EXHIBIT 99.1
6
EXECUTION COPY
XXXXXX XXXXXXX CAPITAL I INC.
Depositor
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Master Servicer and Securities Administrator
and
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee
---------------------------
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2005
---------------------------
XXXXXX XXXXXXX MORTGAGE LOAN TRUST 2005-11AR
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-11AR
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.....................................................................................2
Section 1.01 Definitions.....................................................................................2
ARTICLE II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES........................................................37
Section 2.01 Creation and Declaration of Trust Fund; Conveyance of Mortgage Loans...........................37
Section 2.02 Acceptance of Trust Fund by Trustee; Review of Documentation for Trust Fund....................40
Section 2.03 Representations and Warranties of the Depositor................................................41
Section 2.04 Representations and Warranties of the Depositor and the Seller as to the Mortgage Loans........43
Section 2.05 Representations and Warranties of the Seller; Discovery of Breach; Repurchase or
Substitution of Mortgage
Loans..........................................................................................43
Section 2.06 Grant Clause...................................................................................48
ARTICLE III THE CERTIFICATES...............................................................................49
Section 3.01 The Certificates...............................................................................49
Section 3.02 Registration...................................................................................49
Section 3.03 Transfer and Exchange of Certificates..........................................................50
Section 3.04 Cancellation of Certificates...................................................................53
Section 3.05 Replacement of Certificates....................................................................53
Section 3.06 Persons Deemed Owners..........................................................................54
Section 3.07 Temporary Certificates.........................................................................54
Section 3.08 Appointment of Paying Agent....................................................................55
Section 3.09 Book-Entry Certificates........................................................................55
ARTICLE IV ADMINISTRATION OF THE TRUST FUND...............................................................56
Section 4.01 Custodial Accounts; Distribution Account.......................................................56
Section 4.02 Permitted Withdrawals from the Custodial Accounts and the Distribution Account.................58
Section 4.03 [Reserved].....................................................................................59
Section 4.04 [Reserved].....................................................................................59
Section 4.05 Reports to Trustee and Certificateholders......................................................59
ARTICLE V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES.......................................................61
Section 5.01 Distributions Generally........................................................................61
Section 5.02 Priorities of Distribution.....................................................................62
Section 5.03 [Reserved].....................................................................................66
Section 5.04 Allocation of Losses...........................................................................66
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Section 5.05 Advances by the Master Servicer................................................................68
Section 5.06 Compensating Interest Payments.................................................................68
Section 5.07 [Reserved].....................................................................................68
Section 5.08 [Reserved].....................................................................................68
Section 5.09 Determination of Pass-Through Rates for LIBOR Certificates.....................................68
Section 5.10 Reserve Fund...................................................................................70
Section 5.11 The Corridor Contracts.........................................................................71
ARTICLE VI CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT.....................74
Section 6.01 Duties of Trustee and the Securities Administrator.............................................74
Section 6.02 Certain Matters Affecting the Trustee and the Securities Administrator.........................77
Section 6.03 Trustee and Securities Administrator Not Liable for Certificates...............................78
Section 6.04 Trustee and the Securities Administrator May Own Certificates..................................79
Section 6.05 Eligibility Requirements for Trustee...........................................................79
Section 6.06 Resignation and Removal of Trustee and the Securities Administrator............................79
Section 6.07 Successor Trustee and Successor Securities Administrator.......................................82
Section 6.08 Merger or Consolidation of Trustee or the Securities Administrator.............................83
Section 6.09 Appointment of Co-Trustee, Separate Trustee or Custodian.......................................83
Section 6.10 Authenticating Agents..........................................................................85
Section 6.11 Indemnification of the Trustee and the Securities Administrator................................86
Section 6.12 Fees and Expenses of the Securities Administrator, the Trustee and the Custodians..............86
Section 6.13 Collection of Monies...........................................................................87
Section 6.14 Events of Default; Trustee To Act; Appointment of Successor....................................87
Section 6.15 Additional Remedies of Trustee Upon Event of Default...........................................91
Section 6.16 Waiver of Defaults.............................................................................92
Section 6.17 Notification to Holders........................................................................92
Section 6.18 Directions by Certificateholders and Duties of Trustee During Event of Default.................92
Section 6.19 Action Upon Certain Failures of the Master Servicer and Upon Event of Default..................93
Section 6.20 Preparation of Tax Returns and Other Reports...................................................93
ARTICLE VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST FUND...................................95
Section 7.01 Purchase of Mortgage Loans; Termination of Trust Fund Upon Purchase or Liquidation of
All Mortgage Loans.............................................................................95
Section 7.02 Procedure Upon Redemption Termination of Trust Fund............................................96
Section 7.03 Additional Trust Fund Termination Requirements.................................................97
ARTICLE VIII RIGHTS OF CERTIFICATEHOLDERS...................................................................98
Section 8.01 Limitation on Rights of Holders................................................................98
Section 8.02 Access to List of Holders......................................................................99
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Section 8.03 Acts of Holders of Certificates...............................................................100
ARTICLE IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER.........................101
Section 9.01 Duties of the Master Servicer; Enforcement of Servicers' and Master Servicer's Obligations....101
Section 9.02 Assumption of Master Servicing by Trustee.....................................................103
Section 9.03 Representations and Warranties of the Master Servicer.........................................104
Section 9.04 Compensation to the Master Servicer...........................................................105
Section 9.05 Merger or Consolidation.......................................................................106
Section 9.06 Resignation of Master Servicer and Securities Administrator...................................106
Section 9.07 Assignment or Delegation of Duties by the Master Servicer and Securities Administrator........107
Section 9.08 Limitation on Liability of the Master Servicer and Others.....................................107
Section 9.09 Indemnification; Third-Party Claims...........................................................108
Section 9.10 Eligibility Requirements for Securities Administrator.........................................108
ARTICLE X REMIC ADMINISTRATION..........................................................................109
Section 10.01 REMIC Administration..........................................................................109
Section 10.02 Prohibited Transactions and Activities........................................................112
Section 10.03 Indemnification with Respect to Prohibited Transactions or Loss of REMIC Status...............112
Section 10.04 REO Property..................................................................................113
Section 10.05 Fidelity......................................................................................113
ARTICLE XI MISCELLANEOUS PROVISIONS......................................................................114
Section 11.01 Binding Nature of Agreement; Assignment.......................................................114
Section 11.02 Entire Agreement..............................................................................114
Section 11.03 Amendment.....................................................................................114
Section 11.04 Voting Rights.................................................................................115
Section 11.05 Provision of Information......................................................................115
Section 11.06 Governing Law.................................................................................116
Section 11.07 Notices.......................................................................................116
Section 11.08 Severability of Provisions....................................................................116
Section 11.09 Indulgences; No Waivers.......................................................................116
Section 11.10 Headings Not To Affect Interpretation.........................................................117
Section 11.11 Benefits of Agreement.........................................................................117
Section 11.12 Special Notices to the Rating Agencies........................................................117
Section 11.13 Conflicts.....................................................................................118
Section 11.14 Counterparts..................................................................................118
Section 11.15 No Petitions..................................................................................118
Section 11.16 Indemnification by Trust......................................................................118
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ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B Form of Residual Certificate Transfer Affidavit (Transferee)
Exhibit C Form of Residual Certificate Transfer Affidavit (Transferor)
Exhibit D [Reserved]
Exhibit E List of Purchase and Servicing Agreements
Exhibit F List of Custodial Agreements
Exhibit G Assignment and Notice of Transfer with respect to each Additional Collateral Mortgage Loan
Exhibit H Form of Rule 144A Transfer Certificate
Exhibit I Form of Purchaser's Letter for Institutional Accredited Investors
Exhibit J Form of ERISA Transfer Affidavit
Exhibit K Form of Letter of Representations with the Depository Trust Company
Exhibit L-1 Form of Initial Custodial Certification
Exhibit L-2 Form of Final Custodial Certification
Exhibit M [Reserved]
Schedule A Mortgage Loan Schedule
Schedule B Principal Balances Schedule
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This POOLING AND SERVICING AGREEMENT, dated as of December 1, 2005
(the "Agreement"), by and among XXXXXX XXXXXXX CAPITAL I INC., a Delaware
corporation, as depositor (the "Depositor"), DEUTSCHE BANK NATIONAL TRUST
COMPANY, a national banking association, as trustee (the "Trustee"), XXXXX
FARGO BANK, NATIONAL ASSOCIATION, in its separate capacities as master
servicer (the "Master Servicer"), as securities administrator (the "Securities
Administrator") and, in its capacity as Securities Administrator, as auction
administrator (the "Auction Administrator") and acknowledged by XXXXXX XXXXXXX
MORTGAGE CAPITAL INC., a New York corporation, as seller (the "Seller"), for
purposes of Section 2.05.
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed
to the Trustee in return for the Certificates. As provided herein, the Trustee
will make elections to treat segregated pools of assets subject to this
Agreement for federal income tax purposes (other than the Additional
Collateral, the rights of the Class C Certificates in respect of any Auction
Excess Proceeds, the Corridor Contracts and the assets held in the Reserve
Fund) as the following two separate real estate mortgage investment conduits
(each, a "REMIC"): the Subsidiary REMIC and the Master REMIC. The Subsidiary
REMIC will consist of the Mortgage Loans, excluding any rights of the Trust
Fund in respect of the Additional Collateral, the Corridor Contract
Agreements, and the Reserve Fund. The Subsidiary REMIC will issue
uncertificated REMIC regular interests (the "Subsidiary REMIC Regular
Interests"). The Subsidiary REMIC Regular Interests will represent the
"regular interests" in the Subsidiary REMIC. The Class R-1 Interest will
represent the single Class of "residual interest" in the Subsidiary REMIC.
The Trustee will hold the Subsidiary REMIC Regular Interests for the
benefit of the Master REMIC. The Master REMIC will consist of the Subsidiary
REMIC Interests and will be evidenced by the Certificates (other than the
Class C and Class A-R Certificates), which will constitute the regular
interests in the Master REMIC (the "Regular Certificates") and the Class R-2
Interest, which will represent the single Class of "residual interest" in the
Master REMIC. The Class A-R Certificates will represent the beneficial
ownership of each of the Class R-1 and Class R-2 Interests. The Class C
Certificates represent beneficial ownership of the right to receive payment of
the Auction Excess Proceeds, which portion of the Trust Fund shall be treated
as a grantor trust. The "latest possible maturity date" for federal income tax
purposes of all regular and residual interests created hereunder will be the
Latest Possible Maturity Date.
Subsidiary REMIC
The Subsidiary REMIC Interests, each of which (except for the Class
R-1 Interests) is hereby designated as a REMIC regular interest for federal
income tax purposes, will have the principal balances, pass-through rates and
Corresponding Loan Groups as set forth in the following table:
Initial Pass-Through Corresponding
Subsidiary REMIC Interests Balance Rate Certificate (2)
-------------------------- ------- ------------- ---------------
1-A-1 (1) (2) A-1
1-A-2 (1) (2) A-2
1-A-3 (1) (2) A-3
1-M-1 (1) (2) M-1
1-M-2 (1) (2) M-2
1-M-3 (1) (2) M-3
1-M-4 (1) (2) M-4
1-M-5 (1) (2) M-5
1-M-6 (1) (2) M-6
1-B-1 (1) (2) B-1
1-B-2 (1) (2) B-2
1-B-3 (1) (2) B-3
1-B-4 (1) (2) B-4
1-B-5 (1) (2) B-5
1-B-6 (1) (2) B-6
1-P (1) (3) P
1-$100 (1) (2) A-R
R-1(4) N/A N/A N/A
---------------
(1) For each Distribution Date, following the allocation of scheduled
principal, principal prepayments and Realized Losses, the principal
balance for each such Class will be the principal balance in respect
of the Corresponding Certificate.
(2) The Net WAC.
(3) The Class 1-P Interest will not be entitled to any interest, but will
be entitled to 100% of any prepayment premiums paid on
the Mortgage Loans.
(4) The Class R-1 Interest is the sole class of residual interest
in the Subsidiary REMIC and will not be entitled to
distributions of principal or interest.
The Master REMIC
The following table sets forth characteristics of the Master REMIC
Certificates (except for the Class C Certificates, which will be treated as an
interest in a grantor trust for federal income tax purposes), together with
the minimum denominations and integral multiples in excess thereof in which
such Classes shall be issuable (except that one Certificate of each Class of
Certificates may be issued in a different amount and, in addition, one
Residual Certificate representing the Tax Matters Person Certificate may be
issued in a different amount):
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======================== ============================ ====================== ====================== ======================
Pass-Through
Initial Class Principal Rate Integral Multiples
Class Designation Balance (per annum) Minimum Denomination in Excess of Minimum
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class A-1 $376,659,000.00 (1) $25,000.00 $1,000.00
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class A-2 $100,000,000.00 (2) $25,000.00 $1,000.00
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class A-3 $11,115,000.00 (3) $25,000.00 $1,000.00
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class X (4) (5) $100,000.00(6) $1,000.00(6)
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class A-R (7) $100.00 (8) (9) (9)
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class M-1 $11,256,000.00 (10) $25,000.00 $1,000.00
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class M-2 $8,576,000.00 (11) $25,000.00 $1,000.00
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class M-3 $2,948,000.00 (12) $25,000.00 $1,000.00
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class M-4 $3,485,000.00 (13) $25,000.00 $1,000.00
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class M-5 $2,680,000.00 (14) $25,000.00 $1,000.00
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class M-6 $2,144,000.00 (15) $25,000.00 $1,000.00
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class B-1 $2,144,000.00 (8) $25,000.00 $1,000.00
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class B-2 $1,608,000.00 (8) $25,000.00 $1,000.00
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class B-3 $1,608,000.00 (8) $25,000.00 $1,000.00
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class B-4 $3,484,000.00 (8) $100,000.00 $1,000.00
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class B-5 $5,092,000.00 (8) $100,000.00 $1,000.00
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class B-6 $3,216,752.33 (8) $100,000.00 $1,000.00
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class P $100.00 (16), (17) $100.00 N/A
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------------- ---------------------- ---------------------- ----------------------
Class C $100.00 (18) $100.00 N/A
======================== ============================ ====================== ====================== ======================
------------------------------------------
(1) The Pass-Through Rate for the Class A-1 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum rate
equal to one-month LIBOR + 0.28%, subject to a maximum Pass-Through Rate
of 11.50% per annum. The Pass-Through Rate for the Class A-1 Certificates
for the first Distribution Date will be a per annum rate of 4.65%.
(2) The Pass-Through Rate for the Class A-2 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum rate
equal to one-month LIBOR + 0.27%, subject to a maximum Pass-Through Rate
of the lesser of (i) 11.50% per annum and (ii) Net WAC for such
Distribution Date. The Pass-Through Rate for the Class A-2 Certificates
for the first Distribution Date will be a per annum rate of 4.64%.
(3) The Pass-Through Rate for the Class A-3 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum rate
equal to one-month LIBOR + 0.35%, subject to a maximum Pass-Through Rate
of the lesser of (i) 11.50% per annum and (ii) Net WAC for such
Distribution Date. The Pass-Through Rate for the Class A-3 Certificates
for the first Distribution Date will be a per annum rate of 4.72%.
(4) The Pass-Through Rate for the Class X Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum rate
equal to the excess, if any, of (i) Net WAC over (ii) the weighted
average of the Pass-Through Rates for the Class A-1, Class X-0, Xxxxx
X-0, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5 and Class M-6
Certificates and subject to other limitations described herein. The
Pass-Through Rate for the Class X Certificates for the initial Interest
Accrual Period will be 2.659% per annum.
3
(5) The Class X Certificates will be Notional Amount Certificates, will have
no Class Principal Balance and will bear interest on its Notional Amount
(initially, $518,863,000).
(6) Minimum denomination is based on the Notional Amount of such Class.
(7) The Class A-R Certificates will represent the sole class of residual
interest in each of the Subsidiary REMIC and the Master REMIC.
(8) The Pass-Through Rate for the Class A-R, Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 and Class B-6 Certificates for any Distribution Date
will be a per annum rate equal to Net WAC. The Pass-Through Rate for the
Class A-R, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and
Class B-6 Certificates for the first Distribution Date will be a per
annum rate of 6.09262%.
(9) The Class A-R Certificate shall be issued as two separate certificates,
one with an initial Certificate Balance of $99.99 and the Tax Matters
Person Certificate with an initial Certificate Balance of $0.01.
(10) The Pass-Through Rate for the Class M-1 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum rate
equal to one-month LIBOR + 0.47%, subject to a maximum Pass-Through Rate
of the lesser of (i) 11.50% per annum and (ii) Net WAC for such
Distribution Date. The Pass-Through Rate for the Class M-1 Certificates
for the first Distribution Date will be a per annum rate of 4.84%.
(11) The Pass-Through Rate for the Class M-2 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum rate
equal to one-month LIBOR + 0.50%, subject to a maximum Pass-Through Rate
of the lesser of (i) 11.50% per annum and (ii) Net WAC for such
Distribution Date. The Pass-Through Rate for the Class M-2 Certificates
for the first Distribution Date will be a per annum rate of 4.87%.
(12) The Pass-Through Rate for the Class M-3 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum rate
equal to one-month LIBOR + 0.52%, subject to a maximum Pass-Through Rate
of the lesser of (i) 11.50% per annum and (ii) Net WAC for such
Distribution Date. The Pass-Through Rate for the Class M-3 Certificates
for the first Distribution Date will be a per annum rate of 4.89%.
(13) The Pass-Through Rate for the Class M-4 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum rate
equal to one-month LIBOR + 0.65%, subject to a maximum Pass-Through Rate
of the lesser of (i) 11.50% per annum and (ii) Net WAC for such
Distribution Date. The Pass-Through Rate for the Class M-4 Certificates
for the first Distribution Date will be a per annum rate of 5.02%.
(14) The Pass-Through Rate for the Class M-5 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum rate
equal to one-month LIBOR + 0.70%, subject to a maximum Pass-Through Rate
of the lesser of (i) 11.50% per annum and (ii) Net WAC for such
Distribution Date. The Pass-Through Rate for the Class M-5 Certificates
for the first Distribution Date will be a per annum rate of 5.07%.
(15) The Pass-Through Rate for the Class M-6 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum rate
equal to one-month LIBOR + 0.75%,
4
subject to a maximum Pass-Through Rate of the lesser of (i) 11.50%
per annum and (ii) Net WAC for such Distribution Date. The
Pass-Through Rate for the Class M-6 Certificates for the first
Distribution Date will be a per annum rate of 5.12%.
(16) The Class P Certificates will not be entitled to any interest, but will
be entitled to 100% of any prepayment premiums paid on the Mortgage
Loans. For the federal income tax purposes, the Class P Certificates will
be entitled to 100% of the Class 1-P Regular Interest cash flow.
(17) The Class P Certificates will receive all payments in respect of
prepayment penalties on all of the Mortgage Loans and are not entitled to
receive any distributions of interest.
(18) The Class C Certificates will not be entitled to payments of interest but
will be entitled to receive any Auction Excess Proceeds in connection
with any successful Auction Sale conducted pursuant to the terms hereof.
The Class C Certificates will be issued as a single certificate with an
initial Certificate Balance of $100.00. The Class C Certificates will be
treated as an interest in a grantor trust for federal income tax purposes
and not as a regular interest in the Master REMIC for federal income tax
purposes.
The foregoing provisions in the Preliminary Statement are intended to
cause net interest and principal collections in respect of the Mortgage Loans
to be distributed from each Subsidiary REMIC to the Master REMIC and from the
Master REMIC to each Class of Certificates. The Preliminary Statement will be
interpreted and applied consistently with such intent.
For any purpose for which the Pass-Through Rates is calculated, the
interest rate on the Mortgage Loans shall be appropriately adjusted to account
for the difference between the monthly day count convention of the Mortgage
Loans and the monthly day count convention of the regular interests issued by
each of the REMICs. For purposes of calculating the Pass-Through Rates for
each of the interests issued by each REMIC created hereunder (other than the
Master REMIC) such rates shall be adjusted to equal a monthly day count
convention based on a 30 day month for each Due Period and a 360-day year so
that the Mortgage Loans and all regular interests will be using the same
monthly day count convention.
5
Set forth below are designations of Classes or Components of Certificates and
other defined terms to the categories used herein:
Accretion Directed Certificates........... None.
Accretion Directed Components............. None.
Accrual Certificates...................... None.
Accrual Components........................ None.
Book-Entry Certificates................... All Classes of Certificates other than the Definitive Certificates.
Combined Certificates..................... None.
Component Certificates.................... None.
Components................................ For purposes of calculating distributions of principal and/or
interest, the Component Certificates, if any, will be
comprised of multiple payment components having the
designations, Initial Component Balances or Notional Amounts, as
applicable, and Pass-Through Rates set forth below:
Initial Component
Designation Principal Balance Pass-Through Rate
----------- ----------------- -----------------
N/A N/A N/A
Delay Certificates........................ All interest-bearing Classes of Certificates other than the Non-Delay Certificates, if
any.
ERISA-Restricted Certificates............. The Residual Certificates and Private Certificates; and any Certificate of a Class that
ceases to satisfy the applicable rating requirement under the Underwriter's Exemption.
Floating Rate Certificates................ Class A-1, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5
and Class M-6 Certificates.
Inverse Floating Rate Certificates........ None.
LIBOR Certificates........................ Floating Rate Certificates and Inverse Floating Rate Certificates.
Non-Delay Certificates.................... The LIBOR Certificates.
Notional Amount Certificates.............. Class X Certificates.
Notional Amount Components................ None.
Offered Certificates...................... All Classes of Certificates other than the Private Certificates.
Definitive Certificates................... Private Certificates and the Residual Certificates.
6
Planned Principal Classes................. None.
Principal Only Certificates............... None.
Private Certificates...................... Class P, Class C, Class B-4, Class B-5 and Class B-6 Certificates.
Rating Agencies........................... S&P and Xxxxx'x.
Regular Certificates...................... All Classes of Certificates, other than the Residual Certificates.
Residual Certificates..................... Class A-R Certificates.
Scheduled Principal Classes............... None.
Senior Certificates....................... Class X-0, Xxxxx X-0, Class A-3, Class X and Class A-R Certificates.
Subordinated Certificates................. Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class B-1, Class B-2,
Class B-3, Class B-4, Class B-5 and Class B-6 Certificates.
Targeted Principal Classes................ None.
Underwriter............................... Xxxxxx Xxxxxxx & Co. Incorporated.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions herein
relating solely to such designations shall be of no force or effect, and any
calculations herein incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined terms
and provisions herein relating to statistical rating agencies not designated
above as Rating Agencies shall be of no force or effect.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
The following words and phrases, unless the context otherwise
requires, shall have the following meanings:
Accountant: A Person engaged in the practice of accounting who
(except when this Agreement provides that an Accountant must be Independent)
may be employed by or affiliated with the Depositor or an Affiliate of the
Depositor.
Accretion Directed Certificates: As specified in the Preliminary
Statement.
Accretion Direction Rule: Not applicable.
7
Accrual Amount: With respect to any Class of Accrual Certificates or
any Accrual Component and any Distribution Date, the amount allocable to
interest on such Class of Accrual Certificates or Accrual Component with
respect to such Distribution Date pursuant to Section 5.02(a) (iii).
Accrual Certificates: As specified in the Preliminary Statement.
Accrual Components: As specified in the Preliminary Statement.
Accrual Termination Date: Not applicable.
Acknowledgements: The Assignment, Assumption and Recognition
Agreements, each dated as of December 1, 2005, assigning rights under the
Purchase and Servicing Agreements from the Seller to the Depositor and from
the Depositor to the Trustee, for the benefit of the Certificateholders.
Act: The Securities Act of 1933, as amended.
Additional Collateral: With respect to any Additional Collateral
Mortgage Loan, the marketable securities and other acceptable collateral
pledged as collateral pursuant to the related pledge agreements.
Additional Collateral Mortgage Loan: Each Mortgage Loan identified as
such in the Mortgage Loan Schedule.
Adjustment Date: A date specified in each Mortgage Note as a date on
which the Mortgage Rate on the related Mortgage Loan will be adjusted.
Advance: With respect to a Mortgage Loan, the payments required to be
made by the Master Servicer or the applicable Servicer with respect to any
Distribution Date pursuant to this Agreement or the applicable Purchase and
Servicing Agreement, as applicable, the amount of any such payment being equal
to the aggregate of the payments of principal and interest (net of the
applicable Servicing Fee and net of any net income in the case of any REO
Property) on the Mortgage Loans that were due on the related Due Date and not
received as of the close of business on the related Determination Date, less
the aggregate amount of any such delinquent payments that the Master Servicer
or the applicable Servicer has determined would constitute Nonrecoverable
Advances if advanced.
Adverse REMIC Event: Either (i) loss of status as a REMIC, within the
meaning of Section 860D of the Code, for any group of assets identified as a
REMIC in the Preliminary Statement to this Agreement, or (ii) imposition of
any tax, including the tax imposed under Section 860F(a)(1) on prohibited
transactions, and the tax imposed under Section 860G(d) on certain
contributions to a REMIC, on any REMIC created hereunder to the extent such
tax would be payable from assets held as part of the Trust Fund.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct
8
the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
Aggregate Expense Rate: With respect to any Mortgage Loan, the
applicable Servicing Fee Rate and, with respect to any LPMI Mortgage Loan, the
interest premium charged by the mortgagee to obtain or maintain any Primary
Mortgage Insurance Policy.
Aggregate Planned Balance: With respect to any group of Planned
Principal Classes or Components and any Distribution Date, the amount set
forth for such group for such Distribution Date in Schedule B hereto.
Aggregate Targeted Balance: With respect to any group of Targeted
Principal Classes or Components and any Distribution Date, the amount set
forth for such group for such Distribution Date in Schedule B hereto.
Aggregate Voting Interests: The aggregate of the Voting Interests of
all the Certificates under this Agreement.
Agreement: This Pooling and Servicing Agreement and all amendments or
supplements hereto.
Allocable Share: As to any Distribution Date, Mortgage Loan and Class
or Component of Certificates, the ratio that the amount calculated with
respect to such Distribution Date pursuant to clause (i) of the definition of
Class Optimal Interest Distribution Amount (without giving effect to any
reduction of such amount pursuant to Section 5.02(d)) bears to the amount
calculated with respect to such Distribution Date for each Class of
Certificates pursuant to clause (i) of the definition of Class Optimal
Interest Distribution Amount (without giving effect to any reduction of such
amount pursuant to Section 5.02(d)).
Amount Held for Future Distribution: As to any Distribution Date and
Mortgage Loans, the aggregate amount held in the Custodial Accounts at the
close of business on the related Determination Date on account of (i)
Principal Prepayments received after the related Prepayment Period and
Liquidation Proceeds and Subsequent Recoveries received in the month of such
Distribution Date and (ii) all Scheduled Payments due after the related Due
Date.
Applicable Credit Support Percentage: As defined in Section 5.02(e).
Appraised Value: With respect to any Mortgage Loan, the Appraised
Value of the related Mortgaged Property shall be: (i) with respect to a
Mortgage Loan other than a Refinancing Mortgage Loan, the lesser of (a) the
value of the Mortgaged Property based upon the appraisal made at the time of
the origination of such Mortgage Loan and (b) the sales price of the Mortgaged
Property at the time of the origination of such Mortgage Loan; and (ii) with
respect to a Refinancing Mortgage Loan, the value of the Mortgaged Property
based upon the appraisal made at the time of the origination of such
Refinancing Mortgage Loan.
Assets: As such term is used with respect to any Auction, as defined
in Section 7.01(b).
9
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the sale of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction, if permitted by law; provided, however, that
the Trustee shall not be responsible for determining whether any such
assignment is in recordable form or sufficient under the laws of the
applicable jurisdiction to reflect the sale of the Mortgage to the Trustee.
Assignment of Proprietary Lease: With respect to a Cooperative Loan,
an assignment of the Proprietary Lease sufficient under the laws of the
jurisdiction wherein the related Cooperative Unit is located to reflect the
assignment of such Proprietary Lease; provided, however, that the Trustee
shall not be responsible for determining whether such assignment is sufficient
to reflect the assignment of the Proprietary Lease.
Assignment of Recognition Agreement: With respect to a Cooperative
Loan, an assignment of the Recognition Agreement sufficient under the laws of
the jurisdiction wherein the related Cooperative Unit is located to reflect
the assignment of such Recognition Agreement; provided, however, that the
Trustee shall not be responsible for determining whether such assignment is
sufficient to reflect the assignment of the Recognition Agreement.
Auction: As defined in Section 7.01(b).
Auction Administrator: The Securities Administrator, or any successor
in interest, or if any successor Auction Administrator shall be appointed as
herein provided, then such successor Auction Administrator.
Auction Date: As defined in Section 7.01(b).
Auction Excess Proceeds: With respect to an Auction Sale, the excess
of the Mortgage Loan Auction Price paid by the Auction Purchaser over the
Minimum Bid Price.
Auction Purchaser: As defined in Section 7.01(b). For the avoidance
of doubt, the Auction Purchaser cannot be the Seller or an Affiliate of the
Seller.
Auction Sale: As defined in Section 7.01(b).
Authenticating Agent: Any authenticating agent appointed pursuant to
Section 6.10 until any successor authenticating agent for the Certificates is
named, and thereafter "Authenticating Agent" shall mean any such successor.
The initial Authenticating Agent shall be the Securities Administrator under
this Agreement.
Authorized Officer: Any Person who may execute an Officer's
Certificate on behalf of the Depositor.
Available Funds: As to any Distribution Date and the Mortgage Loans,
the sum of (a) the aggregate amount held in the Custodial Accounts at the
close of business on the related Determination Date, including any Subsequent
Recoveries, in respect of such Mortgage Loans
10
net of the Amount Held for Future Distribution and net of amounts permitted to
be withdrawn from the Custodial Accounts pursuant to Section 4.02(a) in
respect of such Mortgage Loans and amounts permitted to be withdrawn from the
Distribution Account pursuant to clauses (i)-(v) inclusive of Section 4.02(b)
in respect of such Mortgage Loans, (b) the amount of all related Advances made
by the Servicers and the Master Servicer and all Compensating Interest
Payments or payments made in respect of Prepayment Interest Shortfalls paid by
the Servicers and the Master Servicer and (c) in connection with Defective
Mortgage Loans, as applicable, the aggregate of the Purchase Prices and
Substitution Adjustment Amounts deposited on the related Distribution Account
Deposit Date minus (e) all related fees, charges and other amounts payable or
reimbursable to the Master Servicer, the Securities Administrator, the
applicable Custodian or the Trustee under this Agreement or the applicable
Custodial Agreement or to the Servicers under the Purchase and Servicing
Agreements. The Holders of the Class P Certificates will be entitled to all
Prepayment Penalties Mortgage Loans and such amounts will not be available for
distribution to the Holders of any other Class of Certificates.
Bankruptcy: As to any Person, the making of an assignment for the
benefit of creditors, the filing of a voluntary petition in bankruptcy,
adjudication as a bankrupt or insolvent, the entry of an order for relief in a
bankruptcy or insolvency proceeding, the seeking of reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief, or seeking, consenting to or acquiescing in the appointment of a
trustee, receiver or liquidator, dissolution, or termination, as the case may
be, of such Person pursuant to the provisions of either the Bankruptcy Code or
any other similar state laws.
Bankruptcy Code: The United States Bankruptcy Code of 1986, as
amended.
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction reported to the Master Servicer by the
related Servicer; provided, however, that a Bankruptcy Loss shall not be
deemed a Bankruptcy Loss hereunder so long as the related Servicer has
notified the Master Servicer in writing that the related Servicer is
diligently pursuing any remedies that may exist in connection with the related
Mortgage Loan and either (A) the related Mortgage Loan is not in default with
regard to payments due thereunder or (B) delinquent payments of principal and
interest under the related Mortgage Loan and any related escrow payments in
respect of such Mortgage Loan are being advanced on a current basis by the
Master Servicer or the related Servicer, in either case without giving effect
to any Debt Service Reduction or Deficient Valuation, as reported by the
related Servicer to the Master Servicer.
Bankruptcy Loss Coverage Amount: As of any date of determination, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses allocated
to the Certificates since the Cut-off Date and (ii) any permissible reductions
in the Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating
Agency to the Trustee and the Securities Administrator to the effect that any
such reduction will not result in a downgrading of the then current ratings
assigned to the Classes of Certificates rated by it.
11
Book-Entry Certificates: Beneficial interests in Certificates
designated as "Book-Entry Certificates" in this Agreement, ownership and
transfers of which shall be evidenced or made through book entries by a
Clearing Agency as described in Section 3.09; provided, that after the
occurrence of a Book-Entry Termination whereupon book-entry registration and
transfer are no longer permitted and Definitive Certificates are to be issued
to Certificate Owners, such Book-Entry Certificates shall no longer be
"Book-Entry Certificates." The Classes of Certificates that constitute
"Book-Entry Certificates" as of the Closing Date are set forth in the
Preliminary Statement.
Book-Entry Termination: The date on which the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with respect
to the Book Entry Certificates, and the Depositor is unable to locate a
qualified successor.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in New York, New York or, if other than New
York, the city in which the Corporate Trust Office of the Trustee is located,
or the States of Maryland or Minnesota, are authorized or obligated by law or
executive order to be closed.
Calculation Rate: Not applicable.
Certificate: Any one of the certificates signed by the Trustee, or
the Securities Administrator on the Trustee's behalf, and authenticated by the
Securities Administrator as Authenticating Agent in substantially the forms
attached hereto as Exhibit A.
Certificate Balance: With respect to any Certificate at any date, the
maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the principal balance or
notional amount, as applicable, as of the Closing Date (A) plus any Subsequent
Recoveries added to the Certificate Balance of such Certificate pursuant to
Section 5.02, (B) minus the sum of (i) all distributions of principal
previously made with respect thereto and (ii) all Realized Losses allocated
thereto and, in the case of any Subordinated Certificates, all other
reductions in Certificate Balance previously allocated thereto pursuant to
Section 5.04 and (C) in the case of any Class of Accrual Certificates,
increased by the Accrual Amount added to the Class Principal Balance of such
Class prior to such date.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the owner of such Book-Entry Certificate, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly or as an indirect participant, in
accordance with the rules of such Clearing Agency).
Certificate Register and Certificate Registrar: The register
maintained and the registrar appointed pursuant to Section 3.02. The initial
Certificate Registrar is the Securities Administrator under this Agreement.
Certificateholder: The meaning provided in the definition of "Holder."
Class: All Certificates bearing the same Class designation as set
forth in the Preliminary Statement.
12
Class A-1 Corridor Contract: The ISDA Master Agreement (including the
Schedule thereto and the transaction evidenced by the related Confirmation by
and between the Securities Administrator on behalf of the Trustee and the
Corridor Contract Counterparty), for the benefit of the Class A-1
Certificates.
Class A-1 Corridor Contract Payment: On each Distribution Date prior
to the related Corridor Contract Termination Date, the amount required to be
paid by the Corridor Contract Counterparty on behalf of Class A-1 Certificates
under the Class A-1 Corridor Contract on that Distribution Date.
Class A-2 Corridor Contract: The ISDA Master Agreement (including the
Schedule thereto and the transaction evidenced by the related Confirmation by
and between the Securities Administrator on behalf of the Trustee and the
Corridor Contract Counterparty), for the benefit of the Class A-2
Certificates.
Class A-2 Corridor Contract Payment: On each Distribution Date prior
to the related Corridor Contract Termination Date, the amount required to be
paid by the Corridor Contract Counterparty on behalf of Class A-2 Certificates
under the Class A-2 Corridor Contract on that Distribution Date.
Class A-3 Corridor Contract: The ISDA Master Agreement (including the
Schedule thereto and the transaction evidenced by the related Confirmation by
and between the Securities Administrator on behalf of the Trustee and the
Corridor Contract Counterparty), for the benefit of the Class A-3
Certificates.
Class A-3 Corridor Contract Payment: On each Distribution Date prior
to the related Corridor Contract Termination Date, the amount required to be
paid by the Corridor Contract Counterparty on behalf of Class A-3 Certificates
under the Class A-3 Corridor Contract on that Distribution Date.
Class M Junior Corridor Contract: The ISDA Master Agreement
(including the Schedule thereto and the transaction evidenced by the related
Confirmation by and between the Securities Administrator on behalf of the
Trustee and the Corridor Contract Counterparty), for the benefit of the Class
M-4, Class M-5 and Class M-6 Certificates.
Class M Junior Corridor Contract Payment: On each Distribution Date
prior to the related Corridor Contract Termination Date, the amount required
to be paid by the Corridor Contract Counterparty under the Class M Junior
Corridor Contract on that Distribution Date.
Class M Senior Corridor Contract: The ISDA Master Agreement
(including the Schedule thereto and the transaction evidenced by the related
Confirmation by and between the Securities Administrator on behalf of the
Trustee and the Corridor Contract Counterparty), for the benefit of the Class
M-1, Class M-2 and Class M-3 Certificates.
Class M Senior Corridor Contract Payment: On each Distribution Date
prior to the related Corridor Contract Termination Date, the amount required
to be paid by the Corridor Contract Counterparty under the Class M Senior
Corridor Contract on that Distribution Date.
13
Class X Required Reserve Fund Deposit: For any Distribution Date, an
amount equal to the lesser of (i) the Current Interest for the Class X
Certificates for such Distribution Date and (ii) the amount required to bring
the balance on deposit in the Reserve Fund up to an amount equal to the sum of
(a) the aggregate Net WAC Shortfalls for the LIBOR Certificates for such
Distribution Date remaining unpaid after application of payments under the
related Corridor Contract on that Distribution Date and (b) $8,500. For any
Distribution Date, the Securities Administrator will deposit into the Reserve
Fund any Required Reserve Fund Deposit for such date.
Class Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the definition of Class
Optimal Interest Distribution Amount for such Class exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to such clause (i).
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest bearing Class or, with respect to any interest
bearing Component, the sum of (i) one month's interest accrued during the
related Interest Accrual Period at the Pass-Through Rate for such Class on the
related Class Principal Balance, Component Balance, Notional Amount or
Component Notional Amount, as applicable, immediately prior to such
Distribution Date, subject to reduction as provided in Section 5.02(d) and
(ii) any Class Unpaid Interest Amounts for such Class or Component.
Class Principal Balance: With respect to any Class and as to any date
of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class Subordination Percentage: With respect to any Distribution Date
and each Class of Subordinated Certificates, the quotient (expressed as a
percentage) of (a) the Class Principal Balance of such Class of Subordinated
Certificates immediately prior to such Distribution Date, divided by (b) the
aggregate of the Class Principal Balances of all Classes of Certificates
(other than the related Notional Amount Certificates) immediately prior to
such Distribution Date.
Class Unpaid Interest Amounts: As to any Distribution Date and Class
of interest bearing Certificates, the amount by which the aggregate Class
Interest Shortfalls for such Class on prior Distribution Dates exceeds the
amount distributed on such Class on prior Distribution Dates pursuant to
clause (ii) of the definition of Class Optimal Interest Distribution Amount.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. As
of the Closing Date, the Clearing Agency shall be The Depository Trust
Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
Closing Date: December 29, 2005.
