follows:
(A) in respect of the REMIC I Regular Interest LT2, REMIC I
Regular Interest LT3 and REMIC I Regular Interest LT4, their respective
Principal Distribution Amounts;
(B) in respect of the REMIC I Regular Interest LT1 any
remainder until the Uncertificated Principal Balance thereof is reduced
to zero;
(C) any remainder in respect of the REMIC I Regular Interest
LT2, REMIC I Regular Interest LT3 and REMIC I Regular Interest LT4, pro
rata according to their respective Uncertificated Principal Balances as
reduced by the distributions deemed made pursuant to (i) above, until
their respective Uncertificated Principal Balances are reduced to zero;
and
(D) any remaining amounts to the Holders of the Class R
Certificates.
REMIC II Interests: The REMIC II Regular Interests and Component II of
the Class R Certificates.
REMIC II Principal Reduction Amounts: For any Distribution Date, the
amounts by which the principal balances of the REMIC II Regular Interests
LT1, LT2, LT3 and LT4, respectively, will be reduced on such Distribution
Date by the allocation of Realized Losses and the distribution of principal,
determined as follows:
For purposes of the succeeding formulas the following symbols shall
have the meanings set forth below:
Y1 = the principal balance of the REMIC II Regular Interest LT1 after
distributions on the prior Distribution Date.
Y2 = the principal balance of the REMIC II Regular Interest LT2 after
distributions on the prior Distribution Date.
Y3 = the principal balance of the REMIC II Regular Interest LT3 after
distributions on the prior Distribution Date.
Y4 = the principal balance of the REMIC II Regular Interest LT4 after
distributions on the prior Distribution Date (note: Y3 = Y4).
ΔY1 = the REMIC II Regular Interest LT1 Principal Reduction Amount.
ΔY2 = the REMIC II Regular Interest LT2 Principal Reduction Amount.
ΔY3 = the REMIC II Regular Interest LT3 Principal Reduction Amount.
ΔY4 = the REMIC II Regular Interest LT4 Principal Reduction Amount.
P0 = the aggregate principal balance of the REMIC II Regular Interests
LT1, LT2, LT3 and LT4 after distributions and the allocation of Realized
Losses on the prior Distribution Date.
P1 = the aggregate principal balance of the REMIC II Regular Interests
LT1, LT2, LT3 and LT4 after distributions and the allocation of Realized
Losses to be made on such Distribution Date.
ΔP = P0 - P1 = the aggregate of the REMIC II Regular Interests LT1,
LT2, LT3 and LT4 Principal Reduction Amounts.
= the aggregate of the principal portions of Realized Losses
to be allocated to, and the principal distributions to be made on, the Group
I Certificates on such Distribution Date (including distributions of accrued
and unpaid interest on the Class SB-I Certificates for prior Distribution
Dates).
R0 = the Group I Net WAC Cap Rate (stated as a monthly rate) after
giving effect to amounts distributed and Realized Losses allocated on the
prior Distribution Date.
R1 = the Group I Net WAC Cap Rate (stated as a monthly rate) after
giving effect to amounts to be distributed and Realized Losses to be
allocated on such Distribution Date.
α = (Y2 + Y3)/P0. The initial value of α on the Closing Date for use
on the first Distribution Date shall be 0.0001.
γ0 = the lesser of (A) the sum of (x) the sum for all Classes of Group
I Certificates, other than the Class SB-I Certificates, of the product for
each Class of (i) the monthly interest rate (as limited by the Group I Net
WAC Cap Rate, if applicable) for such Class applicable for distributions to
be made on such Distribution Date and (ii) the aggregate Certificate
Principal Balance for such Class after distributions and the allocation of
Realized Losses on the prior Distribution Date and (y) the aggregate Group I
Net WAC Cap Shortfalls for such Distribution Date and (B) R0*P0.
γ1 = the lesser of (A) the sum of (x) the sum for all Classes of Group
I Certificates, other than the Class SB-I Certificates, of the product for
each Class of (i) the monthly interest rate (as limited by the Net WAC Cap
Rate, if applicable) for such Class applicable for distributions to be made
on the next succeeding Distribution Date and (ii) the aggregate Certificate
Principal Balance for such Class after distributions and the allocation of
Realized Losses to be made on such Distribution Date and (y) the aggregate
Group I Net WAC Cap Shortfalls for the next succeeding Distribution Date and
(B) R1*P1.
Then, based on the foregoing definitions:
ΔY1 = ΔP - ΔY2 - ΔY3 - ΔY4;
ΔY2 = (α/2){( γ0R1 - γ1R0)/R0R1};
ΔY3 = αΔP - ΔY2; and
ΔY4 = ΔY3.
if both ΔY2 and ΔY3, as so determined, are non-negative numbers.
Otherwise:
(1) If ΔY2, as so determined, is negative, then
ΔY2 = 0;
ΔY3 = α{γ1R0P0 - γ0R1P1}/{γ1R0};
ΔY4 = ΔY3; and
ΔY1 = ΔP - ΔY2 - ΔY3 - ΔY4.
(2) If ΔY3, as so determined, is negative, then
ΔY3 = 0;
ΔY2 = α{γ1R0P0 - γ0R1P1}/{2R1R0P1 - γ1R0};
ΔY4 = ΔY3; and
ΔY1 = ΔP - ΔY2 - ΔY3 - ΔY4.
REMIC II Realized Losses: For any Distribution Date, Realized Losses on
the Group I Mortgage Loans for the related Due Period shall be allocated, as
follows: (i) the interest portion of Realized Losses, if any, shall be
allocated pro rata to accrued interest on the REMIC II Regular Interests to
the extent of such accrued interest, and (ii) any remaining interest portions
of Realized Losses and any principal portions of Realized Losses shall be
treated as principal portions of Realized Losses and allocated (i) to the
REMIC II Regular Interest LT2, REMIC II Regular Interest LT3 and REMIC II
Regular Interest LT4, pro rata according to their respective Principal
Reduction Amounts, provided that such allocation to each of the REMIC II
Regular Interest LT2, REMIC II Regular Interest LT3 and REMIC II Regular
Interest LT4 shall not exceed their respective Principal Reduction Amounts
for such Distribution Date, and (ii) any Realized Losses not allocated to any
of REMIC II Regular Interest LT2, REMIC II Regular Interest LT3 or REMIC II
Regular Interest LT4 pursuant to the proviso of clause (i) above shall be
allocated to the REMIC II Regular Interest LT1.
REMIC II Regular Interests: REMIC II Regular Interest LT1, REMIC II
Regular Interest LT2, REMIC II Regular Interest LT3 and REMIC II Regular
Interest LT4.
REMIC II Regular Interest LT1: A regular interest in REMIC II that is
held as an asset of REMIC III, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC II Pass-Through Rate, and that has such other
terms as are described herein.
REMIC II Regular Interest LT1 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC II Regular Interest LT1
Principal Reduction Amount for such Distribution Date over the Realized
Losses allocated to the REMIC II Regular Interest LT1 on such Distribution
Date.
REMIC II Regular Interest LT2: A regular interest in REMIC II that is
held as an asset of REMIC III, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC II Pass-Through Rate, and that has such other
terms as are described herein.
REMIC II Regular Interest LT2 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC II Regular Interest LT2
Principal Reduction Amount for such Distribution Date over the Realized
Losses allocated to the REMIC II Regular Interest LT2 on such Distribution
Date.
REMIC II Regular Interest LT3: A regular interest in REMIC II that is
held as an asset of REMIC III, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC II Pass-Through Rate, and that has such other
terms as are described herein.
REMIC II Regular Interest LT3 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC II Regular Interest LT3
Principal Reduction Amount for such Distribution Date over the Realized
Losses allocated to the REMIC II Regular Interest LT3 on such Distribution
Date.
REMIC II Regular Interest LT4: A regular interest in REMIC II that is
held as an asset of REMIC III, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the
related Uncertificated REMIC II Pass-Through Rate, and that has such other
terms as are described herein.
REMIC II Regular Interest LT4 Principal Distribution Amount: For any
Distribution Date, the excess, if any, of the REMIC II Regular Interest LT4
Principal Reduction Amount for such Distribution Date over the Realized
Losses allocated to the REMIC II Regular Interest LT4 on such Distribution
Date.
REMIC II Regular Interests: As defined in Section 5.01(c).
REMIC III: That group of assets contained in the Trust Fund designated
as a REMIC consisting of the REMIC I Regular Interests and any proceeds
thereof.
REMIC III Available Distribution Amount: For any Distribution Date,
the amounts deemed distributed with respect to the REMIC I Regular Interests
pursuant to Section 6.07.
REMIC III Distribution Amount: For any Distribution Date, the
REMIC III Available Distribution Amount shall be distributed by REMIC III to
REMIC IV on account of the REMIC III Regular Interests and to the Class R
Certificates in respect of Component III thereof, as follows: to each REMIC
III Regular Interest in respect of Uncertificate Accrued Interest thereon and
the Uncertificated Principal Balance thereof, the amount distributed in
respect of interest and principal on the Related Class or Classes of
Certificates (with such amounts having the same charater as interest or
principal with respect to the REMIC III Regular Interest as they have with
respect to the Related Certificate or Certificates) with the following
exception: No amount paid to any Certificate in respect of any Basis Risk
Shortfall Amount or Basis Risk Shortfall Carryforward Amount shall be
included in the amount paid in respect of a related REMIC III Regular
Interest. Any remaining amount of the REMIC III Available Distribution
Amount shall be distributed to the holders of the Class R Certificates in
respect of Component III thereof.
REMIC III Interests: The REMIC III Regular Interests and Component III
of the Class R Certificates.
REMIC III Regular Interests: As defined in Section 5.01(c).
REMIC IV: That group of assets contained in the Trust Fund designated
as a REMIC consisting of the REMIC II Regular Interests, the REMIC III
Regular Interests and any proceeds thereof.
REMIC IV Available Distribution Amount: For any Distribution Date, the
amounts deemed distributed with respect to the REMIC II Regular Interests and
REMIC III Regular Interests pursuant to Section 6.07.
REMIC IV Distribution Amount: For any Distribution Date, the REMIC IV
Available Distribution Amount shall be deemed distributed by REMIC IV to the
holders of the Certificates on account of the REMIC IV Regular Interests and
to the Class R Certificates in respect of Component IV thereof, as follows:
to each REMIC IV Regular Interest in respect of Uncertificate Accrued
Interest thereon and the Uncertificated Principal Balance thereof, the amount
distributed in respect of interest and principal on the Related Class or
Classes of Certificates (with such amounts having the same charater as
interest or principal with respect to the REMIC IV Regular Interest as they
have with respect to the Related Certificate or Certificates) with the
following exceptions: (1) No amount paid to any Certificate in respect of
any Basis Risk Shortfall Amount or Basis Risk Shortfall Carryforward Amount
shall be included in the amount paid in respect of a related REMIC IV Regular
Interest. (2) Amounts paid in respect of Basis Risk Shortfall Amounts and
Basis Risk Shortfall Carryforward Amounts to the extent not derived from any
Cap Contract Amount shall be deemed paid to the Class B-IO-I REMIC IV Regular
Interest in respect of accrued and unpaid interest thereon. Any remaining
amount of the REMIC IV Available Distribution Amount shall be distributed to
the holders of the Class R Certificates in respect of Component IV thereof.
REMIC IV Interests: The REMIC IV Regular Interests and Component IV of
the Class R Certificates.
REMIC IV Regular Interests: As defined in Section 5.01(c).
REO Property: A Mortgaged Property acquired in the name of the
Trustee, for the benefit of Certificateholders, by foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan.
Repurchase Price: With respect to any Mortgage Loan (or any property
acquired with respect thereto) required to be repurchased by the Seller
pursuant to the Mortgage Loan Purchase Agreement or Article II of this
Agreement, an amount equal to the excess of (i) the sum of (a) 100% of the
Outstanding Principal Balance of such Mortgage Loan as of the date of
repurchase (or if the related Mortgaged Property was acquired with respect
thereto, 100% of the Outstanding Principal Balance at the date of the
acquisition), (b) accrued but unpaid interest on the Outstanding Principal
Balance at the related Mortgage Interest Rate, through and including the last
day of the month of repurchase and (c) any costs and damages (if any)
incurred by the Trust in connection with any violation of such Mortgage Loan
of any predatory or abusive lending laws over (ii) any portion of the Master
Servicing Compensation, Monthly Advances and advances payable to the
purchaser of the Mortgage Loan.
Repurchase Proceeds: the Repurchase Price in connection with any
repurchase of a Mortgage Loan by the Seller and any cash deposit in
connection with the substitution of a Mortgage Loan.
Request for Release: A request for release in the form attached hereto
as Exhibit D.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under
this Agreement with respect to such Mortgage Loan.
Reserve Fund: The separate trust account created and maintained by the
Trustee pursuant to Section 4.06 hereof.
Residual Certificates: The Class R Certificates, consisting of four
components-Component I, Component II, Component III and
Component IV-respectively representing ownership of the sole class of
residual interest in each of REMIC I, REMIC II, REMIC III and REMIC IV.
Responsible Officer: Any officer assigned to the Corporate Trust
Office (or any successor thereto), including any Vice President, Assistant
Vice President, Trust Officer, any Assistant Secretary, any trust officer or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement, and any other
officer of the Trustee to whom a matter arising hereunder may be referred.
Rolling Three-Month Delinquency Average: With respect to a Distribution
Date, the average of the Monthly Delinquency Percentages for that
Distribution Date and each of the immediately preceding two Distribution
Dates.
Rule 144A Certificate: The certificate to be furnished by each
purchaser of a Private Certificate (which is also a Physical Certificate)
which is a Qualified Institutional Buyer as defined under Rule 144A
promulgated under the Securities Act, substantially in the form set forth as
Exhibit F-2 hereto.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.,
and its successors in interest.
Scheduled Payment: With respect to any Mortgage Loan and any Due
Period, the scheduled payment or payments of principal and interest due
during such Due Period on such Mortgage Loan which either is payable by a
Mortgagor in such Due Period under the related Mortgage Note or, in the case
of REO Property, would otherwise have been payable under the related Mortgage
Note.
Scheduled Principal: The principal portion of any Scheduled Payment.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: Xxxxx Fargo Bank, National Association, or
its successor in interest, or any successor securities administrator
appointed as herein provided.
Securities Legend: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR UNDER ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING
THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT
AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") TO A PERSON THAT THE HOLDER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"),
PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB,
WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE
OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (2) IN
CERTIFICATED FORM TO AN "INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE
MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE
ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH
PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, SUBJECT TO (A) THE RECEIPT BY THE TRUSTEE OF A LETTER SUBSTANTIALLY IN
THE FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY THE TRUSTEE OF SUCH
OTHER EVIDENCE ACCEPTABLE TO THE TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS
OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION. THIS CERTIFICATE MAY NOT
BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF OF, AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT (A "PLAN") THAT IS SUBJECT TO TITLE I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
or by a person using "PLAN assets" of a Plan, UNLESS THE PROPOSED TRANSFEREE
PROVIDES THE TRUSTEE WITH AN OPINION OF COUNSEL FOR THE BENEFIT OF THE
TRUSTEE, MASTER SERVICER AND THE SECURITIES ADMINISTRATOR AND ON WHICH THEY
MAY RELY WHICH IS SATISFACTORY TO THE TRUSTEE THAT THE PURCHASE OF THIS
CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975
OF THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE TRUSTEE OR THE
SECURITIES ADMINISTRATOR TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE AGREEMENT.
Security Instrument: A written instrument creating a valid first lien
on a Mortgaged Property securing a Mortgage Note, which may be any applicable
form of mortgage, deed of trust, deed to secure debt or security deed,
including any riders or addenda thereto.
Seller: EMC, as mortgage loan seller under the Mortgage Loan Purchase
Agreement.
Senior Certificates: The Class I-A-1, Class I-A-2, Class II-A-1, Class
II-A-2, Class II-A-3, Class II-A-4, Class II-A-5, Class II-X-A-5 and Class
II-A-6 Certificates.
Senior Enhancement Percentage: As to each Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the sum of (i)
the aggregate of the Certificate Principal Balance of the Class I-M-1, Class
I-M-2, Class I-B-1 and Class I-B-2 Certificates and (ii) the
Overcollateralization Amount, in each case after taking into account the
distribution of the related Principal Distribution Amounts on such
Distribution Date, and the denominator of which is the aggregate Stated
Principal Balance of the Group I Mortgage Loans for such Distribution Date .
Senior Optimal Principal Amount: With respect to each Distribution
Date and a Certificate Group related to a Loan Group in Loan Group II, an
amount equal to the sum, without duplication, of the following (but in no
event greater than the aggregate Certificate Principal Balances of the
related Certificate Group immediately prior to such Distribution Date):
(i) the related Senior Percentage of the principal portion of
all Scheduled Payments due on each Outstanding Mortgage Loan in the related
Loan Group on the related Due Date as specified in the amortization schedule
at the time applicable thereto (after adjustments for previous Principal
Prepayments but before any adjustment to such amortization schedule by reason
of any bankruptcy or similar proceeding or any moratorium or similar waiver
or grace period if the related Distribution Date occurs prior to the
Cross-over Date);
(ii) the related Senior Prepayment Percentage of the Stated
Principal Balance of Mortgage Loan in the related Loan Group which was the
subject of a Principal Prepayment in full received by the Master Servicer
during the related Prepayment Period;
(iii) the related Senior Prepayment Percentage of amount of all
Principal Prepayments in part allocated to principal received by the Master
Servicer during the related Prepayment Period in respect to each Mortgage
Loan in the related Loan Group;
(iv) the lesser of (a) the related Senior Prepayment Percentage
of the sum of (A) all Net Liquidation Proceeds allocable to principal
received in respect of each Mortgage Loan in the related Loan Group that
became a Liquidated Mortgage Loan during the related Prepayment Period (other
than Mortgage Loans described in the immediately following clause (B)) and
all Subsequent Recoveries received in respect of each Liquidated Mortgage
Loan in the related Loan Group during the related Due Period and (B) the
Stated Principal Balance of each such Mortgage Loan purchased by an insurer
from the Trust during the related Prepayment Period pursuant to the related
Primary Mortgage Insurance Policy, if any, or otherwise and (b) the related
Senior Percentage of the sum of (A) the Stated Principal Balance of each
Mortgage Loan in the related Loan Group which became a Liquidated Mortgage
Loan during the related Prepayment Period (other than the Mortgage Loans
described in the immediately following clause (B)) and all Subsequent
Recoveries received in respect of each Liquidated Mortgage Loan in the
related Loan Group during the related Due Period and (B) the Stated Principal
Balance of each such Mortgage Loan that was purchased by an insurer from the
Trust during the related Prepayment Period pursuant to the related Primary
Mortgage Insurance Policy, if any or otherwise;
(v) any amount allocated to the Available Funds of the related
Loan Group pursuant to Section 6.01.2(a)(H); and
(vi) the related Senior Prepayment Percentage of the sum of (a)
the Stated Principal Balance of each Mortgage Loan in the related Loan Group
that was repurchased by the Seller in connection with such Distribution Date
and (b) the excess, if any, of the Stated Principal Balance of a Mortgage
Loan in the related Loan Group that has been replaced by the Seller with a
substitute Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement in
connection with such Distribution Date over the Stated Principal Balance of
such substitute Mortgage Loan.
Senior Percentage: With respect to each Certificate Group, initially
94.35%. With respect to any Distribution Date and a Certificate Group, the
lesser of (i) 100% and (ii) the percentage obtained by dividing the aggregate
Certificate Principal Balance of the Senior Certificates in such Certificate
Group immediately preceding such Distribution Date by the aggregate Stated
Principal Balance of the Mortgage Loans in the related Loan Group as of the
beginning of the related Due Period.
Senior Prepayment Percentage: With respect to a Certificate Group and
any Distribution Date occurring during the periods set forth below, as
follows:
Period (dates inclusive) Senior Prepayment Percentage
October 2004 - September 2011 100%
October 2011 - September 2012 Senior Percentage for the related
Certificate Group plus 70% of the
Subordinate Percentage for the related
Loan Group.
October 2012 - September 2013 Senior Percentage for the related
Certificate Group plus 60% of the
Subordinate Percentage for the related
Loan Group.
October 2013 - September 2014 Senior Percentage for the related
Certificate Group plus 40% of the
Subordinate Percentage for the related
Loan Group.
October 2014 - September 2015 Senior Percentage for the related
Certificate Group plus 20% of the
Subordinate Percentage for the related
Loan Group.
October 2015 and thereafter Senior Percentage for the related
Certificate Group
In addition, no reduction of the Senior Prepayment Percentage shall
occur on any Distribution Date unless, as of the last day of the month
preceding such Distribution Date, (A) the aggregate Stated Principal Balance
of the Group II Mortgage Loans in all Loan Groups in Loan Group II delinquent
60 days or more (including for this purpose any such Group II Mortgage Loans
in foreclosure and Group II Mortgage Loans with respect to which the related
Mortgaged Property has been acquired by the Trust), averaged over the last
six months, as a percentage of the sum of the aggregate Certificate Principal
Balance of the Group II Subordinate Certificates does not exceed 50%; and (B)
cumulative Realized Losses on the Group II Mortgage Loans in all Loan Groups
in Loan Group II do not exceed (a) 30% of the Original Group II Subordinate
Principal Balance if such Distribution Date occurs between and including
October 2011 and September 2012, (b) 35% of the Original Group II Subordinate
Principal Balance if such Distribution Date occurs between and including
October 2012 and September 2013, (c) 40% of the Original Group II Subordinate
Principal Balance if such Distribution Date occurs between and including
October 2013 and September 2014, (d) 45% of the Original Group II Subordinate
Principal Balance if such Distribution Date occurs between and including
October 2014 and September 2015, and (e) 50% of the Original Group II
Subordinate Principal Balance if such Distribution Date occurs during or
after October 2015.
In addition, if on any Distribution Date the weighted average of the
Subordinate Percentages is equal to or greater than two times the weighted
average of the initial Subordinate Percentages, and (a) the aggregate Stated
Principal Balance of the Group II Mortgage Loans for all Loan Groups
delinquent 60 days or more (including for this purpose any such Mortgage
Loans in foreclosure and such Group II Mortgage Loans with respect to which
the related Mortgaged Property has been acquired by the Trust), averaged over
the last six months, as a percentage of the aggregate Certificate Principal
Balance of the Group II Subordinate Certificates does not exceed 50% and
(b)(i) on or prior to the Distribution Date in September 2007, cumulative
Realized Losses on the Group II Mortgage Loans for all Loan Groups in Loan
Group II as of the end of the related Prepayment Period do not exceed 20% of
the Original Group II Subordinate Principal Balance and (ii) after the
Distribution Date in September 2007 cumulative Realized Losses on the Group
II Mortgage Loans for all Loan Groups in Loan Group II as of the end of the
related Prepayment Period do not exceed 30% of the Original Group II
Subordinate Principal Balance, then, the Senior Prepayment Percentage for
such Distribution Date will equal the Senior Percentage for the related Loan
Group; provided, however, if on such Distribution Date the Subordinate
Percentage is equal to or greater than two times the initial Subordinate
Percentage on or prior to the Distribution Date occurring in September 2007
and the above delinquency and loss tests are met, then the Senior Prepayment
Percentage for the related Loan Group for such Distribution Date will equal
the related Senior Percentage plus 50% of the related Subordinate Percentage.
Notwithstanding the foregoing, if on any Distribution Date the
percentage, the numerator of which is the aggregate Certificate Principal
Balance of the Group II Senior Certificates immediately preceding such
Distribution Date, and the denominator of which is the Stated Principal
Balance of the Group II Mortgage Loans as of the beginning of the related Due
Period, exceeds such percentage as of the Cut-Off Date, the Senior Prepayment
Percentage for the Senior Certificates will equal 100%.
Servicers: Bank of America, Countrywide Servicing, EMC, EverHome,
GreenPoint and SouthTrust and their respective permitted successors and
assigns.
Servicer Remittance Date: With respect to each Mortgage Loan, the date
set forth in the Servicing Agreement.
Servicing Agreement: Each of the Bank of America Servicing Agreement,
Countrywide Servicing Agreement, EMC Servicing Agreement, EverHome Servicing
Agreement, GreenPoint Servicing Agreement and SouthTrust Servicing Agreement.
Servicing Fee: As to any Mortgage Loan and Distribution Date, an
amount equal to the product of (i) the Stated Principal Balance of such
Mortgage Loan as of the Due Date in the preceding calendar month and (ii) the
Servicing Fee Rate.
Servicing Fee Rate: As to any Mortgage Loan, a per annum rate as set
forth in the Mortgage Loan Schedule.
Servicing Officer: The President or a Vice President or Assistant Vice
President or other authorized officer of the Master Servicer having direct
responsibility for the administration of this Agreement, and any other
authorized officer of the Master Servicer to whom a matter arising hereunder
may be referred.
SouthTrust: SouthTrust Mortgage Corporation, and its successor in
interest.
SouthTrust Servicing Agreement: The Purchase, Warranties and Servicing
Agreement dated as of November 1, 2002, between EMC and SouthTrust, attached
hereto as Exhibit H-6.
Special Hazard Loss: A Realized Loss attributable to damage or a direct
physical loss suffered by a mortgaged property (including any Realized Loss
due to the presence or suspected presence of hazardous wastes or substances
on a mortgaged property) other than any such damage or loss covered by a
hazard policy or a flood insurance policy required to be maintained in
respect of such mortgaged property under the Agreement or any loss due to
normal wear and tear or certain other causes.
Startup Day: September 30, 2004.
Stated Principal Balance: With respect to any Group I Mortgage Loan or
related REO Property and any Distribution Date, the Outstanding Principal
Balance thereof as of the Cut-off Date minus the sum of (i) the principal
portion of the Scheduled Payments due with respect to such Mortgage Loan
during each Due Period ending prior to such Distribution Date (and
irrespective of any delinquency in their payment), (ii) all Principal
Prepayments with respect to such Mortgage Loan received prior to or during
the related Prepayment Period, and all Liquidation Proceeds to the extent
applied by the related Servicer as recoveries of principal in accordance with
this Agreement or the applicable Servicing Agreement with respect to such
Mortgage Loan, that were received by the related Servicer as of the close of
business on the last day of the Prepayment Period related to such
Distribution Date and (iii) any Realized Losses on such Mortgage Loan
incurred prior to or during the related Prepayment Period. The Stated
Principal Balance of a Liquidated Mortgage Loan equals zero. References
herein to the Stated Principal Balance of a Loan Group at any time shall mean
the aggregate Stated Principal Balance of all Mortgage Loans in such Loan
Group.
With respect to any Group II Mortgage Loan on any Distribution Date,
(i) the unpaid principal balance of such Mortgage Loan as of the close of
business on the related Due Date (taking account of the principal payment to
be made on such Due Date and irrespective of any delinquency in its payment),
as specified in the amortization schedule at the time relating thereto
(before any adjustment to such amortization schedule by reason of any
bankruptcy or similar proceeding occurring after the Cut-off Date (other than
a Deficient Valuation) or any moratorium or similar waiver or grace period)
and less (ii) any Principal Prepayments (including the principal portion of
Net Liquidation Proceeds) received during or prior to the related Prepayment
Period; provided that the Stated Principal Balance of a Liquidated Mortgage
Loan is zero.
Stepdown Date: The earlier to occur of (i) the Distribution Date on
which the Certificate Principal Balance of the Class I-A Certificates has
been reduced to zero and (ii) the later to occur of (a) the Distribution Date
in October 2007 and (b) the first Distribution Date on which the sum of the
aggregate Certificate Principal Balance of the Class I-M-1, Class I-M-2,
Class I-B-1 and Class I-B-2 Certificates and the Overcollateralization Amount
divided by the Stated Principal Balance of the Mortgage Loans for such
Distribution Date is greater than or equal to 13.40%.
Subordinate Certificate Writedown Amount: With respect to the Group II
Subordinate Certificates and as to any Distribution Date, the amount by which
(i) the sum of the Certificate Principal Balances of the Group II
Certificates (after giving effect to the distribution of principal and the
allocation of applicable Realized Losses in reduction of the Certificate
Principal Balances of the Group II Certificates on such Distribution Date)
exceeds (y) the aggregate Stated Principal Balances of the Group II Mortgage
Loans on the Due Date related to such Distribution Date.
Subordinate Certificates: The Group I Subordinate Certificates and the
Group II Subordinate Certificates.
Subordinate Optimal Principal Amount: With respect to any Distribution
Date and any Loan Group in Loan Group II, an amount equal to the sum, without
duplication, of the following (but in no event greater than the aggregate
Certificate Principal Balance of the Group II Subordinate Certificates
immediately prior to such Distribution Date):
(i) the related Subordinate Percentage of the principal portion
of all Scheduled Payments due on each Outstanding Mortgage Loan in the
related Loan Group on the related Due Date as specified in the amortization
schedule at the time applicable thereto (after adjustment for previous
Principal Prepayments but before any adjustment to such amortization schedule
by reason of any bankruptcy or similar proceeding or any moratorium or
similar waiver or grace period);
(ii) the related Subordinate Prepayment Percentage of the Stated
Principal Balance of each Mortgage Loan in the related Loan Group that was
the subject of a Principal Prepayment in full received by the Master Servicer
during the related Prepayment Period;
(iii) the related Subordinate Prepayment Percentage of the amount of
all Principal Prepayments in part received by the Master Servicer in respect
to the Mortgage Loan in the related Loan Group during the related Prepayment
Period;
(iv) the excess, if any, of (a) all Net Liquidation Proceeds allocable
to principal received during the related Prepayment Period in respect of each
Liquidated Mortgage Loan in the related Loan Group and all Subsequent
Recoveries received in respect of each Liquidated Mortgage Loan during the
related Due Period over (b) the sum of the amounts distributable to the
Senior Certificates in the related Certificate Group pursuant to clause (iv)
of the definition of Senior Optimal Principal Amount on such Distribution
Date;
(v) the related Subordinate Prepayment Percentage of the sum of (a)
the Stated Principal Balance of each Mortgage Loan in the related Loan Group
that was purchased by the Seller in connection with such Distribution Date
and (b) the difference, if any, between the Stated Principal Balance of a
Mortgage Loan in the related Loan Group that has been replaced by the Seller
with a Substitute Mortgage Loan pursuant to the Mortgage Loan Purchase
Agreement in connection with such Distribution Date over the Stated Principal
Balance of such Substitute Mortgage Loan; and
(vi) on the Distribution Date on which the Certificate Principal
Balances of the Senior Certificates in the related Certificate Group have all
been reduced to zero, 100% of the Senior Optimal Principal Amount for the
related Loan Group. After the aggregate Certificate Principal Balance of the
Subordinate Certificates has been reduced to zero, the Subordinate Optimal
Principal Amount shall be zero.
Subordinate Percentage: With respect to a Loan Group included in Loan
Group II on any Distribution Date, 100% minus the Senior Percentage for the
related Certificate Group.
Subordinate Prepayment Percentage: With respect to a Loan Group on any
Distribution Date, 100% minus the Senior Prepayment Percentage for the
related Certificate Group.
Subsequent Recoveries: As of any Distribution Date, amounts received
during the related Due Period by the Master Servicer (net of any related
expenses permitted to be reimbursed pursuant to Section 4.03) or surplus
amounts held by the Master Servicer to cover estimated expenses (including,
but not limited to, recoveries in respect of the representations and
warranties made by the Seller pursuant to the Mortgage Loan Purchase
Agreement) specifically related to a Liquidated Mortgage Loan or the
disposition of an REO Property prior to the related Prepayment Period that
resulted in a Realized Loss, after liquidation or disposition of such
Mortgage Loan.
Substitute Mortgage Loan: A mortgage loan tendered to the Trustee
pursuant to the related Servicing Agreement, the Mortgage Loan Purchase
Agreement or Section 2.04 of this Agreement, as applicable, in each case,
(i) which has an Outstanding Principal Balance not greater nor materially
less than the Mortgage Loan for which it is to be substituted; (ii) which has
a Mortgage Interest Rate and Net Rate not less than, and not materially
greater than, such Mortgage Loan; (iii) which has a maturity date not
materially earlier or later than such Mortgage Loan and not later than the
latest maturity date of any Mortgage Loan; (iv) which is of the same property
type and occupancy type as such Mortgage Loan; (v) which has a Loan-to-Value
Ratio not greater than the Loan-to-Value Ratio of such Mortgage Loan;
(vi) which is current in payment of principal and interest as of the date of
substitution; (vii) as to which the payment terms do not vary in any material
respect from the payment terms of the Mortgage Loan for which it is to be
substituted and (viii) which has a Gross Margin, Periodic Rate Cap and
Maximum Lifetime Mortgage Rate no less than those of such Mortgage Loan, has
the same Index and interval between Interest Adjustment Dates as such
Mortgage Loan, and a Minimum Lifetime Mortgage Rate no lower than that of
such Mortgage Loan.
