XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
Depositor
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Master Servicer and Securities Administrator
And
WACHOVIA BANK, NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2004
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Mortgage Pass-Through Certificates, MLMI Series 2004-A2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS ................................................................................... 3
Section 1.01 Accounting ............................................................................... 37
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES ............................... 38
Section 2.01 Conveyance of Mortgage Loans to Trustee .................................................. 38
Section 2.02 Acceptance of Mortgage Loans by Trustee .................................................. 40
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase Agreement ........................... 43
Section 2.04 Substitution of Mortgage Loans ........................................................... 44
Section 2.05 Issuance of Certificates ................................................................. 45
Section 2.06 Representations and Warranties Concerning the Depositor .................................. 46
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS ................................................ 48
Section 3.01 Master Servicer .......................................................................... 48
Section 3.02 REMIC-Related Covenants .................................................................. 49
Section 3.03 Monitoring of Servicer ................................................................... 49
Section 3.04 Fidelity Bond ............................................................................ 50
Section 3.05 Power to Act; Procedures ................................................................. 50
Section 3.06 Due-on-Sale Clauses; Assumption Agreements ............................................... 51
Section 3.07 Release of Mortgage Files ................................................................ 51
Section 3.08 Documents, Records and Funds in Possession of Master Servicer To Be Held for Trustee ..... 52
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies ................................... 53
Section 3.10 Presentment of Claims and Collection of Proceeds ......................................... 54
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies ................................... 54
Section 3.12 Trustee to Retain Possession of Certain Insurance Policies and Documents ................. 54
Section 3.13 Realization Upon Defaulted Mortgage Loans ................................................ 55
Section 3.14 Compensation for the Master Servicer ..................................................... 55
Section 3.15 REO Property ............................................................................. 55
Section 3.16 Annual Officer's Certificate as to Compliance ............................................ 56
Section 3.17 Annual Independent Accountant's Servicing Report ......................................... 56
Section 3.18 Reports Filed with Securities and Exchange Commission .................................... 57
ARTICLE IV
ACCOUNTS ...................................................................................... 59
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Section 4.01 Protected Accounts ....................................................................... 59
Section 4.02 Master Servicer Collection Account ....................................................... 60
Section 4.03 Permitted Withdrawals and Transfers from the Master Servicer Collection Account .......... 61
Section 4.04 Distribution Account ..................................................................... 62
Section 4.05 Permitted Withdrawals and Transfers from the Distribution Account ........................ 63
ARTICLE V
CERTIFICATES .................................................................................. 65
Section 5.01 The Certificates ......................................................................... 65
Section 5.02 Registration of Transfer and Exchange of Certificates .................................... 65
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates ........................................ 71
Section 5.04 Persons Deemed Owners .................................................................... 71
ARTICLE VI
PAYMENTS TO CERTIFICATEHOLDERS ................................................................ 73
Section 6.01 Distributions on the Certificates ........................................................ 73
Section 6.02 Allocation of Losses ..................................................................... 76
Section 6.03 Payments ................................................................................. 78
Section 6.04 Statements to Certificateholders ......................................................... 78
Section 6.05 Monthly Advances ......................................................................... 80
Section 6.06 Compensating Interest Payments ........................................................... 81
Section 6.07 Distributions on the REMIC I Regular Interests ........................................... 81
ARTICLE VII
THE MASTER SERVICER AND THE DEPOSITOR ......................................................... 83
Section 7.01 Liabilities of the Master Servicer ....................................................... 83
Section 7.02 Merger or Consolidation of the Master Servicer ........................................... 83
Section 7.03 Indemnification of the Trustee, the Master Servicer and the Securities Administrator ..... 83
Section 7.04 Limitations on Liability of the Master Servicer and Others ............................... 84
Section 7.05 Master Servicer Not to Resign ............................................................ 85
Section 7.06 Successor Master Servicer ................................................................ 85
Section 7.07 Sale and Assignment of Master Servicing .................................................. 85
ARTICLE VIII
DEFAULT ....................................................................................... 87
Section 8.01 Events of Default ........................................................................ 87
Section 8.02 Trustee to Act; Appointment of Successor ................................................. 88
Section 8.03 Notification to Certificateholders ....................................................... 89
Section 8.04 Waiver of Defaults ....................................................................... 90
Section 8.05 List of Certificateholders ............................................................... 90
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ARTICLE IX
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR ....................................... 91
Section 9.01 Duties of Trustee ........................................................................ 91
Section 9.02 Certain Matters Affecting the Trustee and the Securities Administrator ................... 93
Section 9.03 Trustee and Securities Administrator Not Liable for Certificates or Mortgage Loans ....... 95
Section 9.04 Trustee and Securities Administrator May Own Certificates ................................ 95
Section 9.05 Trustee's and Securities Administrator's Fees and Expenses ............................... 96
Section 9.06 Eligibility Requirements for Trustee and Securities Administrator ........................ 96
Section 9.07 Insurance ................................................................................ 96
Section 9.08 Resignation and Removal of the Trustee and Securities Administrator ...................... 97
Section 9.09 Successor Trustee and Successor Securities Administrator ................................. 98
Section 9.10 Merger or Consolidation of Trustee or Securities Administrator ........................... 98
Section 9.11 Appointment of Co-Trustee or Separate Trustee ............................................ 98
Section 9.12 Federal Information Returns and Reports to Certificateholders; REMIC Administration ...... 100
ARTICLE X
TERMINATION ................................................................................... 102
Section 10.01 Termination Upon Repurchase by the Depositor or its Designee or Liquidation
of the Mortgage Loans .................................................................... 102
Section 10.02 Additional Termination Requirements ...................................................... 104
ARTICLE XI
MISCELLANEOUS PROVISIONS ...................................................................... 106
Section 11.01 Intent of Parties ........................................................................ 106
Section 11.02 Amendment ................................................................................ 106
Section 11.03 Recordation of Agreement ................................................................. 107
Section 11.04 Limitation on Rights of Certificateholders ............................................... 107
Section 11.05 Acts of Certificateholders ............................................................... 108
Section 11.06 Governing Law ............................................................................ 109
Section 11.07 Notices .................................................................................. 109
Section 11.08 Severability of Provisions ............................................................... 110
Section 11.09 Successors and Assigns ................................................................... 110
Section 11.10 Article and Section Headings ............................................................. 110
Section 11.11 Counterparts ............................................................................. 110
Section 11.12 Notice to Rating Agencies ................................................................ 110
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EXHIBITS
Exhibit A-1 - Form of Class A and Class M Certificates
Exhibit A-2 - Form of Class B Certificates
Exhibit A-3 - Form of Class R Certificates
Exhibit B - Mortgage Loan Schedule
Exhibit C - [Reserved]
Exhibit D - Request for Release of Documents
Exhibit E-1 - Form of Transfer Affidavit pursuant to Section 860E(e)(4)
Exhibit E-2 - Form of Transferor Certificate
Exhibit F-1 - Form of Transferor Representation Letter
Exhibit F-2 - Form of Investor Representation Letter
Exhibit F-3 - Form of Rule 144A Letter
Exhibit G - Form of Custodial Agreement
Exhibit H-1 - Servicing Agreement
Exhibit I - Assignment Agreement
Exhibit J - Mortgage Loan Purchase Agreement
Exhibit K - Form Certification to Be Provided by the Master Servicer
With Form 10-K
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POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement is dated as of August 1, 2004 (the
"Agreement"), among XXXXXXX XXXXX MORTGAGE INVESTORS, INC., as depositor (the
"Depositor"), XXXXX FARGO BANK, NATIONAL ASSOCIATION, as master servicer (in
such capacity, the "Master Servicer") and as securities administrator (in such
capacity, the "Securities Administrator") and WACHOVIA BANK, NATIONAL
ASSOCIATION, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Depositor intends to sell mortgage pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple classes,
which in the aggregate will evidence the entire beneficial ownership interest in
the Mortgage Loans (as defined herein). As provided herein, the Trustee will
make, in accordance with Section 9.12, an election to treat the entire
segregated pool of assets described in the definition of REMIC I (as defined
herein), and subject to this Agreement, as a real estate mortgage investment
conduit (a "REMIC") for federal income tax purposes and such segregated pool of
assets will be designated as "REMIC I." The REMIC I Regular Interests will be
the "regular interests" in REMIC I and the Class R-I Certificates will be the
sole class of "residual interests" in REMIC I for purposes of the REMIC
Provisions (as defined herein) under the federal income tax law. A segregated
pool of assets consisting of the REMIC I Regular Interests will be designated as
"REMIC II" and the REMIC Administrator will make a separate REMIC election with
respect thereto. The Class I-A, Class II-A-1, Class II-A-2, Class II-A-3, Class
M-1, Class M-2, Class M-3, Class B-1, Class B-2 and Class B-3 Certificates will
be "regular interests" in REMIC II, and the Class R-II Certificates will be the
sole class of "residual interests" therein for purposes of the REMIC Provisions
(as defined herein) under federal income tax law.
The following table irrevocably sets forth the designation, the REMIC I
Pass-Through Rate, the initial Uncertificated Principal Balance and, solely for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for the REMIC I Regular Interest. The REMIC I
Regular Interests will not be certificated.
Initial
REMIC I REMIC I Uncertificated Latest Possible
Regular Interest Designation Pass-Through Rate Principal Balance Maturity Date(1)
---------------------------------------------------------------------------------------
I-A Variable (2) $ 1,329.22 August 25, 2034
I-B Variable (2) $ 37,975.92 August 25, 2034
II-A Variable (2) $ 198.15 August 25, 2034
II-B Variable (2) $ 5,658.65 August 25, 2034
ZZZ Variable (2) $436,300,539.39 August 25, 2034
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(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the latest
possible maturity date for the Mortgage Loans has been designated as the
"latest possible maturity date" for each REMIC I Regular Interest.
(2) Calculated in accordance with the definition of "REMIC I Pass-Through
Rate" herein.
The following table sets forth the designation, type, Pass-Through Rate,
aggregate Initial Certificate Principal Balance, Assumed Final Distribution
Date, initial ratings and certain features for each Class of Certificates
comprising the interests in the Trust Fund created hereunder:
Original Initial Pass-Through Assumed Final
Class Class Certificate Balance Rate Distribution Date
------ ------------------------- -------------------- -----------------
I-A $366,467,000.00 Variable August 25, 2034
II-A-1 $ 22,505,000.00 Xxxxxxxx Xxxxxx 00, 0000
XX-X-0 $ 30,000,000.00 Xxxxxxxx Xxxxxx 00, 0000
XX-X-0 $ 2,100,000.00 Variable August 25, 2034
M-1 $ 7,637,000.00 Variable August 25, 2034
M-2 $ 2,836,000.00 Variable August 25, 2034
M-3 $ 1,528,000.00 Xxxxxxxx Xxxxxx 00, 0000
X-0 $ 1,527,000.00 Xxxxxxxx Xxxxxx 00, 0000
X-0 $ 1,090,000.00 Xxxxxxxx Xxxxxx 00, 0000
X-0 $ 655,701.33 Variable August 25, 2034
R-I N/A N/A August 25, 2034
R-II N/A N/A August 25, 2034
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ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
otherwise expressly provided or unless the context otherwise requires, shall
have the meanings specified in this Article.
Accepted Master Servicing Practices: With respect to any Mortgage Loan, as
applicable, either (x) those customary mortgage master servicing practices of
prudent mortgage servicing institutions that master service mortgage loans of
the same type and quality as such Mortgage Loan in the jurisdiction where the
related Mortgaged Property is located, to the extent applicable to the Trustee
or the Master Servicer (except in its capacity as successor to a Servicer), or
(y) as provided in the Servicing Agreement, to the extent applicable to the
Servicer, but in no event below the standard set forth in clause (x).
Account: The Master Servicer Collection Account, Distribution Account and
any Protected Account as the context may require.
Accrued Certificate Interest: With respect to each Class of Certificates,
an amount equal to the interest accrued during the related Interest Accrual
Period on the Class Certificate Balance thereof at the then-applicable
Pass-Through Rate. Accrued Certificate Interest on any Class of Certificates
will be reduced by the amount of (i) Prepayment Interest Shortfalls (to the
extent not offset by the Servicer or Master Servicer with a payment of
Compensating Interest as provided in Section 6.06), (ii) the interest portion of
Excess Losses allocated to such Class of Certificates pursuant to Section 6.02
and (iii) any other interest shortfalls not covered by the subordination
provided by the Class M Certificates and Class B Certificates, including
shortfalls as a result of the Relief Act or similar legislation or regulations,
with all such reductions allocated among all of the Certificates in proportion
to their respective amounts of Accrued Certificate Interest payable on such
Distribution Date which would have resulted absent such reductions.
Affiliate: As to any Person, any other Person controlling, controlled by
or under common control with such Person. "Control" means the power to direct
the management and policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise. "Controlled" and
"Controlling" have meanings correlative to the foregoing. The Trustee may
conclusively presume that a Person is not an Affiliate of another Person unless
a Responsible Officer of the Trustee has actual knowledge to the contrary.
Agreement: This Pooling and Servicing Agreement, including the exhibits
hereto, and all amendments hereof and supplements hereto.
Applicable Credit Rating: For any long-term deposit or security, a credit
rating of AAA in the case of Fitch or S&P. For any short-term deposit or
security, or a rating of F-1+ in the case of Fitch or A-l+ in the case of S&P.
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Applicable Credit Support Percentage: With respect to any Class of
Certificates, the sum of the related Class Subordination Percentages of such
Class and all Classes of Subordinate Certificates which have a lower relative
priority of payment than such Class.
Applicable State Law: For purposes of Section 9.12(d), the Applicable
State Law shall be (a) the law of the State of New York and (b) such other state
law whose applicability shall have been brought to the attention of the
Securities Administrator and the Trustee by either (i) an Opinion of Counsel
reasonably acceptable to the Securities Administrator and the Trustee delivered
to it by the Master Servicer or the Depositor, or (ii) written notice from the
appropriate taxing authority as to the applicability of such state law.
Appraised Value: For any Mortgaged Property related to a Mortgage Loan,
the amount set forth as the appraised value of such Mortgaged Property in an
appraisal made for the mortgage originator in connection with its origination of
the related Mortgage Loan.
Assignment: An assignment of the Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect of
record the sale of the Mortgage Loan to the Trustee for the benefit of
Certificateholders, which assignment, notice of transfer or equivalent
instrument may be in the form of one or more blanket assignments covering
Mortgages secured by Mortgaged Properties located in the same county, if
permitted by law and accompanied by an Opinion of Counsel to that effect.
Assignment Agreement: The National City Assignment Agreement, which is
attached hereto as Exhibit I.
Assumed Final Distribution Date: For all Classes of Certificates, August
25, 2034, or if such day is not a Business Day, the next succeeding Business
Day.
Available Funds: For any Distribution Date, the sum of the Group I
Available Funds and the Group II Available Funds.
Average Loss Severity: With respect to any period and each Loan Group, the
fraction obtained by dividing (x) the aggregate amount of Realized Losses for
the related Mortgage Loans for such period by (y) the number of related Mortgage
Loans which had Realized Losses for such period.
Bankruptcy Code: The United States Bankruptcy Code, as amended as codified
in 11 U.S.C. xx.xx. 101-1330.
Bankruptcy Loss Coverage Amount: As of any date of determination prior to
the first anniversary of the Cut-off Date, an amount equal to the excess, if
any, of (A) $104,376 over (B) the aggregate amount of Bankruptcy Losses
allocated solely to one or more specific Classes of Certificates in accordance
with Section 6.02. As of any date of determination on or after the first
anniversary of the Cut-off Date, an amount equal to the excess, if any, of (1)
the lesser of (a) the Bankruptcy Loss Coverage Amount calculated as of the close
of business on the Business Day immediately preceding the most recent
anniversary of the Cut-off Date coinciding with or
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preceding such date of determination (or, if such date of determination is an
anniversary of the Cut-off Date, the Business Day immediately preceding such
date of determination) (for purposes of this definition, the "Relevant
Anniversary") and (b) the greater of
(A) the greater of (i) 0.0006 times the aggregate principal
balance of all the Mortgage Loans in the Mortgage Pool as of the Relevant
Anniversary having a Loan-to-Value Ratio at origination which exceeds 75%
and (ii) $100,000; and (B) the greater of (i) the product of (x) an amount
equal to the largest difference in the related Monthly Payment for any
Non-Primary Residence Loan remaining in the Mortgage Pool which had an
original Loan-to-Value Ratio greater than 80% that would result if the Net
Mortgage Rate thereof was equal to the greater of (I) 5% or (II) the
weighted average (based on the principal balance of the Mortgage Loans as
of the Relevant Anniversary) of the Net Mortgage Rates of all Mortgage
Loans as of the Relevant Anniversary less 1.25% per annum, (y) a number
equal to the weighted average remaining term to maturity, in months, of
all Mortgage Loans with a Loan-to-Value Ratio of greater than 80%
remaining in the Mortgage Pool as of the Relevant Anniversary, and (z) one
plus the quotient of the number of all Non-Primary Residence Loans with a
Loan-to-Value Ratio of greater than 80% remaining in the Mortgage Pool
divided by the total number of outstanding Mortgage Loans in the Mortgage
Pool as of the Relevant Anniversary, and (ii) $50,000,
over (2) the aggregate amount of Bankruptcy Losses allocated solely to one
or more specific Classes of Certificates in accordance with Section 6.02
since the Relevant Anniversary.
The Bankruptcy Loss Coverage Amount may be further reduced by the
Depositor (including accelerating the manner in which such coverage is reduced)
provided that prior to any such reduction, the Depositor shall (i) obtain
written confirmation from each Rating Agency that such reduction shall not
reduce the rating assigned to any Class of Certificates by such Rating Agency
below the lower of the then-current rating or the rating assigned to such
Certificates as of the Closing Date by such Rating Agency and (ii) provide a
copy of such written confirmation to the Trustee.
Bankruptcy Loss: With respect to any Mortgage Loan, any Deficient
Valuation or Debt Service Reduction related to such Mortgage Loan as reported by
the Servicer to the Master Servicer.
Book-Entry Certificates: Any of the Certificates that shall be registered
in the name of the Depository or its nominee, the ownership of which is
reflected on the books of the Depository or on the books of a Person maintaining
an account with the Depository (directly, as a "Depository Participant", or
indirectly, as an indirect participant in accordance with the rules of the
Depository and as described in Section 5.02 hereof). On the Closing Date, the
Certificates (other than the Class R Certificates and the Private Certificates)
shall be Book-Entry Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a day
on which the New York Stock Exchange or Federal Reserve is closed or on which
banking institutions in the
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jurisdiction in which the Trustee, the Master Servicer, the Servicer or the
Securities Administrator are authorized or obligated by law or executive order
to be closed.
Certificate: Any mortgage pass-through certificate evidencing a beneficial
ownership interest in the Trust Fund signed and countersigned by the Trustee.
Certificateholder or Holder: The Person in whose name a Regular
Certificate is registered in the Certificate Register, except that a
Disqualified Organization or non-U.S. Person shall not be a Holder of a Class R
Certificate for any purpose hereof.
Certificate Owner: With respect to each Book-Entry Certificate, any
beneficial owner thereof.
Certificate Register and Certificate Registrar: The register maintained
and registrar appointed pursuant to Section 5.02 hereof.
Class: Collectively, Certificates which have the same priority of payment
and bear the same class designation and the form of which is identical except
for variation in the Percentage Interest evidenced thereby.
Class A Certificate: Any of the Class I-A Certificates and Class II-A
Certificates as designated on the face thereof substantially in the form annexed
hereto as Exhibit A-1, executed by the Trustee and authenticated and delivered
by the Trustee, representing the right to distributions as set forth herein and
therein.
Class I-A Certificate: Any of the Class I-A Certificates.
Class II-A Certificate: Any of the Class II-A-1, Class II-A-2 and Class
II-A-3 Certificates.
Class A Certificateholder: Any Holder of a Class A Certificate.
Class B Certificate: Any one of the Class B-1, Class B-2 or Class B-3
Certificates as designated on the face thereof substantially in the form annexed
hereto as Exhibit A-2, executed by the Trustee and authenticated and delivered
by the Trustee, representing the right to distributions as set forth herein and
therein.
Class B Certificateholder: Any Holder of a Class B Certificate.
Class B Percentage: The Class B-1 Percentage, Class B-2 Percentage or
Class B-3 Percentage.
Class B-1 Percentage: With respect to any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class B-1 Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) immediately prior to such Distribution Date.
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Class B-2 Percentage: With respect to any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class B-2 Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) immediately prior to such Distribution Date.
Class B-3 Percentage: With respect to any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class B-3 Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) immediately prior to such Distribution Date.
Class Certificate Balance: With respect to any Certificate as of any date
of determination, the Class Certificate Balance of such Certificate on the
Distribution Date immediately prior to such date of determination, plus, in the
case of a Class A Certificate and Class M Certificate, any Subsequent Recoveries
added to the Class Certificate Balance of such Certificate pursuant to Section
6.01, and reduced by the aggregate of (a) all distributions of principal made
thereon on such immediately prior Distribution Date and (b) without duplication
of amounts described in clause (a) above, reductions in the Class Certificate
Balance thereof in connection with allocations thereto of Realized Losses on the
Mortgage Loans and Extraordinary Trust Fund Expenses on such immediately prior
Distribution Date (or, in the case of any date of determination up to and
including the initial Distribution Date, the initial Class Certificate Balance
of such Certificate, as stated on the face thereof); provided, however, that the
Class Certificate Balance of each Subordinate Certificate of the Class of
Subordinate Certificates outstanding with the highest numerical designation at
any given time shall be calculated to equal the Percentage Interest evidenced by
such Certificate multiplied by the excess, if any, of (A) the then aggregate
Stated Principal Balance of the Mortgage Loans over (B) the then aggregate Class
Certificate Balance of all other Classes of Certificates then outstanding. The
Class R Certificates shall not have Class Certificate Balances.
Class M Certificate: Any one of the Class M-1, Class M-2 or Class M-3
Certificates as designated on the face thereof substantially in the form annexed
hereto as Exhibit A-1, executed by the Trustee and authenticated and delivered
by the Trustee, representing the right to distributions as set forth herein and
therein.
Class M Certificateholder: Any Holder of a Class M Certificate.
Class M Percentage: The Class M-1 Percentage, Class M-2 Percentage or
Class M-3 Percentage.
Class M-1 Percentage: With respect to any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class M-1 Certificates immediately
prior to such date and the denominator of which is the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date.
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Class M-2 Percentage: With respect to any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class M-2 Certificates immediately
prior to such date and the denominator of which is the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date.
Class M-3 Percentage: With respect to any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class M-3 Certificates immediately
prior to such date and the denominator of which is the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date.
Class R Certificates: Any one of the Class R-I Certificates or Class R-II
Certificates executed, authenticated and delivered by the Trustee substantially
in the form annexed hereto as Exhibit A-3 and evidencing the ownership of an
interest designated as a Residual Interest.
Class Subordination Percentage: With respect to any Distribution Date and
each Class of Subordinate Certificates, the fraction (expressed as a percentage)
the numerator of which is the Class Certificate Balance of such Class of
Subordinate Certificates immediately prior to such Distribution Date and the
denominator of which is the aggregate of the Class Certificate Balances of all
Classes of Certificates immediately prior to such Distribution Date.
Closing Date: August 30, 2004.
Code: The Internal Revenue Code of 1986, as amended.
Commission: The Securities and Exchange Commission.
Compensating Interest Payment: As defined in Section 6.06.
Corporate Trust Office: The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business in
connection with this Agreement shall be administered, which office at the date
of the execution of this instrument is located at Wachovia Bank, National
Association, 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, XX 00000-0000,
Attention: Corporate Trust Group - Xxxxxxx Xxxxx Mortgage Investors, Inc., MLMI
Series 2004-A2, or at such other address as the Trustee may designate from time
to time by notice to the Certificateholders, the Depositor and the Master
Servicer.
Curtailment: Any Principal Prepayment made by a Mortgagor which is not a
Principal Prepayment in Full.
Custodial Agreement: An agreement, dated as of the Closing Date among the
Depositor, the Master Servicer, the Trustee and the Custodian in substantially
the form of Exhibit G hereto.
Custodian: Xxxxx Fargo Bank, National Association, or any successor
custodian appointed pursuant to the provisions hereof and of the Custodial
Agreement.
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Cut-off Date: August 1, 2004.
Debt Service Reduction: Any reduction of the Monthly Payments which a
Mortgagor is obligated to pay with respect to a Mortgage Loan as a result of any
proceeding under the Bankruptcy Code or any other similar state law or other
proceeding.
Defective Mortgage Loan: A Mortgage Loan replaced or to be replaced by one
or more Substitute Mortgage Loans.
Deficient Valuation: With respect to any Mortgage Loan, a valuation of the
related Mortgaged Property by a court of competent jurisdiction in an amount
less than the then outstanding principal balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy Code.
Depositor: Xxxxxxx Xxxxx Mortgage Investors, Inc., a Delaware corporation,
or any successor in interest.
Depository: The Depository Trust Company, the nominee of which is Cede &
Co., or any successor thereto.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Designated Depository Institution: A depository institution (commercial
bank, federal savings bank, mutual savings bank or savings and loan association)
or trust company (which may include the Trustee), the deposits of which are
fully insured by the FDIC to the extent provided by law.
Determination Date: With respect to each Mortgage Loan, the Determination
Date as defined in the Servicing Agreement.
Disqualified Organization: Any of the following: (i) the United States,
any State or political subdivision thereof, any possession of the United States,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for Xxxxxxx Mac or any successor thereto, a majority of its
board of directors is not selected by such governmental unit), (ii) any foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of the Code or (v) any
other Person so designated by the Trustee based upon an Opinion of Counsel that
the holding of an ownership interest in a Residual Certificate by such Person
may cause any REMIC contained in the Trust or any Person having an ownership
interest in the Residual Certificate (other than such Person) to incur a
liability for any federal tax imposed under the Code that would not otherwise be
imposed but for the transfer of an ownership interest in a Residual Certificate
to such Person. The terms
-9-
"United States," "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
Distribution Account: The trust account or accounts created and maintained
pursuant to Section 4.04, which shall be denominated "Wachovia Bank, National
Association, as Trustee f/b/o holders of Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, MLMI Series 2004-A2 - Distribution Account."
The Distribution Account shall be an Eligible Account.
Distribution Account Deposit Date: The Business Day prior to each
Distribution Date.
Distribution Date: The 25th day of any month, beginning in the month
immediately following the month of the Closing Date, or, if such 25th day is not
a Business Day, the Business Day immediately following.
Due Date: With respect to each Mortgage Loan, the date in each month on
which its Monthly Payment is due if such due date is the first day of a month
and otherwise is deemed to be the first day of the following month or such other
date specified in the Servicing Agreement.
Due Period: With respect to any Distribution Date and each Mortgage Loan,
the period commencing on the second day of the month preceding the month in
which the Distribution Date occurs and ending at the close of business on the
first day of the month in which the Distribution Date occurs.
Eligible Account: Any of (i) a segregated account maintained with a
federal or state chartered depository institution (A) the short-term obligations
of which are rated A-1 or better by S&P and P-1 by Xxxxx'x at the time of any
deposit therein or (B) insured by the FDIC (to the limits established by such
Corporation), the uninsured deposits in which account are otherwise secured such
that, as evidenced by an Opinion of Counsel (obtained by the Person requesting
that the account be held pursuant to this clause (i)) delivered to the Trustee
prior to the establishment of such account, the Certificateholders will have a
claim with respect to the funds in such account and a perfected first priority
security interest against any collateral (which shall be limited to Permitted
Investments, each of which shall mature not later than the Business Day
immediately preceding the Distribution Date next following the date of
investment in such collateral or the Distribution Date if such Permitted
Investment is an obligation of the institution that maintains the Distribution
Account) securing such funds that is superior to claims of any other depositors
or general creditors of the depository institution with which such account is
maintained, (ii) a segregated trust account or accounts maintained with a
federal or state chartered depository institution or trust company with trust
powers acting in its fiduciary capacity or (iii) a segregated account or
accounts of a depository institution acceptable to the Rating Agencies (as
evidenced in writing by the Rating Agencies that use of any such account as the
Distribution Account will not have an adverse effect on the then-current ratings
assigned to the Classes of the Certificates then rated by the Rating Agencies).
Eligible Accounts may bear interest.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
-10-
ERISA-Restricted Certificates: Any of the Class B-1, Class B-2, Class B-3,
Class R-I or Class R-II Certificates.
Event of Default: An event of default described in Section 8.01.
Excess Liquidation Proceeds: To the extent that such amount is not
required by law to be paid to the related Mortgagor, the amount, if any, by
which Liquidation Proceeds with respect to a Liquidated Mortgage Loan exceed the
sum of (i) the Outstanding Principal Balance of such Mortgage Loan and accrued
but unpaid interest at the related Mortgage Interest Rate through the last day
of the month in which the related Liquidation Date occurs, plus (ii) related
Liquidation Expenses.
Excess Losses: (i) Special Hazard Losses in excess of the Special Hazard
Loss Coverage Amount, (ii) Bankruptcy Losses in excess of the Bankruptcy Loss
Coverage Amount, (iii) Fraud Losses in excess of the Fraud Loss Amount and (iv)
Extraordinary Losses.
Extraordinary Loss: Any Realized Loss or portion thereof caused by or
resulting from:
(i) nuclear or chemical reaction or nuclear radiation or radioactive
or chemical contamination, all whether controlled or uncontrolled and
whether such loss be direct or indirect, proximate or remote or be in
whole or in part caused by, contributed to or aggravated by a peril
covered by the definition of the term "Special Hazard Loss";
(ii) hostile or warlike action in time of peace or war, including
action in hindering, combating or defending against an actual, impending
or expected attack by any government or sovereign power, de jure or de
facto, or by any authority maintaining or using military, naval or air
forces, or by military, naval or air forces, or by an agent of any such
government, power, authority or forces;
(iii) any weapon of war employing atomic fission or radioactive
forces whether in time of peace or war, and
(iv) insurrection, rebellion, revolution, civil war, usurped power
or action taken by governmental authority in hindering, combating or
defending against such an occurrence, seizure or destruction under
quarantine or customs regulations, confiscation by order of any government
or public authority, or risks of contraband or illegal transactions or
trade.
Extraordinary Trust Fund Expenses: Any amounts reimbursable to the Master
Servicer or the Depositor pursuant to this Agreement, including but not limited
to Sections 4.03, 4.05 and 7.04, any amounts reimbursable to the Trustee and the
Securities Administrator from the Trust Fund pursuant to this Agreement,
including but not limited to Section 9.05, and any other costs, expenses,
liabilities and losses borne by the Trust Fund (exclusive of any cost, expense,
liability or loss that is specific to a particular Mortgage Loan or REO Property
and is taken into account in calculating a Realized Loss in respect thereof) for
which the Trust Fund has not and, in the reasonable good faith judgment of the
Trustee, shall not, obtain reimbursement or indemnification from any other
Person.
-11-
Xxxxxx Xxx: Federal National Mortgage Association or any successor
thereto.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
Final Certification: The certification substantially in the form of
Exhibit Two to the Custodial Agreement.
Fitch: Fitch Ratings or its successor in interest.
Fraud Loss Amount: Initially, approximately $4,363,457. As of any date of
determination after the Cut-off Date, the Fraud Loss Amount shall equal: (X)
prior to the first anniversary of the Cut-off Date, (1) the lesser of (a) the
Fraud Loss Amount as of the Cut-off Date and (b) 2.00% of the aggregate
principal balance of all of the Mortgage Loans as of the Cut-off Date minus (2)
the aggregate amounts allocated through Subordination with respect to Fraud
Losses as of the Cut-off Date up to such date of determination, (Y) from the
first to the second anniversary of the Cut-off Date, (1) the lesser of (a) the
Fraud Loss Amount as of the first anniversary of the Cut-off Date and (b) 2.00%
of the aggregate principal balance of all of the Mortgage Loans as of the first
anniversary of the Cut-off Date minus (2) the aggregate amounts allocated
through Subordination with respect to Fraud Losses since the first anniversary
of the Cut-off Date up to such date of determination and (Z) from the third to
the fifth anniversary of the Cut-off Date, (1) the lesser of (a) the Fraud Loss
Amount as of the most recent anniversary of the Cut-off Date and (b) 1.00% of
the aggregate principal balance of all of the Mortgage Loans as of the most
recent anniversary of the Cut-off Date minus (2) the aggregate amounts allocated
through Subordination with respect to Fraud Losses since the most recent
anniversary of the Cut-off Date up to such date of determination. On and after
the fifth anniversary of the Cut-off Date, the Fraud Loss Amount shall be zero
and Fraud Losses shall not be allocated through Subordination.
The Fraud Loss Amount may be further reduced by the Depositor (including
accelerating the manner in which such coverage is reduced) provided that prior
to any such reduction, the Depositor shall (i) obtain written confirmation from
each Rating Agency that such reduction shall not reduce the rating assigned to
any Class of Certificates by such Rating Agency below the lower of the
then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency and (ii) provide a copy of such written
confirmation to the Trustee.
Fraud Losses: Losses sustained on a Liquidated Mortgage Loan by reason of
a default arising from fraud, dishonesty or misrepresentation as reported by the
Servicer to the Master Servicer.