14
Code: The Internal Revenue Code of 1986, as amended, and as it may be
further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Compensating Interest Payment: As to any Distribution Date, an amount
equal to the lesser of (i) the Prepayment Interest Shortfall on the Mortgage
Loans serviced by such Servicer with respect to such Distribution Date and
(ii) the portion of the applicable Servicing Fee that the related Servicer is
required to remit to the Trust as compensation therefor in accordance with the
terms of the related Purchase and Servicing Agreement.
Component: As specified in the Preliminary Statement.
Component Balance: With respect to any Component and any Distribution
Date, the Initial Component Balance thereof on the Closing Date, (A) plus any
Subsequent Recoveries added to the Component Balance of such Component
pursuant to Section 5.02, (B) minus the sum of all amounts applied in
reduction of the principal balance of such Component and Realized Losses
allocated thereto on previous Distribution Dates.
Component Certificates: As specified in the Preliminary Statement.
Component Notional Amount: Not applicable.
Confirmation: With respect to each Corridor Contract, the related
Confirmation dated December 29, 2005, evidencing the transaction between the
Corridor Contract Counterparty and the Securities Administrator on behalf of
the Trust Fund.
Consent: A document executed by the Cooperative Corporation (i)
consenting to the sale of the Cooperative Unit to the Mortgagor and (ii)
certifying that all maintenance charges relating to the Cooperative Unit have
been paid.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements
constituting the Cooperative Property and which governs the Cooperative
Property, which Cooperative Corporation must qualify as a Cooperative Housing
Corporation under Section 216 of the Code.
Cooperative Loan: A Mortgage Loan secured by Cooperative Shares and a
Proprietary Lease, if any.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, that includes the allocation of individual dwelling
units to the holders of the shares of the Cooperative Corporation.
Cooperative Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: With respect to any Cooperative Loan, a specific
unit in a Cooperative Property.
15
Corporate Trust Office: With respect to the Trustee, the designated
office of the Trustee in the State of California at which at any particular
time its corporate trust business with respect to this Agreement is
administered, which office at the date of the execution of this Agreement is
located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000, Attn:
Trust Administration-MS0511, and which is the address to which notices to and
correspondence with the Trustee should be directed, or at such other address
as the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor, the Master Servicer and the Securities
Administrator or the principal corporate trust office of any successor
Trustee. With respect to the Certificate Registrar and presentment of
Certificates for registration of transfer, exchange or final payment, Xxxxx
Fargo Bank, National Association, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust, Xxxxxx Xxxxxxx
Mortgage Loan Trust 2005-11AR, and for all other purposes, X.X. Xxx 00,
Xxxxxxxx, Xxxxxxxx 00000 (or for overnight deliveries, 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000), Attention: Corporate Trust, Xxxxxx Xxxxxxx
Mortgage Loan Trust 2005-11AR.
Corridor Contract Counterparty: Xxxxxx Xxxxxxx Capital Services Inc.
Corridor Contract Termination Date: With respect to each Corridor
Contract the related Distribution Date set forth on the notional balance
schedule therein, after any required payment is made.
Corridor Contracts: Collectively, the Class A-1 Corridor Contract,
the Class A-2 Corridor Contract, the Class A-3 Corridor Contract, the Class M
Junior Corridor Contract and the Class M Senior Corridor Contract.
Current Interest: For any Distribution Date and any Class of
Certificates, the interest accrued during the related Interest Accrual Period
at the Pass-Through Rate for such Class of Certificates on the related Class
Principal Balance immediately prior to such Distribution Date.
Custodial Account: Each custodial account (other than an Escrow
Account) established and maintained by a Servicer pursuant to a Purchase and
Servicing Agreement.
Custodial Agreement: The Custodial Agreements, listed in Exhibit F
hereof, as each such agreement may be amended or supplemented from time to
time as permitted hereunder.
Custodia1 Certification: As defined in Section 2.01.
Custodian: A Person who is at anytime appointed by the Depositor as a
custodian of the Mortgage Documents and the Trustee Mortgage Files. The
initial Custodians are JPMorgan Chase Bank, National Association, LaSalle
Bank, National Association, Xxxxx Fargo Bank, National Association and
Deutsche Bank National Trust Company. "Custodian" shall refer to each
Custodian or all Custodians, as the context requires.
Cut-off Date: December 1, 2005.
Cut-off Date Pool Principal Balance: $536,015,852.33.
16
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the
Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which became
final and non-appealable, except such a reduction resulting from a Deficient
Valuation or any reduction that results in a permanent forgiveness of
principal.
Deceased Holder: Not applicable.
Defective Mortgage Loan: The meaning specified in Section 2.05(a).
Deficient Valuation: With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding indebtedness under the Mortgage Loan, or
any reduction in the amount of principal to be paid in connection with any
Scheduled Payment that results in a permanent forgiveness of principal, which
valuation or reduction results from an order of such court which is final and
non-appealable in a proceeding under the Bankruptcy Code.
Definitive Certificate: A Certificate of any Class issued in
definitive, fully registered, certificated form. As of the Closing Date the
Classes of Certificates being issued as "Definitive Certificates" are set
forth in the Preliminary Statement.
Delay Certificates: As specified in the Preliminary Statement.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased, or
replaced or to be replaced with a Replacement Mortgage Loan.
Delinquent: Any Mortgage Loan with respect to which the Scheduled
Payment due on a Due Date is not received.
Depositor: Xxxxxx Xxxxxxx Capital I Inc., a Delaware corporation
having its principal place of business in New York, or its successors in
interest.
Determination Date: With respect to each Servicer, the "Determination
Date" set forth in the related Purchase and Servicing Agreement.
Disqualified Organization: A "disqualified organization" as defined
in Section 860E(e)(5) of the Code.
Distribution Account: The separate Eligible Account created and
maintained by the Securities Administrator, on behalf of the Trustee, pursuant
to Section 4.01. Funds in the Distribution Account (exclusive of any earnings
on investments made with funds deposited in the Distribution Account) shall be
held in trust for the Trustee and the Certificateholders for the uses and
purposes set forth in this Agreement.
Distribution Account Deposit Date: With respect to each Servicer, not
later than 1:00 p.m., New York time, on 18th day of each calendar month after
the initial issuance of the
17
Certificates or, if such 18th day is not a Business Day, the either
immediately preceding or immediately following Business Day, as set forth in
the related Acknowledgement, commencing in January 2006.
Distribution Date: The 25th day of each month or, if such 25th day is
not a Business Day, the next succeeding Business Day, commencing in January
2006.
Due Date: With respect to any Mortgage Loan, the date on which a
Scheduled Payment is due under the related Mortgage Note as indicated in the
applicable Purchase and Servicing Agreement.
Due Period: As to any Distribution Date, the period beginning on the
second day of the month preceding the month of such Distribution Date, and
ending on the first day of the month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a
depository institution or trust company that is the principal subsidiary of a
holding company, the debt obligations of such holding company) have the
highest short-term ratings of each Rating Agency at the time any amounts are
held on deposit therein, or (ii) an account or accounts in a depository
institution or trust company in which such accounts are insured by the FDIC or
the SAIF (to the limits established by the FDIC or the SAIF) and the uninsured
deposits in which accounts are otherwise secured such that, as evidenced by an
Opinion of Counsel delivered to the Trustee and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such account or a
perfected first priority security interest against any collateral (which shall
be limited to Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the depository institution or
trust company in which such account is maintained, or (iii) a trust account or
accounts maintained with the trust department of a federal or state chartered
depository institution or trust company, acting in its fiduciary capacity or
(iv) any other account acceptable to each Rating Agency, as evidenced by a
signed writing delivered by each Rating Agency. Eligible Accounts may bear
interest, and may include, if otherwise qualified under this definition,
accounts maintained with the Trustee, the Paying Agent, the Securities
Administrator or the Master Servicer.
Eligible Institution: An institution having the highest short-term
debt rating, and one of the two highest long-term debt ratings of the Rating
Agencies or the approval of the Rating Agencies.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: With respect to each Mortgage Loan, as defined in
Article I of the related Purchase and Servicing Agreement.
18
Estoppel Letter: A document executed by the Cooperative Corporation
certifying, with respect to a Cooperative Unit, (i) the appurtenant
Proprietary Lease will be in full force and effect as of the date of issuance
thereof, (ii) the related stock certificate was registered in the Mortgagor's
name and the Cooperative Corporation has not been notified of any lien upon,
pledge of, levy of execution on or disposition of such stock certificate, and
(iii) the Mortgagor is not in default under the appurtenant Proprietary Lease
and all charges due the Cooperative Corporation have been paid.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 6.14.
Excess Loss: The amount of any (i) Fraud Loss on a Mortgage Loan
realized after the Fraud Loss Coverage Termination Date, (ii) Special Hazard
Loss on a Mortgage Loan realized after the Special Hazard Coverage Termination
Date or (iii) Bankruptcy Loss on a Mortgage Loan realized after the Bankruptcy
Coverage Termination Date.
Xxxxxx Xxx: The entity formerly known as the Federal National
Mortgage Association, a federally chartered and privately owned corporation
organized and existing under the Federal National Mortgage Association Charter
Act, or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Custodial Certification: As defined in Section 2.02.
Fiscal Agent: Not applicable.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section 11.07
the address for notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Surveillance Group,
or such other address as Fitch may hereafter furnish to the Depositor, the
Trustee and the Master Servicer.
FNBN Mortgage Loan: Each Mortgage Loan originated by First National
Bank of Nevada and listed on the Mortgage Loan Schedule.
FNBN Purchase Agreement: The Mortgage Loan Purchase Agreement listed
in Exhibit E hereto between the Seller and First National Bank of Nevada.
Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred, as reported by the related Servicer to the Master Servicer.
Fraud Loss Coverage Amount: As of the Closing Date, (x) $16,080,476
subject to reduction from time to time, by the amount of Fraud Losses
allocated to the Certificates. The Fraud Loss Coverage Amount will be reduced,
from time to time, by the amount of Fraud Losses
19
allocated to the Certificates. In addition, the Fraud Loss Coverage Amount
will be reduced on the fifth anniversary of the Cut-off Date, to zero and on
the first, second, third and fourth anniversaries of the Cut-off Date, to an
amount equal to the lesser of (x) 2%, in the case of the first anniversary,
and 1%, in the case of the second, third and fourth anniversaries, of the then
current aggregate Stated Principal Balance of the Mortgage Loans and (y) the
excess of the Fraud Loss Coverage Amount as of the preceding anniversary of
the Cut-off Date over the cumulative amount of Fraud Losses since the
preceding anniversary.
Fraud Loss Coverage Termination Date: The point in time at which the
Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on Mortgage Loans as to which a loss is
sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a
loss by reason of the denial of coverage under any related Primary Mortgage
Insurance Policy because of such fraud, dishonesty or misrepresentation.
Global Securities: The global certificates representing the
Book-Entry Certificates.
GMAC Serviced Mortgage Loan: Each Mortgage Loan serviced by GMAC
Mortgage Corporation and listed on the Mortgage Loan Schedule.
GMAC Servicing Agreement: The Servicing Agreement listed in Exhibit E
hereto between the Seller and GMAC Mortgage Corporation.
Holder: The registered owner of any Certificate as recorded on the
books of the Certificate Registrar except that, solely for the purposes of
taking any action or giving any consent pursuant to this Agreement, any
Certificate registered in the name of the Depositor, the Trustee, the Master
Servicer, the Securities Administrator and any Servicer, or any Affiliate
thereof shall be deemed not to be outstanding in determining whether the
requisite percentage necessary to effect any such consent has been obtained,
except that, in determining whether the Trustee or the Securities
Administrator shall be protected in relying upon any such consent, only
Certificates that a Responsible Officer of the Trustee or the Securities
Administrator, respectively, knows to be so owned shall be disregarded. The
Trustee or the Securities Administrator may request and conclusively rely on
certifications by the Depositor, the Master Servicer, the Securities
Administrator or any Servicer in determining whether any Certificates are
registered to an Affiliate of the Depositor, the Master Servicer, the
Securities Administrator or any Servicer.
HSBC Serviced Mortgage Loan: Each Mortgage Loan serviced by HSBC
Mortgage Corporation (USA) and listed on the Mortgage Loan Schedule.
HSBC Servicing Agreement: The Servicing Agreement listed in Exhibit E
hereto between the Seller and HSBC Mortgage Corporation (USA).
HUD: The United States Department of Housing and Urban Development,
or any successor thereto.
20
Independent: When used with respect to any Accountants, a Person who
is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any other
Person, a Person who (a) is in fact independent of another specified Person
and any Affiliate of such other Person, (b) does not have any material direct
financial interest in such other Person or any Affiliate of such other Person,
and (c) is not connected with such other Person or any Affiliate of such other
Person as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions.
Index: As to each Mortgage Loan, the index from time to time in
effect for adjustment of the Mortgage Rate as set forth as such on the related
Mortgage Note.
Initial Bankruptcy Loss Coverage Amount: $190,916.
Initial Component Balance: As specified in the Preliminary Statement.
Initial Custodial Certification: As defined in Section 2.02.
Initial Optional Purchase Date: The first Distribution Date following
the date on which the aggregate Stated Principal Balance of the Mortgage Loans
is equal to or less than 10% of the aggregate Stated Principal Balance thereof
as of the Cut-off Date.
Insurance Policy: With respect to any Mortgage Loan, any insurance
policy, including all names and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by any Insurance Policy (excluding
proceeds required to be applied to the restoration and repair of the related
Mortgaged Property or released to the Mortgagor), in each case other than any
amount included in such Insurance Proceeds in respect of Insured Expenses and
the proceeds from any Limited Purpose Surety Bond.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay
Certificates, its corresponding Subsidiary REMIC Regular Interest and any
Distribution Date, the calendar month prior to the month of such Distribution
Date. With respect to any Class of Non-Delay Certificates, its corresponding
Subsidiary REMIC Regular Interest and any Distribution Date, the one month
period commencing on the 25th day of the month preceding the month in which
such Distribution Date occurs and ending on the 24th day of the month in which
such Distribution Date occurs.
Interest Determination Date: With respect to any Interest Accrual
Period for any Class of LIBOR Certificates, the second Business Day prior to
the first day of such Interest Accrual Period.
Last Scheduled Distribution Date: The Distribution Date in January
2036.
21
Latest Possible Maturity Date: The Distribution Date occurring in
January 2036.
LIBOR: The London interbank offered rate for one-month United States
dollar deposits calculated in the manner described in Section 5.09.
LIBOR Business Day: Any day on which banks in London, England and The
City of New York are open and conducting transactions in foreign currency and
exchange.
LIBOR Certificates: As specified in the Preliminary Statement.
Limited Purpose Surety Bond: Collectively, Ambac Assurance
Corporation Surety Bond No. AB0039BE and any other Limited Purpose Surety Bond
securing an Additional Collateral Mortgage Loan.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in
the calendar month preceding the month of such Distribution Date and as to
which the related Servicer has certified (in accordance with its Purchase and
Servicing Agreement) that it has received all amounts it expects to receive in
connection with the liquidation of such Mortgage Loan including the final
disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received
in connection with the partial or complete liquidation of defaulted Mortgage
Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property.
Living Holders: Not applicable.
Loan-To-Value Ratio: With respect to any Mortgage Loan and as to any
date of determination, the fraction (expressed as a percentage) the numerator
of which is the principal balance of the related Mortgage Loan at such date of
determination and the denominator of which is the Appraised Value of the
related Mortgaged Property.
LPMI Mortgage Loan: Certain Mortgage Loans as to which the lender
(rather than the borrower) acquires the Primary Mortgage Insurance Policy and
charges the related borrower an interest premium.
Master REMIC: As described in the Preliminary Statement.
Master Servicer: Xxxxx Fargo Bank, National Association, a national
banking association organized under the laws of the United States in its
capacity as Master Servicer and any Person succeeding as Master Servicer
hereunder or any successor in interest, or if any successor master servicer
shall be appointed as herein provided, then such successor master servicer.
Master Servicer Compensation: With respect to any Master Servicer
that is a successor to Xxxxx Fargo Bank, National Association as Master
Servicer, the portion of the earnings on the funds on deposit in the
Distribution Account payable on each Distribution Date pursuant to
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Section 4.02(b)(ii) hereof agreed to by and between such successor Master
Servicer and the successor securities administrator; provided, that the sum of
such Master Servicer Compensation and the Securities Administrator
Compensation payable on each Distribution Date shall not exceed the total
earnings on funds in the Distribution Account payable pursuant to Section
4.02(b)(ii) hereof earned since the prior Distribution Date.
Memorandum: The private placement memorandum dated December 29, 2005,
relating to the Private Certificates.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor to Mortgage Electronic Registration Systems, Inc.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS(R) System.
MERS(R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The mortgage identification number for any MERS Mortgage Loan.
Minimum Auction Price: With respect to any Distribution Date on which
an Auction is being held, an amount equal to the sum of (a) 100% of the
current aggregate Stated Principal Balance of the Mortgage Loan, plus accrued
interest thereon, (b) the fair market value of any REO Property in the Trust
Fund and all other property in the Trust Fund being purchased, (c) any
unreimbursed Servicing Advances related to the Mortgage Loans and (d) any
expenses incurred by the Auction Administrator in the Auction process.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto.
If Xxxxx'x is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 11.07 the address for notices to Moody's shall be Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Residential Pass-Through Monitoring, or such other address as
Moody's may hereafter furnish to the Depositor or the Master Servicer.
Mortgage: A mortgage, deed of trust or other instrument encumbering a
fee simple interest in real property securing a Mortgage Note, together with
improvements thereto.
Mortgage Documents: With respect to each Mortgage Loan, the mortgage
documents required to be delivered to the Custodian pursuant to each Custodial
Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage conveyed, transferred, sold,
assigned to or deposited with the Trustee pursuant to Section 2.01 (including
any REO Property), including without limitation, each Mortgage Loan listed on
the Mortgage Loan Schedule, as amended from time to time.
23
Mortgage Loan Schedule: The schedule attached hereto as Schedule A,
which shall identify each Mortgage Loan, as such schedule may be amended by
the Depositor or a Servicer from time to time to reflect the addition of
Replacement Mortgage Loans to, or the deletion of Deleted Mortgage Loans from,
the Trust Fund. Such schedule shall, among other things (i) designate the
Servicer servicing such Mortgage Loan and the applicable Servicing Fee Rate;
(ii) [reserved], (iii) identify any LPMI Mortgage Loan and designate the rate
at which the premium for such insurance is calculated and (iv) separately
identify the Additional Collateral Mortgage Loans, if any.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgaged Property: The underlying property, including any Additional
Collateral, securing a Mortgage Loan which, with respect to a Cooperative
Loan, is the related Cooperative Shares and Proprietary Lease.
Mortgage Rate: As to any Mortgage Loan, the annual rate of interest
borne by the related Mortgage Notes.
MortgageIT Mortgage Loan: Each Mortgage Loan originated by
MortgageIT, Inc. and listed on the Mortgage Loan Schedule.
MortgageIT Purchase Agreement: The Mortgage Loan Purchase Agreement
listed in Exhibit E hereto between the Seller and MortgageIT, Inc.
Mortgagor: The obligor on a Mortgage Note.
MSCC Purchase Agreement: The Second Amended and Restated Master
Mortgage Loan Purchase Agreement listed in Exhibit E hereto between the Seller
and Xxxxxx Xxxxxxx Credit Corporation.
MSCC Purchase and Servicing Agreement: Collectively, the MSCC
Purchase Agreement and the MSCC Servicing Agreement.
MSCC Serviced Mortgage Loan: Each Mortgage Loan originated and
serviced by Xxxxxx Xxxxxxx Credit Corporation and listed on the Mortgage Loan
Schedule.
MSCC Servicing Agreement: The Amended and Restated Master Servicing
Agreement listed in Exhibit E hereto between the Seller and Xxxxxx Xxxxxxx
Credit Corporation.
MSMCI Mortgage Loan: A Mortgage Loan sold by the Seller to the
Depositor pursuant to the MSMCI Purchase Agreement.
MSMCI Purchase Agreement: The Mortgage Loan Purchase Agreement listed
in Exhibit E hereto between the Seller and the Depositor.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage
Loan or any other disposition of related Mortgaged Property, the related
Liquidation Proceeds net of Advances,
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Servicer Advances, Servicing Fees and any other accrued and unpaid servicing
fees received and retained in connection with the liquidation of such Mortgage
Loan or Mortgaged Property.
Net Mortgage Rate: With respect to any Mortgage Loan and any
Distribution Date, the related Mortgage Rate as of the Due Date in the month
preceding the month of such Distribution Date reduced by the Aggregate Expense
Rate for such Mortgage Loan.
Net Prepayment Interest Shortfalls: As to any Distribution Date, the
amount by which the aggregate of Prepayment Interest Shortfalls exceeds the
Compensating Interest Payments for that Distribution Date.
Net WAC: With respect to any Distribution Date, a per annum rate
equal to the Weighted Average Net Mortgage Rate of the Mortgage Loans as of
the first day of the month preceding the month in which such Distribution Date
occurs.
Net WAC Shortfall: With respect to any Class of LIBOR Certificates
and any Distribution Date on which the Pass-Through Rate for that Class of
Certificates is limited to the Net WAC, an amount equal to the excess of (x)
the amount of interest such Class of Certificates would have been entitled to
receive on such Distribution Date if the Net WAC had not been applicable to
such Class on such Distribution Date, subject to a maximum rate of 11.50% per
annum over (y) the amount of interest accrued on such Distribution Date at the
Net WAC rate.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-Delay Certificates: As specified in the Preliminary Statement.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Non-U.S. Person: Any person other than a "United States person"
within the meaning of Section 7701(a)(30) of the Code.
Nonrecoverable Advance: Any portion of an Advance or Servicer Advance
previously made or proposed to be made by the Master Servicer and/or a
Servicer (as certified in an Officer's Certificate of such Servicer), which in
the good faith judgment of such party, shall not be ultimately recoverable by
such party from the related Mortgagor, related Liquidation Proceeds or
otherwise.
Notional Amount: With respect to the Class X Certificates and any
Distribution Date, an amount equal to aggregate Class Principal Balance of the
LIBOR Certificates immediately prior to that Distribution Date. The initial
Notional Amount of the Class X Certificates will be $518,863,000.
Notional Amount Certificates: As specified in the Preliminary
Statement.
Offered Certificates: As specified in the Preliminary Statement.
Offering Document: The Prospectus or the Memorandum, as applicable.
25
Officer's Certificate: A certificate signed by two Authorized
Officers of the Depositor or the Chairman of the Board, any Vice Chairman, the
President, any Vice President or any Assistant Vice President of the Master
Servicer or the Securities Administrator, and in each case delivered to the
Trustee or the Securities Administrator, as applicable.
Officer's Certificate of a Servicer: A certificate (i) signed by the
Chairman of the Board, the Vice Chairman of the Board, the President, a
Managing Director, a Vice President (however denominated), an Assistant Vice
President, the Treasurer, the Secretary, or one of the Assistant Treasurers or
Assistant Secretaries of a Servicer, or (ii) if provided for herein, signed by
a Servicing Officer, as the case may be, and delivered to the Trustee, the
Securities Administrator or the Master Servicer, as required hereby.
Opinion of Counsel: A written opinion of counsel, reasonably
acceptable in form and substance to the Trustee, the Securities Administrator
or the Master Servicer, as required hereby, and who may be in-house or outside
counsel to the Depositor, the Master Servicer, the Securities Administrator or
the Trustee but which must be Independent outside counsel with respect to any
such opinion of counsel concerning the transfer of any Residual Certificate or
concerning certain matters with respect to ERISA, or the taxation, or the
federal income tax status, of each REMIC.
Original Applicable Credit Support Percentage: With respect to each
of the following Classes of Subordinated Certificates, the corresponding
percentage described below, as of the Closing Date:
Class M-1........ 9.00%
Class M-2........ 6.90%
Class M-3........ 5.30%
Class M-4........ 4.75%
Class M-5........ 4.10%
Class M-6........ 3.60%
Class B-1........ 3.20%
Class B-2........ 2.80%
Class B-3........ 2.50%
Class B-4........ 2.20%
Class B-5........ 1.55%
Class B-6........ 0.60%
Original Subordinate Principal Balance: The aggregate Class Principal
Balance of the Subordinated Certificates as of the Closing Date.
Originator: Any one of Xxxxxx Xxxxxxx Mortgage Capital Inc., First
National Bank of Nevada, HSBC Mortgage Corporation (USA), Xxxxxx Xxxxxxx
Credit Corporation, MortgageIT, Inc., Wachovia Mortgage Corporation or Xxxxx
Fargo Bank, National Association, as applicable.
Pass-Through Rate: For any interest bearing Class of Certificates or
Component, the per annum rate set forth or calculated in the manner described
in the Preliminary Statement.
26
Paying Agent: Any paying agent appointed pursuant to Section 3.08.
The initial Paying Agent shall be the Securities Administrator under this
Agreement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the initial principal balance or notional
amount, as applicable, of such Certificate by the aggregate of the Class
Principal Balance or Notional Amount, as applicable, of all Certificates of
the same Class.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof,
provided that such obligations are backed by the full faith and
credit of the United States;
(ii) general obligations of or obligations guaranteed by any
state of the United States or the District of Columbia receiving the
highest long-term debt rating of each Rating Agency, or such lower
rating as shall not result in the downgrading or withdrawal of the
ratings then assigned to the Certificates by the Rating Agencies, as
evidenced by a signed writing delivered by each Rating Agency;
(iii) commercial or finance company paper which is then
receiving the highest commercial or finance company paper rating of
each Rating Agency rating such paper, or such lower rating as shall
not result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as evidenced by
a signed writing delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or
bankers' acceptances issued by any depository institution or trust
company incorporated under the laws of the United States or of any
state thereof and subject to supervision and examination by federal
and/or state banking authorities, provided that the commercial paper
and/or long-term unsecured debt obligations of such depository
institution or trust company (or in the case of the principal
depository institution in a holding company system, the commercial
paper or long-term unsecured debt obligations of such holding
company, but only if Xxxxx'x is not the applicable Rating Agency) are
then rated one of the two highest long-term and the highest
short-term ratings of each Rating Agency for such securities, or such
lower ratings as shall not result in the downgrading or withdrawal of
the ratings then assigned to the Certificates by the Rating Agencies,
as evidenced by a signed writing delivered by each Rating Agency;
(v) demand or time deposits or certificates of deposit
issued by any bank or trust company or savings institution to the
extent that such deposits are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation acceptable to the Rating
Agencies at the time of the issuance of such agreements, as evidenced
by a signed writing delivered by each Rating Agency;
27
(vii) repurchase obligations with respect to any security
described in clauses (i) and (ii) above, in either case entered into
with a depository institution or trust company (acting as principal)
described in clause (iv) above;
(viii) securities (other than stripped bonds, stripped
coupons or instruments sold at a purchase price in excess of 115% of
the face amount thereof) bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States or any state thereof which, at the time of such investment,
have one of the two highest ratings of each Rating Agency (except if
the Rating Agency is Moody's, such rating shall be the highest
commercial paper rating of Moody's for any such series), or such
lower rating as shall not result in the downgrading or withdrawal of
the ratings then assigned to the Certificates by the Rating Agencies,
as evidenced by a signed writing delivered by each Rating Agency;
(ix) interests in any money market fund which at the date of
acquisition of the interests in such fund and throughout the time
such interests are held in such fund has the highest applicable
rating by each Rating Agency rating such fund or such lower rating as
shall not result in a change in the rating then assigned to the
Certificates by each Rating Agency, as evidenced by a signed writing
delivered by each Rating Agency, including funds for which the
Trustee, the Master Servicer, the Securities Administrator or any of
its Affiliates is investment manager or adviser;
(x) short-term investment funds sponsored by any trust
company or national banking association incorporated under the laws
of the United States or any state thereof which on the date of
acquisition has been rated by each applicable Rating Agency in their
respective highest applicable rating category or such lower rating as
shall not result in a change in the rating then specified stated
maturity and bearing interest or sold at a discount acceptable to
each Rating Agency as shall not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by the
Rating Agencies, as evidenced by a signed writing delivered by each
Rating Agency; and
(xi) such other investments having a specified stated
maturity and bearing interest or sold at a discount acceptable to the
Rating Agencies as shall not result in the downgrading or withdrawal
of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating
Agency;
provided, that no such instrument shall be a Permitted Investment if (i) such
instrument evidences the right to receive interest only payments with respect
to the obligations underlying such instrument or (ii) such instrument would
require the Depositor to register as an investment company under the
Investment Company Act of 1940, as amended.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Plan: Any employee benefit plan or other plan or arrangement subject
to Section 406 of ERISA or Section 4975 of the Code, including individual
retirement accounts and annuities,
28
Xxxxx plans and collective investment funds and separate accounts in which
such plans, accounts or arrangements are invested.
Plan Asset Regulations: The Department of Labor regulations set forth
in 29 C.F.R. ss.2510.3-101.
Planned Balance: With respect to any group of Planned Principal
Classes or Components in the aggregate and any Distribution Date appearing in
Schedule B hereto, the Aggregate Planned Balance for such group and
Distribution Date. With respect to any other Planned Principal Class or
Component and any Distribution Date appearing in Schedule B hereto, the
applicable amount appearing opposite such Distribution Date for such Class or
Component.
Planned Principal Classes: As specified in the Preliminary Statement.
Prepayment Interest Shortfall: With respect to each Mortgage Loan,
the amount of the shortfall in interest payable on such Mortgage Loan that
occurs as a result of the prepayment by the related Mortgagor of such Mortgage
Loan calculated in accordance with formula set forth in the related Purchase
and Servicing Agreement.
Prepayment Penalty: As to a Mortgage Loan, any penalty payable by a
Mortgagor in connection with certain partial prepayments and all prepayments
in full made within the related Prepayment Penalty Period, the Prepayment
Penalties with respect to each applicable Mortgage Loan so held by the Trust
Fund being identified in the Prepayment Penalty Schedule.
Prepayment Penalty Period: As to any Mortgage Loan, the period of
time during which a Prepayment Penalty may be imposed.
Prepayment Penalty Schedule: As of any date, the list of Prepayment
Penalties included in the Trust Fund on that date (including the Prepayment
Penalty summary attached thereto). The Prepayment Penalty Schedule shall set
forth the following information with respect to each Prepayment Penalty:
o the Mortgage Loan account number;
o a code indicating the type of Prepayment Penalty;
o the state of origination in which the related Mortgage Property is
located;
o the first date on which a monthly payment is or was due under the
related Mortgage Note;
o the term of the Prepayment Penalty;
o the original principal amount of the related Mortgage Loan; and
o the Cut-off Date Principal Balance of the related Mortgage Loan.
29
The Prepayment Penalty Schedule shall be amended from time to time by
the Seller in accordance with this Agreement.
Prepayment Period: With respect to any Mortgage Loan and any
Distribution Date, the calendar month preceding that Distribution Date.
Prepayment Shift Percentage: Not applicable.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan.
Principal Amount: As to any Distribution Date, the sum of (a) the
principal portion of each Scheduled Payment (without giving effect, prior to
the Bankruptcy Coverage Termination Date, to any reductions thereof caused by
any Debt Service Reductions or Deficient Valuations) due on each Mortgage Loan
on the related Due Date, (b) the Stated Principal Balance of each Mortgage
Loan that was repurchased by the Seller or an Originator or purchased by the
Master Servicer pursuant to this Agreement as of such Distribution Date, (c)
the Substitution Adjustment Amount in connection with any Deleted Mortgage
Loan received with respect to such Distribution Date, (d) any Insurance
Proceeds or Liquidation Proceeds allocable to recoveries of principal of
Mortgage Loans that are not yet Liquidated Mortgage Loans received during the
calendar month preceding the month of such Distribution Date, (e) with respect
to each Mortgage Loan that became a Liquidated Mortgage Loan during the
calendar month preceding the month of such Distribution Date, the amount of
the Liquidation Proceeds allocable to principal and, if such Liquidated
Mortgage Loan is an Additional Collateral Mortgage Loan, the proceeds of any
Additional Collateral from the related Additional Collateral Mortgage Loan, in
each case received during the calendar month preceding the month of such
Distribution Date with respect to such Mortgage Loan, (f) all Principal
Prepayments received during the related Prepayment Period and (g) any
Subsequent Recoveries received during the calendar month preceding the month
of such Distribution Date.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Reductions: The sum of the Principal Amount and any
Realized Losses.
Principal Relocation Payment: Not applicable.
Priority Amount: Not applicable.
Priority Percentage: Not applicable.
Private Certificate: As specified in the Preliminary Statement.
30
Pro Rata Share: As to any Distribution Date and the Subordinated
Principal Distribution Amount of a Class of Subordinated Certificates, the
portion of the related Subordinated Principal Distribution Amount allocable to
such Class, equal to the product of the related Subordinated Principal
Distribution Amount on such Distribution Date and a fraction, the numerator of
which is the related Class Principal Balance thereof and the denominator of
which is the aggregate of the Class Principal Balances of the Subordinated
Certificates.
Pro Rata Subordinated Percentage: As to any Distribution Date, 100%
minus the related Senior Percentage for such Distribution Date.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Proprietary Lease: With respect to any Cooperative Property, a lease
or occupancy agreement between a Cooperative Corporation and a holder of
related Cooperative Shares.
Prospectus: The prospectus supplement dated December 22, 2005,
together with the accompanying prospectus dated July 27, 2005, relating to the
Certificates.
Purchase and Servicing Agreements: Collectively, the mortgage loan
purchase and servicing agreements, each as amended by the related
Acknowledgement, listed in Exhibit E hereto, as each such agreement may be
amended or supplemented from time to time as permitted hereunder.
Purchase Date: As defined in Section 7.01(c).
Purchase Price: With respect to any Mortgage Loan required or
permitted to be purchased by the Seller or Depositor pursuant to this
Agreement, or by the related Originator or Servicer pursuant to the related
Purchase and Servicing Agreement, an amount equal to the sum of (i) 100% of
the unpaid principal balance of the Mortgage Loan on the date of such purchase
and (ii) accrued interest thereon at the applicable Net Mortgage Rate from the
date through which interest was last paid by the Mortgagor to the Due Date in
the month in which the Purchase Price is to be distributed to
Certificateholders, or such other amount as may be specified in the related
Purchase and Servicing Agreement and (iii) costs and damages incurred by the
Trust Fund in connection with a repurchase pursuant to Section 2.05 hereof
that arises out of a violation of any predatory or abusive lending law with
respect to the related Mortgage Loan.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If any such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee.
References herein to a given rating category of a Rating Agency shall mean
such rating category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount (not less than zero or more than the Stated Principal Balance of the
related Mortgage Loan) as of the date of such liquidation, equal to (i) the
Stated Principal Balance of the Liquidated Mortgage Loan as of the date of
such liquidation, plus (ii) interest at the Net Mortgage Rate from the Due
Date as to
31
which interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the Due Date in the month in which Liquidation
Proceeds are required to be distributed on the Stated Principal Balance of
such Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation
Proceeds, if any, received during the month in which such liquidation
occurred, to the extent applied as recoveries of interest at the Net Mortgage
Rate and to principal of the Liquidated Mortgage Loan. With respect to each
Mortgage Loan which has become the subject of a Deficient Valuation, if the
principal amount due under the related Mortgage Note has been reduced, the
difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation. With respect to each
Mortgage Loan which has become the subject of a Debt Service Reduction and any
Distribution Date, the amount, if any, by which the principal portion of the
related Scheduled Payment has been reduced.
To the extent the Master Servicer or a 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 by such Subsequent
Recoveries.
Recognition Agreement: An agreement among a Cooperative Corporation,
a lender and a Mortgagor with respect to a Cooperative Loan whereby such
parties (i) acknowledge that such lender may make, or intends to make, such
Cooperative Loan, and (ii) make certain agreements with respect to such
Cooperative Loan.
Record Date: As to any Distribution Date (i) with respect to the
Non-Delay Certificates, the last Business Day preceding such Distribution Date
(or the Closing Date, in the case of the first Distribution Date) unless such
Certificates shall no longer be Book-Entry Certificates, in which case the
Record Date shall be the last Business Day of the month preceding the month of
such Distribution Date and (ii) in the case of the Delay Certificates
(including the Non-Delay Certificates that are subsequently reissued as
Definitive Certificates), the last Business Day of the month preceding the
month of each Distribution Date.
Redemption Price: With respect to any Class of Certificates to be
redeemed, an amount equal to 100% of the related Class Principal Balance of
the Certificates to be so redeemed, together with interest on such amount at
the applicable Pass-Through Rate through the related Accrual Period (as
increased by any Class Unpaid Interest Amounts), and including, in the case of
the Redemption Price payable in connection with the redemption and retirement
of all of the Certificates, the payment of all amounts (including, without
limitation, all previously unreimbursed Advances and Servicer Advances and
accrued and unpaid Servicing Fees) payable or reimbursable to the Trustee, the
Securities Administrator, the Master Servicer and the Servicers pursuant to
this Agreement and the Purchase and Servicing Agreements, or to the Custodian
under the Custodian Agreements (to the extent such amounts are not paid to the
Custodian by the Seller).
Refinancing Mortgage Loan: Any Mortgage Loan originated in connection
with the refinancing of an existing mortgage loan.
Regular Certificates: As specified in the Preliminary Statement.
32
Relief Act: The Servicemembers Civil Relief Act (formerly known as
the Soldiers' and Sailors' Civil Relief Act of 1940), as amended, and any
similar state laws.
Relief Act Shortfalls: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month
is less than (ii) interest accrued thereon for such month pursuant to the
Mortgage Note.
REMIC: Each pool of assets in the Trust Fund designated as a REMIC as
described in the Preliminary Statement.
REMIC Provisions: The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of the Code, and related provisions, and regulations,
including proposed regulations and rulings, and administrative pronouncements
promulgated thereunder, as the foregoing may be in effect from time to time.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan or otherwise treated as having been acquired pursuant to the
REMIC Provisions.
Replacement Mortgage Loan: A mortgage loan substituted by an
Originator or the Seller for a Deleted Mortgage Loan which must, on the date
of such substitution, as confirmed in a request for release, substantially in
the form attached to the related Custodial Agreement, (i) have a Stated
Principal Balance, after deduction of all Scheduled Payments due in the month
of substitution, not in excess of the Stated Principal Balance of the Deleted
Mortgage Loan, (ii) if such Mortgage Loan is a fixed-rate Mortgage Loan, have
a Mortgage Rate not less than (and not more than two percentage points greater
than) the mortgage rate of the Deleted Mortgage Loan, (iii) if such Mortgage
Loan is an adjustable-rate Mortgage Loan, have a Mortgage Rate not less than
(and not more than two percentage points greater than) the mortgage rate of
the Deleted Mortgage Loan, (iv) have a Loan-to-Value Ratio equal to or less
than that of the Deleted Mortgage Loan, (v) have a remaining term to maturity
not greater than (and not more than one year less than) that of the Deleted
Mortgage Loan, (vi) is otherwise acceptable to the Seller, (vii) if such
Mortgage Loan is an adjustable-rate Mortgage Loan, have the same adjustment
date as that of the Deleted Mortgage Loan, (viii) if such Mortgage Loan is an
adjustable-rate Mortgage Loan, have a minimum Mortgage Rate not less than that
of the Deleted Mortgage Loan, (ix) if such Mortgage Loan is an adjustable-rate
Mortgage Loan, have the same Index as that of the Deleted Mortgage Loan, (x)
comply with all of the representations and warranties set forth in the related
underlying servicing agreement, as modified by any related assignment thereof,
and (xi) shall be accompanied by an Opinion of Counsel that such Replacement
Mortgage Loan would not adversely affect the REMIC status of any REMIC created
hereunder or would not otherwise be prohibited by this Pooling and Servicing
Agreement.