Substitution Adjustment Amount: The amount, if any, required to be paid
by the Mortgage Loan Seller to the Trustee for deposit in the Distribution
Account pursuant to Section 2.04 in connection with the substitution of a
Mortgage Loan.
Tax Administration and Tax Matters Person: The Securities Administrator
and any successor thereto or assignee thereof shall serve as tax
administrator hereunder and as agent for the Tax Matters Person. The Holder
of the largest percentage interest of each Class of Residual Certificates
shall be the Tax Matters Person for the related REMIC, as more particularly
set forth in Section 9.12 hereof.
Termination Purchase Price: The price, calculated as set forth in
Section 10.01, to be paid in connection with the repurchase of the Mortgage
Loans pursuant to Section 10.01.
Trigger Event: A Trigger Event exists with respect to a Distribution
Date on or after the Stepdown Date if either (i) the related Rolling
Three-Month Delinquency Average exceeds 50% of the related Senior Enhancement
Percentage or (ii) the percentage of the cumulative amount of Realized Losses
on the Group I Mortgage Loans as of such date of determination is greater
than the applicable percentage listed below of the aggregate Stated Principal
Balances of the Group I Mortgage Loans as of the Closing Date:
Months Percentage
37 - 48 0.75%
49 - 60 1.25%
61-72 1.50%
73+ 1.75%
Trust Fund or Trust: The corpus of the trust created by this
Agreement, consisting of the Mortgage Loans and the other assets described in
Section 2.01(a).
Trustee: JPMorgan Chase Bank, or its successor in interest, or any
successor trustee appointed as herein provided.
2004-11 REMIC: Any of REMIC I, REMIC II, REMIC III and REMIC IV.
Uncertificated Interest: With respect to each REMIC Regular Interest on
each Distribution Date, an amount equal to one month's interest at the
related Uncertificated Pass-Through Rate on the Uncertificated Principal
Balance of such REMIC Regular Interest. In each case, for purposes of the
distributions, Uncertificated Interest will be reduced by the interest
portion of any Realized Losses and Net Interest Shortfalls allocated, with
respect to the REMIC I Regular Interests, to such REMIC Regular Interests
pursuant to the definition of Realized Losses, with respect to the REMIC II
Regular Interests, to such REMIC Regular Interests pursuant to the definition
of REMIC II Realized Losses and, with respect to the REMIC III Regular
Interests and REMIC IV Regular Interests, to the Related Classes of
Certificates.
Uncertificated Pass-Through Rate: With respect to any Distribution Date
and REMIC Interest, the Pass-Through Rate of each such REMIC Interest set
forth in Section 5.01(c).
Uncertificated Principal Balance: The amount of any REMIC I, REMIC II, REMIC
III or REMIC IV Regular Interest outstanding as of any date of determination.
As of the Closing Date, the Uncertificated Principal Balance of each REMIC I
Regular Interest shall equal the amount set forth in Section 5.01(c)(i) as
its Initial Uncertificated Principal Balance. On each Distribution Date, the
Uncertificated Principal Balance of each REMIC I Regular Interest shall be
reduced by the sum of (i) the principal portion of Realized Losses allocated
to the REMIC I Regular Interests in accordance with the definition of
Realized Loss and (ii) the amounts deemed distributed on each Distribution
Date in respect of principal on the REMIC I Regular Interests pursuant to
Section 6.07. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC II Regular Interest shall equal the amount set forth in the
Section 5.01(c) hereto as its Initial Uncertificated Principal Balance. On
each Distribution Date, the Uncertificated Principal Balance of each REMIC II
Regular Interest shall be reduced, first, by the portion of Realized Losses
allocated in reduction of the Certificate Principal Balances thereof on such
Distribution Date pursuant to the definition of REMIC II Realized Losses and,
second, the amounts deemed distributed on each Distribution Date in respect
of principal on the REMIC II Regular Interests pursuant to Section 6.07. As
of the Closing Date, the Uncertificated Principal Balance of each REMIC III
Regular Interest shall equal the amount set forth in the Section 5.01(c)(iii)
hereto as its Initial Uncertificated Principal Balance. On each Distribution
Date, the Uncertificated Principal Balance of each REMIC III Regular Interest
shall be reduced, first, by the portion of Realized Losses allocated in
reduction of the Certificate Principal Balances of the Related Classes of
Certificates on such Distribution Date and, second, by all distributions of
principal made on such Related Classes of Certificates on such Distribution
Date. As of the Closing Date, the Uncertificated Principal Balance of each
REMIC IV Regular Interest shall equal the amount set forth in the Section
5.01(c)(iv) hereto as its Initial Uncertificated Principal Balance. On each
Distribution Date, the Uncertificated Principal Balance of each REMIC IV
Regular Interest shall be reduced, first, by the portion of Realized Losses
allocated in reduction of the Certificate Principal Balances of the Related
Classes of Certificates on such Distribution Date and, second, by all
distributions of principal made on such Related Classes of Certificates on
such Distribution Date.
Undercollateralized Amount: With respect any Certificate Group in Loan
Group II and Distribution Date, the excess of (i) the aggregate Certificate
Principal Balance of such Certificate Group over (ii) the aggregate Stated
Principal Balance of the Group II Mortgage Loans in the related Loan Group.
Undercollateralized Certificate Group: With respect any Distribution
Date, a Certificate Group in Loan Group II for which the related
Undercollateralized Amount (calculated on such Distribution Date after giving
effect to distributions to be made thereon (other than amounts to be
distributed pursuant to Section 6.01.2(a)(K) on such Distribution Date))
exceeds zero.
Uninsured Cause: Any cause of damage to a Mortgaged Property or
related REO Property such that the complete restoration of such Mortgaged
Property or related REO Property is not fully reimbursable by the hazard
insurance policies required to be maintained pursuant the Servicing
Agreement, without regard to whether or not such policy is maintained.
United States Person: A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or
under the laws of, the United States or any state thereof or the District of
Columbia (except, in the case of a partnership, to the extent provided in
regulations), provided that, for purposes solely of the Class R Certificates,
no partnership or other entity treated as a partnership for United States
federal income tax purposes shall be treated as a United States Person unless
all persons that own an interest in such partnership either directly or
through any entity that is not a corporation for United States federal income
tax purposes are United States Persons, or an estate whose income is subject
to United States federal income tax regardless of its source, or a trust if a
court within the United States is able to exercise primary supervision over
the administration of the trust and one or more such United States Persons
have the authority to control all substantial decisions of the trust. To the
extent prescribed in regulations by the Secretary of the Treasury, which have
not yet been issued, a trust which was in existence on August 20, 1996 (other
than a trust treated as owned by the grantor under subpart E of part I of
subchapter J of chapter 1 of the Code), and which was treated as a United
States person on August 20, 1996 may elect to continue to be treated as a
United States person notwithstanding the previous sentence.
Unpaid Realized Loss Amount: With respect to any Distribution Date and
a Class of Group I Offered Certificates, is the excess of (i) Applied
Realized Loss Amounts with respect to such Class over (ii) the sum of all
distributions in reduction of the Applied Realized Loss Amounts on all
previous Distribution Dates. Any amounts distributed to a class of Group I
Offered Certificates in respect of any Unpaid Realized Loss Amount will not
be applied to reduce the Certificate Principal Balance of such Class.
ARTICLE II
Conveyance of Mortgage Loans;
Original Issuance of Certificates
Section 2.01 Conveyance of Mortgage Loans to Trustee. (a) The Depositor
concurrently with the execution and delivery of this Agreement, sells,
transfers and assigns to the Trust without recourse all its right, title and
interest in and to (i) the Mortgage Loans identified in the Mortgage Loan
Schedule, including all interest and principal due with respect to the
Mortgage Loans after the Cut-off Date, but excluding any payments of
principal and interest due on or prior to the Cut-off Date; (ii) such assets
as shall from time to time be credited or are required by the terms of this
Agreement to be credited to the Master Servicer Collection Account,
(iii) such assets relating to the Mortgage Loans as from time to time may be
held by the Servicers in Protected Accounts, the Master Servicer in the
Master Servicer Collection Account and the Trustee in the Distribution
Account, (iv) any REO Property, (v) the Required Insurance Policies and any
amounts paid or payable by the insurer under any Insurance Policy (to the
extent the mortgagee has a claim thereto), (vi) the Mortgage Loan Purchase
Agreement to the extent provided in Section 2.03(a), (vii) the rights with
respect to the Servicing Agreements as assigned to the Trustee on behalf of
the Certificateholders by the Assignment Agreements and (viii) any proceeds
of the foregoing. Although it is the intent of the parties to this Agreement
that the conveyance of the Depositor's right, title and interest in and to
the Mortgage Loans and other assets in the Trust Fund pursuant to this
Agreement shall constitute a purchase and sale and not a loan, in the event
that such conveyance is deemed to be a loan, it is the intent of the parties
to this Agreement that the Depositor shall be deemed to have granted to the
Trustee a first priority perfected security interest in all of the
Depositor's right, title and interest in, to and under the Mortgage Loans and
other assets in the Trust Fund, and that this Agreement shall constitute a
security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Seller hereby
deposits with the Trustee or the Custodian, as its agent, with respect to
each Mortgage Loan:
(i) the original Mortgage Note, endorsed without recourse to the order of the
Trustee and showing an unbroken chain of endorsements from the originator
thereof to the Person endorsing it to the Trustee, or lost note affidavit
together with a copy of the related Mortgage Note,
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan,
noting the presence of the MIN and language indicating that such Mortgage
Loan is a MOM Loan, which shall have been recorded (or if the original is not
available, a copy), with evidence of such recording indicated thereon (or if
clause (w) in the proviso below applies, shall be in recordable form),
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the
assignment (which may be in the form of a blanket assignment if permitted in
the jurisdiction in which the Mortgaged Property is located) to "JPMorgan
Chase Bank, as Trustee", with evidence of recording with respect to each
Mortgage Loan in the name of the Trustee thereon (or if clause (w) in the
proviso below applies or for Mortgage Loans with respect to which the related
Mortgaged Property is located in a state other than Maryland, Tennessee,
South Carolina, Mississippi and Florida, or an Opinion of Counsel has been
provided as set forth in this Section 2.01(b), shall be in recordable form),
(iv) all intervening assignments of the Security Instrument, if applicable
and only to the extent available to the Depositor with evidence of recording
thereon,
(v) the original or a copy of the policy or certificate of primary mortgage
guaranty insurance, to the extent available, if any,
(vi) the original policy of title insurance or mortgagee's certificate of
title insurance or commitment or binder for title insurance, and
(vii) originals of all modification agreements, if applicable and available.
provided, however, that in lieu of the foregoing, the Depositor may deliver
the following documents, under the circumstances set forth below: (w) in
lieu of the original Security Instrument, assignments to the Trustee or
intervening assignments thereof which have been delivered, are being
delivered or will, upon receipt of recording information relating to the
Security Instrument required to be included thereon, be delivered to
recording offices for recording and have not been returned to the Depositor
in time to permit their delivery as specified above, the Depositor may
deliver a true copy thereof with a certification by the Depositor, on the
face of such copy, substantially as follows: "Certified to be a true and
correct copy of the original, which has been transmitted for recording"; (x)
in lieu of the Security Instrument, assignment to the Trustee or intervening
assignments thereof, if the applicable jurisdiction retains the originals of
such documents (as evidenced by a certification from the Depositor to such
effect) the Depositor may deliver photocopies of such documents containing an
original certification by the judicial or other governmental authority of the
jurisdiction where such documents were recorded; and (y) the Depositor shall
not be required to deliver intervening assignments or Mortgage Note
endorsements between the Seller and the Depositor, and between the Depositor
and the Trustee; and provided, further, however, that in the case of Mortgage
Loans which have been prepaid in full after the Cut-off Date and prior to the
Closing Date, the Depositor, in lieu of delivering the above documents, may
deliver to the Trustee or the Custodian, as its agent, a certification to
such effect and shall deposit all amounts paid in respect of such Mortgage
Loans in the Master Servicer Collection Account on the Closing Date. The
Depositor shall deliver such original documents (including any original
documents as to which certified copies had previously been delivered) to the
Trustee or the Custodian, as its agent, promptly after they are received.
The Depositor shall cause the Seller, at its expense, to cause each
assignment of the Security Instrument to the Trustee to be recorded not later
than 180 days after the Closing Date, unless (a) such recordation is not
required by the Rating Agencies or an Opinion of Counsel addressed to the
Trustee has been provided to the Trustee (with a copy to the Custodian) which
states that recordation of such Security Instrument is not required to
protect the interests of the Certificateholders in the related Mortgage Loans
or (b) MERS is identified on the Mortgage or on a properly recorded
assignment of the Mortgage as the mortgagee of record solely as nominee for
the Seller and its successor and assigns; provided, however, that each
assignment shall be submitted for recording by the Seller in the manner
described above, at no expense to the Trust or the Trustee or the Custodian,
as its agent, upon the earliest to occur of: (i) reasonable direction by the
Holders of Certificates evidencing Fractional Undivided Interests aggregating
not less than 25% of the Trust, (ii) the occurrence of an Event of Default,
(iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to
the Seller and (iv) the occurrence of a servicing transfer as described in
Section 8.02 hereof. Notwithstanding the foregoing, if the Seller fails to
pay the cost of recording the assignments, such expense will be paid by the
Trustee and the Trustee shall be reimbursed for such expenses by the Trust in
accordance with Section 9.05.
Section 2.02 Acceptance of Mortgage Loans by Trustee. (a) The Trustee
acknowledges the sale, transfer and assignment of the Trust Fund to it by the
Depositor and receipt of, subject to further review and the exceptions which
may be noted pursuant to the procedures described below, and declares that it
holds, the documents (or certified copies thereof) delivered to it or the
Custodian, as its agent, pursuant to Section 2.01, and declares that it will
continue to hold those documents and any amendments, replacements or
supplements thereto and all other assets of the Trust Fund delivered to it as
Trustee in trust for the use and benefit of all present and future Holders of
the Certificates. On the Closing Date, the Custodian, with respect to the
Mortgage Loans, shall acknowledge with respect to each Mortgage Loan by
delivery to the Depositor and the Trustee of an Initial Certification receipt
of the Mortgage File, but without review of such Mortgage File, except to the
extent necessary to confirm that such Mortgage File contains the related
Mortgage Note or lost note affidavit. No later than 90 days after the
Closing Date (or, with respect to any Substitute Mortgage Loan, within five
Business Days after the receipt by the Trustee or Custodian thereof), the
Trustee agrees, for the benefit of the Certificateholders, to review or cause
to be reviewed by the Custodian on its behalf (under the Custodial
Agreement), each Mortgage File delivered to it and to execute and deliver, or
cause to be executed and delivered, to the Depositor and the Trustee an
Interim Certification. In conducting such review, the Trustee or Custodian
will ascertain whether all required documents have been executed and
received, and based on the Mortgage Loan Schedule, whether those documents
relate, determined on the basis of the Mortgagor name, original principal
balance and loan number, to the Mortgage Loans it has received, as identified
in the Mortgage Loan Schedule. In performing any such review, the Trustee or
the Custodian, as its agent, may conclusively rely on the purported due
execution and genuineness of any such document and on the purported
genuineness of any signature thereon. If the Trustee or the Custodian, as
its agent, finds any document constituting part of the Mortgage File has not
been executed or received, or to be unrelated, determined on the basis of the
Mortgagor name, original principal balance and loan number, to the Mortgage
Loans identified in Exhibit B or to appear defective on its face (a "Material
Defect"), the Trustee or the Custodian, as its agent, shall promptly notify
the Seller. In accordance with the Mortgage Loan Purchase Agreement, the
Seller shall correct or cure any such defect within ninety (90) days from the
date of notice from the Trustee or the Custodian, as its agent, of the defect
and if the Seller fails to correct or cure the defect within such period, and
such defect materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the Trustee or the
Custodian, as its agent, shall enforce the Seller's obligation pursuant to
the Mortgage Loan Purchase Agreement, within 90 days from the Trustee's or
the Custodian's notification, to purchase such Mortgage Loan at the
Repurchase Price; provided that, if such defect would cause the Mortgage Loan
to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of
the Code, any such cure or repurchase must occur within 90 days from the date
such breach was discovered; provided, however, that if such defect relates
solely to the inability of the Seller to deliver the original Security
Instrument or intervening assignments thereof, or a certified copy because
the originals of such documents, or a certified copy have not been returned
by the applicable jurisdiction, the Seller shall not be required to purchase
such Mortgage Loan if the Seller delivers such original documents or
certified copy promptly upon receipt, but in no event later than 360 days
after the Closing Date. The foregoing repurchase obligation shall not apply
in the event that the Seller cannot deliver such original or copy of any
document submitted for recording to the appropriate recording office in the
applicable jurisdiction because such document has not been returned by such
office; provided that the Seller shall instead deliver a recording receipt of
such recording office or, if such receipt is not available, a certificate
confirming that such documents have been accepted for recording, and delivery
to the Trustee or the Custodian, as its agent, shall be effected by the
Seller within thirty days of its receipt of the original recorded document.
(b) No later than 180 days after the Closing Date (or with respect to any
Substitute Mortgage Loan, within five Business Days after the receipt by the
Trustee or the Custodian thereof), the Trustee or the Custodian, as its
agent, will review, for the benefit of the Certificateholders, the Mortgage
Files delivered to it and will execute and deliver or cause to be executed
and delivered to the Depositor and the Trustee a Final Certification. In
conducting such review, the Trustee or the Custodian, as its agent, will
ascertain whether an original of each document required to be recorded has
been returned from the recording office with evidence of recording thereon or
a certified copy has been obtained from the recording office. If the Trustee
or the Custodian, as its agent, finds a Material Defect, the Trustee or the
Custodian, as its agent, shall promptly notify the Seller (provided,
however, that with respect to those documents described in Sections
2.01(b)(iv), (v) and (vii), the Trustee's and Custodian's obligations shall
extend only to the documents actually delivered to the Trustee or the
Custodian pursuant to such Sections). In accordance with the Mortgage Loan
Purchase Agreement, the Seller shall correct or cure any such defect within
90 days from the date of notice from the Trustee or the Custodian, as its
agent, of the Material Defect and if the Seller is unable to cure such defect
within such period, and if such defect materially and adversely affects the
interests of the Certificateholders in the related Mortgage Loan, the Trustee
shall enforce the Seller's obligation under the Mortgage Loan Purchase
Agreement to provide a Substitute Mortgage Loan (if within two years of the
Closing Date) or purchase such Mortgage Loan at the Repurchase Price;
provided, however, that if such defect would cause the Mortgage Loan to be
other than a "qualified mortgage" as defined in Section 860G(a)(3) of the
Code, any such cure, repurchase or substitution must occur within 90 days
from the date such breach was discovered; provided, further, that if such
defect relates solely to the inability of the Seller to deliver the original
Security Instrument or intervening assignments thereof, or a certified copy,
because the originals of such documents or a certified copy, have not been
returned by the applicable jurisdiction, the Seller shall not be required to
purchase such Mortgage Loan, if the Seller delivers such original documents
or certified copy promptly upon receipt, but in no event later than 360 days
after the Closing Date. The foregoing repurchase obligation shall not apply
in the event that the Seller cannot deliver such original or copy of any
document submitted for recording to the appropriate recording office in the
applicable jurisdiction because such document has not been returned by such
office; provided that the Seller shall instead deliver a recording receipt of
such recording office or, if such receipt is not available, a certificate
confirming that such documents have been accepted for recording, and delivery
to the Trustee or the Custodian, as its agent, shall be effected by the
Seller within thirty days of its receipt of the original recorded document.
(c) In the event that a Mortgage Loan is purchased by the Seller in
accordance with Sections 2.02(a) or (b) above, the Seller shall remit to the
Master Servicer the Repurchase Price for deposit in the Master Servicer
Collection Account and the Seller shall provide to the Securities
Administrator and the Trustee written notification detailing the components
of the Repurchase Price. Upon deposit of the Repurchase Price in the Master
Servicer Collection Account, the Depositor shall notify the Trustee and the
Custodian, as agent of the Trustee (upon receipt of a Request for Release in
the form of Exhibit D attached hereto with respect to such Mortgage Loan),
shall release to the Seller the related Mortgage File and the Trustee shall
execute and deliver all instruments of transfer or assignment, without
recourse, representation or warranty, furnished to it by the Seller, as are
necessary to vest in the Seller title to and rights under the Mortgage Loan.
Such purchase shall be deemed to have occurred on the date on which the
Repurchase Price in available funds is received by the Trustee. The Trustee
shall amend the Mortgage Loan Schedule, which was previously delivered to it
by the Depositor in a form agreed to between the Depositor and the Trustee,
to reflect such repurchase and shall promptly notify the Rating Agencies and
the Master Servicer of such amendment. The obligation of the Seller to
repurchase any Mortgage Loan as to which such a defect in a constituent
document exists shall be the sole remedy respecting such defect available to
the Certificateholders or to the Trustee on their behalf.
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase
Agreement. (a) The Depositor hereby assigns to the Trustee, on behalf of the
Certificateholders, all of its right, title and interest in the Mortgage Loan
Purchase Agreement, including but not limited to the Depositor's rights and
obligations pursuant to the Servicing Agreements (noting that the Seller has
retained the right in the event of breach of the representations, warranties
and covenants, if any, with respect to the related Mortgage Loans of the
related Servicer under the related Servicing Agreement to enforce the
provisions thereof and to seek all or any available remedies). The
obligations of the Seller to substitute or repurchase, as applicable, a
Mortgage Loan shall be the Trustee's and the Certificateholders' sole remedy
for any breach thereof. At the request of the Trustee, the Depositor shall
take such actions as may be necessary to enforce the above right, title and
interest on behalf of the Trustee and the Certificateholders or shall execute
such further documents as the Trustee may reasonably require in order to
enable the Trustee to carry out such enforcement.
(b) If the Depositor, the Master Servicer, or the Trustee discovers a breach
of any of the representations and warranties set forth in the Mortgage Loan
Purchase Agreement, which breach materially and adversely affects the value
of the interests of Certificateholders or the Trustee in the related Mortgage
Loan, the party discovering the breach shall give prompt written notice of
the breach to the other parties. The Seller, within 90 days of its discovery
or receipt of notice that such breach has occurred (whichever occurs
earlier), shall cure the breach in all material respects or, subject to the
Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, shall purchase the Mortgage Loan or any property acquired with
respect thereto from the Trustee; provided, however, that if there is a
breach of any representation set forth in the Mortgage Loan Purchase
Agreement or Section 2.04 of this Agreement, as applicable, and the Mortgage
Loan or the related property acquired with respect thereto has been sold,
then the Seller shall pay, in lieu of the Repurchase Price, any excess of the
Repurchase Price over the Net Liquidation Proceeds received upon such sale.
(If the Net Liquidation Proceeds exceed the Repurchase Price, any excess
shall be paid to the Seller to the extent not required by law to be paid to
the borrower.) Any such purchase by the Seller shall be made by providing an
amount equal to the Repurchase Price to the Master Servicer for deposit in
the Master Servicer Collection Account and written notification detailing the
components of such Repurchase Price. The Depositor shall notify the Trustee
and submit to the Trustee or the Custodian, as its agent, a Request for
Release, and the Trustee shall release, or the Trustee shall cause the
Custodian to release, to the Seller the related Mortgage File and the Trustee
shall execute and deliver all instruments of transfer or assignment furnished
to it by the Seller, without recourse, representation or warranty as are
necessary to vest in the Seller title to and rights under the Mortgage Loan
or any property acquired with respect thereto. Such purchase shall be deemed
to have occurred on the date on which the Repurchase Price in available funds
is received by the Trustee. The Securities Administrator shall amend the
Mortgage Loan Schedule to reflect such repurchase and shall promptly notify
the Trustee and the Rating Agencies of such amendment. Enforcement of the
obligation of the Seller to purchase (or substitute a Substitute Mortgage
Loan for) any Mortgage Loan or any property acquired with respect thereto (or
pay the Repurchase Price as set forth in the above proviso) as to which a
breach has occurred and is continuing shall constitute the sole remedy
respecting such breach available to the Certificateholders or the Trustee on
their behalf.
Section 2.04 Substitution of Mortgage Loans. Notwithstanding anything
to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan
pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of
this Agreement, the Seller may, no later than the date by which such purchase
by the Seller would otherwise be required, tender to the Trustee a Substitute
Mortgage Loan accompanied by a certificate of an authorized officer of the
Seller that such Substitute Mortgage Loan conforms to the requirements set
forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan
Purchase Agreement or this Agreement, as applicable; provided, however, that
substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04
of this Agreement, as applicable, in lieu of purchase shall not be permitted
after the termination of the two-year period beginning on the Startup Day;
provided, further, that if the breach would cause the Mortgage Loan to be
other than a "qualified mortgage" as defined in Section 860G(a)(3) of the
Code, any such cure or substitution must occur within 90 days from the date
the breach was discovered. The Trustee or the Custodian, as its agent, shall
examine the Mortgage File for any Substitute Mortgage Loan in the manner set
forth in Section 2.02(a) and the Trustee or the Custodian, as its agent,
shall notify the Seller, in writing, within five Business Days after receipt,
whether or not the documents relating to the Substitute Mortgage Loan satisfy
the requirements of the fourth sentence of Section 2.02(a). Within two
Business Days after such notification, the Seller shall provide to the
Trustee for deposit in the Distribution Account the amount, if any, by which
the Outstanding Principal Balance as of the next preceding Due Date of the
Mortgage Loan for which substitution is being made, after giving effect to
the Scheduled Principal due on such date, exceeds the Outstanding Principal
Balance as of such date of the Substitute Mortgage Loan, after giving effect
to Scheduled Principal due on such date, which amount shall be treated for
the purposes of this Agreement as if it were the payment by the Seller of the
Repurchase Price for the purchase of a Mortgage Loan by the Seller. After
such notification to the Seller and, if any such excess exists, upon receipt
of such deposit, the Trustee shall accept such Substitute Mortgage Loan which
shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of
such a substitution, accrued interest on the Substitute Mortgage Loan for the
month in which the substitution occurs and any Principal Prepayments made
thereon during such month shall be the property of the Trust Fund and accrued
interest for such month on the Mortgage Loan for which the substitution is
made and any Principal Prepayments made thereon during such month shall be
the property of the Seller. The Scheduled Principal on a Substitute Mortgage
Loan due on the Due Date in the month of substitution shall be the property
of the Seller and the Scheduled Principal on the Mortgage Loan for which the
substitution is made due on such Due Date shall be the property of the Trust
Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the
Trustee or the Custodian as agent of the Trustee, as applicable, of a Request
for Release for such Mortgage Loan), the Trustee or the Custodian, as agent
for the Trustee, shall release to the Seller the related Mortgage File
related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase
Agreement or Section 2.04 of this Agreement, as applicable, and shall execute
and deliver all instruments of transfer or assignment, without recourse,
representation or warranty in form as provided to it as are necessary to vest
in the Seller title to and rights under any Mortgage Loan released pursuant
to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable. The Seller shall deliver the documents related to the Substitute
Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase
Agreement or Sections 2.01(b) and 2.02(b) of this Agreement, as applicable,
with the date of acceptance of the Substitute Mortgage Loan deemed to be the
Closing Date for purposes of the time periods set forth in those Sections.
The representations and warranties set forth in the Mortgage Loan Purchase
Agreement shall be deemed to have been made by the Seller with respect to
each Substitute Mortgage Loan as of the date of acceptance of such Mortgage
Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan
Schedule to reflect such substitution and shall provide a copy of such
amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.
Section 2.05 Issuance of Certificates.
(a) The Trustee acknowledges the assignment to it of the Mortgage Loans and
the other assets comprising the Trust Fund and, concurrently therewith, has
signed, and countersigned and delivered to the Depositor, in exchange
therefor, Certificates in such authorized denominations representing such
Fractional Undivided Interests as the Depositor has requested. The Trustee
agrees that it will hold the Mortgage Loans and such other assets as may from
time to time be delivered to it segregated on the books of the Trustee in
trust for the benefit of the Certificateholders.
(b) The Depositor, concurrently with the execution and delivery hereof, does
hereby transfer, assign, set over and otherwise convey in trust to the
Trustee without recourse all the right, title and interest of the Depositor
in and to the REMIC I Regular Interests, and the other assets of REMIC II for
the benefit of the holders of the REMIC II Certificates. The Trustee
acknowledges receipt of the REMIC I Regular Interests (which are
uncertificated) and the other assets of REMIC II and declares that it holds
and will hold the same in trust for the exclusive use and benefit of the
holders of the REMIC II Certificates.
Section 2.06 Representations and Warranties Concerning the Depositor.
The Depositor hereby represents and warrants to the Trustee, the Master
Servicer and the Securities Administrator as follows:
(i) the Depositor (a) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and (b) is qualified
and in good standing as a foreign corporation to do business in each
jurisdiction where such qualification is necessary, except where the failure
so to qualify would not reasonably be expected to have a material adverse
effect on the Depositor's business as presently conducted or on the
Depositor's ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(ii) the Depositor has full corporate power to own its property, to carry on
its business as presently conducted and to enter into and perform its
obligations under this Agreement;
(iii) the execution and delivery by the Depositor of this Agreement have been
duly authorized by all necessary corporate action on the part of the
Depositor; and neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute
a default under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties or the articles of incorporation or by-laws of the Depositor,
except those conflicts, breaches or defaults which would not reasonably be
expected to have a material adverse effect on the Depositor's ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(iv) the execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except those consents, approvals,
notices, registrations or other actions as have already been obtained, given
or made;
(v) this Agreement has been duly executed and delivered by the Depositor and,
assuming due authorization, execution and delivery by the other parties
hereto, constitutes a valid and binding obligation of the Depositor
enforceable against it in accordance with its terms (subject to applicable
bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally);
(vi) there are no actions, suits or proceedings pending or, to the knowledge
of the Depositor, threatened against the Depositor, before or by any court,
administrative agency, arbitrator or governmental body (i) with respect to
any of the transactions contemplated by this Agreement or (ii) with respect
to any other matter which in the judgment of the Depositor will be determined
adversely to the Depositor and will if determined adversely to the Depositor
materially and adversely affect the Depositor's ability to enter into this
Agreement or perform its obligations under this Agreement; and the Depositor
is not in default with respect to any order of any court, administrative
agency, arbitrator or governmental body so as to materially and adversely
affect the transactions contemplated by this Agreement; and
(vii) immediately prior to the transfer and assignment to the Trustee, each
Mortgage Note and each Mortgage were not subject to an assignment or pledge,
and the Depositor had good and marketable title to and was the sole owner
thereof and had full right to transfer and sell such Mortgage Loan to the
Trustee free and clear of any encumbrance, equity, lien, pledge, charge,
claim or security interest.
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01 Master Servicer. The Master Servicer shall supervise,
monitor and oversee the obligation of the Servicers to service and administer
their respective Mortgage Loans in accordance with the terms of the
applicable Servicing Agreements and shall have full power and authority to do
any and all things which it may deem necessary or desirable in connection
with such master servicing and administration. In performing its obligations
hereunder, the Master Servicer shall act in a manner consistent with Accepted
Master Servicing Practices. Furthermore, the Master Servicer shall oversee
and consult with each Servicer as necessary from time-to-time to carry out
the Master Servicer's obligations hereunder, shall receive, review and
evaluate all reports, information and other data provided to the Master
Servicer by each Servicer and shall cause each Servicer to perform and
observe the covenants, obligations and conditions to be performed or observed
by such Servicer under its applicable Servicing Agreement. The Master
Servicer shall independently and separately monitor each Servicer's servicing
activities with respect to each related Mortgage Loan, reconcile the results
of such monitoring with such information provided in the previous sentence on
a monthly basis and coordinate corrective adjustments to the Servicers' and
Master Servicer's records, and based on such reconciled and corrected
information, the Master Servicer shall provide such information to the
Securities Administrator as shall be necessary in order for it to prepare the
statements specified in Section 6.04, and prepare any other information and
statements required to be forwarded by the Master Servicer hereunder. The
Master Servicer shall reconcile the results of its Mortgage Loan monitoring
with the actual remittances of the Servicers to the Protected Accounts
pursuant to the applicable Servicing Agreements.