Xxxxxxx Mac: Xxxxxxx Mac, formerly the Federal Home Loan Mortgage
Corporation, or any successor thereto.
Global Certificate: Any Private Certificate registered in the name of the
Depository or its nominee, beneficial interests in which are reflected on the
books of the Depository or on the books of a Person maintaining an account with
such Depository (directly or as an indirect participant in accordance with the
rules of such depository).
-12-
Gross Margin: As to each Mortgage Loan, the fixed percentage set forth in
the related Mortgage Note and indicated on the Mortgage Loan Schedule which
percentage is added to the related Index on each Interest Adjustment Date to
determine (subject to rounding, the minimum and maximum Mortgage Interest Rate
and the Periodic Rate Cap) the Mortgage Interest Rate until the next Interest
Adjustment Date.
Group I Available Funds: With respect to any Distribution Date and the
Group I Mortgage Loans, an amount equal to the excess of (i) the sum of (a) the
aggregate of the related Monthly Payments received on or prior to the related
Determination Date, (b) Liquidation Proceeds, Insurance Proceeds, Principal
Prepayments, Subsequent Recoveries and other unscheduled recoveries of principal
and interest in respect of the Group I Mortgage Loans during the related
Prepayment Period, (c) the aggregate of any amounts received in respect of a
related REO Property withdrawn from any Protected Account and deposited in the
Master Servicer Collection Account for such Distribution Date, (d) the aggregate
of any amounts deposited in the Master Servicer Collection Account by the
Servicer or the Master Servicer in respect of related Prepayment Interest
Shortfalls for such Distribution Date and (e) the aggregate of any related
Monthly Advances made by the Servicer or the Master Servicer for such
Distribution Date, over (ii) the sum of (a) related amounts reimbursable or
payable to the Servicer or the Master Servicer pursuant to Sections 4.03 and
4.05, (b) related Stayed Funds, (c) related amounts deposited in the Master
Servicer Collection Account or the Distribution Account, as the case may be, in
error and (d) any Extraordinary Trust Fund Expenses.
Group I Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Group I Senior Accelerated Distribution Percentage: With respect to any
Distribution Date, the percentage indicated below:
Group I Senior Accelerated
Distribution Date Distribution Percentage
---------------------------------- ------------------------------------------
September 2004 through August 2014 100%
September 2014 through August 2015 Group I Senior Percentage, plus 70% of the
Group I Subordinate Percentage
September 2015 through August 2016 Group I Senior Percentage, plus 60% of the
Group I Subordinate Percentage
September 2016 through August 2017 Group I Senior Percentage, plus 40% of the
Group I Subordinate Percentage
September 2017 through August 2018 Group I Senior Percentage, plus 20% of the
Group I Subordinate Percentage
September 2018 and thereafter Group I Senior Percentage
provided, however, (i) that any scheduled reduction to the Group I Senior
Accelerated Distribution Percentage described above shall not occur as of any
Distribution Date unless either
-13-
(a)(1)(x) the outstanding principal balance of Mortgage Loans delinquent 60 days
or more (including foreclosure and REO Property) averaged over the last six
months as a percentage of the aggregate outstanding Class Certificate Balance of
the Class M Certificates and the Class B Certificates, is less than 50%, or (y)
the outstanding principal balance of Mortgage Loans delinquent 60 days or more
(including foreclosure and REO Property) averaged over the last six months, as a
percentage of the aggregate outstanding principal balance of all Mortgage Loans
averaged over the last six months, does not exceed 2% and (2) Realized Losses on
the Mortgage Loans to date for such Distribution Date if occurring during the
eleventh, twelfth, thirteenth, fourteenth or fifteenth year (or any year
thereafter) after the Closing Date are less than 30%, 35%, 40%, 45% or 50%,
respectively, of the sum of the Initial Class Certificate Balances of the Class
M Certificates and Class B Certificates or (b) (1) the aggregate outstanding
principal balance of the Mortgage Loans delinquent 60 days or more (including
foreclosure and REO Property) averaged over the last six months, as a percentage
of the aggregate outstanding principal balance of all Mortgage Loans averaged
over the last six months, does not exceed 4% and (2) Realized Losses on the
Mortgage Loans on or prior to such Distribution Date if occurring during the
eleventh, twelfth, thirteenth, fourteenth or fifteenth year (or any year
thereafter) after the Closing Date are less than 10%, 15%, 20%, 25% or 30%,
respectively, of the sum of the Initial Class Certificate Balances of the Class
M Certificates and Class B Certificates and (ii) that for any Distribution Date
on which the Group I Senior Percentage is greater than the Original Group I
Senior Percentage, the Group I Senior Accelerated Distribution Percentage for
such Distribution Date shall be 100%. Notwithstanding the foregoing, upon the
reduction of the aggregate Class Certificate Balance of the Class I-A
Certificates to zero, the Group I Senior Accelerated Distribution Percentage
will equal 0%.
In addition, on any Distribution Date on or after the Distribution Date
occurring in September 2007, if the current weighted average of the Subordinate
Percentages for the Certificates is equal to or greater than two times the
initial weighted average of the Subordinate Percentages for the Certificates,
and (a) the outstanding principal balance of the Mortgage Loans delinquent 60
days or more (including for this purpose any such Mortgage Loans in foreclosure
or bankruptcy and such Mortgage Loans with respect to which the related
Mortgaged Property has been acquired by the Trust), averaged over the last six
months, as a percentage of the Subordinate Percentage for that Distribution Date
times the aggregate Stated Principal Balance of the Mortgage Loans, does not
exceed 50% and (b) cumulative Realized Losses on the Mortgage Loans do not
exceed 20% of the initial Subordinate Percentage times the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date, then, in each
case, the Group I Senior Accelerated Distribution Percentage for such
Distribution Date will equal the Group I Senior Percentage.
Group I Senior Certificates: Shall mean the Class I-A Certificates.
Group I Senior Percentage: As of any Distribution Date, the lesser of 100%
and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class I-A Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of all of the Group I Mortgage Loans or related REO
Properties immediately prior to such Distribution Date.
-14-
Group I Senior Principal Distribution Amount: As to any Distribution Date,
the lesser of (a) the balance of the Group I Available Funds remaining after the
distribution of all amounts required to be distributed pursuant to subclause
first and second of Section 6.01(A) and (b) the sum of the following:
(A) the Group I Senior Percentage for such Distribution Date
times the sum of the following:
(1) the principal portion of each Monthly Payment due
during the related Due Period on each Outstanding Mortgage Loan in
Loan Group I, whether or not received on or prior to the related
Determination Date, minus the principal portion of any Debt Service
Reduction which together with other Bankruptcy Losses exceeds the
Bankruptcy Loss Coverage Amount;
(2) the Stated Principal Balance of any Group I Mortgage
Loan repurchased during the related Prepayment Period pursuant to
Section 2.02 or 2.03 hereof or pursuant to the Servicing Agreement;
and
(3) the principal portion of all other unscheduled
collections (other than Principal Prepayments in Full and
Curtailments and amounts received in connection with the liquidation
or disposition of a Group I Mortgage Loan, including without
limitation Insurance Proceeds, Liquidation Proceeds and REO
Proceeds) received during the related Prepayment Period to the
extent applied by the Servicer as recoveries of principal of the
related Mortgage Loan pursuant to Servicing Agreement;
(B) with respect to the liquidation or other disposition of a
Group I Mortgage Loan which occurred during the related Prepayment Period
and did not result in any Excess Losses, an amount equal to the lesser of
(a) the Group I Senior Percentage for such Distribution Date times the
Stated Principal Balance of such Group I Mortgage Loan and (b) the Group I
Senior Accelerated Distribution Percentage for such Distribution Date
times the related unscheduled collections (including without limitation
Insurance Proceeds, Liquidation Proceeds and REO Proceeds) to the extent
applied by the Servicer or the Master Servicer as recoveries of principal
of the related Mortgage Loan pursuant to the Servicing Agreement or this
Agreement;
(C) the Group I Senior Accelerated Distribution Percentage for
such Distribution Date times the aggregate of all Principal Prepayments in
Full and Curtailments received in the related Prepayment Period with
respect to the Group I Mortgage Loans;
(D) any amounts described in clauses (A), (B) or (C) of this
definition, as determined for any previous Distribution Date, which remain
unpaid after application of amounts previously distributed pursuant to
this clause (D) to the extent that such amounts are not attributable to
Realized Losses which have been allocated to the Class M Certificates or
Class B Certificates;
-15-
Group I Subordinate Amount: On any date of determination, the excess of
the aggregate Stated Principal Balance of the Group I Mortgage Loans as of such
date over the aggregate Certificate Principal Balances of the Group I Senior
Certificates then outstanding.
Group II Available Funds: With respect to any Distribution Date and the
Group II Mortgage Loans, an amount equal to the excess of (i) the sum of (a) the
aggregate of the related Monthly Payments received on or prior to the related
Determination Date, (b) Liquidation Proceeds, Insurance Proceeds, Principal
Prepayments, Subsequent Recoveries and other unscheduled recoveries of principal
and interest in respect of the Group II Mortgage Loans during the related
Prepayment Period, (c) the aggregate of any amounts received in respect of a
related REO Property withdrawn from any Protected Account and deposited in the
Master Servicer Collection Account for such Distribution Date, (d) the aggregate
of any amounts deposited in the Master Servicer Collection Account by the
Servicer or the Master Servicer in respect of related Prepayment Interest
Shortfalls for such Distribution Date and (e) the aggregate of any related
Monthly Advances made by the Servicer or the Master Servicer for such
Distribution Date, over (ii) the sum of (a) related amounts reimbursable or
payable to the Servicer or the Master Servicer pursuant to Sections 4.03 and
4.05, (b) related Stayed Funds, (c) related amounts deposited in the Master
Servicer Collection Account or the Distribution Account, as the case may be, in
error and (d) any Extraordinary Trust Fund Expenses.
Group II Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Group II Senior Accelerated Distribution Percentage: With respect to any
Distribution Date, the percentage indicated below:
Group II Senior Accelerated
Distribution Date Distribution Percentage
---------------------------------- -------------------------------------------
September 2004 through August 2014 100%
September 2014 through August 2015 Group II Senior Percentage, plus 70% of the
Group II Subordinate Percentage
September 2015 through August 2016 Group II Senior Percentage, plus 60% of the
Group II Subordinate Percentage
September 2016 through August 2017 Group II Senior Percentage, plus 40% of the
Group II Subordinate Percentage
September 2017 through August 2018 Group II Senior Percentage, plus 20% of the
Group II Subordinate Percentage
September 2018 and thereafter Group II Senior Percentage
provided, however, (i) that any scheduled reduction to the Group II Senior
Accelerated Distribution Percentage described above shall not occur as of any
Distribution Date unless either (a)(1)(x) the outstanding principal balance of
Mortgage Loans delinquent 60 days or more (including foreclosure and REO
Property) averaged over the last six months as a percentage of
-16-
the aggregate outstanding Class Certificate Balance of the Class M Certificates
and the Class B Certificates, is less than 50%, or (y) the outstanding principal
balance of Mortgage Loans delinquent 60 days or more (including foreclosure and
REO Property) averaged over the last six months, as a percentage of the
aggregate outstanding principal balance of all Mortgage Loans averaged over the
last six months, does not exceed 2% and (2) Realized Losses on the Mortgage
Loans to date for such Distribution Date if occurring during the eleventh,
twelfth, thirteenth, fourteenth or fifteenth (or any year thereafter) after the
Closing Date are less than 30%, 35%, 40%, 45% or 50%, respectively, of the sum
of the Initial Class Certificate Balances of the Class M Certificates and Class
B Certificates or (b) (1) the aggregate outstanding principal balance of the
Mortgage Loans delinquent 60 days or more (including foreclosure and REO
Property) averaged over the last six months, as a percentage of the aggregate
outstanding principal balance of all Mortgage Loans averaged over the last six
months, does not exceed 4% and (2) Realized Losses on the Mortgage Loans on or
prior to such Distribution Date if occurring during the eleventh, twelfth,
thirteenth, fourteenth or fifteenth (or any year thereafter) after the Closing
Date are less than 10%, 15%, 20%, 25% or 30%, respectively, of the sum of the
Initial Class Certificate Balances of the Class M Certificates and Class B
Certificates and (ii) that for any Distribution Date on which the Group II
Senior Percentage is greater than the Original Group II Senior Percentage, the
Group II Senior Accelerated Distribution Percentage for such Distribution Date
shall be 100%. Notwithstanding the foregoing, upon the reduction of the
aggregate Class Certificate Balance of the Class II-A Certificates to zero, the
Group II Senior Accelerated Distribution Percentage will equal 0%.
In addition, on any Distribution Date on or after the Distribution Date
occurring in September 2007, if the current weighted average of the Subordinate
Percentages for the Certificates is equal to or greater than two times the
initial weighted average of the Subordinate Percentages for the Certificates,
and (a) the outstanding principal balance of the Mortgage Loans delinquent 60
days or more (including for this purpose any such Mortgage Loans in foreclosure
or bankruptcy and such Mortgage Loans with respect to which the related
Mortgaged Property has been acquired by the Trust), averaged over the last six
months, as a percentage of the Subordinate Percentage for that Distribution Date
times the aggregate Stated Principal Balance of the Mortgage Loans, does not
exceed 50% and (b) cumulative Realized Losses on the Mortgage Loans do not
exceed 20% of the initial Subordinate Percentage times the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date, then, in each
case, the Group II Senior Accelerated Distribution Percentage for such
Distribution Date will equal the Group II Senior Percentage.
Group II Senior Certificates: Shall mean the Class II-A Certificates.
Group II Senior Percentage: As of any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class II-A Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of all of the Group II Mortgage Loans or related REO
Properties immediately prior to such Distribution Date.
-17-
Group II Senior Principal Distribution Amount: As to any Distribution
Date, the lesser of (a) the balance of the Group II Available Funds remaining
after the distribution of all amounts required to be distributed pursuant to
Section 6.01(B) and (b) the sum of the following:
(A) the Group II Senior Percentage for such Distribution Date
times the sum of the following:
(1) the principal portion of each Monthly Payment due
during the related Due Period on each Outstanding Mortgage Loan in
Loan Group II, whether or not received on or prior to the related
Determination Date, minus the principal portion of any Debt Service
Reduction which together with other Bankruptcy Losses exceeds the
Bankruptcy Loss Coverage Amount;
(2) the Stated Principal Balance of any Group II
Mortgage Loan repurchased during the related Prepayment Period
pursuant to Section 2.02 or 2.03 hereof or the Servicing Agreement;
and
(3) the principal portion of all other unscheduled
collections (other than Principal Prepayments in Full and
Curtailments and amounts received in connection with the liquidation
or disposition of a Group II Mortgage Loan, including without
limitation Insurance Proceeds, Liquidation Proceeds and REO
Proceeds) received during the related Prepayment Period to the
extent applied by the Servicer as recoveries of principal of the
related Mortgage Loan pursuant to the Servicing Agreement;
(B) with respect to the liquidation or other disposition of a
Group II Mortgage Loan which occurred during the related Prepayment Period
and did not result in any Excess Losses, an amount equal to the lesser of
(a) the Group II Senior Percentage for such Distribution Date times the
Stated Principal Balance of such Group II Mortgage Loan and (b) the Group
II Senior Accelerated Distribution Percentage for such Distribution Date
times the related unscheduled collections (including without limitation
Insurance Proceeds, Liquidation Proceeds and REO Proceeds) to the extent
applied by the Servicer or the Master Servicer as recoveries of principal
of the related Mortgage Loan pursuant to the Servicing Agreement or this
Agreement;
(C) the Group II Senior Accelerated Distribution Percentage
for such Distribution Date times the aggregate of all Principal
Prepayments in Full and Curtailments received in the related Prepayment
Period with respect to the Group II Mortgage Loans;
(D) any amounts described in clauses (A), (B) or (C) of this
definition, as determined for any previous Distribution Date, which remain
unpaid after application of amounts previously distributed pursuant to
this clause (D) to the extent that such amounts are not attributable to
Realized Losses which have been allocated to the Class M Certificates or
Class B Certificates;
-18-
Group II Subordinate Amount: On any date of determination, the excess of
the aggregate Stated Principal Balance of the Group II Mortgage Loans as of such
date over the aggregate Certificate Principal Balances of the Group II Senior
Certificates then outstanding.
Highest Priority: As of any date of determination, the Class of
Subordinate Certificates then outstanding with the earliest priority for
payments pursuant to Section 6.01, in the following order: Class M-1, Class M-2,
Class M-3, Class B-1, Class B-2 and Class B-3 Certificates.
Indemnified Persons: The Trustee, the Master Servicer, the Depositor and
the Securities Administrator and their officers, directors, agents and employees
and, with respect to the Trustee, any separate co-trustee and its officers,
directors, agents and employees.
Independent: When used with respect to any specified Person, any such
Person who (a) is in fact independent of the Depositor, the Master Servicer and
their respective Affiliates, (b) does not have any direct financial interest in
or any material indirect financial interest in the Depositor or the Master
Servicer or any Affiliate thereof, and (c) is not connected with the Depositor
or the Master Servicer or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; provided, however, that a Person shall not fail to be Independent of
the Depositor or the Master Servicer or any Affiliate thereof merely because
such Person is the beneficial owner of 1% or less of any class of securities
issued by the Depositor or the Master Servicer or any Affiliate thereof, as the
case may be.
Index: The index, if any, specified in a Mortgage Note by reference to
which the related Mortgage Interest Rate will be adjusted from time to time.
Individual Certificate: Any Private Certificate registered in the name of
the Holder other than the Depository or its nominee.
Initial Certification: The certification substantially in the form of
Exhibit One to the Custodial Agreement.
Initial Class Certificate Balance: With respect to any Regular
Certificate, the amount designated "Initial Class Certificate Balance" on the
face thereof.
Initial Subordinate Class Percentage: With respect to each Class of
Subordinate Certificates, an amount which is equal to the initial aggregate
Class Certificate Balance of such Class of Subordinate Certificates divided by
the aggregate Stated Principal Balance of all the Mortgage Loans as of the
Cut-off Date as follows:
Class M-1: 1.75 Class B-1: 0.35%
Class M-2: 0.6% Class B-2: 0.25
Class M-3: 0.35 Cass B-3: 0.15
Insurance Policy: With respect to any Mortgage Loan, any standard hazard
insurance policy, flood insurance policy or title insurance policy.
-19-
Insurance Proceeds: Amounts paid by the insurer under any Insurance Policy
covering any Mortgage Loan or Mortgaged Property other than amounts required to
be paid over to the Mortgagor pursuant to law or the related Mortgage Note or
Security Instrument and other than amounts used to repair or restore the
Mortgaged Property or to reimburse insured expenses.
Interest Accrual Period: With respect to each Distribution Date, for each
Class of Certificates, the calendar month preceding the month in which such
Distribution Date occurs.
Interest Adjustment Date: With respect to a Mortgage Loan, the date, if
any, specified in the related Mortgage Note on which the Mortgage Interest Rate
is subject to adjustment.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan as to which the
Servicer has determined that all amounts it expects to recover from or on
account of such Mortgage Loan have been recovered.
Liquidation Date: With respect to any Liquidated Mortgage Loan, the date
on which the Servicer has certified that such Mortgage Loan has become a
Liquidated Mortgage Loan.
Liquidation Expenses: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the Master
Servicer or the Servicer in connection with the liquidation of such Mortgage
Loan and the related Mortgaged Property, such expenses including (a) property
protection expenses, (b) property sales expenses, (c) foreclosure and sale
costs, including court costs and reasonable attorneys' fees, and (d) similar
expenses reasonably paid or incurred in connection with liquidation.
Liquidation Proceeds: Cash received in connection with the liquidation of
a defaulted Mortgage Loan, whether through trustee's sale, foreclosure sale,
Insurance Proceeds, condemnation proceeds or otherwise.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the fraction,
expressed as a percentage, the numerator of which is the original principal
balance of the related Mortgage Loan and the denominator of which is the
Original Value of the related Mortgaged Property.
Loan Group: Loan Group I or Loan Group II, as applicable.
Loan Group I: The group of Mortgage Loans designated as belonging to Loan
Group I on the Mortgage Loan Schedule.
Loan Group II: The group of Mortgage Loans designated as belonging to Loan
Group II on the Mortgage Loan Schedule.
Lower Priority: As of any date of determination and with respect to any
Class of Subordinate Certificates, any other Class of Subordinate Certificates
then outstanding with a later priority for payments pursuant to Section 6.01.
-20-
Lowest Priority: As of any date of determination, the Class of Subordinate
Certificates then outstanding with the latest priority for payments pursuant to
Section 6.01, in the following order: Class B-3, Class B-2, Class B-1, Class
M-3, Class M-2 and Class M-1 Certificates.
Lost Notes: The original Mortgage Notes that have been lost, as indicated
on the Mortgage Loan Schedule.
Majority Certificateholders: The Holders of Certificates evidencing at
least 51% of the Voting Rights.
Master Servicer: Xxxxx Fargo Bank, National Association including its
respective successors in interest who meet the qualifications of the Servicing
Agreement and this Agreement.
Master Servicer Collection Account: The trust account or accounts created
and maintained pursuant to Section 4.02, which shall be denominated "Wachovia
Bank, National Association, as Trustee f/b/o holders of Xxxxxxx Xxxxx Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, MLMI Series 2004-A2 Master
Servicer Collection Account." The Master Servicer Collection Account shall be an
Eligible Account.
Master Servicing Compensation: The meaning specified in Section 3.14.
Maximum Lifetime Mortgage Rate: The maximum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes in
the applicable Index.
Minimum Lifetime Mortgage Rate: The minimum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes in
the applicable Index.
MLCC: Xxxxxxx Xxxxx Credit Corporation.
MLMCI: Xxxxxxx Xxxxx Mortgage Capital Inc.
Monthly Advance: An advance of principal or interest required to be made
by the Servicer pursuant to the Servicing Agreement or the Master Servicer
pursuant to Section 6.05.
Monthly Payment: With respect to any Mortgage Loan, the scheduled monthly
payment of principal and interest on such Mortgage Loan which is payable by the
related Mortgagor from time to time under the related Mortgage Note, determined:
(a) after giving effect to (i) any Deficient Valuation and/or Debt Service
Reduction with respect to such Mortgage Loan and (ii) any reduction in the
amount of interest collectible from the related Mortgagor pursuant to the Relief
Act; (b) without giving effect to any extension granted or agreed to by the
Servicer pursuant to the Servicing Agreement; and (c) on the assumption that all
other amounts, if any, due under such Mortgage Loan are paid when due.
Monthly Principal: The principal portion of any Monthly Payment.
Moody's: Xxxxx'x Investors Service, Inc. or its successor in interest.
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Mortgage: The mortgage, deed of trust or other instrument creating a first
lien on, or first priority security interest in, a Mortgaged Property securing a
Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01(b) pertaining
to a particular Mortgage Loan and any additional documents required to be added
to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate at which interest accrues from
time to time on any Mortgage Loan pursuant to the related Mortgage Note, which
rate is equal to the "Mortgage Interest Rate" set forth with respect thereto on
the Mortgage Loan Schedule.
Mortgage Loan: A mortgage loan transferred and assigned to the Trustee
pursuant to Section 2.01 or Section 2.04 and held as a part of the Trust Fund,
as identified in the Mortgage Loan Schedule, including a mortgage loan the
property securing which has become an REO Property.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase Agreement
dated as of August 30, 2004, between MLMCI, as seller, and the Depositor, as
purchaser, and all amendments thereof and supplements thereto, attached as
Exhibit J.
Mortgage Loan Schedule: The schedule, attached hereto as Exhibit B with
respect to the Mortgage Loans and as amended from time to time to reflect the
repurchase or substitution of Mortgage Loans pursuant to this Agreement.
Mortgage Note: The originally executed note or other evidence of the
indebtedness of a Mortgagor under the related Mortgage Loan.
Mortgage Pool: The pool of Mortgage Loans, identified on Exhibit B from
time to time, and any REO Properties acquired in respect thereof.
Mortgaged Property: Land and improvements securing the indebtedness of a
Mortgagor under the related Mortgage Loan or, in the case of REO Property, such
REO Property.
Mortgagor: The obligor on a Mortgage Note.
National City: Shall mean National City Mortgage Co.
National City Assignment Agreement: Shall mean the Assignment, Assumption
and Recognition Agreement, dated as of August 30, 2004, among National City, the
Depositor and the Seller pursuant to which the National City Servicing Agreement
and the rights of the Seller thereunder (other than the rights to enforce the
representations and warranties with respect to the Mortgage Loans) were assigned
to the Trustee for the benefit of the Certificateholders.
National City Servicing Agreement: The Master Mortgage Loan Purchase and
Servicing Agreement, dated as of March 1, 2002, between MLMCI and National City.
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Net Liquidation Proceeds: As to any Liquidated Mortgage Loan, Liquidation
Proceeds net of (i) Liquidation Expenses which are payable therefrom by the
Servicer or the Master Servicer in accordance with the Servicing Agreement or
this Agreement and (ii) unreimbursed advances by the Servicer or the Master
Servicer and Monthly Advances.
Net Mortgage Rate: With respect to each Mortgage Loan, the Mortgage
Interest Rate in effect from time to time less the Servicing Fee Rate (expressed
as a per annum rate).
Nonrecoverable Advance: Any advance or Monthly Advance (i) which was
previously made or is proposed to be made by the Master Servicer, the Trustee
(as successor Master Servicer) or Servicer and (ii) which, in the good faith
judgment of the Master Servicer, the Trustee or Servicer, will not or, in the
case of a proposed advance or Monthly Advance, would not, be ultimately
recoverable by the Master Servicer, the Trustee (as successor Master Servicer)
or Servicer from Liquidation Proceeds, Insurance Proceeds or future payments on
the Mortgage Loan for which such advance or Monthly Advance was made.
Offered Certificate: Any Senior Certificate or Offered Subordinate
Certificate.
Offered Subordinate Certificates: The Class M-l, Class M-2 and Class M-3
Certificates.
Officer's Certificate: A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President or Assistant
Vice President or other authorized officer of the Master Servicer or the
Depositor, as applicable, and delivered to the Trustee, as required by this
Agreement.
Opinion of Counsel: A written opinion of counsel who is or are acceptable
to the Trustee and who, unless required to be Independent (an "Opinion of
Independent Counsel"), may be internal counsel for the Master Servicer or the
Depositor.
Optional Termination Date: The first Distribution Date on which the Master
Servicer may opt to terminate the Trust Fund pursuant to Section 10.01.
Original Class Certificate Balance: With respect to each Class of the
Certificates (other than the Class R Certificates), the Class Certificate
Balance thereof on the Closing Date, as set forth opposite such Class above in
the Preliminary Statement.
Original Subordinate Principal Balance: The sum of the aggregate Class
Certificate Balances of each Class of Subordinate Certificates as of the Closing
Date.
Original Value: The lesser of (i) the Appraised Value or (ii) the sales
price of a Mortgaged Property at the time of origination of a Mortgage Loan,
except in instances where either clauses (i) or (ii) is unavailable, the other
may be used to determine the Original Value, or if both clauses (i) and (ii) are
unavailable, Original Value may be determined from other sources reasonably
acceptable to the Depositor.
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Outstanding Mortgage Loan: With respect to any Due Date, a Mortgage Loan
which, prior to such Due Date, was not the subject of a Principal Prepayment in
Full, did not become a Liquidated Mortgage Loan and was not purchased or
replaced.
Outstanding Principal Balance: As of the time of any determination, the
principal balance of a Mortgage Loan remaining to be paid by the Mortgagor, or,
in the case of an REO Property, the principal balance of the related Mortgage
Loan remaining to be paid by the Mortgagor at the time such property was
acquired by the Trust Fund less any Net Liquidation Proceeds with respect
thereto to the extent applied to principal.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: With respect to the Certificates and any Distribution
Date, the following:
(i) For the Class I-A Certificates on each Distribution Date, a per
annum rate equal to the weighted average of the Net Mortgage Rates on the
Group I Mortgage Loans. The Pass-Through Rate with respect to the first
Interest Accrual Period is expected to be approximately 3.845% per annum.
(ii) For the Class II-A-1, Class II-A-2 and Class II-A-3
Certificates on each Distribution Date, a per annum rate equal to the
weighted average of the Net Mortgage Rates on the Group II Mortgage Loans.
The Pass-Through Rate with respect to the first Interest Accrual Period is
expected to be approximately 4.694% per annum.
(iii) For each class of Class M Certificates and Class B
Certificates will equal the weighted average of the Net Mortgage Rates of
each Loan Group, weighted in proportion to the results of subtracting from
the aggregate Stated Principal Balance of the Mortgage Loans of each Loan
Group, the aggregate Class Certificate Balance of the related Senior
Certificates. The Pass-Through Rate with respect to the first Interest
Accrual Period is expected to be approximately 3.955% per annum.
Paying Agent: The Trustee or any successor Paying Agent appointed by the
Trustee.
Percentage Interest: With respect to any Certificate (other than a Class R
Certificate), a fraction, expressed as a percentage, the numerator of which is
the Initial Class Certificate Balance represented by such Certificate and the
denominator of which is the Original Class Certificate Balance of the related
Class. With respect to any Class of Class R Certificates, the portion of such
Class evidenced thereby, expressed as a percentage, as stated on the face of
such Certificate; provided, however, that the sum of all such percentages for
each such Class totals 100%.
Periodic Rate Cap: With respect to each Mortgage Loan, the maximum
adjustment that can be made to the Mortgage Interest Rate on each Interest
Adjustment Date in accordance with its terms, regardless of changes in the
applicable Index.
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Permitted Investments: Any one or more of the following obligations or
securities held in the name of the Trustee for the benefit of the
Certificateholders:
(i) direct obligations of, and obligations the timely payment of
which are fully guaranteed by the United States of America or any agency
or instrumentality of the United States of America the obligations of
which are backed by the full faith and credit of the United States of
America;
(ii) (a) demand or time deposits, federal funds or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States of America or any state
thereof (including the Trustee or the Master Servicer or its Affiliates
acting in its commercial banking capacity) and subject to supervision and
examination by federal and/or state banking authorities, provided that the
commercial paper and/or the short-term debt rating and/or the long-term
unsecured debt obligations of such depository institution or trust company
at the time of such investment or contractual commitment providing for
such investment have the Applicable Credit Rating or better from each
Rating Agency and (b) any other demand or time deposit or certificate of
deposit that is fully insured by the Federal Deposit Insurance
Corporation;
(iii) repurchase obligations with respect to (a) any security
described in clause (i) above or (b) any other security issued or
guaranteed by an agency or instrumentality of the United States of
America, the obligations of which are backed by the full faith and credit
of the United States of America, in either case entered into with a
depository institution or trust company (acting as principal) described in
clause (ii)(a) above where the Trustee holds the security therefor;
(iv) securities bearing interest or sold at a discount issued by any
corporation (including the Trustee or the Master Servicer or its
Affiliates) incorporated under the laws of the United States of America or
any state thereof that have the Applicable Credit Rating or better from
each Rating Agency at the time of such investment or contractual
commitment providing for such investment; provided, however, that
securities issued by any particular corporation will not be Permitted
Investments to the extent that investments therein will cause the then
outstanding principal amount of securities issued by such corporation and
held as part of the Trust to exceed 10% of the aggregate Outstanding
Principal Balances of all the Mortgage Loans and Permitted Investments
held as part of the Trust;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
having the Applicable Credit Rating or better from each Rating Agency at
the time of such investment;
(vi) a Reinvestment Agreement issued by any bank, insurance company
or other corporation or entity;
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(vii) any other demand, money market or time deposit, obligation,
security or investment as may be acceptable to either Rating Agency as
evidenced in writing by each Rating Agency to the Trustee or Master
Servicer; and
(viii) any money market or common trust fund having the Applicable
Credit Rating or better from each Rating Agency (if such fund is rated by
each Rating Agency), including any such fund for which the Trustee or
Master Servicer or any affiliate of the Trustee or Master Servicer acts as
a manager or an advisor; provided, however, that no instrument or security
shall be a Permitted Investment if such instrument or security evidences a
right to receive only interest payments with respect to the obligations
underlying such instrument or if such security provides for payment of
both principal and interest with a yield to maturity in excess of 120% of
the yield to maturity at par or if such instrument or security is
purchased at a price greater than par.
Permitted Transferee: Any Person other than a Disqualified Organization or
an "electing large partnership" (as defined by Section 775 of the Code).
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Physical Certificates: The Residual Certificates and the Private
Certificates.
Prepayment Distribution Trigger: With respect to any Distribution Date and
any Class of Subordinate Certificates (other than the Class M-1 Certificates), a
test that shall be satisfied if the fraction (expressed as a percentage) equal
to the sum of the Class Certificate Balances of such Class and each Class of
Subordinate Certificates with a Lower Priority than such Class immediately prior
to such Distribution Date divided by the aggregate Stated Principal Balance of
all of the Mortgage Loans (or related REO Properties) immediately prior to such
Distribution Date is greater than or equal to the sum of the related Initial
Subordinate Class Percentages of such Classes of Subordinate Certificates.