Required Reserve Fund Deposit: $8,500.
33
Reserve Fund: A fund created as part of the Trust Fund pursuant to
Section 5.10 of this Agreement but which is not an asset of any of the REMICs.
Residual Certificate: The Class A-R Certificates.
Responsible Officer: With respect to the Trustee, any officer in the
corporate trust department or similar group of the Trustee with direct
responsibility for the administration of this Agreement and also, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of his or her knowledge of and familiarity with the
particular subject. With respect to the Master Servicer, any officer in its
master servicing operations with direct responsibility for the Administration
of this Agreement. With respect to the Securities Administrator, any officer
in the corporate trust department or similar group of the Securities
Administrator with direct responsibility for the administration of this
Agreement and also, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his or her knowledge
of and familiarity with the particular subject.
Restricted Classes: As defined in Section 5.02(e).
Restricted Global Security: As defined in Section 3.01(c).
SAIF: The Saving's Association Insurance Fund, or any successor
thereto.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.
If S&P is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 11.07 the address for notices to S&P shall be Standard &
Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage
Surveillance Monitoring, or such other address as S&P may hereafter furnish to
the Depositor and the Master Servicer.
Scheduled Balances: Not applicable.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage
Loan which, unless otherwise specified in the related Purchase and Servicing
Agreement, shall give effect to any related Debt Service Reduction and any
Deficient Valuation that affects the amount of the monthly payment due on such
Mortgage Loan.
Scheduled Principal Classes: As specified in the Preliminary
Statement.
Scheduled Principal Distribution Amount: Not applicable.
Securities Administrator: Xxxxx Fargo Bank, National Association, not
in its individual capacity but solely as Securities Administrator, or any
successor in interest, or if any successor Securities Administrator shall be
appointed as herein provided, then such successor Securities Administrator.
Securities Administrator Compensation: With respect to any Securities
Administrator that is a successor to Xxxxx Fargo Bank, National Association as
Securities Administrator, the portion of the earnings on the funds on deposit
in the Distribution Account payable on each Distribution
34
Account payable on each Distribution Date pursuant to Section 4.02(b)(ii)
hereof agreed to by and between such Securities Administrator and the
successor master servicer; provided, that (x) such Securities Administrator
Compensation payable on each Distribution Date shall equal at least one day's
earnings accrued since the prior Distribution Date and (y) the sum of such
Securities Administrator Compensation and the Master Servicer Compensation
payable on each Distribution Date shall not exceed the total earnings on the
funds on deposit in the Distribution Account payable on each Distribution Date
pursuant to Section 4.02(b)(ii) hereof earned since the prior Distribution
Date.
Seller: Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York corporation.
Senior Certificates: As specified in the Preliminary Statement.
Senior Credit Support Depletion Date: The date on which the aggregate
Class Principal Balance of the Subordinated Certificates has been reduced to
zero.
Senior Percentage: As to any Distribution Date, the percentage
equivalent of a fraction the numerator of which is the aggregate Class
Principal Balance of each Class of Senior Certificates (other than the
Notional Amount Certificates) immediately prior to such Distribution Date, and
the denominator of which is the aggregate Stated Principal Balance of each
Mortgage Loan in the Trust Fund as of the Due Date occurring in the month
prior to the month of such Distribution Date (after giving effect to
prepayments received in the Prepayment Period related to such prior Due Date).
In no event will the Senior Percentage be greater than 100%.
Senior Prepayment Percentage: As to the Senior Certificates and any
Distribution Date during the seven years beginning on the first Distribution
Date, 100%. The Senior Prepayment Percentage for any Distribution Date
occurring on or after the seventh anniversary of the first Distribution Date
will, except as provided herein, be as follows: for any Distribution Date in
the first year thereafter, the Senior Percentage plus 70% of the Subordinated
Percentage for such Distribution Date; for any Distribution Date in the second
year thereafter, the Senior Percentage plus 60% of the Subordinated Percentage
for such Distribution Date; for any Distribution Date in the third year
thereafter, the Senior Percentage plus 40% of the Subordinated Percentage for
such Distribution Date; for any Distribution Date in the fourth year
thereafter, the Senior Percentage plus 20% of the Subordinated Percentage for
such Distribution Date; and for any Distribution Date thereafter, the Senior
Percentage for such Distribution Date (unless on any Distribution Date the
Senior Percentage exceeds the Senior Percentage as of the Closing Date, in
which case the Senior Prepayment Percentage for such Distribution Date will
once again equal 100%). Notwithstanding the foregoing, no decrease in any
Senior Prepayment Percentage will occur unless (i) both of the Senior Step
Down Conditions are satisfied and (ii) if the Two Times Test is satisfied on a
Distribution Date, (a) on or before the Distribution Date in December 2008,
the Senior Prepayment Percentage will equal the Senior Percentage plus 50% of
the Pro Rata Subordinated Percentage and (b) after the Distribution Date in
December 2008, the Senior Prepayment Percentage will equal the Senior
Percentage.
Senior Principal Distribution Amount: As to any Distribution Date,
the sum of (i) the sum, not less than zero, of the Senior Percentage of all
amounts described in clauses (a) through (d) of the definition of Principal
Amount for such Distribution Date, (ii) with respect to any Mortgage Loan that
became a Liquidated Mortgage Loan during the calendar month preceding
35
the month of such Distribution Date, the lesser of (x) the Senior Percentage
of the Stated Principal Balance of such Mortgage Loan and (y) either (A) the
Senior Prepayment Percentage of the amount of the Liquidation Proceeds
allocable to principal received on the Mortgage Loan, or (B) if an Excess Loss
was sustained with respect to such Liquidated Mortgage Loan during such prior
calendar month, the Senior Percentage, of the amount of the Liquidation
Proceeds allocable to principal received with respect to such Mortgage Loan,
and (iii) the sum of (x) the Senior Prepayment Percentage of the amounts
described in clause (f) of the definition of Principal Amount for such
Distribution Date plus (y) the Senior Prepayment Percentage of any Subsequent
Recoveries described in clause (g) of the definition of Principal Amount for
such Distribution Date; provided, however, that if a Bankruptcy Loss that is
an Excess Loss is sustained on a Mortgage Loan that is not a Liquidated
Mortgage Loan, the Senior Principal Distribution Amount will be reduced on the
related Distribution Date by the Senior Percentage of the principal portion of
such Bankruptcy Loss.
Senior Step Down Conditions: With respect any Distribution Date: (i)
the outstanding principal balance of all Mortgage Loans delinquent 60 days or
more on such Distribution Date (including any Mortgage Loans in foreclosure,
REO Property and Mortgage Loans the mortgagors of which are in bankruptcy)
(averaged over the preceding six month period), as a percentage of the
aggregate Class Principal Balance of the Subordinated Certificates, does not
equal or exceed 50%, and (ii) cumulative Realized Losses on the Mortgage Loans
as of such Distribution Date do not exceed: (a) commencing with the
Distribution Date on the seventh anniversary of the first Distribution Date,
30% of the Original Subordinate Principal Balance, (b) commencing with the
Distribution Date on the eighth anniversary of the first Distribution Date,
35% of the Original Subordinate Principal Balance, (c) commencing with the
Distribution Date on the ninth anniversary of the first Distribution Date, 40%
of the Original Subordinate Principal Balance, (d) commencing with the
Distribution Date on the tenth anniversary of the first Distribution Date, 45%
of the Original Subordinate Principal Balance, and (e) commencing with the
Distribution Date on the eleventh anniversary of the first Distribution Date,
50% of the Original Subordinate Principal Balance.
Senior Termination Date: The Distribution Date on which the aggregate
Class Principal Balance of the Senior Certificates has been reduced to zero.
Servicer: Each Servicer under a Purchase and Servicing Agreement, and
its respective successors and assigns. As of the Closing Date, the Servicers
of the Mortgage Loans shall be GMAC Mortgage Corporation, HSBC Mortgage
Corporation (USA), Xxxxxx Xxxxxxx Credit Corporation, Wachovia Mortgage
Corporation and Xxxxx Fargo Bank, National Association.
Servicer Advance: A "Servicer Advance" or "Servicing Advance" as
defined in the applicable Purchase and Servicing Agreement.
Servicing Fee: As to any Distribution Date and each Mortgage Loan, an
amount equal to the product of (a) one-twelfth of the related Servicing Fee
Rate and (b) the Stated Principal Balance of such Mortgage Loan as of the
first day of the related Due Period.
Servicing Fee Rate: With respect to each Mortgage Loan and any
Distribution Date, the per annum rate specified in the related Purchase and
Servicing Agreement.
36
Servicing Officer: Any officer of the related Servicer involved in,
or responsible for, the administration and servicing of the related Mortgage
Loans whose name and facsimile signature appear on a list of servicing
officers furnished to the Master Servicer by the related Servicer on the
Closing Date pursuant to the related Purchase and Servicing Agreement, as such
list may from time to time be amended.
Shift Percentage: Not applicable.
Special Hazard Coverage Termination Date: The point in time at
which the related Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss: Any Realized Loss suffered by a Mortgaged
Property on account of direct physical loss, as reported by the related
Servicer to the Master Servicer, but not including (i) any loss of a type
covered by a hazard insurance policy or a flood insurance policy required to
be maintained with respect to such Mortgaged Property to the extent of the
amount of such loss covered thereby, or (ii) any loss caused by or resulting
from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of
the Trustee, the Master Servicer or any of their agents or employees
(without regard to any portion of the loss not covered by any errors
and omissions policy);
(c) errors in design, faulty workmanship or faulty
materials, unless the collapse of the property or a part thereof
ensues and then only for the ensuing loss;
(d) nuclear or chemical reaction or nuclear radiation or
radioactive or chemical contamination, all whether controlled or
uncontrolled, and whether such loss be direct or indirect, proximate
or remote or be in whole or in part caused by, contributed to or
aggravated by a peril covered by the definition of the term "Special
Hazard Loss;"
(e) hostile or warlike action in time of peace and war,
including action in hindering, combating or defending against an
actual, impending or expected attack:
1. by any government or sovereign power, de jure or
de facto, or by any authority maintaining or using military,
naval or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power,
authority or forces;
(f) any weapon of war employing nuclear fission, fusion or
other radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped
power or action taken by governmental authority in hindering,
combating or defending against such an occurrence, seizure or
destruction under quarantine or customs regulations, confiscation by
order of
37
any government or public authority or risks of contraband or illegal
transportation or trade.
Special Hazard Loss Coverage Amount: With respect to the first
Distribution Date, $5,360,159. With respect to any Distribution Date after the
first Distribution Date, the lesser of (a) the greatest of (i) 1% of the
aggregate of the principal balances of the Mortgage Loans, (ii) twice the
principal balance of the largest Mortgage Loan in the Trust Fund and (iii) the
aggregate of the principal balances of all Mortgage Loans secured by Mortgaged
Properties located in the single California postal zip code area having the
highest aggregate principal balance of any such zip code area and (b) the
related Special Hazard Loss Coverage Amount as of the Closing Date less the
amount, if any, of Special Hazard Losses allocated to the Certificates since
the Closing Date. All principal balances for the purpose of this definition
will be calculated as of the first day of the calendar month preceding the
month of such Distribution Date after giving effect to Scheduled Payments on
the Mortgage Loans then due, whether or not paid.
Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which
a Special Hazard Loss has occurred.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date as
specified in the amortization schedule at the time relating thereto (before
any adjustment to such amortization schedule by reason of any moratorium or
similar waiver or grace period) after giving effect to any previous partial
Principal Prepayments and Liquidation Proceeds allocable to principal (other
than with respect to any Liquidated Mortgage Loan) and to the payment of
principal due on such Due Date and irrespective of any delinquency in payment
by the related Mortgagor.
Subordinated Certificates: As specified in the Preliminary Statement.
Subordinated Percentage: As to any Distribution Date , 100% minus the
Senior Percentage for such Distribution Date.
Subordinated Prepayment Percentage: As to any Distribution Date, 100%
minus the Senior Prepayment Percentage for such Distribution Date.
Subordinated Principal Distribution Amount: With respect to any
Distribution Date and the Subordinated Certificates, the sum of the following
amounts: an amount equal to the sum of (i) the Subordinated Percentage of all
amounts described in clauses (a) through (d) of the definition of "Principal
Amount" for such Distribution Date, (ii) with respect to each Mortgage Loan
that became a Liquidated Mortgage Loan during the calendar month preceding the
month of such Distribution Date, the amount of the Liquidation Proceeds
allocated to principal received with respect thereto remaining after
application thereof pursuant to clause (ii) of the definition of "Senior
Principal Distribution Amount", up to the Subordinated Percentage of the
Stated Principal Balance of such Mortgage Loan, and (iii) the sum of the
Subordinated Prepayment Percentage of all amounts described in clause (f) of
the definition of "Principal Amount" for such Distribution Date, and (iv) the
Subordinated Prepayment Percentage of any Subsequent
38
Recoveries described in clause (g) of the definition of Principal Amount for
such Distribution Date.
Subsequent Recoveries: As to any Distribution Date, with respect to a
Liquidated Mortgage Loan that resulted in a Realized Loss in a prior calendar
month, amounts received by the Securities Administrator from the related
Servicer (net of any related expenses permitted to be reimbursed pursuant to
Section 4.02) specifically related to such Liquidated Mortgage Loan.
Subsidiary REMIC: As specified in the Preliminary Statement.
Subsidiary REMIC Interest: As specified in the Preliminary Statement.
Subsidiary REMIC Regular Interest: As specified in the Preliminary
Statement.
Substitution Adjustment Amount: As defined in the second paragraph of
Section 2.05(b).
Targeted Balance: With respect to any group of Targeted Principal
Classes or Components in the aggregate and any Distribution Date appearing in
Schedule B hereto, the Aggregate Targeted Balance for such group and
Distribution Date. With respect to any other Targeted Principal Class or
Component and any Distribution Date appearing in Schedule B hereto, the
applicable amount appearing opposite such Distribution Date for such Class or
Component.
Tax Matters Person: The person designated as "tax matters person" in
the manner provided under Treasury regulation ss. 1.860F-4(d) and temporary
Treasury regulation ss.301.6231(a)(7)1T. Initially, the Tax Matters Person
shall be the Securities Administrator.
Tax Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.01.
Trust Fund: The corpus of the trust created pursuant to this
Agreement consisting of (i) the Mortgage Loans and all interest and principal
received on or with respect thereto after the Cut-off Date (other than
Scheduled Payments due on or prior to the Cut-off Date) to the extent not
applied in computing the Cut-off Date Principal Balance thereof; (ii) all
cash, instruments or property held or required to be held in the Custodial
Accounts and the Distribution Account and all amounts deposited therein
pursuant to the applicable provisions of this Agreement; (iii) property that
secured a Mortgage Loan and has been acquired by foreclosure, deed-in-lieu of
foreclosure or otherwise; (iv) the Depositor's rights assigned to the Trustee
under the Purchase and Servicing Agreements, as modified by the
Acknowledgements and the Custodial Agreements; (v) the pledge, control and
guaranty agreements and the Limited Purpose Surety Bond relating to the
Additional Collateral Mortgage Loans; (vi) the Corridor Contracts and the
amounts on deposit in the Reserve Fund; (vii) all insurance policies related
to the Mortgage Loans and any insurance proceeds; and (viii) all proceeds of
the conversion, voluntary or involuntary, of any of the foregoing.
Trustee: Deutsche Bank National Trust Company, a national banking
association, organized under the laws of the United States and any Person
succeeding the Trustee hereunder,
39
or if any successor trustee or any co-trustee shall be appointed as herein
provided, then such successor trustee and such co-trustee, as the case may be.
Trustee Mortgage Files: With respect to each Mortgage Loan, the
Mortgage Documents to be retained in the custody and possession of the Trustee
or Custodian on behalf of the Trustee.
Two Times Test: As to any Distribution Date and the Subordinated
Certificates, a test which is satisfied if (i) the aggregate Class Principal
Balance of the Subordinated Certificates immediately prior to that
Distribution Date is at least 200% of the aggregate Class Principal Balance of
the Subordinated Certificates as of the Closing Date, (ii) the outstanding
aggregate Stated Principal Balance of all Mortgage Loans delinquent 60 days or
more (averaged over the preceding six month period), as a percentage of the
aggregate Class Principal Balance of the Subordinated Certificates, does not
equal or exceed 50% and (iii) the cumulative Realized Losses on all the
Mortgage Loans do not exceed (x) with respect to any Distribution Date on or
prior to December 2008, 20% of the related Original Subordinate Principal
Balance or (y) with respect to any Distribution Date after December 2008, 30%
of the related Original Subordinate Principal Balance.
UCC: The Uniform Commercial Code as enacted in the relevant
jurisdiction.
Underwriter's Exemption: Prohibited Transaction Exemption 2002-41, 67
Fed. Reg. 54487 (2002), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
Underwriter: As specified in the Preliminary Statement.
Unscheduled Principal Distribution Amount: Not applicable.
Uniform Commercial Code: The Uniform Commercial Code as in effect in
any applicable jurisdiction from time to time.
Voting Interests: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement,
1.00% of all Voting Interests shall be allocated to each Class of Notional
Amount Certificates and the Class A-R Certificates. Voting Interests shall be
allocated among all other Classes of Certificates pro rata based on Class
Principal Balances for each Class then outstanding. Voting Interests shall be
allocated among the Certificates within each such Class in proportion to their
Certificate Balances or Percentage Interests.
Wachovia Purchase and Servicing Agreement: The Seller's Purchase,
Warranties and Servicing Agreement listed in Exhibit E hereto between the
Seller and Wachovia Mortgage Corporation.
Wachovia Serviced Mortgage Loan: Each Mortgage Loan originated and
serviced by Wachovia Mortgage Corporation and listed on the Mortgage Loan
Schedule.
40
Weighted Average Net Mortgage Rate: As to any Distribution Date, the
average of the Net Mortgage Rate of each Mortgage Loan, weighted on the basis
of its Stated Principal Balance as of the end of the Prepayment Period related
to the immediately preceding Distribution Date.
WF Purchase and Servicing Agreement: The Seller's Warranties and
Servicing Agreement listed in Exhibit E hereto between the Seller and Xxxxx
Fargo Bank, N.A., as originator.
WF Serviced Mortgage Loan: Each Mortgage Loan serviced by Xxxxx Fargo
Bank, N.A. and listed on the Mortgage Loan Schedule.
41
ARTICLE II
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01 Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans.
(a) Concurrently with the execution and delivery of this Agreement,
the Depositor does hereby transfer, assign, set over, deposit with and
otherwise convey to the Trustee, without recourse, subject to Sections 2.02
and 2.05, in trust, all the right, title and interest of the Depositor in and
to the Trust Fund. Such conveyance includes, without limitation, (i) the
Mortgage Loans, including the right to all payments of principal and interest
received on or with respect to the Mortgage Loans on and after the Cut-off
Date (other than Scheduled Payments due on or before such date), and all such
payments due after such date but received prior to such date and intended by
the related Mortgagors to be applied after such date; (ii) all of the
Depositor's right, title and interest in and to all amounts from time to time
credited to and the proceeds of the Distribution Account, any Custodial
Accounts or any Escrow Account established with respect to the Mortgage Loans;
(iii) all of the rights and obligations of the Depositor as assignee of the
Seller with respect to the Seller's rights and obligations under the Purchase
and Servicing Agreements pursuant to the Acknowledgements; (iv) all of the
Depositor's right, title or interest in REO Property and the proceeds thereof;
(v) all of the Depositor's rights under any Insurance Policies related to the
Mortgage Loans; (vi) $200 (which amount has been delivered by the Depositor to
the Securities Administrator to be held in the Distribution Account until
distributed to the Holders of the Class P and Class C Certificates pursuant to
Section 5.02(a)); and (vii) if applicable, the Depositor's security interest
in any collateral pledged to secure the Mortgage Loans, including the
Mortgaged Properties and any Additional Collateral relating to the Additional
Collateral Mortgage Loans, including, but not limited to, the pledge, control
and guaranty agreements and the Limited Purpose Surety Bond, to have and to
hold, in trust; and the Trustee declares that, subject to the review provided
for in Section 2.02, it has received and shall hold the Trust Fund, as
trustee, in trust, for the benefit and use of the Holders of the Certificates
and for the purposes and subject to the terms and conditions set forth in this
Agreement, and, concurrently with such receipt, has caused to be executed,
authenticated and delivered to or upon the order of the Depositor, in exchange
for the Trust Fund, Certificates in the authorized denominations evidencing
the entire ownership of the Trust Fund.
The foregoing sale, transfer, assignment, set-over, deposit and
conveyance does not and is not intended to result in the creation or
assumption by the Trustee of any obligation of the Depositor, the Seller or
any other Person in connection with the Mortgage Loans or any other agreement
or instrument relating thereto except as specifically set forth therein.
In connection with such transfer and assignment of the Mortgage
Loans, the Custodian acting on the Trustee's behalf will continue to hold the
documents or instruments listed below with respect to each Mortgage Loan
(each, a "Trustee Mortgage File") so transferred and assigned:
42
(i) with respect to each Mortgage Loan, the original Mortgage Note
endorsed without recourse in proper form to the order of the Trustee, or in
blank (in each case, with all necessary intervening endorsements, as
applicable);
(ii) with respect to each Mortgage Loan (other than a Cooperative
Loan) that is not a MERS Mortgage Loan, the original Mortgage with evidence of
recording thereon, or if the original Mortgage has not yet been returned from
the recording office, a copy of such Mortgage certified by the applicable
Originator, title company, escrow agent or closing attorney to be a true copy
of the original of the Mortgage which has been sent for recording in the
appropriate jurisdiction in which the Mortgaged Property is located, and in
the case of the each MERS Mortgage Loan, the original Mortgage, noting the
presence of the MIN of the Mortgage Loans and either language indicating that
the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan or if the
Mortgage Loan was not a MOM Loan at origination, the original Mortgage and the
assignment thereof to MERS, with evidence of recording indicated thereon;
(iii) with respect to each Mortgage Loan (other than a Cooperative
Loan) that is not a MERS Mortgage Loan, the Assignment of Mortgage in form and
substance acceptable for recording in the relevant jurisdiction, such
assignment being either (A) in blank, without recourse, or (B) endorsed to
"Deutsche Bank National Trust Company, as Trustee of Xxxxxx Xxxxxxx Mortgage
Loan Trust 2005-11AR, Mortgage Pass-Through Certificates, without recourse";
(iv) with respect to each Mortgage Loan (other than a Cooperative
Loan) that is not a MERS Mortgage Loan, the originals of all intervening
assignments of the Mortgage, if any, with evidence of recording thereon, or if
the original intervening assignment has not yet been returned from the
recording office, a copy of such assignment certified by the applicable
Originator, title company, escrow agent or closing attorney to be a true copy
of the original of the assignment which has been sent for recording in the
appropriate jurisdiction in which the Mortgaged Property is located;
(v) with respect to each Mortgage Loan (other than a Cooperative
Loan), the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(vi) if any, with respect to each Mortgage Loan (other than a
Cooperative Loan), the original policy of title insurance (or a true copy
thereof) with respect to any such Mortgage Loan, or, if such policy has not
yet been delivered by the insurer, the title commitment or title binder to
issue same;
(vii) if any, with respect to each Mortgage Loan (other than a
Cooperative Loan), the original power of attorney and guaranty agreement with
respect to such Mortgage Loan;
(viii) [reserved];
(ix) with respect to each Mortgage Loan which constitutes a
Cooperative Loan:
(a) the original of any security agreement or similar document
executed in connection with the Cooperative Loan;
43
(b) the original Recognition Agreement and the original Assignment of
Recognition Agreement;
(c) UCC-1 financing statements with recording information thereon
from the appropriate governmental recording offices if necessary to perfect
the security interest of the Cooperative Loan under the Uniform Commercial
Code in the jurisdiction in which the Cooperative Property is located,
accompanied by UCC-3 financing statements executed in blank for recordation of
the change in the secured party thereunder;
(d) an Estoppel Letter and/or Consent;
(e) a search for (i) federal tax liens, mechanics' liens, lis
pendens, judgments of record or otherwise against (x) the Cooperative
Corporation and (y) the seller of the Cooperative Unit, (ii) filings of
financing statements and (iii) the deed of the cooperative project into the
Cooperative Corporation;
(f) the guaranty of the Mortgage Note and Cooperative Loan, if any;
(g) the original Proprietary Lease and the Assignment of Proprietary
Lease executed by the Mortgagor in blank or if the Proprietary Lease has been
assigned by the Mortgagor to the Seller, then the Seller must execute an
assignment of the Assignment of Proprietary Lease in blank; and
(h) if any, the original or certified copy of the certificates
evidencing ownership of the Cooperative Shares issued by the Cooperative
Corporation and related assignment of such certificates or an assignment of
such Cooperative Shares, in blank, executed by the Mortgagor with such
signature guaranteed;
(x) [reserved]; and
(xi) any other document or instruments required to be delivered under
the related Custodial Agreement.
In addition, in connection with the assignment of any MERS Mortgage
Loan, it is understood that the related Originator will cause the MERS(R)
System to indicate that such Mortgage Loans have been assigned by the related
Originator to the Trustee in accordance with this Agreement for the benefit of
the Certificateholders by including (or deleting, in the case of Mortgage
Loans which are repurchased in accordance with this Agreement) in such
computer files the information required by the MERS(R) System to identify the
series of Certificates issued in connection with such Mortgage Loans. It is
further understood that the related Originator will not, and the Master
Servicer hereby agrees that it will not alter the information referenced in
this paragraph with respect to any Mortgage Loan during the term of this
Agreement unless and until such Mortgage Loan is repurchased in accordance
with the terms of this Agreement.
(b) As soon as is practicable after the Closing Date, the Depositor
shall cause the Servicer of any Additional Collateral Mortgage Loan to deliver
to the applicable Custodian the Assignment and Notice of Transfer with respect
to each Additional Collateral Mortgage Loan
44
as well as the assignments of any rights with respect to each Additional
Collateral Mortgage Loan under any Limited Purpose Surety Bond.
(c) In instances where a title insurance policy is required to be
delivered to the applicable Custodian on behalf of the Trustee and is not so
delivered, the Depositor will provide a copy of such title insurance policy to
the applicable Custodian on behalf of the Trustee, as promptly as practicable
after the execution and delivery hereof, but in any case within 180 days of
the Closing Date.
(d) For Mortgage Loans (if any) that 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, herewith delivers such amount to the
Securities Administrator, and delivers to the Securities Administrator, the
Trustee, and the applicable Custodian, an Officer's Certificate which shall
include a statement to the effect that all amounts received in connection with
such prepayment that are required to be deposited in the Distribution Account
pursuant to Section 4.01 have been so deposited. All original documents that
are not delivered to the applicable Custodian on behalf of the Trustee shall
be held by the Master Servicer or the related Servicer in trust for the
benefit of the Trustee and the Certificateholders.
(e) Neither the Depositor nor the Trust will acquire or hold any
Mortgage Loan that would violate the representations made by the Seller set
forth in clauses (iv) through (ix) of Section 2.05(b) hereof.
Section 2.02 Acceptance of Trust Fund by Trustee; Review of
Documentation for Trust Fund.
(a) The Trustee, by execution and delivery hereof, acknowledges
receipt by it of notice from each of the Custodians that each holds the
documents identified in the Initial Custodial Certification in the form
annexed hereto as Exhibit L-1 (the "Initial Custodial Certification")
pertaining to the Mortgage Loans listed on the Mortgage Loan Schedule.
(b) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee, any Custodian or the
Certificateholders of any unsatisfied duty, claim or other liability on any
Mortgage Loan or to any Mortgagor.
(c) Each of the parties hereto acknowledges that (i) the Custodian
has delivered to the Depositor, the Master Servicer and the Trustee, the
Initial Custodial Certification, in the form annexed hereto as Exhibit L-1,
stating that it has performed the applicable review of the Mortgage Loans as
required herein and in the Custodial Agreements on the Closing Date and (ii)
thereafter, if applicable, the Custodian shall perform the applicable review
of the Mortgage Loans and deliver the further certifications (including but
not limited to the Final Custodial Certification) as provided herein and in
the applicable Custodial Agreements.
With respect to the MSMCI Mortgage Loans only, not later than 180
days after the Closing Date, the Trustee shall cause the related Custodian, to
the extent required by the related Custodial Agreement, to deliver to the
Depositor, the Master Servicer and the Trustee a Final Custodial Certification
in the form annexed hereto as Exhibit L-2 (the "Final Custodial
Certification"), with any applicable exceptions noted thereon. To the extent
that a Custodian
45
must deliver a Final Certification under the related Custodial Agreement, the
Trustee shall cause that Custodian to make available, upon request of any
Certificateholder, a copy of any exceptions noted on the related Initial
Custodial Certification or the related Final Custodial Certification.
(d) Upon execution of this Agreement, the Depositor hereby delivers
to the Trustee (with a copy to the Securities Administrator) and the Trustee
acknowledges receipt of the Acknowledgements, together with the related
Purchase and Servicing Agreements.
Section 2.03 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for
the benefit of the Certificateholders, and to the Master Servicer and the
Securities Administrator as of the Closing Date or such other date as is
specified, that:
(i) the Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its creation
and existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, to enter
into and perform its obligations under this Agreement, and to create
the trust pursuant hereto;
(ii) 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; 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 certificate of incorporation or bylaws of the
Depositor;
(iii) 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 such as has been obtained, given,
effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by
the Depositor and, assuming due authorization, execution and delivery
by the Trustee, the Master Servicer and the Securities Administrator,
constitutes a valid and binding obligation of the Depositor
enforceable against it in accordance with its terms except as such
enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of
the rights of creditors generally and (B) general principles of
equity regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) there are no actions, suits or proceedings pending or,
to the knowledge of the Depositor, threatened or likely to be
asserted against or affecting the Depositor, before or by any court,
administrative agency, arbitrator or governmental body (A) with
respect to any of the transactions contemplated by this Agreement or
(B) with respect to
46
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 it or its
business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this
Agreement;
(vi) immediately prior to the transfer and assignment of the
Mortgage Loans to the Trustee, the Depositor was the sole owner of
record and holder of each Mortgage Loan, and the Depositor had good
and marketable title thereto, and had full right to transfer and sell
each Mortgage Loan to the Trustee free and clear, subject only to (1)
liens of current real property taxes and assessments not yet due and
payable and, if the related Mortgaged Property is a condominium unit,
any lien for common charges permitted by statute, (2) covenants,
conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording of such Mortgage
acceptable to mortgage lending institutions in the area in which the
related Mortgaged Property is located and specifically referred to in
the lender's title insurance policy or attorney's opinion of title
and abstract of title delivered to the originator of such Mortgage
Loan, and (3) such other matters to which like properties are
commonly subject which do not, individually or in the aggregate,
materially interfere with the benefits of the security intended to be
provided by the Mortgage, of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest, and had
full right and authority, subject to no interest or participation of,
or agreement with, any other party, to sell and assign each Mortgage
Loan pursuant to this Agreement;
(vii) This Agreement creates a valid and continuing security
interest (as defined in the applicable Uniform Commercial Code (the
"UCC"), in the Mortgage Loans in favor of the Trustee, which security
interest is prior to all other liens, and is enforceable as such
against creditors of and purchasers from the Depositor;
(viii) The Mortgage Loans constitute "instruments" within
the meaning of the applicable UCC;
(ix) Other than the security interest granted to the Trustee
pursuant to this Agreement, the Depositor has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of
the Mortgage Loans. The Depositor has not authorized the filing of
and is not aware of any financing statement against the Depositor
that includes a description of the collateral covering the Mortgage
Loans other than a financing statement relating to the security
interest granted to the Trustee hereunder or that has been
terminated. The Depositor is not aware of any judgment or tax lien
filings against the Depositor;
(x) None of the Mortgage Loans have any marks or notations
indicating that such Mortgage Loans have been pledged, assigned or
otherwise conveyed to any Person other than the Trustee; and
(xi) The Depositor has received all consents and approvals
required by the terms of the Mortgage Loans to convey the Mortgage
Loans hereunder to the Trustee.
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The foregoing representations made in this Section 2.03 shall survive
the termination of this Agreement and shall not be waived by any party hereto.
Section 2.04 Representations and Warranties of the Depositor
and the Seller as to the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with
respect to the Mortgage Loans or each Mortgage Loan, as the case may be, as of
the date hereof or such other date set forth herein that as of the Closing
Date:
(a) Immediately prior to the transfer and assignment contemplated
herein, the Depositor was the sole owner and holder of the Mortgage Loans. The
Mortgage Loans were not assigned or pledged by the Depositor and the Depositor
had good and marketable title thereto, and the Depositor had full right to
transfer and sell the Mortgage Loans to the Trustee free and clear of any
encumbrance, participation interest, lien, equity, pledge, claim or security
interest and had full right and authority subject to no interest or
participation in, or agreement with any other party to sell or otherwise
transfer the Mortgage Loans.
(b) As of the Closing Date, the Depositor has transferred all right,
title and interest in the Mortgage Loans to the Trustee on behalf of the
Trust.
(c) As of the Closing Date, the Depositor has not transferred the
Mortgage Loans to the Trustee on behalf of the Trust with any intent to
hinder, delay or defraud an of its creditors.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the respective
Mortgage Files to the Trustee or the Custodian and shall inure to the benefit
of the Trustee, notwithstanding any restrictive or qualified endorsement or
assignment.
Section 2.05 Representations and Warranties of the Seller; Discovery
of Breach; Repurchase or Substitution of Mortgage Loans.
(a) With respect to the MSMCI Mortgage Loans the Seller hereby makes
the representations and warranties contained in Section 3.01 of the MSMCI
Purchase Agreement to and for the benefit of the Depositor, the Trustee and
the Trust Fund.
The Seller hereby represents and warrants that no Mortgage Loan
contains a provision whereby the related mortgagor is permitted to convert the
Mortgage Rate from an adjustable rate to a fixed rate.
With respect to the FNBN Mortgage Loans the Seller hereby makes the
representations and warranties contained in Section 9.02 of the FNBN Purchase
Agreement (other than the representation contained in Section 9.02(b) of the
FNBN Purchase Agreement) to and for the benefit of the Depositor, the Trustee
and the Trust Fund. With respect to the FNBN Mortgage Loans the Seller hereby
represents and warrants to and for the benefit of the Depositor, the Trustee
and the Trust Fund that all payments due on or prior to the Cut-off Date for
each FNBN Mortgage Loan have been made as of the Closing Date, such FNBN
Mortgage Loan is not delinquent thirty (30) days or more in payment and has
not been dishonored; there are no
48
material defaults under the terms of such FNBN Mortgage Loan; the Seller has
not advanced funds, or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the Mortgaged Property subject to
the Mortgage, directly or indirectly, for the payment of any amount required
by any FNBN Mortgage Loan; as to each FNBN Mortgage Loan, there has been no
more than one thirty (30) day delinquency during the immediately preceding
thirty-day period. The Seller agrees to comply with the provisions of this
Section 2.05 in respect of a breach of any of such representations and
warranties.
With respect to the Wachovia Serviced Mortgage Loans the Seller
hereby makes the representations and warranties contained in Section 3.02 of
the Wachovia Purchase Agreement (other than the representation contained in
Section 3.02(d) of the Wachovia Purchase Agreement) to and for the benefit of
the Depositor, the Trustee and the Trust Fund. With respect to the Wachovia
Serviced Mortgage Loans the Seller hereby represents and warrants to and for
the benefit of the Depositor, the Trustee and the Trust Fund that all payments
due on or prior to the Cut-off Date for each Wachovia Serviced Mortgage Loan
have been made as of the Closing Date, such Wachovia Serviced Mortgage Loan is
not delinquent thirty (30) days or more in payment and has not been
dishonored; there are no material defaults under the terms of such Wachovia
Serviced Mortgage Loan; the Seller has not advanced funds, or induced,
solicited or knowingly received any advance of funds from a party other than
the owner of the Mortgaged Property subject to the Mortgage, directly or
indirectly, for the payment of any amount required by any Wachovia Serviced
Mortgage Loan; as to each Wachovia Serviced Mortgage Loan, there has been no
more than one thirty (30) day delinquency during the immediately preceding
thirty-day period. The Seller agrees to comply with the provisions of this
Section 2.05 in respect of a breach of any of such representations and
warranties.
With respect to the WF Serviced Mortgage Loans originated by WF
Servicer, the Seller hereby makes the representations and warranties contained
in Section 3.02 of the WF Purchase and Servicing Agreement, other than 3.02(b)
with respect to each of the WF Serviced Mortgage Loans originated by WF
Servicer to and for the benefit of the Depositor, the Trustee and the Trust
Fund. The Seller agrees to comply with the provisions of Section 3.03 of the
WF Purchase and Servicing Agreement in respect of a breach of any of such
representations and warranties. In addition, with respect to the WF Serviced
Mortgage Loans originated by WF Servicer, the Seller hereby represents and
warrants that (i) each such Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code and (ii) there has been no more than
one thirty (30) day delinquency on such Mortgage Loan during the immediately
preceding thirty-day period. The Seller agrees to comply with the provisions
of this Section 2.05 in respect of a breach of any of such representations and
warranties.
The Seller hereby represents and warrants to the Trustee with respect
to the Mortgage Loans as of the date hereof or such other date set forth
herein that as of the Closing Date:
(i) Each Mortgage Loan at origination complied in all
material respects with applicable predatory and abusive lending laws
and consummation of the transactions contemplated by this Agreement
will not involve the violation of any such laws.
49
(ii) All of the Mortgage Loans were originated in compliance
with all applicable laws, including, but not limited to, all
applicable anti-predatory and abusive lending laws.
(iii) None of the Mortgage Loans is covered by the Home
Ownership and Equity Protection Act of 1994 ("HOEPA").
(iv) None of the Mortgage Loans is a "high cost" loan as
defined by applicable predatory and abusive lending laws.