The Trustee shall furnish the Servicers and the Master Servicer with
any powers of attorney, in substantially the form attached hereto as Exhibit
K, and other documents in form as provided to it necessary or appropriate to
enable the Servicers and the Master Servicer to service and administer the
related Mortgage Loans and REO Property.
The Trustee shall provide access to the records and documentation in
possession of the Trustee regarding the related Mortgage Loans and REO
Property and the servicing thereof to the Certificateholders, the FDIC, and
the supervisory agents and examiners of the FDIC, such access being afforded
only upon reasonable prior written request and during normal business hours
at the office of the Trustee; provided, however, that, unless otherwise
required by law, the Trustee shall not be required to provide access to such
records and documentation if the provision thereof would violate the legal
right to privacy of any Mortgagor. The Trustee shall allow representatives
of the above entities to photocopy any of the records and documentation and
shall provide equipment for that purpose at a charge that covers the
Trustee's actual costs.
The Trustee shall execute and deliver to the Servicer and the Master
Servicer any court pleadings, requests for trustee's sale or other documents
necessary or desirable to (i) the foreclosure or trustee's sale with respect
to a Mortgaged Property; (ii) any legal action brought to obtain judgment
against any Mortgagor on the Mortgage Note or Security Instrument;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or Security Instrument
or otherwise available at law or equity.
Section 3.02 REMIC-Related Covenants. For as long as each 2004-11 REMIC
shall exist, the Trustee and the Securities Administrator shall act in
accordance herewith to assure continuing treatment of such 2004-11 REMIC as a
REMIC, and the Trustee and the Securities Administrator shall comply with any
directions of the Depositor, the related Servicer or the Master Servicer to
assure such continuing treatment. In particular, the Trustee shall not (a)
sell or permit the sale of all or any portion of the Mortgage Loans or of any
investment of deposits in an Account unless such sale is as a result of a
repurchase of the Mortgage Loans pursuant to this Agreement or the Trustee
has received a REMIC Opinion addressed to the Trustee prepared at the expense
of the Trust Fund; and (b) other than with respect to a substitution pursuant
to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, accept any contribution to any 2004-11 REMIC after the Startup
Day without receipt of a REMIC Opinion addressed to the Trustee.
Section 3.03 Monitoring of Servicers. (a) The Master Servicer shall be
responsible for reporting to the Trustee and the Depositor the compliance by
each Servicer with its duties under the related Servicing Agreement. In the
review of each Servicer's activities, the Master Servicer may rely upon an
officer's certificate of the Servicer (or similar document signed by an
officer of the Servicer) with regard to such Servicer's compliance with the
terms of its Servicing Agreement. In the event that the Master Servicer, in
its judgment, determines that a Servicer should be terminated in accordance
with its Servicing Agreement, or that a notice should be sent pursuant to
such Servicing Agreement with respect to the occurrence of an event that,
unless cured, would constitute grounds for such termination, the Master
Servicer shall notify the Depositor and the Trustee thereof and the Master
Servicer shall issue such notice or take such other action as it deems
appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of
such Servicer thereunder and act as servicer of the related Mortgage Loans or
cause the Trustee to enter in to a new Servicing Agreement with a successor
Servicer selected by the Master Servicer; provided, however, it is understood
and acknowledged by the parties hereto that there will be a period of
transition (not to exceed 90 days) before the actual servicing functions can
be fully transferred to such successor Servicer. Such enforcement,
including, without limitation, the legal prosecution of claims, termination
of Servicing Agreements and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the
Master Servicer, in its good faith business judgment, would require were it
the owner of the related Mortgage Loans. The Master Servicer shall pay the
costs of such enforcement at its own expense, provided that the Master
Servicer shall not be required to prosecute or defend any legal action except
to the extent that the Master Servicer shall have received reasonable
indemnity for its costs and expenses in pursuing such action.
(c) To the extent that the costs and expenses of the Master Servicer related
to any termination of a Servicer, appointment of a successor Servicer or the
transfer and assumption of servicing by the Master Servicer with respect to
any Servicing Agreement (including, without limitation, (i) all legal costs
and expenses and all due diligence costs and expenses associated with an
evaluation of the potential termination of the Servicer as a result of an
event of default by such Servicer and (ii) all costs and expenses associated
with the complete transfer of servicing, including, but not limited to, all
servicing files and all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the successor
servicer to correct any errors or insufficiencies in the servicing data or
otherwise to enable the successor service to service the Mortgage Loans in
accordance with the related Servicing Agreement) are not fully and timely
reimbursed by the terminated Servicer, the Master Servicer shall be entitled
to reimbursement of such costs and expenses from the Master Servicer
Collection Account.
(d) The Master Servicer shall require each Servicer to comply with the
remittance requirements and other obligations set forth in the related
Servicing Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume liability for
the representations and warranties of the Servicer, if any, that it replaces.
Section 3.04 Fidelity Bond. The Master Servicer, at its expense, shall
maintain in effect a blanket fidelity bond and an errors and omissions
insurance policy, affording coverage with respect to all directors, officers,
employees and other Persons acting on such Master Servicer's behalf, and
covering errors and omissions in the performance of the Master Servicer's
obligations hereunder. The errors and omissions insurance policy and the
fidelity bond shall be in such form and amount generally acceptable for
entities serving as master servicers or trustees.
Section 3.05 Power to Act; Procedures. The Master Servicer shall master
service the Mortgage Loans and shall have full power and authority, subject
to the REMIC Provisions and the provisions of Article X hereof, to do any and
all things that it may deem necessary or desirable in connection with the
master servicing and administration of the Mortgage Loans, including but not
limited to the power and authority (i) to execute and deliver, on behalf of
the Certificateholders and the Trustee, customary consents or waivers and
other instruments and documents, (ii) to consent to transfers of any
Mortgaged Property and assumptions of the Mortgage Notes and related
Mortgages, (iii) to collect any Insurance Proceeds and Liquidation Proceeds,
and (iv) to effectuate foreclosure or other conversion of the ownership of
the Mortgaged Property securing any Mortgage Loan, in each case, in
accordance with the provisions of this Agreement and the Servicing Agreement,
as applicable; provided, however, that the Master Servicer shall not (and,
consistent with its responsibilities under Section 3.03, shall not permit any
Servicer to) knowingly or intentionally take any action, or fail to take (or
fail to cause to be taken) any action reasonably within its control and the
scope of duties more specifically set forth herein, that, under the REMIC
Provisions, if taken or not taken, as the case may be, would cause any
2004-11 REMIC to fail to qualify as a REMIC or result in the imposition of a
tax upon the Trust Fund (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code) unless the
Master Servicer has received an Opinion of Counsel (but not at the expense of
the Master Servicer) to the effect that the contemplated action would not
cause any 2004-11 REMIC to fail to qualify as a REMIC or result in the
imposition of a tax upon any 2004-11 REMIC. The Trustee shall furnish the
Master Servicer, upon written request from a Servicing Officer, with any
powers of attorney empowering the Master Servicer or any Servicer to execute
and deliver instruments of satisfaction or cancellation, or of partial or
full release or discharge, and to foreclose upon or otherwise liquidate
Mortgaged Property, and to appeal, prosecute or defend in any court action
relating to the Mortgage Loans or the Mortgaged Property, in accordance with
the applicable Servicing Agreement and this Agreement, and the Trustee shall
execute and deliver such other documents, as the Master Servicer may request,
to enable the Master Servicer to master service and administer the Mortgage
Loans and carry out its duties hereunder, in each case in accordance with
Accepted Master Servicing Practices (and the Trustee shall have no liability
for misuse of any such powers of attorney by the Master Servicer or any
Servicer). If the Master Servicer or the Trustee has been advised that it is
likely that the laws of the state in which action is to be taken prohibit
such action if taken in the name of the Trustee or that the Trustee would be
adversely affected under the "doing business" or tax laws of such state if
such action is taken in its name, the Master Servicer shall join with the
Trustee in the appointment of a co-trustee pursuant to Section 9.11 hereof.
In the performance of its duties hereunder, the Master Servicer shall be an
independent contractor and shall not, except in those instances where it is
taking action in the name of the Trustee, be deemed to be the agent of the
Trustee.
Section 3.06 Due-on-Sale Clauses; Assumption Agreements. To the extent
provided in the applicable Servicing Agreement, to the extent Mortgage Loans
contain enforceable due-on-sale clauses, the Master Servicer shall cause the
Servicers to enforce such clauses in accordance with the applicable Servicing
Agreement. If applicable law prohibits the enforcement of a due-on-sale
clause or such clause is otherwise not enforced in accordance with the
applicable Servicing Agreement, and, as a consequence, a Mortgage Loan is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
Section 3.07 Release of Mortgage Files. (a) Upon becoming aware of the
payment in full of any Mortgage Loan, or the receipt by any Servicer of a
notification that payment in full has been escrowed in a manner customary for
such purposes for payment to Certificateholders on the next Distribution
Date, the Servicer will, if required under the applicable Servicing Agreement
(or if the Servicer does not, the Master Servicer may), promptly furnish to
the Custodian, on behalf of the Trustee, two copies of a certification
substantially in the form of Exhibit D hereto signed by a Servicing Officer
or in a mutually agreeable electronic format which will, in lieu of a
signature on its face, originate from a Servicing Officer (which
certification shall include a statement to the effect that all amounts
received in connection with such payment that are required to be deposited in
the Protected Account maintained by the applicable Servicer pursuant to
Section 4.01 or by the applicable Servicer pursuant to its Servicing
Agreement have been or will be so deposited) and shall request that the
Custodian, on behalf of the Trustee, deliver to the applicable Servicer the
related Mortgage File. Upon receipt of such certification and request, the
Custodian, on behalf of the Trustee, shall promptly release the related
Mortgage File to the applicable Servicer and the Trustee and Custodian shall
have no further responsibility with regard to such Mortgage File. Upon any
such payment in full, each Servicer is authorized, to give, as agent for the
Trustee, as the mortgagee under the Mortgage that secured the Mortgage Loan,
an instrument of satisfaction (or assignment of mortgage without recourse)
regarding the Mortgaged Property subject to the Mortgage, which instrument of
satisfaction or assignment, as the case may be, shall be delivered to the
Person or Persons entitled thereto against receipt therefor of such payment,
it being understood and agreed that no expenses incurred in connection with
such instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Protected Account.
(b) From time to time and as appropriate for the servicing or foreclosure of
any Mortgage Loan and in accordance with the applicable Servicing Agreement,
the Trustee shall execute such documents as shall be prepared and furnished
to the Trustee by a Servicer or the Master Servicer (in form reasonably
acceptable to the Trustee) and as are necessary to the prosecution of any
such proceedings. The Custodian, on behalf of the Trustee, shall, upon the
request of a Servicer or the Master Servicer, and delivery to the Custodian,
on behalf of the Trustee, of two copies of a request for release signed by a
Servicing Officer substantially in the form of Exhibit D (or in a mutually
agreeable electronic format which will, in lieu of a signature on its face,
originate from a Servicing Officer), release the related Mortgage File held
in its possession or control to the Servicer or the Master Servicer, as
applicable. Such trust receipt shall obligate the Servicer or the Master
Servicer to return the Mortgage File to the Custodian on behalf of the
Trustee, when the need therefor by the Servicer or the Master Servicer no
longer exists unless the Mortgage Loan shall be liquidated, in which case,
upon receipt of a certificate of a Servicing Officer similar to that
hereinabove specified, the Mortgage File shall be released by the Custodian,
on behalf of the Trustee, to the Servicer or the Master Servicer.
Section 3.08 Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee.
(a) The Master Servicer shall transmit and each Servicer (to the extent
required by the related Servicing Agreement) shall transmit to the Trustee or
Custodian such documents and instruments coming into the possession of the
Master Servicer or such Servicer from time to time as are required by the
terms hereof, or in the case of the Servicers, the applicable Servicing
Agreement, to be delivered to the Trustee or Custodian. Any funds received
by the Master Servicer or by a Servicer in respect of any Mortgage Loan or
which otherwise are collected by the Master Servicer or by a Servicer as
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan
shall be held for the benefit of the Trustee and the Certificateholders
subject to the Master Servicer's right to retain or withdraw from the Master
Servicer Collection Account the Master Servicing Compensation and other
amounts provided in this Agreement, and to the right of each Servicer to
retain its Servicing Fee and other amounts as provided in the applicable
Servicing Agreement. The Master Servicer shall, and (to the extent provided
in the applicable Servicing Agreement) shall cause each Servicer to, provide
access to information and documentation regarding the Mortgage Loans to the
Trustee, its agents and accountants at any time upon reasonable request and
during normal business hours, and to Certificateholders that are savings and
loan associations, banks or insurance companies, the Office of Thrift
Supervision, the FDIC and the supervisory agents and examiners of such Office
and Corporation or examiners of any other federal or state banking or
insurance regulatory authority if so required by applicable regulations of
the Office of Thrift Supervision or other regulatory authority, such access
to be afforded without charge but only upon reasonable request in writing and
during normal business hours at the offices of the Master Servicer designated
by it. In fulfilling such a request the Master Servicer shall not be
responsible for determining the sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under the control
of, the Master Servicer, in respect of any Mortgage Loans, whether from the
collection of principal and interest payments or from Liquidation Proceeds or
Insurance Proceeds, shall be held by the Master Servicer for and on behalf of
the Trustee and the Certificateholders and shall be and remain the sole and
exclusive property of the Trustee; provided, however, that the Master
Servicer and each Servicer shall be entitled to setoff against, and deduct
from, any such funds any amounts that are properly due and payable to the
Master Servicer or such Servicer under this Agreement or the applicable
Servicing Agreement.
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies.
(a) For each Mortgage Loan, the Master Servicer shall enforce any obligation
of the Servicers under the related Servicing Agreements to maintain or cause
to be maintained standard fire and casualty insurance and, where applicable,
flood insurance, all in accordance with the provisions of the related
Servicing Agreements. It is understood and agreed that such insurance shall
be with insurers meeting the eligibility requirements set forth in the
applicable Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
(b) Pursuant to Section 4.01 and 4.02, any amounts collected by the Servicers
or the Master Servicer, under any insurance policies (other than amounts to
be applied to the restoration or repair of the property subject to the
related Mortgage or released to the Mortgagor in accordance with the
applicable Servicing Agreement) shall be deposited into the Master Servicer
Collection Account, subject to withdrawal pursuant to Section 4.02 and 4.03.
Any cost incurred by the Master Servicer or any Servicer in maintaining any
such insurance if the Mortgagor defaults in its obligation to do so shall be
added to the amount owing under the Mortgage Loan where the terms of the
Mortgage Loan so permit; provided, however, that the addition of any such
cost shall not be taken into account for purposes of calculating the
distributions to be made to Certificateholders and shall be recoverable by
the Master Servicer or such Servicer pursuant to Section 4.02 and 4.03.
Section 3.10 Presentment of Claims and Collection of Proceeds. The
Master Servicer shall (to the extent provided in the applicable Servicing
Agreement) cause the related Servicer to, prepare and present on behalf of
the Trustee and the Certificateholders all claims under the Insurance
Policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to a Servicer and remitted to the Master Servicer) in
respect of such policies, bonds or contracts shall be promptly deposited in
the Master Servicer Collection Account upon receipt, except that any amounts
realized that are to be applied to the repair or restoration of the related
Mortgaged Property as a condition precedent to the presentation of claims on
the related Mortgage Loan to the insurer under any applicable Insurance
Policy need not be so deposited (or remitted).
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies.
(a) The Master Servicer shall not take, or permit any Servicer (to the extent
such action is prohibited under the applicable Servicing Agreement) to take,
any action that would result in noncoverage under any applicable Primary
Mortgage Insurance Policy of any loss which, but for the actions of the
Master Servicer or such Servicer, would have been covered thereunder. The
Master Servicer shall use its best reasonable efforts to cause each Servicer
(to the extent required under the related Servicing Agreement) to keep in
force and effect (to the extent that the Mortgage Loan requires the Mortgagor
to maintain such insurance), primary mortgage insurance applicable to each
Mortgage Loan in accordance with the provisions of this Agreement and the
related Servicing Agreement, as applicable. The Master Servicer shall not,
and shall not permit any Servicer (to the extent required under the related
Servicing Agreement) to, cancel or refuse to renew any such Primary Mortgage
Insurance Policy that is in effect at the date of the initial issuance of the
Mortgage Note and is required to be kept in force hereunder except in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer (to the
extent required under the related Servicing Agreement) to present, on behalf
of the Trustee and the Certificateholders, claims to the insurer under any
Primary Mortgage Insurance Policies and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any Primary
Mortgage Insurance Policies respecting defaulted Mortgage Loans. Pursuant to
Section 4.01 and 4.02, any amounts collected by the Master Servicer or any
Servicer under any Primary Mortgage Insurance Policies shall be deposited in
the Master Servicer Collection Account, subject to withdrawal pursuant to
Section 4.03.
Section 3.12 Trustee to Retain Possession of Certain Insurance Policies
and Documents.
The Trustee (or the Custodian, as directed by the Trustee), shall
retain possession and custody of the originals (to the extent available) of
any Primary Mortgage Insurance Policies, or certificate of insurance if
applicable, and any certificates of renewal as to the foregoing as may be
issued from time to time as contemplated by this Agreement. Until all
amounts distributable in respect of the Certificates have been distributed in
full and the Master Servicer otherwise has fulfilled its obligations under
this Agreement, the Trustee (or its Custodian, if any, as directed by the
Trustee) shall also retain possession and custody of each Mortgage File in
accordance with and subject to the terms and conditions of this Agreement.
The Master Servicer shall promptly deliver or cause to be delivered to the
Trustee (or the Custodian, as directed by the Trustee), upon the execution or
receipt thereof the originals of any Primary Mortgage Insurance Policies, any
certificates of renewal, and such other documents or instruments that
constitute portions of the Mortgage File that come into the possession of the
Master Servicer from time to time.
Section 3.13 Realization Upon Defaulted Mortgage Loans. The Master
Servicer shall cause each Servicer (to the extent required under the related
Servicing Agreement) to foreclose upon, repossess or otherwise comparably
convert the ownership of Mortgaged Properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, all in
accordance with the applicable Servicing Agreement.
Section 3.14 Compensation for the Master Servicer.
The Master Servicer will be entitled to all income and gain realized
from any investment of funds in the Distribution Account and the Master
Servicer Collection Account, pursuant to Article IV, for the performance of
its activities hereunder. Servicing compensation in the form of assumption
fees, if any, late payment charges, as collected, if any, or otherwise (but
not including any prepayment premium or penalty) shall be retained by the
applicable Servicer and shall not be deposited in the Protected Account. The
Master Servicer will be entitled to retain, as additional compensation, any
interest remitted by a Servicer in connection with a Principal Prepayment in
full or otherwise in excess of amounts required to be remitted to the
Distribution Account (such amounts together with the amounts specified in the
first sentence of this Section 3.14, the "Master Servicing Compensation").
The Master Servicer shall be required to pay all expenses incurred by it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as provided in this Agreement.
Section 3.15 REO Property.
(a) In the event the Trust Fund acquires ownership of any REO Property in
respect of any related Mortgage Loan, the deed or certificate of sale shall
be issued to the Trustee, or to its nominee, on behalf of the related
Certificateholders. The Master Servicer shall, to the extent provided in the
applicable Servicing Agreement, cause the applicable Servicer to sell, any
REO Property as expeditiously as possible and in accordance with the
provisions of this Agreement and the related Servicing Agreement, as
applicable. Pursuant to its efforts to sell such REO Property, the Master
Servicer shall cause the applicable Servicer to protect and conserve, such
REO Property in the manner and to the extent required by the applicable
Servicing Agreement, in accordance with the REMIC Provisions and in a manner
that does not result in a tax on "net income from foreclosure property"
(unless such result would maximize the Trust Fund's after-tax return on such
property) or cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code.
(b) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property
in the Protected Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Monthly Advances and other unreimbursed advances as well
as any unpaid Servicing Fees from Liquidation Proceeds received in connection
with the final disposition of such REO Property; provided, that any such
unreimbursed Monthly Advances as well as any unpaid Servicing Fees may be
reimbursed or paid, as the case may be, prior to final disposition, out of
any net rental income or other net amounts derived from such REO Property.
(d) To the extent provided in the related Servicing Agreement, the
Liquidation Proceeds from the final disposition of the REO Property, net of
any payment to the Master Servicer and the applicable Servicer as provided
above shall be deposited in the Protected Account on or prior to the
Determination Date in the month following receipt thereof and be remitted by
wire transfer in immediately available funds to the Master Servicer for
deposit into the related Master Servicer Collection Account on the next
succeeding Servicer Remittance Date.
Section 3.16 Annual Officer's Certificate as to Compliance.
(a) The Master Servicer shall deliver to the Trustee and the Rating Agencies
on or before March 1 of each year, commencing on March 1, 2005, an Officer's
Certificate, certifying that with respect to the period ending December 31 of
the prior year: (i) such Servicing Officer has reviewed the activities of
such Master Servicer during the preceding calendar year or portion thereof
and its performance under this Agreement, (ii) to the best of such Servicing
Officer's knowledge, based on such review, such Master Servicer has performed
and fulfilled its duties, responsibilities and obligations under this
Agreement in all material respects throughout such year, or, if there has
been a default in the fulfillment of any such duties, responsibilities or
obligations, specifying each such default known to such Servicing Officer and
the nature and status thereof, (iii) nothing has come to the attention of
such Servicing Officer to lead such Servicing Officer to believe that any
Servicer has failed to perform any of its duties, responsibilities and
obligations under its Servicing Agreement in all material respects throughout
such year, or, if there has been a material default in the performance or
fulfillment of any such duties, responsibilities or obligations, specifying
each such default known to such Servicing Officer and the nature and status
thereof.
(b) Copies of such statements shall be provided to any Certificateholder upon
request, by the Master Servicer or by the Trustee at the Master Servicer's
expense if the Master Servicer failed to provide such copies (unless (i) the
Master Servicer shall have failed to provide the Trustee with such statement
or (ii) the Trustee shall be unaware of the Master Servicer's failure to
provide such statement).
Section 3.17 Annual Independent Accountant's Servicing Report. If the
Master Servicer has, during the course of any fiscal year, directly serviced
any of the Mortgage Loans, then the Master Servicer at its expense shall
cause a nationally recognized firm of independent certified public
accountants to furnish a statement to the Trustee, the Rating Agencies and
the Depositor on or before March 1 of each year, commencing on March 1, 2005
to the effect that, with respect to the most recently ended fiscal year, such
firm has examined certain records and documents relating to the Master
Servicer's performance of its servicing obligations under this Agreement and
pooling and servicing and trust agreements in material respects similar to
this Agreement and to each other and that, on the basis of such examination
conducted substantially in compliance with the audit program for mortgages
serviced for Xxxxxxx Mac or the Uniform Single Attestation Program for
Mortgage Bankers, such firm is of the opinion that the Master Servicer's
activities have been conducted in compliance with this Agreement, or that
such examination has disclosed no material items of noncompliance except for
(i) such exceptions as such firm believes to be immaterial, (ii) such other
exceptions as are set forth in such statement and (iii) such exceptions that
the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Program for Mortgages Serviced by Xxxxxxx Mac requires it to report. Copies
of such statements shall be provided to any Certificateholder upon request by
the Master Servicer, or by the Trustee at the expense of the Master Servicer
if the Master Servicer shall fail to provide such copies. If such report
discloses exceptions that are material, the Master Servicer shall advise the
Trustee whether such exceptions have been or are susceptible of cure, and
will take prompt action to do so.
Section 3.18 Reports Filed with Securities and Exchange Commission.
Within 15 days after each Distribution Date, the Securities Administrator
shall, in accordance with industry standards, file with the Commission via
the Electronic Data Gathering and Retrieval System ("XXXXX"), a Form 8-K (or
other comparable form containing the same or comparable information or other
information mutually agreed upon) with a copy of the statement to the Trustee
who shall (to the extent received from the Securities Administrator) make
available (via the Trustee's internet website) a copy of the monthly
statement to the Certificateholders for such Distribution Date as an exhibit
thereto. Prior to January 30 in each year, the Securities Administrator
shall, in accordance with industry standards and only if instructed by the
Depositor, file a Form 15 Suspension Notice with respect to the Trust Fund,
if applicable. Prior to (i) March 15, 2005 and (ii) unless and until a Form
15 Suspension Notice shall have been filed, prior to March 15 of each year
thereafter, the Master Servicer shall provide the Securities Administrator
with a Master Servicer Certification, together with a copy of the annual
independent accountant's servicing report and annual statement of compliance
of each Servicer, in each case, required to be delivered pursuant to the
related Servicing Agreement, and, if applicable, the annual independent
accountant's servicing report and annual statement of compliance to be
delivered by the Master Servicer pursuant to Sections 3.16 and 3.17. Prior to
(i) March 31, 2005, or such earlier filing date as may be required by the
Commission, and (ii) unless and until a Form 15 Suspension Notice shall have
been filed, March 31 of each year thereafter, or such earlier filing date as
may be required by the Commission, the Securities Administrator shall prepare
and file a Form 10-K, in substance conforming to industry standards, with
respect to the Trust. Such Form 10-K shall include the Master Servicer
Certification and other documentation provided by the Master Servicer
pursuant to the second preceding sentence. The Depositor hereby grants to the
Securities 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 either the earlier of (i) receipt by the Securities
Administrator from the Depositor of written termination of such power of
attorney and (ii) the termination of the Trust Fund. The Depositor agrees to
promptly furnish to the Securities 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
Securities Administrator reasonably deems appropriate to prepare and file all
necessary reports with the Commission. The Securities Administrator shall
have no responsibility to file any items other than those specified in this
Section 3.18; provided, however, the Securities Administrator will cooperate
with the Depositor in connection with any additional filings with respect to
the Trust Fund as the Depositor deems necessary under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). Fees and expenses incurred by
the Securities Administrator in connection with this Section 3.18 shall not
be reimbursable from the Trust Fund.
Section 3.19 The Company. On the Closing Date, the Company will receive
from the Depositor a payment of $5,000.
Section 3.20 UCC. The Depositor shall inform the Trustee in writing of
any Uniform Commercial Code financing statements that were filed on the
Closing Date in connection with the Trust with stamped recorded copies of
such financing statements to be delivered to the Trustee promptly upon
receipt by the Depositor. The Trustee agrees to monitor and notify the
Depositor if any continuation statements for such Uniform Commercial Code
financing statements need to be filed. If directed by the Depositor in
writing, the Trustee will file any such continuation statements solely at the
expense of the Depositor. The Depositor shall file any financing statements
or amendments thereto required by any change in the Uniform Commercial Code.
Section 3.21 Optional Purchase of Defaulted Mortgage Loans.
(a) With respect to any Mortgage Loan which as of the first day of a Calendar
Quarter is delinquent in payment by 90 days or more or is an REO Property,
the Company shall have the right to purchase such Mortgage Loan from the
Trust at a price equal to the Repurchase Price; provided however (i) that
such Mortgage Loan is still 90 days or more delinquent or is an REO Property
as of the date of such purchase and (ii) this purchase option, if not
theretofore exercised, shall terminate on the date prior to the last day of
the related Calendar Quarter. This purchase option, if not exercised, shall
not be thereafter reinstated unless the delinquency is cured and the Mortgage
Loan thereafter again becomes 90 days or more delinquent or becomes an REO
Property, in which case the option shall again become exercisable as of the
first day of the related Calendar Quarter.
(b) If at any time the Company remits to the Master Servicer a payment for
deposit in the Master Servicer Collection Account covering the amount of the
Repurchase Price for such a Mortgage Loan, and the Company provides to the
Trustee a certification signed by a Servicing Officer stating that the amount
of such payment has been deposited in the Master Servicer Collection Account,
then the Trustee shall execute the assignment of such Mortgage Loan to the
Company at the request of the Company without recourse, representation or
warranty and the Company shall succeed to all of the Trustee's right, title
and interest in and to such Mortgage Loan, and all security and documents
relative thereto. Such assignment shall be an assignment outright and not
for security. The Company will thereupon own such Mortgage, and all such
security and documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
ARTICLE IV
Accounts
Section 4.01 Protected Accounts. (a) The Master Servicer shall enforce
the obligation of each Servicer to establish and maintain a Protected Account
in accordance with the applicable Servicing Agreement, with records to be
kept with respect thereto on a Mortgage Loan by Mortgage Loan basis, into
which accounts shall be deposited within 48 hours (or as of such other time
specified in the related Servicing Agreement) of receipt, all collections of
principal and interest on any Mortgage Loan and with respect to any REO
Property received by a Servicer, including Principal Prepayments, Insurance
Proceeds, Liquidation Proceeds and advances made from the Servicer's own
funds (less servicing compensation as permitted by the applicable Servicing
Agreement in the case of any Servicer) and all other amounts to be deposited
in the Protected Account. The Servicer is hereby authorized to make
withdrawals from and deposits to the related Protected Account for purposes
required or permitted by this Agreement. To the extent provided in the
related Servicing Agreement, the Protected Account shall be held by a
Designated Depository Institution and segregated on the books of such
institution in the name of the Trustee for the benefit of Certificateholders.
(b) To the extent provided in the related Servicing Agreement, amounts on
deposit in a Protected Account may be invested in Permitted Investments in
the name of the Trustee for the benefit of Certificateholders and, except as
provided in the preceding paragraph, not commingled with any other funds.
Such Permitted Investments shall mature, or shall be subject to redemption or
withdrawal, no later than the date on which such funds are required to be
withdrawn for deposit in the Master Servicer Collection Account, and shall be
held until required for such deposit. The income earned from Permitted
Investments made pursuant to this Section 4.01 shall be paid to the related
Servicer under the applicable Servicing Agreement, and the risk of loss of
moneys required to be distributed to the Certificateholders resulting from
such investments shall be borne by and be the risk of the related Servicer.
The related Servicer (to the extent provided in the Servicing Agreement)
shall deposit the amount of any such loss in the Protected Account within two
Business Days of receipt of notification of such loss but not later than the
second Business Day prior to the Distribution Date on which the moneys so
invested are required to be distributed to the Certificateholders.
(c) To the extent provided in the related Servicing Agreement and subject to
this Article IV, on or before each Servicer Remittance Date, the related
Servicer shall withdraw or shall cause to be withdrawn from its Protected
Accounts and shall immediately deposit or cause to be deposited in the Master
Servicer Collection Account amounts representing the following collections
and payments (other than with respect to principal of or interest on the
Mortgage Loans due on or before the Cut-off Date) with respect to each Loan
Group:
(i) Scheduled Payments on the Mortgage Loans received or any related portion
thereof advanced by such Servicer pursuant to its Servicing Agreement which
were due during or before the related Due Period, net of the amount thereof
comprising its Servicing Fee or any fees with respect to any lender-paid
primary mortgage insurance policy;
(ii) Full Principal Prepayments and any Liquidation Proceeds received by such
Servicer with respect to the Mortgage Loans in the related Prepayment Period
(or, in the case of Subsequent Recoveries, during the related Due Period),
with interest to the date of prepayment or liquidation, net of the amount
thereof comprising its Servicing Fee;
(iii) Partial Principal Prepayments received by such Servicer for the
Mortgage Loans in the related Prepayment Period; and
(iv) Any amount to be used as a Monthly Advance.
(d) Withdrawals may be made from an Account only to make remittances as
provided in Section 4.01(c), 4.02 and 4.03; to reimburse the Master Servicer
or a Servicer for Monthly Advances which have been recovered by subsequent
collections from the related Mortgagor; to remove amounts deposited in error;
to remove fees, charges or other such amounts deposited on a temporary basis;
or to clear and terminate the account at the termination of this Agreement in
accordance with Section 10.01. As provided in Sections 4.01(c) and 4.02(b)
certain amounts otherwise due to the Servicers may be retained by them and
need not be deposited in the Master Servicer Collection Account.
(e) The Master Servicer shall not waive (or permit a Servicer to
waive) any 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, (ii) the
enforcement thereof is illegal, or any local, state or federal agency has
threatened legal action if the prepayment penalty is enforced, (iii) the
collectability thereof shall have been limited due to acceleration in
connection with a foreclosure or other involuntary payment or (iv) such
waiver is standard and customary in servicing similar Mortgage Loans and
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. 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. If a
Prepayment Charge is waived, but does not meet the standards described above,
then the Master Servicer is required to pay the amount of such waived
Prepayment Charge, for the benefit of the Class R Certificates, by remitting
such amount to the Trustee by the Distribution Account Deposit Date.