Prepayment Interest Shortfall: As to any Distribution Date and any
Mortgage Loan (other than a Mortgage Loan relating to an REO Property) that was
the subject of (a) a Principal Prepayment in Full during the related Prepayment
Period, an amount equal to the excess of one month's interest at the Net
Mortgage Rate on the Stated Principal Balance of such Mortgage Loan over the
amount of interest (adjusted to the Net Mortgage Rate) paid by the Mortgagor for
such Prepayment Period to the date of such Principal Prepayment in Full or (b) a
Curtailment during the prior calendar month, an amount equal to one month's
interest at the Net Mortgage Rate on the amount of such Curtailment. The
obligations of the Master Servicer in respect of any Prepayment Interest
Shortfall are set forth in Section 6.06.
Prepayment Period: With respect to any Mortgage Loan and any Distribution
Date, the calendar month preceding the month in which such Distribution Date
occurs.
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Primary Mortgage Insurance Policy: Any primary mortgage guaranty insurance
policy issued in connection with a Mortgage Loan which provides compensation to
a Mortgage Note holder in the event of default by the obligor under such
Mortgage Note or the related Security Instrument, if any or any replacement
policy therefor through the related Interest Accrual Period for such Class
relating to a Distribution Date.
Principal Prepayment: Any payment (whether partial or full) or other
recovery of principal on a Mortgage Loan which is received in advance of its
scheduled Due Date to the extent that it is not accompanied by an amount as to
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment, including Insurance Proceeds
and Repurchase Proceeds, but excluding the principal portion of Net Liquidation
Proceeds.
Principal Prepayment in Full: Any Principal Prepayment made by a Mortgagor
of the entire unpaid principal balance of the Mortgage Loan.
Private Certificates: Any of the Class B-1, Class B-2 and Class B-3
Certificates.
Protected Account: An account established and maintained for the benefit
of Certificateholders by the Servicer with respect to the related Mortgage Loans
and with respect to REO Property pursuant to the respective Servicing Agreement.
The Protected Account shall be an Eligible Account.
Purchase Price: With respect to any Mortgage Loan or REO Property to be
purchased pursuant to or as contemplated by Section 2.03 or 10.01, and as
confirmed by an Officers' Certificate from the Master Servicer to the Trustee,
an amount equal to the sum of (i) 100% of the Stated Principal Balance thereof
as of the date of purchase (or such other price as provided in Section 10.01),
(ii) accrued interest on such Stated Principal Balance at the applicable
Mortgage Interest Rate in effect from time to time from the Due Date as to which
interest was last covered by a payment by the Mortgagor or an advance by the
Servicer or Master Servicer, which payment or advance had as of the date of
purchase been distributed to Certificateholders, through the end of the calendar
month in which the purchase is to be effected less any unreimbursed Monthly
Advances and any unpaid Servicing Fees payable to the purchaser of the Mortgage
Loan and (iii) any costs and damages incurred by the Trust in connection with
any violation by such Mortgage Loan or REO Property of any predatory or
abusive-lending law.
Qualified Insurer: Any insurance company duly qualified as such under the
laws of the state or states in which the related Mortgaged Property or Mortgaged
Properties is or are located, duly authorized and licensed in such state or
states to transact the type of insurance business in which it is engaged and
approved as an insurer by the Master Servicer, so long as the claims paying
ability of which is acceptable to the Rating Agencies for pass-through
certificates having the same rating as the Certificates rated by the Rating
Agencies as of the Closing Date.
Rating Agencies: Moody's and S&P.
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Realized Loss: With respect to a Liquidated Mortgage Loan, the amount by
which the remaining unpaid principal balance of the Mortgage Loan exceeds the
amount of Liquidation Proceeds applied to the principal balance of the related
Mortgage Loan. To the extent the Master Servicer receives Subsequent Recoveries
with respect to any Mortgage Loan, the amount of the Realized Loss with respect
to that Mortgage Loan will be reduced to the extent such recoveries are applied
to reduce the Class Certificate Balance of any Class of Certificates on any
Distribution Date.
Record Date: With respect to each Distribution Date and each class of
Offered Certificates, the close of business on the last Business Day of the
month immediately preceding the month in which the related Distribution Date
occurs.
Regular Certificates: Any of the Class I-A, Class II-A, Class M-1, Class
M-2, Class M-3, Class B-1, Class B-2 or Class B-3 Certificates.
Reinvestment Agreements: One or more reinvestment agreements, acceptable
to the Rating Agencies, from a bank, insurance company or other corporation or
entity (including the Trustee).
Relief Act: The Servicemembers Civil Relief Act, as amended.
Relief Act Mortgage Loan: Any Mortgage Loan as to which the Monthly
Payment thereof has been reduced due to the application of the Relief Act.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC I: The segregated pool of assets, with respect to which a REMIC
election is to be made, consisting of: (i) each Mortgage Loan (exclusive of
payments of principal and interest due on or before the Cut-off Date, if any,
received by the Master Servicer which shall not constitute an asset of the Trust
Fund) as from time to time are subject to this Agreement and all payments under
and proceeds of such Mortgage Loans (exclusive of any prepayment fees and late
payment charges received on the Mortgage Loans), together with all documents
included in the related Mortgage File, subject to Section 2.01; (ii) such funds
or assets as from time to time are deposited in the Master Servicer Collection
Account or the Distribution Account and belonging to the Trust Fund; (iii) any
REO Property; (iv) the primary hazard insurance policies, if any, the Primary
Mortgage Insurance Policies, if any, and all other Insurance Policies with
respect to the Mortgage Loans; and (v) the Depositor's interest in respect of
the representations and warranties made by the Seller in the Mortgage Loan
Purchase Agreements as assigned to the Trustee pursuant to Section 2.04 hereof.
REMIC I Pass-Through Rate: With respect to REMIC I Regular Interests I-A,
II-A and ZZZ, the weighted average of the Net Mortgage Rates of the Mortgage
Loans, weighted on the basis of the respective Stated Principal Balance of each
such Mortgage Loan as of the beginning of the Due Period immediately preceding
the related Distribution Date. With respect to REMIC I Regular Interest I-B, the
weighted average of the Net Mortgage Rates of the Group I Mortgage
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Loans, weighted on the basis of the respective Stated Principal Balance of each
such Mortgage Loan as of the beginning of the Due Period immediately preceding
the related Distribution Date. With respect to REMIC I Regular Interest II-B,
the weighted average of the Net Mortgage Rates of the Group II Mortgage Loans,
weighted on the basis of the respective Stated Principal Balance of each such
Mortgage Loan as of the beginning of the Due Period immediately preceding the
related Distribution Date
REMIC I Regular Interests: Each uncertificated partial undivided
beneficial ownership interest in REMIC I as designated in the Preliminary
Statement having a principal balance equal to its Uncertificated Principal
Balance, and which bears interest at a rate equal to its REMIC I Pass-Through
Rate.
REMIC I Subordinated Balance Ratio: The ratio among the Uncertificated
Principal Balances of each of the REMIC I Regular Interests ending with the
designation "A," equal to the ratio among:
(1) the excess of (x) the aggregate Stated Principal Balance of the
Group I Mortgage Loans over (y) the Class Certificate Balance of the Class
I-A Certificates; and
(2) the excess of (x) the aggregate Stated Principal Balance of the
Group II Mortgage Loans over (y) the Class Certificate Balance of the
Class II-A Certificates;
REMIC II: The segregated pool of assets consisting of the REMIC I Regular
Interests conveyed in trust to the Trustee for the benefit of the holders of the
Class I-A, Class II-A-1, Class II-A-2, Class II-A-3, Class M-1, Class M-2, Class
M-3, Class B-1, Class B-2, Class B-3 and Class R-II Certificates, with respect
to which a separate REMIC election is to be made.
REMIC II Certificates: Any of the Class I-A, Class II-A-1, Class II-A-2,
Class II-A-3, Class M-1, Class M-2, Class M-3, Class B-1, Class B-2, Class B-3
and Class R-II Certificates.
REMIC Opinion: An Opinion of Counsel stating that, under the REMIC
Provisions, any contemplated action will not cause REMIC I or REMIC II to fail
to qualify as a REMIC or result in the imposition of a tax upon the Trust Fund
(including but not limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth
in Section 860G(d) of the Code).
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations and rulings promulgated thereunder, as the foregoing may be in
effect from time to time.
REO Property: A Mortgaged Property acquired by the Servicer or Master
Servicer on behalf of the Trust Fund through foreclosure or deed-in-lieu of
foreclosure, as described in Section 3.23 in connection with a defaulted
Mortgage Loan.
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Repurchase Proceeds: the Repurchase Price in connection with any
repurchase of a Mortgage Loan by the Seller and any cash deposit in connection
with the substitution of a Mortgage Loan.
Request for Release: A request for release in the form attached hereto as
Exhibit D.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement with respect to such Mortgage Loan.
Residual Certificates: Any of the Class R Certificates.
Residual Interest: The sole class of "residual interests" in a REMIC
within the meaning of Section 860G(a)(2) of the Code.
Responsible Officer: Any officer assigned to the Corporate Trust Office
(or any successor thereto), including any Vice President, Assistant Vice
President, Trust Officer, any Assistant Secretary, any trust officer or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement, and any other officer
of the Trustee to whom a matter arising hereunder may be referred.
Rule 144A Letter: The certificate to be furnished by each purchaser of a
Private Certificate (which is also a Physical Certificate) which is a Qualified
Institutional Buyer as defined under Rule 144A promulgated under the Securities
Act, substantially in the form set forth as Exhibit F-3 hereto.
S&P: Standard and Poor's, a division of The XxXxxx-Xxxx Companies, Inc. or
its successor in interest.
Scheduled Payment: With respect to any Mortgage Loan and any month, the
scheduled payment or payments of principal and interest due during such month on
such Mortgage Loan which either is payable by a Mortgagor in such month under
the related Mortgage Note or, in the case of REO Property, would otherwise have
been payable under the related Mortgage Note.
Scheduled Principal: The principal portion of any Scheduled Payment.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: Xxxxx Fargo Bank, National Association, or its
successor in interest, or any successor securities administrator appointed as
herein provided.
Security Instrument: A written instrument creating a valid first lien on a
Mortgaged Property securing a Mortgage Note, which may be any applicable form of
mortgage, deed of trust, deed to secure debt or security deed, including any
riders or addenda thereto.
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Seller: Xxxxxxx Xxxxx Mortgage Capital Inc., a Delaware corporation, or
any successor in interest.
Seller Mortgage Loan Purchase Agreement: The mortgage loan purchase
agreement, dated August 30, 2004, between the Seller and the Depositor,
regarding the transfer of the Mortgage Loans.
Senior Accelerated Distribution Percentage: The Group I or Group II Senior
Accelerated Distribution Percentage, as applicable.
Senior Certificates: The Class I-A Certificates and Class II-A
Certificates.
Senior Percentage: The Group I Senior Percentage or Group II Senior
Percentage, as applicable.
Senior Principal Distribution Amount: The Group I Senior Principal
Distribution Amount or Group II Senior Principal Distribution Amount, as
applicable.
Servicer: National City.
Servicer Remittance Date: With respect to each Mortgage Loan, the date set
forth in the Servicing Agreement.
Servicing Agreement: The National City Servicing Agreement.
Servicing Fee: As to any Mortgage Loan and Distribution Date, an amount
equal to the product of (i) the Stated Principal Balance of such Mortgage Loan
as of the Due Date in the preceding calendar month and (ii) the applicable
Servicing Fee Rate.
Servicing Fee Rate: As to any Mortgage Loan, a per annum rate as set forth
in the Mortgage Loan Schedule.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and specimen signature appear on a list of servicing officers furnished to
the Trustee by the Master Servicer, as such list may be amended from time to
time.
Special Hazard Loss Coverage Amount: As of any Distribution Date, an
amount equal to $4,363,457 minus the sum of (i) the aggregate amount of Special
Hazard Losses allocated solely to one or more specific Classes of Certificates
in accordance with Section 6.02 and (ii) the Adjustment Amount (as defined
below) as most recently calculated. For each anniversary of the Cut-off Date,
the Adjustment Amount shall be equal to the amount, if any, by which the amount
calculated in accordance with the preceding sentence (without giving effect to
the deduction of the Adjustment Amount for such anniversary) exceeds the greater
of (A) the greatest of (i) twice the outstanding principal balance of the
Mortgage Loan in the Trust Fund which has the largest outstanding principal
balance on the Distribution Date immediately preceding such anniversary, (ii)
the product of 1.00% multiplied by the outstanding principal balance of all
Mortgage Loans
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on the Distribution Date immediately preceding such anniversary and (iii) the
aggregate outstanding principal balance (as of the immediately preceding
Distribution Date) of the Mortgage Loans in any single five-digit California zip
code area with the largest amount of Mortgage Loans by aggregate principal
balance as of such anniversary and (B) the greater of (i) the product of 0.50%
multiplied by the outstanding principal balance of all Mortgage Loans on the
Distribution Date immediately preceding such anniversary multiplied by a
fraction, the numerator of which is equal to the aggregate outstanding principal
balance (as of the immediately preceding Distribution Date) of all of the
Mortgage Loans secured by Mortgaged Properties located in the State of
California divided by the aggregate outstanding principal balance (as of the
immediately preceding Distribution Date) of all of the Mortgage Loans, expressed
as a percentage, and the denominator of which is equal to 41.05% (which
percentage is equal to the percentage of Mortgage Loans initially secured by
Mortgaged Properties located in the State of California) and (ii) the aggregate
outstanding principal balance (as of the immediately preceding Distribution
Date) of the largest Mortgage Loan secured by a Mortgaged Property located in
the State of California.
The Special Hazard Amount may be further reduced by the Depositor
(including accelerating the manner in which coverage is reduced) provided that
prior to any such reduction, the Depositor shall (i) obtain written confirmation
from each Rating Agency that such reduction shall not reduce the rating assigned
to any Class of Certificates by such Rating Agency below the lower of the
then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency and (ii) provide a copy of such written
confirmation to the Trustee.
Special Hazard Losses: Realized Losses in respect of Special Hazard
Mortgage Loans as reported by the Servicer to the Master Servicer.
Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which the
ability to recover the full amount due thereunder was substantially impaired by
a hazard not insured against under a standard hazard insurance policy.
Stated Principal Balance: With respect to any Mortgage Loan and Due Date,
the unpaid principal balance of such Mortgage Loan as of such Due Date, as
specified in the amortization schedule at the time relating thereto (before any
adjustment to such amortization schedule by reason of any moratorium or similar
waiver or grace period), after giving effect to any previous partial prepayments
and Liquidation Proceeds received and to the payment of principal due on such
Due Date and irrespective of any delinquency in payment by the related
Mortgagor.
Startup Day: August 30, 2004.
Stayed Funds: If the Master Servicer is the subject of a proceeding under
the federal Bankruptcy Code and the making of a remittance by the Master
Servicer pursuant to this Agreement is prohibited by Section 362 of the federal
Bankruptcy Code, funds which are in the custody of the Master Servicer, a
trustee in bankruptcy or a federal bankruptcy court and should have been the
subject of such remittance absent such prohibition.
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Subordinate Certificates: The Class M-1, Class M-2, Class M-3, Class B-1,
Class B-2 and Class B-3 Certificates.
Subordinate Percentage: For any Distribution Date, the difference between
100% and the Senior Percentage for such date.
Subordinate Prepayment Percentage: With respect to any Distribution Date
and each Class of Subordinate Certificates, under the applicable circumstances
set forth below, the respective percentages set forth below:
(i) For any Distribution Date prior to the Distribution Date in
September 2014 (unless the Class Certificate Balances of the Senior
Certificates have been reduced to zero), 0%.
(ii) For any Distribution Date for which clause (i) does not apply,
and on which any Class of Subordinate Certificates are outstanding:
(a) in the case of the Class of Subordinate Certificates then
outstanding with the Highest Priority and each other Class of
Subordinate Certificates for which the related Prepayment
Distribution Trigger has been satisfied, a fraction, expressed as a
percentage, the numerator of which is the Class Certificate Balance
of such Class immediately prior to such date and the denominator of
which is the sum of the Class Certificate Balances immediately prior
to such date of (1) the Class of Subordinate Certificates then
outstanding with the Highest Priority and (2) all other Classes of
Subordinate Certificates for which the respective Prepayment
Distribution Triggers have been satisfied; and
(b) in the case of each other Class of Subordinate
Certificates for which the Prepayment Distribution Triggers have not
been satisfied, 0%; and
(iii) Notwithstanding the foregoing, if the application of the
foregoing percentages on any Distribution Date as provided in Section 6.01
of this Agreement (determined without regard to the proviso to the
definition of "Subordinate Principal Distribution Amount") would result in
a distribution in respect of principal of any Class or Classes of
Subordinate Certificates in an amount greater than the remaining Class
Certificate Balance thereof (any such class, a "Maturing Class"), then:
(a) the Subordinate Prepayment Percentage of each Maturing Class shall be
reduced to a level that, when applied as described above, would exactly
reduce the Class Certificate Balance of such Class to zero; (b) the
Subordinate Prepayment Percentage of each other Class of Subordinate
Certificates (any such Class, a "Non-Maturing Class") shall be
recalculated in accordance with the provisions in paragraph (ii) above, as
if the Class Certificate Balance of each Maturing Class had been reduced
to zero (such percentage as recalculated, the "Recalculated Percentage");
(c) the total amount of the reductions in the Subordinate Prepayment
Percentages of the Maturing Class or Classes pursuant to clause (a) of
this sentence, expressed as an aggregate percentage, shall be allocated
among the Non-Maturing Classes in proportion to their respective
Recalculated Percentages (the
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portion of such aggregate reduction so allocated to any Non-Maturing
Class, the "Adjustment Percentage"); and (d) for purposes of such
Distribution Date, the Subordinate Prepayment Percentage of each
Non-Maturing Class shall be equal to the sum of (1) the Subordinate
Prepayment Percentage thereof, calculated in accordance with the
provisions in paragraph (ii) above as if the Class Certificate Balance of
each Maturing Class had not been reduced to zero, plus (2) the related
Adjustment Percentage.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and each Class of Class M Certificates and Class B
Certificates, the sum of the following:
(i) the product of (x) the related Class M Percentage or Class
B Percentage for such Class and (y) the aggregate of the following
amounts:
(1) the principal portion of each Monthly Payment due
during the related Due Period on each Outstanding Mortgage Loan,
whether or not received on or prior to the related Determination
Date, minus the principal portion of any Debt Service Reduction
which together with other Bankruptcy Losses exceeds the Bankruptcy
Loss Coverage Amount;
(2) the Stated Principal Balance of any Mortgage Loan
repurchased during the related Prepayment Period pursuant to Section
2.02 or 2.03; and
(3) the principal portion of all other unscheduled
collections (other than Principal Prepayments in Full and
Curtailments and amounts received in connection with the liquidation
or other disposition of a Mortgage Loan, including without
limitation Insurance Proceeds, Liquidation Proceeds and REO
Proceeds) received during the related Prepayment Period to the
extent applied by the Servicer as recoveries of principal of the
related Mortgage Loan pursuant to the Servicing Agreement;
(ii) such Class's pro rata share, based on the Class
Certificate Balance of each Class of Class M Certificates and Class B
Certificates then outstanding, of, with respect to each Mortgage Loan for
which a liquidation or other disposition occurred during the related
Prepayment Period and did not result in any Excess Losses, an amount equal
to the related unscheduled collections (including without limitation
Insurance Proceeds, Liquidation Proceeds and REO Proceeds) to the extent
applied by the Servicer as recoveries of principal of the related Mortgage
Loan pursuant to the Servicing Agreement, to the extent such collections
are not otherwise distributed to the Senior Certificates;
(iii) the product of (x) the related Subordinate Prepayment
Percentage for such Distribution Date and (y) the aggregate of all
Principal Prepayments in Full and Curtailments of the Mortgage Loans
received in the related Prepayment Period, to the extent not payable to
the Senior Certificates; and
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(iv) any amounts described in clauses (i), (ii) and (iii) as
determined for any previous Distribution Date, that remain undistributed
to the extent that such amounts are not attributable to Realized Losses
which have been allocated to a Class of Subordinate Certificates;
provided, however, that such amount shall in no event exceed the outstanding
Class Certificate Balance of such Class of Certificates immediately prior to
such date.
Subordination: As defined in Section 6.02(c).
Subsequent Recoveries: Any amount recovered by a Servicer or the Master
Servicer (net of reimbursable expenses) with respect to a Liquidated Mortgage
Loan with respect to which a Realized Loss was incurred after the liquidation or
disposition of such Mortgage Loan.
Substitute Mortgage Loan: A mortgage loan tendered to the Trustee pursuant
to the Servicing Agreement, the Mortgage Loan Purchase Agreement or Section 2.04
of this Agreement, as applicable, in each case, (i) which has an Outstanding
Principal Balance not greater nor materially less than the Mortgage Loan for
which it is to be substituted; (ii) which has a Mortgage Interest Rate and Net
Rate not less than, and not materially greater than, such Mortgage Loan; (iii)
which has a maturity date not materially earlier or later than such Mortgage
Loan and not later than the latest maturity date of any Mortgage Loan; (iv)
which is of the same property type and occupancy type as such Mortgage Loan; (v)
which has a Loan-to-Value Ratio not greater than the Loan-to-Value Ratio of such
Mortgage Loan; (vi) which is current in payment of principal and interest as of
the date of substitution; (vii) as to which the payment terms do not vary in any
material respect from the payment terms of the Mortgage Loan for which it is to
be substituted and (viii) which has a Gross Margin, Periodic Rate Cap and
Maximum Lifetime Mortgage Rate no less than those of such Mortgage Loan, has the
same Index and interval between Interest Adjustment Dates as such Mortgage Loan,
and a Minimum Lifetime Mortgage Rate no lower than that of such Mortgage Loan.
Tax Administration and Tax Matters Person: The Securities Administrator or
any successor thereto or assignee thereof shall serve as tax administrator
hereunder and as agent for the Tax Matters Person. The Holder of each Class of
Residual Certificates shall be the Tax Matters Person for the related REMIC, as
more particularly set forth in Section 9.12 hereof.
Trustee: Wachovia Bank, National Association, or its successor in
interest, or any successor trustee appointed as herein provided.
Trust Fund: REMIC I and REMIC II.
Uncertificated Principal Balance: With respect to each REMIC I Regular
Interest on any date of determination, the amount set forth in the Preliminary
Statement hereto minus the sum of (x) the aggregate of all amounts previously
deemed distributed with respect to such interest and applied to reduce the
Uncertificated Principal Balance thereof pursuant to Section 6.01 and (y) the
aggregate of all reductions in Class Certificate Balance deemed to have occurred
in
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connection with Realized Losses that were previously deemed allocated to the
Uncertificated Principal Balance of such REMIC I Regular Interest pursuant to
Section 6.07.
Uncertificated REMIC Accrued Interest: With respect to each Distribution
Date, as to any REMIC I Regular Interest, interest accrued during the related
Interest Accrual Period at the related REMIC I Pass-Through Rate on the
Uncertificated Principal Balance thereof immediately prior to such Distribution
Date. Uncertificated REMIC Accrued Interest will be calculated on the basis of a
360-day year, consisting of twelve 30-day months. In each case Uncertificated
REMIC Accrued Interest on any REMIC I Regular Interest will be reduced by the
amount of: (i) Prepayment Interest Shortfalls on all Mortgage Loans (to the
extent not offset by the Master Servicer with a Compensating Interest Payment as
provided in Section 6.06), (ii) the interest portion (adjusted to the Net
Mortgage Rate) of Realized Losses (including Excess Losses) not allocated solely
to one or more specific Classes of Certificates pursuant to Section 6.02, (iii)
the interest portion of Monthly Advances previously made with respect to a
Mortgage Loan or REO Property which remained unreimbursed following the
liquidation or other disposition of such Mortgage Loan or REO Property by the
Servicer or the Master Servicer that were made with respect to delinquencies
that were ultimately determined to be Excess Losses and (iv) any other interest
shortfalls not covered by the subordination provided by the Class M Certificates
and Class B Certificates with all such reductions allocated among all of the
REMIC I Regular Interests in proportion to their respective amounts of
Uncertificated REMIC Accrued Interest payable on such Distribution Date which
would have resulted absent such reductions.
Undercollateralized Amount: On any Distribution Date, the excess of (x)
the aggregate Class Certificate Balance of any Class or Classes of Senior
Certificates related to a Loan Group immediately prior to such Distribution Date
over (y) the aggregate Stated Principal Balance of the Mortgage Loans in its
related Loan Group as of the beginning of the related Due Period.
Undercollateralized Senior Certificates: As defined in Section 6.01(D).
Underlying Seller: National City.
Uninsured Cause: Any cause of damage to a Mortgaged Property or related
REO Property such that the complete restoration of such Mortgaged Property or
related REO Property is not fully reimbursable by the hazard insurance policies
required to be maintained pursuant to the Servicing Agreement, without regard to
whether or not such policy is maintained.
United States Person: A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States or any state thereof or the District of Columbia
(except, in the case of a partnership, to the extent provided in regulations),
provided that, for purposes solely of the Class R Certificates, no partnership
or other entity treated as a partnership for United States federal income tax
purposes shall be treated as a United States Person unless all persons that own
an interest in such partnership either directly or through any entity that is
not a corporation for United States federal income tax purposes are United
States Persons, or an estate whose income is subject to United States federal
income tax regardless of its source, or a trust if a court within the United
States is able to
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exercise primary supervision over the administration of the trust and one or
more such United States Persons have the authority to control all substantial
decisions of the trust. To the extent prescribed in regulations by the Secretary
of the Treasury, which have not yet been issued, a trust which was in existence
on August 20, 1996 (other than a trust treated as owned by the grantor under
subpart E of part I of subchapter J of chapter 1 of the Code), and which was
treated as a United States person on August 20, 1996 may elect to continue to be
treated as a United States person notwithstanding the previous sentence.
Voting Rights: The portion of the voting rights of all of the Certificates
which is allocated to any Certificate. The Voting Rights allocated among Holders
of such Certificates outstanding shall be the fraction, expressed as a
percentage, the numerator of which is the aggregate Class Certificate Balance of
all the Certificates of such Class then outstanding and the denominator of which
is the aggregate Class Certificate Balance of all the Certificates then
outstanding (other than the Class R Certificates). 99.00% of all Voting Rights
will be allocated among all holders of the Certificates (other than the Class R
Certificates) in proportion to their then outstanding Class Certificate
Balances, 0.5% and 0.5% of all Voting Rights will be allocated among the holders
of the Class R-I Certificates and Class R-II Certificates, respectively, in
proportion to the Percentage Interests evidenced by their respective
Certificates; provided, however, that any Certificate registered in the name of
the Master Servicer, the Depositor or the Trustee or any of their respective
affiliates shall not be included in the calculation of Voting Rights.
Section 1.01 Accounting.
Unless otherwise specified herein, for the purpose of any definition or
calculation, whenever amounts are required to be netted, subtracted or added or
any distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication of
such functions.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans to Trustee.
(a) The Depositor concurrently with the execution and delivery of this
Agreement, sells, transfers and assigns to the Trust without recourse all its
right, title and interest in and to (i) the Mortgage Loans identified in the
Mortgage Loan Schedule, including all interest and principal due with respect to
the Mortgage Loans after the Cut-off Date, but excluding any payments of
principal and interest due on or prior to the Cut-off Date; (ii) such assets as
shall from time to time be credited or are required by the terms of this
Agreement to be credited to the Master Servicer Collection Account, (iii) such
assets relating to the Mortgage Loans as from time to time may be held by the
Servicer in Protected Accounts, the Master Servicer in the Master Servicer
Collection Account and the Trustee in the Distribution Account for the benefit
of the Trustee on behalf of the Certificateholders, (iv) any REO Property, (v)
the Required Insurance Policies and any amounts paid or payable by the insurer
under any Insurance Policy (to the extent the mortgagee has a claim thereto),
(vi) the Mortgage Loan Purchase Agreement to the extent provided in Subsection
2.03(a), (vii) the rights with respect to the Servicing Agreement as assigned to
the Trustee on behalf of the Certificateholders by the Assignment Agreement and
(viii) any proceeds of the foregoing. Although it is the intent of the parties
to this Agreement that the conveyance of the Depositor's right, title and
interest in and to the Mortgage Loans and other assets in the Trust Fund
pursuant to this Agreement shall constitute a purchase and sale and not a loan,
in the event that such conveyance is deemed to be a loan, it is the intent of
the parties to this Agreement that the Depositor shall be deemed to have granted
to the Trustee a first priority perfected security interest in all of the
Depositor's right, title and interest in, to and under the Mortgage Loans and
other assets in the Trust Fund, and that this Agreement shall constitute a
security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor
hereby deposits with the Trustee or the Custodian, as its agent, the following
documents or instruments with respect to each Mortgage Loan:
(i) the original Mortgage Note, endorsed in the following
form: "Pay to the order of Wachovia Bank, National Association, as Trustee
for the registered holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 2004-A2 without recourse," with
all prior and intervening endorsements showing a complete chain of
endorsement from the originator to the Person so endorsing to the Trustee;
(ii) the original recorded Mortgage or a copy of the Mortgage
certified by the public recording office in which such Mortgage has been
recorded;
(iii) an original Assignment of the Mortgage executed in the
following form: "Wachovia Bank, National Association, as Trustee for the
registered holders of the
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Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 2004-A2;
(iv) the original recorded Assignment or Assignments of the
Mortgage showing a complete chain of assignment from the originator to the
Person assigning the Mortgage to the Trustee as contemplated by the
immediately preceding clause (iii), if applicable and only to the extent
available to the Depositor with evidence of recording thereon;
(v) the originals of all assumption, modification,
consolidation or extension agreements, with evidence of recording thereon,
if any;
(vi) the original of any guarantee executed in connection with
the Mortgage Note;
(vii) the original mortgagee title insurance policy;
(viii) the original of any security agreement, chattel
mortgage or equivalent document executed in connection with the Mortgage;
and
(ix) the original power of attorney, if applicable;
provided, however, that in lieu of the foregoing, the Depositor may deliver the
following documents, under the circumstances set forth below: (w) the Depositor
may deliver a Mortgage Note pursuant to (A)(i) and (B)(i) endorsed in blank,
provided that the endorsement is completed within 60 days of the Closing Date;
(x) in lieu of the original Mortgage, assignments to the Trustee or intervening
assignments thereof which have been delivered, are being delivered or will, upon
receipt of recording information relating to the Mortgage required to be
included thereon, be delivered to recording offices for recording and have not
been returned to the Depositor in time to permit their delivery as specified
above, the Depositor may deliver a true copy thereof with a certification by the
Depositor on the face of such copy, substantially as follows: "Certified to be a
true and correct copy of the original, which has been transmitted for
recording"; and (y) in lieu of the Mortgage, assignment to the Trustee or
intervening assignments thereof, if the applicable jurisdiction retains the
originals of such documents (as evidenced by a certification from the Depositor
or the Master Servicer, to such effect) the Depositor may deliver photocopies of
such documents containing an original certification by the judicial or other
governmental authority of the jurisdiction where such documents were recorded;
and provided, further, however, that in the case of Mortgage Loans which have
been prepaid in full after the Cut-off Date and prior to the Closing Date, the
Depositor, in lieu of delivering the above documents, may deliver to the Trustee
a certification to such effect and shall deposit all amounts paid in respect of
such Mortgage Loans in the Distribution Account on the Closing Date. The
Depositor shall deliver such original documents (including any original
documents as to which certified copies had previously been delivered) to the
Trustee promptly after they are received. The Depositor shall cause, at its
expense, the assignment of the Mortgage to the Trustee to be recorded not later
than 180 days after the Closing Date, unless such recordation is not required by
the Rating Agencies or an Opinion of Counsel has been provided as set forth
below in this
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Section 2.01. The Depositor need not cause to be recorded any assignment in any
jurisdiction under the laws of which, as evidenced by an Opinion of Counsel
delivered by the Depositor to the Trustee and the Rating Agencies, the
recordation of such assignment is not necessary to protect the Trustee's
interest in the related Mortgage Loan; provided, however, notwithstanding the
delivery of any Opinion of Counsel, each assignment shall be submitted for
recording by the Depositor in the manner described above, at no expense to the
Trust Fund, the Trustee or the Custodian, upon the earliest to occur of : (i)
reasonable direction by the Holders of Certificates evidencing Percentage
Interests aggregating not less than 25% of the Trust Fund, (ii) the occurrence
of an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or
foreclosure relating to the Depositor, (iv) the occurrence of a servicing
transfer as described in Section 8.02 hereof and (v) with respect to any one
assignment, the occurrence of a bankruptcy, insolvency or foreclosure relating
to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if
the Depositor fails to pay the cost of recording the assignments, such expense
will be paid by the Trustee and the Trustee shall be reimbursed for such
expenses by the Trust Fund in accordance with Section 9.05.
If any original Mortgage Note referred to in Section 2.01(b)(i)
above cannot be located, the obligations of the Depositor to deliver such
documents shall be deemed to be satisfied upon delivery to the Trustee of a
photocopy of such Mortgage Note, if available, with a lost note affidavit. If
any of the original Mortgage Notes for which a lost note affidavit was delivered
to the Trustee is subsequently located, such original Mortgage Note shall be
delivered to the Trustee within three Business Days.