(v) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable, and with respect to the foregoing, the terms "High Cost
Loan" and "Covered Loan" have the meaning assigned to them in the
then current version of Standard & Poor's LEVELS(R), which is now
Version 5.6c Glossary Revised, Appendix E which is attached hereto as
Exhibit Q (the "Glossary") where (x) a "High Cost Loan" is each loan
identified in the column "Category under applicable anti-predatory
lending law" of the table entitled "Standard & Poor's High Cost Loan
Categorization" in the Glossary as each such loan is defined in the
applicable anti-predatory lending law of the State or jurisdiction
specified in such table and (y) a "Covered Loan" is each loan
identified in the column "Category under applicable anti-predatory
lending law" of the table entitled "Standard & Poor's High Covered
Loan Categorization" in the Glossary as each such loan is defined in
the applicable anti-predatory lending law of the State or
jurisdiction specified in such table.
(vi) No Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act.
Upon discovery by the Depositor, the Seller or the related Originator
or receipt of written notice of any materially defective document in, or,
following the date of delivery to the Trustee of the Custodian's
certifications as required under the related Custodial Agreements, that a
document is missing from, a Trustee Mortgage File, or discovery by the
Trustee, the Depositor, the Seller or the related Originator of the breach by
such Originator or Seller of any representation or warranty under the related
Purchase and Servicing Agreement, as modified by the Acknowledgement, in the
case of the Originator, or under this Agreement, in the case of the Seller, in
respect of any Mortgage Loan which materially adversely affects the value of
that Mortgage Loan or the interest therein of the Certificateholders (a
"Defective Mortgage Loan") (each of the Depositor, the Seller and the related
Originator hereby agreeing to give written notice thereof to the Trustee and
the other of such parties), the Trustee, or its designee, shall promptly
notify the Depositor and the Seller or the related Originator, as applicable,
in writing of such nonconforming or missing document or breach and request
that the Seller or related Originator deliver such missing document or cure or
cause the cure of such defect or breach within a period of time specified in
the related Purchase and Servicing Agreement, and if the Seller or related
Originator, as applicable, does not deliver such missing document or cure such
defect or breach in all material respects during such period, the Trustee,
shall enforce the obligations of the related Originator under the related
Purchase and Servicing Agreement, as modified by the Acknowledgement, or the
Seller under this Agreement, as applicable, and cause the related Originator
or the Seller, as the case may be, to repurchase that Mortgage Loan from
50
the Trust Fund at the Purchase Price on or prior to the Determination Date
following the expiration of such specified period (subject to Section 2.05(c)
below); provided, however, that, in connection with any such breach that could
not reasonably have been cured within such specified period (unless permitted
a greater period of time to cure under the related Purchase and Servicing
Agreement), subject to Section 2.05(c) below, if the related Originator or the
Seller, as applicable, shall have commenced to cure such breach within such
specified period, the related Originator or the Seller shall be permitted to
proceed thereafter diligently and expeditiously to cure the same within such
additional time as is reasonably necessary to cure such breach. To the extent
that the amount by which the Purchase Price (as defined in this Agreement)
exceeds the repurchase price payable by the related Originator under the
related Purchase and Servicing Agreement, including any costs and damages are
incurred by the Trust Fund as a result of any violation of any applicable
federal, state, or local predatory or abusive lending law arising from or in
connection with the origination of any Mortgage Loan repurchased by the
related Originator or the Seller the payment of such excess shall be borne by
the Seller. The Purchase Price for the repurchased Mortgage Loan shall be
deposited in the related Distribution Account, and the Trustee, or its
designee, upon receipt of written certification from the Securities
Administrator of such deposit, shall release or cause the Custodian to release
to the related Originator or the Seller, as applicable, the related Trustee
Mortgage File and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, representation or warranties, as
either party shall furnish to it and as shall be necessary to vest in such
party any Mortgage Loan released pursuant hereto and the Trustee, or its
designee, shall have no further responsibility with regard to such Trustee
Mortgage File (it being understood that the Trustee shall have no
responsibility for determining the sufficiency of such assignment for its
intended purpose). If pursuant to the foregoing provisions the related
Originator or the Seller repurchases a Mortgage Loan that is a MERS Mortgage
Loan, the related Servicer shall cause MERS to designate on the MERS(R) System
the related Originator or the Seller, as applicable, as the beneficial holder
of such Mortgage Loan.
In lieu of repurchasing any such Mortgage Loan as provided above,
either party may cause such Mortgage Loan to be removed from the Trust Fund
(in which case it shall become a Deleted Mortgage Loan) and substitute one or
more Replacement Mortgage Loans in the manner and subject to the limitations
set forth in Section 2.05(b) below. It is understood and agreed that the
obligations of the Originators and the Seller to cure or to repurchase (or to
substitute for) any related Mortgage Loan as to which a document is missing, a
material defect in a constituent document exists or as to which such a breach
has occurred and is continuing shall constitute the sole remedy against the
such party respecting such omission, defect or breach available to the Trustee
on behalf of the Certificateholders.
(b) Any substitution of Replacement Mortgage Loans for Deleted
Mortgage Loans made pursuant to Section 2.05(a) above must be effected prior
to the last Business Day that is within two years after the Closing Date. As
to any Deleted Mortgage Loan for which the related Originator or the Seller
substitutes a Replacement Mortgage Loan or Loans, such substitution shall be
effected by delivering to the Custodian, on behalf of the Trustee, for such
Replacement Mortgage Loan or Loans, the Mortgage Note, the Mortgage, any
related assignment thereof and the Acknowledgement to the Trustee, and such
other documents and agreements, with all necessary endorsements thereon,
together with an Officers' Certificate stating that each such Replacement
Mortgage Loan satisfies the definition thereof and specifying the Substitution
51
Adjustment Amount (as described below), if any, in connection with such
substitution. Monthly Payments due with respect to Replacement Mortgage Loans
in the month of substitution shall not be included as part of the Trust Fund
and shall be retained by the related Originator or the Seller, as applicable.
For the month of substitution, distributions to the Certificateholders shall
reflect the collections and recoveries in respect of such Deleted Mortgage in
the Due Period preceding the month of substitution and the related Originator
or the Seller, as applicable, shall thereafter be entitled to retain all
amounts subsequently received in respect of such Deleted Mortgage Loan. Upon
such substitution, such Replacement Mortgage Loan shall constitute part of the
Trust Fund and shall be subject in all respects to the terms of this Agreement
and the related Purchase and Servicing Agreement, as modified by the related
Acknowledgement, including all representations and warranties thereof included
in such Purchase and Servicing Agreement, as modified by the Acknowledgement,
in each case as of the date of substitution.
For any month in which an Originator or the Seller substitutes one or
more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the
related Servicer shall determine the excess (each, a "Substitution Adjustment
Amount"), if any, by which the aggregate Purchase Price of all such Deleted
Mortgage Loans exceeds the aggregate Stated Principal Balance of the
Replacement Mortgage Loans replacing such Deleted Mortgage Loans, together
with one month's interest on such excess amount at the applicable Net Mortgage
Rate. On the date of such substitution, the related Originator or Seller, as
applicable, shall deliver or cause to be delivered to the related Servicer for
deposit in the related Custodial Account an amount equal to the related
Substitution Adjustment Amount, if any, and the Custodian, on behalf of the
Trustee, upon receipt of the related Replacement Mortgage Loan or Loans and
certification by such Servicer of such deposit, shall release to the related
Originator or the Seller, as applicable, the related Trustee Mortgage File or
Files and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as the related Originator or Seller
shall deliver to it and as shall be necessary to vest therein any Deleted
Mortgage Loan released pursuant hereto.
In addition, the related Originator or the Seller, as applicable,
shall obtain at its own expense and deliver to the Trustee and the Securities
Administrator an Opinion of Counsel to the effect that such substitution
(either specifically or as a class of transactions) shall not cause an Adverse
REMIC Event. If such Opinion of Counsel cannot be delivered, then such
substitution may only be effected at such time as the required Opinion of
Counsel can be given.
(c) Upon discovery by the related Originator, the Seller, the
Depositor or the Trustee that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
party discovering such fact shall within two Business Days give written notice
thereof to the other parties. In connection therewith, the applicable party
shall repurchase or, subject to the limitations set forth in Section 2.05(b),
substitute one or more Replacement Mortgage Loans for the affected Mortgage
Loan within 90 days of the earlier of discovery or receipt of such notice with
respect to such affected Mortgage Loan. Any such repurchase or substitution
shall be made in the same manner as set forth in Section 2.05(a) above and/or
in accordance with this Section 2.05(c). The Trustee shall re-convey to the
related Originator or the Seller, as applicable, the Mortgage Loan to be
released pursuant hereto in the same manner, and on the same terms and
conditions, as it would a Mortgage Loan repurchased for breach of a
representation or warranty.
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Section 2.06 Grant Clause.
(a) It is intended that the conveyance of the Depositor's right,
title and interest in and to property constituting the Trust Fund pursuant to
this Agreement shall constitute, and shall be construed as, a sale of such
property and not a grant of a security interest to secure a loan. However, if
such conveyance is deemed to be in respect of a loan, it is intended that: (1)
the rights and obligations of the parties shall be established pursuant to the
terms of this Agreement; (2) the Depositor hereby grants to the Trustee for
the benefit of the Holders of the Certificates a first priority security
interest in all of the Depositor's right, title and interest in, to and under,
whether now owned or hereafter acquired, the Trust Fund and all proceeds of
any and all property constituting the Trust Fund to secure payment of the
Certificates; and (3) this Agreement shall constitute a security agreement
under applicable law. If such conveyance is deemed to be in respect of a loan
and the trust created by this Agreement terminates prior to the satisfaction
of the claims of any Person holding any Certificate, the security interest
created hereby shall continue in full force and effect and the Trustee shall
be deemed to be the collateral agent for the benefit of such Person, and all
proceeds shall be distributed as herein provided.
(b) The Depositor shall, to the extent consistent with this
Agreement, take such reasonable actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans
and the other property described above, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement. The
Depositor will, at its own expense, make all initial filings on or about the
Closing Date and shall forward a copy of such filing or filings to the
Trustee. Without limiting the generality of the foregoing, the Depositor shall
prepare and forward for filing, or shall cause to be forwarded for filing, at
the expense of the Depositor, all filings necessary to maintain the
effectiveness of any original filings necessary under the relevant UCC to
perfect the Trustee's security interest in or lien on the Mortgage Loans,
including without limitation (x) continuation statements, and (y) such other
statements as may be occasioned by (1) any change of name of an Originator,
the Depositor or the Trustee, (2) any change of location of the place of
business or the chief executive office of the Seller or the Depositor, (3) any
transfer of any interest of an Originator or the Depositor in any Mortgage
Loan or (4) any change under the relevant UCC or other applicable laws.
Neither the Originators nor the Depositor shall organize under the law of any
jurisdiction other than the State under which each is organized as of the
Closing Date (whether changing its jurisdiction of organization or organizing
under an additional jurisdiction) without giving 30 days prior written notice
of such action to its immediate and intermediate transferee, including the
Trustee. Before effecting such change, any Originator or the Depositor
proposing to change its jurisdiction of organization shall prepare and file in
the appropriate filing office any financing statements or other statements
necessary to continue the perfection of the interests of its immediate and
intermediate transferees, including the Trustee, in the Mortgage Loans. In
connection with the transactions contemplated by this Agreement, each of the
Originators and the Depositor authorizes its immediate or intermediate
transferee (but not the Trustee) to file in any filing office any initial
financing statements, any amendments to financing statements, any continuation
statements, or any other statements or filings described in this paragraph
(b).
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ARTICLE III
THE CERTIFICATES
Section 3.01 The Certificates.
(a) The Certificates shall be issuable in registered form only and
shall be securities governed by Article 8 of the New York Uniform Commercial
Code. The Book-Entry Certificates will be evidenced by one or more
certificates, beneficial ownership of which will be held in the dollar
denominations in Certificate Balance, or Notional Amount, as applicable, or in
the Percentage Interests, specified herein. Each Class of Certificates will be
issued in the minimum denominations and integral multiples thereof of the
initial Certificate Balance (or Notional Amount) specified in the Preliminary
Statement hereto.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer of the Trustee or
of the Securities Administrator on the Trustee's behalf. Each Certificate
shall, on original issue, be authenticated by the Authenticating Agent upon
the order of the Depositor upon receipt by the Trustee of the Trustee Mortgage
Files described in Section 2.01. No Certificate shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless there
appears on such Certificate a certificate of authentication substantially in
the form provided for herein, executed by an authorized officer of the
Authenticating Agent, by manual signature, and such certification upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. At any time and
from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates executed by or on behalf of the Trustee to
the Authenticating Agent for authentication and the Authenticating Agent shall
authenticate and deliver such Certificates as in this Agreement provided and
not otherwise.
(c) The Class B-4, Class B-5, Class B-6, Class P, Class C and Class
A-R Certificates offered and sold in reliance on the exemption from
registration under Rule 144A under the Act shall be issued initially in
definitive, fully registered form without interest coupons with the applicable
legends set forth in Exhibit A added to the forms of such Certificates (each,
a "Restricted Global Security").
Section 3.02 Registration.
The Securities Administrator is hereby appointed, and the Securities
Administrator hereby accepts its appointment as, initial Certificate Registrar
in respect of the Certificates and shall maintain books for the registration
and for the transfer of Certificates (the "Certificate Register"). The Trustee
may appoint a bank or trust company to act as successor Certificate Registrar.
A registration book shall be maintained for the Certificates collectively. The
Certificate Registrar may resign or be discharged or removed and a new
successor may be appointed in accordance with the procedures and requirements
set forth in Sections 6.06 and 6.07 hereof with respect to the resignation,
discharge or removal of the Securities Administrator and the appointment of a
successor Securities Administrator. The Certificate Registrar may appoint, by
a written instrument delivered to the Holders and the Master Servicer, any
bank or trust
54
company to act as co-registrar under such conditions as the Certificate
Registrar may prescribe; provided, however, that the Certificate Registrar
shall not be relieved of any of its duties or responsibilities hereunder by
reason of such appointment.
Section 3.03 Transfer and Exchange of Certificates.
(a) A Certificate (other than Book-Entry Certificates which shall be
subject to Section 3.09 hereof) may be transferred by the Holder thereof only
upon presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, the Securities
Administrator on behalf of the Trustee shall execute, and the Authenticating
Agent shall authenticate and deliver to the transferee, one or more new
Certificates of the same Class and evidencing, in the aggregate, the same
aggregate Certificate Balance (or Notional Amount) as the Certificate being
transferred. No service charge shall be made to a Certificateholder for any
registration of transfer of Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any registration of transfer of
Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same Certificate Balance (or Notional
Amount) as the Certificate surrendered, upon surrender of the Certificate to
be exchanged at the office of the Certificate Registrar duly endorsed or
accompanied by a written instrument of transfer duly executed by such Holder
or his duly authorized attorney in such form as is satisfactory to the
Certificate Registrar. Certificates delivered upon any such exchange will
evidence the same obligations, and will be entitled to the same rights and
privileges, as the Certificates surrendered. No service charge shall be made
to a Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator on behalf of the Trustee shall execute, and the
Authenticating Agent shall authenticate, date and deliver the Certificates
which the Certificateholder making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate
acknowledges the restrictions on the transfer of such Certificate set forth
thereon and agrees that it will transfer such a Certificate only as provided
herein.
The following restrictions shall apply with respect to the transfer
and registration of transfer of a Restricted Certificate to a transferee that
takes delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer of
a Restricted Certificate if the requested transfer is (x) to the
Depositor or an affiliate (as defined in Rule 405 under the 0000 Xxx)
of the Depositor or (y) being made to a "qualified
55
institutional buyer" (a "QIB") as defined in Rule 144A under the
Securities Act of 1933, as amended (the "Act") by a transferor that
has provided the Certificate Registrar with a certificate in the form
of Exhibit H hereto; and
(ii) The Certificate Registrar shall register the transfer
of a Restricted Certificate if the requested transfer is being made
to an "accredited investor" under Rule 501(a)(1), (2), (3) or (7)
under the Act, or to any Person all of the equity owners in which are
such accredited investors, by a transferor who furnishes to the
Certificate Registrar a letter of the transferee substantially in the
form of Exhibit I hereto.
(d) No transfer of an ERISA-Restricted Certificate in the form of a
Definitive Certificate shall be made to any Person or shall be effective
unless the Certificate Registrar, on behalf of the Trustee, has received (A) a
certificate substantially in the form of Exhibit J hereto (or Exhibit B, in
the case of a Residual Certificate) from such transferee or (B) an Opinion of
Counsel satisfactory to the Certificate Registrar and the Securities
Administrator to the effect that the purchase and holding of such a
Certificate will not constitute or result in any nonexempt prohibited
transactions under Title I of ERISA or Section 4975 of the Code and will not
subject the Certificate Registrar, the Trustee, the Master Servicer, the
Depositor or the Securities Administrator to any obligation in addition to
those undertaken in the Agreement; provided, however, that the Certificate
Registrar will not require such certificate or opinion in the event that, as a
result of a change of law or otherwise, counsel satisfactory to the
Certificate Registrar has rendered an opinion to the effect that the purchase
and holding of an ERISA-Restricted Certificate by a Plan or a Person that is
purchasing or holding such a Certificate with the assets of a Plan will not
constitute or result in a prohibited transaction under Title I of ERISA or
Section 4975 of the Code and will not subject the Certificate Registrar, the
Trustee, the Master Servicer, the Depositor or the Securities Administrator to
any obligation in addition to those undertaken in this Agreement. Each
Transferee of an ERISA-Restricted Certificate that is a Book-Entry Certificate
shall be deemed to have made the appropriate representation set forth in
paragraph 2 and the representation set forth in paragraph 3 of Exhibit J. The
preparation and delivery of the certificate and opinions referred to above
shall not be an expense of the Trust Fund, the Certificate Registrar, the
Trustee, the Master Servicer, the Depositor or the Securities Administrator.
Notwithstanding the foregoing, no opinion or certificate shall be
required for the initial issuance of the ERISA-Restricted Certificates to the
Underwriter. The Certificate Registrar shall have no obligation to monitor
transfers of Book-Entry Certificates that are ERISA-Restricted Certificates
and shall have no liability for transfers of such Certificates in violation of
the transfer restrictions. The Certificate Registrar shall be under no
liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
3.03(d) and neither the Securities Administrator nor the Paying Agent shall
have any liability for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under
the provisions of this Agreement so long as the transfer was registered by the
Certificate Registrar in accordance with the foregoing requirements. The
Securities Administrator, on
56
behalf of the Trustee, shall be entitled, but not obligated, to recover from
any Holder of any ERISA-Restricted Certificate that was in fact a Plan or a
Person acting on behalf of a Plan any payments made on such ERISA-Restricted
Certificate at and after such time. Any such payments so recovered by the
Securities Administrator, on behalf of the Trustee, shall be paid and
delivered by the Securities Administrator, on behalf of the Trustee, to the
last preceding Holder of such Certificate that is not such a Plan or Person
acting on behalf of a Plan.
(e) As a condition of the registration of transfer or exchange of any
Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith; provided, however, that the Certificate Registrar shall have no
obligation to require such payment or to determine whether or not any such tax
or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of a Certificate.
(f) Notwithstanding anything to the contrary contained herein, no
Residual Certificate may be owned, pledged or transferred, directly or
indirectly, by or to (i) a Disqualified Organization or (ii) an individual,
corporation or partnership or other person unless such person (A) is not a
Non-U.S. Person or (B) is a Non-U.S. Person that holds a Residual Certificate
in connection with the conduct of a trade or business within the United States
and has furnished the transferor and the Certificate Registrar with an
effective Internal Revenue Service Form W-8ECI or successor form at the time
and in the manner required by the Code (any such person who is not covered by
clause (A) or (B) above is referred to herein as a "Non-permitted Foreign
Holder").
Prior to and as a condition of the registration of any transfer, sale
or other disposition of a Residual Certificate, the proposed transferee shall
deliver to the Certificate Registrar an affidavit in substantially the form
attached hereto as Exhibit B representing and warranting, among other things,
that such transferee is neither a Disqualified Organization, an agent or
nominee acting on behalf of a Disqualified Organization, nor a Non-permitted
Foreign Holder (any such transferee, a "Permitted Transferee"), and the
proposed transferor shall deliver to the Trustee and the Certificate Registrar
an affidavit in substantially the form attached hereto as Exhibit C. In
addition, the Trustee or the Certificate Registrar may (but shall have no
obligation to) require, prior to and as a condition of any such transfer, the
delivery by the proposed transferee of an Opinion of Counsel, addressed to the
Trustee and the Certificate Registrar, that such proposed transferee or, if
the proposed transferee is an agent or nominee, the proposed beneficial owner,
is not a Disqualified Organization, agent or nominee thereof, or a
Non-permitted Foreign Holder. Notwithstanding the registration in the
Certificate Register of any transfer, sale, or other disposition of a Residual
Certificate to a Disqualified Organization, an agent or nominee thereof, or
Non-permitted Foreign Holder, such registration shall be deemed to be of no
legal force or effect whatsoever and such Disqualified Organization, agent or
nominee thereof, or Non-permitted Foreign Holder shall not be deemed to be a
Certificateholder for any purpose hereunder, including, but not limited to,
the receipt of distributions on such Residual Certificate. The Depositor and
the Certificate Registrar shall be under no liability to any Person for any
registration or transfer of a Residual Certificate to a Disqualified
Organization, agent or nominee thereof or Non-permitted Foreign Holder or for
the Paying Agent making any payments due on such Residual Certificate to the
Holder thereof or for taking any other action with respect to such Holder
under the provisions of the Agreement, so long as the transfer was effected in
accordance with this Section 3.03(f), unless the Certificate Registrar shall
have actual knowledge at the time of such transfer or the time of such payment
or other action that the transferee is a Disqualified
57
Organization, or an agent or nominee thereof, or Non-permitted Foreign Holder.
The Certificate Registrar shall be entitled to recover from any Holder of a
Residual Certificate that was a Disqualified Organization, agent or nominee
thereof, or Non-permitted Foreign Holder at the time it became a Holder or any
subsequent time it became a Disqualified Organization, agent or nominee
thereof, or Non-permitted Foreign Holder, all payments made on such Residual
Certificate at and after either such times (and all costs and expenses,
including but not limited to attorneys' fees, incurred in connection
therewith). Any payment (not including any such costs and expenses) so
recovered by the Certificate Registrar shall be paid and delivered to the last
preceding Holder of such Residual Certificate.
If any purported transferee shall become a registered Holder of a
Residual Certificate in violation of the provisions of this Section 3.03(f),
then upon receipt of written notice to the Trustee or the Certificate
Registrar that the registration of transfer of such Residual Certificate was
not in fact permitted by this Section 3.03(f), the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof retroactive to
the date of such registration of transfer of such Residual Certificate. The
Depositor, the Certificate Registrar and the Trustee shall be under no
liability to any Person for any registration of transfer of a Residual
Certificate that is in fact not permitted by this Section 3.03(f), or for the
Paying Agent making any payment due on such Certificate to the registered
Holder thereof or for taking any other action with respect to such Holder
under the provisions of this Agreement so long as the transfer was registered
upon receipt of the affidavit described in the preceding paragraph of this
Section 3.03(f).
(g) Each Holder or Certificate Owner of a Restricted Certificate,
ERISA-Restricted Certificate or Residual Certificate, or an interest therein,
by such Holder's or Owner's acceptance thereof, shall be deemed for all
purposes to have consented to the provisions of this section.
Section 3.04 Cancellation of Certificates.
Any Certificate surrendered for registration of transfer or exchange
shall be cancelled and retained in accordance with normal retention policies
with respect to cancelled certificates maintained by the Certificate
Registrar.
Section 3.05 Replacement of Certificates.
If (i) any Certificate is mutilated and is surrendered to the Trustee
or the Certificate Registrar or (ii) the Certificate Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustee and the Certificate
Registrar such security or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the Depositor, the Trustee
or the Certificate Registrar that such destroyed, lost or stolen Certificate
has been acquired by a protected purchaser, the Securities Administrator on
behalf of the Trustee shall execute and the Authenticating Agent shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
Certificate Balance. Upon the issuance of any new Certificate under this
Section 3.05, the Trustee, the Depositor or the Certificate Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and
58
expenses of the Trustee, the Depositor or the Certificate Registrar) connected
therewith. Any replacement Certificate issued pursuant to this Section 3.05
shall constitute complete and indefeasible evidence of ownership in the
applicable Trust Fund, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
If after the delivery of such new Certificate, a protected purchaser
of the original Certificate in lieu of which such new Certificate was issued
presents for payment such original Certificate, the Depositor, the Certificate
Registrar and the Trustee or any agent shall be entitled to recover such new
Certificate from the Person to whom it was delivered or any Person taking
therefrom, except a protected purchaser, and shall be entitled to recover upon
the security or indemnity provided therefor to the extent of any loss, damage,
cost or expenses incurred by the Depositor, the Certificate Registrar, the
Trustee or any agent in connection therewith.
Section 3.06 Persons Deemed Owners.
Subject to the provisions of Section 3.09 with respect to Book-Entry
Certificates, the Depositor, the Master Servicer, the Securities
Administrator, the Trustee, the Certificate Registrar, the Paying Agent and
any agent of any of them shall treat the Person in whose name any Certificate
is registered upon the books of the Certificate Registrar as the owner of such
Certificate for the purpose of receiving distributions pursuant to Sections
5.01 and 5.02 and for all other purposes whatsoever, and neither the
Depositor, the Master Servicer, the Securities Administrator, the Trustee, the
Certificate Registrar, the Paying Agent nor any agent of any of them shall be
affected by notice to the contrary.
Section 3.07 Temporary Certificates.
(a) Pending the preparation of definitive Certificates, upon the
order of the Depositor, the Securities Administrator on behalf of the Trustee
shall execute and the Authenticating Agent shall authenticate and deliver
temporary Certificates that are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Certificates in lieu of which
they are issued and with such variations as the authorized officers executing
such Certificates may determine, as evidenced by their execution of such
Certificates.
(b) 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 or agency of the Certificate Registrar without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Certificates, the Securities Administrator on behalf of the Trustee
shall execute and the Authenticating Agent shall authenticate and deliver in
exchange therefor a like aggregate Certificate Balance of definitive
Certificates of the same Class in the authorized denominations. Until so
exchanged, the temporary Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Certificates of the same
Class.
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Section 3.08 Appointment of Paying Agent.
The Trustee may appoint a Paying Agent (which may be the Trustee) for
the purpose of making distributions to the Certificateholders hereunder. The
Securities Administrator is hereby appointed as the initial Paying Agent. The
Trustee shall cause any Paying Agent, other than the Securities Administrator,
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee that such Paying Agent will hold all sums held by
it for the payment to the Certificateholders in an Eligible Account (which
shall be the Distribution Account) in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to the
Certificateholders. All funds remitted by the Securities Administrator to any
such Paying Agent for the purpose of making distributions shall be paid to the
Certificateholders on each Distribution Date and any amounts not so paid shall
be returned on such Distribution Date to the Securities Administrator. If the
Paying Agent is not the Trustee or the Securities Administrator, the
Securities Administrator shall cause to be remitted to the Paying Agent on or
before the Business Day prior to each Distribution Date, by wire transfer in
immediately available funds, the funds to be distributed on such Distribution
Date. Any Paying Agent shall be either a bank or trust company or otherwise
authorized under law to exercise corporate trust powers.
Section 3.09 Book-Entry Certificates.
(a) Each Class of Book-Entry Certificates, upon original issuance,
shall be issued in the form of one or more typewritten Certificates
representing the Book-Entry Certificates. The Book-Entry Certificates shall
initially be registered on the Certificate Register in the name of the nominee
of the Clearing Agency, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the Book-Entry
Certificates, except as provided in Section 3.09(c). Unless Definitive
Certificates have been issued to Certificate Owners of Book-Entry Certificates
pursuant to Section 3.09(c):
(i) the provisions of this Section 3.09 shall be in full
force and effect;
(ii) the Certificate Registrar, the Paying Agent and the
Trustee shall deal with the Clearing Agency for all purposes
(including the making of distributions on the Book-Entry
Certificates) as the authorized representatives of the Certificate
Owners and the Clearing Agency and shall be responsible for crediting
the amount of such distributions to the accounts of such Persons
entitled thereto, in accordance with the Clearing Agency's normal
procedures;
(iii) to the extent that the provisions of this Section 3.09
conflict with any other provisions of this Agreement, the provisions
of this Section 3.09 shall control; and
(iv) the rights of Certificate Owners shall be exercised
only through the Clearing Agency and the Clearing Agency Participants
and shall be limited to those established by law and agreements
between such Certificate Owners and the Clearing Agency and/or the
Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 3.09(c), the initial
Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit distributions
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of principal of and interest on the Book-Entry Certificates to such
Clearing Agency Participants.
(b) Whenever notice or other communication to the Certificateholders
is required under this Agreement, unless and until Definitive Certificates
shall have been issued to Certificate Owners pursuant to Section 3.09(c), the
Securities Administrator shall give all such notices and communications
specified herein to be given to Holders of the Book-Entry Certificates to the
Clearing Agency.
(c) If (i) (A) the Clearing Agency or the Depositor advises the
Certificate Registrar in writing that the Clearing Agency is no longer willing
or able to discharge properly its responsibilities with respect to the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor satisfactory to the Depositor and the Certificate Registrar or, (ii)
after the occurrence of an Event of Default, Certificate Owners representing
beneficial interests aggregating not less than 50% of the Class Principal
Balance of a Class of Book-Entry Certificates advise the Paying Agent and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Certificate Registrar shall notify the Clearing Agency to
effect notification to all Certificate Owners, through the Clearing Agency, of
the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of the Book-Entry Certificates by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency for
registration, the Certificate Registrar shall issue the Definitive
Certificates. Neither the Depositor, the Certificate Registrar nor the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Clearing Agency shall be
deemed to be imposed upon and performed by the Certificate Registrar, to the
extent applicable, with respect to such Definitive Certificates and the
Certificate Registrar shall recognize the holders of the Definitive
Certificates as Certificateholders hereunder. Notwithstanding the foregoing,
the Certificate Registrar, upon the instruction of the Depositor, shall have
the right to issue Definitive Certificates on the Closing Date in connection
with credit enhancement programs.
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01 Custodial Accounts; Distribution Account.
(a) On or prior to the Closing Date, the Master Servicer shall have
caused each Servicer to establish and maintain one or more Custodial Accounts,
as provided in the related Purchase and Servicing Agreement, into which all
Scheduled Payments and unscheduled payments with respect to the related
Mortgage Loans, net of any deductions or reimbursements permitted under the
related Purchase and Servicing Agreement, shall be deposited. On each
Distribution Account Deposit Date, the Servicers shall remit to the Securities
Administrator for
61
deposit into the Distribution Account, all amounts so required to be deposited
into such account in accordance with the terms of the related Purchase and
Servicing Agreements.
(b) The Securities Administrator, as Paying Agent for the Trustee,
shall establish and maintain an Eligible Account entitled "Distribution
Account of Deutsche Bank National Trust Company, as Trustee for the benefit of
Xxxxxx Xxxxxxx Mortgage Loan Trust 2005-11AR, Holders of Mortgage Pass-Through
Certificates." The Securities Administrator shall, promptly upon receipt from
the Servicers on each related Distribution Account Deposit Date, deposit into
the Distribution Account and retain on deposit until the related Distribution
Date the following amounts:
(i) the aggregate of collections with respect to the
Mortgage Loans remitted by the Servicers from the related Custodial
Accounts in accordance with the Purchase and Servicing Agreements;
(ii) any amounts required to be deposited by the Master
Servicer with respect to the Mortgage Loans for the related Due
Period pursuant to this Agreement, including the amount of any
Advances or Compensating Interest Payments with respect to the
Mortgage Loans not paid by the Servicers; and
(iii) any other amounts so required to be deposited in the
Distribution Account in the related Due Period pursuant to this
Agreement.
(c) In the event the Master Servicer or a Servicer has remitted in
error to the Distribution Account any amount not required to be remitted in
accordance with the definition of Available Funds, it may at any time direct
the Securities Administrator to withdraw such amount from the Distribution
Account for repayment to the Master Servicer or Servicer, as applicable, by
delivery of an Officer's Certificate to the Securities Administrator and the
Trustee which describes the amount deposited in error.
(d) On each Distribution Date and Initial Optional Purchase Date, the
Securities Administrator, as Paying Agent, shall withdraw from funds available
in the Distribution Account and distribute the Available Funds to the
Certificateholders and any other parties entitled thereto in the amounts and
priorities set forth in Section 5.02. The Securities Administrator may from
time to time withdraw from the Distribution Account and pay the Master
Servicer, the Trustee, the Custodians, the Securities Administrator or any
Servicer any amounts permitted to be paid or reimbursed to such Person from
funds in the Distribution Account pursuant to this Agreement, any Purchase and
Servicing Agreement or any Custodial Agreements
(e) Funds in the Distribution Account may be invested in Permitted
Investments selected by and at the written direction of the Master Servicer,
which shall mature not later than one Business Day prior to the Distribution
Date (except that if such Permitted Investment is an obligation of the
Securities Administrator or any of its Affiliates, or is managed or advised by
the Securities Administrator or any Affiliate, then such Permitted Investment
shall mature not later than such applicable Distribution Date) and any such
Permitted Investment shall not be sold or disposed of prior to its maturity.
All such Permitted Investments shall be made in the name of the Trustee (in
its capacity as such) or its nominee. All income and gain realized from any
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Permitted Investment of amounts on deposit in the Distribution Account shall
be for the benefit of the Securities Administrator, as additional compensation
for its duties hereunder, and shall be subject to its withdrawal or order from
time to time, and shall not be part of the Trust Fund; provided, however, that
if Xxxxx Fargo Bank, National Association is no longer the Master Servicer and
the Securities Administrator, any such income and gain shall be used to pay
the successor Master Servicer and the successor Securities Administrator, the
Master Servicer Compensation and the Securities Administrator Compensation,
respectively. The amount of any losses incurred in respect of any such
investments shall be deposited in such Distribution Account by the Securities
Administrator out of its own funds, without any right of reimbursement
therefor, immediately as realized.
Section 4.02 Permitted Withdrawals from the Custodial Accounts and
the Distribution Account.
(a) Each Servicer may from time to time make withdrawals from its
Custodial Account for the following purposes:
(i) to reimburse itself for unreimbursed Advances made by
it, such right of reimbursement pursuant to this subclause (i) being
limited to amounts received on the Mortgage Loan(s) in respect of
which any such Advance was made;
(ii) to reimburse itself for any Nonrecoverable Advance
previously made by it;
(iii) to reimburse itself for unreimbursed Servicer
Advances, each Servicer's right to reimbursement pursuant to this
clause (a) with respect to any Mortgage Loan being limited to amounts
received on such Mortgage Loan(s) which represent late recoveries of
the payments for which such advances were made pursuant to the
related Purchase and Servicing Agreement;
(iv) to reimburse itself for expenses incurred by it and
reimbursable pursuant to the related Purchase and Servicing
Agreement; and
(v) to withdraw any amount deposited in the Custodial
Account and not required to be deposited therein.
To the extent required by the related Purchase and Servicing
Agreement each Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from its Custodial Account pursuant to such subclauses (i), (ii),
(iii), (iv) and (v). Prior to making any withdrawal from its Custodial Account
pursuant to subclause (ii), the related Servicer shall deliver to the Master
Servicer an Officer's Certificate of a Servicing Officer indicating the amount
of any previous Advance determined by the Servicer to be a Nonrecoverable
Advance and identifying the related Mortgage Loans(s), and their respective
portions of such Nonrecoverable Advance.
(b) The Securities Administrator shall withdraw funds from
the Distribution Account for distributions to Certificateholders in
the manner specified in this Agreement (and to withhold from the
amounts so withdrawn, the amount of any taxes that it is authorized
to withhold
63
pursuant to Section 10.01). In addition, the Securities Administrator
may from time to time make withdrawals from the Distribution Account
for the following purposes:
(i) to pay all costs and expenses described in clause (e) of
the definition of "Available Funds";
(ii) (x) for so long as Xxxxx Fargo Bank, National
Association is the Master Servicer and the Securities Administrator,
to pay to the Master Servicer the investment earnings on the
Distribution Account as its compensation for the related Distribution
Date and (y) thereafter, concurrently, to the Master Servicer and the
Securities Administrator, the Master Servicer Compensation and the
Securities Administrator Compensation, respectively; (iii) to
withdraw and return to the Master Servicer any amount deposited in
the Distribution Account and not required to be deposited therein;
and
(iv) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 7.01 hereof.
(v) [Reserved].
Section 4.03 [Reserved].
Section 4.04 [Reserved].
Section 4.05 Reports to Trustee and Certificateholders.
On each Distribution Date, the Securities Administrator shall have
prepared and shall make available to the Trustee, the Depositor, the Rating
Agencies and each Certificateholder a written report setting forth the
following information (on the basis of Mortgage Loan level information
obtained from the Master Servicer and the Servicers):
(a) the amount of the distributions, separately identified, with
respect to each Class of Certificates;
(b) the amount of the distributions set forth in the clause (a)
allocable to principal, separately identifying the aggregate amount of any
Principal Prepayments or other unscheduled recoveries of principal included in
that amount;
(c) the amount of the distributions set forth in the clause (a)
allocable to interest and how it was calculated;
(d) the amount of any unpaid Class Interest Shortfall and the related
accrued interest thereon, with respect to each Class of Certificates;
(e) the Class Principal Balance of each Class of Certificates after
giving effect to the distribution of principal on that Distribution Date;
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(f) the aggregate Stated Principal Balance of the Mortgage Loans at
the end of the related Prepayment Period, and the Weighted Average Net
Mortgage Rate of the Mortgage Pool at the beginning of the related Due Period;
(g) the Senior Percentage and the Subordinated Percentage for the
following Distribution Date;
(h) the Senior Prepayment Percentage and Subordinate Prepayment
Percentage for the following Distribution Date;
(i) the amount of the Servicing Fee paid to or retained by the Master
Servicer and by each Servicer, respectively;
(j) the amount of Monthly Advances for the related Due Period;
(k) the number and Stated Principal Balance of the Mortgage Loans
that were (A) Delinquent using the MBA Method (exclusive of Mortgage Loans in
foreclosure) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B)
in foreclosure and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90
or more days and (C) in bankruptcy as of the close of business on the last day
of the calendar month preceding that Distribution Date;
(l) the total number and principal balance of any REO properties as
of the close of business on the last day of the preceding Due Period;
(m) the amount of Realized Losses incurred during the preceding
calendar month;
(n) the cumulative amount of Realized Losses incurred since the
Closing Date;
(o) the Realized Losses, if any, allocated to each Class of
Certificates on that Distribution Date;
(p) the Class Principal Balance of each Class of Certificates after
giving effect to the distribution of principal on the Distribution Date;
(q) the Special Hazard Loss Coverage Amount, the Fraud Loss Coverage
Amount and the Bankruptcy Loss Coverage Amount, in each case as of the related
Determination Date;
(r) the Pass-Through Rate for each Class of Certificates for that
Distribution Date;
(s) the amount received by the Securities Administrator pursuant to
each Corridor Contract from the Corridor Contract Counterparty with respect to
that Distribution Date; and
(t) the total amount of Prepayment Penalties collected and due to the
Trust Fund, as reported by the Servicers.