Section 4.02 Master Servicer Collection Account. (a) The Master
Servicer shall establish and maintain in the name of the Trustee, for the
benefit of the Certificateholders, the Master Servicer Collection Account as
a segregated trust account or accounts. The Master Servicer Collection
Account shall be an Eligible Account. The Master Servicer will deposit in
the Master Servicer Collection Account as identified by the Master Servicer
and as received by the Master Servicer, the following amounts:
(i) Any amounts withdrawn from a Protected Account;
(ii) Any Monthly Advance and any Compensating Interest Payments;
(iii) Any Insurance Proceeds or Net Liquidation Proceeds received by or on
behalf of the Master Servicer or which were not deposited in a Protected
Account;
(iv) The Repurchase Price with respect to any Mortgage Loans purchased by the
Seller pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or
2.03 hereof, any amounts which are to be treated pursuant to Section 2.04 of
this Agreement as the payment of a Repurchase Price in connection with the
tender of a Substitute Mortgage Loan by the Seller, the Repurchase Price with
respect to any Mortgage Loans purchased by the Company pursuant to
Section 3.21, and all proceeds of any Mortgage Loans or property acquired
with respect thereto repurchased by the Depositor or its designee pursuant to
Section 10.01;
(v) Any amounts required to be deposited with respect to losses on
investments of deposits in an Account; and
(vi) Any other amounts received by or on behalf of the Master Servicer and
required to be deposited in the Master Servicer Collection Account pursuant
to this Agreement.
(b) All amounts deposited to the Master Servicer Collection Account shall be
held by the Master Servicer in the name of the Trustee in trust for the
benefit of the Certificateholders in accordance with the terms and provisions
of this Agreement. The requirements for crediting the Master Servicer
Collection Account or the Distribution Account shall be exclusive, it being
understood and agreed that, without limiting the generality of the foregoing,
payments in the nature of (i) prepayment or late payment charges or
assumption, tax service, statement account or payoff, substitution,
satisfaction, release and other like fees and charges and (ii) the items
enumerated in Sections 4.05(a)(i) through (iv) and (vi) through (xii) with
respect to the Securities Administrator and the Master Servicer, need not be
credited by the Master Servicer or the Servicer to the Distribution Account
or the Master Servicer Collection Account, as applicable. In the event that
the Master Servicer shall deposit or cause to be deposited to the
Distribution Account any amount not required to be credited thereto, the
Trustee, upon receipt of a written request therefor signed by a Servicing
Officer of the Master Servicer, shall promptly transfer such amount to the
Master Servicer, any provision herein to the contrary notwithstanding.
(c) The amount at any time credited to the Master Servicer Collection Account
may be invested, in the name of the Trustee, or its nominee, for the benefit
of the Certificateholders, in Permitted Investments as directed by Master
Servicer. All Permitted Investments shall mature or be subject to redemption
or withdrawal on or before, and shall be held until, the next succeeding
Distribution Account Deposit Date. Any and all investment earnings on
amounts on deposit in the Master Servicer Account from time to time shall be
for the account of the Master Servicer. The Master Servicer from time to
time shall be permitted to withdraw or receive distribution of any and all
investment earnings from the Master Servicer Account. The risk of loss of
moneys required to be distributed to the Certificateholders resulting from
such investments shall be borne by and be the risk of the Master Servicer.
The Master Servicer shall deposit the amount of any such loss in the Master
Servicer Collection Account within two Business Days of receipt of
notification of such loss but not later than the second Business Day prior to
the Distribution Date on which the moneys so invested are required to be
distributed to the Certificateholders.
Section 4.03 Permitted Withdrawals and Transfers from the Master
Servicer Collection Account. (a) The Master Servicer will, from time to time
on demand of a Servicer or the Securities Administrator, make or cause to be
made such withdrawals or transfers from the Master Servicer Collection
Account as the Master Servicer has designated for such transfer or withdrawal
pursuant to this Agreement and the related Servicing Agreement. The Master
Servicer may clear and terminate the Master Servicer Collection Account
pursuant to Section 10.01 and remove amounts from time to time deposited in
error.
(b) On an ongoing basis, the Master Servicer shall withdraw from the Master
Servicer Collection Account (i) any expenses recoverable by the Trustee, the
Master Servicer or the Securities Administrator or the Custodian pursuant to
Sections 3.03, 7.04 and 9.05 and (ii) any amounts payable to the Master
Servicer as set forth in Section 3.14.
(c) In addition, on or before each Distribution Account Deposit Date, the
Master Servicer shall deposit in the Distribution Account (or remit to the
Trustee for deposit therein) any Monthly Advances required to be made by the
Master Servicer with respect to the Mortgage Loans.
(d) No later than 3:00 p.m. New York time on each Distribution Account
Deposit Date, the Master Servicer will transfer all Available Funds on
deposit in the Master Servicer Collection Account with respect to the related
Distribution Date to the Trustee for deposit in the Distribution Account.
Section 4.04 Distribution Account. (a) The Trustee shall establish and
maintain in the name of the Trustee, for the benefit of the
Certificateholders, the Distribution Account as a segregated trust account or
accounts.
(b) All amounts deposited to the Distribution Account shall be held by the
Trustee in the name of the Trustee in trust for the benefit of the
Certificateholders in accordance with the terms and provisions of this
Agreement.
(c) The Distribution Account shall constitute a trust account of the Trust
Fund segregated on the books of the Trustee and held by the Trustee in trust
in its Corporate Trust Office, and the Distribution Account and the funds
deposited therein shall not be subject to, and shall be protected from, all
claims, liens, and encumbrances of any creditors or depositors of the Trustee
or the Master Servicer (whether made directly, or indirectly through a
liquidator or receiver of the Trustee or the Master Servicer). The
Distribution Account shall be an Eligible Account. The amount at any time
credited to the Distribution Account shall be (i) held in cash and fully
insured by the FDIC to the maximum coverage provided thereby or (ii) invested
in the name of the Trustee, in such Permitted Investments selected by the
Master Servicer or deposited in demand deposits with such depository
institutions as selected by the Master Servicer, provided that time deposits
of such depository institutions would be a Permitted Investment. All
Permitted Investments shall mature or be subject to redemption or withdrawal
on or before, and shall be held until, the next succeeding Distribution Date
if the obligor for such Permitted Investment is the Trustee or, if such
obligor is any other Person, the Business Day preceding such Distribution
Date. All investment earnings on amounts on deposit in the Distribution
Account or benefit from funds uninvested therein from time to time shall be
for the account of the Master Servicer. The Master Servicer shall be
permitted to withdraw or receive distribution of any and all investment
earnings from the Distribution Account on each Distribution Date. If there
is any loss on a Permitted Investment or demand deposit, the Master Servicer
shall remit the amount of the loss to the Trustee who shall deposit such
amount in the Distribution Account. With respect to the Distribution Account
and the funds deposited therein, the Master Servicer shall take such action
as may be necessary to ensure that the Certificateholders shall be entitled
to the priorities afforded to such a trust account (in addition to a claim
against the estate of the Trustee) as provided by 12 U.S.C. § 92a(e), and
applicable regulations pursuant thereto, if applicable, or any applicable
comparable state statute applicable to state chartered banking corporations.
Section 4.05 Permitted Withdrawals and Transfers from the Distribution
Account. (a) The Trustee will, from time to time on demand of the Master
Servicer or the Securities Administrator, make or cause to be made such
withdrawals or transfers from the Distribution Account as the Master Servicer
has designated for such transfer or withdrawal pursuant to this Agreement and
the Servicing Agreements or as the Securities Administrator has instructed
hereunder for the following purposes (limited in the case of amounts due the
Master Servicer to those not withdrawn from the Master Servicer Collection
Account in accordance with the terms of this Agreement):
(i) to reimburse the Master Servicer or any Servicer for any Monthly Advance
of its own funds, the right of the Master Servicer or a Servicer to
reimbursement pursuant to this subclause (i) being limited to amounts
received on a particular Mortgage Loan (including, for this purpose, the
Repurchase Price therefor, Insurance Proceeds and Liquidation Proceeds) which
represent late payments or recoveries of the principal of or interest on such
Mortgage Loan with respect to which such Monthly Advance was made;
(ii) to reimburse the Master Servicer or any Servicer from Insurance Proceeds
or Liquidation Proceeds relating to a particular Mortgage Loan for amounts
expended by the Master Servicer or such Servicer in good faith in connection
with the restoration of the related Mortgaged Property which was damaged by
an Uninsured Cause or in connection with the liquidation of such Mortgage
Loan;
(iii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds relating to a particular Mortgage Loan for insured expenses incurred
with respect to such Mortgage Loan and to reimburse the Master Servicer or
such Servicer from Liquidation Proceeds from a particular Mortgage Loan for
Liquidation Expenses incurred with respect to such Mortgage Loan; provided
that the Master Servicer shall not be entitled to reimbursement for
Liquidation Expenses with respect to a Mortgage Loan to the extent that
(i) any amounts with respect to such Mortgage Loan were paid as Excess
Liquidation Proceeds pursuant to clause (xi) of this Section 4.05(a) to the
Master Servicer; and (ii) such Liquidation Expenses were not included in the
computation of such Excess Liquidation Proceeds;
(iv) to pay the Master Servicer or any Servicer, as appropriate, from
Liquidation Proceeds or Insurance Proceeds received in connection with the
liquidation of any Mortgage Loan, the amount which the Master Servicer or
such Servicer would have been entitled to receive under clause (ix) of this
Section 4.05(a) as servicing compensation on account of each defaulted
scheduled payment on such Mortgage Loan if paid in a timely manner by the
related Mortgagor;
(v) to pay the Master Servicer or any Servicer from the Repurchase Price for
any Mortgage Loan, the amount which the Master Servicer or such Servicer
would have been entitled to receive under clause (ix) of this Section 4.05(a)
as servicing compensation;
(vi) to reimburse the Master Servicer or any Servicer for advances of funds
(other than Monthly Advances) made with respect to the Mortgage Loans, and
the right to reimbursement pursuant to this clause being limited to amounts
received on the related Mortgage Loan (including, for this purpose, the
Repurchase Price therefor, Insurance Proceeds and Liquidation Proceeds) which
represent late recoveries of the payments for which such advances were made;
(vii) to reimburse the Master Servicer or any Servicer for any Monthly
Advance or advance, after a Realized Loss has been allocated with respect to
the related Mortgage Loan if the Monthly Advance or advance has not been
reimbursed pursuant to clauses (i) and (vi);
(viii) to pay the Master Servicer as set forth in Section 3.14;
(ix) to reimburse the Master Servicer for expenses, costs and liabilities
incurred by and reimbursable to it pursuant to Sections 3.03, 7.04(c) and (d);
(x) to pay to the Master Servicer, as additional servicing compensation, any
Excess Liquidation Proceeds to the extent not retained by the related
Servicer;
(xi) to reimburse or pay any Servicer any such amounts as are due thereto
under the applicable Servicing Agreement and have not been retained by or
paid to the Servicer, to the extent provided in the related Servicing
Agreement;
(xii) to reimburse the Trustee, the Securities Administrator or the Custodian
for expenses, costs and liabilities incurred by or reimbursable to it
pursuant to this Agreement;
(xiii) to remove amounts deposited in error; and
(xiv) to clear and terminate the Distribution Account pursuant to
Section 10.01.
(b) The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Distribution Account pursuant to clauses (i) through
(vi) and (viii) or with respect to any such amounts which would have been
covered by such clauses had the amounts not been retained by the Master
Servicer without being deposited in the Distribution Account under Section
4.02(b). Reimbursements made pursuant to clauses (vii), (ix), (xi) and (xii)
will be allocated between the Loan Groups pro rata based on the aggregate
Stated Principal Balances of the Mortgage Loans in each Loan Group.
(c) On each Distribution Date, the Trustee shall distribute the Interest
Funds, Principal Funds and Available Funds to the extent on deposit in the
Distribution Account for each Loan Group to the Holders of the Certificates
in accordance with distribution instructions provided to it by the Securities
Administrator no later than two Business Days prior to such Distribution Date
and determined by the Securities Administrator in accordance with
Section 6.01.
Section 4.06 Reserve Fund. (a) On or before the Closing Date, the
Trustee shall establish a Reserve Fund on behalf of the Holders of the Group
I Offered Certificates. The Reserve Fund must be an Eligible Account. The
Reserve Fund shall be entitled "Reserve Fund, JPMorgan Chase Bank as Trustee
for the benefit of holders of Structured Asset Mortgage Investments II Inc.,
Bear Xxxxxxx ALT-A Trust 2004-11, Mortgage Pass-Through Certificates, Series
2004-11, Class I-A-1, Class I-A-2, Class I-M-1, Class I-M-2, Class I-B-1 and
Class I-B-2". The Trustee shall demand payment of all money payable by Bear
Xxxxxxx Financial Products Inc. (the "Counterparty") under the Cap Contracts.
The Trustee shall deposit in the Reserve Fund all payments received by it
from the Counterparty pursuant to the Cap Contracts and, prior to
distribution of such amounts pursuant to Section 6.01.1(a), all payments
described under the eighth and ninth clauses of Section 6.01.1(a). On each
Distribution Date, the Trustee shall remit amounts received by it from the
Counterparty to the Holders of the applicable Group I Offered Certificates in
the manner provided in Section 6.01.1(b).
(b) The Reserve Fund is an "outside reserve fund" within the meaning
of Treasury Regulation '1.860G-2(h) and shall be an asset of the Trust Fund
but not an asset of any 2004-11 REMIC. The Trustee on behalf of the Trust
shall be the nominal owner of the Reserve Fund. For federal income tax
purposes, the Class B-IO Certificateholder shall be the beneficial owner of
the Reserve Fund, subject to the power of the Trustee to distribute amounts
under Section 6.01.1(b) and the eighth and ninth clauses of Section 6.01.1(a)
and shall report items of income, deduction, gain or loss arising therefrom.
For federal income tax purposes, amounts distributed to Certificateholders
pursuant to the eighth and ninth clauses of Section 6.01.1(a) will be treated
as first distributed to the Class B-IO Certificates and then paid from the
Class B-IO Certificateholders to the applicable holders of the Group I
Offered Certificates. Amounts in the Reserve Fund shall, at the written
direction of the Class B-IO Certificateholder, be held either uninvested in a
trust or deposit account of the Trustee with no liability for interest or
other compensation thereon or invested in Permitted Investments that mature
no later than the Business Day prior to the next succeeding Distribution
Date. To the extent that the Class B-IO Certificateholders have provided the
Trustee with such written direction to invest such funds in Permitted
Investments, on each Distribution Date the Trustee shall distribute all net
income and gain from such Permitted Investments in the Reserve Fund to the
Class B-IO Certificateholder, not as a distribution in respect of any
interest in any 2004-11 REMIC. All amounts earned on amounts on deposit in
the Reserve Fund shall be taxable to the Class B-IO Certificateholder. Any
losses on such Permitted Investments shall not in any case be a liability of
the Trustee but an amount equal to such losses shall be given by the Class
B-IO Certificateholder to the Trustee out of the Class B-IO
Certificateholders' own funds immediately as realized, for deposit by the
Trustee into the Reserve Fund.
Section 4.07 Class XP Reserve Account. (a) The Master Servicer shall
establish and maintain with itself a separate, segregated trust account,
which shall be an Eligible Account, titled "Reserve Account, Xxxxx Fargo
Bank, National Association, as Master Servicer f/b/o Bear Xxxxxxx ALT-A Trust
2004-11, Mortgage Pass-Through Certificates, Series 2004-11, Class XP". On
the Closing Date, the Depositor shall deposit $100 into the Class XP Reserve
Account. Funds on deposit in the Class XP Reserve Account shall be held in
trust by the Master Servicer for the holder of the Class XP Certificates.
(b) The amount on deposit in the Class XP Reserve Account shall be
held uninvested. On the earlier of (x) the Business Day prior to the
Distribution Date on which all the assets of the Trust Fund are repurchased
as described in Section 10.01(a) and (y) the Business Day prior to the
Distribution Date immediately following the Prepayment Period during which
the last Prepayment Charge on the Group I Mortgage Loans is payable by the
related Mortgagor, which Prepayment Period is the month of September 2010,
the Master Servicer shall withdraw the amount on deposit in the Class XP
Reserve Account and remit such amount to the Trustee and provide written
instruction to the Trustee to pay such amount to the Class XP Certificates in
reduction of the Certificate Principal Balance thereof.
ARTICLE V
Certificates
Section 5.01 Certificates. (a) The Depository, the Depositor and the
Trustee have entered into a Depository Agreement dated as of the Closing Date
(the "Depository Agreement"). Except for the Residual Certificates, the
Private Certificates and the Individual Certificates and as provided in
Section 5.01(b), the Certificates shall at all times remain registered in the
name of the Depository or its nominee and at all times: (i) registration of
such Certificates may not be transferred by the Trustee except to a successor
to the Depository; (ii) ownership and transfers of registration of such
Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository; (iii) the Depository may collect its
usual and customary fees, charges and expenses from its Depository
Participants; (iv) the Trustee shall deal with the Depository as
representative of such Certificate Owners of the respective Class of
Certificates for purposes of exercising the rights of Certificateholders
under this Agreement, and requests and directions for and votes of such
representative shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (v) the Trustee may rely and
shall be fully protected in relying upon information furnished by the
Depository with respect to its Depository Participants.
The Residual Certificates and the Private Certificates are initially
Physical Certificates. If at any time the Holders of all of the Certificates
of one or more such Classes request that the Trustee cause such Class to
become Global Certificates, the Trustee and the Depositor will take such
action as may be reasonably required to cause the Depository to accept such
Class or Classes for trading if it may legally be so traded.
All transfers by Certificate Owners of such respective Classes of
Book-Entry Certificates and any Global Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owners. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners
it represents or of brokerage firms for which it acts as agent in accordance
with the Depository's normal procedures.
(b) If (i)(A) the Depositor advises the Trustee 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 within 30 days or (ii) the Depositor at its option
advises the Trustee in writing that it elects to terminate the book-entry
system through the Depository, the Trustee shall request that the Depository
notify all Certificate Owners of the occurrence of any such event and of the
availability of definitive, fully registered Certificates to Certificate
Owners requesting the same. Upon surrender to the Trustee of the
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration, the Trustee shall issue the definitive
Certificates.
In addition, if an Event of Default has occurred and is continuing,
each Certificate Owner materially adversely affected thereby may at its
option request a definitive Certificate evidencing such Certificate Owner's
interest in the related Class of Certificates. In order to make such
request, such Certificate Owner shall, subject to the rules and procedures
of the Depository, provide the Depository or the related Depository
Participant with directions for the Trustee to exchange or cause the
exchange of the Certificate Owner's interest in such Class of Certificates
for an equivalent interest in fully registered definitive form. Upon
receipt by the Trustee of instructions from the Depository directing the
Trustee to effect such exchange (such instructions to contain information
regarding the Class of Certificates and the Certificate Principal Balance
being exchanged, the Depository Participant account to be debited with the
decrease, the registered holder of and delivery instructions for the
definitive Certificate, and any other information reasonably required by the
Trustee), (i) the Trustee shall instruct the Depository to reduce the
related Depository Participant's account by the aggregate Certificate
Principal Balance of the definitive Certificate, (ii) the Trustee shall
execute and deliver, in accordance with the registration and delivery
instructions provided by the Depository, a Definitive Certificate evidencing
such Certificate Owner's interest in such Class of Certificates and (iii)
the Trustee shall execute a new Book-Entry Certificate reflecting the
reduction in the aggregate Certificate Principal Balance of such Class of
Certificates by the amount of the definitive Certificates.
Neither the Depositor nor the Trustee shall be liable for any delay in
the delivery of any instructions required pursuant to this Section 5.01(b)
and may conclusively rely on, and shall be protected in relying on, such
instructions.
(c) (i) As provided herein, the REMIC Administrator will make an election to
treat the segregated pool of assets consisting of the Group II Mortgage Loans
and certain other related assets subject to this Agreement as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC I." Component I of the Class R Certificates will
represent the sole Class of "residual interests" in REMIC I for purposes of
the REMIC Provisions (as defined herein) under federal income tax law. The
following table irrevocably sets forth the designation, pass-through rate
(the "Uncertificated Pass-Through Rate") and initial Uncertificated Principal
Balance for each of the "regular interests" in REMIC I (the "REMIC I Regular
Interests"). The "latest possible maturity date" (determined solely for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii)) for
each REMIC I Regular Interest shall be the Maturity Date. None of the
REMIC I Regular Interests will be certificated. The REMIC I Regular
Interests and the REMIC I Residual Interest will have the following
designations, initial balances and pass-through rates:
Class
Designation for
each REMIC I
Regular
Interest and Initial
Component I of Type Uncertificated
the Class R of Pass-Through Principal Final Maturity
Certificates Interest Rate Balance Date*
----------------------------------------------------------------------
Class Y-1 Regular Variable(1) $30,391.57 November 2034
Class Y-2 Regular Variable(2) $81,025.60 November 2034
Class Y-3 Regular Variable(3) $33,287.98 November 2034
Class Y-4 Regular Variable(4) $18,995.57 November 2034
Class Y-5 Regular Variable(5) $55,775.01 November 2034
Class Y-6 Regular Variable(6) $24,467.94 November 2034
Class Z-1 Regular Variable(1) $60,752,757.43 November 2034
Class Z-2 Regular Variable(2) $161,970,168.40 November 2034
Class Z-3 Regular Variable(3) $66,542,677.02 November 2034
Class Z-4 Regular Variable(4) $37,972,136.43 November 2034
Class Z-5 Regular Variable(5) $111,501,197.99 November 2034
Class Z-6 Regular Variable(6) $48,914,451.06 November 2034
Component I of
the Class R Residual $100 November 2034
* The Distribution Date in the specified month, which is the month following
the month the latest maturing Mortgage Loan in the related Loan Group
matures. For federal income tax purposes, for each Class of REMIC I
Regular and Residual Interests, the "latest possible maturity date" shall
be the Final Maturity Date.
(1) Interest distributed to the REMIC I Regular Interests Y-1 and Z-1
on each Distribution Date will have accrued at the weighted average of the
Net Rates for the Group II-1 Loans on the applicable Uncertificated
Principal Balance outstanding immediately before such Distribution Date.
(2) Interest distributed to the REMIC I Regular Interests Y-2 and Z-2
on each Distribution Date will have accrued at the weighted average of the
Net Rates for the Group II-2 Loans on the applicable Uncertificated
Principal Balance outstanding immediately before such Distribution Date.
(3) Interest distributed to the REMIC I Regular Interests Y-3 and Z-3
on each Distribution Date will have accrued at the weighted average of the
Net Rates for the Group II-3 Loans on the applicable Uncertificated
Principal Balance outstanding immediately before such Distribution Date.
(4) Interest distributed to the REMIC I Regular Interests Y-4 and Z-4
on each Distribution Date will have accrued at the weighted average of the
Net Rates for the Group II-4 Loans on the applicable Uncertificated
Principal Balance outstanding immediately before such Distribution Date.
(5) Interest distributed to the REMIC I Regular Interests Y-5 and Z-5
on each Distribution Date will have accrued at the weighted average of the
Net Rates for the Group II-5 Loans on the applicable Uncertificated
Principal Balance outstanding immediately before such Distribution Date.
(6) Interest distributed to the REMIC I Regular Interests Y-6 and Z-6
on each Distribution Date will have accrued at the weighted average of the
Net Rates for the Group II-6 Loans on the applicable Uncertificated
Principal Balance outstanding immediately before such Distribution Date.
(ii) As provided herein, the Trustee will make an
election to treat the segregated pool of assets consisting of the Group I
Loans and certain other related assets subject to this Agreement as a real
estate mortgage investment conduit (a "REMIC") for federal income tax
purposes, and such segregated pool of assets will be designated as
"REMIC II." Component II of the Class R Certificates will represent the sole
Class of "residual interests" in REMIC II for purposes of the REMIC
Provisions (as defined herein) under federal income tax law. The following
table irrevocably sets forth the designation, remittance rate (the
"Uncertificated REMIC II Pass-Through Rate") and initial Uncertificated
Principal Balance for each of the "regular interests" in REMIC II (the
"REMIC II Regular Interests"). The "latest possible maturity date"
(determined solely for purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii)) for each REMIC II Regular Interest shall be the
Maturity Date. None of the REMIC II Regular Interests will be certificated.
Uncertificated
REMIC I
---------------- Initial Uncertificated
Pass-Through REMIC I Latest Possible
Designation Rate Principal Balance Maturity Date
LT1 Variable(1) $814,558,432.64 November 25, 2034
LT2 Variable(1) $ 15,428.83 November 25, 2034
LT3 0.00% $ 66,041.76 November 25, 2034
LT4 Variable(2) $ 66,041.76 November 25, 2034
_______________
(1) The Class LT1 and LT2 REMIC II Regular Interests will bear interest at
a variable rate equal to the weighted average of the Net Rates on the Group I
Mortgage Loans.
(2) Class LT4 REMIC II Regular Interests will bear interest at a variable
rate equal to twice the weighted average of the Net Rates on the Group I
Mortgage Loans
(iii) REMIC III will be evidenced by (x) the REMIC III Regular
Interests (designated below), which will be uncertificated and
non-transferable and are hereby designated as the "regular interests" in
REMIC III and have the principal balances and accrue interest at the
Pass-Through Rates equal to those set forth in this Section 5.01(c)(iii) and
(y) an interest in the Class R Certificates ("Component III of the Class R
Certificates"), which is hereby designated as the single "residual interest"
in REMIC III.
The Classes of the REMIC III Interests shall have the following
designations, initial principal amounts and Pass-Through Rates:
Designation Initial Pass-Through Rate
Principal
II-A-1 Regular $57,348,000 (1)
II-A-2 Regular $152,895,000 (2)
II-A-3 Regular $62,814,000 (3)
II-A-4 Regular $35,844,000 (4)
II-A-5 Regular $105,254,000 (5)
II-A-6a Regular $44,673,000 (6)
II-A-6b Regular $1,500,000 (6)
II-B-1 Regular $9,270,000 (7)
II-B-2 Regular $7,074,000 (7)
II-B-3 Regular $4,879,000 (7)
II-B-4 Regular $2,927,000 (7)
II-B-5 Regular $2,195,000 (7)
II-B-6 Regular $1,224,431 (7)
Residual (8)
Component
III of
Class R $0
----------
(1) The Class II-A-1 REMIC III Regular Interests will bear interest at a
variable rate equal to the weighted average of the Net Rates of the Group
II-1 Loans. The Pass Through Rate with respect to the first Interest
Accrual Period is 4.912% per annum.
(2) The Class II-A-2 REMIC III Regular Interests will bear interest at a
variable rate equal to the weighted average of the Net Rates of the Group
II-2 Loans. The Pass Through Rate with respect to the first Interest
Accrual Period is 4.975% per annum.
(3) The Class II-A-3 REMIC III Regular Interests will bear interest at a
variable rate equal to the weighted average of the Net Rates of the Group
II-3 Mortgage Loans. The Pass Through Rate with respect to the first
Interest Accrual Period is 5.052% per annum.
(4) The Class II-A-4 REMIC III Regular Interests will bear interest at a
variable rate equal to the weighted average of the Net Rates of the Group
II-4 Mortgage Loans. The Pass Through Rate with respect to the first
Interest Accrual Period is 5.023% per annum.
(5) The Class II-A-5 REMIC III Regular Interests will bear interest at a
variable rate equal to the weighted average of the Net Rates of the Group
II-5 Mortgage Loans.
(6) The Class II-A-6a REMIC III Regular Interests and the Class II-A-6b
REMIC III Regular Interests will bear interest at a variable rate equal to
the weighted average of the Net Rates of the Group II-6 Mortgage Loans.
The Pass Through Rate with respect to the first Interest Accrual Period is
5.243% per annum.
(7) The Group II Subordinate REMIC III Regular Interests will bear interest
at a variable rate equal to the weighted average of the Net Rate of the
Mortgage Loans in each Mortgage Loan Group weighted in proportion to the
results of subtracting from the aggregate principal balance of each
Mortgage Loan Group, the Certificate Principal Balance of the related
Classes of Senior REMIC III Regular Interests.
(8) Component III of the Class R Certificates will not bear interest.
(iv) REMIC IV will be evidenced by (x) the REMIC IV Regular
Interests (designated below), which will be uncertificated and
non-transferable and are hereby designated as the "regular interests" in
REMIC IV and have the principal balances and accrue interest at the
Pass-Through Rates equal to those set forth in this Section 5.01(c)(iv) and
(y) an interest in the Class R Certificates ("Component IV of the Class R
Certificates"), which is hereby designated as the single "residual interest"
in REMIC IV.
The Classes of the REMIC IV Regular Interests shall have the following
designations, initial principal amounts and Pass-Through Rates:
Designation Initial Pass-Through Rate
Principal
I-A-1 Regular $678,650,000 (1)
I-A-2 Regular $81,471,000 (2)
II-A-1 Regular $57,348,000 (3)
II-A-2 Regular $152,895,000 (4)
II-A-3 Regular $62,814,000 (5)
II-A-4 Regular $35,844,000 (6)
II-A-5 Regular $105,254,000 (7)
II-X-A-5 Regular $0 (8)
II-A-6a Regular $44,673,000 (9)
II-A-6b Regular $1,500,000 (9)
II-B-1 Regular $9,270,000 (10)
II-B-2 Regular $7,074,000 (10)
II-B-3 Regular $4,879,000 (10)
II-B-4 Regular $2,927,000 (10)
II-B-5 Regular $2,195,000 (10)
II-B-6 Regular $1,224,431 (10)
I-M-1 Regular $20,775,000 (11)
I-M-2 Regular $15,887,000 (12)
I-B-1 Regular $8,554,000 (13)
I-B-2 Regular $6,518,000 (14)
XP Regular $100 (15)
B-IO-I Regular $0 (16)
and
B-IO-P
R Residual $0 (17)
----------
(5) The Class I-A-1 REMIC IV Regular Interests will bear interest at a
variable rate equal to the least of (i) One-Month LIBOR plus the related
Margin, (ii) 11.50% and (iii) the related Net Rate Cap. The Pass Through
Rate with respect to the first Interest Accrual Period is 2.18% per annum.
(6) The Class I-A-2 REMIC IV Regular Interests will bear interest at a
variable rate equal to the least of (i) One-Month LIBOR plus the related
Margin, (ii) 11.50% and (iii) the related Net Rate Cap. The Pass Through
Rate with respect to the first Interest Accrual Period is 2.26% per annum.
(7) The Class II-A-1 REMIC IV Regular Interests will bear interest at a
variable rate equal to the weighted average of the Net Rates of the Group
II-1 Loans. The Pass Through Rate with respect to the first Interest
Accrual Period is 4.912% per annum.
(8) The Class II-A-2 REMIC IV Regular Interests will bear interest at a
variable rate equal to the weighted average of the Net Rates of the Group
II-2 Loans. The Pass Through Rate with respect to the first Interest
Accrual Period is 4.975% per annum.
(9) The Class II-A-3 REMIC IV Regular Interests will bear interest at a
variable rate equal to the weighted average of the Net Rates of the Group
II-3 Mortgage Loans. The Pass Through Rate with respect to the first
Interest Accrual Period is 5.052% per annum.
(10) The Class II-A-4 REMIC IV Regular Interests will bear interest at a
variable rate equal to the weighted average of the Net Rates of the Group
II-4 Mortgage Loans. The Pass Through Rate with respect to the first
Interest Accrual Period is 5.023% per annum.
(7) On or prior to the Distribution Date in August 2011, the Class II-A-5
REMIC IV Regular Interests will bear interest at a variable Pass Through
Rate equal to the weighted average of the Net Rates of the Group II-5
Mortgage Loans minus 0.185% per annum. After the Distribution Date in
August 2011, the Class II-A-5 REMIC IV Regular Interests will bear
interest at a variable rate equal to the weighted average of the Net Rates
of the Group II-5 Mortgage Loans.
(8) On or prior to the Distribution Date in August 2011, the Class II-X-A-5
REMIC IV Regular Interests will bear interest at a fixed Pass Through Rate
equal to 0.185% per annum based on a notional amount equal to the
aggregate Certificate Principal Balance of the Class II-A-5 REMIC IV
Regular Interests. After the Distribution Date in August 2011, the Class
II-X-A-5 REMIC IV Regular Interests will not bear any interest.
(9) The Class II-A-6a REMIC IV Regular Interests and the Class II-A-6b
REMIC IV Regular Interests will bear interest at a variable rate equal to
the weighted average of the Net Rates of the Group II-6 Mortgage Loans.
The Pass Through Rate with respect to the first Interest Accrual Period is
5.243% per annum.