(c) The parties hereto agree that it is not intended that any mortgage
loan be included in the Trust that is either (i) a "High-Cost Home Loan" as
defined in the New Jersey Home Ownership Act effective November 27, 2003 or (ii)
a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004.
Section 2.02 Acceptance of Mortgage Loans by Trustee.
(a) The Trustee acknowledges the sale, transfer and assignment of the
Trust to it by the Depositor and receipt of, subject to further review and the
exceptions which may be noted pursuant to the procedures described below, and
declares that it, or the Custodian on its behalf, holds the documents (or
certified copies thereof) delivered to it pursuant to Section 2.01, and declares
that it will continue to hold those documents and any amendments, replacements
or supplements thereto and all other assets of the Trust Fund delivered to it as
Trustee in trust for the use and benefit of all present and future Holders of
the Certificates. On or before the Closing Date (or, with respect to any
Substitute Mortgage Loan, within five Business Days after the receipt by the
Trustee or Custodian thereof), the Trustee agrees, for the benefit of the
Certificateholders, to review or cause to be reviewed by the Custodian on its
behalf (under the Custodial Agreement), each Mortgage File delivered to it and
to execute and deliver, or cause to be executed and delivered, to the Depositor
on the Closing Date an Initial Certification. In conducting such review, the
Trustee or Custodian will certify as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in the exception report annexed thereto as
not being covered by such certification), (i) all documents constituting part of
such Mortgage File (other than such
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documents described in Section 2.01(b)(iii)) required to be delivered to it
pursuant to this Agreement are in its possession, provided that with respect to
the documents described in Section 2.01(b)(v), (vi), (viii) and (ix) to the
extent the Trustee or the Custodian on its behalf has actual knowledge that such
documents exist, (ii) such documents have been reviewed by it and are not torn,
mutilated, defaced or otherwise altered (except if initialed by the obligor) and
appear to relate on their face to such Mortgage Loan, (iii) based on its
examination and only as to the foregoing, the information set forth in the
Mortgage Loan Schedule corresponding to the loan number for the Mortgage Loan,
the Mortgagor's name, including the street address but excluding the zip code,
the Mortgage Interest Rate and the original principal balance of the Mortgage
Loan accurately reflects information set forth in the Mortgage File and (iv)
with respect to Mortgage Loans with a Mortgage Interest Rate subject to
adjustment, the gross margin, the lifetime cap and the periodic cap for such
Mortgage Loan. In performing any such review, the Trustee, or the Custodian, as
its agent, may conclusively rely on the purported due execution and genuineness
of any such document and on the purported genuineness of any signature thereon.
Notwithstanding anything to the contrary in this Agreement, it is herein
acknowledged that, in conducting such review, the Trustee or the Custodian on
its behalf is under no duty or obligation to inspect, review or examine any such
documents, instruments, certificates or other papers to determine whether they
are genuine, enforceable, or appropriate for the represented purpose or whether
they have actually been recorded or that they are other than what they purport
to be on their face, or to determine whether any Person executing any documents
is authorized to do so or whether any signature is genuine. If the Trustee or
the Custodian, as its agent, finds any document constituting part of the
Mortgage File not to have been executed or received, or to be unrelated to the
Mortgage Loans identified in Exhibit B or to appear to be defective on its face,
the Trustee or the Custodian, as its agent, shall promptly notify the Seller. In
accordance with the Mortgage Loan Purchase Agreement, the Seller shall correct
or cure any such defect within ninety (90) days from the date of notice from the
Trustee or the Custodian, as its agent, of the defect and if the Seller fails to
correct or cure the defect within such period, and such defect materially and
adversely affects the interests of the Certificateholders in the related
Mortgage Loan, the Trustee, shall enforce the Seller's obligation pursuant to
the Mortgage Loan Purchase Agreement, within 90 days from the Trustee's or the
Custodian's notification, to purchase such Mortgage Loan at the Purchase Price;
provided that, if such defect would cause the Mortgage Loan to be other than a
"qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure
or repurchase must occur within 90 days from the date such breach was
discovered; provided, however, that if such defect relates solely to the
inability of the Seller to deliver the original Security Instrument or
intervening assignments thereof, or a certified copy because the originals of
such documents, or a certified copy have not been returned by the applicable
jurisdiction, the Seller shall not be required to purchase such Mortgage Loan if
the Seller delivers such original documents or certified copy promptly upon
receipt, but in no event later than 360 days after the Closing Date. The
foregoing repurchase obligation shall not apply in the event that the Seller
cannot deliver such original or copy of any document submitted for recording to
the appropriate recording office in the applicable jurisdiction because such
document has not been returned by such office; provided that the Seller shall
instead deliver a recording receipt of such recording office or, if such receipt
is not available, a certificate confirming that such documents have been
accepted for recording, and delivery to the Trustee or the Custodian, as its
agent, shall be effected by the Seller within thirty days of its receipt of the
original recorded document.
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(b) No later than 180 days after the Closing Date, the Trustee or the
Custodian, as its agent, will review, for the benefit of the Certificateholders,
the Mortgage Files delivered to it and will execute and deliver or cause to be
executed and delivered to the Depositor a Final Certification. In conducting
such review, the Trustee or the Custodian, as its agent, will certify as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or any Mortgage Loan specifically identified in the exception
report annexed thereto as not being covered by such certification), that (i) all
documents constituting part of such Mortgage File (other than such documents
described in Section 2.01(b)(v) and (ix)) required to be delivered to it
pursuant to this Agreement are in its possession, provided that with respect to
the documents described in Section 2.01(b)(v), (vi), (viii) and (ix) to the
extent the Trustee or the Custodian on its behalf has actual knowledge that such
documents exist, (ii) such documents have been reviewed by it and are not torn,
mutilated, defaced or otherwise altered (except if initialed by the obligor) and
appear regular on their face and relate to such Mortgage Loan, (iii) based on
its examination and only as to the foregoing, the information set forth in the
Mortgage Loan Schedule corresponding to the loan number for the Mortgage Loan,
the Mortgagor's name, including the street address but excluding the zip code,
the Mortgage Interest Rate and the original principal balance of the Mortgage
Loan accurately reflects information set forth in the Mortgage File. In
performing any such review, the Trustee, or the Custodian, as its agent, may
conclusively rely on the purported due execution and genuineness of any such
document and on the purported genuineness of any signature thereon.
Notwithstanding anything to the contrary in this Agreement, it is herein
acknowledged that, in conducting such review, the Trustee or the Custodian on
its behalf is under no duty or obligation (i) to inspect, review or examine any
such documents, instruments, certificates or other papers to determine whether
they are genuine, enforceable, or appropriate for the represented purpose or
whether they have actually been recorded or that they are other than what they
purport to be on their face, or to determine whether any Person executing any
documents is authorized to do so or whether any signature is genuine. If the
Trustee or the Custodian, as its agent, finds any document constituting part of
the Mortgage File not to have been executed or received, or to be unrelated to
the Mortgage Loans identified in Exhibit B or to appear to be defective on its
face, the Trustee or the Custodian, as its agent, shall promptly notify the
Seller. In accordance with the Mortgage Loan Purchase Agreement, the Seller
shall correct or cure any such defect within 90 days from the date of notice
from the Trustee of the defect and if the Seller is unable to cure such defect
within such period, and if such defect materially and adversely affects the
interests of the Certificateholders in the related Mortgage Loan, the Trustee
shall enforce the Seller's obligation under the Mortgage Loan Purchase Agreement
to purchase such Mortgage Loan at the Purchase Price, provided, however, that if
such defect relates solely to the inability of the Seller to deliver the
original Security Instrument or intervening assignments thereof, or a certified
copy, because the originals of such documents. or a certified copy, have not
been returned by the applicable jurisdiction, the Seller shall not be required
to purchase such Mortgage Loan, if the Seller delivers such original documents
or certified copy promptly upon receipt, but in no event later than 360 days
after the Closing Date.
(c) In the event that a Mortgage Loan is purchased by the Seller in
accordance with Subsections 2.02(a) or (b) above, the Seller shall remit to the
Master Servicer the Purchase Price for deposit in the Master Servicer Collection
Account and the Seller shall provide to the Trustee written notification
detailing the components of the Purchase Price. Upon deposit of the Purchase
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Price in the Master Servicer Collection Account, the Depositor shall notify the
Trustee and the Custodian and the Trustee or the Custodian, as its agent (upon
receipt of a Request for Release in the form of Exhibit D attached hereto with
respect to such Mortgage Loan), shall release to the Seller the related Mortgage
File and the Trustee shall execute and deliver all instruments of transfer or
assignment, without recourse, furnished to it by the Seller as are necessary to
vest in the Seller title to and rights under the Mortgage Loan. Such purchase
shall be deemed to have occurred on the date on which the Purchase Price in
available funds is received by the Trustee. The Trustee shall amend the Mortgage
Loan Schedule, which was previously delivered to it by Depositor in a form
agreed to between the Depositor and the Trustee, to reflect such repurchase and
shall promptly notify the Rating Agencies and the Master Servicer of such
amendment. The obligation of the Seller to repurchase any Mortgage Loan as to
which such a defect in a constituent document exists shall be the sole remedy
respecting such defect available to the Certificateholders or to the Trustee on
their behalf.
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase
Agreement.
(a) The Depositor hereby assigns to the Trustee, on behalf of the
Certificateholders, all of its right, title and interest in the Mortgage Loan
Purchase Agreement, including but not limited to Depositor's rights and
obligations pursuant to the Servicing Agreement (noting that the Seller has
retained the right in the event of breach of the representations, warranties and
covenants, if any, with respect to the related Mortgage Loans of the Servicer
under the Servicing Agreement to enforce the provisions thereof and to seek all
or any available remedies). The obligations of the Seller to substitute or
repurchase, as applicable, a Mortgage Loan shall be the Trustee's and the
Certificateholders' sole remedy for any breach thereof. At the request of the
Trustee, the Depositor shall take such actions as may be necessary to enforce
the above right, title and interest on behalf of the Trustee and the
Certificateholders or shall execute such further documents as the Trustee may
reasonably require in order to enable the Trustee to carry out such enforcement.
With respect to the representations and warranties described in the Mortgage
Loan Purchase Agreement which are made to the best of the Seller's knowledge, if
it is discovered by any of the Depositor, the Seller or the Trustee that the
substance of such representation and warranty is inaccurate and such inaccuracy
materially and adversely affects the value of the related Mortgage Loan, then
notwithstanding the seller's lack of knowledge with respect to the substance of
such representation and warranty, such inaccuracy shall be deemed a breach of
the applicable representation or warranty.
(b) If the Depositor, the Master Servicer, Securities Administrator or the
Trustee discovers a breach of any of the representations and warranties set
forth in the Mortgage Loan Purchase Agreement, which breach materially and
adversely affects the value of the interests of Certificateholders or the
Trustee in the related Mortgage Loan, the party discovering the breach shall
give prompt written notice of the breach to the other parties. The Seller,
within 90 days of its discovery or receipt of notice that such breach has
occurred (whichever occurs earlier), shall cure the breach in all material
respects or, subject to the Mortgage Loan Purchase Agreement or Section 2.04 of
this Agreement, as applicable, shall purchase the Mortgage Loan or any property
acquired with respect thereto from the Trustee; provided, however, that if there
is a breach of any representation set forth in the Mortgage Loan Purchase
Agreement or Section 2.04 of this Agreement, as applicable, and the Mortgage
Loan or the related property acquired with respect
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thereto has been sold, then the Seller shall pay, in lieu of the Purchase Price,
any excess of the Purchase Price over the Net Liquidation Proceeds received upon
such sale. (If the Net Liquidation Proceeds exceed the Purchase Price, any
excess shall be paid to the Seller to the extent not required by law to be paid
to the borrower.) Any such purchase by the Seller shall be made by providing an
amount equal to the Purchase Price to the Master Servicer for deposit in the
Master Servicer Collection Account and written notification detailing the
components of such Purchase Price. The Depositor shall notify the Trustee and
submit to the Trustee or the Custodian, as its agent, a Request for Release, and
the Trustee shall release, or the Trustee shall cause the Custodian to release,
to the Seller the related Mortgage File and the Trustee shall execute and
deliver all instruments of transfer or assignment furnished to it by the Seller,
without recourse, as are necessary to vest in the Seller title to and rights
under the Mortgage Loan or any property acquired with respect thereto. Such
purchase shall be deemed to have occurred on the date on which the Purchase
Price in available funds is received by the Trustee. The Trustee or the Master
Servicer shall amend the Mortgage Loan Schedule to reflect such repurchase and
shall promptly notify the Master Servicer and the Rating Agencies of such
amendment. Enforcement of the obligation of the Seller to purchase (or
substitute a Substitute Mortgage Loan for) any Mortgage Loan or any property
acquired with respect thereto (or pay the Purchase Price as set forth in the
above proviso) as to which a breach has occurred and is continuing shall
constitute the sole remedy respecting such breach available to the
Certificateholders or the Trustee on their behalf.
Section 2.04 Substitution of Mortgage Loans.
Notwithstanding anything to the contrary in this Agreement, in lieu of
purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or
Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date
by which such purchase by the Seller would otherwise be required, tender to the
Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized
officer of the Seller that such Substitute Mortgage Loan conforms to the
requirements set forth in the definition of "Substitute Mortgage Loan" in the
Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided,
however, that substitution pursuant to the Mortgage Loan Purchase Agreement or
Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be
permitted after the termination of the two-year period beginning on the Startup
Day; provided, further, that if the breach would cause the Mortgage Loan to be
other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code,
any such cure or substitution must occur within 90 days from the date the breach
was discovered. The Trustee or the Custodian, as its agent, shall examine the
Mortgage File for any Substitute Mortgage Loan in the manner set forth in
Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the
Seller, in writing, within five Business Days after receipt, whether or not the
documents relating to the Substitute Mortgage Loan satisfy the requirements of
the fourth sentence of Subsection 2.02(a). Within two Business Days after such
notification, the Seller shall provide to the Trustee for deposit in the
Distribution Account the amount, if any, by which the Outstanding Principal
Balance as of the next preceding Due Date of the Mortgage Loan for which
substitution is being made, after giving effect to Scheduled Principal due on
such date, exceeds the Outstanding Principal Balance as of such date of the
Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such
date, which amount shall be treated for the purposes of this Agreement as if it
were the payment by the Seller of the Purchase Price for the
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purchase of a Mortgage Loan by the Seller. After such notification to the Seller
and, if any such excess exists, upon receipt of such deposit, the Trustee shall
accept such Substitute Mortgage Loan which shall thereafter be deemed to be a
Mortgage Loan hereunder. In the event of such a substitution, accrued interest
on the Substitute Mortgage Loan for the month in which the substitution occurs
and any Principal Prepayments made thereon during such month shall be the
property of the Trust Fund and accrued interest for such month on the Mortgage
Loan for which the substitution is made and any Principal Prepayments made
thereon during such month shall be the property of the Seller. The Scheduled
Principal on a Substitute Mortgage Loan due on the Due Date in the month of
substitution shall be the property of the Seller and the Scheduled Principal on
the Mortgage Loan for which the substitution is made due on such Due Date shall
be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage
Loan (and delivery to the Trustee or Custodian of a Request for Release for such
Mortgage Loan), the Trustee shall release to the Seller the related Mortgage
File related to any Mortgage Loan released pursuant to the Mortgage Loan
Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall
execute and deliver all instruments of transfer or assignment, without recourse,
in form as provided to it as are necessary to vest in the Seller title to and
rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase
Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall
deliver the documents related to the Substitute Mortgage Loan in accordance with
the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b)
and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the
Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time
periods set forth in those Subsections. The representations and warranties set
forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made
by the Seller with respect to each Substitute Mortgage Loan as of the date of
acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend
the Mortgage Loan Schedule to reflect such substitution and shall provide a copy
of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.
Section 2.05 Issuance of Certificates.
(a) The Trustee acknowledges the assignment to it on behalf of the Trust
Fund of the Mortgage Loans and the other assets comprising the Trust Fund and,
concurrently therewith, has signed, and countersigned and delivered to the
Depositor, in exchange therefor, Certificates in such authorized denominations
representing such Percentage Interests as the Depositor has requested. The
Trustee agrees that it will hold the Mortgage Loans and such other assets as may
from time to time be delivered to it segregated on the books of the Trustee in
trust for the benefit of the Certificateholders.
(b) The Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey in trust to the
Trustee without recourse all the right, title and interest of the Depositor in
and to the assets of REMIC I for the benefit of the holders of the REMIC I
Regular Interests. The Trustee acknowledges receipt of the assets of REMIC I and
declares that it holds and will hold the same in trust for the exclusive use and
benefit of the holders of the REMIC I Regular Interests.
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(c) The Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey in trust to the
Trustee without recourse all the right, title and interest of the Depositor in
and to the REMIC I Regular Interests and the other assets of REMIC II for the
benefit of the holders of the REMIC II Certificates. The Trustee acknowledges
receipt of the REMIC I Regular Interests (which are uncertificated) and the
other assets of REMIC II and declares that it holds and will hold the same in
trust for the exclusive use and benefit of the holders of the REMIC II
Certificates.
Section 2.06 Representations and Warranties Concerning the Depositor.
The Depositor hereby represents and warrants to the Trustee, the Master
Servicer and the Securities Administrator as follows:
(i) the Depositor (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
(b) is qualified and in good standing as a foreign corporation to do
business in each jurisdiction where such qualification is necessary,
except where the failure so to qualify would not reasonably be expected to
have a material adverse effect on the Depositor's business as presently
conducted or on the Depositor's ability to enter into this Agreement and
to consummate the transactions contemplated hereby;
(ii) the Depositor has full corporate power to own its
property, to carry on its business as presently conducted and to enter
into and perform its obligations under this Agreement;
(iii) the execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate action on
the part of the Depositor; and neither the execution and delivery of this
Agreement, nor the consummation of the transactions herein contemplated,
nor compliance with the provisions hereof, will conflict with or result in
a breach of, or constitute a default under, any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
the Depositor or its properties or the articles of incorporation or
by-laws of the Depositor, except those conflicts, breaches or defaults
which would not reasonably be expected to have a material adverse effect
on the Depositor's ability to enter into this Agreement and to consummate
the transactions contemplated hereby;
(iv) the execution, delivery and performance by the Depositor
of this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice to,
the registration with, or the taking of any other action in respect of,
any state, federal or other governmental authority or agency, except those
consents, approvals, notices, registrations or other actions as have
already been obtained, given or made;
(v) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the
Depositor enforceable against it
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in accordance with its terms (subject to applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the
rights of creditors generally);
(vi) there are no actions, suits or proceedings pending or, to
the knowledge of the Depositor, threatened against the Depositor, before
or by any court, administrative agency, arbitrator or governmental body
(i) with respect to any of the transactions contemplated by this Agreement
or (ii) with respect to any other matter which in the judgment of the
Depositor will be determined adversely to the Depositor and will if
determined adversely to the Depositor materially and adversely affect the
Depositor's ability to enter into this Agreement or perform its
obligations under this Agreement; and the Depositor is not in default with
respect to any order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the
transactions contemplated by this Agreement; and
(vii) immediately prior to the transfer and assignment to the
Trustee, each Mortgage Note and each Mortgage were not subject to an
assignment or pledge, and the Depositor had good and marketable title to
and was the sole owner thereof and had full right to transfer and sell
such Mortgage Loan to the Trustee free and clear of any encumbrance,
equity, lien, pledge, charge, claim or security interest.
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ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicer.
The Master Servicer shall supervise, monitor and oversee the obligation of
the Servicer to service and administer their respective Mortgage Loans in
accordance with the terms of the Servicing Agreement and shall have full power
and authority to do any and all things which it may deem necessary or desirable
in connection with such master servicing and administration. In performing its
obligations hereunder, the Master Servicer shall act in a manner consistent with
Accepted Master Servicing Practices. Furthermore, the Master Servicer shall
oversee and consult with the Servicer as necessary from time-to-time to carry
out the Master Servicer's obligations hereunder, shall receive, review and
evaluate all reports, information and other data provided to the Master Servicer
by the Servicer and shall cause the Servicer to perform and observe the
covenants, obligations and conditions to be performed or observed by such
Servicer under the Servicing Agreement. The Master Servicer shall independently
and separately monitor the Servicer's servicing activities with respect to each
related Mortgage Loan, reconcile the results of such monitoring with such
information provided in the previous sentence on a monthly basis and coordinate
corrective adjustments to the Servicer's and Master Servicer's records, and
based on such reconciled and corrected information, the Master Servicer shall
provide such information to the Securities Administrator as shall be necessary
in order for it to prepare the statements specified in Section 6.04, and prepare
any other information and statements required to be forwarded by the Master
Servicer hereunder. The Master Servicer shall reconcile the results of its
Mortgage Loan monitoring with the actual remittances of the Servicer to the
Protected Account pursuant to the Servicing Agreement.
The Trustee shall furnish the Servicer and the Master Servicer with any
limited powers of attorney and other documents in form as provided to it
necessary or appropriate to enable the Servicer and the Master Servicer to
service and administer the related Mortgage Loans and REO Property. The Trustee
shall have no liability with respect to the use of any such limited power of
attorney.
The Trustee or the Custodian shall provide access to the records and
documentation in possession of the Trustee or the Custodian regarding the
related Mortgage Loans and REO Property and the servicing thereof to the
Certificateholders, the FDIC, and the supervisory agents and examiners of the
FDIC, such access being afforded only upon reasonable prior written request and
during normal business hours at the office of the Trustee or the Custodian;
provided, however, that, unless otherwise required by law, the Trustee or the
Custodian shall not be required to provide access to such records and
documentation if the provision thereof would violate the legal right to privacy
of any Mortgagor. The Trustee or the Custodian shall allow representatives of
the above entities to photocopy any of the records and documentation and shall
provide equipment for that purpose at a charge that covers the Trustee's or the
Custodian's actual costs.
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The Trustee shall execute and deliver to the Servicer and the Master
Servicer upon request any court pleadings, requests for trustee's sale or other
documents necessary or desirable to (i) the foreclosure or trustee's sale with
respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Security Instrument;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or Security Instrument or
otherwise available at law or equity.
Section 3.02 REMIC-Related Covenants.
For as long as each REMIC shall exist, the Trustee and the Securities
Administrator shall act in accordance herewith to assure continuing treatment of
such REMIC as a REMIC, and the Trustee and the Securities Administrator shall
comply with any directions of the Depositor, the Servicer or the Master Servicer
to assure such continuing treatment. In particular, the Trustee shall not (a)
sell or permit the sale of all or any portion of the Mortgage Loans or of any
investment of deposits in an Account unless such sale is as a result of a
repurchase of the Mortgage Loans pursuant to this Agreement or the Trustee has
received a REMIC Opinion prepared at the expense of the Trust Fund; and (b)
other than with respect to a substitution pursuant to the Mortgage Loan Purchase
Agreement or Section 2.04 of this Agreement, as applicable, accept any
contribution to any REMIC after the Startup Day without receipt of a REMIC
Opinion.
Section 3.03 Monitoring of Servicer.
(a) The Master Servicer shall be responsible for reporting to the Trustee
and the Depositor the compliance by the Servicer with its duties under the
Servicing Agreement. In the review of the Servicer's activities, the Master
Servicer may rely upon an officer's certificate of the Servicer with regard to
such Servicer's compliance with the terms of its Servicing Agreement. In the
event that the Master Servicer, in its judgment, determines that a Servicer
should be terminated in accordance with its Servicing Agreement, or that a
notice should be sent pursuant to such Servicing Agreement with respect to the
occurrence of an event that, unless cured, would constitute grounds for such
termination, the Master Servicer shall notify the Depositor and the Trustee
thereof and the Master Servicer shall issue such notice or take such other
action as it deems appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of the Servicer under the
Servicing Agreement, and shall, in the event that a Servicer fails to perform
its obligations in accordance with the Servicing Agreement, subject to the
preceding paragraph, terminate the rights and obligations of such Servicer
thereunder and act as servicer of the related Mortgage Loans or to cause the
Trustee to enter in to a new Servicing Agreement with a successor Servicer
selected by the Master Servicer; provided, however, it is understood and
acknowledged by the parties hereto that there will be a period of transition
(not to exceed 90 days) before the actual servicing functions can be fully
transferred to such successor Servicer. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of the Servicing
Agreement and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as the Master Servicer, in
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its good faith business judgment, would require were it the owner of the related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement at
its own expense subject to Section 3.03(c), provided that the Master Servicer
shall not be required to prosecute or defend any legal action except to the
extent that the Master Servicer shall have received reasonable indemnity for its
costs and expenses in pursuing such action.
(c) To the extent that the costs and expenses of the Master Servicer
related to any termination of a Servicer, appointment of a successor Servicer or
the transfer and assumption of servicing by the Master Servicer with respect to
the Servicing Agreement (including, without limitation, (i) all legal costs and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the Servicer as a result of an event of default
by such Servicer and (ii) all costs and expenses associated with the complete
transfer of servicing, including all servicing files and all servicing data and
the completion, correction or manipulation of such servicing data as may be
required by the successor servicer to correct any errors or insufficiencies in
the servicing data or otherwise to enable the successor service to service the
Mortgage Loans in accordance with the Servicing Agreement) are not fully and
timely reimbursed by the terminated Servicer, the Master Servicer shall be
entitled to reimbursement of such costs and expenses from the Master Servicer
Collection Account pursuant to Section 4.03(b).
(d) The Master Servicer shall require the Servicer to comply with the
remittance requirements and other obligations set forth in the Servicing
Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume liability
for the representations and warranties of the Servicer, if any, that it
replaces.
Section 3.04 Fidelity Bond.
The Master Servicer, at its expense, shall maintain in effect a blanket
fidelity bond and an errors and omissions insurance policy, affording coverage
with respect to all directors, officers, employees and other Persons acting on
such Master Servicer's behalf, and covering errors and omissions in the
performance of the Master Servicer's obligations hereunder. The errors and
omissions insurance policy and the fidelity bond shall be in such form and
amount generally acceptable for entities serving as master servicers or
trustees.
Section 3.05 Power to Act; Procedures.
The Master Servicer shall master service the Mortgage Loans and shall have
full power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion of
the ownership of the Mortgaged Property securing any Mortgage Loan, in each
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case, in accordance with the provisions of this Agreement and the Servicing
Agreement, as applicable; provided, however, that the Master Servicer shall not
(and, consistent with its responsibilities under Section 3.03, shall not permit
the Servicer to) knowingly or intentionally take any action, or fail to take (or
fail to cause to be taken) any action reasonably within its control and the
scope of duties more specifically set forth herein, that, under the REMIC
Provisions, if taken or not taken, as the case may be, would cause REMIC I or
REMIC II to fail to qualify as a REMIC or result in the imposition of a tax upon
the Trust Fund (including but not limited to the tax on prohibited transactions
as defined in Section 860F(a)(2) of the Code and the tax on contributions to a
REMIC set forth in Section 860G(d) of the Code) unless the Master Servicer has
received an Opinion of Counsel (but not at the expense of the Master Servicer)
to the effect that the contemplated action will not would cause REMIC I or REMIC
II to fail to qualify as a REMIC or result in the imposition of a tax upon REMIC
I or REMIC II, as the case may be. The Trustee shall furnish the Master
Servicer, upon written request from a Servicing Officer, with any limited powers
of attorney empowering the Master Servicer or the Servicer to execute and
deliver instruments of satisfaction or cancellation, or of partial or full
release or discharge, and to foreclose upon or otherwise liquidate Mortgaged
Property, and to appeal, prosecute or defend in any court action relating to the
Mortgage Loans or the Mortgaged Property, in accordance with the Servicing
Agreement and this Agreement, and the Trustee shall execute and deliver such
other documents, as the Master Servicer may request, to enable the Master
Servicer to master service and administer the Mortgage Loans and carry out its
duties hereunder, in each case in accordance with Accepted Master Servicing
Practices (and the Trustee shall have no liability for misuse of any such powers
of attorney by the Master Servicer or the Servicer). If the Master Servicer or
the Trustee has been advised that it is likely that the laws of the state in
which action is to be taken prohibit such action if taken in the name of the
Trustee or that the Trustee would be adversely affected under the "doing
business" or tax laws of such state if such action is taken in its name, the
Master Servicer shall join with the Trustee in the appointment of a co-trustee
pursuant to Section 9.11 hereof. In the performance of its duties hereunder, the
Master Servicer shall be an independent contractor and shall not, except in
those instances where it is taking action in the name of the Trustee, be deemed
to be the agent of the Trustee.
Section 3.06 Due-on-Sale Clauses; Assumption Agreements.
To the extent provided in the Servicing Agreement, to the extent Mortgage
Loans contain enforceable due-on-sale clauses, the Master Servicer shall cause
the Servicer to enforce such clauses in accordance with the Servicing Agreement.
If applicable law prohibits the enforcement of a due-on-sale clause or such
clause is otherwise not enforced in accordance with the Servicing Agreement,
and, as a consequence, a Mortgage Loan is assumed, the original Mortgagor may be
released from liability in accordance with the Servicing Agreement.
Section 3.07 Release of Mortgage Files.
(a) Upon becoming aware of the payment in full of any Mortgage Loan, or
the receipt by the Servicer of a notification that payment in full has been
escrowed in a manner customary for such purposes for payment to
Certificateholders on the next Distribution Date, the Servicer will, if required
under the Servicing Agreement, promptly furnish to the Custodian, on behalf of
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the Trustee, two copies of a certification substantially in the form of Exhibit
D hereto signed by a Servicing Officer or in a mutually agreeable electronic
format which will, in lieu of a signature on its face, originate from a
Servicing Officer (which certification shall include a statement to the effect
that all amounts received in connection with such payment that are required to
be deposited in the Protected Account maintained by the Servicer pursuant to
Section 4.01 or by the Servicer pursuant to its Servicing Agreement have been or
will be so deposited) and shall request that the Custodian, on behalf of the
Trustee, deliver to the Servicer the related Mortgage File. Upon receipt of such
certification and request, the Custodian, on behalf of the Trustee, shall
promptly release the related Mortgage File to the Servicer and the Trustee and
Custodian shall have no further responsibility with regard to such Mortgage
File. Upon any such payment in full, the Servicer is authorized, to give, as
agent for the Trustee, as the mortgagee under the Mortgage that secured the
Mortgage Loan, an instrument of satisfaction (or assignment of mortgage without
recourse) regarding the Mortgaged Property subject to the Mortgage, which
instrument of satisfaction or assignment, as the case may be, shall be delivered
to the Person or Persons entitled thereto against receipt therefor of such
payment, it being understood and agreed that no expenses incurred in connection
with such instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Protected Account.
(b) From time to time and as appropriate for the servicing or foreclosure
of any Mortgage Loan and in accordance with the Servicing Agreement, the Trustee
shall execute such documents as requested and as shall be prepared and furnished
to the Trustee by a Servicer or the Master Servicer (in form reasonably
acceptable to the Trustee) and as are necessary to the prosecution of any such
proceedings. In connection with the foregoing, the Custodian, on behalf of the
Trustee, shall, upon the request of a Servicer or the Master Servicer, and
delivery to the Custodian, on behalf of the Trustee, of two copies of a Request
for Release signed by a Servicing Officer substantially in the form of Exhibit D
(or in a mutually agreeable electronic format which will, in lieu of a signature
on its face, originate from a Servicing Officer), release the related Mortgage
File held in its possession or control to the Servicer or the Master Servicer,
as applicable. Such trust receipt shall obligate the Servicer or the Master
Servicer to return the Mortgage File to the Custodian on behalf of the Trustee,
when the need therefor by the Servicer or the Master Servicer no longer exists
unless the Mortgage Loan shall be liquidated, in which case, upon receipt of a
certificate of a Servicing Officer similar to that hereinabove specified, the
Mortgage File shall be released by the Custodian, on behalf of the Trustee, to
the Servicer or the Master Servicer.
Section 3.08 Documents, Records and Funds in Possession of Master Servicer
To Be Held for Trustee.
(a) The Master Servicer shall transmit and the Servicer (to the extent
required by the Servicing Agreement) shall transmit to the Trustee or Custodian
such documents and instruments coming into the possession of the Master Servicer
or such Servicer from time to time as are required by the terms hereof, or in
the case of the Servicer, the Servicing Agreement, to be delivered to the
Trustee or Custodian. Any funds received by the Master Servicer or by a Servicer
in respect of any Mortgage Loan or which otherwise are collected by the Master
Servicer or by a Servicer as Liquidation Proceeds or Insurance Proceeds in
respect of any Mortgage Loan shall be held for the benefit of the Trustee and
the Certificateholders subject to
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the Master Servicer's right to retain or withdraw from the Master Servicer
Collection Account the Master Servicing Compensation and other amounts provided
in this Agreement, and to the right of the Servicer to retain its Servicing Fee
and other amounts as provided in the Servicing Agreement. The Master Servicer
shall, and (to the extent provided in the Servicing Agreement) shall cause the
Servicer to, provide access to information and documentation regarding the
Mortgage Loans to the Trustee, its agents and accountants at any time upon
reasonable request and during normal business hours, and to Certificateholders
that are savings and loan associations, banks or insurance companies, the Office
of Thrift Supervision, the FDIC and the supervisory agents and examiners of such
Office and Corporation or examiners of any other federal or state banking or
insurance regulatory authority if so required by applicable regulations of the
Office of Thrift Supervision or other regulatory authority, such access to be
afforded without charge but only upon reasonable request in writing and during
normal business hours at the offices of the Master Servicer designated by it. In
fulfilling such a request the Master Servicer shall not be responsible for
determining the sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer, in respect of any Mortgage Loans, whether from
the collection of principal and interest payments or from Liquidation Proceeds
or Insurance Proceeds, shall be held by the Master Servicer for and on behalf of
the Trustee and the Certificateholders and shall be and remain the sole and
exclusive property of the Trustee; provided, however, that the Master Servicer
and the Servicer shall be entitled to setoff against, and deduct from, any such
funds any amounts that are properly due and payable to the Master Servicer or
such Servicer under this Agreement or the Servicing Agreement.