The Securities Administrator shall make such reports available each
month via its website at xxxx://xxx.xxxxxxx.xxx. Assistance in using the
website may be obtained by calling the Securities Administrator's customer
service desk at (000) 000-0000. Certificateholders and other
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parties that are unable to use the website are entitled to have a paper copy
mailed to them via first class mail by contacting the Securities Administrator
and indicating such. In preparing or furnishing the foregoing reports, the
Securities Administrator shall be entitled to rely conclusively on the
accuracy of the information or data regarding the Mortgage Loans and the
related REO Properties that has been provided to the Securities Administrator
by the Master Servicer and the Servicers, and neither the Trustee nor the
Securities Administrator shall be obligated to verify, recompute, reconcile or
recalculate any such information or data.
Upon the reasonable advance written request of any Certificateholder
that is a savings and loan, bank or insurance company, which request, if
received by the Trustee or any agent thereof, shall be promptly forwarded to
the Securities Administrator, the Securities Administrator shall provide, or
cause to be provided, (or, to the extent that such information or
documentation is not required to be provided by a Servicer under the
applicable Purchase and Servicing Agreement, shall use reasonable efforts to
obtain such information and documentation from such Servicer, and provide) to
such Certificateholders such reports and access to information and
documentation regarding the Mortgage Loans as such Certificateholders may
reasonably deem necessary to comply with applicable regulations of the Office
of Thrift Supervision or its successor or other regulatory authorities with
respect to an investment in the Certificates; provided, however, that the
Securities Administrator shall be entitled to be reimbursed by such
Certificateholders for the Securities Administrator's actual expenses incurred
in providing such reports and access.
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01 Distributions Generally.
(a) Subject to Section 7.01 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator or the
Paying Agent shall make all distributions in accordance with this Article V.
Such distributions shall be made by check mailed to each Certificateholder's
address as it appears on the Certificate Register of the Certificate Registrar
or, upon written request made to the Securities Administrator at least five
Business Days prior to the related Record Date by any Certificateholder owning
an aggregate initial Certificate Balance of at least $1,000,000, or in the
case of a Class of Notional Amount Certificates or Residual Certificate, a
Percentage Interest of not less than 100%, by wire transfer in immediately
available funds to an account specified in the request and at the expense of
such Certificateholder; provided, however, that the final distribution in
respect of any Certificate shall be made only upon presentation and surrender
of such Certificate at the Certificate Registrar's Corporate Trust Office;
provided, further, that the foregoing provisions shall not apply to any Class
of Certificates as long as such Certificate remains a Book-Entry Certificate
in which case all payments made shall be made through the Clearing Agency and
its Clearing Agency Participants. Notwithstanding the reduction of the Class
Principal Balance of any Class of Certificates to zero, such Class will be
outstanding hereunder (solely for the purpose of receiving distributions and
not for any other purpose) until the termination of the respective obligations
and responsibilities of the Depositor, the Master Servicer, the Securities
Administrator and the Trustee hereunder in accordance with Article VII. Wire
transfers will be made at the expense of
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the Holder requesting such wire transfer by deducting a wire transfer fee from
the related distribution. Notwithstanding such final payment of principal of
any of the Certificates, each Residual Certificate will remain outstanding
until the termination of each REMIC and the payment in full of all other
amounts due with respect to the Residual Certificates and at such time such
final payment in retirement of any Residual Certificate will be made only upon
presentation and surrender of such Certificate at the Certificate Registrar's
Corporate Trust Office. If any payment required to be made on the Certificates
is to be made on a day that is not a Business Day, then such payment will be
made on the next succeeding Business Day.
(b) All distributions or allocations made with respect to the
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in
proportion to their respective initial Class Principal Balances or initial
Class Notional Amounts (or Percentage Interests).
Section 5.02 Priorities of Distribution.
(a) On each Distribution Date, the Securities Administrator shall
withdraw the Available Funds from the funds available therefor in the
Distribution Account and apply such funds to distributions on the specified
Classes of Senior Certificates in the following order and priority and, in
each case, to the extent of Available Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Senior
Certificates, an amount allocable to interest equal to the related
Class Optimal Interest Distribution Amount, any shortfall being
allocated among such Classes in proportion to the amount of the Class
Optimal Interest Distribution Amount that would have been distributed
in the absence of such shortfall; provided that prior to an Accrual
Termination Date, the related Accrual Amount shall be distributed as
provided in Section 5.02(a)(iii);
(iii) the Accrual Amount shall be distributed in accordance
with the Accretion Direction Rule;
(iv) to each Class of Senior Certificates, concurrently as
follows:
(x) [Reserved]; and
(y) on each Distribution Date prior to the Senior
Credit Support Depletion Date the Principal Amount, up to
the amount of the Senior Principal Distribution Amount for
such Distribution Date, will be distributed sequentially in
the following order of priority:
(1) to the Class A-R Certificates, until
its Class Principal Balance is reduced to zero; and
(2) concurrently to the Class A-1, Class
A-2 and Class A-3 Certificates, pro rata, until their
respective Class Principal Balances are reduced to zero;
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(v) [Reserved];
(vi) to the Subordinated Certificates, the Class P
Certificates, the Class C Certificates and the Class A-R Certificates
in the following order and priority and, in each case, to the extent
of such funds remaining:
(A) to the Class M-1 Certificates, an amount
allocable to interest equal to the Class Optimal Interest
Distribution Amount for such Class for such Distribution
Date;
(B) to the Class M-1 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date until the Class Principal Balance thereof
is reduced to zero;
(C) to the Class M-2 Certificates, an amount
allocable to interest equal to the Class Optimal Interest
Distribution Amount for such Class for such Distribution
Date;
(D) to the Class M-2 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date until the Class Principal Balance thereof
is reduced to zero;
(E) to the Class M-3 Certificates, an amount
allocable to interest equal to the amount of the Class
Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(F) to the Class M-3 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date until the Class Principal Balance thereof
is reduced to zero;
(G) to the Class M-4 Certificates, an amount
allocable to interest equal to the amount of the Class
Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(H) to the Class M-4 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date until the Class Principal Balance thereof
is reduced to zero;
(I) to the Class M-5 Certificates, an amount
allocable to interest equal to the Class Optimal Interest
Distribution Amount for such Class for such Distribution
Date;
(J) to the Class M-5 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date until the Class Principal Balance thereof
is reduced to zero;
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(K) to the Class M-6 Certificates, an amount
allocable to interest equal to the Class Optimal Interest
Distribution Amount for such Class for such Distribution
Date; and
(L) to the Class M-6 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date until the Class Principal Balance thereof
is reduced to zero;
(M) to the Class B-1 Certificates, an amount
allocable to interest equal to the Class Optimal Interest
Distribution Amount for such Class for such Distribution
Date;
(N) to the Class B-1 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date until the Class Principal Balance thereof
is reduced to zero;
(O) to the Class B-2 Certificates, an amount
allocable to interest equal to the Class Optimal Interest
Distribution Amount for such Class for such Distribution
Date;
(P) to the Class B-2 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date until the Class Principal Balance thereof
is reduced to zero;
(Q) to the Class B-3 Certificates, an amount
allocable to interest equal to the amount of the Class
Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(R) to the Class B-3 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date until the Class Principal Balance thereof
is reduced to zero;
(S) to the Class B-4 Certificates, an amount
allocable to interest equal to the amount of the Class
Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(T) to the Class B-4 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date until the Class Principal Balance thereof
is reduced to zero;
(U) to the Class B-5 Certificates, an amount
allocable to interest equal to the Class Optimal Interest
Distribution Amount for such Class for such Distribution
Date;
(V) to the Class B-5 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date until the Class Principal Balance thereof
is reduced to zero;
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(W) to the Class B-6 Certificates, an amount
allocable to interest equal to the Class Optimal Interest
Distribution Amount for such Class for such Distribution
Date; and
(X) to the Class B-6 Certificates, an amount
allocable to principal equal to its Pro Rata Share for such
Distribution Date until the Class Principal Balance thereof
is reduced to zero;
(Y) on the first Distribution Date following an
Auction of the Mortgage Loans pursuant to Section 7.01
hereof, to the Class C Certificates, any Auction Excess
Proceeds; and
(Z) to the Class A-R Certificates, any remaining
funds in the Trust Fund; provided, that such amounts shall
not include the $100 held in trust for the Class P
Certificates or the $100 held in trust for the Class C
Certificates.
On each Distribution Date, all amounts representing Prepayment
Penalties on the Mortgage Loans received by the Securities Administrator with
respect to the related Prepayment Period will be distributed to the holders of
the Class P Certificates. On the Distribution Date in June 2011, the $100 held
in trust for the Class P Certificates will be distributed to the holders of
the Class P Certificates.
(b) On each Distribution Date with respect to each Class or Component
of Accrual Certificates, the Accrual Amount for such Class or Component for
such Distribution Date shall not (except as provided in the second to last
sentence in this paragraph) be distributed as interest with respect to such
Class or Component of Accrual Certificates, but shall instead be added to the
related Class Principal Balance of such Class on the related Distribution
Date. With respect to any Distribution Date on which principal payments on any
Class or Component of Accrual Certificates are distributed pursuant to Section
5.02(a)(iv)(y) the Accrual Amount shall be deemed to have been added on such
Distribution Date to the related Class Principal Balance or Component Balance
(and included in the amount distributable on the related Class or Classes or
Component of Accretion Directed Certificates pursuant to Section 5.02(a)(iii)
for such Distribution Date) and the related distribution thereon shall be
deemed to have been applied concurrently towards the reduction of all or a
portion of the amount so added and, to the extent of any excess, towards the
reduction of the Class Principal Balance or Component Balance of such Class or
Component of Accrual Certificates immediately prior to such Distribution Date.
(c) [reserved].
(d) On each Distribution Date, the amount referred to in clause (i)
of the definition of Class Optimal Interest Distribution Amount for each Class
of Certificates or Component thereof for such Distribution Date shall be
reduced by (i) the related Class' or Component's pro rata share of Net
Prepayment Interest Shortfalls based on such Class' or Component's Class
Optimal Interest Distribution Amount for such Distribution Date, without
taking into account such Net Prepayment Interest Shortfalls, and (ii) the
related Class' Allocable Share of (A) after the Special Hazard Coverage
Termination Date, with respect to each Mortgage Loan that became a Special
Hazard Mortgage Loan during the calendar month preceding the month of such
Distribution Date, the excess of one month's interest at the related Adjusted
Net Mortgage Rate on the Stated
70
Principal Balance of such Mortgage Loan as of the first day of the related Due
Period over the amount of Liquidation Proceeds applied as interest on such
Mortgage Loan with respect to such month, (B) after the Bankruptcy Coverage
Termination Date, with respect to each Mortgage Loan that became subject to a
Bankruptcy Loss during the calendar month preceding the month of such
Distribution Date, the interest portion of the related Debt Service Reduction
or Deficient Valuation, (C) each Relief Act Reduction incurred during the
calendar month preceding the month of such Distribution Date and (D) after the
Fraud Loss Coverage Termination Date, with respect to each Mortgage Loan that
became a Fraud Loan during the calendar month preceding the month of such
Distribution Date, the excess of one month's interest at the related Adjusted
Net Mortgage Rate on the Stated Principal Balance of such Mortgage Loan as of
the first day of the related Due Period over the amount of Liquidation
Proceeds applied as interest on such Mortgage Loan with respect to such month.
(e) Notwithstanding the priority and allocation contained in Section
5.02(a)(vi), if, on any Distribution Date, with respect to any Class of
Subordinated Certificates, the sum of the related Class Subordination
Percentages of such Class and of all Classes of Subordinated Certificates
which have a higher numerical Class designation than such Class (the
"Applicable Credit Support Percentage") is less than the Original Applicable
Credit Support Percentage for such Class, no distribution of Principal
Prepayments will be made to any such Classes (the "Restricted Classes") and
the amount of such Principal Prepayments otherwise distributable to the
Restricted Classes shall be distributed to the outstanding Classes of
Subordinated Certificates having lower numerical Class designations than such
Class, pro rata, based on their respective Class Principal Balances
immediately prior to such Distribution Date and shall be distributed in the
sequential order provided in Section 5.02(a)(vi). Notwithstanding anything in
this Agreement to the contrary, the Class of Subordinated Certificates then
outstanding with the highest distribution priority shall not be a Restricted
Class.
(f) If Subsequent Recoveries have been received with respect to a
Liquidated Mortgage Loan, the amount of such Subsequent Recoveries will be
applied sequentially, in the order of payment priority, to increase the Class
Principal Balance or Component Principal Balance of each Class of Certificates
or Component thereof to which Realized Losses have been allocated, but in each
case by not more than the amount of Realized Losses previously allocated to
that Class of Certificates or Component pursuant to Section 5.02. Holders of
such Certificates will not be entitled to any payment in respect of the Class
Optimal Interest Distribution Amount 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 pro rata to the Certificate
Balance or Component Balance of each Certificate of such Class or Component
thereof.
Section 5.03 [Reserved].
Section 5.04 Allocation of Losses.
(a) On or prior to each Distribution Date, the Securities
Administrator shall aggregate the information provided by each Servicer with
respect to the total amount of Realized Losses, including Excess Losses,
experienced on the Mortgage Loans for the related Distribution Date.
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(b) Realized Losses with respect to the Mortgage Loans on any
Distribution Date shall be allocated as follows:
(i) [Reserved]; and
(ii) (A) any Realized Loss (other than an Excess Loss) shall
be allocated first to the Subordinated Certificates in reverse order
of their respective numerical Class designations (beginning with the
Class of Subordinated Certificates then outstanding with the highest
numerical Class designation) until the respective Class Principal
Balance of each such Class is reduced to zero, and second to the
Senior Certificates (other than any Notional Amount Certificates, if
applicable), pro rata on the basis of their respective Class
Principal Balances or, in the case of any Class of Accrual
Certificates or Accrual Component, on the basis of the lesser of
their Class Principal Balance or Component Balance, as applicable,
and their initial Class Principal Balance or Component Balance, as
applicable, in each case immediately prior to the related
Distribution Date until the respective Class Principal Balance of
each such Class is reduced to zero except that any Realized Loss that
would otherwise be allocated to the Class A-2 Certificates will
instead be allocated to the Class A-3 Certificates, until its Class
Principal Balance is reduced to zero; and
(B) any Excess Losses on the Mortgage Loans shall be
allocated to the Classes of Senior Certificates (other than any
Notional Amount Certificates) and the Subordinated Certificates on
the basis of their respective initial Class Principal Balances or
Component Balances, as applicable, or in the case of any or in the
case of any Class of Accrual Certificates or Accrual Component, on
the basis of the lesser of their respective Class Principal Balance
and their respective initial Class Principal Balance or their
respective Component Balance or their respective initial Component
Balance, as the case may be, in each case immediately prior to the
related Distribution Date;
(c) The Class Principal Balance of the Class of Subordinated
Certificates then outstanding with the highest numerical Class designation
shall be reduced on each Distribution Date by the amount, if any, by which the
aggregate of the Class Principal Balances of all outstanding Classes of
Certificates (after giving effect to the distribution of principal and the
allocation of Realized Losses on such Distribution Date), exceeds the
aggregate Stated Principal Balance of the Mortgage Loans for the following
Distribution Date.
(d) Any Realized Loss allocated to a Class of Certificates or any
reduction in the Class Principal Balance of a Class of Certificates pursuant
to Section 5.04(b) above shall be allocated among the Certificates of such
Class in proportion to their respective Certificate Balances.
(e) Any allocation of Realized Losses to a Certificate or to any
Component or any reduction in the Certificate Balance of a Certificate,
pursuant to Section 5.04(b) above shall be accomplished by reducing the
Certificate Balance or Component Balance thereof, as applicable, immediately
following the distributions made on the related Distribution Date in
accordance with the definition of "Certificate Balance" or "Component
Balance," as the case may be. All
72
Realized Losses or Excess Losses allocated to a Class of Component
Certificates will be allocated, pro rata, to the related Components.
(f) For the avoidance of doubt, no Realized Losses on the Mortgage
Loans shall be allocated to the Class P or Class C Certificates.
Section 5.05 Advances by the Master Servicer.
If any Servicer fails to remit any Advance required to be made under
the applicable Purchase and Servicing Agreement, the Master Servicer shall
itself make, or shall cause the successor Servicer to make, such Advance. If
the Master Servicer determines that an Advance is required, it shall on the
Business Day preceding the related Distribution Date immediately following
such Determination Date remit to the Securities Administrator from its own
funds (or funds advanced by the applicable Servicer) for deposit in the
Distribution Account immediately available funds in an amount equal to such
Advance. The Master Servicer and each Servicer shall be entitled to be
reimbursed for all Advances made by it. Notwithstanding anything to the
contrary herein, in the event the Master Servicer determines in its reasonable
judgment that an Advance is non-recoverable, the Master Servicer shall be
under no obligation to make such Advance. If the Master Servicer determines
that an Advance is non-recoverable, it shall, on or prior to the related
Distribution Date, deliver an Officer's Certificate to the Trustee and the
Securities Administrator to such effect.
Section 5.06 Compensating Interest Payments.
The amount of compensation payable to the Master Servicer in respect
of the Mortgage Loans and any Distribution Date shall be reduced (but not
below zero) by the amount of any aggregate Compensating Interest Payment from
the Servicers for such Distribution Date, but only to the extent that
Prepayment Interest Shortfalls relating to such Distribution Date are required
to be paid by the Servicers pursuant to the Purchase and Servicing Agreements,
as amended by the Acknowledgements, but are not actually paid by the Servicer.
Such amount shall not be treated as an Advance and shall not be reimbursable.
Section 5.07 [Reserved].
Section 5.08 [Reserved]
Section 5.09 Determination of Pass-Through Rates for LIBOR
Certificates.
(a) On each Interest Determination Date after the initial Interest
Determination Date and for so long as any LIBOR Certificates are outstanding,
the Securities Administrator will determine LIBOR on the basis of the British
Bankers' Association ("BBA") "Interest Settlement Rate" for one-month deposits
in U.S. dollars as found on Telerate page 3750 as of 11:00 a.m. London time on
each LIBOR Determination Date. "Telerate Page 3750" means the display page
currently so designated on the Moneyline Telerate Service (formerly the Dow
Xxxxx Markets) (or such other page as may replace that page on that service
for the purpose of displaying comparable rates or prices).
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(b) If on any Interest Determination Date, LIBOR cannot be determined
as provided in paragraph (a) of this Section 5.09, the Securities
Administrator shall either (i) request each Reference Bank to inform the
Securities Administrator of the quotation offered by its principal London
office for making one-month United States dollar deposits in leading banks in
the London interbank market, as of 11:00 a.m. (London time) on such Interest
Determination Date or (ii) in lieu of making any such request, rely on such
Reference Bank quotations that appear at such time on the Reuters Screen LIBO
Page (as defined in the International Swap Dealers Association Inc. Code of
Standard Wording, Assumptions and Provisions for Swaps, 1986 Edition), to the
extent available. LIBOR for the next Interest Accrual Period will be
established by the Securities Administrator on each interest Determination
Date as follows:
(i) If on any Interest Determination Date two or more
Reference Banks provide such offered quotations, LIBOR for the next
applicable Interest Accrual Period shall be the arithmetic mean of
such offered quotations (rounding such arithmetic mean upwards if
necessary to the nearest whole multiple of 1/32%).
(ii) If on any Interest Determination Date only one or none
of the Reference Banks provides such offered quotations, LIBOR for
the next Interest Accrual Period shall be whichever is the higher of
(i) LIBOR as determined on the previous Interest Determination Date
or (ii) the Reserve Interest Rate. The "Reserve Interest Rate" shall
be the rate per annum which the Securities Administrator determines
to be either (i) the arithmetic mean (rounded upwards if necessary to
the nearest whole multiple of 1/32%) of the one-month United States
dollar lending rates that New York City banks selected by the
Securities Administrator are quoting, on the relevant Interest
Determination Date, to the principal London offices of at least two
of the Reference Banks to which such quotations are, in the opinion
of the Securities Administrator, being so made, or (ii) in the event
that the Securities Administrator can determine no such arithmetic
mean, the lowest one-month United States dollar lending rate which
New York City banks selected by the Securities Administrator are
quoting on such Interest Determination Date to leading European
banks.
(iii) (A) If on any Interest Determination Date the
Securities Administrator is required but is unable to determine the
Reserve Interest Rate in the manner provided in paragraph (b) above,
LIBOR for the related Classes of Certificates shall be LIBOR as
determined on the preceding applicable Interest Determination Date or
(B) in the case of the first Interest Determination Date, LIBOR shall
be 4.3800%.
Until all of the LIBOR Certificates are paid in full, the Securities
Administrator will at all times retain at least four Reference Banks for the
purpose of determining LIBOR with respect to each Interest Determination Date.
The Securities Administrator initially shall designate the Reference Banks.
Each "Reference Bank" shall be a leading bank engaged in transactions in
Eurodollar deposits in the international Eurocurrency market, shall not
control, be controlled by, or be under common control with, the Securities
Administrator and shall have an established place of business in London. If
any such Reference Bank should be unwilling or unable to act as such or if the
Master Servicer should terminate its appointment as Reference Bank, the
Securities Administrator shall promptly appoint or cause to be appointed
another Reference Bank. The Securities Administrator shall have no liability
or responsibility to any Person for (i) the
74
selection of any Reference Bank for purposes of determining LIBOR or (ii) any
inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
(c) The Pass-Through Rate for each Class of LIBOR Certificates for
each Interest Accrual Period shall be determined by the Securities
Administrator on each Interest Determination Date so long as the LIBOR
Certificates are outstanding on the basis of LIBOR and the respective formulae
appearing in footnotes corresponding to the LIBOR Certificates in the table
relating to the Certificates in the Preliminary Statement.
(d) In determining LIBOR, any Pass-Through Rate for the LIBOR
Certificates, any Interest Settlement Rate, or any Reserve Interest Rate, the
Securities Administrator may conclusively rely and shall be protected in
relying upon the offered quotations (whether written, oral or on the Dow Xxxxx
Markets) from the BBA designated banks, the Reference Banks or the New York
City banks as to LIBOR, the Interest Settlement Rate or the Reserve Interest
Rate, as appropriate, in effect from time to time. The Securities
Administrator shall not have any liability or responsibility to any Person for
(i) the selection of New York City banks for purposes of determining any
Reserve Interest Rate or (ii) its inability, following a good-faith reasonable
effort, to obtain such quotations from, the BBA designated banks, the
Reference Banks or the New York City banks or to determine such arithmetic
mean, all as provided for in this Section 5.09.
(e) The establishment of LIBOR and each Pass-Through Rate for the
LIBOR Certificates by the Securities Administrator shall (in the absence of
manifest error) be final, conclusive and binding upon each Holder of a
Certificate and the Securities Administrator.
Section 5.10 Reserve Fund.
(a) On the Closing Date, the Securities Administrator shall establish
and maintain in the Trustee's name, in trust for the benefit of the holders of
the LIBOR Certificates and the Notional Amount Certificates, a Reserve Fund,
into which the Depositor shall, on such date, deposit $8,500. The Reserve Fund
shall be an Eligible Account, and funds on deposit therein shall be held
separate and apart from, and shall not be commingled with, any other moneys,
including, without limitation, other moneys of the Trustee held pursuant to
this Agreement. The Reserve Fund shall not be an asset of any REMIC
established hereby.
(b) On each Distribution Date, Current Interest that would otherwise
be distributable with respect to the Class X Certificates will be deposited
into the Reserve Fund, to the extent of the Required Reserve Fund Deposit.
(c) On any Distribution Date for which a Net WAC Shortfall exists
with respect to one or more Classes of LIBOR Certificates remaining unpaid
after application of the amounts received in respect of the related Corridor
Contract, the Securities Administrator shall withdraw, to the extent of
available funds therein, from the Reserve Fund the amount of such Net WAC
Shortfall for distribution on such Distribution Date pursuant to Section
5.10(d) hereof.
(d) On any Distribution Date for which a Net WAC Shortfall exists
with respect to one or more Classes of LIBOR Certificates remaining unpaid
after application of payments
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received under the related Corridor Contract pursuant to Section 5.11(d)
hereof, the Securities Administrator will withdraw the amounts on deposit in
the Reserve Fund and distribute them sequentially, first, concurrently, to the
Class A-1, Class A-2 and Class A-3 Certificates, pro rata based upon the
extent of their respective Net WAC Shortfalls remaining unpaid for that
Distribution Date, and then sequentially, to the Class X-0, Xxxxx X-0, Class
M-3, Class M-4, Class M-5 and Class M-6 Certificates, in that order, in an
amount up to their remaining respective accrued and unpaid Net WAC Shortfalls.
(e) Funds in the Reserve Fund shall be invested in Permitted
Investments as directed in writing by the Class X Certificateholder. Any
earnings on amounts in the Reserve Fund shall be for the benefit of the Class
X Certificateholders. The Class X Certificates shall evidence ownership of the
Reserve Fund for federal income tax purposes and the Holders thereof shall
direct the Securities Administrator, in writing, as to investment of amounts
on deposit therein. The Class X Certificateholder(s) shall be liable for any
losses incurred on such investments. In the absence of written instructions
from the Class X Certificateholder to the Securities Administrator as to
investment of funds on deposit in the Reserve Fund, such funds shall be
invested in the Xxxxx Fargo Prime Advantage Investment Money Market Fund. For
all Federal income tax purposes, amounts transferred by the Master REMIC to
the Reserve Fund shall be treated as amounts distributed by the Master REMIC
to the Class X Certificateholders.
(f) If, immediately after any Distribution Date, the amount on
deposit in the Reserve Fund exceeds the initial deposit therein, the
Securities Administrator will distribute such excess to the Holders of the
Class X Certificates.
Upon termination of the Trust Fund any amounts remaining in the
Reserve Fund shall be distributed to Xxxxxx Xxxxxxx & Co. Incorporated.
Section 5.11 The Corridor Contracts.
(a) The Depositor hereby directs the Securities Administrator, solely
in its capacity as Securities Administrator hereunder and not in its
individual capacity, to execute and deliver each of the Corridor Contracts
concurrently with the execution and delivery of this Agreement. Except as may
be directed in writing by the Depositor or by a majority in interest of the
Holders of a Class of Certificates that have the benefit of a Corridor
Contract, the Securities Administrator shall have no duty or responsibility to
enter into any other interest rate cap contract or agreement upon the
expiration or termination of any of the Corridor Contracts. The Corridor
Contracts will be assets of the Trust Fund but will not be assets of any
REMIC. The Securities Administrator shall deposit any amounts received from
the Corridor Contract Counterparty with respect to the Corridor Contracts into
the Reserve Fund.
(b) The Securities Administrator will prepare and deliver any notices
required to be delivered to the Corridor Contract Counterparty under any
Corridor Contract.
(c) The Securities Administrator, on behalf of the Trustee shall
terminate the Corridor Contract Counterparty upon the occurrence of an event
of default under any Corridor Contract of which a Responsible Officer of the
Securities Administrator has actual knowledge. Upon such a termination, the
Corridor Contract Counterparty may be required to pay an amount to the
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Securities Administrator, on behalf of the Trustee, in respect of market
quotations for the replacement cost of the related Corridor Contract.
(d) On each Distribution Date, following the distribution of any
amounts in respect of interest pursuant to Section 5.02(a)(ii)(2), with
respect to the Class A-1, Class A-2 and Class A-3 Certificates, Section
5.02(a)(vi)(A), Section 5.02(a)(vi)(C) and Section 5.02(a)(vi)(E) with respect
to the Class M-1, Class M-2 and Class M-3 Certificates, respectively and
Section 5.02(a)(vi)(G), Section 5.02(a)(vi)(I) and Section 5.02(a)(vi)(K) with
respect to the Class M-4, Class M-5 and Class M-6 Certificates, respectively,
the Securities Administrator shall distribute amounts on deposit in the
Reserve Fund from (a) the Class A-1 Corridor Contract, to the holders of the
Class A-1 Certificates, (b) the Class A-2 Corridor Contract, to the holders of
the Class A-2 Certificates, (c) the Class A-3 Corridor Contract, to the
holders of the Class A-3 Certificates, (d) the Class M Senior Corridor
Contract, to the holders of the Class M-1, Class M-2 and Class M-3
Certificates and (e) the Class M Junior Corridor Contract to the holders of
the Class M-4, Class M-5 and Class M-6 Certificates, in each case to the
extent of any Net WAC Shortfalls allocated to such Classes of Certificates.
Amounts withdrawn from the Reserve Fund shall be distributed sequentially as
follows:
(i) from any Class A-1 Corridor Contract Payment on deposit
in the Reserve Fund with respect to that Distribution Date, an amount
equal to any unpaid remaining Net WAC Shortfall with respect to the
Class A-1 Certificates for that Distribution Date, to the holders of
the Class A-1 Certificates;
(ii) from any Class A-2 Corridor Contract Payment on deposit
in the Reserve Fund with respect to that Distribution Date, an amount
equal to any unpaid remaining Net WAC Shortfall with respect to the
Class A-2 Certificates for that Distribution Date, to the holders of
the Class A-2 Certificates;
(iii) from any Class A-3 Corridor Contract Payment on
deposit in the Reserve Fund with respect to that Distribution Date,
an amount equal to any unpaid remaining Net WAC Shortfall with
respect to the Class A-3 Certificates for that Distribution Date, to
the holders of the Class A-3 Certificates ;
(iv) from any Class M Senior Corridor Contract Payment on
deposit in the Excess Reserve Fund with respect to that Distribution
Date, an amount equal to any unpaid remaining Net WAC Shortfall with
respect to the Class M-1, Class M-2 and Class M-3 Certificates for
that Distribution Date concurrently, to the holders of the Class M-1,
Class M-2 and Class M-3 Certificates, pro rata based upon the extent
of their respective Net WAC Shortfalls remaining unpaid for that
Distribution Date; and
(v) from any Class M Junior Corridor Contract Payment on
deposit in the Excess Reserve Fund with respect to that Distribution
Date, an amount equal to any unpaid remaining Net WAC Shortfall with
respect to the holders of the Class M-4, Class M-5 and Class M-6
Certificates for that Distribution Date concurrently, to the Class
M-4, Class M-5 and Class M-6 Certificates, pro rata based upon the
extent of their respective Net WAC Shortfalls remaining unpaid for
that Distribution Date.
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To the extent that a Class of Certificates receives interest in excess of
Net WAC, such interest shall be deemed to have been paid to the Reserve Fund
and then paid by the Reserve Fund to those Certificateholders. For purposes of
the Code, amounts deemed deposited in the Reserve Fund shall be deemed to have
first been distributed to the Class X Certificates.
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ARTICLE VI
CONCERNING THE TRUSTEE AND
THE SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT
Section 6.01 Duties of Trustee and the Securities
Administrator.
(a) The Trustee, except during the continuance of an Event of
Default, and the Securities Administrator undertakes to perform such duties
and only such duties as are specifically set forth in this Agreement. Any
permissive right of the Trustee or the Securities Administrator provided for
in this Agreement shall not be construed as a duty of the Trustee or the
Securities Administrator. If an Event of Default has occurred and has not
otherwise been cured or waived, the Trustee or the Securities Administrator
shall exercise such of the rights and powers vested in it by this Agreement
and use the same degree of care and skill in their exercise as a prudent
Person would exercise or use under the circumstances in the conduct of such
Person's own affairs, unless the Trustee is acting as master servicer, in
which case it shall use the same degree of care and skill (in its capacity as
successor Master Servicer) as a master servicer hereunder.
(b) Each of the Trustee and the Securities Administrator, upon
receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Trustee or the
Securities Administrator which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they are in the form required by this Agreement; provided, however,
that neither the Trustee nor the Securities Administrator shall be responsible
for the accuracy or content of any such resolution, certificate, statement,
opinion, report, document, order or other instrument furnished by the Master
Servicer or any Servicer to the Trustee or the Securities Administrator
pursuant to this Agreement, and shall not be required to recalculate or verify
any numerical information furnished to the Trustee or the Securities
Administrator pursuant to this Agreement. Subject to the immediately preceding
sentence, if any such resolution, certificate, statement, opinion, report,
document, order or other instrument is found not to conform to the form
required by this Agreement in a material manner the Securities Administrator
shall take such action as it deems appropriate to cause the instrument to be
corrected, and if the instrument is not corrected to the Securities
Administrator 's satisfaction, the Securities Administrator will provide
notice thereof to the Certificateholders and will, at the expense of the Trust
Fund, which expense shall be reasonable given the scope and nature of the
required action, take such further action as directed by the
Certificateholders.
(c) Neither the Trustee nor the Securities Administrator shall have
any liability arising out of or in connection with this Agreement, except for
its negligence or willful misconduct. Notwithstanding anything in this
Agreement to the contrary, neither the Trustee nor the Securities
Administrator shall be liable for special, indirect or consequential losses or
damages of any kind whatsoever (including, but not limited to, lost profits).
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:
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(i) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of Certificates as
provided in Section 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee
shall not be deemed to have notice of any Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Holders of the Certificates and this
Agreement;
(iii) For all purposes under this Agreement, the Securities
Administrator shall not be deemed to have notice of any Event of
Default (other than resulting from a failure by the Master Servicer
(i) to remit funds (or to make Advances) or (ii) to furnish
information to the Securities Administrator when required to do so)
unless a Responsible Officer of the Securities Administrator has
actual knowledge thereof or unless written notice of any event which
is in fact such a default is received by the Securities Administrator
at the address provided in Section 11.07, and such notice references
the Holders of the Certificates and this Agreement;
(iv) No provision of this Agreement shall require the
Trustee or the Securities Administrator to expend or risk its own
funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or indemnity reasonably satisfactory to
it 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;
(v) Neither the Trustee nor the Securities Administrator
shall be responsible for any act or omission of the Master Servicer,
the Depositor, the Seller, any Servicer or any Custodian.
(d) The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall promptly remit to the Master Servicer, upon
receipt any such complaint, claim, demand, notice or other document (i) which
is delivered to the Corporate Trust Office of the Trustee, (ii) of which a
Responsible Officer has actual knowledge, and (iii) which contains information
sufficient to permit the Trustee to make a determination that the real
property to which such document relates is a Mortgaged Property related to a
Mortgage Loan.
(e) Neither the Trustee nor the Securities Administrator shall be
personally liable with respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with the direction of the
Certificateholders of any Class holding Certificates which evidence, as to
such Class, Percentage Interests aggregating not less than 25% as to the time,
method and
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place of conducting any proceeding for any remedy available to the Trustee or
the Securities Administrator or exercising any trust or power conferred upon
the Trustee or the Securities Administrator, as applicable, under this
Agreement or the Acknowledgements.
(f) Neither the Trustee nor the Securities Administrator shall be
required to perform services under this Agreement, or to expend or risk its
own funds or otherwise incur financial liability for the performance of any of
its duties hereunder or the exercise of any of its rights or powers if there
is reasonable ground for believing that the timely payment of its fees and
expenses or the repayment of such funds or indemnity reasonably satisfactory
to it 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, as applicable, to perform, or be
responsible for the manner of performance of, any of the obligations of the
Master Servicer or any Servicer under this Agreement or any Purchase and
Servicing 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.
(g) The Trustee shall not be held liable by reason of any
insufficiency in the Distribution Account resulting from any investment loss
on any Permitted Investment included therein (except to the extent that the
Trustee is the obligor and has defaulted thereon).
(h) Neither the Trustee nor, except as otherwise provided herein, the
Securities Administrator shall have any duty (A) to see to any recording,
filing, or depositing of this Agreement or any agreement referred to herein or
any financing statement or continuation statement evidencing a security
interest, or to see to the maintenance of any such recording or filing or
depositing or to any rerecording, refiling or redepositing of any thereof, (B)
to see to any insurance, (C) to see to the payment or discharge of any tax,
assessment, or other governmental charge or any lien or encumbrance of any
kind owing with respect to, assessed or levied against, any part of the Trust
Fund other than from funds available in the Distribution Account, or (D) to
confirm or verify the contents of any reports or certificates of the Master
Servicer or any Servicer delivered to the Trustee or the Securities
Administrator pursuant to this Agreement believed by the Trustee or the
Securities Administrator, as applicable, to be genuine and to have been signed
or presented by the proper party or parties.
(i) Neither the Securities Administrator nor the Trustee shall be
liable in its individual capacity for an error of judgment made in good faith
by a Responsible Officer or other officers of the Trustee or the Securities
Administrator, as applicable, unless it shall be proved that the Trustee or
the Securities Administrator, as applicable, was negligent in ascertaining the
pertinent facts.
(j) Notwithstanding anything in this Agreement to the contrary,
neither the Securities Administrator nor the Trustee shall be liable for
special, indirect or consequential losses or damages of any kind whatsoever
(including, but not limited to, lost profits), even if the Trustee or the
Securities Administrator, as applicable, has been advised of the likelihood of
such loss or damage and regardless of the form of action.
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(k) Neither the Securities Administrator nor 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 agents of one another, or
of any Servicer.
Section 6.02 Certain Matters Affecting the Trustee and the Securities
Administrator.
Except as otherwise provided in Section 6.01:
(i) Each of the Trustee and the Securities Administrator may
request, and may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer's Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other
paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) Each of the Trustee and the Securities Administrator
may consult with counsel and any advice of its counsel or Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator
shall be personally liable for any action taken, suffered or omitted
by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement;
(iv) Unless an Event of Default shall have occurred and be
continuing, 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 the
Holders of at least a majority in Class Principal Balance (or
Percentage Interest) of each Class of Certificates; provided,
however, that, if 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, not reasonably assured to
the Trustee or the Securities Administrator by the security afforded
to it by the terms of this Agreement, the Trustee or the Securities
Administrator, as applicable, may require indemnity reasonably
satisfactory to it against such expense or liability or payment of
such estimated expenses from the Certificateholders as a condition to
proceeding. The reasonable expense thereof shall be paid by the party
requesting such investigation and if not reimbursed by the requesting
party shall be reimbursed to the Trustee or the Securities
Administrator, as applicable, by the Trust Fund;
(v) Each of the Trustee and the Securities Administrator may
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, custodians or
attorneys, which agents, custodians or attorneys shall have any and
all of the rights, powers, duties and obligations of the Trustee and
the Securities
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Administrator conferred on them by such appointment, provided that
each of the Trustee and the Securities Administrator shall continue
to be responsible for its duties and obligations hereunder to the
extent provided herein, and provided further that neither the Trustee
nor the Securities Administrator shall be responsible for any
misconduct or negligence on the part of any such agent or attorney
appointed with due care by the Trustee or the Securities
Administrator, as applicable;
(vi) 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 or the Acknowledgements or to
institute, conduct or defend any litigation hereunder or in relation
hereto, in each case 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 or
the Securities Administrator, as applicable, security or indemnity
reasonably satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby;
(vii) The right of the Trustee and 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 answerable for other than
its negligence or willful misconduct in the performance of such act;
(viii) Neither the Trustee nor the Securities Administrator
shall be required to give any bond or surety in respect of the
execution of the Trust Fund created hereby or the powers granted
hereunder; and
(ix) In order to comply with its duties under the U.S.A.