(10) The Group II Subordinate REMIC IV Regular Interests will bear interest
at a variable rate equal to the weighted average of the Net Rate of the
Mortgage Loans in each Mortgage Loan Group weighted in proportion to the
results of subtracting from the aggregate principal balance of each
Mortgage Loan Group, the Certificate Principal Balance of the related
Classes of Senior Certificates.
(11) The Class I-M-1 REMIC IV Regular Interests will bear interest at a rate
equal to the least of (i) One-Month LIBOR plus the related Margin, (ii)
11.50% and (iii) the related Net Rate Cap. The Pass Through Rate with
respect to the first Interest Accrual Period is 2.44% per annum.
(12) The Class I-M-2 REMIC IV Regular Interests will bear interest at a rate
equal to the least of (i) One-Month LIBOR plus the related Margin, (ii)
11.50% and (iii) the related Net Rate Cap. The Pass Through Rate with
respect to the first Interest Accrual Period is 2.89% per annum.
(13) The Class I-B-1 REMIC IV Regular Interests will bear interest at a rate
equal to the least of (i) One-Month LIBOR plus the related Margin, (ii)
11.50% and (iii) the related Net Rate Cap. The Pass Through Rate with
respect to the first Interest Accrual Period is 3.64% per annum.
(14) The Class I-B-2 REMIC IV Regular Interests will bear interest at a rate
equal to the least of (i) One-Month LIBOR plus the related Margin, (ii)
11.50% and (iii) the related Net Rate Cap. The Pass Through Rate with
respect to the first Interest Accrual Period is 3.64% per annum.
(15) The Class XP REMIC IV Regular Interests will not bear any interest. It
will be entitled to receive prepayment penalties collected with respect to
the Mortgage Loans.
(16) The Class B-IO Certificates will bear interest at a per annum rate
equal to the Class B-IO Pass-Through Rate on its Notional Amount. The
Class B-IO Certificates will be comprised of two REMIC IV regular
interests, a principal only regular interest designated B-IO-P and an
interest only regular interest designated B-IO-I, which will be entitled
to distributions as set forth herein. Amounts paid, or deemed paid, to
the Class B-IO Certificates shall be deemed to first be paid to the Class
B-IO-I REMIC IV Regular Interest in reduction of accrued and unpaid
interest thereon until such accrued and unpaid interest shall have been
reduced to zero and shall then be deemed paid to the Class B-IO-P REMIC IV
Regular Interest in reduction of the principal balance thereof.
(17) Component IV of the Class R Certificates will not bear interest.
(d) 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 in the Trust Fund has
been designated as the "latest possible maturity date" for the REMIC I
Regular Interests, REMIC II Regular Interests, REMIC III Regular Interests,
REMIC IV Regular Interests and the Certificates.
(e) With respect to each Distribution Date, each Class of Certificates shall
accrue interest during the related Interest Accrual Period. With respect to
each Distribution Date and each such Class of Certificates (other than the
Class R Certificates), interest shall be calculated, on the basis of a
360-day year comprised of twelve 30-day months, based upon the respective
Pass-Through Rate set forth, or determined as provided, above and the
Certificate Principal Balance of such Class applicable to such Distribution
Date.
(f) The Certificates shall be substantially in the forms set forth in
Exhibits X-0, X-0, X-0, X-0, X-0, X-0, X-0, A-8 and A-9. On original
issuance, the Trustee shall sign, countersign and shall deliver them at the
direction of the Depositor. Pending the preparation of definitive
Certificates of any Class, the Trustee may sign and countersign temporary
Certificates that are printed, lithographed or typewritten, in authorized
denominations for Certificates of such Class, substantially of the tenor of
the definitive Certificates in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers or authorized signatories executing such Certificates may determine,
as evidenced by their execution of such Certificates. If temporary
Certificates are issued, the Depositor will cause definitive Certificates to
be prepared without unreasonable delay. After the preparation of definitive
Certificates, the temporary Certificates shall be exchangeable for definitive
Certificates upon surrender of the temporary Certificates at the office of
the Trustee, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Certificates, the Trustee shall sign and
countersign and deliver in exchange therefor a like aggregate principal
amount, in authorized denominations for such Class, of definitive
Certificates of the same Class. Until so exchanged, such temporary
Certificates shall in all respects be entitled to the same benefits as
definitive Certificates.
(g) Each Class of Book-Entry Certificates will be registered as a single
Certificate of such Class held by a nominee of the Depository or the DTC
Custodian, and beneficial interests will be held by investors through the
book-entry facilities of the Depository in minimum denominations of (i) in
the case of the Senior Certificates (other than the Residual Certificates),
$1,000 and in each case increments of $1.00 in excess thereof, and (ii) in
the case of the Offered Subordinate Certificates, $25,000 and increments of
$1.00 in excess thereof, except that one Certificate of each such Class may
be issued in a different amount so that the sum of the denominations of all
outstanding Certificates of such Class shall equal the Certificate Principal
Balance of such Class on the Closing Date. On the Closing Date, the Trustee
shall execute and countersign Physical Certificates all in an aggregate
principal amount that shall equal the Certificate Principal Balance of such
Class on the Closing Date. The Group II Non-offered Subordinate Certificates
shall be issued in certificated fully-registered form in minimum dollar
denominations of $25,000 and integral multiples of $1.00 in excess thereof,
except that one Group II Non-offered SubordinateCertificate of each Class may
be issued in a different amount so that the sum of the denominations of all
outstanding Private Certificates of such Class shall equal the Certificate
Principal Balance of such Class on the Closing Date. The Residual
Certificates shall each be issued in certificated fully-registered form in
the denomination of $100. Each Class of Global Certificates, if any, shall
be issued in fully registered form in minimum dollar denominations of $50,000
and integral multiples of $1.00 in excess thereof, except that one
Certificate of each Class may be in a different denomination so that the sum
of the denominations of all outstanding Certificates of such Class shall
equal the Certificate Principal Balance of such Class on the Closing Date.
On the Closing Date, the Trustee shall execute and countersign (i) in the
case of each Class of Offered Certificates, the Certificate in the entire
Certificate Principal Balance of the respective Class and (ii) in the case of
each Class of Private Certificates, Individual Certificates all in an
aggregate principal amount that shall equal the Certificate Principal Balance
of each such respective Class on the Closing Date. The Certificates referred
to in clause (i) and if at any time there are to be Global Certificates, the
Global Certificates shall be delivered by the Depositor to the Depository or
pursuant to the Depository's instructions, shall be delivered by the
Depositor on behalf of the Depository to and deposited with the DTC
Custodian. The Trustee shall sign the Certificates by facsimile or manual
signature and countersign them by manual signature on behalf of the Trustee
by one or more authorized signatories, each of whom shall be Responsible
Officers of the Trustee or its agent. A Certificate bearing the manual and
facsimile signatures of individuals who were the authorized signatories of
the Trustee or its agent at the time of issuance shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to hold such
positions prior to the delivery of such Certificate.
(h) No Certificate shall be entitled to any benefit under this Agreement, or
be valid for any purpose, unless there appears on such Certificate the
manually executed countersignature of the Trustee or its agent, and such
countersignature upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates issued on the Closing Date shall be dated the
Closing Date. All Certificates issued thereafter shall be dated the date of
their countersignature.
(i) The Closing Date is hereby designated as the "startup" day of each
2004-11 REMIC within the meaning of Section 860G(a)(9) of the Code.
(j) For federal income tax purposes, each 2004-11 REMIC shall have a tax year
that is a calendar year and shall report income on an accrual basis.
(k) The Trustee on behalf of the Trust shall cause each 2004-11 REMIC to
timely elect to be treated as a REMIC under Section 860D of the Code. Any
inconsistencies or ambiguities in this Agreement or in the administration of
any Trust established hereby shall be resolved in a manner that preserves the
validity of such elections.
(l) The following legend shall be placed on the Residual Certificates,
whether upon original issuance or upon issuance of any other Certificate of
any such Class in exchange therefor or upon transfer thereof:
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO
THE MASTER SERVICER AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A)
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), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE
FOREGOING, (C) 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 UNLESS SUCH ORGANIZATION IS
SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE
TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE
INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN
SECTION 1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP
UNDER SECTION 775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE
FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING HEREIN REFERRED TO AS
A "DISQUALIFIED ORGANIZATION"), OR (F) AN AGENT OF A DISQUALIFIED
ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE
ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF
THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE
CERTIFICATE REGISTER OR 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 OF THIS CERTIFICATE SHALL BE
DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall maintain at its Corporate Trust Office a Certificate
Register in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of Certificates and
of transfers and exchanges of Certificates as herein provided.
(b) Subject to Section 5.01(a) and, in the case of any Global Certificate or
Physical Certificate upon the satisfaction of the conditions set forth below,
upon surrender for registration of transfer of any Certificate at any office
or agency of the Trustee maintained for such purpose, the Trustee shall sign,
countersign and shall deliver, in the name of the designated transferee or
transferees, a new Certificate of a like Class and aggregate Fractional
Undivided Interest, but bearing a different number.
(c) By acceptance of a Private Certificate or a Residual Certificate, whether
upon original issuance or subsequent transfer, each holder of such
Certificate acknowledges the restrictions on the transfer of such Certificate
set forth in the Securities Legend and agrees that it will transfer such a
Certificate only as provided herein. In addition to the provisions of
Section 5.02(h), the following restrictions shall apply with respect to the
transfer and registration of transfer of an Private Certificate or a Residual
Certificate to a transferee that takes delivery in the form of an Individual
Certificate:
(i) The Trustee shall register the transfer of an Individual Certificate if
the requested transfer is being made to a transferee who has provided the
Trustee with a Rule 144A Certificate or comparable evidence as to its QIB
status.
(ii) The Trustee shall register the transfer of any Individual Certificate if
(x) the transferor has advised the Trustee in writing that the Certificate is
being transferred to an Institutional Accredited Investor along with facts
surrounding the transfer as set forth in Exhibit F-1 hereto; and (y) prior to
the transfer the transferee furnishes to the Trustee an Investment Letter
(and the Trustee shall be fully protected in so doing), provided that, if
based upon an Opinion of Counsel addressed to the Trustee to the effect that
the delivery of (x) and (y) above are not sufficient to confirm that the
proposed transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act and other applicable laws, the Trustee shall as a condition of the
registration of any such transfer require the transferor to furnish such
other certifications, legal opinions or other information prior to
registering the transfer of an Individual Certificate as shall be set forth
in such Opinion of Counsel.
(d) So long as a Global Certificate of such Class is outstanding and is held
by or on behalf of the Depository, transfers of beneficial interests in such
Global Certificate, or transfers by holders of Individual Certificates of
such Class to transferees that take delivery in the form of beneficial
interests in the Global Certificate, may be made only in accordance with
Section 5.02(h), the rules of the Depository and the following:
(i) In the case of a beneficial interest in the Global Certificate being
transferred to an Institutional Accredited Investor, such transferee shall be
required to take delivery in the form of an Individual Certificate or
Certificates and the Trustee shall register such transfer only upon
compliance with the provisions of Section 5.02(c)(ii).
(ii) In the case of a beneficial interest in a Class of Global Certificates
being transferred to a transferee that takes delivery in the form of an
Individual Certificate or Certificates of such Class, except as set forth in
clause (i) above, the Trustee shall register such transfer only upon
compliance with the provisions of Section 5.02(c)(i).
(iii) In the case of an Individual Certificate of a Class being transferred
to a transferee that takes delivery in the form of a beneficial interest in a
Global Certificate of such Class, the Trustee shall register such transfer if
the transferee has provided the Trustee with a Rule 144A Certificate or
comparable evidence as to its QIB status.
(iv) No restrictions shall apply with respect to the transfer or registration
of transfer of a beneficial interest in the Global Certificate of a Class to
a transferee that takes delivery in the form of a beneficial interest in the
Global Certificate of such Class; provided that each such transferee shall be
deemed to have made such representations and warranties contained in the Rule
144A Certificate as are sufficient to establish that it is a QIB.
(e) Subject to Section 5.02(h), an exchange of a beneficial interest in a
Global Certificate of a Class for an Individual Certificate or Certificates
of such Class, an exchange of an Individual Certificate or Certificates of a
Class for a beneficial interest in the Global Certificate of such Class and
an exchange of an Individual Certificate or Certificates of a Class for
another Individual Certificate or Certificates of such Class (in each case,
whether or not such exchange is made in anticipation of subsequent transfer,
and, in the case of the Global Certificate of such Class, so long as such
Certificate is outstanding and is held by or on behalf of the Depository) may
be made only in accordance with Section 5.02(h), the rules of the Depository
and the following:
(i) A holder of a beneficial interest in a Global Certificate of a Class may
at any time exchange such beneficial interest for an Individual Certificate
or Certificates of such Class.
(ii) A holder of an Individual Certificate or Certificates of a Class may
exchange such Certificate or Certificates for a beneficial interest in the
Global Certificate of such Class if such holder furnishes to the Trustee a
Rule 144A Certificate or comparable evidence as to its QIB status.
(iii) A holder of an Individual Certificate of a Class may exchange such
Certificate for an equal aggregate principal amount of Individual
Certificates of such Class in different authorized denominations without any
certification.
(f) (i) Upon acceptance for exchange or transfer of an Individual
Certificate of a Class for a beneficial interest in a Global Certificate of
such Class as provided herein, the Trustee shall cancel such Individual
Certificate and shall (or shall request the Depository to) endorse on the
schedule affixed to the applicable Global Certificate (or on a continuation
of such schedule affixed to the Global Certificate and made a part thereof)
or otherwise make in its books and records an appropriate notation evidencing
the date of such exchange or transfer and an increase in the certificate
balance of the Global Certificate equal to the certificate balance of such
Individual Certificate exchanged or transferred therefor.
(ii) Upon acceptance for exchange or transfer of a beneficial interest in a
Global Certificate of a Class for an Individual Certificate of such Class as
provided herein, the Trustee shall (or shall request the Depository to)
endorse on the schedule affixed to such Global Certificate (or on a
continuation of such schedule affixed to such Global Certificate and made a
part thereof) or otherwise make in its books and records an appropriate
notation evidencing the date of such exchange or transfer and a decrease in
the certificate balance of such Global Certificate equal to the certificate
balance of such Individual Certificate issued in exchange therefor or upon
transfer thereof.
(g) The Securities Legend shall be placed on any Individual Certificate
issued in exchange for or upon transfer of another Individual Certificate or
of a beneficial interest in a Global Certificate.
(h) Subject to the restrictions on transfer and exchange set forth in this
Section 5.02, the holder of any Individual Certificate may transfer or
exchange the same in whole or in part (in an initial certificate balance
equal to the minimum authorized denomination set forth in Section 5.01(g) or
any integral multiple of $1.00 in excess thereof) by surrendering such
Certificate at the Corporate Trust Office, or at the office of any transfer
agent, together with an executed instrument of assignment and transfer
satisfactory in form and substance to the Trustee in the case of transfer and
a written request for exchange in the case of exchange. The holder of a
beneficial interest in a Global Certificate may, subject to the rules and
procedures of the Depository, cause the Depository (or its nominee) to notify
the Trustee in writing of a request for transfer or exchange of such
beneficial interest for an Individual Certificate or Certificates. Following
a proper request for transfer or exchange, the Trustee shall, within five
Business Days of such request made at the Corporate Trust Office, sign,
countersign and deliver at the Corporate Trust Office, to the transferee (in
the case of transfer) or holder (in the case of exchange) or send by first
class mail at the risk of the transferee (in the case of transfer) or holder
(in the case of exchange) to such address as the transferee or holder, as
applicable, may request, an Individual Certificate or Certificates, as the
case may require, for a like aggregate Fractional Undivided Interest and in
such authorized denomination or denominations as may be requested. The
presentation for transfer or exchange of any Individual Certificate shall not
be valid unless made at the Corporate Trust Office by the registered holder
in person, or by a duly authorized attorney-in-fact.
(i) At the option of the Certificateholders, Certificates may be exchanged
for other Certificates of authorized denominations of a like Class and
aggregate Fractional Undivided Interest, upon surrender of the Certificates
to be exchanged at the Corporate Trust Office; provided, however, that no
Certificate may be exchanged for new Certificates unless the original
Fractional Undivided Interest represented by each such new Certificate (i) is
at least equal to the minimum authorized denomination or (ii) is acceptable
to the Depositor as indicated to the Trustee in writing. Whenever any
Certificates are so surrendered for exchange, the Trustee shall sign and
countersign and the Trustee shall deliver the Certificates which the
Certificateholder making the exchange is entitled to receive.
(j) If the Trustee so requires, every Certificate presented or surrendered
for transfer or exchange shall be duly endorsed by, or be accompanied by a
written instrument of transfer, with a signature guarantee, in form
satisfactory to the Trustee, duly executed by the holder thereof or his or
her attorney duly authorized in writing.
(k) No service charge shall be made for any transfer or exchange of
Certificates, but the Trustee 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.
(l) The Trustee shall cancel all Certificates surrendered for transfer or
exchange but shall retain such Certificates in accordance with its standard
retention policy or for such further time as is required by the record
retention requirements of the Securities Exchange Act of 1934, as amended,
and thereafter may destroy such Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. (a) If
(i) any mutilated Certificate is surrendered to the Trustee, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of
any Certificate, and (ii) there is delivered to the Trustee such security or
indemnity as it may require to save it harmless, and (iii) the Trustee has
not received notice that such Certificate has been acquired by a third
Person, the Trustee shall sign, countersign and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and Fractional Undivided Interest but in each case
bearing a different number. The mutilated, destroyed, lost or stolen
Certificate shall thereupon be canceled of record by the Trustee and shall be
of no further effect and evidence no rights.
(b) Upon the issuance of any new Certificate under this Section 5.03, the
Trustee may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith. Any duplicate Certificate issued pursuant to this Section 5.03
shall constitute complete and indefeasible evidence of ownership in the Trust
Fund, 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. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Trustee and any
agent of the Depositor or the Trustee may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 6.01 and for all other purposes
whatsoever. Neither the Depositor, the Trustee nor any agent of the
Depositor or the Trustee shall be affected by notice to the contrary. No
Certificate shall be deemed duly presented for a transfer effective on any
Record Date unless the Certificate to be transferred is presented no later
than the close of business on the third Business Day preceding such Record
Date.
Section 5.05 Transfer Restrictions on Residual Certificates. (a)
Residual Certificates, or interests therein, may not be transferred without
the prior express written consent of the Tax Matters Person and the Seller,
which cannot be unreasonably withheld. As a prerequisite to such consent, the
proposed transferee must provide the Tax Matters Person, the Seller and the
Trustee with an affidavit that the proposed transferee is a Permitted
Transferee (and, unless the Tax Matters Person and the Seller consent to the
transfer to a person who is not a U.S. Person, an affidavit that it is a U.S.
Person) as provided in Section 5.05(b).
(b) No transfer, sale or other disposition of a Residual Certificate
(including a beneficial interest therein) may be made unless, prior to the
transfer, sale or other disposition of a Residual Certificate, the proposed
transferee (including the initial purchasers thereof) delivers to the Tax
Matters Person, the Trustee and the Depositor an affidavit in the form
attached hereto as Exhibit E stating, among other things, that as of the date
of such transfer (i) such transferee is a Permitted Transferee and that
(ii) such transferee is not acquiring such Residual Certificate for the
account of any person who is not a Permitted Transferee. The Tax Matters
Person shall not consent to a transfer of a Residual Certificate if it has
actual knowledge that any statement made in the affidavit issued pursuant to
the preceding sentence is not true. Notwithstanding any transfer, sale or
other disposition of a Residual Certificate to any Person who is not a
Permitted Transferee, such transfer, sale or other disposition shall be
deemed to be of no legal force or effect whatsoever and such Person shall not
be deemed to be a Holder of a Residual Certificate for any purpose hereunder,
including, but not limited to, the receipt of distributions thereon. If any
purported transfer shall be in violation of the provisions of this Section
5.05(b), then the prior Holder thereof shall, upon discovery that the
transfer of such Residual Certificate was not in fact permitted by this
Section 5.05(b), be restored to all rights as a Holder thereof retroactive
to the date of the purported transfer. None of the Trustee, the Tax Matters
Person or the Depositor shall be under any liability to any Person for any
registration or transfer of a Residual Certificate that is not permitted by
this Section 5.05(b) or for making payments due on such Residual Certificate
to the purported Holder thereof or taking any other action with respect to
such purported Holder under the provisions of this Agreement so long as the
written affidavit referred to above was received with respect to such
transfer, and the Tax Matters Person, the Trustee and the Depositor, as
applicable, had no knowledge that it was untrue. The prior Holder shall be
entitled to recover from any purported Holder of a Residual Certificate that
was in fact not a permitted transferee under this Section 5.05(b) at the
time it became a Holder all payments made on such Residual Certificate. Each
Holder of a Residual Certificate, by acceptance thereof, shall be deemed for
all purposes to have consented to the provisions of this Section 5.05(b) and
to any amendment of this Agreement deemed necessary (whether as a result of
new legislation or otherwise) by counsel of the Tax Matters Person or the
Depositor to ensure that the Residual Certificates are not transferred to any
Person who is not a Permitted Transferee and that any transfer of such
Residual Certificates will not cause the imposition of a tax upon the Trust
or cause any REMIC to fail to qualify as a REMIC.
(c) Unless the Tax Matters Person shall have consented in writing (which
consent may be withheld in the Tax Matters Person's sole discretion), the
Residual Certificates (including a beneficial interest therein) may not be
purchased by or transferred to any person who is not a United States Person.
(d) By accepting a Residual Certificate, the purchaser thereof agrees to be a
Tax Matters Person if it is the Holder of the largest percentage interest of
such Certificate, and appoints the Securities Administrator to act as its
agent with respect to all matters concerning the tax obligations of the Trust.
Section 5.06 Restrictions on Transferability of Certificates. (a) No
offer, sale, transfer or other disposition (including pledge) of any
Certificate shall be made by any Holder thereof unless registered under the
Securities Act, or an exemption from the registration requirements of the
Securities Act and any applicable state securities or "Blue Sky" laws is
available and the prospective transferee (other than the Depositor) of such
Certificate signs and delivers to the Trustee an Investment Letter, if the
transferee is an Institutional Accredited Investor, in the form set forth as
Exhibit F-l hereto, or a Rule 144A Certificate, if the transferee is a QIB,
in the form set forth as Exhibit F-2 hereto. Notwithstanding the provisions
of the immediately preceding sentence, no restrictions shall apply with
respect to the transfer or registration of transfer of a beneficial interest
in any Certificate that is a Global Certificate of a Class to a transferee
that takes delivery in the form of a beneficial interest in the Global
Certificate of such Class provided that each such transferee shall be deemed
to have made such representations and warranties contained in the Rule 144A
Certificate as are sufficient to establish that it is a QIB. In the case of
a proposed transfer of any Certificate to a transferee other than a QIB, the
Trustee may require an Opinion of Counsel addressed to the Trustee that such
transaction is exempt from the registration requirements of the Securities
Act. The cost of such opinion shall not be an expense of the Trustee or the
Trust Fund.
(b) The Private Certificates shall each bear a Securities Legend.
Section 5.07 ERISA Restrictions. (a) Subject to the provisions of
subsection (b), no Residual Certificates or Private Certificates may be
acquired directly or indirectly by, or on behalf of, an employee benefit plan
or other retirement arrangement (a "Plan") that is subject to Title I of
ERISA or Section 4975 of the Code, or by a person using "plan assets" of a
Plan, unless the proposed transferee provides the Trustee, with an Opinion of
Counsel addressed to the Trustee, the Master Servicer and the Securities
Administrator (upon which they may rely) that is satisfactory to the Trustee,
which opinion will not be at the expense of the Trustee, the Master Servicer
or the Securities Administrator, that the purchase of such Certificates by or
on behalf of such Plan is permissible under applicable law, will not
constitute or result in a nonexempt prohibited transaction under ERISA or
Section 4975 of the Code and will not subject the Depositor, the Master
Servicer, the Securities Administrator or the Trustee to any obligation in
addition to those undertaken in the Agreement.
(b) Unless such Person has provided an Opinion of Counsel in accordance with
Section 5.07(a), any Person acquiring an interest in a Global Certificate
which is a Private Certificate, by acquisition of such Certificate, shall be
deemed to have represented to the Trustee, and any Person acquiring an
interest in a Private Certificate in definitive form shall represent in
writing to the Trustee, that it is not acquiring an interest in such
Certificate directly or indirectly by, or on behalf of, or with "plan assets"
of, an employee benefit plan or other retirement arrangement which is subject
to Title I of ERISA and/or Section 4975 of the Code.
(c) Each beneficial owner of a Class I-M-1, Class I-M-2, Class I-B-1,
Class I-B-2, Class II-B-1, Class II-B-2 or Class II-B-3 Certificate or any
interest therein shall be deemed to have represented, by virtue of its
acquisition or holding of that certificate or any interest therein shall be
deemed to have represented, by virtue of its acquisition or holding of that
certificate or interest therein, that either (i) such Certificate is rated at
least "BBB-" or its equivalent by Fitch, S&P or Xxxxx'x, (ii) such beneficial
owner is not a Plan or investing with "plan assets" of any Plan, 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 Prohibited Transaction Class Exemption
("PTCE") 95-60, and (3) the conditions in Sections I and III of PTCE 95-60
have been satisfied.
(d) None of the Trustee, the Master Servicer nor the Securities Administrator
will be required to monitor, determine or inquire as to compliance with the
transfer restrictions with respect to the Global Certificates. Any attempted
or purported transfer of any Certificate in violation of the provisions of
Sections (a), (b) or (c) above shall be void ab initio and such Certificate
shall be considered to have been held continuously by the prior permitted
Certificateholder. Any transferor of any Certificate in violation of such
provisions, shall indemnify and hold harmless the Trustee, the Securities
Administrator and the Master Servicer from and against any and all
liabilities, claims, costs or expenses incurred by the Trustee, the
Securities Administrator or the Master Servicer as a result of such attempted
or purported transfer. The Trustee shall have no liability for transfer of
any such Global Certificates in or through book-entry facilities of any
Depository or between or among Depository Participants or Certificate Owners
made in violation of the transfer restrictions set forth herein.
Section 5.08 Rule 144A Information. For so long as any Private
Certificates are outstanding, (1) the Seller will provide or cause to be
provided to any holder of such Private Certificates and any prospective
purchaser thereof designated by such a holder, upon the request of such
holder or prospective purchaser, the information required to be provided to
such holder or prospective purchaser by Rule 144A(d)(4) under the Securities
Act; and (2) the Seller shall update such information from time to time in
order to prevent such information from becoming false and misleading and will
take such other actions as are necessary to ensure that the safe harbor
exemption from the registration requirements of the Securities Act under Rule
144A is and will be available for resales of such Private Certificates
conducted in accordance with Rule 144A.
ARTICLE VI
Payments to Certificateholders
Section 6.01.1 Distributions on the Group I Certificates. (a)On each
Distribution Date, with respect to Loan Group I, an amount equal to the
Interest Funds and Principal Funds for such Distribution Date shall be
withdrawn by the Trustee from the Distribution Account to the extent of funds
on deposit therein and distributed as directed in accordance with
distribution instructions provided to it by the Securities Administrator for
such Distribution Date, in the following order of priority:
First, Interest Funds will be distributed, in the following manner and
order of priority:
1. From Interest Funds, to the Class I-A-1 Certificates and
Class I-A-2 Certificates, the Current Interest and then any Interest
Carry Forward Amount for each such Class, pro rata, based on the
Current Interest and Interest Carry Forward Amount due each such Class;
2. From remaining Interest Funds, to the Class I-M-1, Class
I-M-2, Class I-B-1 and Class I-B-2 Certificates, sequentially, in that
order, the Current Interest for each such Class;
3. Any Excess Spread, to the extent necessary to cause the
Overcollateralization Amount to equal to the Overcollateralization
Target Amount, will be the Extra Principal Distribution Amount and will
be included as part of the Principal Distribution Amount and
distributed in accordance with second (A) and (B) below; and
4. Any Remaining Excess Spread will be applied as Excess
Cashflow pursuant to clauses Third through Twelfth below.
On any Distribution Date, any shortfalls resulting from the application
of the Relief Act and any Prepayment Interest Shortfalls to the extent not
covered by Compensating Interest Payments will be allocated as set forth in
the definition of Current Interest herein.
Second, to pay as principal on the Certificates entitled to payments of
principal, in the following order of priority:
(A) For each Distribution Date (i) prior to the Stepdown Date or (ii)
on which a Trigger Event is in effect, from the Principal Funds and the
Extra Principal Distribution Amount for such Distribution Date:
1. To the Class I-A-1 Certificates and Class I-A-2
Certificates, an amount equal to the Principal Distribution Amount will
be distributed pro rata between the Class I-A-1 Certificates and the
Class I-A-2 Certificates until the Certificate Principal Balance of
each such Class is reduced to zero;
2. To the Class I-M-1 Certificates, any remaining Principal
Distribution Amount until the Certificate Principal Balance thereof is
reduced to zero;
3. To the Class I-M-2 Certificates, any remaining Principal
Distribution Amount until the Certificate Principal Balance thereof is
reduced to zero;
4. To the Class I-B-1 Certificates, any remaining Principal
Distribution Amount until the Certificate Principal Balance thereof is
reduced to zero; and
5. To the Class I-B-2 Certificates, any remaining Principal
Distribution Amount until the Certificate Principal Balance thereof is
reduced to zero.
(B) For each Distribution Date on or after the Stepdown Date, so long
as a Trigger Event is not in effect, from the Principal Funds and the
Extra Principal Distribution Amount for such Distribution Date:
1. To the Class I-A-1 Certificates and Class I-A-2 Certificates,
an amount equal to the Class I-A Principal Distribution Amount will be
distributed pro rata between the Class I-A-1 Certificates and the Class
I-A-2 Certificates in accordance with their respective Certificate
Principal Balances until the Certificate Principal Balance of each such
Class is reduced to zero;
2. To the Class I-M-1 Certificates, from any remaining
Principal Distribution Amount, the Class I-M-1 Principal Distribution
Amount, until the Certificate Principal Balance thereof is reduced to
zero;
3. To the Class I-M-2 Certificates, from any remaining
Principal Distribution Amount, the Class I-M-2 Principal Distribution
Amount, until the Certificate Principal Balance thereof is reduced to
zero;
4. To the Class I-B-1 Certificates, from any remaining
Principal Distribution Amount, the Class I-B-1 Principal Distribution
Amount, until the Certificate Principal Balance thereof is reduced to
zero; and
5. To the Class I-B-2 Certificates, from any remaining
Principal Distribution Amount, the Class I-B-2 Principal Distribution
Amount, until the Certificate Principal Balance thereof is reduced to
zero.
Third, from any remaining Excess Cashflow, the following amounts to the
Class I-A-1 Certificates and the Class I-A-2 Certificates, pro rata among the
Classes based on the amount due: (a) any Interest Carry Forward Amount to the
extent not paid pursuant to clause First 1 and 2 above and then (b) any
Unpaid Realized Loss Amount, in each case for such Class for such
Distribution Date;
Fourth, from any remaining Excess Cashflow, the following amounts to
the Class I-M-1 Certificates: (a) any Interest Carry Forward Amount and then
(b) any Unpaid Realized Loss Amount, in each case for such Class for such
Distribution Date;
Fifth, from any remaining Excess Cashflow, the following amounts to the
Class I-M-2 Certificates: (a) any Interest Carry Forward Amount and then (b)
any Unpaid Realized Loss Amount, in each case for such Class for such
Distribution Date;
Sixth, from any remaining Excess Cashflow, the following amounts to the
Class I-B-1 Certificates: (a) any Interest Carry Forward Amount and then (b)
any Unpaid Realized Loss Amount, in each case for such Class for such
Distribution Date;
Seventh, from any remaining Excess Cashflow, the following amounts to
the Class I-B-2 Certificates: (a) any Interest Carry Forward Amount and then
(b) any Unpaid Realized Loss Amount, in each case for such Class for such
Distribution Date;
Eighth, from any remaining Excess Cashflow, to each Class of Class
I-A-1 Certificates and Class I-A-2 Certificates, any Basis Risk Shortfall and
any Basis Risk Shortfall Carryforward Amount for each such Class for such
Distribution Date, pro rata based on the Basis Risk Shortfall and Basis Risk
Shortfall Carryforward Amount owed to such Class;
Ninth, from any remaining Excess Cashflow, to the Class I-M-1, Class
I-M-2, Class I-B-1 and Class I-B-2 Certificates, in that order, any Basis
Risk Shortfall and any Basis Risk Shortfall Carryforward Amount, in each case
for such Class for such Distribution Date;
Tenth, from any remaining Excess Cashflow, to the Class B-IO
Certificates, the Class B-IO Distribution Amount;
Eleventh, from any remaining Excess Cashflow, to the Class B-IO
Certificates, any unreimbursed Class B-IO Advanced Amounts; and
Twelfth, any remaining amounts to the Residual Certificates.