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicer under the Servicing Agreement to maintain or cause to
be maintained standard fire and casualty insurance and, where applicable, flood
insurance, all in accordance with the provisions of the Servicing Agreement. It
is understood and agreed that such insurance shall be with insurers meeting the
eligibility requirements set forth in the Servicing Agreement and that no
earthquake or other additional insurance is to be required of any Mortgagor or
to be maintained on property acquired in respect of a defaulted loan, other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance.
(b) Pursuant to Section 4.01 and 4.02, any amounts collected by the
Servicer or the Master Servicer, or by the Servicer, under any insurance
policies (other than amounts to be applied to the restoration or repair of the
property subject to the related Mortgage or released to the Mortgagor in
accordance with the Servicing Agreement) shall be deposited into the Master
Servicer Collection Account, subject to withdrawal pursuant to Section 4.02 and
4.03. Any cost incurred by the Master Servicer or the Servicer in maintaining
any such insurance if the Mortgagor defaults in its obligation to do so shall be
added to the amount owing under the Mortgage Loan where the terms of the
Mortgage Loan so permit; provided, however, that the addition of any such cost
shall not be taken into account for purposes of calculating the distributions to
be made to Certificateholders and shall be recoverable by the Master Servicer or
such Servicer pursuant to Section 4.02 and 4.03.
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Section 3.10 Presentment of Claims and Collection of Proceeds.
The Master Servicer shall (to the extent provided in the Servicing
Agreement) cause the Servicer to, prepare and present on behalf of the Trustee
and the Certificateholders all claims under the Insurance Policies and take such
actions (including the negotiation, settlement, compromise or enforcement of the
insured's claim) as shall be necessary to realize recovery under such policies.
Any proceeds disbursed to the Master Servicer (or disbursed to a Servicer and
remitted to the Master Servicer) in respect of such policies, bonds or contracts
shall be promptly deposited in the Master Servicer Collection Account upon
receipt, except that any amounts realized that are to be applied to the repair
or restoration of the related Mortgaged Property as a condition precedent to the
presentation of claims on the related Mortgage Loan to the insurer under any
applicable Insurance Policy need not be so deposited (or remitted).
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies.
(a) The Master Servicer shall not take, or permit the Servicer (to the
extent such action is prohibited under the Servicing Agreement) to take, any
action that would result in noncoverage under any applicable Primary Mortgage
Insurance Policy of any loss which, but for the actions of such Master Servicer
or Servicer, would have been covered thereunder. The Master Servicer shall use
its best reasonable efforts to cause the Servicer (to the extent required under
the Servicing Agreement) to keep in force and effect (to the extent that the
Mortgage Loan requires the Mortgagor to maintain such insurance), primary
mortgage insurance applicable to each Mortgage Loan in accordance with the
provisions of this Agreement and the Servicing Agreement, as applicable. The
Master Servicer shall not, and shall not permit the Servicer (to the extent
required under the Servicing Agreement) to, cancel or refuse to renew any such
Primary Mortgage Insurance Policy that is in effect at the date of the initial
issuance of the Mortgage Note and is required to be kept in force hereunder
except in accordance with the provisions of this Agreement and the Servicing
Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause the Servicer (to
the extent required under the Servicing Agreement) to present, on behalf of the
Trustee and the Certificateholders, claims to the insurer under any Primary
Mortgage Insurance Policies and, in this regard, to take such reasonable action
as shall be necessary to permit recovery under any Primary Mortgage Insurance
Policies respecting defaulted Mortgage Loans. Pursuant to Section 4.01 and 4.02,
any amounts collected by the Master Servicer or the Servicer under any Primary
Mortgage Insurance Policies shall be deposited in the Master Servicer Collection
Account, subject to withdrawal pursuant to Section 4.03.
Section 3.12 Trustee to Retain Possession of Certain Insurance Policies
and Documents.
The Trustee or the Custodian shall retain possession and custody of the
originals (to the extent available) of any Primary Mortgage Insurance Policies,
or certificate of insurance if applicable, and any certificates of renewal as to
the foregoing as may be issued from time to time as contemplated by this
Agreement. Until all amounts distributable in respect of the Certificates have
been distributed in full and the Master Servicer otherwise has fulfilled its
obligations under
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this Agreement, the Trustee or its Custodian shall also retain possession and
custody of each Mortgage File in accordance with and subject to the terms and
conditions of this Agreement. The Master Servicer shall promptly deliver or
cause to be delivered to the Trustee or the Custodian upon the execution or
receipt thereof the originals of any Primary Mortgage Insurance Policies, any
certificates of renewal, and such other documents or instruments that constitute
portions of the Mortgage File that come into the possession of the Master
Servicer from time to time.
Section 3.13 Realization Upon Defaulted Mortgage Loans.
The Master Servicer shall cause the Servicer (to the extent required under
the Servicing Agreement) to foreclose upon, repossess or otherwise comparably
convert the ownership of Mortgaged Properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, all in
accordance with the Servicing Agreement.
Section 3.14 Compensation for the Master Servicer.
The Master Servicer will be entitled to all income and gain realized from
any investment of funds in the Distribution Account and the Master Servicer
Collection Account, pursuant to Article IV, for the performance of its
activities hereunder. Servicing compensation in the form of assumption fees, if
any, late payment charges, as collected, if any, or otherwise (but not including
any prepayment premium or penalty) shall be retained by the Servicer and shall
not be deposited in the Protected Account. The Master Servicer shall be required
to pay all expenses incurred by it in connection with its activities hereunder
and shall not be entitled to reimbursement therefor except as provided in this
Agreement.
Section 3.15 REO Property.
(a) In the event the Trust Fund acquires ownership of any REO Property in
respect of any related Mortgage Loan, the deed or certificate of sale shall be
issued to the Trustee, or to its nominee, on behalf of the related
Certificateholders. The Master Servicer shall, to the extent provided in the
Servicing Agreement, cause the Servicer to sell, any REO Property as
expeditiously as possible and in accordance with the provisions of this
Agreement and the Servicing Agreement, as applicable. Pursuant to its efforts to
sell such REO Property, the Master Servicer shall cause the Servicer to protect
and conserve, such REO Property in the manner and to the extent required by the
Servicing Agreement, in accordance with the REMIC Provisions and in a manner
that does not result in a tax on "net income from foreclosure property" or cause
such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code.
(b) The Master Servicer shall, to the extent required by the Servicing
Agreement, cause the Servicer to deposit all funds collected and received in
connection with the operation of any REO Property in the Protected Account.
(c) The Master Servicer and the Servicer, upon the final disposition of
any REO Property, shall be entitled to reimbursement for any related
unreimbursed Monthly Advances and
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other unreimbursed advances as well as any unpaid Servicing Fees from
Liquidation Proceeds received in connection with the final disposition of such
REO Property; provided, that any such unreimbursed Monthly Advances as well as
any unpaid Servicing Fees may be reimbursed or paid, as the case may be, prior
to final disposition, out of any net rental income or other net amounts derived
from such REO Property.
(d) To the extent provided in the Servicing Agreement, the Liquidation
Proceeds from the final disposition of the REO Property, net of any payment to
the Master Servicer and the Servicer as provided above shall be deposited in the
Protected Account on or prior to the Determination Date in the month following
receipt thereof and be remitted by wire transfer in immediately available funds
to the Master Servicer for deposit into the related Master Servicer Collection
Account on the next succeeding Servicer Remittance Date.
Section 3.16 Annual Officer's Certificate as to Compliance.
(a) The Master Servicer shall deliver to the Trustee and the Rating
Agencies on or before February 28 of each year, commencing on February 28, 2005,
an Officer's Certificate, certifying that with respect to the period ending
December 31 of the prior year: (i) such Servicing Officer has reviewed the
activities of such Master Servicer during the preceding calendar year or portion
thereof and its performance under this Agreement, (ii) to the best of such
Servicing Officer's knowledge, based on such review, such Master Servicer has
performed and fulfilled its duties, responsibilities and obligations under this
Agreement in all material respects throughout such year, or, if there has been a
default in the fulfillment of any such duties, responsibilities or obligations,
specifying each such default known to such Servicing Officer and the nature and
status thereof, (iii) nothing has come to the attention of such Servicing
Officer to lead such Servicing Officer to believe that the Servicer has failed
to perform any of its duties, responsibilities and obligations under its
Servicing Agreement in all material respects throughout such year, or, if there
has been a material default in the performance or fulfillment of any such
duties, responsibilities or obligations, specifying each such default known to
such Servicing Officer and the nature and status thereof.
(b) Copies of such statements shall be provided to any Certificateholder
upon request, by the Master Servicer or by the Trustee at the Master Servicer's
expense if the Master Servicer failed to provide such copies (unless (i) the
Master Servicer shall have failed to provide the Trustee with such statement or
(ii) the Trustee shall be unaware of the Master Servicer's failure to provide
such statement).
Section 3.17 Annual Independent Accountant's Servicing Report.
If the Master Servicer has, during the course of any fiscal year, directly
serviced any of the Mortgage Loans, then the Master Servicer at its expense
shall cause a nationally recognized firm of independent certified public
accountants to furnish a statement to the Trustee, the Rating Agencies and the
Depositor on or before February 28 of each year, commencing on February 28, 2005
to the effect that, with respect to the most recently ended fiscal year, such
firm has examined certain records and documents relating to the Master
Servicer's performance of its servicing obligations under this Agreement and
pooling and servicing and trust agreements in
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material respects similar to this Agreement and to each other and that, on the
basis of such examination conducted substantially in compliance with the audit
program for mortgages serviced for Xxxxxxx Mac or the Uniform Single Attestation
Program for Mortgage Bankers, such firm is of the opinion that the Master
Servicer's activities have been conducted in compliance with this Agreement, or
that such examination has disclosed no material items of noncompliance except
for (i) such exceptions as such firm believes to be immaterial, (ii) such other
exceptions as are set forth in such statement and (iii) such exceptions that the
Uniform Single Attestation Program for Mortgage Bankers or the Audit Program for
Mortgages Serviced by Xxxxxxx Mac requires it to report. Copies of such
statements shall be provided to any Certificateholder upon request by the Master
Servicer, or by the Trustee at the expense of the Master Servicer if the Master
Servicer shall fail to provide such copies. If such report discloses exceptions
that are material, the Master Servicer shall advise the Trustee whether such
exceptions have been or are susceptible of cure, and will take prompt action to
do so.
Section 3.18 Reports Filed with Securities and Exchange Commission.
(a) Within 15 days after each Distribution Date, the Master Servicer
shall, in accordance with industry standards, file with the Commission via the
Electronic Data Gathering and Retrieval System ("XXXXX"), a Form 8-K with a copy
of the statement to the Trustee who shall make available on its website a copy
of the statement to the Certificateholders for such Distribution Date as an
exhibit thereto. Prior to March 30, 2005 (and each year thereafter unless a Form
15D Suspension Notification has been filed pursuant to Section 3.18(d) below),
the Master Servicer shall prepare and file a Form 10-K, in substance conforming
to industry standards, with respect to the Trust Fund. Each such Form 10-K shall
include as exhibits the Servicer's annual statement of compliance and annual
accountant's report as described in the Servicing Agreement, in each case to the
extent timely delivered to the Master Servicer. If they are not so timely
delivered, the Master Servicer shall file an amended Form 10-K including such
documents as exhibits reasonably promptly after they are delivered to the Master
Servicer. The Form 10-K shall also include a certification in the form attached
hereto as Exhibit K, in compliance with Rules 13a-14 and 15d-14 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and any
additional directives of the Commission, which shall be signed by a Servicing
Officer. The Depositor hereby grants to the Master Servicer a limited power of
attorney to execute and file the Form 8-K and Form 10-K on behalf of the
Depositor. Such power of attorney shall continue until either the earlier of (i)
receipt by the Master Servicer from the Depositor of written termination of such
power of attorney and (ii) the termination of the Trust Fund. The Depositor
agrees to promptly furnish to the Master Servicer, from time to time upon
request, such further information, reports and financial statements within its
control related to this Agreement and the Mortgage Loans as the Master Servicer
reasonably deems appropriate to prepare and file all necessary reports with the
Commission. Notwithstanding the foregoing sentence, the Master Servicer shall
have no responsibility to file any items other than those specified in this
Section 3.18; provided, however, the Master Servicer will cooperate with the
Depositor in connection with any additional filings with respect to the Trust
Fund as the Depositor deems necessary under the Exchange Act. Copies of all
reports filed by the Master Servicer under the Exchange Act shall be sent to:
the Depositor c/o Merrill Xxxxx & Co. Inc. Attn: Managing Director-Analysis and
Control. Fees and expenses incurred by the Master
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Servicer in connection with this Section 3.18 shall not be reimbursable from the
Trust Fund except as pursuant to Sections 7.04(c) hereof.
(b) The Master Servicer shall indemnify and hold harmless the Trustee, the
Depositor and their respective officers, directors and Affiliates from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach of the Master Servicer's obligations under
this Section 3.18 or the Master Servicer's negligence, bad faith or willful
misconduct in connection therewith.
(c) If, after the Closing Date (a) the Xxxxxxxx-Xxxxx Act of 2002 is
amended, (b) Rules 13a-14 and 15d-14 under the Exchange Act and any related
directives of the Commission are modified or superseded by any subsequent
statement, rule, directive or regulation of the Commission or any division
thereof, or (c) any future releases, rules and regulations are published by the
Commission from time to time pursuant to the Xxxxxxxx-Xxxxx Act of 2002, which
in any such case affect the form or substance of the required certification
under Rule 13a-14 and 15d-14 of the Exchange Act such that, in the reasonable
judgment of the Master Servicer, the required certification is materially more
onerous than the form of the requirement attached hereto as Exhibit K as of the
Closing Date, the Master Servicer, the Depositor and the Mortgage Loan Seller
shall negotiate in good faith to determine how to amend the certification
attached hereto as Exhibit K or any of the provisions in this Section 3.18 to
comply with any such new requirements. Notwithstanding any other provision of
this Agreement, the provisions of this Section 3.18 may be amended by the
Depositor, the Master Servicer and the Trustee without the consent of the
Certificateholders.
(d) Prior to January 30th of the first year in which the Master Servicer
is able to do so under applicable law, the Master Servicer shall file with the
Commission a Form 15D Suspension Notification with respect to the Trust Fund.
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ARTICLE IV
ACCOUNTS
Section 4.01 Protected Accounts.
(a) The Master Servicer shall enforce the obligation of the Servicer to
establish and maintain a Protected Account in accordance with the Servicing
Agreement, with records to be kept with respect thereto on a Mortgage Loan by
Mortgage Loan basis, into which accounts shall be deposited within 48 hours (or
as of such other time specified in the Servicing Agreement) of receipt all
collections of principal and interest on any Mortgage Loan and with respect to
any REO Property received by a Servicer, including Principal Prepayments,
Insurance Proceeds, Liquidation Proceeds, Subsequent Recoveries and advances
made from the Servicer's own funds (less servicing compensation as permitted by
the Servicing Agreement in the case of the Servicer) and all other amounts to be
deposited in the Protected Account. The Servicer is hereby authorized to make
withdrawals from and deposits to the related Protected Account for purposes
required or permitted by this Agreement. To the extent provided in the Servicing
Agreement, the Protected Account shall be held in a Designated Depository
Institution and segregated on the books of such institution in the name of the
Trustee for the benefit of Certificateholders.
(b) To the extent provided in the Servicing Agreement, amounts on deposit
in a Protected Account may be invested in Permitted Investments in the name of
the Trustee for the benefit of Certificateholders and, except as provided in the
preceding paragraph, not commingled with any other funds, such Permitted
Investments to mature, or to be subject to redemption or withdrawal, no later
than the date on which such funds are required to be withdrawn for deposit in
the Master Servicer Collection Account, and shall be held until required for
such deposit. The income earned from Permitted Investments made pursuant to this
Section 4.01 shall be paid to the Servicer under the Servicing Agreement, and
the risk of loss of moneys required to be distributed to the Certificateholders
resulting from such investments shall be borne by and be the risk of the
Servicer. The Servicer (to the extent provided in the Servicing Agreement) shall
deposit the amount of any such loss in the Protected Account within two Business
Days of receipt of notification of such loss but not later than the second
Business Day prior to the Distribution Date on which the moneys so invested are
required to be distributed to the Certificateholders.
(c) To the extent provided in the Servicing Agreement and subject to this
Article IV, on or before the Servicer Remittance Date, the Servicer shall
withdraw or shall cause to be withdrawn from the Protected Accounts and shall
immediately deposit or cause to be deposited in the Master Servicer Collection
Account amounts representing the following collections and payments (other than
with respect to principal of or interest on the Mortgage Loans due on or before
the Cut-off Date) with respect to each Loan Group:
(i) Monthly Payments on the Mortgage Loans received or any
related portion thereof advanced by the Servicer pursuant to the Servicing
Agreement which were due on or before the related Due Date, net of the
amount thereof comprising the Servicing Fees;
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(ii) Principal Prepayments in Full and any Liquidation
Proceeds received by the Servicer with respect to such Mortgage Loans in
the related Prepayment Period, with interest to the date of prepayment or
liquidation, net of the amount thereof comprising the Servicing Fees;
(iii) Curtailments received by the Servicer for such Mortgage
Loans in the related Prepayment Period; and
(iv) Any amount to be used as a Monthly Advance.
(d) Withdrawals may be made from an Account only to make remittances as
provided in Section 4.01(c), 4.02 and 4.03; to reimburse the Master Servicer or
a Servicer for Monthly Advances which have been recovered by subsequent
collection from the related Mortgagor; to remove amounts deposited in error; to
remove fees, charges or other such amounts deposited on a temporary basis; or to
clear and terminate the account at the termination of this Agreement in
accordance with Section 10.01. As provided in Sections 4.01(c) and 4.02(b)
certain amounts otherwise due to the Servicer may be retained by them and need
not be deposited in the Master Servicer Collection Account.
Section 4.02 Master Servicer Collection Account.
(a) The Master Servicer shall establish and maintain in the name of the
Trustee, for the benefit of the Certificateholders, the Master Servicer
Collection Account as a segregated trust account or accounts. The Master
Servicer will deposit in the Master Servicer Collection Account as identified by
the Master Servicer and as received by the Master Servicer, the following
amounts:
(i) Any amounts withdrawn from a Protected Account or other
permitted account;
(ii) Any Monthly Advance and any Compensating Interest
Payments;
(iii) Any Insurance Proceeds, Liquidation Proceeds or
Subsequent Recoveries received by or on behalf of the Master Servicer or
which were not deposited in a Protected Account or other permitted
account;
(iv) The repurchase price with respect to any Mortgage Loans
repurchased and all proceeds of any Mortgage Loans or property acquired in
connection with the optional termination of the trust;
(v) Any amounts required to be deposited with respect to
losses on investments of deposits in an Account; and
(vi) Any other amounts received by or on behalf of the Master
Servicer and required to be deposited in the Master Servicer Collection
Account pursuant to this Agreement.
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(b) All amounts deposited to the Master Servicer Collection Account shall
be held by the Master Servicer in the name of the Trustee in trust for the
benefit of the Certificateholders in accordance with the terms and provisions of
this Agreement. The requirements for crediting the Master Servicer Collection
Account or the Distribution Account shall be exclusive, it being understood and
agreed that, without limiting the generality of the foregoing, payments in the
nature of (i) prepayment or late payment charges or assumption, tax service,
statement account or payoff, substitution, satisfaction, release and other like
fees and charges and (ii) the items enumerated in Subsections 4.05(a)(i), (ii),
(iii), (iv), (vi), (vii), (viii), (ix), (xi) and (xii) with respect to the
Securities Administrator, need not be credited by the Master Servicer or the
Servicer to the Distribution Account or the Master Servicer Collection Account,
as applicable. In the event that the Master Servicer shall deposit or cause to
be deposited to the Distribution Account any amount not required to be credited
thereto, the Trustee, upon receipt of a written request therefor signed by a
Servicing Officer of the Master Servicer, shall promptly transfer such amount to
the Master Servicer from the Distribution Account, any provision herein to the
contrary notwithstanding.
(c) The amount at any time credited to the Master Servicer Collection
Account shall be invested, in the name of the Trustee, or its nominee, for the
benefit of the Certificateholders, in Permitted Investments as directed by
Master Servicer. All Permitted Investments shall mature or be subject to
redemption or withdrawal on or before, and shall be held until, the next
succeeding Distribution Account Deposit Date. Any and all investment earnings on
amounts on deposit in the Master Servicer Collection Account from time to time
shall be for the account of the Master Servicer. The Master Servicer from time
to time shall be permitted to withdraw or receive distribution of any and all
investment earnings from the Master Servicer Account. The risk of loss of moneys
required to be distributed to the Certificateholders resulting from such
investments shall be borne by and be the risk of the Master Servicer. The Master
Servicer shall deposit the amount of any such loss in the Master Servicer
Collection Account within two Business Days of receipt of notification of such
loss but not later than the second Business Day prior to the Distribution Date
on which the moneys so invested are required to be distributed to the
Certificateholders.
Section 4.03 Permitted Withdrawals and Transfers from the Master Servicer
Collection Account.
(a) The Master Servicer will, from time to time on demand of the Master
Servicer, the Trustee or the Securities Administrator, make or cause to be made
such withdrawals or transfers from the Master Servicer Collection Account as the
Master Servicer has designated for such transfer or withdrawal pursuant to the
Servicing Agreement. The Master Servicer may clear and terminate the Master
Servicer Collection Account pursuant to Section 10.01 and remove amounts from
time to time deposited in error.
(b) On an ongoing basis, the Master Servicer shall withdraw from the
Master Servicer Collection Account (i) any expenses recoverable by the Trustee,
the Master Servicer or the Securities Administrator pursuant to this Agreement,
including but not limited to Sections 2.01(b), 3.03, 7.04 and 9.05 and (ii) any
amounts payable to the Master Servicer as set forth in Section 3.14.
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(c) In addition, on or before each Distribution Account Deposit Date, the
Master Servicer shall deposit in the Distribution Account (or remit to the
Trustee for deposit therein) any Monthly Advances required to be made by the
Master Servicer with respect to the Mortgage Loans.
(d) No later than 3:00 p.m. New York time on each Distribution Account
Deposit Date, the Master Servicer will transfer all Available Funds on deposit
in the Master Servicer Collection Account with respect to the related
Distribution Date to the Trustee for deposit in the Distribution Account.
Section 4.04 Distribution Account.
(a) The Trustee shall establish and maintain in the name of the Trustee,
for the benefit of the Certificateholders, the Distribution Account as a
segregated trust account or accounts.
(b) All amounts deposited to the Distribution Account shall be held by the
Trustee in the name of the Trustee in trust for the benefit of the
Certificateholders in accordance with the terms and provisions of this
Agreement.
(c) The Distribution Account shall constitute a trust account of the Trust
Fund segregated on the books of the Trustee and held by the Trustee in trust in
its Corporate Trust Office, and the Distribution Account and the funds deposited
therein shall not be subject to, and shall be protected to the maximum extent
permitted by applicable law from, all claims, liens, and encumbrances of any
creditors or depositors of the Trustee or the Master Servicer (whether made
directly, or indirectly through a liquidator or receiver of the Trustee or the
Master Servicer). The Distribution Account shall be an Eligible Account. The
amount at any time credited to the Distribution Account shall be (i) fully
insured by the FDIC to the maximum coverage provided thereby or (ii) invested in
the name of the Trustee, in such Permitted Investments selected by the Master
Servicer or deposited in demand deposits with such depository institutions as
selected by the Master Servicer, provided that time deposits of such depository
institutions would be a Permitted Investment. All Permitted Investments shall
mature or be subject to redemption or withdrawal on or before, and shall be held
until, the next succeeding Distribution Date if the obligor for such Permitted
Investment is the Trustee or, if such obligor is any other Person, the Business
Day preceding such Distribution Date. All investment earnings on amounts on
deposit in the Distribution Account or benefit from funds uninvested therein
from time to time shall be for the account of the Master Servicer. The Master
Servicer shall be permitted to withdraw or receive distribution of any and all
investment earnings from the Distribution Account on each Distribution Date. If
there is any loss on a Permitted Investment or demand deposit, the Master
Servicer shall remit the amount of the loss to the Trustee who shall deposit
such amount in the Distribution Account. With respect to the Distribution
Account and the funds deposited therein, the Master Servicer shall take such
action as may be necessary to ensure that the Certificateholders shall be
entitled to the priorities afforded to such a trust account (in addition to a
claim against the estate of the Trustee) as provided by 12 U.S.C. ss. 92a(e),
and applicable regulations pursuant thereto, if applicable, or any applicable
comparable state statute applicable to state chartered banking corporations.
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Section 4.05 Permitted Withdrawals and Transfers from the Distribution
Account.
(a) The Trustee will, from time to time on demand of the Master Servicer
or the Securities Administrator, make or cause to be made such withdrawals or
transfers from the Distribution Account as the Master Servicer or the Securities
Administrator has designated for such transfer or withdrawal pursuant to the
Servicing Agreement or as the Securities Administrator has instructed hereunder
for the following purposes (limited in the case of amounts due the Master
Servicer to those not withdrawn from the Master Servicer Collection Account in
accordance with the terms of this Agreement):
(i) to reimburse the Master Servicer or the Servicer for any
Monthly Advance of its own funds or any advance of such Servicer's own
funds, the right of the Master Servicer or a Servicer to reimbursement
pursuant to this subclause (i) being limited to amounts received on a
particular Mortgage Loan (including, for this purpose, the Purchase Price
therefor, Insurance Proceeds and Liquidation Proceeds) which represent
late payments or recoveries of the principal of or interest on such
Mortgage Loan respecting which such Monthly Advance or advance was made;
(ii) to reimburse the Master Servicer or the Servicer from
Insurance Proceeds or Liquidation Proceeds relating to a particular
Mortgage Loan for amounts expended by the Master Servicer or such Servicer
in good faith in connection with the restoration of the related Mortgaged
Property which was damaged by an Uninsured Cause or in connection with the
liquidation of such Mortgage Loan;
(iii) to reimburse the Master Servicer or the Servicer from
Insurance Proceeds relating to a particular Mortgage Loan for insured
expenses incurred with respect to such Mortgage Loan and to reimburse the
Master Servicer or such Servicer from Liquidation Proceeds from a
particular Mortgage Loan for Liquidation Expenses incurred with respect to
such Mortgage Loan; provided that the Master Servicer shall not be
entitled to reimbursement for Liquidation Expenses with respect to a
Mortgage Loan to the extent that (i) any amounts with respect to such
Mortgage Loan were paid as Excess Liquidation Proceeds pursuant to clause
(xi) of this Subsection 4.03 (a) to the Master Servicer; and (ii) such
Liquidation Expenses were not included in the computation of such Excess
Liquidation Proceeds;
(iv) to pay the Master Servicer or the Servicer, as
appropriate, from Liquidation Proceeds or Insurance Proceeds received in
connection with the liquidation of any Mortgage Loan, the amount which it
or such Servicer would have been entitled to receive under subclause (ix)
of this Subsection 4.03(a) as servicing compensation on account of each
defaulted scheduled payment on such Mortgage Loan if paid in a timely
manner by the related Mortgagor;
(v) to pay the Master Servicer or the Servicer from the
Purchase Price for any Mortgage Loan, the amount which it or the Servicer
would have been entitled to receive under subclause (ix) of this
Subsection 4.03 (a) as servicing compensation;
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(vi) to reimburse the Master Servicer or the Servicer for
advances of funds pursuant to Sections, and the right to reimbursement
pursuant to this subclause being limited to amounts received on the
related Mortgage Loan (including, for this purpose, the Purchase Price
therefor, Insurance Proceeds and Liquidation Proceeds) which represent
late recoveries of the payments for which such advances were made;
(vii) to reimburse the Master Servicer or the Servicer for any
Monthly Advance or advance, after a Realized Loss has been allocated with
respect to the related Mortgage Loan if the Monthly Advance or advance has
not been reimbursed pursuant to clauses (i) and (vi);
(viii) to pay the Master Servicer as set forth in Section
3.14;
(ix) to reimburse the Master Servicer for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to this Agreement,
including but not limited to Sections 3.03, 7.04(c) and (d);
(x) to pay to the Master Servicer, as additional servicing
compensation, any Excess Liquidation Proceeds to the extent not retained
by the Servicer;
(xi) to reimburse or pay the Servicer any such amounts as are
due thereto under the Servicing Agreement and have not been retained by or
paid to the Servicer, to the extent provided in the Servicing Agreement;
(xii) to reimburse the Trustee or the Securities Administrator
for expenses, costs and liabilities incurred by or reimbursable to it
pursuant to this Agreement;
(xiii) to remove amounts deposited in error; and
(xiv) to clear and terminate the Distribution Account pursuant
to Section 10.01.
(b) The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Distribution Account pursuant to subclauses (i) through
(vi), inclusive, and (viii) or with respect to any such amounts which would have
been covered by such subclauses had the amounts not been retained by the Master
Servicer without being deposited in the Distribution Account under Section
4.02(b).
(c) On each Distribution Date, the Trustee shall distribute the Available
Funds for each Loan Group to the Holders of the Certificates as instructed by
the Master Servicer or the Securities Administrator in accordance with Section
6.01.
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ARTICLE V
CERTIFICATES
Section 5.01 The Certificates.
Each of the Class I-A, Class II-A-1, Class II-A-2, Class II-A-3, Class
M-1, Class M-2, Class M-3, Class B-1, Class B-2, Class B-3, Class R-I and Class
R-II Certificates shall be substantially in the forms annexed hereto as
exhibits, and shall, on original issue, be executed, authenticated and delivered
by the Trustee to or upon the receipt of a written order to Authenticate from
the Depositor concurrently with the sale and assignment to the Trustee of the
Trust Fund. Each Class of the Certificates (other than the Residual
Certificates) shall be initially evidenced by one or more Certificates
representing a Percentage Interest with a minimum dollar denomination of $50,000
and integral dollar multiples of $1 in excess thereof. The Residual Certificates
will be issued in registered, certificated form in minimum denominations of a
25% Percentage Interest. Provided however, that one Certificate of each such
Class of Certificates may be in a different denomination so that the sum of the
denominations of all outstanding Certificates of such Class shall equal the
Class Certificate Balance of such Class on the Closing Date.
The Certificates shall be executed on behalf of the Trust Fund by manual
or facsimile signature on behalf of the Trustee by a Responsible Officer.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Trustee shall bind the Trust Fund, notwithstanding that such individuals or
any of them have ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificate. No Certificate shall be entitled to any benefit under this
Agreement or be valid for any purpose, unless such Certificate shall have been
manually authenticated by the Trustee substantially in the form provided for
herein, and such authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. Subject to Section 5.02(c), the Certificates, other
than the Class B-1, Class B-2, Class B-3 and Residual Certificates
(collectively, the "Private Certificates"), shall be Book-Entry Certificates.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall cause to be kept at the Corporate
Trust Office a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Certificate Registrar shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. The Trustee shall initially serve as Certificate Registrar for
the purpose of registering Certificates and transfers and exchanges of
Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate at any
office or agency of the Certificate Registrar maintained for such purpose
pursuant to the foregoing paragraph and, in the case of a Class R Certificate,
upon satisfaction of the conditions set forth below, the Trustee
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on behalf of the Trust shall execute, authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Certificates of the
same aggregate Percentage Interest.
At the option of the Certificateholders, Certificates may be exchanged for
other Certificates in authorized denominations and the same aggregate Percentage
Interests, upon surrender of the Certificates to be exchanged at any such office
or agency. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute on behalf of the Trust and authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall (if so required by the Trustee or the Certificate Registrar)
be duly endorsed by, or be accompanied by a written instrument of transfer
satisfactory to the Trustee and the Certificate Registrar duly executed by, the
Holder thereof or his attorney duly authorized in writing.