Patriot Act, the Trustee shall obtain and verify certain information
and documentation from the other parties to this Agreement,
including, but not limited to each such party's name, address and
other identifying information.
Section 6.03 Trustee and Securities Administrator Not Liable
for Certificates.
The Trustee and the Securities Administrator make no representations
as to the validity or sufficiency of this Agreement, any Purchase and
Servicing Agreement or Acknowledgement, any Corridor Contract or of the
Certificates (other than, in the case of the Securities Administrator, the
certificate of authentication on the Certificates) or of any Mortgage Loan, or
related document save that the Trustee and the Securities Administrator
represent that, assuming due execution and delivery by the other parties
hereto, this Agreement has been duly authorized, executed and delivered by it
and constitutes its valid and binding obligation, enforceable against it in
accordance with its terms except that such enforceability may be subject to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally, and (B) general
principles of equity regardless of whether such enforcement is considered in a
proceeding in equity or at law. The Trustee and the Securities Administrator
shall not be accountable for the use or application by the Depositor of funds
paid to the Depositor in consideration of the assignment of the Mortgage Loans
to the Trust Fund by the Depositor or for the use or application of any funds
deposited into the Distribution Account or any other fund or account
maintained with respect to the Certificates. The Trustee and the
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Securities Administrator shall not be responsible for the legality or validity
of this Agreement or any other document or agreement described in this Section
6.03 or the validity, priority, perfection or sufficiency of the security for
the Certificates issued or intended to be issued hereunder. Neither the
Trustee nor, except as otherwise provided herein, 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.
Section 6.04 Trustee and the Securities Administrator May Own
Certificates.
The Trustee and the Securities Administrator and any Affiliate or
agent of either of them in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact banking and trust business
with the other parties hereto and their Affiliates with the same rights it
would have if it were not Trustee, Securities Administrator or such agent.
Section 6.05 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be (i) an institution whose
accounts are insured by the FDIC, (ii) a corporation or national banking
association, organized and doing business under the laws of any State or the
United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authority and (iii) not an Affiliate of the Master Servicer or any Servicer.
If such corporation or national banking association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section, the combined capital and surplus of such corporation or national
banking association shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time the Trustee shall cease to be eligible in accordance with provisions of
this Section, the Trustee shall resign immediately in the manner and with the
effect specified in Section 6.06.
Section 6.06 Resignation and Removal of Trustee and the Securities
Administrator.
(a) The Trustee may at any time resign and be discharged from the
trust hereby created by giving written notice thereof to the Securities
Administrator, the Depositor and the Master Servicer. Upon receiving such
notice of resignation, the Depositor will promptly appoint a successor
trustee, by written instrument, one copy of which instrument shall be
delivered to the resigning Trustee, one copy to the successor trustee, one
copy to the Securities Administrator and one copy to the Master Servicer. If
no successor trustee shall have been so appointed and shall have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.05 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee of its property shall be appointed, or any public
officer shall take charge
84
or control of the Trustee or of either of their property or affairs for the
purpose of rehabilitation, conservation or liquidation, (iii) a tax is imposed
or threatened with respect to the Trust Fund by any state in which the Trustee
or the Trust Fund held by the Trustee is located due to the location of the
Trustee, or (iv) the continued use of the Trustee would result in a
downgrading of the rating by any Rating Agency of any Class of Certificates
with a rating, then the Depositor shall remove the Trustee and the Depositor
shall appoint a successor trustee, acceptable to the Master Servicer by
written instrument, one copy of which instrument shall be delivered to the
Trustee so removed, one copy to the successor trustee, one copy to the
Securities Administrator and one copy to the Master Servicer.
(c) The Holders of more than 50% of the Class Principal Balance (or
Percentage Interest) of each Class of Certificates may at any time upon 30
days' written notice to the Trustee and to the Depositor remove the Trustee by
such written instrument, signed by such Holders or their attorney-in-fact duly
authorized, one copy of which instrument shall be delivered to the Depositor,
one copy to the Trustee, one copy to the Securities Administrator and one copy
to the Master Servicer; the Depositor shall thereupon appoint a successor
trustee in accordance with this Section.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee, as
provided in Section 6.07. If no successor trustee shall have been so appointed
and shall have accepted appointment within 30 days after such notice of
dismissal, the Trustee who received such notice of dismissal may petition any
court of competent jurisdiction for the appointment of a successor trustee.
(e) The Securities Administrator shall not resign except in
accordance with the provisions of Sections 9.06 and 9.07 hereof, to the same
extent that the Master Servicer is entitled to resign or assign or delegate,
as applicable, its duties hereunder.
(f) If at any time the Securities Administrator shall cease to be
eligible in accordance with the provisions of Section 9.10 hereof and shall
fail to resign after written request thereto by the Depositor, or if at any
time the Securities Administrator shall become incapable of acting, or shall
be adjudged as bankrupt or insolvent, or a receiver of the Securities
Administrator or of its property shall be appointed, or any public officer
shall take charge or control of the Securities Administrator or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or a tax is imposed with respect to the Trust Fund by any state
in which the Securities Administrator or the Trust Fund is located and the
imposition of such tax would be avoided by the appointment of a different
Securities Administrator, then the Depositor or the Trustee may remove the
Securities Administrator and appoint a successor securities administrator by
written instrument, in triplicate, one copy of which instrument shall be
delivered to the Securities Administrator so removed, one copy of which shall
be delivered to the Master Servicer and one copy to the successor securities
administrator.
(g) If no successor securities administrator shall have been
appointed and shall have accepted appointment within 60 days after Xxxxx Fargo
Bank, N.A., as Securities Administrator, ceases to be the securities
administrator pursuant to this Section 6.06, then the Trustee (as successor
Securities Administrator) shall perform the duties of the Securities
Administrator
85
pursuant to this Agreement. The Trustee shall notify the Rating Agencies of
any change of the Securities Administrator. In such event, the Trustee shall
assume all of the rights and obligations of the Securities Administrator
hereunder arising thereafter except that the Trustee shall not be (i) liable
for losses of the predecessor Securities Administrator or any acts or
omissions of the predecessor Securities Administrator hereunder, (ii) deemed
to have made any representations and warranties of the Securities
Administrator made herein and (iii) subject to the same resignation
limitations as set forth in Section 9.06 hereof; provided, however, that the
Trustee (as successor securities administrator) shall not resign until a
successor securities administrator has accepted appointment pursuant to
Section 6.07 hereof. The Trustee shall not be accountable, shall have no
liability and makes no representation as to any acts or omissions hereunder of
the Securities Administrator until such time as the Trustee may be required to
act as successor Securities Administrator pursuant to this Section 6.06 and
thereupon only for the acts or omissions of the Trustee as successor
Securities Administrator. If the Trustee is unwilling, or unable, to act as
successor Securities Administrator, then, in such event, the Trustee may
appoint, or petition a court of competent jurisdiction to appoint a successor
Securities Administrator meeting the criteria set forth in Section 9.10
hereof. Such successor Securities Administrator shall be entitled to the
Securities Administrator Compensation.
(h) The Trustee as successor securities administrator shall be
entitled to be reimbursed for all reasonable costs and expenses associated
with the transfer of the duties of the Securities Administrator by the
predecessor Securities Administrator, including, without limitation, any costs
or expenses associated with the complete transfer of all securities
administrator data and the completion, correction or manipulation of such
securities administrator data as may be required by the Trustee as successor
securities administrator to correct any errors or insufficiencies in such
securities administrator data or otherwise to enable the Trustee or successor
securities administrator to perform the duties of the Securities Administrator
properly and effectively; provided, however, that the predecessor Securities
Administrator shall not be obligated to make any such reimbursements if such
Securities Administrator was terminated or removed without cause or if such
termination or removal was a result of the imposition of any tax on the Trust
Estate by any state in which the Securities Administrator or the Trust Fund is
located. If such costs are not paid by the predecessor Securities
Administrator, the Trustee shall pay such costs from the Trust Fund.
(i) The Trustee, as successor Securities Administrator, as
compensation for its activities hereunder as successor Securities
Administrator, shall be entitled to retain or withdraw from the Distribution
Account an amount equal to the Securities Administrator Compensation.
(j) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Securities Administrator and appoint
a successor securities administrator by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered by the successor
Securities Administrator to the Trustee, one complete set to the Securities
Administrator so removed and one complete set to the successor so appointed.
Notice of any removal of the Securities Administrator shall be given to each
Rating Agency by the successor securities administrator.
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(k) Any resignation or removal of the Securities Administrator and
appointment of a successor securities administrator pursuant to any of the
provisions of this Section 6.06 or Section 9.06 shall become effective upon
acceptance by the successor securities administrator of appointment as
provided in Section 6.07 hereof.
(l) If the Securities Administrator and the Master Servicer are the
same Person, any removal of the Master Servicer pursuant to an Event of
Default shall also result in the removal of the Securities Administrator and
require the appointment of a successor pursuant to this Section and Section
6.07.
(m) The Securities Administrator shall cooperate with the Trustee and
any successor securities administrator in effecting the termination of the
Securities Administrator's responsibilities and rights hereunder, providing to
the Trustee and successor securities administrator all documents and records
in electronic or other form reasonably requested by it to enable it to assume
the Securities Administrator's functions hereunder and for the transfer to the
Trustee or successor Securities Administrator of all amounts in the
Distribution Account or any other account or fund maintained by the Securities
Administrator with respect to the Trust Fund. Neither the Trustee nor the
Master Servicer, as applicable, nor any other successor, as applicable, shall
be deemed to be in default hereunder by reason of any failure to make, or any
delay in making, any distribution hereunder or any portion thereof caused by
(i) the failure of the predecessor Securities Administrator to deliver, or any
delay in delivering, cash, documents or records to it, (ii) the failure of the
predecessor Securities Administrator to cooperate as required by this
Agreement, (iii) the failure of the predecessor Securities Administrator to
deliver the related Mortgage Loan data as required by this Agreement or (iv)
restrictions imposed by any regulatory authority having jurisdiction over the
predecessor Securities Administrator. No successor securities administrator
shall be deemed to be in default hereunder by reason of any failure to make,
or any delay in making, any distribution hereunder or any portion thereof
caused by (i) the failure of the Master Servicer to deliver, or any delay in
delivering cash, documents or records to it related to such distribution, or
(ii) the failure of Trustee or the Master Servicer to cooperate as required by
this Agreement.
Section 6.07 Successor Trustee and Successor Securities
Administrator.
(a) Any successor trustee or successor securities administrator
appointed as provided in Section 6.06 shall execute, acknowledge and deliver
to the Depositor and to its predecessor trustee or predecessor securities
administrator, as applicable, an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
or predecessor securities administrator, as applicable, shall become effective
and such successor trustee or successor securities administrator, as
applicable, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as trustee or securities
administrator, as applicable, herein. The predecessor trustee or predecessor
securities administrator, as applicable, shall deliver to the successor
trustee or successor securities administrator, as applicable, all Trustee
Mortgage Files and documents and statements related to each Trustee Mortgage
File held by it hereunder, and shall duly assign, transfer, deliver and pay
over to the successor trustee the entire Trust Fund, together with all
necessary instruments of transfer and assignment or other documents properly
executed necessary to effect such transfer
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and such of the records or copies thereof maintained by the predecessor
trustee in the administration hereof as may be requested by the successor
trustee and shall thereupon be discharged from all duties and responsibilities
under this Agreement. In addition, the Depositor and the predecessor trustee
or predecessor securities administrator, as applicable, shall execute and
deliver such other instruments and do such other things as may reasonably be
required to more fully and certainly vest and confirm in the successor trustee
or successor securities administrator, as applicable, all such rights, powers,
duties and obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such appointment such successor trustee shall be
eligible under the provisions of Section 6.05.
(c) Upon acceptance of appointment by a successor trustee or
successor securities administrator, as applicable, as provided in this
Section, the Master Servicer shall mail notice of the succession of such
trustee or securities administrator, as applicable, hereunder to all Holders
of Certificates at their addresses as shown in the Certificate Register and to
any Rating Agency. The costs of such mailing shall be borne by the Master
Servicer.
(d) Any successor securities administrator shall also either serve as
auction administrator pursuant to Section 7.01(b) hereof or select an
investment bank to act as auction administrator at the expense of the Trust
Fund.
Section 6.08 Merger or Consolidation of Trustee or the Securities
Administrator.
Any Person into which the Trustee or Securities Administrator may be
merged or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Trustee or Securities
Administrator shall be a party, or any Persons succeeding to the business of
the Trustee or Securities Administrator, shall be the successor to the Trustee
or Securities Administrator hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, provided that, in the case of the
Trustee, such Person shall be eligible under the provisions of Section 6.05.
Section 6.09 Appointment of Co-Trustee, Separate Trustee or
Custodian.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or the Certificateholders evidencing more than 50% of
the Class Principal Balance (or Percentage Interest) of every Class of
Certificates shall have the power from time to time to appoint one or more
Persons, approved by the Trustee, to act either as co-trustees jointly with
the Trustee, or as separate trustees, or as custodians, for the purpose of
holding title to, foreclosing or otherwise taking action with respect to any
Mortgage Loan outside the state where the Trustee has its principal place of
business where such separate trustee or co-trustee is necessary or advisable
(or the Trustee has been advised by the Master Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state
in which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in any
state in which a property securing a Mortgage Loan is located or in any state
in which any portion of the Trust Fund is located. The separate Trustees,
co-trustees, or
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custodians so appointed shall be trustees or custodians for the benefit of all
the Certificateholders and shall have such powers, rights and remedies as
shall be specified in the instrument of appointment; provided, however, that
no such appointment shall, or shall be deemed to, constitute the appointee an
agent of the Trustee. The obligation of the Master Servicer to make Advances
pursuant to Section 5.05 hereof shall not be affected or assigned by the
appointment of a co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred
upon the Trustee in respect of the receipt, custody and payment of
moneys shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate
trustee, co-trustee, or custodian jointly, except to the extent that
under any law of any jurisdiction in which any particular act or acts
are to be performed 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
Fund or any portion thereof in any such jurisdiction, shall be
exercised and performed by such separate trustee, co-trustee, or
custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or
custodian hereunder; and
(iv) the Trustee may at any time, by an instrument in
writing executed by it, with the concurrence of the Depositor, accept
the resignation of or remove any separate trustee, co-trustee or
custodian, so appointed by it or them, if such resignation or removal
does not violate the other terms of this Agreement.
(c) 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, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision
of this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee and a copy given to the Master Servicer.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian 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
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the Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.05 hereunder and no notice to the Certificateholders of the appointment
shall be required under Section 6.07 hereof.
(f) The Securities Administrator on behalf of the Trustee agrees to
instruct the co-trustees, if any, to the extent necessary to fulfill the
Trustee's obligations hereunder.
(g) The Trust shall pay the reasonable compensation of the
co-trustees (which compensation shall not reduce any compensation payable to
the Trustee under such Section).
Section 6.10 Authenticating Agents.
(a) The Trustee may appoint one or more Authenticating Agents which
shall be authorized to act on behalf of the Trustee in authenticating
Certificates. The Securities Administrator is hereby appointed as initial
Authenticating Agent, and the Securities Administrator accepts such
appointment. Wherever reference is made in this Agreement to the
authentication of Certificates by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent must be a corporation organized and doing business
under the laws of the United States of America or of any state, having a
combined capital and surplus of at least $15,000,000, authorized under such
laws to do a trust business and subject to supervision or examination by
federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any Person succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Depositor. Upon receiving a notice of resignation
or upon such a termination, or in case at any time any Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section
6.10, the Trustee may appoint a successor authenticating agent, shall give
written notice of such appointment to the Depositor and shall mail notice of
such appointment to all Holders of Certificates. Any successor authenticating
agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent. No
successor authenticating agent shall be appointed unless eligible under the
provisions of this Section 6.10. No Authenticating Agent shall have
responsibility or liability for any action taken by it as such at the
direction of the Trustee.
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Section 6.11 Indemnification of the Trustee and the Securities
Administrator.
The Trustee and the Securities Administrator and their respective
directors, officers, employees and agents shall be entitled to indemnification
from the Trust Fund for any loss, liability or expense (including the
reasonable compensation and the expenses and disbursements of its agents or
counsel), incurred without negligence or willful misconduct on their part,
arising out of, or in connection with, the acceptance or administration of the
trusts created hereunder or under the Purchase and Servicing Agreements, the
Acknowledgements, the Custodial Agreements, or the Corridor Contracts or in
connection with the performance of their duties hereunder or thereunder
including the costs and expenses of defending themselves against any claim in
connection with the exercise or performance of any of their powers or duties
hereunder or thereunder, provided that:
(i) with respect to any such claim, the Trustee or the
Securities Administrator, as applicable, shall have given the
Depositor written notice thereof promptly after the Trustee, the
Securities Administrator, as applicable, shall have knowledge
thereof;
(ii) while maintaining control over its own defense, the
Trustee or the Securities Administrator, as applicable, shall
cooperate and consult fully with the Depositor in preparing such
defense; and
(iii) notwithstanding anything to the contrary in this
Section 6.11, the Trust Fund shall not be liable for settlement of
any such claim by the Trustee or the Securities Administrator, as
applicable, entered into without the prior consent of the Depositor,
which consent shall not be unreasonably withheld.
The provisions of this Section 6.11 shall survive any termination of
this Agreement and the resignation or removal of the Trustee or the Securities
Administrator or Custodian, as applicable, and shall be construed to include,
but not be limited to any loss, liability or expense under any environmental
law.
Section 6.12 Fees and Expenses of the Securities Administrator, the
Trustee and the Custodians.
(a) For so long as Xxxxx Fargo Bank, National Association is the
Master Servicer and the Securities Administrator, the Securities Administrator
shall be entitled to be paid by the Master Servicer reasonable compensation
for the Securities Administrator's services hereunder in an amount to be
agreed upon between the Master Servicer and the Securities Administrator.
Should Xxxxx Fargo Bank, National Association no longer be both the Master
Servicer and the Securities Administrator, the Securities Administrator shall
be entitled to receive the Securities Administrator Compensation payable
pursuant to Section 4.02(b)(ii) hereof. The Securities Administrator shall be
entitled to all disbursements and advancements incurred or made by the
Securities Administrator in accordance with this Agreement (including fees and
expenses of its counsel and all persons not regularly in its employment),
except any such expenses arising from its negligence, bad faith or willful
misconduct.
(b) As compensation for its services hereunder, the Trustee and each
Custodian shall each be entitled to receive a fee (which, in the case of the
Trustee, shall not be limited by any
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provision of law in regard to the compensation of a trustee of an express
trust) which shall be paid by the Master Servicer pursuant to a separate
agreement between the Trustee, the Custodians and the Master Servicer. Any
expenses incurred by the Trustee or the Custodians shall be reimbursed in
accordance with Section 6.11. Notwithstanding any provision in any Custodial
Agreement to the contrary, the parties hereto acknowledge and agree that (i)
the Master Servicer shall only be obligated to pay to each Custodian the fee
agreed to by such Custodian and the Master Servicer in the separate fee
agreement referred to above, and (ii) except as may be expressly set forth
therein with respect to the Master Servicer, in no event shall the Master
Servicer have any responsibility or liability for the payment of any other
fees or any expenses or other amounts, if any, that may be payable to a
Custodian under the related Custodial Agreement, all of which shall be payable
in accordance with the terms and conditions of such Custodial Agreement.
Section 6.13 Collection of Monies.
Except as otherwise expressly provided in this Agreement, the
Securities Administrator on behalf of the Trustee may demand payment or
delivery of, and shall receive and collect, all money and other property
payable to or receivable by the Securities Administrator on behalf of the
Trustee pursuant to this Agreement. The Securities Administrator on behalf of
the Trustee shall hold all such money and property received by it as part of
the Trust Fund and shall distribute it as provided in this Agreement.
Section 6.14 Events of Default; Trustee To Act; Appointment of
Successor.
(a) The occurrence of any one or more of the following events shall
constitute an "Event of Default" with respect to the Master Servicer:
(i) Any failure by the Master Servicer to furnish the
Securities Administrator the Mortgage Loan data on the Mortgage Loans
sufficient to prepare the reports described in Section 4.05 which
continues unremedied for a period of one Business Day after the date
upon which written notice of such failure shall have been given to
the Master Servicer by the Trustee or the Securities Administrator or
to the Master Servicer, the Securities Administrator and the Trustee
by the Holders of not less than 25% of the Class Principal Balance of
each Class of Certificates affected thereby; or
(ii) Any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the covenants
or agreements (other than those referred to in (vii) and (ix) below)
on the part of the Master Servicer contained in this Agreement which
continues unremedied for a period of 60 days after the date on which
written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer by the Trustee or the
Securities Administrator, or to the Master Servicer, the Securities
Administrator and the Trustee by the Holders of more than 50% of the
Aggregate Voting Interests of the Certificates; or
(iii) A decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar
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proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the Master Servicer, and such decree
or order shall have remained in force undischarged or unstayed for a
period of 60 days or any Rating Agency reduces or withdraws or
threatens to reduce or withdraw the rating of the Certificates
because of the financial condition or loan servicing capability of
such Master Servicer; or
(iv) The Master Servicer shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities,
voluntary liquidation or similar proceedings of or relating to the
Master Servicer or of or relating to all or substantially all of its
property; or
(v) The Master Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to
take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors or
voluntarily suspend payment of its obligations; or
(vi) The Master Servicer shall be dissolved, or shall
dispose of all or substantially all of its assets, or consolidate
with or merge into another entity or shall permit another entity to
consolidate or merge into it, such that the resulting entity does not
meet the criteria for a successor servicer as specified in Section
9.05 hereof; or
(vii) If a representation or warranty set forth in Section
9.03 hereof shall prove to be incorrect as of the time made in any
respect that materially and adversely affects the interests of the
Certificateholders, and the circumstance or condition in respect of
which such representation or warranty was incorrect shall not have
been eliminated or cured within 90 days after the date on which
written notice of such incorrect representation or warranty shall
have been given to the Master Servicer by the Trustee or the
Securities Administrator, or to the Master Servicer, the Securities
Administrator and the Trustee by the Holders of more than 50% of the
Aggregate Voting Interests of the Certificates; or
(viii) A sale or pledge of any of the rights of the Master
Servicer hereunder or an assignment of this Agreement by the Master
Servicer or a delegation of the rights or duties of the Master
Servicer hereunder shall have occurred in any manner not otherwise
permitted hereunder and without the prior written consent of the
Trustee and Certificateholders holding more than 50% of the Aggregate
Voting Interests of the Certificates; or
(ix) After receipt of notice from the Trustee or the
Securities Administrator, any failure of the Master Servicer to make
any Advances required to be made by it hereunder; or
(x) (a) Any failure by the Master Servicer to deposit in the
Distribution Account or remit to the Securities Administrator any
payment required to be made by the Master Servicer under the terms of
this Agreement (other than an Advance required pursuant to Section
5.05 hereof), which failure shall continue unremedied for three
Business Days after the date upon which written notice of such
failure shall have been given to the Master Servicer by the
Securities Administrator, Trustee or the Depositor or
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to the Master Servicer and the Trustee by the Holders of Certificates
having not less than 25% of the Voting Rights evidenced by the
Certificates or (b) any failure by the Master Servicer to deposit in
the Distribution Account or remit to the Securities Administrator any
Advance required to be made by the Master Servicer under Section 5.05
hereof, which failure shall continue unremedied for one Business Day
after the date upon which written notice of such failure shall have
been given to the Master Servicer by the Securities Administrator,
Trustee or the Depositor or to the Master Servicer and the Trustee by
the Holders of Certificates having not less than 25% of the Voting
Rights evidenced by the Certificates; or
(xi) If the Master Servicer and the Securities Administrator
are the same Person, any removal of the Securities Administrator
pursuant to Section 6.06.
If an Event of Default described in clauses (i) through (xi) of this
Section shall occur with respect to the Master Servicer, then, in each and
every case, subject to applicable law, so long as any such Event of Default
shall not have been remedied within any period of time prescribed by this
Section, the Trustee, by notice in writing to the Master Servicer may, and, if
so directed by Certificateholders evidencing more than 50% of the Class
Principal Balance of each Class of Certificates, shall terminate all of the
respective rights and obligations of the Master Servicer hereunder and in and
to the Mortgage Loans and the proceeds thereof. Subject to Section
6.01(c)(ii), if an Event of Default described in clause (x) of this Section
shall occur with respect to the Master Servicer, then, in each and every case,
subject to applicable law, so long as any such Event of Default shall not have
been remedied within any period of time prescribed by this Section, the
Trustee shall by notice in writing to the Master Servicer terminate all of the
respective rights and obligations of the Master Servicer hereunder and in and
to the Mortgage Loans and the proceeds thereof. On or after the receipt by the
Master Servicer of such written notice, all authority and power of the Master
Servicer, and with respect to the Master Servicer only in its capacity as
Master Servicer under this Agreement, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee; and the
Trustee is hereby authorized and empowered to execute and deliver, on behalf
of the defaulting 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 affected Mortgage Loans and related documents or otherwise. The defaulting
Master Servicer agrees to cooperate with the Trustee and the Securities
Administrator in effecting the termination of the defaulting Master Servicer's
responsibilities and rights hereunder as Master Servicer which includes,
without limitation, notifying the Servicers of the assignment of the master
servicing function and providing the Trustee or its designee all documents and
records in electronic or other form reasonably requested by it to enable the
Trustee or its designee to assume the defaulting Master Servicer's functions
hereunder and the transfer to the Trustee for administration by it of all
amounts which shall at the time be or should have been deposited by the
defaulting Master Servicer in the Distribution Account, any related Custodial
Account and any other account or fund maintained with respect to the
Certificates or thereafter received with respect to the affected Mortgage
Loans. The Master Servicer being terminated shall bear all costs of the
transfer of the master servicing to the successor master servicer, including
but not limited to those of the Trustee or Securities Administrator reasonably
allocable to specific employees and overhead, legal fees and expenses,
accounting and financial consulting fees and
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expenses, and costs of amending the Agreement, if necessary. If such costs are
not paid by the terminated Master Servicer, the Trustee shall pay such costs
from the Trust Fund.
Notwithstanding the termination of its activities as Master Servicer,
any terminated Master Servicer shall continue to be entitled to reimbursement
under this Agreement to the extent such reimbursement relates to the period
prior to such Master Servicer's termination.
If any Event of Default shall occur, the Trustee, upon a Responsible
Officer of the Trustee becoming aware of the occurrence thereof, shall
promptly notify the Securities Administrator and each Rating Agency of the
nature and extent of such Event of Default. The Securities Administrator shall
immediately give written notice to the Master Servicer upon the failure of the
Master Servicer to make Advances as required under this Agreement with a copy
to the Trustee.
(b) On and after the time the Master Servicer receives a notice of
termination from the Trustee or the Securities Administrator, as applicable,
pursuant to Section 6.14(a) or the Trustee or the Securities Administrator, as
applicable, receives the resignation of the Master Servicer evidenced by an
Opinion of Counsel pursuant to Section 9.06, the Trustee, unless another
master servicer shall have been appointed, shall be the successor in all
respects to the Master Servicer, in its capacity as such under this Agreement
and the transactions set forth or provided for herein and shall have all the
rights and powers and be subject to all the responsibilities, duties and
liabilities relating thereto and arising thereafter placed on the Master
Servicer, hereunder, including the obligation to make Advances; provided,
however, that any failure to perform such duties or responsibilities caused by
the failure of the Master Servicer to provide information required by this
Agreement shall not be considered a default by the Trustee or the Securities
Administrator, as applicable, hereunder. In addition, neither the Trustee nor
the Securities Administrator, as applicable, shall have any responsibility for
any act or omission of the Master Servicer prior to the issuance of any notice
of termination. The Trustee shall have no liability relating to the
representations and warranties of the Master Servicer set forth in Section
9.03. In the capacity as such successor, the Trustee shall have the same
limitations on liability herein granted to the Master Servicer. As
compensation for being the successor master servicer, the Trustee shall be
entitled to receive all compensation payable to the Master Servicer under this
Agreement. Any successor to the Master Servicer hereunder also may assume the
obligations of the Securities Administrator hereunder as successor in such
capacity shall be entitled to the compensation payable to the Securities
Administrator pursuant to Section 4.02 hereof from and after the date of such
assumption.
(c) Notwithstanding the above, the Trustee may, if it shall be
unwilling to continue to so act, or shall, if it is unable to so act, petition
a court of competent jurisdiction to appoint, or appoint on its own behalf any
established housing and home finance institution servicer, master servicer,
servicing or mortgage servicing institution having a net worth of not less
than $15,000,000 and meeting such other standards for a successor master
servicer, as are set forth in this Agreement, as the successor to such Master
Servicer in the assumption of all of the respective responsibilities, duties
or liabilities of a master servicer, like the Master Servicer. Any entity
designated by the Trustee, may be an Affiliate of the Trustee; provided,
however, that, unless such Affiliate meets the net worth requirements and
other standards set forth herein for a successor master servicer, the Trustee,
in its individual capacity shall agree, at the time of such
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designation, to be and remain liable to the Trust Fund for such Affiliate's
actions and omissions in performing its duties hereunder. 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 no such compensation
shall be in excess of that permitted to the Master Servicer hereunder. The
Trustee and such successor shall take such actions, consistent with this
Agreement, as shall be necessary to effectuate any such succession and may
make other arrangements with respect to the master servicing to be conducted
hereunder which are not inconsistent herewith. The Master Servicer shall
cooperate with the Trustee and any successor master servicer in effecting the
termination of the Master Servicer's responsibilities and rights hereunder
including, without limitation, notifying the Servicers of the assignment of
the master servicing functions and providing the Trustee and successor master
servicer all documents and records in electronic or other form reasonably
requested by it to enable it to assume the Master Servicer's functions
hereunder and the transfer to the Trustee or such successor all amounts which
shall at the time be or should have been deposited by the Master Servicer in
the Distribution Account, any Custodial Account, or any other account or fund
maintained with respect to the Certificates or thereafter be received with
respect to the Mortgage Loans. Neither the Trustee nor the Securities
Administrator, as applicable, nor any other successor, as applicable, shall be
deemed to be in default hereunder by reason of any failure to make, or any
delay in making, any distribution hereunder or any portion thereof caused by
(i) the failure of the Master Servicer to deliver, or any delay in delivering,
cash, documents or records to it, (ii) the failure of the Master Servicer to
cooperate as required by this Agreement, (iii) the failure of the Master
Servicer to deliver the related Mortgage Loan data as required by this
Agreement or (iv) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer. No successor master servicer shall be
deemed to be in default hereunder by reason of any failure to make, or any
delay in making, any distribution hereunder or any portion thereof caused by
(i) the failure of the Securities Administrator to deliver, or any delay in
delivering cash, documents or records to it related to such distribution, or
(ii) the failure of Trustee or the Securities Administrator to cooperate as
required by this Agreement.
Section 6.15 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event
of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 6.14, shall have the right, in its own name and as
trustee of the Trust Fund, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no
remedy provided for by this Agreement shall be exclusive of any other remedy,
and each and every remedy shall be cumulative and in addition to any other
remedy, and no delay or omission to exercise any right or remedy shall impair
any such right or remedy or shall be deemed to be a waiver of any Event of
Default.
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Section 6.16 Waiver of Defaults.
More than 50% of the Aggregate Voting Interests of the
Certificateholders may waive any default or Event of Default by the Master
Servicer in the performance of its obligations hereunder, except that a
default in the making of any required deposit to the Distribution Account that
would result in a failure of the Securities Administrator or the Paying Agent
to make any required payment of principal of or interest on the Certificates
may only be waived with the consent of 100% of the affected
Certificateholders. Upon any such waiver of a past default, such default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been 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.
Section 6.17 Notification to Holders.
Upon termination of the Master Servicer or appointment of a successor
to the Master Servicer, in each case as provided herein, the Trustee shall
promptly mail notice thereof by first class mail to the Securities
Administrator and the Certificateholders at their respective addresses
appearing on the Certificate Register. The Trustee shall also, within 45 days
after the occurrence of any Event of Default known to the Trustee, give
written notice thereof to the Securities Administrator and the
Certificateholders, unless such Event of Default shall have been cured or
waived prior to the issuance of such notice and within such 45-day period.
Section 6.18 Directions by Certificateholders and Duties of Trustee
During Event of Default.
Subject to the provisions of Section 8.01 hereof, during the
continuance of any Event of Default, Holders of Certificates evidencing not
less than 25% of the Class Principal Balance (or Percentage Interest) of each
Class of Certificates affected thereby may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; provided, however, that the Trustee shall be under no obligation to
pursue any such remedy, or to exercise any of the trusts or powers vested in
it by this Agreement (including, without limitation, (i) the conducting or
defending of any administrative action or litigation hereunder or in relation
hereto and (ii) the terminating of the Master Servicer or any successor master
servicer from its rights and duties as master servicer hereunder) at the
request, order or direction of any of the Certificateholders, unless such
Certificateholders shall have offered to the Trustee security or indemnity
reasonably satisfactory to it against the cost, expenses and liabilities which
may be incurred therein or thereby; and, provided further, that, subject to
the provisions of Section 8.01, the Trustee shall have the right to decline to
follow any such direction if the Trustee, in accordance with an Opinion of
Counsel, determines that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith determines that the action or
proceeding so directed would involve it in personal liability for which it is
not indemnified to its satisfaction.
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Section 6.19 Action Upon Certain Failures of the Master Servicer and
Upon Event of Default.
In the event that a Responsible Officer of the Trustee shall have
actual knowledge or written notice of any action or inaction of the Master
Servicer that would become an Event of Default upon the Master Servicer's
failure to remedy the same after notice, the Trustee shall give notice thereof
to the Master Servicer.
Section 6.20 Preparation of Tax Returns and Other Reports.
(a) The Securities Administrator shall prepare or cause to be prepared on
behalf of the Trust Fund, based upon information calculated in accordance with
this Agreement pursuant to instructions given by the Depositor, and the
Securities Administrator shall file federal tax returns, all in accordance
with Article X hereof. If the Securities Administrator is notified in writing
that a state tax return or other return is required, then, at the sole expense
of the Trust Fund, the Securities Administrator shall prepare and file such
state income tax returns and such other returns as may be required by
applicable law relating to the Trust Fund, and, if required by state law,
shall file any other documents to the extent required by applicable state tax
law (to the extent such documents are in the Securities Administrator's
possession). The Securities Administrator shall forward copies to the
Depositor of all such returns and Form 1099 supplemental tax information and
such other information within the control of the Securities Administrator as
the Depositor may reasonably request in writing, and shall forward to each
Certificateholder such forms and furnish such information within the control
of the Securities Administrator as are required by the Code and the REMIC
Provisions to be furnished to them, and will prepare and forward to
Certificateholders Form 1099 (supplemental tax information) (or otherwise
furnish information within the control of the Securities Administrator) to the
extent required by applicable law. The Master Servicer will indemnify the
Securities Administrator and the Trustee for any liability of or assessment
against the Securities Administrator or the Trustee, as applicable, resulting
from any error in any of such tax or information returns directly resulting
from errors in the information provided by such Master Servicer except to the
extent that such information was provided in reasonable reliance upon
information from any Servicer.
(b) The Securities Administrator shall prepare and file with the
Internal Revenue Service ("IRS"), on behalf of the Trust Fund and each REMIC
created hereunder, an application for an employer identification number on IRS
Form SS-4 or by any other acceptable method. The Securities Administrator
shall also file a Form 8811 as required. The Securities Administrator, upon
receipt from the IRS of the Notice of Taxpayer Identification Number Assigned,
shall upon request promptly forward a copy of such notice to the Trustee and
the Depositor. The Securities Administrator shall furnish any other
information that is required by the Code and regulations thereunder to be made
available to the Certificateholders. The Master Servicer agrees that it shall
cause each Servicer to, provide the Securities Administrator with such
information related to the Mortgage Loans in the possession of such Servicer,
as may reasonably be required for the Securities Administrator to prepare such
reports.
(c) Within 15 days after each Distribution Date, the Securities
Administrator shall, on behalf of the Trust and in accordance with industry
standards, file with the Securities and Exchange Commission (the "Commission")
via the Electronic Data Gathering and Retrieval
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System (XXXXX), a Form 8-K (or any comparable form containing the same or
comparable information or other information mutually agreed upon) with a copy
of the report to the Certificateholders for such Distribution Date as an
exhibit thereto. Prior to Xxxxx 00, 0000 (xxx, if applicable, prior to March
31 of each year), the Securities Administrator shall, on behalf of the Trust
and in accordance with industry standards, file with the Commission via XXXXX
a Form 10-K with respect to the Trust Fund. In addition, the Master Servicer
will cause an officer in charge of master servicing to execute the
certification (the "Form 10-K Certification") required pursuant to Rule 13a-14
under the Securities Exchange Act of 1934, as amended, and to file the same
with the Commission prior to Xxxxx 00, 0000 (xxx, if applicable, prior to
March 31 of each year). To the extent any information or exhibits required to
be included in the Form 10-K are not timely received by the Securities
Administrator prior to March 31, the Securities Administrator shall, on behalf
of the Trust, file one or more amended Form 10-Ks to include such missing
information or exhibits promptly after receipt thereof by the Securities
Administrator. Promptly following the first date legally permissible under
applicable regulations and interpretations of the Commission, the Securities
Administrator shall, on behalf of the Trust and in accordance with industry
standards, file with the Commission via XXXXX a Form 15 Suspension
Notification with respect to the Trust Fund, if applicable. The Master
Servicer agrees to furnish to the Securities Administrator promptly, 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 with the Commission other than
those specified in this section.
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ARTICLE VII
PURCHASE OF MORTGAGE LOANS AND
TERMINATION OF THE TRUST FUND
Section 7.01 Purchase of Mortgage Loans; Termination of Trust Fund
Upon Purchase or Liquidation of All Mortgage Loans.
(a) The respective obligations and responsibilities of the Trustee,
the Securities Administrator and the Master Servicer created hereby (other
than the obligation of the Securities Administrator to make payments to the
Certificateholders as set forth in Section 7.02), shall terminate on the
earliest of (i) the final payment or other liquidation of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property, (ii)
the sale or auction of the property held by the Trust Fund in accordance with
both (x) Section 7.01(b) or 7.01(c) and (iii) the Latest Possible Maturity
Date; provided, however, that in no event shall the Trust Fund 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 hereof. Any termination
of the Trust Fund shall be carried out in such a manner so that the
termination of each REMIC included therein shall qualify as a "qualified
liquidation" under the REMIC Provisions.