All payments of amounts in respect of Basis Risk Shortfall or Basis
Risk Shortfall Carryforward Amount made pursuant to the provisions of this
paragraph (a) shall, for federal income tax purposes, be deemed to have been
distributed from REMIC III to the holder of the Class B-IO Certificates and
then paid outside of any 2004-11 REMIC to the recipients thereof pursuant to
an interest rate cap contract. By accepting their Certificates the holders
of the Certificates agree so to treat such payments for purposes of filing
their income tax returns.
(b) On each Distribution Date, the related Cap Contract Payment
Amount with respect to such Payment Date shall be distributed in the
following order of priority, in each case to the extent of amounts available:
(i) first, to the holders of the related Class or Classes of Certificates,
the payment of any Basis Risk Shortfall or Basis Risk Shortfall Carry
Forward Amount for such Distribution Date to the extent not covered by
Excess Cashflow for such Distribution Date;
(ii) second, from any remaining amounts, the payment of an amount equal to
any Current Interest and Interest Carry Forward Amount for the related
Class or Classes of Certificates to the extent not covered by Interest
Funds or Excess Cashflow on such Distribution Date;
(iii) third, from any remaining amounts, available from the Cap Contracts
relating to the Class I-A-1 Certificates and Class I-A-2 Certificates,
to the Class I-M-1, Class I-M-2, Class I-B-1 and Class I-B-2
Certificates, in that order, to the extent not paid pursuant to clauses
(i) or (ii) above; and
(iv) to the Class B-IO Certificates, any remaining amount.
All Cap Contract Payment Amounts made with respect to Current Interest
and Interest Carry Forward Amounts will be treated, for federal income tax
purposes, as reimbursable advances ("Class B-IO Advances") made from the
holder of the Class B-IO Certificates. Such Class B-IO Advances will be paid
back to the holder of the Class B-IO Certificate pursuant to Section
6.01.1(a).
(c) On each Distribution Date, all amounts representing Prepayment
Charges in respect of the Prepayment Charge Loans received during the related
Prepayment Period will be withdrawn from the Distribution Account and
distributed by the Trustee to the Class XP Certificates and shall not be
available for distribution to the holders of any other Class of Certificates.
The payment of such Prepayment Charges shall not reduce the Certificate
Principal Balance of the Class XP Certificates. In addition, as provided in
Section 4.07 hereof, on the Distribution Date immediately following the
Prepayment Period in which the last Prepayment Charge is collectible on the
Prepayment Charge Loans, which Prepayment Period is the month of September
2010, the Trustee shall distribute the amount received from the Master
Servicer pursuant to Section 4.07(b) hereof to the Class XP Certificates in
reduction of the Certificate Principal Balance thereof until the Certificate
Principal Balance thereof is reduced to zero.
(d) The expenses and fees of the Trust shall be paid by each of the
2004-11 REMICs, to the extent that such expenses relate to the assets of each
of such respective 2004-11 REMICs, and all other expenses and fees of the
Trust shall be paid pro rata by each of the 2004-11 REMICs.
Section 6.01.2 Distributions on the Group II Certificates. (a)
Interest and principal (as applicable) on the Group II Certificates (other
than the Class R Certificates) of each Certificate Group will be distributed
monthly on each Distribution Date, commencing in October 2004, in an amount
equal to the Available Funds for the related Loan Group on deposit in the
Distribution Account for such Distribution Date. On each Distribution Date,
the Available Funds for each Loan Group in Loan Group II on deposit in the
Distribution Account shall be distributed as follows:
(A) on each Distribution Date, the Available Funds for Loan Group II-1 will
be distributed to the Class II-A-1 Certificates as follows:
first, to the Class II-A-1 Certificates, the Accrued
Certificate Interest on such Class for such
Distribution Date based on the Accrued Certificate
Interest owed to each such Class;
second, to the Class II-A-1 Certificates, any Accrued
Certificate Interest thereon remaining undistributed
from previous Distribution Dates, to the extent of
remaining Available Funds for Loan Group II-1; and
third, to the Class II-A-1 Certificates, in reduction
of the Certificate Principal Balance thereof, the
Senior Optimal Principal Amount with respect to the
Group II-1 Certificates for such Distribution Date to
the extent of remaining Available Funds for Loan
Group II-1, until the Certificate Principal Balance
of each such Class has been reduced to zero.
(B) on each Distribution Date, the Available Funds for Loan Group II-2 will
be distributed to the Class II-A-2 Certificates as follows:
first, to the Class II-A-2 Certificates, the Accrued
Certificate Interest on such Class for such
Distribution Date based on the Accrued Certificate
Interest owed to each such Class;
second, to the Class II-A-2 Certificates, any Accrued
Certificate Interest thereon remaining undistributed
from previous Distribution Dates, to the extent of
remaining Available Funds for Loan Group II-2; and
third, to the Class II-A-2 Certificates, in reduction
of the Certificate Principal Balance thereof, the
Senior Optimal Principal Amount with respect to the
Group II-2 Certificates for such Distribution Date to
the extent of remaining Available Funds for Loan
Group II-2, until the Certificate Principal Balance
of each such Class has been reduced to zero.
(C) on each Distribution Date, the Available Funds for Loan Group II-3 will
be distributed to the Class II-A-3 Certificates as follows:
first, to the Class II-A-3 Certificates, the Accrued
Certificate Interest on such Class for such
Distribution Date;
second, to the Class II-A-3 Certificates, any Accrued
Certificate Interest thereon remaining undistributed
from previous Distribution Dates, to the extent of
remaining Available Funds for Loan Group II-3; and
third, to the Class II-A-3 Certificates, in reduction
of the Certificate Principal Balance thereof, the
Senior Optimal Principal Amount with respect to the
Group II-3 Certificates for such Distribution Date to
the extent of remaining Available Funds for Loan
Group II-3, until the Certificate Principal Balance
of each such Class has been reduced to zero.
(D) on each Distribution Date, the Available Funds for Loan Group II-4 will
be distributed to the Class II-A-4 Certificates as follows:
first, to the Class II-A-4 Certificates, the Accrued
Certificate Interest on such Class for such
Distribution Date;
second, to the Class II-A-4 Certificates, any Accrued
Certificate Interest thereon remaining undistributed
from previous Distribution Dates, to the extent of
remaining Available Funds for Loan Group II-4; and
third, to the Class II-A-4 Certificates, in reduction
of the Certificate Principal Balance thereof, the
Senior Optimal Principal Amount with respect to the
Group II-4 Certificates for such Distribution Date to
the extent of remaining Available Funds for Loan
Group II-4, until the Certificate Principal Balance
of each such Class has been reduced to zero.
(E) on each Distribution Date, the Available Funds for Loan Group II-5 will
be distributed to the Class II-A-5 Certificates as follows:
first, to the Class II-A-5 Certificates and the
Class II-X-A-5 Certificates, the Accrued Certificate
Interest on such Classes for such Distribution Date,
pro rata, based on the Accrued Certificate Interest
owed to each Class;
second, to the Class II-A-5 Certificates and the
Class II-X-A-5 Certificates, any Accrued Certificate
Interest thereon remaining undistributed from
previous Distribution Dates, pro rata, based on the
undistributed Accrued Certificate Interest owed to
each Class, to the extent of remaining Available
Funds for Loan Group II-5; and
third, to the Class II-A-5 Certificates, in reduction
of the Certificate Principal Balance thereof, the
Senior Optimal Principal Amount with respect to the
Group II-5 Certificates for such Distribution Date to
the extent of remaining Available Funds for Loan
Group II-5, until the Certificate Principal Balance
of each such Class has been reduced to zero.
(F) on each Distribution Date, the Available Funds for Loan Group II-6 will
be distributed to the Class II-A-6a Certificates and Class
II-A-6b Certificates as follows:
first, to the Class II-A-6a Certificates and Class
II-A-6b Certificates, the Accrued Certificate
Interest on such Classes for such Distribution Date,
pro rata, based on the Accrued Certificate Interest
owed to each Class;
second, to the Class II-A-6a Certificates and Class
II-A-6b Certificates, any Accrued Certificate
Interest thereon remaining undistributed from
previous Distribution Dates, pro rata, based on the
undistributed Accrued Certificate Interest owed to
each Class, to the extent of remaining Available
Funds for Loan Group II-6; and
third, to the Class II-A-6a Certificates and Class
II-A-6b Certificates, in reduction of the Certificate
Principal Balances thereof, the Senior Optimal
Principal Amount with respect to the Group II-6
Certificates for such Distribution Date, pro rata,
based on the Certificate Principal Balance of each
such Class, to the extent of remaining Available
Funds for Loan Group II-6, until the Certificate
Principal Balance of each such Class has been reduced
to zero.
(G) Except as provided in clauses (H) and (I) below, on
each Distribution Date on or prior to the Cross-Over Date,
an amount equal to the sum of any remaining Available Funds
for all Loan Groups in Loan Group II after the
distributions in clauses (A) through (F) above will be
distributed sequentially, in the following order, to the
Class II-B-1, Class II-B-2, Class II-B-3, Class II-B-4,
Class II-B-5 and Class II-B-6 Certificates, in each case up
to an amount equal to and in the following order: (a) the
Accrued Certificate Interest thereon for such Distribution
Date, (b) any Accrued Certificate Interest thereon
remaining undistributed from previous Distribution Dates
and (c) such Class's Allocable Share for such Distribution
Date, in each case, to the extent of remaining Available
Funds for all Loan Groups in Loan Group II.
(H) On each Distribution Date prior to the
Cross-Over Date, but after the reduction of the aggregate
Certificate Principal Balance of the Group II Senior
Certificates in any Certificate Group to zero, the
remaining Certificate Groups related to the Group II
Mortgage Loans will be entitled to receive in reduction of
their Certificate Principal Balances, pro rata based upon
aggregate Certificate Principal Balance of the Senior
Certificates in each Certificate Group related to the Group
II Mortgage Loans immediately prior to such Distribution
Date, in addition to any Principal Prepayments related to
such remaining Group II Senior Certificates' respective
Loan Group allocated to such Senior Certificates, 100% of
the Principal Prepayments on any Group II Mortgage Loan in
the Loan Group or Loan Groups relating to any fully paid
Certificate Group. Such amounts allocated to Group II
Senior Certificates shall be treated as part of the
Available Funds for the related Loan Group and distributed
as part of the related Senior Optimal Distribution Amount
in accordance with priority third in clauses (A) through
(F) above, as applicable, in reduction of the Certificate
Principal Balances thereof. Notwithstanding the foregoing,
if (i) the weighted average of the Subordinate Percentages
for each Loan Group in Loan Group II on such Distribution
Date equals or exceeds two times the initial weighted
average of the Subordinate Percentages for each Loan Group
in Loan Group II and (ii) the aggregate Stated Principal
Balance of the Group II Mortgage Loans delinquent 60 days
or more (including for this purpose any such Mortgage Loans
in foreclosure and Group II Mortgage Loans with respect to
which the related Mortgaged Property has been acquired by
the Trust), averaged over the last six months, as a
percentage of the aggregate Certificate Principal Balance
of the Group II Subordinate Certificates does not exceed
100%, then the additional allocation of Principal
Prepayments to the Certificates in accordance with this
clause will not be made and 100% of the Principal
Prepayments on any Group II Mortgage Loan in the Loan
Group relating to the fully paid Certificate Group or
Certificate Groups related to the Group II Mortgage Loans
will be allocated to the Group II Subordinate Certificates.
(I) For any Undercollateralized Certificate Group on any
Distribution Date prior to the Cross-Over Date, (i) 100% of
amounts otherwise allocable to the Group II Subordinate
Certificates in respect of principal will be distributed to
the Group II Senior Certificates of such
Undercollateralized Certificate Group on a pro rata basis
in accordance with their respective Certificate Principal
Balances in reduction of the Certificate Principal Balances
thereof, until the aggregate Certificate Principal Balance
of such Group II Senior Certificates is an amount equal to
the aggregate Stated Principal Balance of the Group II
Mortgage Loans in the related Loan Group and (ii) the
Accrued Certificate Interest otherwise allocable to the
Group II Subordinate Certificates on such Distribution Date
will be reduced and distributed to such Group II Senior
Certificates, to the extent of any amount due and unpaid on
such Group II Senior Certificates, in an amount equal to
one month's interest at a rate equal to the related
Pass-Through Rate for such Distribution Date on the related
Undercollateralized Amount. Any such reduction in the
Accrued Certificate Interest on the Group II Subordinate
Certificates will be allocated in reverse order of their
respective numerical designations, commencing with the
Class II-B-6 Certificates. If there exists more than one
Undercollateralized Certificate Group on a Distribution
Date, amounts distributable to such Undercollateralized
Certificate Groups pursuant to this clause will be
allocated between such Undercollateralized Certificate
Groups, pro rata, based upon their respective
Undercollateralized Amounts.
(J) If, after distributions have been made pursuant to
priorities first and second of clauses (A) through (F)
above on any Distribution Date, the remaining Available
Funds for any Loan Group in Loan Group II is less than the
Senior Optimal Principal Amount for that Loan Group, the
Senior Optimal Principal Amount for such Loan Group shall
be reduced by that amount, and the remaining Available
Funds for such Loan Group will be distributed as
principal among the related Classes of Group II Senior
Certificates on a pro rata basis in accordance with their
respective Certificate Principal Balances.
(K) On each Distribution Date, any Available Funds
remaining after payment of interest and principal to the
Classes of Certificates entitled thereto, will be
distributed to the Class R Certificates; provided that if
on any Distribution Date there are any Available Funds for
any Loan Group in Loan Group II remaining after payment of
interest and principal to a Class or Classes of
Certificates entitled thereto, such amounts will be
distributed to the other Classes of Group II Senior
Certificates, pro rata, based upon their Certificate
Principal Balances, until all amounts due to all Classes of
Group II Senior Certificates have been paid in full, before
any Available Funds are distributed in accordance with this
clause to the Class R Certificates.
(b) No Accrued Certificate Interest will be payable with respect to any
Class of Certificates after the Distribution Date on which the Certificate
Principal Balance of such Certificate has been reduced to zero.
(c) If on any Distribution Date the Available Funds for the Group II Senior
Certificates in any Certificate Group is less than the Accrued Certificate
Interest on the related Senior Certificates for such Distribution Date prior
to reduction for Net Interest Shortfalls and the interest portion of Realized
Losses, the shortfall will be allocated to the holders of the Class of Senior
Certificates in such Certificate Group on a pro rata basis in accordance with
the amount of Accrued Certificate Interest for that Distribution Date absent
such shortfalls. In addition, the amount of any interest shortfalls will
constitute unpaid Accrued Certificate Interest and will be distributable to
holders of the Certificates of the related Classes entitled to such amounts
on subsequent Distribution Dates, to the extent of the applicable Available
Funds after current interest distributions as required herein. Any such
amounts so carried forward will not bear interest. Shortfalls in interest
payments will not be offset by a reduction in the servicing compensation of
the Master Servicer or otherwise, except to the extent of applicable
Compensating Interest Payments.
(d) The expenses and fees of the Trust shall be paid by each of the 2004-11
REMICs, to the extent that such expenses relate to the assets of each of such
respective 2004-11 REMICs, and all other expenses and fees of the Trust shall
be paid pro rata by each of the 2004-11 REMICs.
Section 6.02.1 Allocation of Losses and Subsequent Recoveries on the
Group I Certificates. (a) On or prior to each Determination Date, the
Master Servicer shall determine the amount of any Realized Loss in respect of
each Group I Mortgage Loan that occurred during the immediately preceding
calendar month, based on information provided by the related Servicer. Any
Realized Losses with respect to the Group I Mortgage Loans shall be applied
on each Distribution Date after the distributions provided for in Section
6.01, in reduction of the Certificate Principal Balance of the Class or
Classes of Group I Certificates to the extent provided in the definition of
Applied Realized Loss Amount.
(b) In addition, in the event that the Master Servicer receives any
Subsequent Recoveries from a Servicer, the Master Servicer shall deposit such
funds into the Master Servicer Collection Account pursuant to Section
4.01(c)(ii). If, after taking into account such Subsequent Recoveries, the
amount of a Realized Loss is reduced, the amount of such Subsequent
Recoveries will be applied to increase the Certificate Principal Balance of
the Class of Group I Subordinate Certificates with the highest payment
priority to which Applied Realized Loss Amounts have been allocated, but not
by more than the amount of Applied Realized Loss Amounts previously allocated
to that Class of Group I Subordinate Certificates. The amount of any
remaining Subsequent Recoveries will be applied to sequentially increase the
Certificate Principal Balance of the Group I Subordinate Certificates,
beginning with the Class of Group I Subordinate Certificates with the next
highest payment priority, up to the amount of such Applied Realized Loss
Amounts previously allocated to such Class or Classes of Group I
Certificates. Holders of such Group I Certificates will not be entitled to
any payments in respect of Current Interest on the amount of such increases
for any Interest Accrual Period preceding the Distribution Date on which such
increase occurs. Any such increases shall be applied to the Certificate
Principal Balance of each Group I Subordinate Certificate of such Class in
accordance with its respective Fractional Undivided Interest.
Section 6.02.2 Allocation of Losses and Subsequent Recoveries on the
Group II Certificates. (a) On or prior to each Determination Date, the
Master Servicer shall determine the amount of any Realized Loss in respect of
each Group II Mortgage Loan that occurred during the immediately preceding
calendar month, based on information provided by the related Servicer.
(b) With respect to any Group II Certificates on any Distribution
Date, the principal portion of each Realized Loss on a Group II Mortgage Loan
in a Loan Group shall be allocated as follows:
first, to the Class II-B-6 Certificates until the
Certificate Principal Balance thereof has been reduced to zero;
second, to the Class II-B-5 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
third, to the Class II-B-4 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
fourth, to the Class II-B-3 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
fifth, to the Class II-B-2 Certificates until the Certificate
Principal Balance thereof has been reduced to zero;
sixth, to the Class II-B-1 Certificates until the Certificate
Principal Balance thereof has been reduced to zero; and
seventh, to the Senior Certificates in the related Certificate
Group until the Certificate Principal Balance thereof has been reduced
to zero; provided, that. any Realized Loss on a Mortgage Loan in a
Loan Group II-6 shall be allocated first to the Class II-A-6b
Certificates until the Certificate Principal Balance thereof has been
reduced to zero and then to the the Class II-A-6a Certificates until
the Certificate Principal Balance thereof has been reduced to zero.
(c) Notwithstanding the foregoing clause (b), no such allocation of
any Realized Loss shall be made on a Distribution Date to any Class of (i)
Group II Subordinated Certificates to the extent that such allocation would
result in the reduction of the aggregate Certificate Principal Balances of
all Group II Certificates in as of such Distribution Date, after giving
effect to all distributions and prior allocations of Realized Losses on the
Group II Mortgage Loans on such date, to an amount less than the aggregate
Stated Principal Balance of all of the Group II Mortgage Loans as of the
first day of the month of such Distribution Date and (ii) Group II Senior
Certificates in a Certificate Group to the extent that such allocation would
result in the reduction of the aggregate Certificate Principal Balances of
all the Group II Certificates in such Certificate Group as of such
Distribution Date, after giving effect to all distributions and prior
allocations of Realized Losses on the Group II Mortgage Loans in the related
Group II Loan Group on such date, to an amount less than the aggregate Stated
Principal Balance of all of the Group II Mortgage Loans in such Loan Group as
of the first day of the month of such Distribution Date (each such limitation
in clause (i) and (ii), the "Loss Allocation Limitation").
(d) The principal portion of any Realized Losses allocated to a
Class of Certificates shall be allocated among the Certificates of such Class
in proportion to their respective Certificate Principal Balances. The
principal portion of any allocation of Realized Losses shall be accomplished
by reducing the Certificate Principal Balance of the related Group II
Certificates on the related Distribution Date. Once the aggregate
Certificate Principal Balance of the Certificates in a Certificate Group been
reduced to zero, the principal portion of Realized Losses on the Mortgage
Loans in the related Loan Group (if any) that are not allocated to the
Subordinate Certificates pursuant to Section 6.02.2(b) will be allocated pro
rata based upon their respective Certificate Principal Balances to the
remaining Group II Senior Certificates of the other Certificate Groups, pro
rata based upon their respective Certificate Principal Balances.
(e) Realized Losses shall be allocated on the Distribution Date in the month
following the month in which such loss was incurred and, in the case of the
principal portion thereof, after giving effect to distributions made on such
Distribution Date.
(f) On each Distribution Date, the Securities Administrator shall determine
and notify the Trustee of the Subordinate Certificate Writedown Amount. Any
Subordinate Certificate Writedown Amount shall effect a corresponding
reduction in the Certificate Principal Balance of the Class II-B Certificates
in the reverse order of their numerical Class designations.
(g) The applicable Senior Percentage of Net Interest Shortfalls will be
allocated among the Group II Senior Certificates in the related Group II
Certificate Group in proportion to the amount of Accrued Certificate Interest
that would have been allocated thereto in the absence of such shortfalls. The
applicable Subordinate Percentage of Net Interest Shortfall will be allocated
among the Group II Subordinate Certificates in proportion to the amount of
Accrued Certificate Interest that would have been allocated thereto in the
absence of such shortfalls. The interest portion of any Realized Losses with
respect to the Group II Mortgage Loans occurring on or prior to the
Cross-Over Date will be allocated to the Class II-B Certificates in inverse
order of their numerical Class designations. Following the Cross-Over Date,
the interest portion of Realized Losses on the Group II Mortgage Loans will
be allocated to the Group II Senior Certificates in the related Group II
Certificate Group on a pro rata basis in proportion to the amount of Accrued
Certificate Interest that would have been allocated thereto in the absence of
such Realized Losses.
(h) In addition, in the event that the Master Servicer receives any
Subsequent Recoveries from a Servicer, the Master Servicer shall deposit such
funds into the Master Servicer Collection Account pursuant to Section
4.01(c)(ii). If, after taking into account such Subsequent Recoveries, the
amount of a Realized Loss is reduced, the amount of such Subsequent
Recoveries will be applied to increase the Certificate Principal Balance of
the Class of Group II Subordinate Certificates with the highest payment
priority to which Realized Losses have been allocated, but not by more than
the amount of Realized Losses previously allocated to that Class of Group II
Subordinate Certificates pursuant to this Section 6.02.2. The amount of any
remaining Subsequent Recoveries will be applied to sequentially increase the
Certificate Principal Balance of the Group II Subordinate Certificates,
beginning with the Class of Group II Subordinate Certificates with the next
highest payment priority, up to the amount of such Realized Losses previously
allocated to such Class or Classes of Group II Certificates pursuant to this
Section 6.02.2. Holders of such Certificates will not be entitled to any
payments in respect of current interest on the amount of such increases for
any Interest Accrual Period preceding the Distribution Date on which such
increase occurs. Any such increases shall be applied to the Certificate
Principal Balance of each Group II Subordinate Certificate of such Class in
accordance with its respective Fractional Undivided Interest.
Section 6.02.3 Cross-Collateralization. Notwithstanding the
foregoing, on any Distribution Date on which the Certificate Principal
Balance of the Group I Subordinate Certificates or the Group II Subordinate
Certificates have been reduced to zero and a Realized Loss that is a Special
Hazard Loss is to be allocated to the related Senior Certificates, such loss
will be allocated among such Senior Certificates and the most subordinate
outstanding class of non-related Subordinate Certificates on a pro rata
basis, based on the Certificate Principal Balance thereof.
Section 6.03 Payments. (a) On each Distribution Date, other
than the final Distribution Date, the Trustee shall distribute to each
Certificateholder of record as of the immediately preceding Record Date the
Certificateholder's pro rata share of its Class (based on the aggregate
Fractional Undivided Interest represented by such Holder's Certificates) of
all amounts required to be distributed on such Distribution Date to such
Class, based on information provided to the Trustee by the Securities
Administrator. The Securities Administrator shall calculate the amount to be
distributed to each Class and, based on such amounts, the Securities
Administrator shall determine the amount to be distributed to each
Certificateholder. All of the Securities Administrator's calculations of
payments shall be based solely on information provided to the Securities
Administrator by the Master Servicer. Neither the Securities Administrator
nor the Trustee shall be required to confirm, verify or recompute any such
information but shall be entitled to rely conclusively on such information.
(b) Payment of the above amounts to each Certificateholder shall be
made (i) by check mailed to each Certificateholder entitled thereto at the
address appearing in the Certificate Register or (ii) upon receipt by the
Trustee on or before the fifth Business Day preceding the Record Date of
written instructions from a Certificateholder by wire transfer to a United
States dollar account maintained by the payee at any United States depository
institution with appropriate facilities for receiving such a wire transfer;
provided, however, that the final payment in respect of each Class of
Certificates will be made only upon presentation and surrender of such
respective Certificates at the office or agency of the Trustee specified in
the notice to Certificateholders of such final payment.
Section 6.04 Statements to Certificateholders. (a) On each
Distribution Date, concurrently with each distribution to Certificateholders,
the Securities Administrator shall make available to the parties hereto and
each Certificateholder via the Securities Administrator's internet website as
set forth below, the following information, expressed with respect to clauses
(i) through (vii) in the aggregate and as a Fractional Undivided Interest
representing an initial Certificate Principal Balance of $1,000, or in the
case of the Class II-X-A-5 Certificates and Class B-IO Certificates, an
initial Notional Balance of $1,000:
(i) the Certificate Principal Balance or Notional Principal Balance, as
applicable, of each Class of Certificates immediately prior to such
Distribution Date;
(ii) the amount of the distribution allocable to principal on each applicable
Class of Certificates;
(iii) the aggregate amount of interest accrued at the related Pass-Through
Rate with respect to each Class during the related Interest Accrual Period;
(iv) the Net Interest Shortfall and any other adjustments to interest at the
related Pass-Through Rate necessary to account for any difference between
interest accrued and aggregate interest distributed with respect to each
Class of Certificates;
(v) the amount of the distribution allocable to interest on each Class of
Certificates;
(vi) the Pass-Through Rates for each Class of Certificates with respect to
such Distribution Date;
(vii) the Certificate Principal Balance or Notional Principal Balance, as
applicable, of each Class of Certificates after such Distribution Date;
(viii) the amount of any Monthly Advances, Compensating Interest
Payments and outstanding unreimbursed advances by the Master Servicer or the
Servicer included in such distribution separately stated for each Loan Group;
(ix) the aggregate amount of any Realized Losses (listed separately for each
category of Realized Loss and for each Loan Group) during the related
Prepayment Period and cumulatively since the Cut-off Date and the amount and
source (separately identified) of any distribution in respect thereof
included in such distribution;
(x) with respect to each Mortgage Loan which incurred a Realized Loss during
the related Prepayment Period, (i) the loan number, (ii) the Stated Principal
Balance of such Mortgage Loan as of the Cut-off Date, (ii) the Stated
Principal Balance of such Mortgage Loan for such Distribution Date, (iii) the
Net Liquidation Proceeds with respect to such Mortgage Loan and (iv) the
amount of the Realized Loss with respect to such Mortgage Loan;
(xi) with respect to each Loan Group, the amount of Scheduled Principal and
Principal Prepayments, (including but separately identifying the principal
amount of Principal Prepayments, Insurance Proceeds, the purchase price in
connection with the purchase of Mortgage Loans, cash deposits in connection
with substitutions of Mortgage Loans and Net Liquidation Proceeds) and the
number and principal balance of Mortgage Loans purchased or substituted for
during the relevant period and cumulatively since the Cut-off Date;
(xii) the number of Mortgage Loans (excluding REO Property) in each Loan
Group remaining in the Trust Fund as of the end of the related Prepayment
Period;
(xiii) information for each Loan Group and in the aggregate regarding
any Mortgage Loan delinquencies as of the end of the related Prepayment
Period, including the aggregate number and aggregate Outstanding Principal
Balance of Mortgage Loans (a) delinquent 30 to 59 days on a contractual
basis, (b) delinquent 60 to 89 days on a contractual basis, and (c)
delinquent 90 or more days on a contractual basis, in each case as of the
close of business on the last Business Day of the immediately preceding month;
(xiv) for each Loan Group, the number of Mortgage Loans in the foreclosure
process as of the end of the related Due Period and the aggregate Outstanding
Principal Balance of such Mortgage Loans;
(xv) for each Loan Group, the number and aggregate Outstanding Principal
Balance of all Mortgage Loans as to which the Mortgaged Property was REO
Property as of the end of the related Due Period;
(xvi) the book value (the sum of (A) the Outstanding Principal Balance of the
Mortgage Loan, (B) accrued interest through the date of foreclosure and (C)
foreclosure expenses) of any REO Property in each Loan Group; provided that,
in the event that such information is not available to the Securities
Administrator on the Distribution Date, such information shall be furnished
promptly after it becomes available;
(xvii) the amount of Realized Losses allocated to each Class of
Certificates since the prior Distribution Date and in the aggregate for all
prior Distribution Dates;
(xviii) the Average Loss Severity Percentage for each Loan Group;
(xix) the Senior Percentage, Senior Prepayment Percentage, Subordinate
Percentage and Subordinate Prepayment Percentage, in each case, for such
Distribution Date;
(xx) the Interest Carry Forward Amount and any Basis Risk Shortfall Carry
Forward Amount for each Class of Certificates;
(xxi) the amount of the distribution made on such Distribution Date to
Holders of each Class allocable to interest and the portion thereof, if any,
provided by the Cap Contracts;
(xxii) the cumulative amount of Applied Realized Loss Amounts to date;
and
(xxiii) whether a Trigger Event exists.
The information set forth above shall be calculated or reported, as the
case may be, by the Securities Administrator, based solely on, and to the
extent of, information provided to the Securities Administrator by the Master
Servicer. The Securities Administrator may conclusively rely on such
information and shall not be required to confirm, verify or recalculate any
such information.
The Securities Administrator may make available each month, to any
interested party, the monthly statement to Certificateholders via the
Securities Administrator's website initially located at "xxx.xxxxxxx.xxx."
Assistance in using the website can be obtained by calling the Securities
Administrator's customer service desk at (000) 000-0000. Parties that are
unable to use the above distribution option are entitled to have a paper copy
mailed to them via first class mail by calling the Securities Administrator's
customer service desk and indicating such. The Securities Administrator
shall have the right to change the way such reports are distributed in order
to make such distribution more convenient and/or more accessible to the
parties, and the Securities Administrator shall provide timely and adequate
notification to all parties regarding any such change.
To the extent timely received from the Securities Administrator, the
Trustee will also make monthly statements available each month to
Certificateholders via the Trustee's internet website. The Trustee's
internet website will initially be located at xxx.xxxxxxxx.xxx/xxx.
Assistance in using the Trustee's website service can be obtained by calling
the Trustee's customer service desk at (000) 000-0000.
(b) Within a reasonable period of time after the end of the preceding
calendar year beginning in 2005, the Trustee will furnish such report to each
Holder of the Certificates of record at any time during the prior calendar
year as to the aggregate of amounts reported pursuant to subclauses (a)(ii)
and (a)(v) above with respect to the Certificates, plus information with
respect to the amount of servicing compensation and such other customary
information as the Securities Administrator may determine and advises the
Trustee to be necessary and/or to be required by the Internal Revenue Service
or by a federal or state law or rules or regulations to enable such Holders
to prepare their tax returns for such calendar year. Such obligations shall
be deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Securities Administrator or the Trustee
pursuant to the requirements of the Code.
Section 6.05 Monthly Advances. If the Scheduled Payment on a Mortgage
Loan that was due on a related Due Date is delinquent other than as a result
of application of the Relief Act and for which the related Servicer was
required to make an advance pursuant to the related Servicing Agreement
exceeds the amount deposited in the Master Servicer Collection Account which
will be used for an advance with respect to such Mortgage Loan, the Master
Servicer will deposit in the Master Servicer Collection Account not later
than the Distribution Account Deposit Date immediately preceding the related
Distribution Date an amount equal to such deficiency, net of the Servicing
Fee for such Mortgage Loan except to the extent the Master Servicer
determines any such advance to be a Nonrecoverable Advance. Subject to the
foregoing, the Master Servicer shall continue to make such advances through
the date that the related Servicer is required to do so under its Servicing
Agreement. If the Master Servicer deems an advance to be a Nonrecoverable
Advance, on the Distribution Account Deposit Date, the Master Servicer shall
present an Officer's Certificate to the Trustee (i) stating that the Master
Servicer elects not to make a Monthly Advance in a stated amount and
(ii) detailing the reason it deems the advance to be a Nonrecoverable Advance.