(b) Except as provided in paragraph (c) below, the Book-Entry Certificates
shall at all times remain registered in the name of the Depository or its
nominee and at all times: (i) registration of such Certificates may not be
transferred by the Trustee except to another Depository; (ii) the Depository
shall maintain book-entry records with respect to the Certificate Owners and
with respect to ownership and transfers of such Certificates; (iii) ownership
and transfers of registration of such Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall for all
purposes deal with the Depository as representative of the Certificate Owners
for purposes of exercising the rights of Holders under this Agreement, and
requests and directions for and votes of such representative shall not be deemed
to be inconsistent if they are made with respect to different Certificate
Owners; (vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and Persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners; and (vii) the
direct participants of the Depository shall have no rights under this Agreement
under or with respect to any of the Certificates held on their behalf by the
Depository, and the Depository may be treated by the Trustee and its agents,
employees, officers and directors as the absolute owner of the Certificates for
all purposes whatsoever.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owners. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners
that it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures. The parties hereto are
hereby authorized to execute a representation letter with the Depository or take
such other action as may be necessary or desirable to register a Book-Entry
Certificate to the Depository. In the event of any conflict between the terms of
any such representation letter and this Agreement, the terms of this Agreement
shall control.
(c) If (i)(x) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to discharge properly
its responsibilities as Depository and (y) the Trustee or the Depositor is
unable to locate a qualified successor, (ii) the Depositor,
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at its sole option, with the consent of the Trustee, elects to terminate the
book-entry system through the Depository or (iii) after the occurrence of an
Event of Default, the Certificate Owners of each Class of Book-Entry
Certificates representing Percentage Interests of such Classes aggregating not
less than 51% advises the Trustee and the Depository Participants in writing
that the continuation of a book-entry system through the Depository to the
exclusion of definitive, fully registered certificates (the "Definitive
Certificates") to Certificate Owners is no longer in the best interests of the
Certificate Owners. Upon surrender to the Certificate Registrar of the
Book-Entry Certificates by the Depository, accompanied by registration
instructions from the Depository for registration, the Trustee shall, at the
Depositor's expense, execute on behalf of the Trust and authenticate the
Definitive Certificates. Neither the Depositor nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, the Trustee, the Certificate Registrar, the Servicer,
any Paying Agent and the Depositor shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
(d) Except with respect to the initial transfer of the Private
Certificates by the Depositor, no transfer, sale, pledge or other disposition of
any Private Certificate shall be made unless such disposition is exempt from the
registration requirements of the Securities Act of 1933, as amended (the "1933
Act"), and any applicable state securities laws or is made in accordance with
the 1933 Act and laws. In the event of any such transfer, made in reliance upon
an exemption from the 1933 Act, (i) the Trustee and the Depositor shall require
(a) the transferor to execute a representation letter (in substantially the form
attached hereto as Exhibit F-1) and the transferee to execute an investor
representation letter (in substantially the form attached hereto as Exhibit F-2)
and (b) a written Opinion of Counsel (which may be in-house counsel) acceptable
to and in form and substance reasonably satisfactory to the Trustee and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act or is being
made pursuant to the 1933 Act, which Opinion of Counsel shall not be an expense
of the Trustee or the Depositor or (ii) the Trustee shall require the transferee
to execute a Rule 144A Letter (in substantially the form attached hereto as
Exhibit F-3) acceptable to and in form and substance reasonably satisfactory to
the Depositor and the Trustee certifying to the Depositor and the Trustee the
facts surrounding such transfer, which certificate shall not be an expense of
the Trustee or the Depositor. The Holder of a Private Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee and
the Depositor against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
Notwithstanding the foregoing, no certification or Opinion of Counsel
described in this Section 5.02(d) will be required in connection with the first
transfer by the Depositor or an Affiliate thereof of any Class R Certificate,
and the Depositor or such Affiliate hereby agree only to make such a transfer
to, to an "accredited investor" within the meaning of Rule 501(d) of the 1933
Act.
No transfer of an ERISA-Restricted Certificate shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee and the Depositor, (such requirement is satisfied only by the Trustee's
receipt of a representation letter from the transferee substantially
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in the form of Exhibit F-2 or F-3 hereto, as appropriate, on which the Trustee
and Depositor is authorized to rely), to the effect that either (A) such
transferee is not an employee benefit plan or arrangement subject to Section 406
of ERISA or a plan subject to Section 4975 of the Code (collectively, a "Plan"),
nor a person acting on behalf of any such Plan or arrangement nor using the
assets of any such Plan or arrangement to effect such transfer (a "Plan
Investor"), or (B) the proposed transfer and holding of such a Certificate and
the servicing, management and operation of the Trust: (I) will not result in a
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code
which is not covered under an individual or class prohibited transaction
exemption including but not limited to Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 84-14 (Class Exemption for Plan Asset
Transactions Determined by Independent Qualified Professional Asset Managers);
PTCE 91-38 (Class Exemption for Certain Transactions Involving Bank Collective
Investment Funds); PTCE 90-1 (Class Exemption for Certain Transactions Involving
Insurance Company Pooled Separate Accounts), PTCE 95-60 (Class Exemption for
Certain Transactions Involving Insurance Company General Accounts), and PTCE
96-23 (Class Exemption for Plan Asset Transactions Determined by In-House Asset
Managers) and (II) will not subject the Depositor, the Securities Administrator,
the Servicer or the Trustee to any obligation in addition to those undertaken in
the Agreement or (ii) in the case of any such ERISA-Restricted Certificate
presented for registration in the name of a Plan or a Plan Investor, an Opinion
of Counsel satisfactory to the Trustee which Opinion of Counsel shall not be an
expense of either the Trustee or the Trust, addressed to the Trustee, to the
effect that the purchase or holding of such Certificate will not result in the
assets of the Trust being deemed to be "Plan assets" and subject to the
prohibited transaction provisions of ERISA and the Code, will not result in such
a prohibited transaction, and will not subject the Trustee, the Securities
Administrator, the Servicer or the Depositor to any obligation in addition to
those expressly undertaken in this Agreement or to any liability. For purposes
of clause (i) of the preceding sentence, such representations shall be deemed to
have been made to the Trustee by the transferee's acceptance of an
ERISA-Restricted Certificate (or the acceptance by a Certificate Owner of the
beneficial interest in any such Class of Certificates) unless the Trustee shall
have received from the transferee an alternative representation acceptable in
form and substance to the Depositor. Notwithstanding anything else to the
contrary herein, any purported transfer of a ERISA-Restricted Certificate to or
on behalf of a Plan or Plan Investor in violation of this paragraph shall be
void and of no effect.
Any transferee of an ERISA-Restricted Certificate which is a Book-Entry
Certificate will be deemed to have represented by virtue of its purchase or
holding of such Certificate (or interest therein) that either (a) such
transferee is not a Plan Investor or (b) such transferee meets the requirements
in (i)(B) of the immediately preceding paragraph.
Each beneficial owner of a Class M Certificate or any interest therein
shall be deemed to have represented, by virtue of its acquisition or holding of
that certificate or interest therein, that either (i) it is not a Plan or a Plan
Investor or investing with Plan assets, (ii) it has acquired and is holding such
certificate in reliance on the Prohibited Transaction Exemption 90-29 issued by
the Department of Labor, as amended ("Exemption"), and that it understands that
there are certain conditions to the availability of the Exemption, including
that the certificate must be rated, at the time of purchase, not lower than
"BBB-" (or its equivalent) by Fitch, Xxxxx'x or S&P, or (iii) (1) it is an
insurance company, (2) the source of funds used to acquire or hold the
certificate or
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interest therein is an "insurance company general account," as such term is
defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE
95-60 have been satisfied.
If any Book-Entry Certificate (or any interest therein) is acquired or
held in violation of the provisions of Section 5.02(d) above, then the last
preceding transferee that is in compliance with such provisions shall be
restored, to the extent permitted by law, to all rights and obligations as
Certificate Owner thereof retroactive to the date of such Transfer of such
Certificate. The Trustee shall be under no liability to any Person for making
any payments due on such Certificate to such preceding transferee.
Any purported Certificate Owner whose acquisition or holding of any
Book-Entry Certificate (or interest therein) was effected in violation of the
restrictions in this Section 5.02(d) shall indemnify and hold harmless the
Depositor, the Trustee, the Servicer and the Trust Fund from and against any and
all liabilities, claims, costs or expenses incurred by such parties as a result
of such acquisition or holding.
Each Person who has or who acquires any Ownership Interest in a Class R
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the following provisions and to have
irrevocably appointed the Depositor or its designee as its attorney-in-fact to
negotiate the terms of any mandatory sale under clause (v) below and to execute
all instruments of transfer and to do all other things necessary in connection
with any such sale, and the rights of each Person acquiring any Ownership
Interest in a Class R Certificate are expressly subject to the following
provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a Class R Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Class
R Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any
Ownership Interest in a Class R Certificate, the Trustee shall as a
condition to registration of the transfer, require delivery to it, in form
and substance satisfactory to it, of each of the following:
(A) an affidavit in the form of Exhibit E-1 hereto from the
proposed transferee to the effect that such transferee is a
Permitted Transferee and that it is not acquiring its Ownership
Interest in the Class R Certificate that is the subject of the
proposed transfer as a nominee, trustee or agent for any Person who
is not a Permitted Transferee, and an affidavit in the form of
Exhibit E-2 hereto from the proposed transferor, representing and
warranting, among other things, that no proposed transfer is to
impede the assessment or collection of tax;
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(B) a covenant of the proposed transferee to the effect that
the proposed transferee agrees to be bound by and to abide by the
transfer restrictions applicable to the Class R Certificates.
(C) Any attempted or purported transfer of any Ownership
Interest in a Class R Certificate in violation of the provisions of
this Section shall be absolutely null and void and shall vest no
rights in the purported transferee. If any purported transferee
shall, in violation of the provisions of this Section, become a
Holder of a Class R Certificate, then the prior Holder of such Class
R Certificate that is a Permitted Transferee shall, upon discovery
that the registration of transfer of such Class R Certificate was
not in fact permitted by this Section, be restored to all rights as
Holder thereof retroactive to the date of registration of transfer
of such Class R Certificate. The Trustee shall be under no liability
to any Person for any registration of transfer of a Class R
Certificate that is in fact not permitted by this Section or for
making any distributions due on such Class R Certificate to the
Holder thereof or taking any other action with respect to such
Holder under the provisions of this Agreement so long as the Trustee
received the documents specified in this clause (iii). The Trustee
shall be entitled to recover from any Holder of a Class R
Certificate that was in fact not a Permitted Transferee at the time
such distributions were made all distributions made on such Class R
Certificate. Any such distributions so recovered by the Trustee
shall be distributed and delivered by the Trustee to the prior
Holder of such Class R Certificate that is a Permitted Transferee.
(iv) If any Person other than a Permitted Transferee acquires
any Ownership Interest in a Class R Certificate in violation of the
restrictions in this Section, then the Trustee shall have the right but
not the obligation, without notice to the Holder of such Class R
Certificate or any other Person having an Ownership Interest therein, to
notify the Depositor to arrange for the sale of such Class R Certificate.
The proceeds of such sale, net of commissions (which may include
commissions payable to the Depositor or its affiliates in connection with
such sale), expenses and taxes due, if any, will be remitted by the
Trustee to the previous Holder of such Class R Certificate that is a
Permitted Transferee, except that in the event that the Trustee determines
that the Holder of such Class R Certificate may be liable for any amount
due under this Section or any other provisions of this Agreement, the
Trustee may withhold a corresponding amount from such remittance as
security for such claim. The terms and conditions of any sale under this
clause (iv) shall be determined in the sole discretion of the Trustee and
it shall not be liable to any Person having an Ownership Interest in a
Class R Certificate as a result of its exercise of such discretion.
(v) If any Person other than a Permitted Transferee acquires
any Ownership Interest in a Class R Certificate in violation of the
restrictions in this Section, then the Securities Administrator upon
receipt of reasonable compensation will provide to the Internal Revenue
Service, and to the persons specified in Sections 860E(e)(3) and (6) of
the Code, information needed to compute the tax imposed under Section
860E(e)(5) of the Code on transfers of residual interests to disqualified
organizations.
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The foregoing provisions of this Section shall cease to apply to transfers
occurring on or after the date on which there shall have been delivered to the
Trustee, in form and substance satisfactory to the Trustee, (i) written
notification from each Rating Agency that the removal of the restrictions on
Transfer set forth in this Section will not cause such Rating Agency to
downgrade its rating of the Certificates and (ii) an Opinion of Counsel to the
effect that such removal will not cause any REMIC hereunder to fail to qualify
as a REMIC.
(e) No service charge shall be made for any registration of transfer or
exchange of Certificates of any Class, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled by the Certificate Registrar and disposed of pursuant to its
standard procedures.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (ii) there is delivered to
the Trustee, the Depositor and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute on behalf of the Trust, authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and Percentage Interest. Upon the issuance of any new
Certificate under this Section, the Trustee or the Certificate Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee and the Certificate Registrar) in
connection therewith. Any duplicate Certificate issued pursuant to this Section,
shall constitute complete and indefeasible evidence of ownership in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners.
The Servicer, the Master Servicer, the Depositor, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of the Servicer, the
Master Servicer, the Depositor, the Certificate Registrar, any Paying Agent or
the Trustee may treat the Person, including a Depository, in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.01 and for all other purposes
whatsoever, and none of the Servicer, the Master Servicer, the Trust, the
Trustee nor any agent of any of them shall be affected by notice to the
contrary.
To the extent the Trustee, Certificate Registrar or any Paying Agent is
required pursuant to this Agreement to determine the identity of the beneficial
owner of a Book-Entry Certificate, any costs assessed by the Depository in
making such determination shall be an expense of the
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party making such request, but in no event shall such cost be an expense of the
Trust Fund. Section 5.05 Appointment of Paying Agent.
The Paying Agent shall make distributions to Certificateholders from the
Distribution Account pursuant to Section 4.01 and shall report the amounts of
such distributions to the Trustee. The duties of the Paying Agent may include
the obligation (i) to withdraw funds from the Distribution Account pursuant to
Section 3.11 and for the purpose of making the distributions referred to above
and (ii) to distribute statements and provide information to Certificateholders
as required hereunder. The Paying Agent hereunder shall at all times be an
entity duly incorporated and validly existing under the laws of the United
States of America or any state thereof, authorized under such laws to exercise
corporate trust powers and subject to supervision or examination by federal or
state authorities. The Paying Agent shall initially be the Trustee. The Trustee
may appoint a successor to act as Paying Agent, which appointment shall be
reasonably satisfactory to the Depositor and the Rating Agencies.
The Trustee shall cause the Paying Agent (if other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee that such Paying Agent shall hold all sums, if any,
held by it for payment to the Certificateholders in trust the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders and shall agree that it shall comply with all requirements of
the Code regarding the withholding of payments in respect of federal income
taxes due from Certificate Owners and otherwise comply with the provisions of
this Agreement applicable to it.
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ARTICLE VI
PAYMENTS TO CERTIFICATEHOLDERS
Section 6.01 Distributions on the Certificates.
Interest and principal on the Certificates will be distributed by the
Trustee monthly on each Distribution Date, commencing in September 2004, as
instructed by the Master Servicer or the Securities Administrator, in an
aggregate amount equal to the sum of the Available Funds for such Distribution
Date. On each Distribution Date, the Available Funds shall be distributed as
follows:
(A) On each Distribution Date, the Group I Available Funds will be
distributed in the following order of priority among the Group I
Senior Certificates except as otherwise noted:
first, to the Class I-A Certificates, the Accrued Certificate
Interest on the Class I-A Certificates for such Distribution
Date. As described below, Accrued Certificate Interest on the
Class I-A Certificates is subject to reduction in the event of
certain interest shortfalls allocable thereto. Any interest
shortfalls shall be allocated to the Class I-A Certificates as
described below;
second, to the Class I-A Certificates, any Accrued Certificate
Interest thereon remaining undistributed from previous
Distribution Dates, to the extent of remaining Group I
Available Funds, any shortfall in available amounts being
allocated to the Class I-A Certificates in proportion to the
amount of such Accrued Certificate Interest remaining
undistributed for the Class I-A Certificates for such
Distribution Date; and
third, to the Class I-A Certificates, in reduction of the
Class Certificate Balance thereof, the Group I Senior
Principal Distribution Amount for such Distribution Date to
the extent of remaining Group I Available Funds, until the
Class Certificate Balance of such Class has been reduced to
zero.
(B) On each Distribution Date, the Group II Available Funds will be
distributed in the following order of priority among the Group II
Senior Certificates except as otherwise noted:
first, to the Class II-A-1, Class II-A-2 and Class II-A-3
Certificates, pro rata, the Accrued Certificate Interest on
each Class of Group II Senior Certificates for such
Distribution Date. As described below, Accrued Certificate
Interest on the Group II Senior Certificates is subject to
reduction in the event of certain
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interest shortfalls allocable thereto. Any interest shortfalls
shall be allocated to the Group II Senior Certificates as
described below;
second, to the Class II-A-1, Class II-A-2 and Class II-A-3
Certificates, pro rata, any Accrued Certificate Interest
thereon remaining undistributed from previous Distribution
Dates, to the extent of remaining Group II Available Funds,
any shortfall in available amounts being allocated to the
Class II Senior Certificates in proportion to the amount of
such Accrued Certificate Interest remaining undistributed for
the Group II Senior Certificates for such Distribution Date;
and
third, to the Class II-A-1, Class II-A-2 and Class II-A-3
Certificates, pro rata, in reduction of the Class Certificate
Balance thereof, the Group II Senior Principal Distribution
Amount for such Distribution Date to the extent of remaining
Group II Available Funds, until the Class Certificate Balance
of such Class has been reduced to zero.
(C) On each Distribution Date on or prior to the Distribution Date
on which the Class Certificate Balances of the Subordinate
Certificates are reduced to zero (the "Credit Support Depletion
Date"), an amount equal to the sum of the remaining Group I and
Group II Available Funds after the distributions in clauses (A) and
(B) above and after any distributions required to be made pursuant
to clauses (D) and (E) below, will be distributed sequentially, in
the following order, to the Class M-1, Class M-2, Class M-3, Class
B-1, Class B-2 and Class B-3 Certificates, in each case up to an
amount equal to and in the following order: (a) the Accrued
Certificate Interest thereon for such Distribution Date, (b) any
Accrued Certificate Interest thereon remaining undistributed from
previous Distribution Dates and (c) such Class's Subordinate
Principal Distribution Amount for such Distribution Date, in each
case to the extent of the remaining Available Funds.
(D) On each Distribution Date prior to the Credit Support Depletion
Date but after the reduction of the aggregate Class Certificate
Balance of the related Senior Certificates of a related Loan Group
to zero, the remaining Class or Classes of related Senior
Certificates will be entitled to receive in reduction of their Class
Certificate Balances, pro rata based upon their Class Certificate
Balances immediately prior to such Distribution Date, in addition to
any principal prepayments related to such remaining Senior
Certificates' respective Loan Group allocated to such Senior
Certificates, 100% of the Principal Prepayments on any Mortgage Loan
in the Loan Group relating to the fully repaid Class or Classes of
Senior Certificates; provided, however, that if both (a) the
weighted average Subordinate Percentage equals or exceeds
approximately 6.90% on or after the Distribution Date in September
2007 and (b) the aggregate Stated Principal Balance of the Mortgage
Loans delinquent 60 days or more, averaged over the
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last six months, as a percentage of the aggregate Class Certificate
Balance of the Class M Certificates and Class B Certificates, does
not exceed 50%, then the additional allocation of principal
prepayments to the Senior Certificates in accordance with this
clause (D) will not be made.
(E) If on any Distribution Date on which the aggregate Class
Certificate Balance of any Class or Classes of Senior Certificates
would be greater than the aggregate Stated Principal Balance of the
Mortgage Loans in its related Loan Group (the amount of such excess,
the "Undercollateralized Amount," and any such Class or Classes of
Senior Certificates, the "Undercollateralized Senior Certificates")
and any Subordinate Certificates are still outstanding in each case
after giving effect to distributions to be made on such Distribution
Date, (i) 100% of amounts otherwise allocable to the Subordinate
Certificates in respect of principal will be distributed to the
Undercollateralized Senior Certificates in reduction of the Class
Certificate Balances thereof, until the aggregate Class Certificate
Balance of such Class or Classes of Undercollateralized Senior
Certificates is equal to the aggregate Stated Principal Balance of
the Mortgage Loans in its related Loan Group, and (ii) the Accrued
Certificate Interest otherwise allocable to the Subordinate
Certificates on such Distribution Date will be reduced, if
necessary, and distributed to such Class or Classes of
Undercollateralized Senior Certificates pursuant to clause first of
clauses (A) or (B) above, as applicable, in an amount equal to the
Accrued Certificate Interest at the Pass-Through Rate for such Class
or Classes of Undercollateralized Senior Certificates for such
Distribution Date on a balance equal to the related
Undercollateralized Amount. Any such reduction in the Accrued
Certificate Interest on the Subordinate Certificates will be
allocated to the Class B-3, Class B-2, Class B-1, Class M-3, Class
M-2 and Class M-1 Certificates, in that order.
On each Distribution Date, any Available Funds remaining after payment of
interest and principal to the Classes of Certificates entitled thereto, as
described above, will be distributed to the Class R-II Certificates; provided
that if on any Distribution Date on and after the Credit Support Depletion Date
there are any Group I or Group II Available Funds remaining after payment of
interest and principal to a Class or Classes of Senior Certificates entitled
thereto, such amounts will be distributed to the other Classes of Senior
Certificates, pro rata, based upon their Class Certificate Balances, until all
amounts due to all Classes of Senior Certificates have been paid in full, before
any amounts are distributed to the Class R-II Certificates. It is not
anticipated that there will be any significant amounts remaining for such
distribution.
In addition to the foregoing distributions, with respect to any Subsequent
Recoveries, the Master Servicer shall deposit such amounts into the Protected
Account pursuant to Section 4.01(a). If, after taking into account such
Subsequent Recoveries, the amount of a Realized Loss is reduced, the amount of
such Subsequent Recoveries will be applied to increase the Certificate Principal
Balance of the Class of Subordinate Certificates with the highest payment
priority to which Realized Losses have been allocated, but not by more than the
amount of Realized Losses previously allocated to that Class of Certificates
pursuant to Section 6.02(a). The amount of any remaining Subsequent Recoveries
will be applied to increase the Certificate Principal Balance of
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the Class of Certificates with the next highest payment priority, up to the
amount of such Realized Losses previously allocated to that Class of
Certificates pursuant to Section 6.02(a), and so on. Holders of such
Certificates will not be entitled to any payment in respect of Current Interest
on the amount of such increases for any Interest Accrual Period preceding the
Distribution Date on which such increase occurs. Any such increases shall be
applied to the Certificate Principal Balance of each Certificate of such Class
in accordance with its respective Percentage Interest.
Section 6.02 Allocation of Losses.
(a) On or prior to each Determination Date, the Master Servicer shall
determine the amount of any Realized Loss in respect of each Mortgage Loan that
occurred during the immediately preceding calendar month.
(b) With respect to any Certificates on any Distribution Date, the
principal portion of each Realized Loss on a Mortgage Loan shall be allocated as
follows:
first, to the Class B-3 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
second, to the Class B-2 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
third, to the Class B-1 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
fourth, to the Class M-3 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
fifth, to the Class M-2 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
sixth, to the Class M-1 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
seventh, if the Realized Loss occurs on a Mortgage Loan in a Loan
Group where the aggregate Stated Principal Balance of the Mortgage Loans
in such Loan Group is greater than the aggregate Class Certificate Balance
of the related Senior Certificates, the Realized Loss will be allocated to
any Senior Certificates related to a Loan Group where the aggregate Stated
Principal Balance of the Mortgage Loans in such Loan Group is less than
the aggregate Class Certificate Balance of the related Senior Certificates
(any such amount, the "Deficiency Amount"), pro rata, based on the
respective Deficiency Amount, in each case until the amount by which the
aggregate Stated Principal Balance of the Mortgage Loans in the Loan Group
in which the Realized Loss occurs exceeds the aggregate Class Certificate
Balance of the related Senior Certificates until the Class Certificate
Balances of such Senior Certificates have been reduced to zero; and
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eighth, to the Senior Certificates related to the Loan Group in
which the Realized Loss occurred, until the Class Certificate Balances
thereof have been reduced to zero;
provided however, with respect to clauses seventh and eighth above, any
portion of such Realized Loss that would otherwise be allocated to the
Class II-A-2 Certificates will instead be allocated to the Class II-A-3
Certificates until the Class Certificate Balance thereof has been reduced
to zero.
(c) Any allocation of a Realized Loss (other than a Debt Service
Reduction) to a Certificate will be made by reducing the Class Certificate
Balance thereof, in the case of the principal portion of such Realized Loss, in
each case until the Class Certificate Balance of such Class has been reduced to
zero, and the Accrued Certificate Interest thereon, in the case of the interest
portion of such Realized Loss, by the amount so allocated as of the Distribution
Date occurring in the month following the calendar month in which such Realized
Loss was incurred. In addition, any such allocation of a Realized Loss to a
Class M Certificate or Class B Certificate may also be made by operation of the
payment priority to the Senior Certificates set forth under "--Principal
Distributions on the Senior Certificates" and any Class of Class M Certificates
or Class B Certificates with a higher payment priority. As used herein, "Debt
Service Reduction" means a reduction in the amount of the monthly payment due to
certain bankruptcy proceedings, but does not include any permanent forgiveness
of principal. As used herein, "Subordination" refers to the provisions discussed
above for the sequential allocation of Realized Losses among the various
Classes, as well as all provisions effecting such allocations including the
priorities for distribution of cash flows in the amounts described herein.
(d) Allocations of the principal portion of Debt Service Reductions to the
Class M Certificates and Class B Certificates will result from the priority of
distributions of the Available Funds as described herein, which distributions
shall be made first to the Senior Certificates, second to the Class M
Certificates in the order of their payment priority and third to the Class B
Certificates in the order of their payment priority. An allocation of the
interest portion of a Realized Loss as well as the principal portion of Debt
Service Reductions will not reduce the level of Subordination, as such term is
defined herein, until an amount in respect thereof has been actually disbursed
to the Senior Certificateholders, the Class M Certificateholders or the Class B
Certificateholders, as applicable. The holders of the Offered Certificates will
not be entitled to any additional payments with respect to Realized Losses from
amounts otherwise distributable on any Classes of Certificates subordinate
thereto. Accordingly, the Subordination provided to the Senior Certificates and
to each Class of Class M Certificates and Class B Certificates by the respective
Classes of Certificates subordinate thereto with respect to Realized Losses
allocated on any Distribution Date will be effected primarily by increasing the
Senior Percentage, or the respective Class M Percentage, of future distributions
of principal of the remaining Mortgage Loans. Thus, the Senior Certificates will
bear the entire amount of losses that are not allocated to the Class M
Certificates and Class B Certificates, which losses will be allocated among all
Classes of Senior Certificates as described herein.
(e) Any Excess Losses will be allocated on a pro rata basis among the
Certificates (any such Realized Losses so allocated to the Certificates will be
allocated without priority among the various Classes of Certificates). An
allocation of a Realized Loss on a "pro rata basis"
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among two or more Classes of Certificates means an allocation to each such Class
of Certificates on the basis of its then outstanding Class Certificate Balance
prior to giving effect to distributions to be made on such Distribution Date in
the case of an allocation of the principal portion of a Realized Loss, or based
on the Accrued Certificate Interest thereon in respect of such Distribution Date
in the case of an allocation of the interest portion of a Realized Loss.
Section 6.03 Payments.
(a) On each Distribution Date, other than the final Distribution Date, the
Trustee shall distribute to each Certificateholder of record on the directly
preceding Record Date the Certificateholder's pro rata share of its Class (based
on the aggregate Percentage Interest represented by such Holder's Certificates)
of all amounts required to be distributed on such Distribution Date to such
Class, based solely on information provided to the Trustee by the Master
Servicer or the Securities Administrator. The Securities Administrator shall
calculate the amount to be distributed to each Class and, based on such amounts,
the Securities Administrator shall determine the amount to be distributed to
each Certificateholder. All of the Securities Administrator's calculations of
payments shall be based solely on information provided to the Securities
Administrator by the Master Servicer or the Servicer. The Securities
Administrator shall not be required to confirm, verify or recompute any such
information but shall be entitled to rely conclusively on such information.
(b) Payment of the above amounts to each Certificateholder shall be made
(i) by check mailed to each Certificateholder entitled thereto at the address
appearing in the Certificate Register or (ii) upon receipt by the Trustee on or
before the fifth Business Day preceding the Record Date of written instructions
from a Certificateholder by wire transfer to a United States dollar account
maintained by the payee at any United States depository institution with
appropriate facilities for receiving such a wire transfer; provided, however,
that the final payment in respect of each Class of Certificates will be made
only upon presentation and surrender of such respective Certificates at the
office or agency of the Trustee specified in the notice to Certificateholders of
such final payment.
Section 6.04 Statements to Certificateholders.
(a) Concurrently with each distribution to Certificateholders, the
Securities Administrator shall make available to the parties hereto and each
Certificateholder via the Securities Administrator's internet website as set
forth below, the following information:
(i) the amount of the distribution made on such Distribution
Date to the Holders of each Class of Certificates, separately identified,
allocable to principal;
(ii) the amount of the distribution made on such Distribution
Date to the Holders of each Class of Certificates allocable to interest,
separately identified;
(iii) the aggregate amount the Servicing Fee during the
related Due Period and such other customary information as the Trustee
deems necessary or
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desirable, or which a Certificateholder reasonably requests, to enable
Certificateholders to prepare their tax returns;
(iv) the aggregate amount of Monthly Advances for the related
Due Period;
(v) the aggregate Stated Principal Balance of the Group I and
Group II Mortgage Loans at the close of business at the end of the related
Due Period;
(vi) the number, weighted average remaining term to maturity
and weighted average Loan Rate of the Group I and Group II Mortgage Loans
as of the related Due Date;
(vii) the number and aggregate unpaid principal balance of
Group I and Group II Mortgage Loans (a) one month, two months or three
months delinquent on a contractual basis, (b) as to which foreclosure
proceedings have been commenced and (c) in bankruptcy as of the close of
business on the last day of the calendar month preceding such Distribution
Date;
(viii) with respect to any Group I and Group II Mortgage Loan
that became an REO Property during the preceding calendar month, the
Stated Principal Balance of such Group I and Group II Mortgage Loan as of
the date it became an REO Property;
(ix) the book value of any REO Property as of the close of
business on the last Business Day of the calendar month preceding the
Distribution Date, and, cumulatively, the total number and cumulative
principal balance of all REO Properties as of the close of business of the
last day of the preceding due period;
(x) the aggregate amount of Principal Prepayments made during
the related Prepayment Period;
(xi) the aggregate amount of Realized Losses incurred during
the related Due Period and the cumulative amount of Realized Losses;
(xii) the aggregate amount of Extraordinary Trust Fund
Expenses withdrawn from the Master Servicer Collection Account for such
Distribution Date;
(xiii) the Class Certificate Balance or Class Certificate
Notional Amount of each Class of Certificates, after giving effect to the
distributions made on such Distribution Date;
(xiv) the aggregate amount of interest accrued at the related
Pass-Through Rate with respect to each Class during the related Interest
Accrual Period and the respective portions thereof, if any, remaining
unpaid following the distributions made in respect of such Certificates on
such Distribution Date;
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(xv) the aggregate amount of any Prepayment Interest
Shortfalls for such Distribution Date as determined separately for each
Loan Group, to the extent not covered by Compensating Interest Payments by
the Servicer or the Master Servicer pursuant to the Servicing Agreement or
Section 6.06;
(xvi) the Group I and Group II Available Funds;
(xvii) the Pass-Through Rate for each Class of Certificates
for such Distribution Date; and
(xviii) the aggregate Stated Principal Balance of Group I and
Group II, Mortgage Loans purchased by the Seller during the related Due
Period and indicating the Section of this Agreement requiring or allowing
the purchase of each such Group I, and Group II Mortgage Loan.
The information set forth above shall be calculated or reported, as the
case may be, by the Securities Administrator, based solely on, and to the extent
of, information provided to the Securities Administrator by the Master Servicer.
The Securities Administrator may conclusively rely on such information and shall
not be required to confirm, verify or recalculate any such information.
The Securities Administrator may make available each month, to any
interested party , the monthly statement to Certificateholders via the
Securities Administrator's website initially located at "xxx.xxxxxxx.xxx."
Assistance in using the website can be obtained by calling the Securities
Administrator's customer service desk at (000) 000-0000. Parties that are unable
to use the above distribution option are entitled to have a paper copy mailed to
them via first class mail by calling the customer service desk and indicating
such. The Securities Administrator shall have the right to change the way such
reports are distributed in order to make such distribution more convenient
and/or more accessible to the parties, and the Securities Administrator shall
provide timely and adequate notification to all parties regarding any such
change.
(b) By January 30 of each year beginning in 2005, the Trustee will furnish
such report to each Holder of the Certificates of record at any time during the
prior calendar year as to the aggregate of amounts reported pursuant to
subclauses (a)(ii) and (a)(v) above with respect to the Certificates, plus
information with respect to the amount of servicing compensation and such other
customary information as the Securities Administrator may determine and advises
the Trustee to be necessary and/or to be required by the Internal Revenue
Service or by a federal or state law or rules or regulations to enable such
Holders to prepare their tax returns for such calendar year. Such obligations
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Securities Administrator or the
Trustee pursuant to the requirements of the Code.
Section 6.05 Monthly Advances.