(b) On the Initial Optional Purchase Date the Auction Administrator
shall solicit bids for the Mortgage Loans, any related REO Property and any
other property remaining in the Trust Fund (collectively, the "Assets") from
at least three institutions that are regular purchasers and/or sellers in the
secondary market of residential whole mortgage loans similar to the Mortgage
Loans. If the Auction Administrator receives at least three bids for the
Assets, and one of such bids is equal to or greater than the Minimum Auction
Price, the Auction Administrator shall sell (such sale, an "Auction") the
related Assets to the highest bidder (the "Auction Purchaser") at the price
offered by the Auction Purchaser (the "Mortgage Loan Auction Price"). If the
Auction Administrator receives less than three bids, or does not receive any
bid that is at least equal to the Minimum Auction Price, the Auction
Administrator shall, on each six-month anniversary of the Initial Optional
Purchase Date for the Mortgage Loans, repeat these auction procedures until
the Auction Administrator receives a bid that is at least equal to the Minimum
Auction Price, at which time the Auction Administrator shall sell the Assets
to the Auction Purchaser at that Mortgage Loan Auction Price; provided,
however, that the Auction Administrator shall not be required to repeat these
auction procedures on any Distribution Date for any six-month anniversary of
the Initial Optional Purchase Date unless the Auction Administrator reasonably
believes that there is a reasonable likelihood of receiving a bid of at least
the Minimum Auction Price. The Auction Administrator shall give notice to the
Rating Agencies and each Servicer that is servicing any of the Mortgage Loans
of the sale of the related Assets pursuant to this Section 7.01(b) (an
"Auction Sale") and of the Auction Date.
(c) In the event that the Master Servicer chooses to exercise its
optional termination rights it shall do so in accordance with the following:
On any Distribution Date occurring after the Initial Optional
Purchase Date related to the Mortgage Loans, the Master Servicer has the
option to cause the Trust Fund to adopt a plan of
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complete liquidation of the Mortgage Loans pursuant to Sections 7.02 and 7.03
hereof to sell all of the property related thereto. If the Master Servicer
elects to exercise such option, it shall no later than 30 days prior to the
Distribution Date selected for purchase of the Mortgage Loans and all other
assets of the Trust Fund related to the Certificates (the "Purchase Date")
deliver written notice to the Trustee and the Securities Administrator and
either (a) deposit in the Distribution Account the related Redemption Price or
(b) state in such notice that the Redemption Price shall be deposited in the
Distribution Account not later than 10:00 a.m., New York City time, on the
applicable Purchase Date. Upon exercise of such option, the property of the
Trust Fund related to the Mortgage Loans shall be sold to the Master Servicer
at a price equal to the related Redemption Price.
(d) The Depositor, the Master Servicer, each Servicer, the Securities
Administrator, the Trustee and the Custodian shall be reimbursed from the
related Redemption Price for any Advances, Servicer Advances, accrued and
unpaid Servicing Fees or other amounts with respect to the Mortgage Loans and
any related assets being purchased pursuant to Section 7.01(b) or (c) above
that are reimbursable to such parties (and such other amounts which, if not
related to the Mortgage Loans and other assets of the Trust Fund not being
purchased, that are then due and owing to any such Person) under this
Agreement and the related Purchase and Servicing Agreement or the related
Custodial Agreement.
Section 7.02 Procedure Upon Redemption Termination of Trust Fund.
(a) Notice of any termination pursuant to the provisions of Section
7.01, specifying the Distribution Date upon which the final distribution shall
be made or the purchase of the Trust's assets will occur, shall be given
promptly by the Securities Administrator by first class mail to the
Certificateholders mailed in the case of a redemption of the Certificates, no
later than (i) the first day of the month in which the Distribution Date
selected for redemption of such Certificates shall occur or (ii) upon (x) the
sale of all of the property of the Trust Fund by the Securities Administrator
or in the case of a sale of assets of the Trust Fund, or (y) upon the final
payment or other liquidation of the last Mortgage Loan or REO Property in the
Trust Fund. Such notice shall specify (A) the Initial Optional Purchase Date,
Distribution Date upon which final distribution on the Certificates of all
amounts required to be distributed to Certificateholders pursuant to Section
5.02 will be made upon presentation and surrender of the Certificates at the
Certificate Registrar's Corporate Trust Office, and (B) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distribution
being made only upon presentation and surrender of the Certificates at the
office or agency of the Securities Administrator therein specified. The
Securities Administrator shall give such notice to the Trustee, the Master
Servicer and the Certificate Registrar at the time such notice is given to
Holders of the Certificates. Upon any such termination, the duties of the
Certificate Registrar with respect to the affected Certificates shall
terminate and, in the event that such termination is the second termination
pursuant to Section 7.01, the Securities Administrator shall terminate the
Distribution Account and any other account or fund maintained with respect to
the Certificates, subject to the Securities Administrator's obligation
hereunder to hold all amounts payable to Certificateholders in trust without
interest pending such payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, \
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the Securities Administrator 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 one year
after the second notice any Certificates shall not have been surrendered for
cancellation, the Securities Administrator may take appropriate steps to
contact the remaining Certificateholders concerning surrender of such
Certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Securities
Administrator shall deliver any remaining funds being held by it to the Holder
of the Class A-R Certificates and the Holder of the Class A-R Certificates
shall, subject to applicable state law relating to escheatment, hold all
amounts distributable to such Holders for the benefit of such Holders. No
interest shall accrue on any amount held by the Securities Administrator and
not distributed to a Certificateholder due to such Certificateholder's failure
to surrender its Certificate(s) for payment of the final distribution thereon
in accordance with this Section. The foregoing provisions are intended to
distribute to each Class of Certificates any accrued and unpaid interest
and/or principal to which they are entitled based on their Pass-Through Rates
and Class Certificate Balances or Notional Amounts set forth in the
Preliminary Statement upon liquidation of the Trust Fund.
(c) Any reasonable expenses incurred by the Securities Administrator
in connection with any purchase or termination or liquidation of the Trust
Fund shall be reimbursed from proceeds received from the liquidation of the
Trust Fund.
(d) Any purchase of the Assets by the related Auction Purchaser shall
be made on an Auction Date by receipt of the Auction Administrator of the
related Mortgage Loan Auction Price from the Auction Purchaser, and deposit of
the such Mortgage Loan Auction Price into the Distribution Account by the
Auction Administrator before the Distribution Date on which such purchase is
effected. Upon deposit of such purchase price into the Distribution Account,
the Trustee and the Securities Administrator, shall, upon request and at the
expense of the Auction Purchaser, execute and deliver all such instruments of
transfer or assignment, in each case without recourse, as shall be reasonably
requested by the Auction Purchaser to vest title in the Auction Purchaser in
the Assets so purchased and shall transfer or deliver to the Auction Purchaser
the purchased Assets.
Section 7.03 Additional Trust Fund Termination Requirements.
(a) On the termination of the Trust Fund under Section 7.01 (a), upon
an Auction Sale pursuant to Section 7.01(b) or upon the exercise of the right
to purchase all of the Mortgage Loans, pursuant to Section 7.01(c), the
Securities Administrator, on behalf of the Trustee, shall comply with
requirements of this Section 7.03 with respect to each Lower Tier REMIC
relating to the assets to be sold (the "Affected REMIC") and with respect to
the Certificates corresponding to the Affected REMIC (the "Corresponding
Certificates"), unless the party having the right to purchase the assets of
the Affected REMIC (the "Purchaser") delivers to the Trustee and the
Securities Administrator, an Opinion of Counsel (at the Master Servicer's
expense), addressed to the Trustee and the Securities Administrator to the
effect that the failure of the Trustee and the Securities Administrator to
comply with the requirements of this Section 7.03 will not result in an
Adverse REMIC Event:
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(i) Within 89 days prior to the time of making the final
payment on the Corresponding Certificates, (and upon notification by
(1) the Auction Administrator in the case of a purchase under Section
7.01(b) or (2) the Master Servicer in the case of a purchase under
Section 7.01(c)(i) or Section 7.01(c)(ii), as applicable) the
Securities Administrator on behalf of the Trustee shall adopt on
behalf of the Affected REMIC, a plan of complete liquidation, meeting
the requirements of a qualified liquidation under the REMIC
Provisions;
(ii) Any sale of the assets of the Affected REMIC shall be
for cash and shall occur at or after the time the plan of complete
liquidation is adopted and prior to the time the final payments on
the Corresponding Certificates are made;
(iii) On the date specified for final payment of the
Corresponding Certificates, the Securities Administrator shall make
final distributions of principal and interest on the Corresponding
Certificates in accordance with Section 5.02 and, after payment of,
or provision for any outstanding expenses, distribute or credit, or
cause to be distributed or credited, to the Holders of the Residual
Certificates all cash on hand after such final payment (other than
cash retained to meet claims), and the portion of the Trust Fund (and
the Affected REMIC) shall terminate at that time; and
(iv) In no event may the final payment on the Corresponding
Certificates or the final distribution or credit to the Holders of
the Residual Certificates be made after the 89th day from the date on
which the plan of complete liquidation is adopted.
(b) By its acceptance of a Residual Certificate, each Holder thereof
hereby agrees to accept the plan of complete liquidation adopted by the
Securities Administrator on behalf of the Trustee under this Section and to
take such other action in connection therewith as may be reasonably requested
by the Trustee, the Securities Administrator or any Servicer.
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01 Limitation on Rights of Holders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or this Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of
this Trust Fund, nor otherwise affect the rights, obligations and liabilities
of the parties hereto or any of them. Except as otherwise expressly provided
herein, no Certificateholder, solely by virtue of its status as a
Certificateholder, shall have any right to vote or in any manner otherwise
control the Master Servicer or the operation and management of the Trust Fund,
or the obligations of the parties hereto, nor shall anything herein set forth,
or contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members of
an association, nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
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(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of Certificates evidencing not less than 25% of the
Class Principal Amount or Class Notional Amount (or Percentage Interest) of
Certificates of each Class affected thereby 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 cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty 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 and no direction
inconsistent with such written request has been given such Trustee during such
sixty-day period by such Certificateholders; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder, the Securities Administrator and the Trustee, that no one
or more Holders of Certificates shall have any right in any manner whatever by
virtue or by availing of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 8.02 Access to List of Holders.
(a) If the Trustee is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee,
within fifteen days after receipt by the Certificate Registrar of a request by
the Trustee in writing, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Certificateholders of each Class as
of the most recent Record Date.
(b) If three or more Holders or Certificate Owners (hereinafter
referred to as "Applicants") apply in writing to the Certificate Registrar,
and such application states that the Applicants desire to communicate with
other Holders with respect to their rights under this Agreement or under the
Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Certificate Registrar shall, within
five Business Days after the receipt of such application, afford such
Applicants reasonable access during the normal business hours of the
Certificate Registrar to the most recent list of Certificateholders held by
the Certificate Registrar or shall, as an alternative, send, at the
Applicants' expense, the written communication proffered by the Applicants to
all Certificateholders at their addresses as they appear in the Certificate
Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing
Agency, by receiving and holding a Certificate, agrees with the Depositor, the
Master Servicer, the Securities Administrator, the Certificate Registrar and
the Trustee that none of the Depositor, the Master Servicer, the Securities
Administrator, the Certificate Registrar nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of
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the Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 8.03 Acts of Holders of Certificates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders or Certificate Owners, if the Holder is a Clearing Agency, may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and
the Securities Administrator and, where expressly required herein, to the
Master Servicer. Such instrument or instruments (as the action embodies
therein and evidenced thereby) are herein sometimes referred to as an "Act" of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agents shall be sufficient
for any purpose of this Agreement and conclusive in favor of the Trustee, the
Securities Administrator and the Master Servicer, if made in the manner
provided in this Section. Each of the Trustee, the Securities Administrator
and the Master Servicer shall promptly notify the others of receipt of any
such instrument by it, and shall promptly forward a copy of such instrument to
the others.
(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 the certificate of any notary public or other officer
authorized by law to take acknowledgments or deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership,
such certificate or affidavit shall also constitute sufficient proof of his
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 (whether or not such Certificates
shall be overdue and notwithstanding any notation of ownership or other
writing thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and none of the Trustee, the Securities Administrator,
the Master Servicer or the Depositor shall be affected by any notice to the
contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by 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 thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by
the Trustee or the Master Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
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ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of Servicers'
and Master Servicer's Obligations.
(a) The Master Servicer, on behalf of the Trustee, the Depositor and
the Certificateholders shall monitor the performance of the Servicers under
the Purchase and Servicing Agreements, and shall use its reasonable good faith
efforts to cause the Servicers duly and punctually to perform all of their
respective duties and obligations thereunder. Upon the occurrence of a default
of which a Responsible Officer of the Master Servicer has actual knowledge
under a Purchase and Servicing Agreement, the Master Servicer shall promptly
notify the Trustee thereof, and shall specify in such notice the action, if
any, the Master Servicer is taking in respect of such default. So long as any
such default shall be continuing, the Master Servicer may, and shall if it
determines such action to be in the best interests of Certificateholders, (i)
terminate all of the rights and powers of such Servicer pursuant to the
applicable provisions of the related Purchase and Servicing Agreement; (ii)
exercise any rights it may have to enforce the related Purchase and Servicing
Agreement against such Servicer; and/or (iii) waive any such default under the
related Purchase and Servicing Agreement or take any other action with respect
to such default as is permitted thereunder. Notwithstanding anything to the
contrary in this Agreement, with respect to any Additional Collateral Mortgage
Loan, the Master Servicer will have no duty or obligation to supervise,
monitor or oversee the activities of the related Servicer under any Purchase
and Servicing Agreement with respect to any Additional Collateral or under any
agreement relating to the pledge of, or the perfection of a pledge or security
interest in, any Additional Collateral except upon the occurrence of the
following events (i) in the case of a final liquidation of any Mortgaged
Property secured by Additional Collateral, the Master Servicer shall enforce
the obligation of the Servicer under the related Servicing Agreement to
liquidate such Additional Collateral as required by such Servicing Agreement,
and (ii) if the Master Servicer assumes the obligations of such Servicer as
successor Servicer under the related Servicing Agreement pursuant to this
Section 9.01, as successor Servicer, it shall be bound to service and
administer the Additional Collateral in accordance with the provisions of such
Servicing Agreement.
(b) Upon any termination by the Master Servicer of a Servicer's rights
and powers pursuant to its Purchase and Servicing Agreement, the rights and
powers of such Servicer with respect to the related Mortgage Loans shall vest
in the Master Servicer and the Master Servicer shall be the successor in all
respects to such Servicer in its capacity as Servicer with respect to such
Mortgage Loans under the related Purchase and Servicing Agreement, unless or
until the Master Servicer shall have appointed (and the Trustee shall have
acknowledged), with the consent of the Rating Agencies and in accordance with
the applicable provisions of the related Purchase and Servicing Agreement, a
new Xxxxxx Xxx- or FHLMC-approved Person to serve as successor to the
Servicer; provided, however, that it is understood and agreed 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 a successor
servicer (including the Master Servicer). With such letter from the Rating
Agencies, the Master Servicer may elect to continue to serve as successor
servicer under the Purchase and Servicing Agreement. Upon appointment of a
successor servicer, as authorized under this Section 9.01(b), unless the
successor servicer shall
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have assumed the obligations of the terminated Servicer under such Purchase
and Servicing Agreement, the Master Servicer and such successor servicer shall
enter into a servicing agreement in a form substantially similar to the
affected Purchase and Servicing Agreement, and the Trustee shall acknowledge
such servicing agreement. In connection with any such appointment, the Master
Servicer may make such arrangements for the compensation of such successor
servicer as it and such successor servicer shall agree, but in no event shall
such compensation of any successor servicer (including the Master Servicer) be
in excess of that payable to the Servicer under the affected Purchase and
Servicing Agreement.
The Master Servicer shall pay the costs of such enforcement (including
the termination of a Servicer, the appointment of a successor servicer or the
transfer and assumption of the servicing by the Master Servicer) at its own
expense and shall be reimbursed therefor initially (i) by the terminated
Servicer, (ii) from a general recovery resulting from such enforcement only to
the extent, if any, that such recovery exceeds all amounts due in respect of
the related Mortgage Loans, (iii) from a specific recovery of costs, expenses
or attorney's fees against the party against whom such enforcement is
directed, or (iv) to the extent that such amounts described in (i)-(iii) above
are insufficient to reimburse the Master Servicer for such costs of
enforcement, from the Trust Fund, as provided in Section 9.04.
If the Master Servicer assumes the servicing with respect to any of
the Mortgage Loans, it will not assume liability for the representations and
warranties of any Servicer it replaces or for the errors or omissions of such
Servicer.
If the Seller is the owner of the servicing rights and the Seller chooses to
terminate that Servicer with or without cause and sell those servicing rights
to a successor servicer, then the Depositor shall (i) cause the Seller to give
reasonable prior written notice to the Master Servicer, and (ii) obtain a
letter from the Rating Agencies indicating that the appointment of the
proposed successor servicer will not result in a downgrade or withdrawal of
the rating of any of the Certificates, and a New Xxxxxx Mae- or FHLMC-approved
Person reasonably acceptable to the Master Servicer shall be chosen by the
Seller and appointed as successor servicer with the acknowledgment of the
Master Servicer and the Trustee; provided, however, that the Seller shall not
be required to get a no-downgrade letter from the Rating Agencies if: (i) the
Rating Agencies received prior written notice of the transfer of the servicing
rights and the name of the successor Servicer, (ii) such successor Servicer
has a servicing rating in the highest category of Fitch or Xxxxx'x to the
extent that Fitch or Xxxxx'x, respectively, is a Rating Agency, and such
successor Servicer has a servicer evaluation ranking in one of the two highest
categories of S&P to the extent that S&P is a Rating Agency, and (iii) such
successor Servicer shall service the related Mortgage Loans under either the
Purchase and Servicing Agreement together with the related Assignment
Agreement under which such Mortgage Loans are currently being serviced or
under another Servicing Agreement together with a related Assignment Agreement
that have already been reviewed and approved by the Rating Agencies. The
Depositor shall cause the costs of such transfer including any costs of such
transfer (including any costs of the Master Servicer) to be borne by the
Seller.
(c) Upon any termination of a Servicer's rights and powers pursuant to
its Purchase and Servicing Agreement, the Master Servicer shall promptly
notify the Trustee and the Rating Agencies, specifying in such notice that the
Master Servicer or any successor servicer, as the
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case may be, has succeeded such Servicer under the related Purchase and
Servicing Agreement, or under any other servicing agreement reasonably
satisfactory to the Master Servicer and the Rating Agencies, which notice
shall also specify the name and address of any such successor servicer.
(d) The Depositor shall not consent to the assignment by any Servicer
of such Servicer's rights and obligations under the related Purchase and
Servicing Agreement without the prior written consent of the Master Servicer,
which consent shall not be unreasonably withheld.
(e) The Trustee shall execute and deliver, at the written request of
the Master Servicer or any Servicer, and furnish to the Master Servicer and
any Servicer, at the expense of the requesting party, a power of attorney in
the standard form provided by the Trustee to take title to the Mortgaged
Properties after foreclosure in the name of and on behalf of the Trustee and
for the purposes described herein to the extent necessary or desirable to
enable the Master Servicer or any Servicer to perform its respective duties.
The Trustee shall not be liable for the actions of the Master Servicer or any
Servicer under such powers of attorney.
Section 9.02 Assumption of Master Servicing by Trustee.
(a) In the event the Master Servicer shall for any reason no longer be
the Master Servicer (including by reason of any Event of Default by the Master
Servicer under this Agreement), the Trustee shall thereupon assume all of the
rights and obligations of such Master Servicer hereunder and under each
Purchase and Servicing Agreement entered into with respect to the Mortgage
Loans or shall appoint or petition a court to appoint a Xxxxxx-Xxx or
FHLMC-approved servicer as successor servicer that is acceptable to the
Depositor and the Rating Agencies. The Trustee, as successor master servicer,
its designee or any successor master servicer appointed by the Trustee shall
be deemed to have assumed all of the Master Servicer's interest herein and
therein to the same extent as if such Purchase and Servicing Agreements had
been assigned to the assuming party, except that the Master Servicer shall not
thereby be relieved of any liability or obligations of the Master Servicer
under such Purchase and Servicing Agreement accruing prior to its replacement
as Master Servicer, and shall be liable to the Trustee, and hereby agrees to
indemnify and hold harmless the Trustee from and against all costs, damages,
expenses and liabilities (including reasonable attorneys' fees) incurred by
the Trustee as a result of such liability or obligations of the Master
Servicer and in connection with the Trustee's assumption (but not its
performance, except to the extent that costs or liability of the Trustee are
created or increased as a result of negligent or wrongful acts or omissions of
the Master Servicer prior to its replacement as Master Servicer) of the Master
Servicer's obligations, duties or responsibilities thereunder.
(b) The Master Servicer that has been terminated shall, upon request
of the Trustee but at the expense of such Master Servicer, deliver to the
assuming party all documents and records relating to each Purchase and
Servicing Agreement, this Agreement and the related Mortgage Loans and an
accounting of amounts collected and held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of each Purchase and
Servicing Agreement and this Agreement to the assuming party.
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Section 9.03 Representations and Warranties of the Master Servicer.
The Master Servicer hereby represents and warrants to the Depositor,
the Securities Administrator and the Trustee, for the benefit of the
Certificateholders, as of the Closing Date that:
(i) it is validly existing and in good standing under the laws
of the United States of America as a national banking association, and
as Master Servicer has full power and authority to transact any and
all business contemplated by this Agreement and to execute, deliver
and comply with its obligations under the terms of this Agreement, the
execution, delivery and performance of which have been duly authorized
by all necessary corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the
Master Servicer and its performance and compliance with the terms of
this Agreement will not (A) violate the Master Servicer's charter or
bylaws, (B) violate any law or regulation or any administrative decree
or order to which it is subject or (C) constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Master Servicer is a party
or by which it is bound or to which any of its assets are subject,
which violation, default or breach would materially and adversely
affect the Master Servicer's ability to perform its obligations under
this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto,
a legal, valid and binding obligation of the Master Servicer,
enforceable against it in accordance with the terms hereof, except as
such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights in general, and by general equity principles
(regardless of whether such enforcement is considered in a proceeding
in equity or at law);
(iv) the Master Servicer is not in default with respect to any
order or decree of any court or any order or regulation of any
federal, state, municipal or governmental agency to the extent that
any such default would materially and adversely affect its performance
hereunder;
(v) the Master Servicer is not a party to or bound by any
agreement or instrument or subject to any charter provision, bylaw or
any other corporate restriction or any judgment, order, writ,
injunction, decree, law or regulation that may materially and
adversely affect its ability as Master Servicer to perform its
obligations under this Agreement or that requires the consent of any
third person to the execution of this Agreement or the performance by
the Master Servicer of its obligations under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which
would prohibit its entering into this Agreement or performing its
obligations under this Agreement;
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(vii) the Master Servicer, or an affiliate thereof the primary
business of which is the servicing of conventional residential
mortgage loans, is a Xxxxxx Mae- or FHLMC-approved seller/servicer;
(viii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Master Servicer of or compliance by
the Master Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations and orders (if any) as have been obtained;
and
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer.
It is understood and agreed that the representations and warranties
set forth in this Section shall survive the execution and delivery of this
Agreement. The Master Servicer shall indemnify the Depositor, the Securities
Administrator and the Trustee and hold them harmless against any loss,
damages, penalties, fines, forfeitures, legal fees and related costs,
judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a material
breach of the Master Servicer's representations and warranties contained in
this Section 9.03. It is understood and agreed that the enforcement of the
obligation of the Master Servicer set forth in this Section to indemnify the
Depositor, the Securities Administrator and the Trustee as provided in this
Section constitutes the sole remedy (other than as set forth in Section 6.14)
of the Depositor, the Securities Administrator and the Trustee, respecting a
breach of the foregoing representations and warranties. Such indemnification
shall survive any termination of the Master Servicer as Master Servicer
hereunder, the resignation or removal of the Trustee and any termination of
this Agreement.
Any cause of action against the Master Servicer relating to or arising
out of the breach of any representations and warranties made in this Section
shall accrue upon discovery of such breach by either the Depositor, the Master
Servicer or the Trustee or notice thereof by any one of such parties to the
other parties.
Section 9.04 Compensation to the Master Servicer.
The Master Servicer shall be compensated for its duties hereunder
pursuant to Section 4.02(b) hereof. The Master Servicer shall either retain or
withdraw from the Distribution Account (i) amounts necessary to reimburse
itself for any previously unreimbursed Advances, Servicer Advances and
Nonrecoverable Advances with respect to the Mortgage Loans in accordance with
the definition of "Available Funds" and (ii) amounts representing assumption
fees, late payment charges or other ancillary income not included in the
definition of "Available Funds" and which are not required to be remitted by
the Servicers to the Securities Administrator or deposited by the Securities
Administrator into the Distribution Account and (iii) any amounts to which the
Master Servicer is entitled pursuant to 4.01(e) hereof. 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.
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In addition, the Master Servicer shall be entitled to reimbursement
from the Distribution Account for all reasonable expenses, disbursements and
advances incurred or made by the Master Servicer in connection with the
performance of its duties hereunder and under the Purchase and Servicing
Agreements, as modified by the Acknowledgements (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), to
the extent not otherwise reimbursed pursuant to this Agreement, except any
such expense, disbursement or advance as may be attributable to its willful
misfeasance, bad faith or negligence.
The Master Servicer and any director, officer, employee or agent of
the Master Servicer 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 Purchase and Servicing Agreements or the
Certificates, other than any loss, liability or expense resulting from the
Master Servicer's failure to perform its duties hereunder or thereunder or
incurred by reason of the Master Servicer's negligence, willful misfeasance or
bad faith.
Section 9.05 Merger or Consolidation.
Any Person into which the Master Servicer may be merged or
consolidated, or any Person resulting from any merger, conversion, other
change in form 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 to the Master Servicer hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or resulting Person to the Master Servicer shall be a Person that
shall be qualified and approved to service mortgage loans for Xxxxxx Xxx or
FHLMC and shall have a net worth of not less than $15,000,000.
Section 9.06 Resignation of Master Servicer and Securities
Administrator.
Except as otherwise provided in Sections 9.05, 9.07 and 9.10 hereof,
neither the Master Servicer nor the Securities Administrator shall resign from
the obligations and duties hereby imposed on it unless the duties of the
Master Servicer or the Securities Administrator, as applicable, hereunder are
no longer permissible under applicable law or are in material conflict by
reason of applicable law with any other activities carried on by it and cannot
be cured. Any such determination permitting the resignation of the Master
Servicer or the Securities Administrator shall be evidenced by an Opinion of
Counsel that shall be Independent to such effect delivered to the Trustee. No
resignation of the Master Servicer or the Securities Administrator shall
become effective until the Trustee shall have assumed, or a successor master
servicer or successor securities administrator, as applicable, shall have been
appointed pursuant to Section 6.07 or 9.02, as applicable, and until such
successor shall have assumed, such Master Servicer's or Securities
Administrator's responsibilities and obligations under this Agreement. Notice
of any such resignation shall be given promptly by the Master Servicer or the
Securities Administrator, as applicable, to the Depositor and the Trustee.
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If, at any time, the Master Servicer resigns under this Section 9.06,
or transfers or assigns its rights and obligations under Section 9.07, or is
removed as Master Servicer pursuant to Section 6.14, then at such time Xxxxx
Fargo Bank, National Association (or any successor thereto) also shall resign
or be removed, as applicable, as Securities Administrator, Auction
Administrator, Paying Agent, Authenticating Agent and Certificate Registrar
under this Agreement. In such event, the obligations of the Master Servicer
and the Securities Administrator shall be assumed by the Trustee as successor
or by such other successor master servicer and/or securities administrator, as
applicable, appointed by the Trustee (subject to the provisions of Sections
6.07 and 9.02(a)).
Section 9.07 Assignment or Delegation of Duties by the Master Servicer
and Securities Administrator.
Except as expressly provided herein, neither the Master Servicer nor
the Securities Administrator shall assign or transfer any of their respective
rights, benefits or privileges hereunder to any other Person, or delegate to
or subcontract with, or authorize or appoint any other Person to perform any
of the respective duties, covenants or obligations to be performed by the
Master Servicer or Securities Administrator, as applicable, hereunder;
provided, however, that the Master Servicer and the Securities Administrator
shall each have the right with the prior written consent of the Trustee and
the Depositor (which consent shall not be unreasonably withheld), and upon
delivery to the Trustee and the Depositor of a letter from each Rating Agency
to the effect that such action shall not result in a downgrading of the
Certificates, to delegate or assign to or subcontract with or authorize or
appoint any qualified Person to perform and carry out any of the respective
duties, covenants or obligations to be performed and carried out by the Master
Servicer or the Securities Administrator, as applicable, hereunder. Notice of
such permitted assignment shall be given promptly by the Master Servicer or
the Securities Administrator, as applicable, to the Depositor and the Trustee.
If, pursuant to any provision hereof, the respective duties of the Master
Servicer or the Securities Administrator are transferred to a successor master
servicer or successor securities administrator, as applicable, the entire
amount of the compensation payable to the Master Servicer or Securities
Administrator pursuant hereto shall thereafter be payable to such successor
master servicer or successor securities administrator. Such successor Master
Servicer shall also pay the fees of the Trustee, as provided herein.
Section 9.08 Limitation on Liability of the Master Servicer and
Others.
(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
Trustee or the Certificateholders for any action taken or for refraining from
the taking of any action in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect
the Master Servicer or any such person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in its performance of its duties or by reason of reckless disregard for its
obligations and duties under this Agreement. 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. The Master Servicer
shall be under no obligation to appear in, prosecute or defend any legal
action that is not incidental to its duties to master service
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the Mortgage Loans in accordance with this Agreement and that in its opinion
may involve it in any expenses or liability; provided, however, that the
Master Servicer may in its sole discretion undertake any such action that it
may deem necessary or desirable in 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 Distribution Account.
The Master Servicer shall not be liable for any acts or omissions of
the Servicers except to the extent that damages or expenses are incurred as a
result of such act or omissions and such damages and expenses would not have
been incurred but for the negligence, willful misfeasance, bad faith or
recklessness of the Master Servicer in supervising, monitoring and overseeing
the obligations of the Servicers in this Agreement and the Purchase and
Servicing Agreements.
Section 9.09 Indemnification; Third-Party Claims.
The Master Servicer agrees to indemnify the Depositor, the Securities
Administrator and the Trustee, and hold them harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the
Depositor, the Securities Administrator or the Trustee may sustain as a result
of the Master Servicer's willful misfeasance, bad faith or negligence in the
performance of its duties hereunder or by reason of its reckless disregard for
its obligations and duties under this Agreement, the Acknowledgements and the
related Purchase and Servicing Agreements. The Depositor, the Securities
Administrator and the Trustee shall immediately notify the Master Servicer if
a claim is made by a third party with respect to this Agreement or the
Mortgage Loans entitling the Depositor, the Securities Administrator or the
Trustee to indemnification under this Section 9.09(a), whereupon the Master
Servicer shall assume the defense of any such claim and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim.
Section 9.10 Eligibility Requirements for Securities Administrator.
The Securities Administrator hereunder shall at all times be a
corporation or association organized and doing business under the laws the
United States of America or any state thereof, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, subject to supervision or examination by federal or state
authority and with a credit rating of at least investment grade or at least
"A/F1" by Fitch if Fitch is a Rating Agency. If such corporation or
association publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section 9.10 the combined capital and surplus of
such corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 9.10, the Securities
Administrator shall resign immediately in the manner and with the effect
specified in Section 6.06 hereof. The entity serving as Securities
Administrator may have normal banking and trust
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relationships with the Depositor, the Seller, the Master Servicer, any
Custodian or the Trustee and their respective affiliates.
The Securities Administrator (i) may not be an Originator, Master
Servicer, Servicer, the Depositor or an affiliate of the Depositor unless the
Securities Administrator is in an institutional trust department, (ii) must be
authorized to exercise corporate trust powers under the laws of its
jurisdiction of organization, and (iii) must be rated at least "A/F1" by
Fitch, if Fitch is a Rating Agency, or the equivalent rating by S&P or Xxxxx'x
(or such rating acceptable to Fitch pursuant to a written confirmation). If at
any time the Securities Administrator shall cease to be eligible in accordance
with the provisions of this Section 9.10, the Securities Administrator shall
resign in the manner and with the effect specified in Section 6.06 hereof. If
no successor Securities Administrator shall have been appointed and shall have
accepted appointment within 60 days after the Securities Administrator ceases
to be the Securities Administrator pursuant to this Section 9.10, then the
Trustee shall become the successor Securities Administrator and shall, in
accordance with Article VI hereof and in such capacity, perform the duties of
the Securities Administrator pursuant to this Agreement. The Trustee shall
notify the Rating Agencies of any change of Securities Administrator.
ARTICLE II
REMIC ADMINISTRATION
Section 10.01 REMIC Administration.
(a) REMIC elections as set forth in the Preliminary Statement shall be
made on Forms 1066 or other appropriate federal tax or information return for
the taxable year ending on the last day of the calendar year in which the
Certificates are issued. The regular interests and residual interest in each
REMIC shall be as designated in the Preliminary Statement.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 860G(a)(9) of the Code. The latest
possible maturity date for purposes of Treasury Regulation 1.860G-1(a)(4) will
be the Latest Possible Maturity Date.
(c) The Securities Administrator shall represent the Trust Fund in any
administrative or judicial proceeding relating to an examination or audit by
any governmental taxing authority with respect thereto. The Securities
Administrator shall pay any and all tax related expenses (not including taxes)
of each REMIC, including but not limited to any professional fees or expenses
related to audits or any administrative or judicial proceedings with respect
to such REMIC that involve the Internal Revenue Service or state tax
authorities, but only to the extent that (i) such expenses are ordinary or
routine expenses, including expenses of a routine audit but not expenses of
litigation (except as described in (ii)); or (ii) such expenses or liabilities
(including taxes and penalties) are attributable to the negligence or willful
misconduct of the Securities Administrator in fulfilling its duties hereunder
(including its duties as tax return preparer). The Securities Administrator
shall be entitled to reimbursement of expenses to the extent provided in
clause (i) above from the Distribution Account, provided, however, the
Securities Administrator shall not be entitled to reimbursement for expenses
incurred in connection with the preparation of tax returns and other reports
as required by Section 6.20 and this Section.
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(d) The Securities Administrator shall prepare, the Trustee shall sign
and the Securities Administrator shall file all of each REMIC's federal and
appropriate state tax and information returns as such REMIC's direct
representative. The expenses of preparing and filing such returns shall be
borne by the Securities Administrator. In preparing such returns, the
Securities Administrator shall, with respect to each REMIC other than the
Master REMIC: (i) treat the accrual period for interests in such REMIC as the
calendar month; (ii) account for distributions made from each REMIC other than
the Master REMIC as made on the first day of each succeeding calendar month;
(iii) account for income under the all-OID method at the weighted average of
the Net Mortgage Rates; (iv) use the aggregation method provided in Treasury
Regulation section 1.1275-2(c); and (v) account for income and expenses
related to each REMIC other than the Master REMIC in the manner resulting in
the lowest amount of excess inclusion income possible accruing to the Holder
of the residual interest in each such REMIC.
(e) The Securities Administrator or its designee shall perform on
behalf of each REMIC all reporting and other tax compliance duties that are
the responsibility of such REMIC under the Code, the REMIC Provisions, or
other compliance guidance issued by the Internal Revenue Service or any state
or local taxing authority. Among its other duties, if required by the Code,
the REMIC Provisions, or other such guidance, the Securities Administrator
shall provide, upon receipt of additional reasonable compensation, (i) to the
Treasury or other governmental authority such information as is necessary for
the application of any tax relating to the transfer of a Residual Certificate
to any disqualified person or organization pursuant to Treasury Regulation
1.860E-2(a)(5) and any person designated in Section 860E(e)(3) of the Code and
(ii) to the Certificateholders and the Trustee such information or reports as
are required by the Code or REMIC Provisions.
(f) To the extent within their control, the Trustee, the Securities
Administrator, the Master Servicer and the Holders of Certificates shall take
any action or cause any REMIC to take any action necessary to maintain the
status of any REMIC as a REMIC under the REMIC Provisions and shall assist
each other as necessary to create or maintain such status. None of the
Trustee, the Securities Administrator, the Master Servicer, nor the Holder of
any Residual Certificate shall knowingly take any action, cause any REMIC to
take any action or fail to take (or fail to cause to be taken) any action
that, under the REMIC Provisions, if taken or not taken, as the case may be,
could result in an Adverse REMIC Event unless the Trustee, the Securities
Administrator and the Master Servicer have received an Opinion of Counsel (at
the expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such status or result in the imposition
of such a tax. In addition, prior to taking any action with respect to any
REMIC or the assets therein, or causing any REMIC to take any action, which is
not expressly permitted under the terms of this Agreement, any Holder of a
Residual Certificate will consult with the Trustee, the Securities
Administrator, the Master Servicer or their respective designees, in writing,
with respect to whether such action could cause an Adverse REMIC Event to
occur with respect to any REMIC, and no such Person shall take any such action
or cause any REMIC to take any such action as to which the Trustee, the
Securities Administrator or the Master Servicer has advised it in writing that
an Adverse REMIC Event could occur; provided, however, that if no Adverse
REMIC Event would occur but such action could result in the imposition of
additional taxes on the Residual Certificateholders, no such
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Person shall take any such action, or cause any REMIC to take any such action
without the written consent of the Residual Certificateholders.
(g) Each Holder of a Residual Certificate shall pay when due any and
all taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such taxes are not paid by a Residual
Certificateholder, the Paying Agent shall pay any remaining REMIC taxes out of
current or future amounts otherwise distributable to the Holder of the
Residual Certificate in any such REMIC or, if no such amounts are available,
(A) out of other amounts held in the Distribution Account, and shall reduce
amounts otherwise payable to holders of regular interests in any such REMIC or
(B) to the extent that any such taxes are imposed on the REMIC as a result of
the breach of any representation, warranty or covenant of the Master Servicer,
the Securities Administrator or any Servicer, then the Master Servicer, the
Securities Administrator, or that Servicer, as applicable, shall pay when due
any and all such taxes.
(h) The Securities Administrator shall, for federal income tax
purposes, maintain books and records with respect to each REMIC on a calendar
year and on an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement.
(j) Neither the Securities Administrator nor the Master Servicer shall
enter into any arrangement by which any REMIC will receive a fee or other
compensation for services.
(k) [Reserved].
(l) The Class A-R Holder shall act as "tax matters person" with
respect to each REMIC created hereunder and the Securities Administrator shall
act as agent for the Class A-R Holder in such roles, unless and until another
party is so designated by the Class A-R Holder.
(m) The Securities Administrator, on behalf of the Trustee, shall
treat the Reserve Fund as an outside reserve fund within the meaning of
Treasury Regulation 1.860G-2(h) that is owned by the holders of the Class
Notional Amount Certificates, and that is not an asset of any REMIC created
hereunder. The Securities Administrator, on behalf of the Trustee, shall treat
the rights of the holders of the LIBOR Certificates to receive payments from
the Reserve Fund and from the Corridor Contracts as rights in an interest rate
cap contract written by the Holders of the Notional Amount Certificates or by
the Corridor Contract Counterparty, as applicable, in respect of any Net WAC
Shortfalls distribution in favor of the Holders of the LIBOR Certificates.