Section 6.06 Compensating Interest Payments. The Master Servicer
shall deposit in the Master Servicer Collection Account not later than each
Distribution Account Deposit Date an amount equal to the lesser of (i) the
sum of the aggregate amounts required to be paid by the Servicers under the
Servicing Agreements with respect to subclauses (a) and (b) of the definition
of Interest Shortfall with respect to the Mortgage Loans for the related
Distribution Date, and not so paid by the related Servicers and (ii) the
Master Servicer Compensation for such Distribution Date (such amount, the
"Compensating Interest Payment"). The Master Servicer shall not be entitled
to any reimbursement of any Compensating Interest Payment.
Section 6.07 Distributions on REMIC I Regular Interests and REMIC II
Regular Interests
(a) On each Distribution Date, the Trustee shall be deemed to
distribute to itself on behalf of REMIC III as the holder of the REMIC I
Regular Interests, those portions of the REMIC I Distribution Amount not
designated to Component I of the Class R Certificate, in the amounts and in
accordance with the priorities set forth in the definition of REMIC I
Distribution Amount.
(b) On each Distribution Date, the Trustee shall be deemed to
distribute to itself on behalf of REMIC IV as the holder of the REMIC II
Regular Interests and REMIC III Regular Interests, those portions of the
REMIC II Distribution Amount and REMIC III Distribution Amount not designated
to Component II of Component III of the Class R Certificate, in the amounts
and in accordance with the priorities set forth in the definitions of REMIC
II Distribution Amount and REMIC III Distribution Amount.
(c) On each Distribution Date, the Trustee shall be deemed to
distribute to the holders of the Certificates as the holders of the REMIC IV
Interests, the REMIC IV Distribution Amount, in the amounts and in accordance
with the priorities set forth in the definition of REMIC I Distribution
Amount.
(d) Notwithstanding the deemed distributions on the REMIC I Regular
Interests and REMIC II Regular Interests described in this Section 6.07,
distributions of funds from the Distribution Account shall be made only in
accordance with Sections 6.01.1 and 6.01.2.
ARTICLE VII
The Master Servicer
Section 7.01 Liabilities of the Master Servicer. The Master Servicer
shall be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by it herein.
Section 7.02 Merger or Consolidation of the Master Servicer.
(a) The Master Servicer will keep in full force and effect its existence,
rights and franchises as a corporation under the laws of the state of its
incorporation, and will obtain and preserve its qualification to do business
as a foreign corporation in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this
Agreement, the Certificates or any of the Mortgage Loans and to perform its
duties under this Agreement.
(b) Any Person into which the Master Servicer may be merged or consolidated,
or any corporation resulting from any merger or consolidation to which the
Master Servicer shall be a party, or any Person succeeding to the business of
the Master Servicer, shall be the successor of the Master Servicer hereunder,
without the execution or filing of any paper or further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
Section 7.03 Indemnification of the Trustee, the Master Servicer and the
Securities Administrator. (a) The Master Servicer agrees to indemnify the
Indemnified Persons for, and to hold them harmless against, any loss,
liability or expense (including reasonable legal fees and disbursements of
counsel) incurred on their part that may be sustained in connection with,
arising out of, or relating to, any claim or legal action (including any
pending or threatened claim or legal action) relating to this Agreement, the
Servicing Agreements, the Assignment Agreements or the Certificates or the
powers of attorney delivered by the Trustee hereunder (i) related to the
Master Servicer's failure to perform its duties in compliance with this
Agreement (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement) or (ii) incurred by reason of the
Master Servicer's willful misfeasance, bad faith or gross negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder, provided, in each case, that with respect
to any such claim or legal action (or pending or threatened claim or legal
action), the Trustee shall have given the Master Servicer and the Depositor
written notice thereof promptly after the Trustee shall have with respect to
such claim or legal action knowledge thereof. The Trustee's failure to give
any such notice shall not affect the Trustee's right to indemnification
hereunder, except to the extent the Master Servicer is materially prejudiced
by such failure to give notice. This indemnity shall survive the resignation
or removal of the Trustee, Master Servicer or the Securities Administrator
and the termination of this Agreement.
(a) The Depositor will indemnify any Indemnified Person for any loss,
liability or expense of any Indemnified Person not otherwise covered by the
Master Servicer's indemnification pursuant to Section 7.03(a).
Section 7.04 Limitations on Liability of the Master Servicer and
Others. Subject to the obligation of the Master Servicer to indemnify the
Indemnified Persons pursuant to Section 7.03:
(a) Neither the Master Servicer nor any of the directors, officers, employees
or agents of the Master Servicer shall be under any liability to the
Indemnified Persons, the Depositor, the Trust Fund or the Certificateholders
for taking any action or for refraining from taking any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Master Servicer or any such Person
against any breach of warranties or representations made herein or any
liability which would otherwise be imposed by reason of such Person's willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties hereunder.
(b) The Master Servicer and any director, officer, employee or agent of the
Master Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder.
(c) The Master Servicer, the Custodian and any director, officer, employee or
agent of the Master Servicer or the Custodian shall be indemnified by the
Trust and held harmless thereby against any loss, liability or expense
(including reasonable legal fees and disbursements of counsel) incurred on
their part that may be sustained in connection with, arising out of, or
related to, any claim or legal action (including any pending or threatened
claim or legal action) relating to this Agreement, the Certificates or any
Servicing Agreement (except to the extent that the Master Servicer is
indemnified by the Servicer thereunder), other than (i) any such loss,
liability or expense related to the Master Servicer's failure to perform its
duties in compliance with this Agreement (except as any such loss, liability
or expense shall be otherwise reimbursable pursuant to this Agreement), or to
the Custodian's failure to perform its duties under the Custodial Agreement,
respectively, or (ii) any such loss, liability or expense incurred by reason
of the Master Servicer's or the Custodian's willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or under the
Custodial Agreement, as applicable, or by reason of reckless disregard of
obligations and duties hereunder or under the Custodial Agreement, as
applicable.
(d) The Master Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its duties
under this Agreement and that in its opinion may involve it in any expense or
liability; provided, however, the Master Servicer may in its discretion, with
the consent of the Trustee (which consent shall not be unreasonably
withheld), undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights and duties of the parties
hereto and the interests of the Certificateholders hereunder. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Master Servicer shall be entitled to be reimbursed therefor out of the Master
Servicer Collection Account as provided by Section 4.03. Nothing in this
Section 7.04(d) shall affect the Master Servicer's obligation to supervise,
or to take such actions as are necessary to ensure, the servicing and
administration of the Mortgage Loans pursuant to Section 3.01(a).
(e) In taking or recommending any course of action pursuant to this
Agreement, unless specifically required to do so pursuant to this Agreement,
the Master Servicer shall not be required to investigate or make
recommendations concerning potential liabilities which the Trust might incur
as a result of such course of action by reason of the condition of the
Mortgaged Properties but shall give notice to the Trustee if it has notice of
such potential liabilities.
(f) The Master Servicer shall not be liable for any acts or omissions of any
Servicer, except as otherwise expressly provided herein.
Section 7.05 Master Servicer Not to Resign. Except as provided in
Section 7.07, the Master Servicer shall not resign from the obligations and
duties hereby imposed on it except upon a determination that any such duties
hereunder are no longer permissible under applicable law and such
impermissibility cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of
Independent Counsel addressed to the Trustee to such effect delivered to the
Trustee. No such resignation by the Master Servicer shall become effective
until the Company or the Trustee or a successor to the Master Servicer
reasonably satisfactory to the Trustee shall have assumed the
responsibilities and obligations of the Master Servicer in accordance with
Section 8.02 hereof. The Trustee shall notify the Rating Agencies of the
resignation of the Master Servicer.
Section 7.06 Successor Master Servicer. In connection with the
appointment of any successor master servicer or the assumption of the duties
of the Master Servicer, the Company or the Trustee may make such arrangements
for the compensation of such successor master servicer out of payments on the
Mortgage Loans as the Company or the Trustee and such successor master
servicer shall agree. If the successor master servicer does not agree that
such market value is a fair price, such successor master servicer shall
obtain two quotations of market value from third parties actively engaged in
the servicing of single-family mortgage loans. Notwithstanding the
foregoing, the compensation payable to a successor master servicer may not
exceed the compensation which the Master Servicer would have been entitled to
retain if the Master Servicer had continued to act as Master Servicer
hereunder.
Section 7.07 Sale and Assignment of Master Servicing. The Master
Servicer may sell and assign its rights and delegate its duties and
obligations in its entirety as Master Servicer under this Agreement and the
Company may terminate the Master Servicer without cause and select a new
Master Servicer; provided, however, that: (i) the purchaser or transferee
accepting such assignment and delegation (a) shall be a Person which shall be
qualified to service mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac; (b) shall
have a net worth of not less than $10,000,000 (unless otherwise approved by
each Rating Agency pursuant to clause (ii) below); (c) shall be reasonably
satisfactory to the Trustee (as evidenced in a writing signed by the
Trustee); and (d) shall execute and deliver to the Trustee an agreement, in
form and substance reasonably satisfactory to the Trustee, which contains an
assumption by such Person of the due and punctual performance and observance
of each covenant and condition to be performed or observed by it as master
servicer under this Agreement, any custodial agreement from and after the
effective date of such agreement; (ii) each Rating Agency shall be given
prior written notice of the identity of the proposed successor to the Master
Servicer and each Rating Agency's rating of the Certificates in effect
immediately prior to such assignment, sale and delegation will not be
downgraded, qualified or withdrawn as a result of such assignment, sale and
delegation, as evidenced by a letter to such effect delivered to the Master
Servicer and the Trustee; (iii) the Master Servicer assigning and selling the
master servicing shall deliver to the Trustee an Officer's Certificate and an
Opinion of Independent Counsel addressed to the Trustee, each stating that
all conditions precedent to such action under this Agreement have been
completed and such action is permitted by and complies with the terms of this
Agreement; and (iv) in the event the Master Servicer is terminated without
cause by the Company, the Company shall pay the terminated Master Servicer a
termination fee equal to 0.25% of the aggregate Stated Principal Balance of
the Mortgage Loans at the time the master servicing of the Mortgage Loans is
transferred to the successor Master Servicer. No such assignment or
delegation shall affect any rights or liability of the Master Servicer
arising prior to the effective date thereof.
ARTICLE VIII
Default
Section 8.01 Events of Default. "Event of Default," wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body) and only with respect to the defaulting Master Servicer:
(i) The Master Servicer fails to cause to be deposited in the Distribution
Account any amount so required to be deposited pursuant to this Agreement
(other than a Monthly Advance), and such failure continues unremedied for a
period of three Business Days after the date upon which written notice of
such failure, requiring the same to be remedied, shall have been given to the
Master Servicer; or
(ii) The Master Servicer fails to observe or perform in any material respect
any other material covenants and agreements set forth in this Agreement to be
performed by it, which covenants and agreements materially affect the rights
of Certificateholders, and such failure continues unremedied for a period of
60 days after the date on which written notice of such failure, properly
requiring the same to be remedied, shall have been given to the Master
Servicer by the Trustee or to the Master Servicer and the Trustee by the
Holders of Certificates evidencing Fractional Undivided Interests aggregating
not less than 25% of the Trust Fund; or
(iii) There is entered against the Master Servicer a decree or order by a
court or agency or supervisory authority having jurisdiction in the premises
for the appointment of a conservator, receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order is unstayed and in effect for a
period of 60 consecutive days, or an involuntary case is commenced against
the Master Servicer under any applicable insolvency or reorganization statute
and the petition is not dismissed within 60 days after the commencement of
the case; or
(iv) The Master Servicer consents to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or relating to the Master
Servicer or substantially all of its property; or the Master Servicer admits
in writing its inability to pay its debts generally as they become due, files
a petition to take advantage of any applicable insolvency or reorganization
statute, makes an assignment for the benefit of its creditors, or voluntarily
suspends payment of its obligations;
(v) The Master Servicer assigns or delegates its duties or rights under this
Agreement in contravention of the provisions permitting such assignment or
delegation under Sections 7.05 or 7.07; or
(vi) The Master Servicer fails to deposit, or cause to be deposited, in the
Distribution Account any Monthly Advance (other than a Nonrecoverable
Advance) by 5:00 p.m. New York City time on the Distribution Account Deposit
Date.
In each and every such case, so long as such Event of Default with respect to
the Master Servicer shall not have been remedied, either the Trustee or the
Holders of Certificates evidencing Fractional Undivided Interests aggregating
not less than 51% of the principal of the Trust Fund, by notice in writing to
the Master Servicer (and to the Trustee if given by such Certificateholders),
with a copy to the Rating Agencies, and with the consent of the Company, may
terminate all of the rights and obligations (but not the liabilities) of the
Master Servicer under this Agreement and in and to the Mortgage Loans and/or
the REO Property serviced by the Master Servicer and the proceeds thereof.
Upon the receipt by the Master Servicer of the written notice, all authority
and power of the Master Servicer under this Agreement, whether with respect
to the Certificates, the Mortgage Loans, REO Property or under any other
related agreements (but only to the extent that such other agreements relate
to the Mortgage Loans or related REO Property) shall, subject to
Section 8.02, automatically and without further action pass to and be vested
in the Trustee pursuant to this Section 8.01; and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf
of the Master Servicer as attorney-in-fact or otherwise, any and all
documents and other instruments and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment
of the Mortgage Loans and related documents, or otherwise. The Master
Servicer agrees to cooperate with the Trustee in effecting the termination of
the Master Servicer's rights and obligations hereunder, including, without
limitation, the transfer to the Trustee of (i) the property and amounts which
are then or should be part of the Trust or which thereafter become part of
the Trust; and (ii) originals or copies of all documents of the Master
Servicer reasonably requested by the Trustee to enable it to assume the
Master Servicer's duties thereunder. In addition to any other amounts which
are then, or, notwithstanding the termination of its activities under this
Agreement, may become payable to the Master Servicer under this Agreement,
the Master Servicer shall be entitled to receive, out of any amount received
on account of a Mortgage Loan or related REO Property, that portion of such
payments which it would have received as reimbursement under this Agreement
if notice of termination had not been given. The termination of the rights
and obligations of the Master Servicer shall not affect any obligations
incurred by the Master Servicer prior to such termination.
Notwithstanding the foregoing, if an Event of Default described in
clause (vi) of this Section 8.01 shall occur, the Trustee shall, by notice in
writing to the Master Servicer, which may be delivered by telecopy,
immediately terminate all of the rights and obligations of the Master
Servicer thereafter arising under this Agreement, but without prejudice to
any rights it may have as a Certificateholder or to reimbursement of Monthly
Advances and other advances of its own funds, and the Trustee shall act as
provided in Section 8.02 to carry out the duties of the Master Servicer,
including the obligation to make any Monthly Advance the nonpayment of which
was an Event of Default described in clause (vi) of this Section 8.01. Any
such action taken by the Trustee must be prior to the distribution on the
relevant Distribution Date.
Section 8.02 Trustee to Act; Appointment of Successor. (a) Upon the
receipt by the Master Servicer of a notice of termination pursuant to
Section 8.01 or an Opinion of Independent Counsel pursuant to Section 7.05 to
the effect that the Master Servicer is legally unable to act or to delegate
its duties to a Person which is legally able to act, the Trustee shall
automatically become the successor in all respects to the Master Servicer in
its capacity under this Agreement and the transactions set forth or provided
for herein and shall thereafter be subject to all the responsibilities,
duties, liabilities and limitations on liabilities relating thereto placed on
the Master Servicer by the terms and provisions hereof; provided, however,
that the Company shall have the right to either (a) immediately assume the
duties of the Master Servicer or (b) select a successor Master Servicer;
provided further, however, that the Trustee shall have no obligation
whatsoever with respect to any liability (other than advances deemed
recoverable and not previously made) incurred by the Master Servicer at or
prior to the time of termination. As compensation therefor, but subject to
Section 7.06, the Trustee shall be entitled to compensation which the Master
Servicer would have been entitled to retain if the Master Servicer had
continued to act hereunder, except for those amounts due the Master Servicer
as reimbursement permitted under this Agreement for advances previously made
or expenses previously incurred. Notwithstanding the above, the Trustee may,
if it shall be unwilling so to act, or shall, if it is legally unable so to
act, appoint or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution which is a Xxxxxx Mae- or
Xxxxxxx Mac-approved servicer, and with respect to a successor to the Master
Servicer only, having a net worth of not less than $10,000,000, as the
successor to the Master Servicer hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of the Master Servicer
hereunder; provided, that the Trustee shall obtain a letter from each Rating
Agency that the ratings, if any, on each of the Certificates will not be
lowered as a result of the selection of the successor to the Master
Servicer. Pending appointment of a successor to the Master Servicer
hereunder, the Trustee shall act in such capacity as hereinabove provided.
In connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on the
Mortgage Loans as it and such successor shall agree; provided, however, that
the provisions of Section 7.06 shall apply, the compensation shall not be in
excess of that which the Master Servicer would have been entitled to if the
Master Servicer had continued to act hereunder, and that such successor shall
undertake and assume the obligations of the Trustee to pay compensation to
any third Person acting as an agent or independent contractor in the
performance of master servicing responsibilities hereunder. The Trustee and
such successor shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession.
(b) If the Trustee shall succeed to any duties of the Master Servicer
respecting the Mortgage Loans as provided herein, it shall do so in a
separate capacity and not in its capacity as Trustee and, accordingly, the
provisions of Article IX shall be inapplicable to the Trustee in its duties
as the successor to the Master Servicer in the servicing of the Mortgage
Loans (although such provisions shall continue to apply to the Trustee in its
capacity as Trustee); the provisions of Article VII, however, shall apply to
it in its capacity as successor master servicer.
Section 8.03 Notification to Certificateholders. Upon any termination
or appointment of a successor to the Master Servicer, the Trustee shall give
prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register and to the Rating Agencies.
Section 8.04 Waiver of Defaults. The Trustee shall transmit by mail to
all Certificateholders, within 60 days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Trustee, unless such
Event of Default shall have been cured, notice of each such Event of
Default. The Holders of Certificates evidencing Fractional Undivided
Interests aggregating not less than 51% of the Trust Fund may, on behalf of
all Certificateholders, waive any default by the Master Servicer in the
performance of its obligations hereunder and the consequences thereof, except
a default in the making of or the causing to be made any required
distribution on the Certificates, which default may only be waived by Holders
of Certificates evidencing Fractional Undivided Interests aggregating 100% of
the Trust Fund. Upon any such waiver of a past default, such default shall
be deemed to cease to exist, and any Event of Default arising therefrom shall
be deemed to have been timely remedied for every purpose of this Agreement.
No such waiver shall extend to any subsequent or other default or impair any
right consequent thereon except to the extent expressly so waived. The
Trustee shall give notice of any such waiver to the Rating Agencies.
Section 8.05 List of Certificateholders. Upon written request of three
or more Certificateholders of record, for purposes of communicating with
other Certificateholders with respect to their rights under this Agreement,
the Trustee will afford such Certificateholders access during business hours
to the most recent list of Certificateholders held by the Trustee.
ARTICLE IX
Concerning the Trustee and the Securities Administrator
Section 9.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after the
curing or waiver of all Events of Default which may have occurred, and the
Securities Administrator each undertake to perform such duties and only such
duties as are specifically set forth in this Agreement as duties of the
Trustee and the Securities Administrator, respectively. If an Event of
Default has occurred and has not been cured or waived, the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and
subject to Section 8.02(b) use the same degree of care and skill in their
exercise, as a prudent person would exercise under the circumstances in the
conduct of his own affairs.
(b) Upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments which are specifically
required to be furnished to the Trustee and the Securities Administrator
pursuant to any provision of this Agreement, the Trustee and the Securities
Administrator, respectively, shall examine them to determine whether they are
in the form required by this Agreement; provided, however, that neither the
Trustee nor the Securities Administrator shall be responsible for the
accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished hereunder; provided,
further, that neither the Trustee nor the Securities Administrator shall be
responsible for the accuracy or verification of any calculation provided to
it pursuant to this Agreement.
(c) On each Distribution Date, the Trustee shall make monthly distributions
and the final distribution to the Certificateholders from funds in the
Distribution Account as provided in Sections 6.01 and 10.01 herein based
solely on the report of the Securities Administrator.
(d) No provision of this Agreement shall be construed to relieve the Trustee
or the Securities Administrator from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct; provided,
however, that:
(i) Prior to the occurrence of an Event of Default, and after the curing or
waiver of all such Events of Default which may have occurred, the duties and
obligations of the Trustee and the Securities Administrator shall be
determined solely by the express provisions of this Agreement, neither the
Trustee nor the Securities Administrator shall be liable except for the
performance of their respective duties and obligations as are specifically
set forth in this Agreement, no implied covenants or obligations shall be
read into this Agreement against the Trustee or the Securities Administrator
and, in the absence of bad faith on the part of the Trustee or the Securities
Administrator, respectively, the Trustee or the Securities Administrator,
respectively, may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee or the Securities Administrator,
respectively, and conforming to the requirements of this Agreement;
(ii) Neither the Trustee nor the Securities Administrator shall be liable in
its individual capacity for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee or an officer of
the Securities Administrator, respectively, unless it shall be proved that
the Trustee or the Securities Administrator, respectively, was negligent in
ascertaining the pertinent facts;
(iii) Neither the Trustee nor the Securities Administrator shall be liable
with respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the directions of the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than 25% of
the Trust Fund, if such action or non-action relates to the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
the Securities Administrator, respectively, or exercising any trust or other
power conferred upon the Trustee or the Securities Administrator,
respectively, under this Agreement;
(iv) The Trustee shall not be required to take notice or be deemed to have
notice or knowledge of any default or Event of Default unless a Responsible
Officer of the Trustee's Corporate Trust Office shall have actual knowledge
thereof. In the absence of such notice, the Trustee may conclusively assume
there is no such default or Event of Default;
(v) The Trustee shall not in any way be liable by reason of any insufficiency
in any Account held by or in the name of Trustee unless it is determined by a
court of competent jurisdiction that the Trustee's gross negligence or
willful misconduct was the primary cause of such insufficiency (except to the
extent that the Trustee is obligor and has defaulted thereon);
(vi) Anything in this Agreement to the contrary notwithstanding, in no event
shall the Trustee or the Securities Administrator be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including
but not limited to lost profits), even if the Trustee or the Securities
Administrator, respectively, has been advised of the likelihood of such loss
or damage and regardless of the form of action;
(vii) None of the Securities Administrator, the Master Servicer, the
Depositor, the Company or the Trustee shall be responsible for the acts or
omissions of the other, it being understood that this Agreement shall not be
construed to render them partners, joint venturers or agents of one another
and
(viii) Neither the Trustee nor the Securities Administrator shall be
required to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee or the
Securities Administrator to perform, or be responsible for the manner of
performance of, any of the obligations of the Master Servicer under this
Agreement, except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges
of, the Master Servicer in accordance with the terms of this Agreement.
(e) All funds received by the Master Servicer and the Trustee and required to
be deposited in the Master Servicer Collection Account or Distribution
Account pursuant to this Agreement will be promptly so deposited by the
Master Servicer and the Trustee.
(f) Except for those actions that the Trustee or the Securities Administrator
is required to take hereunder, neither the Trustee nor the Securities
Administrator shall have any obligation or liability to take any action or to
refrain from taking any action hereunder in the absence of written direction
as provided hereunder.
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator. Except as otherwise provided in Section 9.01:
(a) The Trustee and the Securities Administrator may rely and shall be
protected in acting or refraining from acting in reliance on any resolution,
certificate of the Depositor, the Master Servicer or a Servicer, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) The Trustee and the Securities Administrator may consult with counsel and
any advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection with respect to any action taken or
suffered or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(c) Neither the Trustee nor the Securities Administrator shall be under any
obligation to exercise any of the trusts or powers vested in it by this
Agreement, other than its obligation to give notices pursuant to this
Agreement, or to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby. Nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default of
which a Responsible Officer of the Trustee has actual knowledge (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 under the circumstances in
the conduct of his own affairs;
(d) Prior to the occurrence of an Event of Default hereunder and after the
curing or waiver of all Events of Default which may have occurred, neither
the Trustee nor the Securities Administrator shall be liable in its
individual capacity for any action taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Agreement;
(e) Neither the Trustee nor the Securities Administrator shall be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless requested
in writing to do so by Holders of Certificates evidencing Fractional
Undivided Interests aggregating not less than 25% of the Trust Fund and
provided that the payment within a reasonable time to the Trustee or the
Securities Administrator, as applicable, of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee or the Securities Administrator, as
applicable, reasonably assured to the Trustee or the Securities
Administrator, as applicable, by the security afforded to it by the terms of
this Agreement. The Trustee or the Securities Administrator may require
reasonable indemnity against such expense or liability as a condition to
taking any such action. The reasonable expense of every such examination
shall be paid by the Certificateholders requesting the investigation;
(f) The Trustee and the Securities Administrator may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or
through Affiliates, agents or attorneys; provided, however, that the Trustee
may not appoint any agent to perform its custodial functions with respect to
the Mortgage Files or paying agent functions under this Agreement without the
express written consent of the Master Servicer, which consent will not be
unreasonably withheld. Neither the Trustee nor the Securities Administrator
shall be liable or responsible for the misconduct or negligence of any of the
Trustee's or the Securities Administrator's agents or attorneys or a
custodian or paying agent appointed hereunder by the Trustee or the
Securities Administrator with due care and, when required, with the consent
of the Master Servicer;
(g) Should the Trustee or the Securities Administrator deem the nature of any
action required on its part, other than a payment or transfer under Section
4.01(b) or Section 4.02, to be unclear, the Trustee or the Securities
Administrator, respectively, may require prior to such action that it be
provided by the Depositor with reasonable further instructions;
(h) The right of the Trustee or the Securities Administrator to perform any
discretionary act enumerated in this Agreement shall not be construed as a
duty, and neither the Trustee nor the Securities Administrator shall be
accountable for other than its negligence or willful misconduct in the
performance of any such act;
(i) Neither the Trustee nor the Securities Administrator shall be required to
give any bond or surety with respect to the execution of the trust created
hereby or the powers granted hereunder, except as provided in Section 9.07;
and
(j) Neither the Trustee nor the Securities Administrator shall have any duty
to conduct any affirmative investigation as to the occurrence of any
condition requiring the repurchase of any Mortgage Loan by the Seller
pursuant to this Agreement or the Mortgage Loan Purchase Agreement, as
applicable, or the eligibility of any Mortgage Loan for purposes of this
Agreement.
Section 9.03 Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans. The recitals contained herein and in the
Certificates (other than the signature and countersignature of the Trustee on
the Certificates) shall be taken as the statements of the Depositor, and
neither the Trustee nor the Securities Administrator shall have any
responsibility for their correctness. Neither the Trustee nor the Securities
Administrator makes any representation as to the validity or sufficiency of
the Certificates (other than the signature and countersignature of the
Trustee on the Certificates) or of any Mortgage Loan except as expressly
provided in Sections 2.02 and 2.05 hereof; provided, however, that the
foregoing shall not relieve the Trustee of the obligation to review the
Mortgage Files pursuant to Sections 2.02 and 2.04. The Trustee's signature
and countersignature (or countersignature of its agent) on the Certificates
shall be solely in its capacity as Trustee and shall not constitute the
Certificates an obligation of the Trustee in any other capacity. Neither the
Trustee nor the Securities Administrator shall be accountable for the use or
application by the Depositor of any of the Certificates or of the proceeds of
such Certificates, or for the use or application of any funds paid to the
Depositor with respect to the Mortgage Loans. Subject to the provisions of
Section 2.05, neither the Trustee nor the Securities Administrator shall be
responsible for the legality or validity of this Agreement or any document or
instrument relating to this Agreement, the validity of the execution of this
Agreement or of any supplement hereto or instrument of further assurance, or
the validity, priority, perfection or sufficiency of the security for the
Certificates issued hereunder or intended to be issued hereunder. Neither
the Trustee nor the Securities Administrator shall at any time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Mortgage or any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and
priority, or for or with respect to the sufficiency of the Trust Fund or its
ability to generate the payments to be distributed to Certificateholders,
under this Agreement. Neither the Trustee nor the Securities Administrator
shall have any responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or
maintain the perfection of any security interest or lien granted to it
hereunder or to record this Agreement other than any continuation statements
filed by the Trustee pursuant to Section 3.20.
Section 9.04 Trustee and Securities Administrator May Own Certificates.
The Trustee and the Securities Administrator in their individual capacities
or in any capacity other than as Trustee or Securities Administrator
hereunder may become the owner or pledgee of any Certificates with the same
rights it would have if it were not Trustee or the Securities Administrator,
as applicable, and may otherwise deal with the parties hereto.
Section 9.05 Trustee's and Securities Administrator's Fees and
Expenses. The fees and expenses of the Trustee and the Securities
Administrator shall be paid in accordance with a side letter agreement
between the Trustee and the Master Servicer. In addition, the Trustee and
the Securities Administrator will be entitled to recover from the Master
Servicer Collection Account pursuant to Section 4.03(b) all reasonable
out-of-pocket expenses, disbursements and advances and the expenses of the
Trustee and the Securities Administrator, respectively, in connection with
any Event of Default, any breach of this Agreement or any claim or legal
action (including any pending or threatened claim or legal action) incurred
or made by the Trustee or the Securities Administrator, respectively, in the
administration of the trusts hereunder (including the reasonable
compensation, expenses and disbursements of its counsel) except any such
expense, disbursement or advance as may arise from its negligence or
intentional misconduct or which is the responsibility of the
Certificateholders. If funds in the Master Servicer Collection Account are
insufficient therefor, the Trustee and the Securities Administrator shall
recover such expenses from the Depositor. Such compensation and
reimbursement obligation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust.
Section 9.06 Eligibility Requirements for Trustee and Securities
Administrator. The Trustee and any successor Trustee and the Securities
Administrator and any successor Securities Administrator shall during the
entire duration of this Agreement be a state bank or trust company or a
national banking association organized and doing business under the laws of
such state or the United States of America, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus and
undivided profits of at least $40,000,000 or, in the case of a successor
Trustee, $50,000,000, subject to supervision or examination by federal or
state authority and, in the case of the Trustee, rated "BBB" or higher by S&P
with respect to their long-term rating and rated "BBB" or higher by S&P and
"Baa2" or higher by Xxxxx'x with respect to any outstanding long-term
unsecured unsubordinated debt, and, in the case of a successor Trustee or
successor Securities Administrator other than pursuant to Section 9.10, rated
in one of the two highest long-term debt categories of, or otherwise
acceptable to, each of the Rating Agencies. If the Trustee publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 9.06 the combined capital and surplus of such corporation shall be
deemed to be its total equity capital (combined capital and surplus) as set
forth in its most recent report of condition so published. In case at any
time the Trustee or the Securities Administrator shall cease to be eligible
in accordance with the provisions of this Section 9.06, the Trustee or the
Securities Administrator shall resign immediately in the manner and with the
effect specified in Section 9.08.
Section 9.07 Insurance. The Trustee and the Securities Administrator,
at their own expense, shall at all times maintain and keep in full force and
effect: (i) fidelity insurance, (ii) theft of documents insurance and
(iii) forgery insurance (which may be collectively satisfied by a "Financial
Institution Bond" and/or a "Bankers' Blanket Bond"). All such insurance
shall be in amounts, with standard coverage and subject to deductibles, as
are customary for insurance typically maintained by banks or their affiliates
which act as custodians for investor-owned mortgage pools. A certificate of
an officer of the Trustee or the Securities Administrator as to the Trustee's
or the Securities Administrator's, respectively, compliance with this
Section 9.07 shall be furnished to any Certificateholder upon reasonable
written request.
Section 9.08 Resignation and Removal of the Trustee and Securities
Administrator.
(a) The Trustee and the Securities Administrator may at any time resign and
be discharged from the Trust hereby created by giving written notice thereof
to the Depositor and the Master Servicer, with a copy to the Rating
Agencies. Upon receiving such notice of resignation, the Depositor shall
promptly appoint a successor Trustee or successor Securities Administrator,
as applicable, by written instrument, in triplicate, one copy of which
instrument shall be delivered to each of the resigning Trustee or Securities
Administrator, as applicable, the successor Trustee or Securities
Administrator, as applicable. If no successor Trustee or Securities
Administrator shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee or Securities Administrator may petition any court of competent
jurisdiction for the appointment of a successor Trustee or Securities
Administrator.