If the Monthly Payment on a Mortgage Loan that was due on a related Due
Date and is delinquent other than as a result of application of the Relief Act
and for which the Servicer was
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required to make an advance pursuant to the Servicing Agreement exceeds the
amount deposited in the Master Servicer Collection Account which will be used
for a Monthly Advance with respect to such Mortgage Loan, the Master Servicer
will deposit in the Master Servicer Collection Account not later than the
Distribution Account Deposit Date immediately preceding the related Distribution
Date an amount equal to such deficiency, net of the Servicing Fee for such
Mortgage Loan, except to the extent the Master Servicer determines any such
Monthly Advance to be nonrecoverable from Liquidation Proceeds, Insurance
Proceeds or future payments on the Mortgage Loan for which such Monthly Advance
was made. If the Master Servicer has not deposited the amount described above as
of the related Distribution Account Deposit Date, the Trustee will deposit in
the Master Servicer Collection Account not later than the related Distribution
Date, an amount equal to the remaining deficiency as of the Distribution Account
Deposit Date. Subject to the foregoing, the Master Servicer shall continue to
make such Monthly Advances through the date that the Servicer is required to do
so under its Servicing Agreement. If applicable, on the Distribution Account
Deposit Date, the Master Servicer shall present an Officer's Certificate to the
Trustee (i) stating that the Master Servicer elects not to make a Monthly
Advance in a stated amount and (ii) detailing the reason it deems the advance to
be nonrecoverable.
Section 6.06 Compensating Interest Payments.
The Master Servicer shall deposit in the Master Servicer Collection
Account not later than each Distribution Account Deposit Date an amount equal to
the aggregate amounts required to be paid by the Servicer under the Servicing
Agreement with respect to subclauses (a) and (b) of the definition of Prepayment
Interest Shortfall with respect to the Mortgage Loans for the related
Distribution Date, and not so paid by the Servicer (such amount, the
"Compensating Interest Payment"). The Master Servicer shall not be entitled to
any reimbursement of any Compensating Interest Payment.
Section 6.07 Distributions on the REMIC I Regular Interests.
(i) On each Distribution Date the Trustee shall be deemed to
distribute to itself, as the holder of the REMIC I Regular Interests,
Uncertificated REMIC Accrued Interest on the REMIC I Regular Interests for
such Distribution Date, plus any Uncertificated REMIC Accrued Interest
thereon remaining unpaid from any previous Distribution Date.
(ii) On each Distribution Date, distributions of principal
shall be deemed to be made from amounts received on the Mortgage Loans to
REMIC I Regular Interests I-A, I-B, II-A, II-B and ZZZ first, so as to
keep the Uncertificated Principal Balance of each REMIC I Regular Interest
ending with the designation "B" equal to 0.01% of the aggregate Stated
Principal Balance of the Mortgage Loans in the related Group; second, to
each REMIC I Regular Interest ending with the designation "A," so that the
Uncertificated Principal Balance of each such REMIC I Regular Interest is
equal to 0.01% of the excess of (x) the aggregate Stated Principal Balance
of the Mortgage Loans in the related Group over (y) the Class Certificate
Balance of the Senior Certificates in the related Group (except that if
any such excess is a larger number than in
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the preceding distribution period, the least amount of principal shall be
distributed to such REMIC I Regular Interests such that the REMIC I
Subordinated Balance Ratio is maintained); and third, any remaining
principal to REMIC I Regular Interest ZZZ. Realized Losses on the Mortgage
Loans shall be applied after all distributions have been made on each
Distribution Date first, so as to keep the Uncertificated Principal
Balance of each REMIC I Regular Interest ending with the designation "B"
equal to 0.01% of the aggregate Stated Principal Balance of the Mortgage
Loans in the related Group; second, to each REMIC I Regular Interest
ending with the designation "A," so that the Uncertificated Principal
Balance of each such REMIC I Regular Interest is equal to 0.01% of the
excess of (x) the aggregate Stated Principal Balance of the Mortgage Loans
in the related Group over (y) the Class Certificate Balance of the Senior
Certificates in the related Group (except that if any such excess is a
larger number than in the preceding distribution period, the least amount
of Realized Losses shall be applied to such REMIC I Regular Interests such
that the REMIC I Subordinated Balance Ratio is maintained); and third, any
remaining Realized Losses on the Mortgage Loans shall be allocated to
REMIC I Regular Interest ZZZ.
(iii) Notwithstanding the deemed distributions on the REMIC I
Regular Interests described in this Section 6.07(a), distributions of
funds from the Distribution Account shall be made only in accordance with
Section 6.01.
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ARTICLE VII
THE MASTER SERVICER AND THE DEPOSITOR
Section 7.01 Liabilities of the Master Servicer.
The Master Servicer shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by the Master
Servicer, as the case may be, herein. The Depositor shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
upon and undertaken by the Depositor.
Section 7.02 Merger or Consolidation of the Master Servicer.
(a) The Master Servicer and the Depositor will keep in full force and
effect its existence, rights and franchises as a corporation under the laws of
the state of its incorporation, and will obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its duties under this Agreement.
(b) Any Person into which the Master Servicer or the Depositor may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor of the
Master Servicer hereunder, without the execution or filing of any paper or
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 7.03 Indemnification of the Trustee, the Master Servicer and the
Securities Administrator.
(a) The Master Servicer agrees to indemnify the Indemnified Persons for,
and to hold them harmless against, any loss, liability or expense (including
reasonable legal fees and disbursements of counsel) incurred on their part that
may be sustained in connection with, arising out of, or relating to, any claim
or legal action (including any pending or threatened claim or legal action)
relating to this Agreement or the Certificates (i) related to the Master
Servicer's failure to perform its duties in compliance with this Agreement
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) or (ii) incurred by reason of the Master Servicer's
willful misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder, provided, in each case, that with respect to any such claim or legal
action (or pending or threatened claim or legal action), the Trustee shall have
given the Master Servicer and the Depositor written notice thereof promptly
after the Trustee shall have with respect to such claim or legal action
knowledge thereof. This indemnity shall survive the resignation or removal of
the Trustee, Master Servicer or the Securities Administrator and the termination
of this Agreement.
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(b) The Depositor will indemnify any Indemnified Person for any loss,
liability or expense of any Indemnified Person not otherwise referred to in
Subsection (a) above.
Section 7.04 Limitations on Liability of the Master Servicer and Others.
Subject to the obligation of the Master Servicer to indemnify the
Indemnified Persons pursuant to Section 7.03:
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
Indemnified Persons, the Depositor, the Trust Fund or the Certificateholders for
taking any action or for refraining from taking any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Master Servicer or any such Person against
any breach of warranties or representations made herein or any liability which
would otherwise be imposed by reason of such Person's willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder.
(b) The Master Servicer and any director, officer, employee or agent of
the Master Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder.
(c) The Master Servicer, the Custodian and any director, officer, employee
or agent of the Master Servicer or the Custodian shall be indemnified by the
Trust and held harmless thereby against any loss, liability or expense
(including reasonable legal fees and disbursements of counsel) incurred on their
part that may be sustained in connection with, arising out of, or related to,
any claim or legal action (including any pending or threatened claim or legal
action) relating to this Agreement, the Certificates or the Servicing Agreement
(except to the extent that the Master Servicer is indemnified by the Servicer
thereunder), other than (i) any such loss, liability or expense related to the
Master Servicer's failure to perform its duties in compliance with this
Agreement (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement), or to the Custodian's failure to
perform its duties under the Custodial Agreement, respectively, or (ii) any such
loss, liability or expense incurred by reason of the Master Servicer's or the
Custodian's willful misfeasance, bad faith or gross negligence in the
performance of duties hereunder or under the Custodial Agreement, as applicable,
or by reason of reckless disregard of obligations and duties hereunder or under
the Custodial Agreement, as applicable.
(d) The Master Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its duties under
this Agreement and that in its opinion may involve it in any expense or
liability; provided, however, the Master Servicer may in its discretion,
undertake any such action which it may deem necessary or desirable with respect
to this Agreement and the rights and duties of the parties hereto and the
interests of the Certificateholders hereunder. In such event, the legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund, and the Master Servicer shall
be entitled to be reimbursed therefor out of the Master Servicer Collection
Account as provided by Section 4.03. Nothing in this Subsection 7.04(d) shall
affect the Master
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Servicer's obligation to supervise, or to take such actions as are necessary to
ensure, the servicing and administration of the Mortgage Loans pursuant to
Subsection 3.01(a).
(e) In taking or recommending any course of action pursuant to this
Agreement, unless specifically required to do so pursuant to this Agreement, the
Master Servicer shall not be required to investigate or make recommendations
concerning potential liabilities which the Trust Fund might incur as a result of
such course of action by reason of the condition of the Mortgaged Properties but
shall give notice to the Trustee if it has notice of such potential liabilities.
(f) The Master Servicer shall not be liable for any acts or omissions of
the Servicer, except as otherwise expressly provided herein.
Section 7.05 Master Servicer Not to Resign.
Except as provided in Section 7.07, the Master Servicer shall not resign
from the obligations and duties hereby imposed on it except upon a determination
that any such duties hereunder are no longer permissible under applicable law
and such impermissibility cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of
Independent Counsel to such effect delivered to the Trustee. No such resignation
by the Master Servicer shall become effective until MLMCI or the Trustee or a
successor to the Master Servicer reasonably satisfactory to the Trustee shall
have assumed the responsibilities and obligations of the Master Servicer in
accordance with Section 8.02 hereof. The Trustee shall notify the Rating
Agencies of the resignation of the Master Servicer.
Section 7.06 Successor Master Servicer.
In connection with the appointment of any successor Master Servicer or the
assumption of the duties of the Master Servicer, MLMCI or the Trustee may make
such arrangements for the compensation of such successor master servicer out of
payments on the Mortgage Loans as MLMCI or the Trustee and such successor master
servicer shall agree. If the successor master servicer does not agree that such
market value is a fair price, such successor master servicer shall obtain two
quotations of market value from third parties actively engaged in the servicing
of single-family mortgage loans.
Section 7.07 Sale and Assignment of Master Servicing.
The Master Servicer may sell and assign its rights and delegate its duties
and obligations in its entirety as Master Servicer under this Agreement;
provided, however, that: (i) the purchaser or transferee accepting such
assignment and delegation (a) shall be a Person which shall be qualified to
service mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac; (b) shall have a net worth
of not less than $10,000,000 (unless otherwise approved by each Rating Agency
pursuant to clause (ii) below); (c) shall be reasonably satisfactory to the
Trustee (as evidenced in a writing signed by the Trustee); and (d) shall execute
and deliver to the Trustee an agreement, in form and substance reasonably
satisfactory to the Trustee, which contains an assumption by such Person of the
due and punctual performance and observance of each covenant and condition to be
performed or observed by it as master servicer under this Agreement, any
custodial agreement
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from and after the effective date of such agreement; (ii) each Rating Agency
shall be given prior written notice of the identity of the proposed successor to
the Master Servicer and each Rating Agency's rating of the Certificates in
effect immediately prior to such assignment, sale and delegation will not be
downgraded, qualified or withdrawn as a result of such assignment, sale and
delegation, as evidenced by a letter to such effect delivered to the Master
Servicer and the Trustee; and (iii) the Master Servicer assigning and selling
the master servicing shall deliver to the Trustee an Officer's Certificate and
an Opinion of Independent Counsel, each stating that all conditions precedent to
such action under this Agreement have been completed and such action is
permitted by and complies with the terms of this Agreement. No such assignment
or delegation shall affect any liability of the Master Servicer arising prior to
the effective date thereof.
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ARTICLE VIII
DEFAULT
Section 8.01 Events of Default.
"Event of Default," wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body) and only with respect to the defaulting
Master Servicer:
(i) The Master Servicer fails to cause to be deposited in the
Distribution Account any amount so required to be deposited pursuant to
this Agreement, and such failure continues unremedied for a period of
three Business Days after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Master Servicer; or
(ii) The Master Servicer fails to observe or perform in any
material respect any other material covenants and agreements set forth in
this Agreement to be performed by it, which covenants and agreements
materially affect the rights of Certificateholders, and such failure
continues unremedied for a period of 60 days after the date on which
written notice of such failure, properly requiring the same to be
remedied, shall have been given to the Master Servicer by the Trustee or
to the Master Servicer and the Trustee by the Holders of Certificates
evidencing Percentage Interests aggregating not less than 25% of the Trust
Fund; or
(iii) There is entered against the Master Servicer a decree or
order by a court or agency or supervisory authority having jurisdiction in
the premises for the appointment of a conservator, receiver or liquidator
in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding up or liquidation
of its affairs, and the continuance of any such decree or order is
unstayed and in effect for a period of 60 consecutive days, or an
involuntary case is commenced against the Master Servicer under any
applicable insolvency or reorganization statute and the petition is not
dismissed within 60 days after the commencement of the case; or
(iv) The Master Servicer consents to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or substantially all of its property; or
the Master Servicer admits in writing its inability to pay its debts
generally as they become due, files a petition to take advantage of any
applicable insolvency or reorganization statute, makes an assignment for
the benefit of its creditors, or voluntarily suspends payment of its
obligations; or
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(v) The Master Servicer assigns or delegates its duties or
rights under this Agreement in contravention of the provisions permitting
such assignment or delegation under Sections 7.05 or 7.07.
In each and every such case, so long as such Event of Default with respect to
the Master Servicer shall not have been remedied, either the Trustee or the
Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the principal of the Trust Fund, by notice in writing to the Master
Servicer (and to the Trustee if given by such Certificateholders), with a copy
to the Rating Agencies, and with the consent of MLMCI, may terminate all of the
rights and obligations (but not the liabilities) of the Master Servicer under
this Agreement and in and to the Mortgage Loans and/or the REO Property serviced
by the Master Servicer and the proceeds thereof. Upon the receipt by the Master
Servicer of the written notice, all authority and power of the Master Servicer
under this Agreement, whether with respect to the Certificates, the Mortgage
Loans, REO Property or under any other related agreements (but only to the
extent that such other agreements relate to the Mortgage Loans or related REO
Property) shall, subject to Section 8.02, automatically and without further
action pass to and be vested in the Trustee pursuant to this Section 8.01; and,
without limitation, the Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the Master Servicer as attorney-in-fact or otherwise,
any and all documents and other instruments and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer's rights and obligations hereunder, including, without limitation, the
transfer to the Trustee of (i) the property and amounts which are then or should
be part of the Trust or which thereafter become part of the Trust; and (ii)
originals or copies of all documents of the Master Servicer reasonably requested
by the Trustee to enable it to assume the Master Servicer's duties thereunder.
In addition to any other amounts which are then, or, notwithstanding the
termination of its activities under this Agreement, may become payable to the
Master Servicer under this Agreement, the Master Servicer shall be entitled to
receive, out of any amount received on account of a Mortgage Loan or related REO
Property, that portion of such payments which it would have received as
reimbursement under this Agreement if notice of termination had not been given.
The termination of the rights and obligations of the Master Servicer shall not
affect any obligations incurred by the Master Servicer prior to such
termination.
Section 8.02 Trustee to Act; Appointment of Successor.
(a) Upon the receipt by the Master Servicer of a notice of termination
pursuant to Section 8.01 or an Opinion of Independent Counsel pursuant to
Section 7.05 to the effect that the Master Servicer is legally unable to act or
to delegate its duties to a Person which is legally able to act, the Trustee
shall automatically become the successor in all respects to the Master Servicer
in its capacity under this Agreement and the transactions set forth or provided
for herein and shall thereafter be subject to all the responsibilities, duties,
liabilities and limitations on liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof; provided, however, that MLMCI shall
have the right to either (a) immediately assume the duties of the Master
Servicer or (b) select a successor Master Servicer; provided further, however,
that the Trustee shall have no obligation whatsoever with respect to any
liability (other than advances
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deemed recoverable and not previously made) incurred by the Master Servicer at
or prior to the time of termination. As compensation therefor, the Trustee shall
be entitled to all funds relating to the Mortgage Loans which the Master
Servicer would have been entitled to retain if the Master Servicer had continued
to act hereunder, except for those amounts due the Master Servicer as
reimbursement permitted under this Agreement for advances previously made or
expenses previously incurred. Notwithstanding the above, or anything herein to
the contrary, the Trustee, if it becomes Master Servicer, shall have no
responsibility or obligation (i) to repurchase or substitute any Mortgage Loan,
(ii) for any representation or warranty of the Master Servicer hereunder, and
(iii) for any act or omission of either a predecessor or successor Master
Servicer other than the Trustee. The Trustee may conduct any activity required
of it as Master Servicer hereunder through an Affiliate or through an agent.
Neither the Trustee nor any other successor Master Servicer shall be deemed to
be in default hereunder due to any act or omission of a predecessor Master
Servicer, including but not limited to failure to timely deliver to the Trustee
distribution instructions, any funds required to be deposited to the Trust Fund,
or any breach of its duty to cooperate with a transfer of master servicing.
Notwithstanding the above, the Trustee may, if it shall be unwilling so to act,
or shall, if it is legally unable so to act, appoint or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution which is a Xxxxxx Xxx- or Xxxxxxx Mac-approved servicer, and with
respect to a successor to the Master Servicer only, having a net worth of not
less than $10,000,000, as the successor to the Master Servicer hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer hereunder; provided, that the Trustee shall obtain a letter
from each Rating Agency that the ratings, if any, on each of the Certificates
will not be lowered as a result of the selection of the successor to the Master
Servicer. Pending appointment of a successor to the Master Servicer hereunder,
the Trustee shall act in such capacity as hereinabove provided. In connection
with such appointment and assumption, the Trustee may make such arrangements for
the compensation of such successor out of payments on the Mortgage Loans as it
and such successor shall agree; provided, however, that the provisions of
Section 7.06 shall apply, no such compensation shall be in excess of that
permitted the Trustee under this Subsection 8.02(a), and that such successor
shall undertake and assume the obligations of the Trustee to pay compensation to
any third Person acting as an agent or independent contractor in the performance
of master servicing responsibilities hereunder. The Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
(b) If the Trustee shall succeed to any duties of the Master Servicer
respecting the Mortgage Loans as provided herein, it shall do so in a separate
capacity and not in its capacity as Trustee and, accordingly, the provisions of
Article IX shall be inapplicable to the Trustee in its duties as the successor
to the Master Servicer in the servicing of the Mortgage Loans (although such
provisions shall continue to apply to the Trustee in its capacity as Trustee);
the provisions of Article VII, however, shall apply to it in its capacity as
successor master servicer.
Section 8.03 Notification to Certificateholders.
Upon any termination or appointment of a successor to the Master Servicer,
the Trustee shall give prompt written notice thereof to Certificateholders at
their respective addresses appearing in the Certificate Register and to the
Rating Agencies.
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Section 8.04 Waiver of Defaults.
The Trustee shall transmit by mail to all Certificateholders, within 60
days after the occurrence of any Event of Default known to the Trustee, unless
such Event of Default shall have been cured, notice of each such Event of
Default hereunder known to the Trustee. The Holders of Certificates evidencing
Percentage Interests aggregating not less than 51% of the Trust Fund may, on
behalf of all Certificateholders, waive any default by the Master Servicer in
the performance of its obligations hereunder and the consequences thereof,
except a default in the making of or the causing to be made any required
distribution on the Certificates. Upon any such waiver of a past default, such
default shall be deemed to cease to exist, and any Event of Default arising
therefrom shall be deemed to have been timely remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so waived.
The Trustee shall give notice of any such waiver to the Rating Agencies.
Section 8.05 List of Certificateholders.
Upon written request of three or more Certificateholders of record, for
purposes of communicating with other Certificateholders with respect to their
rights under this Agreement, the Trustee will afford such Certificateholders
access during business hours to the most recent list of Certificateholders held
by the Trustee.
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ARTICLE IX
CONCERNING THE TRUSTEE AND
THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default which may have occurred, and the
Securities Administrator each undertake to perform such duties and only such
duties as are specifically set forth in this Agreement as duties of the Trustee
and the Securities Administrator, respectively. If an Event of Default has
occurred and has not been cured or waived, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement, and subject to Section
8.02(b) use the same degree of care and skill in their exercise, as a prudent
person would exercise under the circumstances in the conduct of his own affairs.
(b) Upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments which are specifically required
to be furnished to the Trustee and the Securities Administrator pursuant to any
provision of this Agreement, the Trustee and the Securities Administrator,
respectively, shall examine them to determine whether they are in the form
required by this Agreement; provided, however, that neither the Trustee nor the
Securities Administrator shall be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer; provided, further, that neither the
Trustee nor the Securities Administrator shall be responsible for the accuracy
or verification of any calculation provided to it pursuant to this Agreement.
(c) On each Distribution Date, the Trustee shall make monthly
distributions and the final distribution to the Certificateholders from funds in
the Distribution Account as provided in Sections 6.01 and 10.01 herein based
solely on the report of the Securities Administrator.
(d) No provision of this Agreement shall be construed to relieve the
Trustee or the Securities Administrator from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct;
provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after
the curing or waiver of all such Events of Default which may have
occurred, the duties and obligations of the Trustee and the Securities
Administrator shall be determined solely by the express provisions of this
Agreement, neither the Trustee nor the Securities Administrator shall be
liable except for the performance of their respective duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the
Trustee or the Securities Administrator and, in the absence of bad faith
on the part of the Trustee or the Securities Administrator, respectively,
the Trustee or the Securities Administrator, respectively, may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee or the
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Securities Administrator, respectively, and conforming to the requirements
of this Agreement;
(ii) Neither the Trustee nor the Securities Administrator
shall be liable in its individual capacity for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee or an officer of the Securities Administrator, respectively,
unless it shall be proved that the Trustee or the Securities
Administrator, respectively, was negligent in ascertaining the pertinent
facts;
(iii) Neither the Trustee nor the Securities Administrator
shall be liable with respect to any action taken, suffered or omitted to
be taken by it in good faith in accordance with the directions of the
Holders of Certificates evidencing Percentage Interests aggregating not
less than 25% of the Trust Fund, if such action or non-action relates to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee or the Securities Administrator, respectively, or
exercising any trust or other power conferred upon the Trustee or the
Securities Administrator, respectively, under this Agreement;
(iv) The Trustee shall not be required to take notice or be
deemed to have notice or knowledge of any default or Event of Default
unless a Responsible Officer of the Trustee's Corporate Trust Office shall
have actual knowledge thereof. In the absence of such notice, the Trustee
may conclusively assume there is no such default or Event of Default;
(v) The Trustee shall not in any way be liable by reason of
any insufficiency in any Account held by or in the name of Trustee unless
it is determined by a court of competent jurisdiction that the Trustee's
gross negligence or willful misconduct was the primary cause of such
insufficiency (except to the extent that the Trustee is obligor and has
defaulted thereon);
(vi) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Trustee or the Securities
Administrator be liable for special, indirect or consequential loss or
damage of any kind whatsoever (including but not limited to lost profits),
even if the Trustee or the Securities Administrator, respectively, has
been advised of the likelihood of such loss or damage and regardless of
the form of action; and
(vii) None of the Securities Administrator, MLMCI, the Master
Servicer, the Servicer or the Trustee shall be responsible for the acts or
omissions of the other, it being understood that this Agreement shall not
be construed to render them partners, joint venturers or agents of one
another.
Neither the Trustee nor the Securities Administrator shall be required to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there is reasonable ground for believing that the repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in this Agreement
shall in any event require
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the Trustee or the Securities Administrator to perform, or be responsible for
the manner of performance of, any of the obligations of the Master Servicer
hereunder or under the Servicing Agreement, except during such time, if any, as
the Trustee shall be the successor to, and be vested with the rights, duties,
powers and privileges of, the Master Servicer in accordance with the terms of
this Agreement.
(e) All funds received by the Master Servicer and the Trustee and required
to be deposited in the Master Servicer Collection Account or Distribution
Account pursuant to this Agreement will be promptly so deposited by the Master
Servicer and the Trustee.
(f) Except for those actions that the Trustee or the Securities
Administrator is required to take hereunder, neither the Trustee nor the
Securities Administrator shall have any obligation or liability to take any
action or to refrain from taking any action hereunder in the absence of written
direction as provided hereunder.
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator.
Except as otherwise provided in Section 9.01:
(i) The Trustee and the Securities Administrator may rely and
shall be protected in acting or refraining from acting in reliance on any
resolution, certificate of a Depositor, Master Servicer or Servicer,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) The Trustee and the Securities Administrator may consult
with counsel and any advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection with respect to
any action taken or suffered or omitted by it hereunder in good faith and
in accordance with such advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator
shall be under any obligation to exercise any of the trusts or powers
vested in it by this Agreement, other than its obligation to give notices
pursuant to this Agreement, or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or
direction of any of the Certificateholders pursuant to the provisions of
this Agreement, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby. Nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default of which a Responsible Officer of the
Trustee's Corporate Trust Office has actual knowledge (which has not been
cured or waived), subject to Section 8.02(b), to exercise such of the
rights and powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise, as a prudent person would
exercise under the circumstances in the conduct of his own affairs;
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(iv) Prior to the occurrence of an Event of Default hereunder
and after the curing or waiver of all Events of Default which may have
occurred, neither the Trustee nor the Securities Administrator shall be
liable in its individual capacity for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Agreement;
(v) Neither the Trustee nor the Securities Administrator shall
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates evidencing
Percentage Interests aggregating not less than 25% of the Trust Fund and
provided that the payment within a reasonable time to the Trustee or the
Securities Administrator, as applicable, of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee or the Securities
Administrator, as applicable, reasonably assured to the Trustee or the
Securities Administrator, as applicable, by the security afforded to it by
the terms of this Agreement. The Trustee or the Securities Administrator
may require reasonable indemnity against such expense or liability as a
condition to taking any such action. The reasonable expense of every such
examination shall be paid by the Certificateholders requesting the
investigation;
(vi) The Trustee and the Securities Administrator may execute
any of the trusts or powers hereunder or perform any duties hereunder
either directly or through Affiliates, agents or attorneys; provided,
however, that the Trustee may not appoint any agent to perform its
custodial functions with respect to the Mortgage Files or paying agent
functions under this Agreement without the express written consent of the
Master Servicer, which consent will not be unreasonably withheld. Neither
the Trustee nor the Securities Administrator shall be liable or
responsible for the misconduct or negligence of any of the Trustee's or
the Securities Administrator's agents or attorneys or a custodian or
paying agent appointed hereunder by the Trustee or the Securities
Administrator with due care and, when required, with the consent of the
Master Servicer;
(vii) Should the Trustee or the Securities Administrator deem
the nature of any action required on its part, other than a payment or
transfer under Subsection 4.01(b) or Section 4.02, to be unclear, the
Trustee or the Securities Administrator, respectively, may require prior
to such action that it be provided by the Depositor with reasonable
further instructions;
(viii) The right of the Trustee or the Securities
Administrator to perform any discretionary act enumerated in this
Agreement shall not be construed as a duty, and neither the Trustee nor
the Securities Administrator shall be accountable for other than its
negligence or willful misconduct in the performance of any such act;
(ix) Neither the Trustee nor the Securities Administrator
shall be required to give any bond or surety with respect to the execution
of the trust created hereby or the powers granted hereunder, except as
provided in Subsection 9.07; and
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(x) Neither the Trustee nor the Securities Administrator shall
have any duty to conduct any affirmative investigation as to the
occurrence of any condition requiring the repurchase of any Mortgage Loan
by the Seller pursuant to this Agreement or the Mortgage Loan Purchase
Agreement, as applicable, or the eligibility of any Mortgage Loan for
purposes of this Agreement.
Section 9.03 Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
signature and countersignature of the Trustee on the Certificates) shall be
taken as the statements of the Depositor, and neither the Trustee nor the
Securities Administrator shall have any responsibility for their correctness.
Neither the Trustee nor the Securities Administrator makes any representation as
to the validity or sufficiency of the Certificates (other than the signature and
countersignature of the Trustee on the Certificates) or of any Mortgage Loan
except as expressly provided in Sections 2.02 and 2.05 hereof; provided,
however, that the foregoing shall not relieve the Trustee or the Custodian of
the obligation to review the Mortgage Files pursuant to Sections 2.02 and 2.04.
The Trustee's signature and countersignature (or countersignature of its agent)
on the Certificates shall be solely in its capacity as Trustee of the Trust Fund
and shall not constitute the Certificates an obligation of the Trustee in any
other capacity. Neither the Trustee or the Securities Administrator shall be
accountable for the use or application by the Depositor of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor with respect to the Mortgage
Loans. Subject to the provisions of Section 2.05, neither the Trustee nor the
Securities Administrator shall not be responsible for the legality or validity
of this Agreement or any document or instrument relating to this Agreement, the
validity of the execution of this Agreement or of any supplement hereto or
instrument of further assurance, or the validity, priority, perfection or
sufficiency of the security for the Certificates issued hereunder or intended to
be issued hereunder. Neither the Trustee nor the Securities Administrator shall
at any time have any responsibility or liability for or with respect to the
legality, validity and enforceability of any Mortgage or any Mortgage Loan, or
the perfection and priority of any Mortgage or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Trust
Fund or its ability to generate the payments to be distributed to
Certificateholders, under this Agreement. Neither the Trustee nor the Securities
Administrator shall have any responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to record this Agreement other than any continuation statements
filed by the Trustee pursuant to Section 3.20.
Section 9.04 Trustee and Securities Administrator May Own Certificates.
The Trustee and the Securities Administrator in its individual capacity or
in any capacity other than as Trustee hereunder may become the owner or pledgee
of any Certificates with the same rights it would have if it were not Trustee or
the Securities Administrator, as applicable, and may otherwise deal with the
parties hereto.
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Section 9.05 Trustee's and Securities Administrator's Fees and Expenses.
The fees and expenses of the Trustee and the Securities Administrator
shall be paid in accordance with a side letter agreement. In addition, the
Trustee and the Securities Administrator will be entitled to recover from the
Master Servicer Collection Account pursuant to Section 4.03(b) all reasonable
out-of-pocket expenses, disbursements and advances and the expenses of the
Trustee and the Securities Administrator, respectively, in connection with any
Event of Default, any breach of this Agreement or any claim or legal action
(including any pending or threatened claim or legal action) incurred or made by
the Trustee or the Securities Administrator, respectively, in the administration
of the trusts hereunder (including the reasonable compensation, expenses and
disbursements of its counsel) except any such expense, disbursement or advance
as may arise from its negligence or intentional misconduct or which is the
responsibility of the Certificateholders or the Trust Fund hereunder. If funds
in the Master Servicer Collection Account are insufficient therefor, the Trustee
and the Securities Administrator shall recover such expenses from the Depositor.
Such compensation and reimbursement obligation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust.
Section 9.06 Eligibility Requirements for Trustee and Securities
Administrator.
The Trustee and any successor Trustee and the Securities Administrator and
any successor Securities Administrator shall during the entire duration of this
Agreement be a state bank or trust company or a national banking association
organized and doing business under the laws of such state or the United States
of America, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus and undivided profits of at least
$40,000,000 or, in the case of a successor Trustee, $50,000,000, subject to
supervision or examination by federal or state authority and, in the case of the
Trustee, rated "BBB" or higher by S&P and Fitch with respect to their long-term
rating and rated "BBB" or higher by S&P and Fitch with respect to any
outstanding long-term unsecured unsubordinated debt, and, in the case of a
successor Trustee or successor Securities Administrator other than pursuant to
Section 9.10, rated in one of the two highest long-term debt categories of, or
otherwise acceptable to, each of the Rating Agencies. If the Trustee publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 9.06 the combined capital and surplus of such corporation shall be
deemed to be its total equity capital (combined capital and surplus) as set
forth in its most recent report of condition so published. In case at any time
the Trustee or the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 9.06, the Trustee or the
Securities Administrator shall resign immediately in the manner and with the
effect specified in Section 9.08.
Section 9.07 Insurance.
The Trustee and the Securities Administrator, at their own expense, shall
at all times maintain and keep in full force and effect: (i) fidelity insurance,
(ii) theft of documents insurance and (iii) forgery insurance (which may be
collectively satisfied by a "Financial Institution Bond" and/or a "Bankers'
Blanket Bond"). All such insurance shall be in amounts, with standard
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coverage and subject to deductibles, as are customary for insurance typically
maintained by banks or their affiliates which act as custodians for
investor-owned mortgage pools. A certificate of an officer of the Trustee or the
Securities Administrator as to the Trustee's or the Securities Administrator's,
respectively, compliance with this Section 9.07 shall be furnished to any
Certificateholder upon reasonable written request.
Section 9.08 Resignation and Removal of the Trustee and Securities
Administrator.
(a) The Trustee and the Securities Administrator may at any time resign
and be discharged from the Trust hereby created by giving written notice thereof
to the Depositor and the Master Servicer, with a copy to the Rating Agencies.
Upon receiving such notice of resignation, the Depositor shall promptly appoint
a successor Trustee or successor Securities Administrator, as applicable, by
written instrument, in triplicate, one copy of which instrument shall be
delivered to each of the resigning Trustee or Securities Administrator, as
applicable, the successor Trustee or Securities Administrator, as applicable. If
no successor Trustee or Securities Administrator shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or Securities Administrator may petition any
court of competent jurisdiction for the appointment of a successor Trustee or
Securities Administrator.