Thus, the LIBOR Certificates shall be treated as representing ownership of not
only a Master REMIC regular interest, but also ownership of an interest in an
interest rate cap contract. For purposes of determining the issue price of the
Master REMIC regular interest, the Securities Administrator, on behalf of the
Trustee, shall assume that the Class A-1 Corridor Contract, the Class A-2
Corridor Contract, the Class A-3 Corridor Contract, the Class M Senior
Corridor Contract and the Class M Junior Corridor Contract entered into with
the Corridor Contract Counterparty have values of $718,000, $300,000,
$100,000, $100,000 and $100,000, respectively.
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Section 10.02 Prohibited Transactions and Activities.
Neither the Depositor, the Master Servicer nor the Trustee shall sell,
dispose of, or substitute for any of the Mortgage Loans, except in a
disposition pursuant to (i) the foreclosure of a Mortgage Loan, (ii) the
bankruptcy of the Trust Fund, (iii) the termination of each REMIC pursuant to
Article VII of this Agreement, (iv) a substitution pursuant to Article II of
this Agreement or (v) a repurchase of Mortgage Loans pursuant to Article II of
this Agreement, nor acquire any assets for any REMIC, nor sell or dispose of
any investments in the Distribution Account for gain, nor accept any
contributions to any REMIC after the Closing Date, unless it has received an
Opinion of Counsel (at the expense of the party causing such sale,
disposition, substitution or acceptance) that such disposition, acquisition,
substitution, or acceptance will not result in an Adverse REMIC Event, (b)
affect the distribution of interest or principal on the Certificates or (c)
result in the encumbrance of the assets transferred or assigned to the Trust
Fund (except pursuant to the provisions of this Agreement).
The Master Servicer with respect to the Mortgage Loans shall not
consent to any modification of any such Mortgage Loan for which the consent of
the Master Servicer is required under the applicable Purchase and Servicing
Agreement under which such Mortgage Loan is serviced, that would (i) increase
the interest rate in respect of such Mortgage, defer for a period in excess of
six months or forgive the payment of any principal or interest, reduce the
outstanding principal amount (except for actual payments of principal),
increase the Servicing Fee on such Mortgage Loan or extend the final maturity
date on such Mortgage Loan, or (ii) result in a substitution or release of
collateral or in the provision of additional collateral for the Mortgage Loan,
unless the applicable Mortgage Loan is in default or default is reasonably
foreseeable in respect of such Mortgage Loan, or the Master Servicer has
received an Opinion of Counsel (at the expense of the party requesting consent
for such modification) that such modification will not result in an Adverse
REMIC Event.
Section 10.03 Indemnification with Respect to Prohibited Transactions
or Loss of REMIC Status.
Upon the occurrence of an Adverse REMIC Event due to the negligent
performance by the Securities Administrator of its duties and obligations set
forth herein, the Securities Administrator shall indemnify the
Certificateholders of the related Residual Certificate against any and all
losses, claims, damages, liabilities or expenses ("Losses") resulting from
such negligence; provided, however, that the Securities Administrator shall
not be liable for any such Losses attributable to the action or inaction of
the Depositor, the Trustee or the Holder of the Residual Certificate, nor for
any such Losses resulting from misinformation provided by any of the foregoing
parties on which the Securities Administrator has relied. Notwithstanding the
foregoing, however, in no event shall the Securities Administrator have any
liability (1) for any action or omission that is taken in accordance with and
in compliance with the express terms of, or which is expressly permitted by
the terms of, this Agreement or under any Purchase and Servicing Agreements or
under any Acknowledgement, (2) for any Losses other than arising out of
malfeasance, willful misconduct or negligent performance by the Service
Administrator of its duties and obligations set forth herein, and (3) for any
special or consequential damages to Certificateholders of the related Residual
Certificate (in addition to payment of principal and interest on the
Certificates).
112
Section 10.04 REO Property.
(a) Notwithstanding any other provision of this Agreement, the Master
Servicer, acting on behalf of the Trustee hereunder, shall not, except to the
extent provided in the applicable Purchase and Servicing Agreement, knowingly
permit any Servicer to, rent, lease, or otherwise earn income on behalf of any
REMIC with respect to any REO Property which might cause an Adverse REMIC
Event unless the applicable Servicer has provided to the Trustee and the
Securities Administrator an Opinion of Counsel concluding that, under the
REMIC Provisions, such action would not adversely affect the status of any
REMIC as a REMIC and any income generated for any REMIC by the REO Property
would not result in an Adverse REMIC Event.
(b) The Depositor shall cause the applicable Servicer (to the extent
provided in its Purchase and Servicing Agreement) to make reasonable efforts
to sell any REO Property for its fair market value. In any event, however, the
Depositor shall, or shall cause the applicable Servicer (to the extent
provided in its Purchase and Servicing Agreement) to, dispose of any REO
Property within three years of its acquisition by the Trust Fund unless the
Depositor or the applicable Servicer (on behalf of the Trust Fund) has
received a grant of extension from the Internal Revenue Service to the effect
that, under the REMIC Provisions and any relevant proposed legislation and
under applicable state law, the REMIC may hold REO Property for a longer
period without causing an Adverse REMIC Event. If such an extension has been
received, then the Depositor, acting on behalf of the Trustee hereunder,
shall, or shall cause the applicable Servicer to, continue to attempt to sell
the REO Property for its fair market value for such period longer than three
years as such extension permits (the "Extended Period"). If such an extension
has not been received and the Depositor or the applicable Servicer, acting on
behalf of the Trust Fund hereunder, is unable to sell the REO Property within
33 months after its acquisition by the Trust Fund or if such an extension, has
been received and the Depositor or the applicable Servicer is unable to sell
the REO Property within the period ending three months before the close of the
Extended Period, the Depositor shall cause the applicable Servicer, before the
end of the three year period or the Extended Period, as applicable, to (i)
purchase such REO Property at a price equal to the REO Property's fair market
value or (ii) auction the REO Property to the highest bidder (which may be the
applicable Servicer) in an auction reasonably designed to produce a fair price
prior to the expiration of the three-year period or the Extended Period, as
the case may be.
Section 10.05 Fidelity.
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 and
trustees.
113
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Binding Nature of Agreement; Assignment.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 11.02 Entire Agreement.
This Agreement contains the entire agreement and understanding among
the parties hereto with respect to the subject matter hereof, and supersedes
all prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent
with any of the terms hereof.
Section 11.03 Amendment.
(a) This Agreement may be amended from time to time by the Depositor,
the Master Servicer, the Securities Administrator, and the Trustee, without
notice to or the consent of any of the Holders, (i) to cure any ambiguity or
mistake, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the
Certificates, the Trust Fund or this Agreement in any Offering Document, or to
correct or supplement any provision herein which may be inconsistent with any
other provisions herein or with the provisions of any Purchase and Servicing
Agreement, (iii) to make any other provisions with respect to matters or
questions arising under this Agreement or (iv) to add, delete, or amend any
provisions to the extent necessary or desirable to comply with any
requirements imposed by the Code and the REMIC Provisions. No such amendment
effected pursuant to the preceding sentence shall, as evidenced by an Opinion
of Counsel, result in an Adverse REMIC Event, nor shall such amendment
effected pursuant to clause (iii) of such sentence adversely affect in any
material respect the interests of any Holder. Prior to entering into any
amendment without the consent of Holders pursuant to this paragraph, the
Trustee shall be provided with an Opinion of Counsel (at the expense of the
party requesting such amendment) to the effect that such amendment is
permitted under this Section. Any such amendment shall be deemed not to
adversely affect in any material respect any Holder, if the Trustee receives
written confirmation from each Rating Agency that such amendment will not
cause such Rating Agency to reduce the then current rating assigned to the
Certificates.
(b) This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Securities Administrator and the Trustee,
with the consent of the Holders of not less than 66-2/3% of the Class
Principal Balance (or Percentage Interest) of each Class of Certificates
affected thereby for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Holders; provided, however, that no
such amendment shall be made unless the Trustee receives an Opinion of
Counsel, at the expense of the party requesting the change, that
114
such change will not cause an Adverse REMIC Event; and provided further, that
no such amendment may (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 or (ii) reduce the aforesaid percentages of Class Principal
Balance or Class Notional Amount (or Percentage Interest) of Certificates of
each Class, the Holders of which are required to consent to any such amendment
without the consent of the Holders of 100% of the Class Principal Balance or
Class Notional Amount (or Percentage Interest) of each Class of Certificates
affected thereby. For purposes of this paragraph, references to "Holder" or
"Holders" shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
(c) Promptly after the execution of any such amendment, the Securities
Administrator shall furnish written notification of the substance of such
amendment to each Holder, the Depositor and the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under this
Section 11.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations
as the Trustee may prescribe.
Section 11.04 Voting Rights.
Except to the extent that the consent of all affected
Certificateholders is required pursuant to this Agreement, with respect to any
provision of this Agreement requiring the consent of Certificateholders
representing specified percentages of aggregate outstanding Certificate
Balance or Class Notional Amount (or Percentage Interest), Certificates owned
by the Depositor, the Master Servicer, the Securities Administrator, the
Trustee, any Servicer or any Affiliates thereof are not to be counted so long
as such Certificates are owned by the Depositor, the Master Servicer, the
Securities Administrator, the Trustee, any Servicer or any Affiliate thereof.
Section 11.05 Provision of Information.
(a) For so long as any of the Certificates of any Class are
"restricted securities" within the meaning of Rule 144(a)(3) under the Act,
each of the Depositor, the Master Servicer, the Securities Administrator and
the Trustee (upon instruction from the Depositor) agree to cooperate with each
other to provide to any Certificateholders and to any prospective purchaser of
Certificates designated by such holder, upon the request of such holder or
prospective purchaser, any information required to be provided to such holder
or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee,
the Master Servicer or the Securities Administrator in providing such
information shall be reimbursed by the Depositor.
(b) The Securities Administrator shall provide to any person to whom a
Prospectus was delivered, upon the request of such person specifying the
document or documents requested, a copy (excluding exhibits) of any report on
Form 8-K or Form 10-K filed with the Securities and Exchange Commission
pursuant to Section 6.20(b). Any reasonable out-of-pocket expenses
115
incurred by the Securities Administrator in providing copies of such documents
shall be reimbursed by the Depositor.
Section 11.06 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK (OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW).
Section 11.07 Notices.
All requests, demands, notices, authorizations, directions, consents,
waivers and communications hereunder shall be in writing and shall be deemed
to have been duly given when received by (a) in the case of the Depositor,
Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
telephone number (000) 000-0000, Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust
2005-11AR, (b) in the case of the Seller, Xxxxxx Xxxxxxx Mortgage Capital
Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxxxx Mortgage Loan Trust 2005-11AR, (c) in the case of the Master Servicer
or the Securities Administrator, Xxxxx Fargo Bank, National Association, X.X.
Xxx 00, Xxxxxxxx, Xxxxxxxx 00000 (or, for overnight deliveries, 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000), telecopy number (000) 000-0000,
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2005-11AR, (d) with respect to
the Trustee or the Certificate Registrar, its respective Corporate Trust
Office and (e) in the case of the Rating Agencies, the address specified
therefor in the definition corresponding to the name of such Rating Agency, or
as to each party such other address as may hereafter be furnished by such
party to the other parties in writing. All demands, notices and communications
to a party hereunder shall be in writing and shall be deemed to have been duly
given when delivered to such party at the relevant address, facsimile number
or electronic mail address set forth above or at such other address, facsimile
number or electronic mail address as such party may designate from time to
time by written notice in accordance with this Section 11.07.
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 severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.09 Indulgences; No Waivers.
Neither the failure nor any delay on the part of a party to exercise
any right, remedy, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege preclude any other or further exercise of the same or of
any other right, remedy, power or privilege, nor shall any waiver of any
right,
116
remedy, power or privilege with respect to any occurrence be construed as a
waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed
by the party asserted to have granted such waiver.
Section 11.10 Headings Not To Affect Interpretation.
The headings contained in this Agreement are for convenience of
reference only, and they shall not be used in the interpretation hereof.
Section 11.11 Benefits of Agreement.
Nothing in this Agreement or in the Certificates, express or implied,
shall give to any Person, other than the parties to this Agreement and their
successors hereunder and the Holders of the Certificates, any benefit or any
legal or equitable right, power, remedy or claim under this Agreement, except
to the extent specified in Section 11.15.
Section 11.12 Special Notices to the Rating Agencies.
(a) The Depositor shall give prompt notice to the Rating Agencies of
the occurrence of any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 11.03;
(ii) any assignment by the Master Servicer of its rights
hereunder or delegation of its duties hereunder;
(iii) the occurrence of any Event of Default described in
Section 6.14;
(iv) any notice of termination given to the Master Servicer
pursuant to Section 6.14 and any resignation of the Master Servicer
hereunder;
(v) the appointment of any successor to any Master Servicer
pursuant to Section 6.14;
(vi) the making of a final payment pursuant to Section 7.02;
and
(vii) any termination of the rights and obligations of any
Servicer under the applicable Purchase and Servicing Agreement.
(b) All notices to the Rating Agencies provided for this Section shall
be in writing and sent by first class mail, telecopy or overnight courier, to
the address specified therefor in the definition corresponding to the name of
such Rating Agency.
(c) The Securities Administrator shall provide or make available to
the Rating Agencies reports prepared pursuant to Section 4.05. In addition,
the Securities Administrator shall, at the expense of the Trust Fund, make
available to each Rating Agency such information as such Rating Agency may
reasonably request regarding the Certificates or the Trust Fund, to the extent
that such information is reasonably available to the Securities Administrator.
117
(d) The Depositor hereby represents to S&P that, to the Depositor's
knowledge, the information provided to such Rating Agency, including the loan
level detail, is true and correct according to such Rating Agency's
requirements.
Section 11.13 Conflicts.
To the extent that the terms of this Agreement conflict with the terms
of any Purchase and Servicing Agreement, the related Purchase and Servicing
Agreement shall govern.
Section 11.14 Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
Section 11.15 No Petitions.
The Trustee and the Master Servicer (not in its individual corporate
capacity, but solely as Master Servicer hereunder), by entering into this
Agreement, hereby covenant and agree that they shall not at any time institute
against the Depositor, or join in any institution against the Depositor of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to this
Agreement or any of the documents entered into by the Depositor in connection
with the transactions contemplated by this Agreement, except that the Trustee
shall not be prohibited from filing a proof of claim in any such proceeding.
Section 11.16 Indemnification by Trust.
Pursuant to the Purchase and Servicing Agreements, each of the
Originators and Servicers shall be indemnified by the Trust to the extent
specified in the related Purchase and Servicing Agreement.
Pursuant to the Custodial Agreements, each of the Custodians shall be
indemnified by the Trust to the extent specified in the related Custodial
Agreement.
118
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers hereunto duly authorized as of the
day and year first above written.
XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Associate
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Securities Administrator
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
Solely for purposes of Section 2.05
accepted and agreed to by:
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Director
2
EXHIBIT A
FORMS OF CERTIFICATES
A-1
EXHIBIT B
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn, deposes and
says:
1. That he [she] is [title of officer] ________________________
of [name of Purchaser]
_________________________________________ (the "Purchaser"), a
_______________________ [description of type of entity] duly
organized and existing under the laws of the [State of
__________] [United States], on behalf of which he [she] makes
this affidavit.
2. That the Purchaser's Taxpayer Identification Number is [ ].
3. That the Purchaser is not a "disqualified organization" within
the meaning of Section 860E(e)(5) of the Internal Revenue Code
of 1986, as amended (the "Code") and will not be a
"disqualified organization" as of [date of transfer], and that
the Purchaser is not acquiring a Residual Certificate (as
defined in the Agreement) for the account of, or as agent
(including a broker, nominee, or other middleman) for, any
person or entity from which it has not received an affidavit
substantially in the form of this affidavit. For these
purposes, a "disqualified organization" means the United
States, any state or political subdivision thereof, any
foreign government, any international organization, any agency
or instrumentality of any of the foregoing (other than an
instrumentality if all of its activities are subject to tax
and a majority of its board of directors is not selected by
such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service to
persons in rural areas as described in Code Section
1381(a)(2)(C), any "electing large partnership" within the
meaning of Section 775 of the Code, or any organization (other
than a farmers' cooperative described in Code Section 521)
that is exempt from federal income tax unless such
organization is subject to the tax on unrelated business
income imposed by Code Section 511.
4. That the Purchaser either (x) is not, and on
__________________ [date of transfer] will not be, an employee
benefit plan or other retirement arrangement subject to
Section 406 of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or Section 4975 of the Code
("Code"), (collectively, a "Plan") or a person acting on
behalf of any such Plan or investing the assets of any such
Plan to acquire a Residual Certificate; (y) is an insurance
company that is purchasing the Certificate with funds
contained in an "insurance company general account" as defined
in Section V(e) of Prohibited Transaction Class Exemption
("PTCE") 95-60 and the purchase and holding of the Certificate
satisfy the requirements for exemptive relief under Sections I
and III of XXXX
X-0
95-60; or (z) herewith delivers to the Certificate Registrar
an opinion of counsel satisfactory to the Certificate
Registrar and the Securities Administrator and upon which the
Certificate Registrar, the Trustee, the Master Servicer, the
Depositor and Securities Administrator shall be entitled to
rely, to the effect that the purchase or holding of such
Residual Certificate by the Investor will not result in any
non-exempt prohibited transactions under Title I of ERISA or
Section 4975 of the Code and will not subject the Certificate
Registrar, the Trustee, the Depositor, the Master Servicer or
the Securities Administrator to any obligation in addition to
those undertaken by such entities in the Pooling and Servicing
Agreement, which opinion of counsel shall not be an expense of
the Trust Fund or any of the above parties.
5. That the Purchaser that under the terms of the Pooling and
Servicing Agreement, dated as of December 1, 2005 (the
"Agreement"), by and among Xxxxxx Xxxxxxx Capital I Inc., as
Depositor, Xxxxx Fargo Bank, National Association, as Master
Servicer, as Securities Administrator and, in its capacity as
Securities Administrator, as Auction Administrator, and
Deutsche Bank National Trust Company, as Trustee with respect
to Xxxxxx Xxxxxxx Mortgage Loan Trust 2005-11AR, Mortgage
Pass-Through Certificates, no transfer of the Residual
Certificates shall be permitted to be made to any person
unless the Certificate Registrar has received a certificate
from such transferee containing the representations in
paragraphs 3 and 4 hereof.
6. That the Purchaser does not hold REMIC residual securities as
nominee to facilitate the clearance and settlement of such
securities through electronic book-entry changes in accounts
of participating organizations (such entity, a "Book-Entry
Nominee").
7. That the Purchaser does not have the intention to impede the
assessment or collection of any federal, state or local taxes
legally required to be paid with respect to such Residual
Certificate.
8. That the Purchaser will not transfer a Residual Certificate to
any person or entity (i) as to which the Purchaser has actual
knowledge that the requirements set forth in paragraph 3,
paragraph 6 or paragraph 10 hereof are not satisfied or that
the Purchaser has reason to believe does not satisfy the
requirements set forth in paragraph 7 hereof, and (ii) without
obtaining from the prospective Purchaser an affidavit
substantially in this form and providing to the Certificate
Registrar a written statement substantially in the form of
Exhibit C to the Agreement.
9. That the Purchaser understands that, as the holder of a
Residual Certificate, the Purchaser may incur tax liabilities
in excess of any cash flows generated by the interest and that
it intends to pay taxes associated with holding such Residual
Certificate as they become due.
10. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a
Non-U.S. Person that holds a Residual Certificate in
connection with the conduct of a trade or business
B-2
within the United States and has furnished the transferor the
Certificate Registrar with an effective Internal Revenue
Service Form W-8ECI (Certificate of Foreign Person's Claim for
Exemption From Withholding on Income Effectively Connected
With the Conduct of a Trade or Business in the United States)
or successor form at the time and in the manner required by
the Code or (iii) is a Non-U.S. Person that has delivered to
the transferor, the Trustee and the Certificate Registrar an
opinion of a nationally recognized tax counsel to the effect
that the transfer of such Residual Certificate to it is in
accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of a
Residual Certificate will not be disregarded for federal
income tax purposes. "Non-U.S. Person" means an individual,
corporation, partnership or other person other than (i) a
citizen or resident of the United States; (ii) a corporation,
partnership or other entity created or organized in or under
the laws of the United States or any state thereof, including
for this purpose, the District of Columbia; (iii) an estate
that is subject to U.S. federal income tax regardless of the
source of its income; (iv) a trust if a court within the
United States is able to exercise primary supervision over the
administration of the trust and one or more United States
trustees have authority to control all substantial decisions
of the trust; and, (v) to the extent provided in Treasury
regulations, certain trusts in existence on August 20, 1996
that are treated as United States persons prior to such date
and elect to continue to be treated as United States persons.
11. The Purchaser will not cause income from the Residual
Certificate to be attributable to a foreign permanent
establishment or fixed base of the Purchaser or another U.S.
taxpayer.
12. That the Purchaser agrees to such amendments of the Pooling
and Servicing Agreement as may be required to further
effectuate the restrictions on transfer of any Residual
Certificate to such a "disqualified organization," an agent
thereof, a Book-Entry Nominee, or a person that does not
satisfy the requirements of paragraph 7 and paragraph 10
hereof.
13. That the Purchaser consents to the designation of the
Securities Administrator to act as agent for the "tax matters
person" of each REMIC created by the Trust Fund pursuant to
the Pooling and Servicing Agreement.
B-3
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its [title of officer] this _____ day of __________ 20__.
_______________________________________
[name of Purchaser]
By: ___________________________________
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________ 20__.
NOTARY PUBLIC
_____________________________
COUNTY OF____________________
STATE OF_____________________
My commission expires the _____ day of __________ 20__.
B-4
EXHIBIT C
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
----------------------------
Date
Re: Xxxxxx Xxxxxxx Mortgage Loan Trust 2005-11AR
Mortgage Pass-Through Certificates
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no
actual knowledge that such affidavit is not true and has no reason to believe
that the information contained in paragraph 7 thereof is not true, and has no
reason to believe that the Transferee has the intention to impede the
assessment or collection of any federal, state or local taxes legally required
to be paid with respect to a Residual Certificate. In addition, the Transferor
has conducted a reasonable investigation at the time of the transfer and found
that the Transferee had historically paid its debts as they came due and found
no significant evidence to indicate that the Transferee will not continue to
pay its debts as they become due.
Very truly yours,
--------------------------
Name:
Title:
EXHIBIT D
[RESERVED]
EXHIBIT E
LIST OF PURCHASE AND SERVICING AGREEMENTS
1. Second Amended and Restated Master Mortgage Loan Purchase Agreement, dated
as of February 1, 2004 between Xxxxxx Xxxxxxx Credit Corporation, as seller,
and Xxxxxx Xxxxxxx Mortgage Capital Inc., as purchaser;
2. First Amended and Restated Servicing Agreement dated as of June 10, 2004
between GMAC Mortgage Corporation, as servicer, and Xxxxxx Xxxxxxx Mortgage
Capital Inc.;
3. Master Mortgage Loan Purchase and Warranties Agreement, dated as of January
20, 2005 between First National Bank of Nevada, as seller, and Xxxxxx Xxxxxxx
Mortgage Capital Inc.,
as purchaser;
4. Mortgage Loan Sale and Servicing Agreement, dated as of August 1, 2005
between HSBC Mortgage Corporation (USA), as seller and Xxxxxx Xxxxxxx Mortgage
Capital Inc., as purchaser;
5. Amended and Restated Mortgage Loan Purchase And Warranties Agreement, dated
as of May 1, 2005, between MortgageIT, Inc., as seller, and Xxxxxx Xxxxxxx
Mortgage Capital Inc.;
8. Seller's Purchase, Warranties and Servicing Agreement dated as of September
1, 2004 between Wachovia Mortgage Corporation, as seller and servicer and
Xxxxxx Xxxxxxx Mortgage Capital Inc., as Purchaser;
9. Seller's Purchase, Warranties and Interim Servicing Agreement dated as of
February 28, 2005 between Wachovia Mortgage Corporation, as seller and
servicer and Xxxxxx Xxxxxxx Mortgage Capital Inc., as purchaser;
10. Certain Seller's Waranties and Servicing Agreement, dated as of (i) May 1,
2005, (ii) July 1, 2005, (iii) August 1, 2005 and (iv) September 1, 2005 each
between Xxxxx Fargo Bank, National Association, as seller and servicer, and
Xxxxxx Xxxxxxx Mortgage Capital Inc., as purchaser.
EXHIBIT F
1. Custodial Agreement, dated as of December 1, 2005, between, as seller,
First National Bank of Nevada, as seller, MILA, Inc., as seller, MortgageIT,
Inc., as seller, Wachovia Mortgage Corporation, as seller, Xxxxxx Xxxxxxx
Mortgage Capital Inc., as purchaser, Deutsche Bank National Trust Company, as
trustee, Xxxxx Fargo Bank, National Association, as securities administrator
and master servicer and LaSalle Bank, National Association, as custodian; and
2. Custodial Agreement, dated as of December 1, 2005, between Xxxxxx Xxxxxxx
Credit Corporation, as seller and servicer, GreenPoint Mortgage Funding, Inc.,
as seller and servicer, HSBC Mortgage Corporation (USA) , as seller and
servicer, National City Mortgage Co., as seller and servicer, Wachovia
Mortgage Corporation, as seller and servicer, Xxxxx Fargo Bank, National
Association, as seller and servicer, Xxxxxx Xxxxxxx Mortgage Capital Inc., as
purchaser, Deutsche Bank National Trust Company, as trustee, Xxxxx Fargo Bank,
National Association, as securities administrator and master servicer and
JPMorgan Chase Bank, as custodian.
3. Custodial Agreement, dated as of December 1, 2005, among Xxxxxx Xxxxxxx
Credit Corporation, as seller, Xxxxxx Xxxxxxx Mortgage Capital Inc., as
purchaser, Deutsche Bank National Trust Company, as trustee, Xxxxx Fargo Bank,
National Association, as master servicer and securities administrator, and
Xxxxx Fargo Bank, National Association, as custodian.
EXHIBIT G
ASSIGNMENT AND NOTICE OF TRANSFER WITH RESPECT TO ADDITIONAL
COLLATERAL MORTGAGE LOANS
EXHIBIT H
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Xxxxxx Xxxxxxx Mortgage Loan Trust 2005-11AR,
Mortgage Pass-Through Certificates
Reference is hereby made to the Pooling and Servicing Agreement, dated
as of December 1, 2005 (the "Pooling and Servicing Agreement"), by and among
Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Xxxxx Fargo Bank, National
Association, as Master Servicer, as Securities Administrator and, in its
capacity as Securities Administrator, as Auction Administrator, Deutsche Bank
National Trust Company, as Trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Pooling and Servicing
Agreement.
This letter relates to $__________ initial Certificate Balance of
Class _____ Certificates which are held in the form of Definitive Certificates
registered in the name of ______________ (the "Transferor"). The Transferor
has requested a transfer of such Definitive Certificates for Definitive
Certificates of such Class registered in the name of [insert name of
transferee].
In connection with such request, and in respect of such Certificates,
the Transferor hereby certifies that such Certificates are being transferred
in accordance with (i) the transfer restrictions set forth in the Pooling and
Servicing Agreement and the Certificates and (ii) Rule 144A under the
Securities Act to a purchaser that the Transferor reasonably believes is a
"qualified institutional buyer" within the meaning of Rule 144A purchasing for
its own account or for the account of a "qualified institutional buyer," which
purchaser is aware that the sale to it is being made in reliance upon Rule
144A, in a transaction meeting the requirements of Rule 144A and in accordance
with any applicable securities laws of any state of the United States or any
other applicable jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Underwriter, the Certificate Registrar and the
Depositor.
[Name of Transferor]
By: _______________________
Name:
Title:
Dated: ___________, ____
EXHIBIT I
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
Date
Dear Sirs:
In connection with our proposed purchase of $______________ principal
amount of Xxxxxx Xxxxxxx Mortgage Loan Trust 2005-11AR, Mortgage Pass-Through
Certificates (the "Privately Offered Certificates") of Xxxxxx Xxxxxxx Capital
I Inc. (the "Depositor"), we confirm that:
(1) We understand that the Privately Offered Certificates have not been,
and will not be, registered under the Securities Act of 1933, as
amended (the "Securities Act"), and may not be sold except as
permitted in the following sentence. We agree, on our own behalf and
on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Privately Offered Certificates
within two years of the later of the date of original issuance of the
Privately Offered Certificates or the last day on which such Privately
Offered Certificates are owned by the Depositor or any affiliate of
the Depositor we will do so only (A) to the Depositor, (B) to
"qualified institutional buyers" (within the meaning of Rule 144A
under the Securities Act) in accordance with Rule 144A under the
Securities Act ("QIBs"), (C) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act, or (D) to
an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act
that is not a QIB (an "Institutional Accredited Investor") which,
prior to such transfer, delivers to the Certificate Registrar under
the Pooling and Servicing Agreement, dated as of December 1, 2005 (the
"Pooling and Servicing Agreement"), by and among Xxxxxx Xxxxxxx
Capital I Inc., as Depositor, Xxxxx Fargo Bank, National Association,
as Master Servicer, as Securities Administrator and, in its capacity
as Securities Administrator, as Auction Administrator and Deutsche
Bank National Trust Company, as Trustee, a signed letter in the form
of this letter; and we further agree, in the capacities stated above,
to provide to any person purchasing any of the Privately Offered
Certificates from us a notice advising such purchaser that resales of
the Privately Offered Certificates are restricted as stated herein.
(2) We understand that, in connection with any proposed resale of any
Privately Offered Certificates to an Institutional Accredited
Investor, we will be required to furnish to the Certificate Registrar
a certification from such transferee in the form hereof to confirm
that the proposed sale is being made pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the
Securities Act. We further understand that the Privately Offered
Certificates purchased by us will bear a legend to the foregoing
effect.
(3) We are acquiring the Privately Offered Certificates for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Privately Offered Certificates, and we and any account for which we
are acting are each able to bear the economic risk of such investment.
(4) We are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account or
for one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment discretion.
(5) We have received such information as we deem necessary in order to
make our investment decision.
(6) If we are acquiring ERISA-Restricted Certificates, we understand that
in accordance with ERISA, the Code and the Exemption, no Plan and no
person acting on behalf of such a Plan may acquire such Certificate
except in accordance with Section 3.03(d) of the Pooling and Servicing
Agreement.
Terms used in this letter which are not otherwise defined herein have
the respective meanings assigned thereto in the Pooling and Servicing
Agreement.
You and the Certificate Registrar are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
______________________
[Purchaser]
By:__________________
Name:
Title:
EXHIBIT J
FORM OF ERISA TRANSFER AFFIDAVIT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is the ______________________ of ______________
(the "Investor"), a [corporation duly organized] and existing under the laws
of __________, on behalf of which he makes this affidavit.
2. The Investor either (x) is not, and on ___________ [date of
transfer] will not be, an employee benefit plan or other plan or arrangement
subject to Section 406 of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), (collectively, a "Plan") or a person acting on behalf of
any such Plan or investing the assets of any such Plan; (y) if the Certificate
has been the subject of an ERISA-Qualifying Underwriting, is an insurance
company that is purchasing the Certificate with funds contained in an
"insurance company general account" as defined in Section V(e) of Prohibited
Transaction Class Exemption ("PTCE") 95-60 and the purchase and holding of the
Certificate satisfy the requirements for exemptive relief under Sections I and
III of PTCE 95-60; or (z) herewith delivers to the Certificate Registrar an
opinion of counsel satisfactory to the Certificate Registrar and the
Securities Administrator and upon which the Certificate Registrar, the
Trustee, the Master Servicer, the Depositor and the Securities Administrator
shall be entitled to rely, to the effect that the purchase and holding of such
Certificate by the Investor will not constitute or result in any non-exempt
prohibited transactions under Title I of ERISA or Section 4975 of the Code and
will not subject the Certificate Registrar, the Trustee, the Master Servicer,
the Depositor or the Securities Administrator to any obligation in addition to
those undertaken by such entities in the Pooling and Servicing Agreement,
which opinion of counsel shall not be an expense of the Trust Fund or the
above parties.
3. The Investor hereby acknowledges that under the terms of the
Pooling and Servicing Agreement, dated as of December 1, 2005 (the "Pooling
and Servicing Agreement"), by and among Xxxxxx Xxxxxxx Capital I Inc., as
Depositor, Xxxxx Fargo Bank, National Association, as Master Servicer, as
Securities Administrator and, in its capacity as Securities Administrator, as
Auction Administrator and Deutsche Bank National Trust Company, as Trustee, no
transfer of the ERISA-Restricted Certificates shall be permitted to be made to
any person unless the Certificate Registrar has received a certificate from
such transferee in the form hereof.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to proper authority, by its duly authorized
officer, duly attested, this ____ day of _______________ 20___.
________________________
[Investor]
By: _____________________
Name:
Title:
ATTEST:
________________________
STATE OF )
) ss.:
COUNTY OF )
Personally appeared before me the above-named ________________, known
or proved to me to be the same person who executed the foregoing instrument
and to be the ____________________ of the Investor, and acknowledged that he
executed the same as his free act and deed and the free act and deed of the
Investor.
Subscribed and sworn before me this _____ day of _________ 20___.
________________________
NOTARY PUBLIC
My commission expires the
_____ day of __________ 20___.
EXHIBIT K
FORM OF LETTER OF REPRESENTATIONS
WITH THE DEPOSITORY TRUST COMPANY
[On File with Securities Administrator]
EXHIBIT L-1
FORM OF INITIAL CUSTODIAL CERTIFICATION
November 30, 2005
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Deutsche Bank National Trust Company, as Trustee
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Trust Administration - MS0511
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Xxxxxx Xxxxxxx Mortgage Loan Trust
2005-11AR, Mortgage Pass-Through Certificates, Series 2005-11AR
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of
the Pooling and Servicing Agreement, the undersigned, as Custodian, hereby
certifies that, except for the exceptions noted on the schedule attached
hereto, (a) all documents required to be delivered to the Custodian pursuant
to Sections 2.01(a)(i) through (iv) and (ix)(b), (c) (solely to the extent of
the UCC-1), (g) and (h), and if delivered to it, the documents identified in
Section 2.01(a)(v) through (vii) and (ix)(c) (solely to the extent of the
UCC-3) and (f) of the Pooling and Servicing Agreement are in its possession,
(b) such documents have been reviewed by it and have not been mutilated,
damaged, defaced, torn or otherwise physically altered, and such documents
relate to such Mortgage Loan, (c) based on its review and examination and only
as to the foregoing documents, such documents appear regular on their face and
related to such Mortgage Loan and (d) each Mortgage Note has been endorsed and
each assignment of Mortgage has been delivered as provided in Section 2.01 of
the Pooling and Servicing Agreement. The Custodian has made no independent
examination of any documents contained in each Mortgage File beyond the review
specifically mentioned above. The Custodian makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents delivered in accordance with Section 2.01 of the Pooling and
Servicing Agreement or any of the Mortgage Loans identified in the Mortgage
Loan Schedule, or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
The Custodian acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans.
Capitalized terms used herein without definition shall have the meaning
assigned to them in the Pooling and Servicing Agreement.
[DEUTSCHE BANK NATIONAL TRUST COMPANY, as
Custodian]
[JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,as
Custodian]
[LASALLE BANK, NATIONAL ASSOCIATION,]
as Custodian
By: _______________________
Authorized Representative
EXHIBIT L-2
FORM OF FINAL CUSTODIAL CERTIFICATION
November 30, 2005
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Deutsche Bank National Trust Company, as Trustee
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Trust Administration - MS0511
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Xxxxxx Xxxxxxx Mortgage Loan Trust
2005-11AR, Mortgage Pass-Through Certificates, Series 2005-11AR
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of
the Pooling and Servicing Agreement, the undersigned, as Custodian, hereby
certifies that, except for the exceptions noted on the schedule attached
hereto, (a) all documents required to be delivered to the Custodian pursuant
to Sections 2.01(a)(i) through (iv) and (ix)(b), (c) (solely to the extent of
the UCC-1), (g) and (h), and if delivered to it, the documents identified in
Section 2.01(a)(v) through (vii) and (ix)(c) (solely to the extent of the
UCC-3) and (f) of the Pooling and Servicing Agreement are in its possession,
(b) such documents have been reviewed by it and have not been mutilated,
damaged, defaced, torn or otherwise physically altered, and such documents
relate to such Mortgage Loan, (c) based on its examination and only as to the
foregoing documents, these documents with respect to each Mortgage Loan
accurately reflect the information contained in the Mortgage Note and Mortgage
and (d) each Mortgage Note has been endorsed and each assignment of Mortgage
has been delivered as provided in Section 2.01 of the Pooling and Servicing
Agreement. The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically mentioned
above. The Custodian makes no representations as to: (i) the validity,
legality, sufficiency, enforceability or genuineness of any of the documents
delivered in accordance with Section 2.01 of the Pooling and Servicing
Agreement or any of the Mortgage Loans identified in the Mortgage Loan
Schedule, or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
The Custodian acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans.
Capitalized terms used herein without definition shall have the meaning
assigned to them in the Pooling and Servicing Agreement.
[DEUTSCHE BANK NATIONAL TRUST COMPANY,]
as Custodian
[JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,]
as Custodian
[LASALLE BANK, NATIONAL ASSOCIATION]
as Custodian
By: _______________________
Authorized Representative
EXHIBIT M
REQUEST FOR RELEASE OF DOCUMENTS
[Name and Address of appropriate Custodian]
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Xxxxxx Xxxxxxx Mortgage Loan Trust
2005-11AR, Mortgage Pass-Through Certificates, Series 2005-11AR
and Custodial Agreement relating to Xxxxxx Xxxxxxx Mortgage
Loan Trust 2005-11AR
In connection with the administration of the Mortgage Loans in the
Trust created by the above-captioned Pooling and Servicing Agreement and that
are held by you as Custodian pursuant to the above-captioned Custodial
Agreement, we request the release, and hereby acknowledge receipt, of the
Mortgage File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
__________ 1. Mortgage Paid in Full
__________ 2. Foreclosure
__________ 3. Substitution
__________ 4. Other Liquidation (Repurchases, etc.)
__________ 5. Nonliquidation
Reason: ______________________
Address to which Custodian should
Deliver the Mortgage File:
-------------------------------
-------------------------------
-------------------------------
By:_______________________________________
(authorized signer)
Issuer:_____________________________________
Address: ___________________________________
Date: ______________________________________
Custodian
---------------
[insert name of appropriate Custodian]
Please acknowledge the execution of the above request by your signature and
date below:
------------------------------------
Signature
---------------------
Date
Documents returned to Custodian:
------------------------------------
Signature
---------------------
Date
SCHEDULE A
MORTGAGE LOAN SCHEDULE
[On File with the Trustee and the Securities Administrator]
S-1
SCHEDULE B
PRINCIPAL BALANCES SCHEDULE
[Not Applicable]