(b) If at any time the Trustee or the Securities Administrator shall cease to
be eligible in accordance with the provisions of Section 9.06 and shall fail
to resign after written request therefor by the Depositor or if at any time
the Trustee or the Securities Administrator shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or
the Securities Administrator, as applicable, or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee
or the Securities Administrator, as applicable, or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, then the
Depositor shall promptly remove the Trustee, or shall be entitled to remove
the Securities Administrator, as applicable, and appoint a successor Trustee
or Securities Administrator, as applicable, by written instrument, in
triplicate, one copy of which instrument shall be delivered to each of the
Trustee or Securities Administrator, as applicable, so removed, the successor
Trustee or Securities Administrator, as applicable.
(c) The Holders of Certificates evidencing Fractional Undivided Interests
aggregating not less than 51% of the Trust Fund may at any time remove the
Trustee or the Securities Administrator and appoint a successor Trustee or
Securities Administrator by written instrument or instruments, in
quadruplicate, signed by such Holders or their attorneys-in-fact duly
authorized, one complete set of which instruments shall be delivered to the
Depositor, the Master Servicer, the Securities Administrator (if the Trustee
is removed), the Trustee (if the Securities Administrator is removed), and
the Trustee or Securities Administrator so removed and the successor so
appointed. In the event that the Trustee or Securities Administrator is
removed by the Holders of Certificates in accordance with this
Section 9.08(c), the Holders of such Certificates shall be responsible for
paying any compensation payable to a successor Trustee or successor
Securities Administrator, in excess of the amount paid to the predecessor
Trustee or predecessor Securities Administrator, as applicable.
(d) No resignation or removal of the Trustee or the Securities Administrator
and appointment of a successor Trustee or Securities Administrator pursuant
to any of the provisions of this Section 9.08 shall become effective except
upon appointment of and acceptance of such appointment by the successor
Trustee or Securities Administrator as provided in Section 9.09.
Section 9.09 Successor Trustee and Successor Securities Administrator.
(a) Any successor Trustee or Securities Administrator appointed as provided
in Section 9.08 shall execute, acknowledge and deliver to the Depositor and
to its predecessor Trustee or Securities Administrator an instrument
accepting such appointment hereunder. The resignation or removal of the
predecessor Trustee or Securities Administrator shall then become effective
and such successor Trustee or Securities Administrator, without any further
act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect
as if originally named as Trustee or Securities Administrator herein. The
predecessor Trustee or Securities Administrator shall after payment of its
outstanding fees and expenses promptly deliver to the successor Trustee or
Securities Administrator, as applicable, all assets and records of the Trust
held by it hereunder, and the Depositor and the predecessor Trustee or
Securities Administrator, as applicable, shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Trustee or
Securities Administrator, as applicable, all such rights, powers, duties and
obligations.
(b) No successor Trustee or Securities Administrator shall accept appointment
as provided in this Section 9.09 unless at the time of such acceptance such
successor Trustee or Securities Administrator shall be eligible under the
provisions of Section 9.06.
(c) Upon acceptance of appointment by a successor Trustee or Securities
Administrator as provided in this Section 9.09, the successor Trustee or
Securities Administrator shall mail notice of the succession of such Trustee
or Securities Administrator hereunder to all Certificateholders at their
addresses as shown in the Certificate Register and to the Rating Agencies.
The Company shall pay the cost of any mailing by the successor Trustee or
Securities Administrator.
Section 9.10 Merger or Consolidation of Trustee or Securities
Administrator. Any state bank or trust company or national banking
association into which the Trustee or the Securities Administrator may be
merged or converted or with which it may be consolidated or any state bank or
trust company or national banking association resulting from any merger,
conversion or consolidation to which the Trustee or the Securities
Administrator, respectively, shall be a party, or any state bank or trust
company or national banking association succeeding to all or substantially
all of the corporate trust business of the Trustee or the Securities
Administrator, respectively, shall be the successor of the Trustee or the
Securities Administrator, respectively, hereunder, provided such state bank
or trust company or national banking association shall be eligible under the
provisions of Section 9.06. Such succession shall be valid without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 9.11 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the purpose
of meeting any legal requirements of any jurisdiction in which any part of
the Trust or property constituting the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved
by the Trustee and the Depositor to act as co-trustee or co-trustees, jointly
with the Trustee, or separate trustee or separate trustees, of all or any
part of the Trust, and to vest in such Person or Persons, in such capacity,
such title to the Trust, or any part thereof, and, subject to the other
provisions of this Section 9.11, such powers, duties, obligations, rights and
trusts as the Depositor and the Trustee may consider necessary or desirable.
(b) If the Depositor shall not have joined in such appointment within 15 days
after the receipt by it of a written request so to do, the Trustee shall have
the power to make such appointment without the Depositor.
(c) No co-trustee or separate trustee hereunder shall be required to meet the
terms of eligibility as a successor Trustee under Section 9.06 hereunder and
no notice to Certificateholders of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 9.08 hereof.
(d) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.11, all rights, powers, duties and obligations
conferred or imposed upon the Trustee and required to be conferred on such
co-trustee shall be conferred or imposed upon and exercised or performed by
the Trustee and such separate trustee or co-trustee jointly, except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed (whether as Trustee hereunder or as successor to the
Master Servicer hereunder), the Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(e) Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the
conditions of this Article IX. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee.
(f) To the extent not prohibited by law, any separate trustee or co-trustee
may, at any time, request the Trustee, its agent or attorney-in-fact, with
full power and authority, to do any lawful act under or with respect to this
Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
(g) No trustee under this Agreement shall be personally liable by reason of
any act or omission of another trustee under this Agreement. The Depositor
and the Trustee acting jointly may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Section 9.12 Federal Information Returns and Reports to
Certificateholders; REMIC Administration.
(a) For federal income tax purposes, the taxable year of each 2004-11 REMIC
shall be a calendar year and the Securities Administrator shall maintain or
cause the maintenance of the books of each such 2004-11 REMIC on the accrual
method of accounting.
(b) The Securities Administrator shall prepare and file or cause to be filed
with the Internal Revenue Service, and the Trustee shall sign, Federal tax
information returns or elections required to be made hereunder with respect
to each 2004-11 REMIC, the Trust Fund, if applicable, and the Certificates
containing such information and at the times and in the manner as may be
required by the Code or applicable Treasury regulations, and shall furnish to
each Holder of Certificates at any time during the calendar year for which
such returns or reports are made such statements or information at the times
and in the manner as may be required thereby, including, without limitation,
reports relating to mortgaged property that is abandoned or foreclosed,
receipt of mortgage interests in kind in a trade or business, a cancellation
of indebtedness, interest, original issue discount and market discount or
premium (using a constant prepayment assumption of 25% CPR). The Securities
Administrator will apply for an Employee Identification Number from the IRS
under Form SS-4 or any other acceptable method for all tax entities. In
connection with the foregoing, the Securities Administrator shall timely
prepare and file, and the Trustee shall sign, IRS Form 8811, which shall
provide the name and address of the person who can be contacted to obtain
information required to be reported to the holders of regular interests in
each 2004-11 REMIC (the "REMIC Reporting Agent"). The Trustee shall make
elections to treat each 2004-11 REMIC as a REMIC (which elections shall apply
to the taxable period ending December 31, 2004 and each calendar year
thereafter) in such manner as the Code or applicable Treasury regulations may
prescribe, and as described by the Securities Administrator. The Trustee
shall sign all tax information returns filed pursuant to this Section and any
other returns as may be required by the Code. The Holder of the largest
percentage interest in the Class R Certificates is hereby designated as the
"Tax Matters Person" (within the meaning of Treas. Reg. §§1.860F-4(d)) for
each 2004-11 REMIC. The Securities Administrator is hereby designated and
appointed as the agent of each such Tax Matters Person. Any Holder of a
Residual Certificate will by acceptance thereof appoint the Securities
Administrator as agent and attorney-in-fact for the purpose of acting as Tax
Matters Person for each 2004-11 REMIC during such time as the Securities
Administrator does not own any such Residual Certificate. In the event that
the Code or applicable Treasury regulations prohibit the Trustee from signing
tax or information returns or other statements, or the Securities
Administrator from acting as agent for the Tax Matters Person, the Trustee
and the Securities Administrator shall take whatever action that in its sole
good faith judgment is necessary for the proper filing of such information
returns or for the provision of a tax matters person, including designation
of the Holder of the largest percentage interest in a Residual Certificate to
sign such returns or act as tax matters person. Each Holder of a Residual
Certificate shall be bound by this Section.
(c) The Securities Administrator shall provide upon request and receipt of
reasonable compensation, such information as required in
Section 860D(a)(6)(B) of the Code to the Internal Revenue Service, to any
Person purporting to transfer a Residual Certificate to a Person other than a
transferee permitted by Section 5.05(b), and to any regulated investment
company, real estate investment trust, common trust fund, partnership, trust,
estate, organization described in Section 1381 of the Code, or nominee
holding an interest in a pass-through entity described in Section 860E(e)(6)
of the Code, any record holder of which is not a transferee permitted by
Section 5.05(b) (or which is deemed by statute to be an entity with a
disqualified member).
(d) The Securities Administrator shall prepare and file or cause to be filed,
and the Trustee shall sign, any state income tax returns required under
Applicable State Law with respect to each REMIC or the Trust Fund.
(e) Notwithstanding any other provision of this Agreement, the Trustee and
the Securities Administrator shall comply with all federal withholding
requirements respecting payments to Certificateholders of interest or
original issue discount on the Mortgage Loans, that the Trustee or the
Securities Administrator reasonably believes are applicable under the Code.
The consent of Certificateholders shall not be required for such
withholding. In the event the Trustee or the Securities Administrator
withholds any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee or the Securities Administrator shall, together
with its monthly report to such Certificateholders, indicate such amount
withheld.
(f) The Trustee and the Securities Administrator agree to indemnify the Trust
Fund and the Depositor for any taxes and costs including, without limitation,
any reasonable attorneys fees imposed on or incurred by the Trust Fund, the
Depositor or the Master Servicer, as a result of a breach of the Trustee's
covenants and the Securities Administrator's covenants, respectively, set
forth in this Section 9.12; provided, however, such liability and obligation
to indemnify in this paragraph shall be several and not joint and neither the
Trustee nor the Securities Administrator shall be liable or be obligated to
indemnify the Trust Fund for the failure by the other to perform any duty
under this Agreement or the breach by the other of any covenant in this
Agreement.
ARTICLE X
Termination
Xxxxxxx 00.00 Xxxxxxxxxxx Xxxx Xxxxxxxxxx by EMC or its Designee or
Liquidation of the Mortgage Loans.
(a) Subject to Section 10.02, the respective obligations and responsibilities
of the Depositor, the Trustee, the Master Servicer and the Securities
Administrator created hereby, other than the obligation of the Trustee to
make payments to Certificateholders as hereinafter set forth shall terminate:
(i) in accordance with Section 10.01(c), the repurchase by or at the
direction of EMC or its designee of all of the Mortgage Loans in each of Loan
Group I and Loan Group II (which repurchase of the Group I Mortgage Loans and
the Group II Mortgage Loans may occur on separate dates) and all related REO
Property remaining in the Trust at a price (the "Termination Purchase Price")
equal to the sum of (a) 100% of the Outstanding Principal Balance of each
Mortgage Loan in such Loan Group (other than a Mortgage Loan related to REO
Property) as of the date of repurchase, net of the principal portion of any
unreimbursed Monthly Advances on the Mortgage Loans unpaid to, but not
including, the first day of the month of repurchase, (b) the appraised value
of any related REO Property, less the good faith estimate of the Depositor of
liquidation expenses to be incurred in connection with its disposal thereof
(but not more than the Outstanding Principal Balance of the related Mortgage
Loan, together with interest at the applicable Mortgage Interest Rate accrued
on that balance but unpaid to, but not including, the first day of the month
of repurchase), such appraisal to be calculated by an appraiser mutually
agreed upon by the Depositor and the Trustee at the expense of the Depositor,
(c) unreimbursed out-of pocket costs of the Master Servicer, including
unreimbursed servicing advances and the principal portion of any unreimbursed
Monthly Advances, made on the Mortgage Loans in such Loan Group prior to the
exercise of such repurchase right and (d) any unreimbursed costs and expenses
of the Trustee and the Securities Administrator payable pursuant to
Section 9.05;
(ii) the later of the making of the final payment or other liquidation, or
any advance with respect thereto, of the last Mortgage Loan, remaining in the
Trust Fund or the disposition of all property acquired with respect to any
Mortgage Loan; provided, however, that in the event that an advance has been
made, but not yet recovered, at the time of such termination, the Person
having made such advance shall be entitled to receive, notwithstanding such
termination, any payments received subsequent thereto with respect to which
such advance was made; or
(iii) the payment to the Certificateholders of all amounts required to be
paid to them pursuant to this Agreement.
(b) In no event, however, 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. James's, living on the date of this Agreement.
(c) (i) The right of EMC or its
designee to repurchase Group I Mortgage Loans and related assets described in
Section 10.01(a)(i) above shall be exercisable only if the aggregate Stated
Principal Balance of the Mortgage Loans at the time of any such repurchase is
less than 20% of the sum of the Cut-off Date Balance.
(ii) The right of EMC or its designee to repurchase Group II
Mortgage Loans and related assets described in Section 10.01(a)(i) above
shall be exercisable only if the aggregate Stated Principal Balance of the
Mortgage Loans at the time of any such repurchase is less than 10% of the
sum of the Cut-off Date Balance.
(iii) The right of EMC or its designee to repurchase all the
assets of the Trust Fund described in Section 10.01(a)(i) above shall also be
exercisable if the Depositor, based upon an Opinion of Counsel addressed to
the Depositor, the Trustee and the Sercurities Administrator has determined
that the REMIC status of any 2004-11 REMIC has been lost or that a
substantial risk exists that such REMIC status will be lost for the
then-current taxable year.
(iv) At any time thereafter, in the case of (i) and
(ii) or (iii) above, EMC may elect to terminate any 2004-11 REMIC at any
time, and upon such election, the Depositor or its designee, shall purchase
in accordance with Section 10.01(a)(i) above all the assets of the Trust
Fund.
(d) The Trustee shall give notice of any termination to the
Certificateholders, with a copy to the Master Servicer, the Securities
Administrator and the Rating Agencies, upon which the Certificateholders
shall surrender their Certificates to the Trustee for payment of the final
distribution and cancellation. Such notice shall be given by letter, mailed
not earlier than the l5th day and not later than the 25th day of the month
next preceding the month of such final distribution, and shall specify
(i) the Distribution Date upon which final payment of the Certificates will
be made upon presentation and surrender of the Certificates at the office of
the Trustee therein designated, (ii) the amount of any such final payment and
(iii) 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 Trustee therein specified.
(e) If the option of EMC to repurchase or cause the repurchase of all Group I
Mortgage Loans or the Group II Mortgage Loans and the related assets
described in Section 10.01(c) above is exercised, EMC and/or its designee
shall deliver to the Trustee for deposit in the Distribution Account, by the
Business Day prior to the applicable Distribution Date, an amount equal to
the Termination Purchase Price of the Mortgage Loans being repurchased on
such Distribution Date. Upon presentation and surrender of the related
Certificates by the related Certificateholders, the Trustee shall distribute
to such Certificateholders as directed by the Securities Administrator in
writing an amount determined as follows: with respect to each such
Certificate (other than the Class R Certificates), the outstanding
Certificate Principal Balance, plus with respect to each such Certificate
(other than the Class II-X-A-5 Certificates and Class R Certificates), one
month's interest thereon at the applicable Pass-Through Rate; and with
respect to the Class R Certificates, the percentage interest evidenced
thereby multiplied by the difference, if any, between the above described
repurchase price and the aggregate amount to be distributed to the Holders of
the related Certificates (other than the Class R Certificates). If the
proceeds with respect to the Mortgage Loans being repurchased are not
sufficient to pay all of the related Certificates in full (other than the
Class R Certificates), any such deficiency will be allocated in the case of a
repurchase of the Group I Mortgage Loans, first, to the Class I-B
Certificates, in inverse order of their numerical designation, second, to the
Class I-M Certificates, in inverse order of their numerical designation, and
then to the related Senior Certificates, on a pro rata basis and in the case
of a repurchase of the Group II Mortgage Loans, first, to the Class II-B
Certificates, in inverse order of their numerical designation, and then to
the related Senior Certificates, on a pro rata basis. Upon deposit of the
required repurchase price and following such final Distribution Date for the
related Certificates, the Trustee shall release promptly (or cause the
Custodian to release) to EMC and/or its designee the Mortgage Files for the
remaining applicable Mortgage Loans, and the Accounts with respect thereto
shall terminate, subject to the Trustee's obligation to hold any amounts
payable to the related Certificateholders in trust without interest pending
final distributions pursuant to Section 10.01(g). After final distributions
pursuant to Section 10.01(g) to all Certificateholders, any other amounts
remaining in the Accounts will belong to the Depositor.
(f) In the event that this Agreement is terminated by reason of the payment
or liquidation of all Mortgage Loans or the disposition of all property
acquired with respect to all Mortgage Loans under Section
10.01(a)(ii) above, the Master Servicer shall deliver to the Trustee for
deposit in the Distribution Account all distributable amounts remaining in
the Master Servicer Collection Account. Upon the presentation and surrender
of the Certificates, the Trustee shall distribute to the remaining
Certificateholders, pursuant to the written direction of the Securities
Administrator and in accordance with their respective interests, all
distributable amounts remaining in the Distribution Account. Upon deposit by
the Master Servicer of such distributable amounts, and following such final
Distribution Date, the Trustee shall release promptly to the Depositor or its
designee the Mortgage Files for the remaining Mortgage Loans, and the Master
Servicer Collection Account and the Distribution Account shall terminate,
subject to the Trustee's obligation to hold any amounts payable to the
Certificateholders in trust without interest pending final distributions
pursuant to this Section 10.01(f).
(g) If not all of the Certificateholders shall surrender their Certificates
for cancellation within six months after the time specified in the
above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates
for cancellation and receive the final distribution with respect thereto. If
within six months after the second notice, not all the Certificates shall
have been surrendered for cancellation, the Trustee may take appropriate
steps, or appoint any agent to take appropriate steps, to contact the
remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds and other assets which remain
subject to this Agreement.
Section 10.02 Additional Termination Requirements. (a) If the option of
the Depositor to repurchase all the Mortgage Loans under Section 10.01(a)(i)
above is exercised, the Trust Fund and each 2004-11 REMIC shall be terminated
in accordance with the following additional requirements, unless the Trustee
has been furnished with an Opinion of Counsel addressed to the Trustee to the
effect that the failure of the Trust to comply with the requirements of this
Section 10.02 will not (i) result in the imposition of taxes on "prohibited
transactions" as defined in Section 860F of the Code on each 2004-11 REMIC or
(ii) cause any 2004-11 REMIC to fail to qualify as a 2004-11 REMIC at any
time that any Regular Certificates are outstanding:
(i) within 90 days prior to the final Distribution Date, at the written
direction of Depositor, the Trustee, as agent for the respective Tax
Matters Persons, shall adopt a plan of complete liquidation of each
2004-11 REMIC in the case of a termination under Section 10.01(a)(i).
Such plan, which shall be provided to the Trustee by Depositor, shall
meet the requirements of a "qualified liquidation" under Section 860F
of the Code and any regulations thereunder.
(ii) the Depositor shall notify the Trustee at the commencement of 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 or otherwise
dispose of all of the remaining assets of the Trust Fund in accordance
with the terms hereof; and
(iii) at or after the time of adoption of such a plan of complete liquidation
of any 2004-11 REMIC and at or prior to the final Distribution Date,
the Trustee shall sell for cash all of the assets of the Trust to or at
the direction of the Depositor, and each 2004-11 REMIC, shall terminate
at such time.
(b) By their acceptance of the Residual Certificates, the Holders thereof
hereby (i) agree to adopt such a plan of complete liquidation of the related
2004-11 REMIC upon the written request of the Depositor, and to take such
action in connection therewith as may be reasonably requested by the
Depositor and (ii) appoint the Depositor as their attorney-in-fact, with full
power of substitution, for purposes of adopting such a plan of complete
liquidation. The Trustee shall adopt such plan of liquidation by filing the
appropriate statement on the final tax return of each 2004-11 REMIC. Upon
complete liquidation or final distribution of all of the assets of the Trust
Fund, the Trust Fund and each 2004-11 REMIC shall terminate.
ARTICLE XI
Miscellaneous Provisions
Section 11.01 Intent of Parties. The parties intend that each 2004-11
REMIC shall be treated as a REMIC for federal income tax purposes and that
the provisions of this Agreement should be construed in furtherance of this
intent. Notwithstanding any other express or implied agreement to the
contrary, the Seller, the Master Servicer, the Securities Administrator, the
Depositor, the Trustee, each recipient of the related Prospectus Supplement
and, by its acceptance thereof, each holder of a Certificate, agrees and
acknowledges that each party hereto has agreed that each of them and their
employees, representatives and other agents may disclose, immediately upon
commencement of discussions, to any and all persons the tax treatment and tax
structure of the Certificates and the 2004-11 REMICs, the transactions
described herein and all materials of any kind (including opinions and other
tax analyses) that are provided to any of them relating to such tax treatment
and tax structure except where confidentiality is reasonably necessary to
comply with the securities laws of any applicable jurisdiction. For purposes
of this paragraph, the terms "tax treatment" and "tax structure" have the
meanings set forth in Treasury Regulation Sections 1.6011-4(c), 301.6111-2(c)
and 301.6112-1(d).
Section 11.02 Amendment.
(a) This Agreement may be amended from time to time by the Company, the
Depositor, the Master Servicer, the Securities Administrator and the Trustee,
without notice to or the consent of any of the Certificateholders, to (i)
cure any ambiguity, (ii) correct or supplement any provisions herein that may
be defective or inconsistent with any other provisions herein, (iii) conform
any provisions herein to the provisions in the Prospectus, (iv) comply with
any changes in the Code or (v) make any other provisions with respect to
matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement; provided, however, that
with respect to clauses (iv) and (v) of this Section 11.02(a), such action
shall not, as evidenced by an Opinion of Independent Counsel, addressed to
the Trustee, adversely affect in any material respect the interests of any
Certificateholder.
(b) This Agreement may also be amended from time to time by the Company, the
Master Servicer, the Depositor, the Securities Administrator and the Trustee,
with the consent of the Holders of Certificates evidencing Fractional
Undivided Interests aggregating not less than 51% of the Trust Fund or of the
applicable Class or Classes, if such amendment affects only such Class or
Classes, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying
in any manner the rights of the Certificateholders; provided, however, that
no such amendment shall (i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates the Holders
of which are required to consent to any such amendment, without the consent
of the Holders of all Certificates then outstanding, or (iii) cause any
2004-11 REMIC to fail to qualify as a REMIC for federal income tax purposes,
as evidenced by an Opinion of Independent Counsel addressed to the Trustee
which shall be provided to the Trustee other than at the Trustee's expense.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 11.02(b),
Certificates registered in the name of or held for the benefit of the
Depositor, the Securities Administrator, the Master Servicer, or the Trustee
or any Affiliate thereof shall be entitled to vote their Fractional Undivided
Interests with respect to matters affecting such Certificates.
(c) Promptly after the execution of any such amendment, the Trustee shall
furnish a copy of such amendment or written notification of the substance of
such amendment to each Certificateholder, with a copy to the Rating Agencies.
(d) In the case of an amendment under Section 11.02(b) above, it shall not
be necessary for the Certificateholders to approve the particular form of
such an amendment. Rather, it shall be sufficient if the Certificateholders
approve the substance of the amendment. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable regulations as the
Trustee may prescribe.
(e) Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and rely upon an Opinion of Counsel addressed to
the Trustee stating that the execution of such amendment is authorized or
permitted by this Agreement. The Trustee and the Securities Administrator
may, but shall not be obligated to, enter into any such amendment which
affects the Trustee's or the Securities Administrator's own respective
rights, duties or immunities under this Agreement.
Section 11.03 Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other
comparable jurisdictions in which any or all of the Mortgaged Properties are
situated, and in any other appropriate public recording office or elsewhere.
The Depositor shall effect such recordation, at the expense of the Trust upon
the request in writing of a Certificateholder, but only if such direction is
accompanied by an Opinion of Counsel (provided at the expense of the
Certificateholder requesting recordation) to the effect that such recordation
would materially and beneficially affect the interests of the
Certificateholders or is required by law.
Section 11.04 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
(b) Except as expressly provided in this Agreement, no Certificateholders
shall have any right to vote or in any manner otherwise control the operation
and management of the Trust, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to establish the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholders be under any liability to any third Person by reason of
any action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at
law upon, under or with respect to this Agreement against the Depositor, the
Securities Administrator, the Master Servicer or any successor to any such
parties unless (i) such Certificateholder previously shall have given to the
Trustee a written notice of a continuing default, as herein provided,
(ii) the Holders of Certificates evidencing Fractional Undivided Interests
aggregating not less than 51% of the Trust Fund shall have made written
request upon the Trustee to institute such action, suit or proceeding in its
own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs and expenses and
liabilities to be incurred therein or thereby, and (iii) the Trustee, for 60
days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding.
(d) No one or more Certificateholders shall have any right by virtue of any
provision of this Agreement to affect the rights of any other
Certificateholders or to obtain or seek to obtain priority or preference over
any other such Certificateholder, or to enforce any right under this
Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 11.04, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 11.05 Acts of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Certificateholders
in person or by an agent duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is
expressly required, to the Depositor. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Agreement and conclusive in favor of the Trustee and the
Depositor, if made in the manner provided in this Section 11.05.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or
by a certificate of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his or her
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his or her authority. The fact and date of the execution
of any such instrument or writing, or the authority of the individual
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of ownership
or other writing on such Certificates, except an endorsement in accordance
with Section 5.02 made on a Certificate presented in accordance with
Section 5.04) shall be proved by the Certificate Register, and neither the
Trustee, the Securities Administrator, the Depositor, the Master Servicer nor
any successor to any such parties shall be affected by any notice to the
contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver or
other action of the holder of any Certificate shall bind every future holder
of the same Certificate and the holder of every Certificate issued upon the
registration of transfer or exchange thereof, if applicable, or in lieu
thereof with respect to anything done, omitted or suffered to be done by the
Trustee, the Securities Administrator, the Depositor, the Master Servicer or
any successor to any such party in reliance thereon, whether or not notation
of such action is made upon such Certificates.
(e) In determining whether the Holders of the requisite percentage of
Certificates evidencing Fractional Undivided Interests have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Certificates owned by the Trustee, the Securities Administrator,
the Depositor, the Master Servicer or any Affiliate thereof shall be
disregarded, except as otherwise provided in Section 11.02(b) and except
that, in determining whether the Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or
waiver, only Certificates which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Certificates which have been
pledged in good faith to the Trustee, the Securities Administrator, the
Depositor, the Master Servicer or any Affiliate thereof may be regarded as
outstanding if the pledgor establishes to the satisfaction of the Trustee the
pledgor's right to act with respect to such Certificates and that the pledgor
is not an Affiliate of the Trustee, the Securities Administrator, the
Depositor, or the Master Servicer, as the case may be.
Section 11.06 Governing Law. THIS AGREEMENT AND THE CERTIFICATES SHALL
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS RULES (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW, WHICH THE PARTIES HERETO EXPRESSLY RELY UPON IN THE
CHOICE OF SUCH LAW AS THE GOVERNING LAW HEREUNDER) AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 11.07 Notices. All demands and notices hereunder shall be in
writing and shall be deemed given when delivered at (including delivery by
facsimile) or mailed by registered mail, return receipt requested, postage
prepaid, or by recognized overnight courier, to (i) in the case of the
Depositor, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Vice
President-Servicing, telecopier number: (000) 000-0000, or to such other
address as may hereafter be furnished to the other parties hereto in writing;
(ii) in the case of the Trustee, at its Corporate Trust Office, or such other
address as may hereafter be furnished to the other parties hereto in writing;
(iii) in the case of the Company, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Vice President-Servicing, telecopier number: (212)
272-5591, or to such other address as may hereafter be furnished to the other
parties hereto in writing; (iv) in the case of the Master Servicer or
Securities Administrator, Xxxxx Fargo Bank, National Association, X.X. Xxx
00, Xxxxxxxx Xxxxxxxx 00000 (or, in the case of overnight deliveries, 0000
Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 21045) (Attention: Corporate Trust
Services - XXXXXX 0000-00), xxxxxxxxx no.: (000) 000-0000, or such other
address as may hereafter be furnished to the other parties hereto in writing;
or (v) in the case of the Rating Agencies, Xxxxx'x Investors Service, Inc.,
00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Standard & Poor's, a division
of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. Any notice delivered to the Depositor, the Master Servicer, the
Securities Administrator or the Trustee under this Agreement shall be
effective only upon receipt. Any notice required or permitted to be mailed
to a Certificateholder, unless otherwise provided herein, shall be given by
first-class mail, postage prepaid, at the address of such Certificateholder
as shown in the Certificate Register. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given when mailed, whether or not the Certificateholder receives such notice.
Section 11.08 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severed from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the holders thereof.
Section 11.09 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the respective successors
and assigns of the parties hereto.
Section 11.10 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 11.11 Counterparts. This Agreement may be executed in two or
more counterparts each of which when so executed and delivered shall be an
original but all of which together shall constitute one and the same
instrument.
Section 11.12 Notice to Rating Agencies. The article and section
headings herein are for convenience of reference only, and shall not limited
or otherwise affect the meaning hereof. The Trustee shall promptly provide
notice to each Rating Agency with respect to each of the following of which a
Responsible Officer of the Trustee has actual knowledge:
1. Any material change or amendment to this Agreement or the
Servicing Agreements;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer, the
Trustee or the Securities Administrator;
4. The repurchase or substitution of Mortgage Loans;
5. The final payment to Certificateholders; and
6. Any change in the location of the Master Servicer Collection
Account or the Distribution Account.
[PSA]
IN WITNESS WHEREOF, the Depositor, the Trustee, the Master Servicer and
the Securities Administrator have caused their names to be signed hereto by
their respective officers thereunto duly authorized as of the day and year
first above written.
STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC., as Depositor
By: /s/ Xxxxx Xxxxxxxxxxx
Name:
Title:
JPMORGAN CHASE BANK, as Trustee
By: /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Securities
Administrator
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
EMC MORTGAGE CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Senior Vice President
Accepted and Agreed as to
Sections 2.01, 2.02, 2.03, 2.04 and 9.09(c)
in its capacity as Seller
EMC MORTGAGE CORPORATION
By: /s/Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Senior Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of September, 2004 before me, a notary public in and
for said State, personally appeared Xxxxx Xxxxxxxxxxx, known to me to be a
Vice President of Structured Asset Mortgage Investments II Inc., the
corporation that executed the within instrument, and also known to me to be
the person who executed it on behalf of said corporation, and acknowledged to
me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxxx Xxxxxxxx
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of September, 2004 before me, a notary public in and
for said State, personally appeared Xxx Xxxxx, known to me to be an Assistant
Vice President of JPMorgan Chase Bank, the entity that executed the within
instrument, and also known to me to be the person who executed it on behalf
of said entity, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the
day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxxx
Notary Public
[Notarial Seal]
STATE OF MARYLAND )
) ss.:
COUNTY OF XXXXXX )
On the 30th day of September, 2004 before me, a notary public in and
for said State, personally appeared Xxxxxx Xxxxxx, known to me to be an
Assistant Vice President of Xxxxx Fargo Bank, National Association, the
entity that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the
day and year in this certificate first above written.
/s/ Xxxxxx Xxxxx
Notary Public
[Notarial Seal]
STATE OF MARYLAND )
) ss.:
COUNTY OF XXXXXX )
On the 30th day of September, 2004 before me, a notary public in and
for said State, personally appeared Xxxxxx Xxxxxx, known to me to be a
Assistant Vice President of Xxxxx Fargo Bank, National Association, the
entity that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxx
Notary Public
[Notarial Seal]
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 30th day of September, 2004 before me, a notary public in and
for said State, personally appeared Xxxx X. Xxxxxxxxxx, known to me to be
Senior Vice President of EMC Mortgage Corporation, the corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxx
Notary Public
[Notarial Seal]
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 30th day of September, 2004 before me, a notary public in and
for said State, personally appeared Xxxx X. Xxxxxxxxxx, known to me to be
Senior Vice President of EMC Mortgage Corporation, the corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxx
Notary Public
[Notarial Seal]