(b) If at any time the Trustee or the Securities Administrator shall cease
to be eligible in accordance with the provisions of Section 9.06 and shall fail
to resign after written request therefor by the Depositor or if at any time the
Trustee or the Securities Administrator shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or the
Securities Administrator, as applicable, or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or the
Securities Administrator, as applicable, or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Depositor shall
promptly remove the Trustee, or shall be entitled to remove the Securities
Administrator, as applicable, and appoint a successor Trustee or Securities
Administrator, as applicable, by written instrument, in triplicate, one copy of
which instrument shall be delivered to each of the Trustee or Securities
Administrator, as applicable, so removed, the successor Trustee or Securities
Administrator, as applicable.
(c) The Holders of Certificates evidencing Percentage Interests
aggregating not less than 51% of the Trust Fund may at any time remove the
Trustee or the Securities Administrator and appoint a successor Trustee or
Securities Administrator by written instrument or instruments, in quadruplicate,
signed by such Holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Depositor, the Master
Servicer, the Securities Administrator (if the Trustee is removed), the Trustee
(if the Securities Administrator is removed), and the Trustee or Securities
Administrator so removed and the successor so appointed.
(d) No resignation or removal of the Trustee or the Securities
Administrator and appointment of a successor Trustee or Securities Administrator
pursuant to any of the provisions of this Section 9.08 shall become effective
except upon appointment of and acceptance of such appointment by the successor
Trustee or Securities Administrator as provided in Section 9.09.
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Section 9.09 Successor Trustee and Successor Securities Administrator.
(a) Any successor Trustee or Securities Administrator appointed as
provided in Section 9.08 shall execute, acknowledge and deliver to the Depositor
and to its predecessor Trustee or Securities Administrator an instrument
accepting such appointment hereunder. The resignation or removal of the
predecessor Trustee or Securities Administrator shall then become effective and
such successor Trustee or Securities Administrator, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with like effect as if
originally named as Trustee or Securities Administrator herein. The predecessor
Trustee or Securities Administrator shall after payment of its outstanding fees
and expenses promptly deliver to the successor Trustee or Securities
Administrator, as applicable, all assets and records of the Trust held by it
hereunder, and the Depositor and the predecessor Trustee or Securities
Administrator, as applicable, shall execute and deliver such instruments and do
such other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor Trustee or Securities Administrator, as
applicable, all such rights, powers, duties and obligations.
(b) No successor Trustee or Securities Administrator shall accept
appointment as provided in this Section 9.09 unless at the time of such
acceptance such successor Trustee or Securities Administrator shall be eligible
under the provisions of Section 9.06.
(c) Upon acceptance of appointment by a successor Trustee or Securities
Administrator as provided in this Section 9.09, the successor Trustee or
Securities Administrator shall mail notice of the succession of such Trustee or
Securities Administrator hereunder to all Certificateholders at their addresses
as shown in the Certificate Register and to the Rating Agencies. MLMCI shall pay
the cost of any mailing by the successor Trustee or Securities Administrator.
Section 9.10 Merger or Consolidation of Trustee or Securities
Administrator.
(a) Any state bank or trust company or national banking association into
which the Trustee or the Securities Administrator may be merged or converted or
with which it may be consolidated or any state bank or trust company or national
banking association resulting from any merger, conversion or consolidation to
which the Trustee or the Securities Administrator, respectively, shall be a
party, or any state bank or trust company or national banking association
succeeding to all or substantially all of the corporate trust business of the
Trustee or the Securities Administrator, respectively, shall be the successor of
the Trustee or the Securities Administrator, respectively, hereunder, provided
such state bank or trust company or national banking association shall be
eligible under the provisions of Section 9.06. Such succession shall be valid
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
Section 9.11 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust or property
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constituting the same may at the time be located, the Depositor and the Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee and the
Depositor to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust, and to
vest in such Person or Persons, in such capacity, such title to the Trust, or
any part thereof, and, subject to the other provisions of this Section 9.11,
such powers, duties, obligations, rights and trusts as the Depositor and the
Trustee may consider necessary or desirable.
(b) If the Depositor shall not have joined in such appointment within 15
days after the receipt by it of a written request so to do, the Trustee shall
have the power to make such appointment without the Depositor.
(c) No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as a successor Trustee under Section 9.06 hereunder and
no notice to Certificateholders of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 9.08 hereof.
(d) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.11, all rights, powers, duties and obligations
conferred or imposed upon the Trustee and required to be conferred on such
co-trustee shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly, except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(e) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(f) To the extent not prohibited by law, any separate trustee or
co-trustee may, at any time, request the Trustee, its agent or attorney-in-fact,
with full power and authority, to do any lawful act under or with respect to
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
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(g) No trustee under this Agreement shall be personally liable by reason
of any act or omission of another trustee under this Agreement. The Depositor
and the Trustee acting jointly may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Section 9.12 Federal Information Returns and Reports to
Certificateholders; REMIC Administration.
(a) For federal income tax purposes, the taxable year of each of REMIC I
and REMIC II shall be a calendar year and the Securities Administrator shall
maintain or cause the maintenance of the books of each such REMIC on the accrual
method of accounting.
(b) The Securities Administrator shall prepare and file or cause to be
filed with the Internal Revenue Service, and the Trustee shall sign, federal tax
information returns or elections required to be made hereunder with respect to
each of REMIC I and REMIC II, the Trust Fund, if applicable, and the
Certificates containing such information and at the times and in the manner as
may be required by the Code or applicable Treasury regulations, and shall
furnish to each Holder of Certificates at any time during the calendar year for
which such returns or reports are made such statements or information at the
times and in the manner as may be required thereby, including, without
limitation, reports relating to interest, original issue discount and market
discount or premium (using a constant prepayment assumption of 22% CPR for the
Mortgage Loans). The Securities Administrator will apply for an Employee
Identification Number from the IRS under Form SS-4 or any other acceptable
method for all tax entities. In connection with the foregoing, the Securities
Administrator shall timely prepare and file, and the Trustee shall sign, IRS
Form 8811, which shall provide the name and address of the person who can be
contacted to obtain information required to be reported to the holders of
regular interests in each of REMIC I and REMIC II (the "REMIC Reporting Agent").
The Trustee shall make elections to treat each of REMIC I and REMIC II as a
REMIC (which elections shall apply to the taxable period ending December 31,
2004 and each calendar year thereafter) in such manner as the Code or applicable
Treasury regulations may prescribe, and as described by the Securities
Administrator. The Trustee shall sign all tax information returns filed pursuant
to this Section and any other returns as may be required by the Code. The Holder
of the Class R-I Certificate is hereby designated as the "Tax Matters Person"
(within the meaning of Treas. Reg. ss.ss.1.860F-4(d)) for REMIC I and the Holder
of the Class R-II Certificate is hereby designated as the "Tax Matters Person"
for REMIC II. The Securities Administrator is hereby designated and appointed as
the agent of each such Tax Matters Person. Any Holder of a Residual Certificate
will by acceptance thereof appoint the Securities Administrator as agent and
attorney-in-fact for the purpose of acting as Tax Matters Person for each of
REMIC I and REMIC II during such time as the Securities Administrator does not
own any such Residual Certificate. In the event that the Code or applicable
Treasury regulations prohibit the Trustee from signing tax or information
returns or other statements, or the Securities Administrator from acting as
agent for the Tax Matters Person, the Trustee and the Securities Administrator
shall take whatever action that in its sole good faith judgment is necessary for
the proper filing of such information returns or for the provision of a tax
matters person, including designation of the Holder of a Residual Certificate to
sign such returns or act as tax matters person. Each Holder of a Residual
Certificate shall be bound by this Section.
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(c) The Securities Administrator shall provide upon request and receipt of
reasonable compensation, such information as required in Section 860D(a)(6)(B)
of the Code to the Internal Revenue Service, to any Person purporting to
transfer a Residual Certificate to a Person other than a transferee permitted by
Section 5.05(b), and to any regulated investment company, real estate investment
trust, common trust fund, partnership, trust, estate, organization described in
Section 1381 of the Code, or nominee holding an interest in a pass-through
entity described in Section 860E(e)(6) of the Code, any record holder of which
is not a transferee permitted by Section 5.05(b) (or which is deemed by statute
to be an entity with a disqualified member).
(d) The Securities Administrator shall prepare and file or cause to be
filed, and the Trustee shall sign, any state income tax returns required under
Applicable State Law with respect to each of REMIC I or REMIC II or the Trust
Fund.
(e) Notwithstanding any other provision of this Agreement, the Trustee and
the Securities Administrator shall comply with all federal withholding
requirements respecting payments to Certificateholders of interest or original
issue discount on the Mortgage Loans, that the Trustee or the Securities
Administrator reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee or the Securities Administrator withholds any amount from interest or
original issue discount payments or advances thereof to any Certificateholder
pursuant to federal withholding requirements, the Trustee or the Securities
Administrator shall, together with its monthly report to such
Certificateholders, indicate such amount withheld.
(f) The Trustee and the Securities Administrator agree to indemnify the
Trust Fund and the Depositor for any taxes and costs including, without
limitation, any reasonable attorneys fees imposed on or incurred by the Trust
Fund, the Depositor or the Master Servicer, as a result of a breach of the
Trustee's covenants and the Securities Administrator's covenants, respectively,
set forth in this Section 9.12; provided, however, such liability and obligation
to indemnify in this paragraph shall not be joint and several and neither the
Trustee nor the Securities Administrator shall be liable or be obligated to
indemnify the Trust Fund for the failure by the other to perform any duty under
this Agreement or the breach by the other of any covenant in this Agreement.
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ARTICLE X
TERMINATION
Section 10.01 Termination Upon Repurchase by the Depositor or its Designee
or Liquidation of the Mortgage Loans.
(a) Subject to Section 10.02, the respective obligations and
responsibilities of the Depositor, the Trustee, the Master Servicer and the
Securities Administrator created hereby, other than the obligation of the
Trustee to make payments to Certificateholders as hereinafter set forth shall
terminate upon:
(i) the repurchase by or at the direction of the Depositor or
its designee of all Mortgage Loans and all related REO Property remaining
in the Trust at a price equal to (a) 100% of the Outstanding Principal
Balance of each Mortgage Loan (other than a Mortgage Loan related to REO
Property) as of the date of repurchase, net of the principal portion of
any unreimbursed Monthly Advances made by the purchaser, together with
interest at the applicable Mortgage Interest Rate accrued but unpaid to,
but not including, the first day of the month of repurchase, plus (b) the
appraised value of any related REO Property, less the good faith estimate
of the Depositor of liquidation expenses to be incurred in connection with
its disposal thereof (but not more than the Outstanding Principal Balance
of the related Mortgage Loan, together with interest at the applicable
Mortgage Interest Rate accrued on that balance but unpaid to, but not
including, the first day of the month of repurchase), such appraisal to be
calculated by an appraiser mutually agreed upon by the Depositor and the
Trustee at the expense of the Depositor, plus (c) the amount of any costs
and damages incurred by the Trust in connection with any violation by the
Mortgage Loans and any related REO Property of any predatory or
abusive-lending law; or
(ii) the later of the making of the final payment or other
liquidation, or any advance with respect thereto, of the last Mortgage
Loan remaining in the Trust Fund or the disposition of all property
acquired with respect to any Mortgage Loan; provided, however, that in the
event that an advance has been made, but not yet recovered, at the time of
such termination, the Person having made such advance shall be entitled to
receive, notwithstanding such termination, any payments received
subsequent thereto with respect to which such advance was made; or
(iii) the payment to Certificateholders of all amounts
required to be paid to them pursuant to this Agreement
(b) In no event, however, shall the Trust created hereby continue beyond
the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. James's, living on the date of this Agreement.
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(c) The right of the Depositor or its designee to repurchase all the
Mortgage Loans pursuant to Subsection 10.01(a)(i) above shall be exercisable
only if (i) the aggregate Stated Principal Balance of the Mortgage Loans at the
time of any such repurchase is less than 5% of the Cut-off Date Balance or (ii)
the Depositor, based upon an Opinion of Counsel, has determined that the REMIC
status of the REMIC I or REMIC II has been lost or that a substantial risk
exists that such REMIC status will be lost for the then-current taxable year. At
any time thereafter, in the case of (i) or (ii) above, the Depositor may elect
to terminate REMIC I and REMIC II at any time, and upon such election, the
Depositor or its designee, shall repurchase all the Mortgage Loans.
(d) The Trustee shall give notice of any termination to the
Certificateholders, with a copy to the Master Servicer, the Securities
Administrator and the Rating Agencies, upon which the Certificateholders shall
surrender their Certificates to the Trustee for payment of the final
distribution and cancellation. Such notice shall be given by letter, mailed not
earlier than the l5th day and not later than the 25th day of the month next
preceding the month of such final distribution, and shall specify (i) the
Distribution Date upon which final payment of the Certificates will be made upon
presentation and surrender of the Certificates at the office of the Trustee
therein designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Distribution Date is not applicable,
payments being made only upon presentation and surrender of the Certificates at
the office of the Trustee therein specified.
(e) If the option of the Depositor to repurchase or cause the repurchase
of all the Mortgage Loans under Subsection 10.01 (a)(i) above is exercised, the
Depositor and/or its designee shall deliver to the Trustee for deposit in the
Distribution Account, by the Business Day prior to the applicable Distribution
Date, an amount equal to the repurchase price for the Mortgage Loans being
purchased by it and all property acquired with respect to such Mortgage Loans
remaining in REMIC I or REMIC II. Upon presentation and surrender of the
Certificates by the Certificateholders, the Trustee shall distribute to the
Certificateholders an amount determined as follows: with respect to each Regular
Certificate (other than the Class R Certificates), the outstanding Class
Certificate Balance, plus with respect to each Regular Certificate (other than
the Class R Certificates), one month's interest thereon at the applicable
Pass-Through Rate; and with respect to the Class R Certificates, the percentage
interest evidenced thereby multiplied by the difference, if any, between the
above described repurchase price and the aggregate amount to be distributed to
the Holders of the Certificates (other than the Class R Certificates). If the
proceeds with respect to the Group I Mortgage Loans are not sufficient to pay
all of the Group I Senior Certificates in full, any such deficiency will be
allocated first, to the Subordinate Certificates, in inverse order of their
numerical designation, and then to the Group I Senior Certificates on a pro rata
basis. If the proceeds with respect to the Group II Mortgage Loans are not
sufficient to pay all of the Group II Senior Certificates in full, any such
deficiency will be allocated first, to the Subordinate Certificates, in inverse
order of their numerical designation, and then to the Group II Senior
Certificates on a pro rata basis. Upon deposit of the required repurchase price
and following such final Distribution Date, the Trustee shall release promptly
to the Depositor and/or its designee the Mortgage Files for the remaining
applicable Mortgage Loans, and the Accounts with respect thereto shall
terminate, subject to the Trustee's obligation to hold any amounts payable to
Certificateholders in trust without interest pending final distributions
pursuant to Subsection 10.01(g). Any other amounts
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remaining in the Accounts will belong to the Depositor. Upon deposit of the
required repurchase price and following such final Distribution Date, the
Trustee shall release promptly to the Depositor and/or its designee, as the case
may be, the Mortgage Files for the remaining Mortgage Loans, and the Accounts
with respect thereto shall terminate, subject to the Trustee's obligation to
hold any amounts payable to Certificateholders in trust without interest pending
final distributions pursuant to Subsection 10.01(g).
(f) In the event that this Agreement is terminated by reason of the
payment or liquidation of all Mortgage Loans or the disposition of all property
acquired with respect to all Mortgage Loans under Subsection 10.01(a)(ii) above,
the Master Servicer shall deliver to the Trustee for deposit in the Distribution
Account all distributable amounts remaining in the Master Servicer Collection
Account. Upon the presentation and surrender of the Certificates, the Trustee
shall distribute to the remaining Certificateholders, in accordance with their
respective interests, all distributable amounts remaining in the Distribution
Account. Upon deposit by the Master Servicer of such distributable amounts, and
following such final Distribution Date, the Trustee shall release promptly to
the Depositor or its designee the Mortgage Files for the remaining Mortgage
Loans, and the Master Servicer Collection Account and the Distribution Account
shall terminate, subject to the Trustee's obligation to hold any amounts payable
to the Certificateholders in trust without interest pending final distributions
pursuant to Subsection 10.01(g).
(g) If not all of the Certificateholders shall surrender their
Certificates for cancellation within six months after the time specified in the
above-mentioned written notice, the Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice, not all the Certificates shall have been
surrendered for cancellation, the Trustee may take appropriate steps, or appoint
any agent to take appropriate steps, to contact the remaining Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds and other assets which remain subject to this Agreement.
Section 10.02 Additional Termination Requirements.
(a) If the option of the Depositor to repurchase all the Mortgage Loans
under Subsection 10.01(a)(i) above is exercised, the Trust Fund and each of
REMIC I or REMIC II shall be terminated, in accordance with the following
additional requirements, unless the Trustee has been furnished with an Opinion
of Counsel to the effect that the failure of the Trust to comply with the
requirements of this Section 10.03 will not (i) result in the imposition of
taxes on "prohibited transactions" as defined in Section 860F of the Code on
REMIC I or REMIC II or (ii) cause any REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding:
(i) within 90 days prior to the final Distribution Date, at
the written direction of the Depositor, the Trustee, as agent for the
respective Tax Matters Persons, shall adopt a plan of complete liquidation
of REMIC I and REMIC II in the case of a termination under Subsection
10.01(a)(i), provided to it by the Depositor meeting the
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requirements of a "qualified liquidation" under Section 860F of the Code
and any regulations thereunder.
(ii) the Depositor shall notify the Trustee at the
commencement of such 90-day liquidation period and, at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell or otherwise dispose of all of the remaining assets of the Trust Fund
in accordance with the terms hereof; and
(iii) at or after the time of adoption of such a plan of
complete liquidation of any of REMIC I and REMIC II, and at or prior to
the final Distribution Date relating thereto, the Trustee shall sell for
cash all of the assets of the Trust, to or at the direction of the
Depositor, and REMIC I and REMIC II, shall terminate at such time.
(b) By their acceptance of the Residual Certificates, the Holders thereof
hereby (i) agree to adopt such a plan of complete liquidation of the related
REMIC upon the written request of the Depositor, and to take such action in
connection therewith as may be reasonably requested by the Depositor and (ii)
appoint the Depositor as their attorney-in-fact, with full power of
substitution, for purposes of adopting such a plan of complete liquidation. The
Trustee shall adopt such plan of liquidation by filing the appropriate statement
on the final tax return of each REMIC. Upon complete liquidation or final
distribution of all of the assets of the Trust Fund, the Trust Fund and each of
REMIC I and REMIC II shall terminate.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Intent of Parties.
The parties intend that each of REMIC I and REMIC II shall be treated as a
REMIC for federal income tax purposes and that the provisions of this Agreement
should be construed in furtherance of this intent.
Section 11.02 Amendment.
(a) This Agreement may be amended from time to time by MLMCI, the
Depositor, the Master Servicer, the Securities Administrator and the Trustee,
and the Servicing Agreement may be amended from time to time by MLMCI, the
Master Servicer and the Trustee, without notice to or the consent of any of the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions herein or therein that may be defective or inconsistent with any
other provisions herein or therein, to comply with any changes in the Code or to
make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with the provisions of this
Agreement; provided, however, that such action shall not, as evidenced by an
Opinion of Independent Counsel, addressed to the Trustee, adversely affect in
any material respect the interests of any Certificateholder or adversely affect
the status of any REMIC created hereunder as a REMIC.
(b) This Agreement may also be amended from time to time by MLMCI, the
Master Servicer, the Depositor, the Securities Administrator and the Trustee,
and the Servicing Agreement may also be amended from time to time by the Master
Servicer and the Trustee, with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 51% of the Trust Fund
or of the applicable Class or Classes, if such amendment affects only such Class
or Classes, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Certificateholders; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on any
Regular Certificate without the consent of the Holder of such Regular
Certificate, (ii) reduce the aforesaid percentage of Certificates the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all Certificates then outstanding, or (iii) cause REMIC I or REMIC II
to fail to qualify as a REMIC for federal income tax purposes, as evidenced by
an Opinion of Independent Counsel which shall be provided to the Trustee other
than at the Trustee's expense. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
Section 11.02(b), Certificates registered in the name of or held for the benefit
of the Depositor, the Securities Administrator, the Master Servicer, or the
Trustee or any Affiliate thereof shall be entitled to vote their Percentage
Interests with respect to matters affecting such Certificates.
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(c) Promptly after the execution of any such amendment, the Trustee shall
furnish a copy of such amendment or written notification of the substance of
such amendment to each Certificateholder, with a copy to the Rating Agencies.
(d) In the case of an amendment under Subsection 11.02(b) above, it shall
not be necessary for the Certificateholders to approve the particular form of
such an amendment. Rather, it shall be sufficient if the Certificateholders
approve the substance of the amendment. The manner of obtaining such consents
and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable regulations as the
Trustee may prescribe.
(e) Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by this Agreement and
will not adversely affect the status of any REMIC created hereunder. The Trustee
and the Securities Administrator may, but shall not be obligated to, enter into
any such amendment which affects the Trustee's or the Securities Administrator's
own respective rights, duties or immunities under this Agreement.
Section 11.03 Recordation of Agreement.
To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public recording
office or elsewhere. The Depositor shall effect such recordation, at the expense
of the Trust upon the request in writing of a Certificateholder, but only if
such direction is accompanied by an Opinion of Counsel (provided at the expense
of the Certificateholder requesting recordation) to the effect that such
recordation would materially and beneficially affect the interests of the
Certificateholders or is required by law.
Section 11.04 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not terminate
this Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) Except as expressly provided in this Agreement, no Certificateholders
shall have any right to vote or in any manner otherwise control the operation
and management of the Trust, or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Certificates, be
construed so as to establish the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholders be under
any liability to any third Person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
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(c) No Certificateholder shall have any right by virtue of any provision
of this Agreement to institute any suit, action or proceeding in equity or at
law upon, under or with respect to this Agreement against the Depositor, the
Securities Administrator, the Master Servicer or any successor to any such
parties unless (i) such Certificateholder previously shall have given to the
Trustee a written notice of a continuing default, as herein provided, (ii) the
Holders of Certificates evidencing Percentage Interests aggregating not less
than 51% of the Trust Fund shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs and expenses and liabilities to be incurred therein or
thereby, and (iii) the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding.
(d) No one or more Certificateholders shall have any right by virtue of
any provision of this Agreement to affect the rights of any other
Certificateholders or to obtain or seek to obtain priority or preference over
any other such Certificateholder, or to enforce any right under this Agreement,
except in the manner herein provided and for the equal, ratable and common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 11.04, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.05 Acts of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
an agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is expressly required, to the
Depositor. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement and
conclusive in favor of the Trustee and the Depositor, if made in the manner
provided in this Section 11.05.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority. The fact and date of the execution of any such
instrument or writing, or the authority of the individual executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing on such Certificates, except an endorsement in
accordance with Section 5.02 made on a Regular Certificate presented in
accordance with Section 5.04) shall be proved by the
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Certificate Register, and neither the Trustee, the Securities Administrator, the
Depositor, the Master Servicer nor any successor to any such parties shall be
affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action of the holder of any Regular Certificate shall bind every future
holder of the same Regular Certificate and the holder of every Regular
Certificate issued upon the registration of transfer or exchange thereof, if
applicable, or in lieu thereof with respect to anything done, omitted or
suffered to be done by the Trustee, the Securities Administrator, the Depositor,
the Master Servicer or any successor to any such party in reliance thereon,
whether or not notation of such action is made upon such Certificates.
(e) In determining whether the Holders of the requisite percentage of
Certificates evidencing Percentage Interests have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Certificates
owned by the Trustee, the Securities Administrator, the Depositor, the Master
Servicer or any Affiliate thereof shall be disregarded, except as otherwise
provided in Section 11.02(b) and except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Certificates which the Trustee knows
to be so owned shall be so disregarded. Certificates which have been pledged in
good faith to the Trustee, the Securities Administrator, the Depositor, the
Master Servicer or any Affiliate thereof may be regarded as outstanding if the
pledgor establishes to the satisfaction of the Trustee the pledgor's right to
act with respect to such Certificates and that the pledgor is not an Affiliate
of the Trustee, the Securities Administrator, the Depositor, or the Master
Servicer, as the case may be.
Section 11.06 Governing Law.
THIS AGREEMENT AND THE CERTIFICATES SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
RULES AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.07 Notices.
All demands and notices hereunder shall be in writing and shall be deemed
given when delivered at (including delivery by facsimile) or mailed by
registered mail, return receipt requested, postage prepaid, or by recognized
overnight courier, to (i) in the case of the Depositor, 0 Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Vice President-Servicing,
telecopier number: (000) 000-0000, or to such other address as may hereafter be
furnished to the other parties hereto in writing; (ii) in the case of the
Trustee, at its Corporate Trust Office, or such other address as may hereafter
be furnished to the other parties hereto in writing; (iii) in the case of the
MLMCI, 4 World Financial Center, New York, New York 10281, Attention: Vice
President-Servicing, telecopier number: (000) 000-0000, or to such other address
as may hereafter be furnished to the other parties hereto in writing; (iv) in
the case of the Master Servicer or Securities Administrator, Xxxxx Fargo Bank,
National Association, X.X. Xxx 00,
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Xxxxxxxx, Xxxxxxxx 00000, Attention MLMI Series 2004-A2, or, in the case of
overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000,
Attention: MLMI Series 2004-A2, facsimile no.: (000) 000-0000, or such other
address as may hereafter be furnished to the other parties hereto in writing;
(v) in the case of the Custodian, Xxxxx Fargo Bank, National Association, 0000
00xx Xxxxxx Xxxxxxxxx, XX 0031, Xxxxxxxxxxx, Xxxxxxxxx 00000 ATTN: MLMI Series
2004-A2; or such other address as may hereafter be furnished to the other
parties hereto in writing; or (vi) in the case of the Rating Agencies, Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx - 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
and Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any notice delivered to the Depositor, the
Master Servicer, the Securities Administrator or the Trustee under this
Agreement shall be effective only upon receipt. Any notice required or permitted
to be mailed to a Certificateholder, unless otherwise provided herein, shall be
given by first-class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register. Any notice so mailed
within the time prescribed in this Agreement shall be conclusively presumed to
have been duly given when mailed, whether or not the Certificateholder receives
such notice.
Section 11.08 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severed from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the holders thereof.
Section 11.09 Successors and Assigns.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto.
Section 11.10 Article and Section Headings.
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
Section 11.11 Counterparts.
This Agreement may be executed in two or more counterparts each of which
when so executed and delivered shall be an original but all of which together
shall constitute one and the same instrument.
Section 11.12 Notice to Rating Agencies.
The article and section headings herein are for convenience of reference
only, and shall not limited or otherwise affect the meaning hereof. The Trustee
shall promptly provide notice to each Rating Agency with respect to each of the
following of which it has actual knowledge:
-110-
1. Any material change or amendment to this Agreement or the Servicing
Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer, the Trustee or
the Securities Administrator;
4. The repurchase or substitution of Mortgage Loans;
5. The final payment to Certificateholders; and
6. Any change in the location of the Master Servicer Collection Account or
the Distribution Account.
-111-
IN WITNESS WHEREOF, the Depositor, the Trustee, the Master Servicer and
the Securities Administrator have caused their names to be signed hereto by
their respective officers thereunto duly authorized as of the day and year first
above written.
XXXXXXX XXXXX MORTGAGE INVESTORS,
INC., as Depositor
By: /s/ Xxxxxx Xxxx
-------------------------------------
Name: Xxxxxx Xxxx
Title: Managing Director
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Securities Administrator
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of August, 2004 before me, a notary public in and for said
State, personally appeared Xxxxxx Xxxx, known to me to be a Managing Director of
Xxxxxxx Xxxxx Mortgage Investors, Inc., the corporation that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
________________________________________
Notary Public
[Notarial Seal]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 30th day of August, 2004 before me, a notary public in and for said
State, personally appeared __________________, known to me to be a(n)
_________________ of Wachovia Bank, National Association, the entity that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
________________________________________
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of August, 2004 before me, a notary public in and for said
State, personally appeared ___________________, known to me to be a(n)
_____________________ of Xxxxx Fargo Bank, National Association, the entity that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
________________________________________
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 30h day of August, 2004 before me, a notary public in and for said
State, personally appeared _________________, known to me to be a(n)
__________________ of Xxxxx Fargo Bank, National Association, the entity that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
________________________________________
Notary Public
[Notarial Seal]
EXHIBIT A-1
FORM OF CLASS [_-A-_][M-_] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
[THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES
[THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES AND THE CLASS M-3
CERTIFICATES] AND THE RESIDUAL CERTIFICATES TO THE EXTENT DESCRIBED IN THE
AGREEMENT REFERRED TO HEREIN.]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
[EACH BENEFICIAL OWNER OF A CLASS M CERTIFICATE OR ANY
INTEREST THEREIN SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS
ACQUISITION OR HOLDING OF THAT CERTIFICATE OR INTEREST THEREIN, THAT EITHER (I)
IT IS NOT A PLAN OR A PLAN INVESTOR OR INVESTING WITH PLAN ASSETS, (II) IT HAS
ACQUIRED AND IS HOLDING SUCH CERTIFICATE IN RELIANCE ON THE PROHIBITED
TRANSACTION EXEMPTION 90-29 ISSUED BY THE DEPARTMENT OF LABOR, AS AMENDED
("EXEMPTION"), AND THAT IT UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE
AVAILABILITY OF THE EXEMPTION, INCLUDING THAT THE CERTIFICATE MUST BE RATED, AT
THE TIME OF PURCHASE, NOT LOWER THAN "BBB-" (OR ITS EQUIVALENT) BY FITCH,
MOODY'S OR S&P, OR (III) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS
USED TO ACQUIRE OR HOLD THE CERTIFICATE OR INTEREST THEREIN IS AN "INSURANCE
COMPANY GENERAL ACCOUNT," AS SUCH TERM IS DEFINED IN PTCE 95-60, AND (3) THE
CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED.]
[IF ANY BOOK-ENTRY CERTIFICATE (OR ANY INTEREST THEREIN) IS
ACQUIRED OR HELD IN VIOLATION OF THE PROVISIONS OF SECTION 5.02(D) OF THE
POOLING AND SERVICING AGREEMENT, THEN THE LAST PRECEDING TRANSFEREE THAT IS IN
COMPLIANCE WITH SUCH PROVISIONS SHALL BE RESTORED, TO THE EXTENT PERMITTED BY
LAW, TO ALL RIGHTS AND OBLIGATIONS AS CERTIFICATE OWNER THEREOF RETROACTIVE TO
THE DATE OF SUCH TRANSFER OF SUCH CERTIFICATE. THE TRUSTEE SHALL BE
UNDER NO LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS DUE ON SUCH CERTIFICATE
TO SUCH PRECEDING TRANSFEREE.]
[ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING
OF ANY BOOK-ENTRY CERTIFICATE (OR INTEREST THEREIN) WAS EFFECTED IN VIOLATION OF
THE RESTRICTIONS IN SECTION 5.02(D) OF THE AGREEMENT SHALL INDEMNIFY AND HOLD
HARMLESS THE DEPOSITOR, THE TRUSTEE, THE SERVICER AND THE TRUST FUND FROM AND
AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH
PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.]
A-1-2
MLMI Series 2004-A2, Class [_-A-_][M-_] Aggregate [Class Certificate Balance][Notional Amount]
of the Class [_-A-_][M-_] Certificates as of the Issue
Date: $__________
Pass-Through Rate: __________ Initial [Class Certificate Balance][Notional Amount]
of this Class [_-A-_][M-_] Certificate as of the Issue
Date
$----------
Date of Agreement and Cut-off Date: Master Servicer:
August 1, 2004 Xxxxx Fargo Bank, National Association
First Distribution Date: September 27, 2004 Trustee: Wachovia Bank, National Association
No. __ Issue Date: August 30, 2004
CUSIP: __________
DISTRIBUTIONS IN REDUCTION OF THE [CLASS CERTIFICATE BALANCE][NOTIONAL
AMOUNT] OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING [CLASS CERTIFICATE BALANCE][NOTIONAL
AMOUNT] HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE AS
THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE PASS-THROUGH CERTIFICATE
MLMI SERIES 2004-A2
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of one- to four-family, fixed-rate and
adjustable-rate mortgage loans secured by first liens on residential property
(the "Mortgage Loans") formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
XXXXXXX XXXXX MORTGAGE INVESTORS, INC., THE MASTER SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
A-1-3
This certifies that Cede & Co. is the registered owner of a
Percentage Interest obtained by dividing the denomination of this Certificate by
the aggregate [Class Certificate Balance][Notional Amount] of the Class
[_-A-_][M-_] Certificates as of the Issue Date in that certain beneficial
ownership interest evidenced by all the Class [_-A-_][M-_] Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc.
(hereinafter called the "Depositor," which term includes any successor entity
under the Agreement), Xxxxx Fargo Bank, National Association as master servicer
(in such capacity, the "Master Servicer") and securities administrator (in such
capacity, the "Securities Administrator"), and Wachovia Bank, National
Association (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the period
specified in the Agreement on the [Class Certificate Balance][Notional Amount]
hereof at a per annum rate equal to the Pass-Through Rate set forth above and as
further described in the Agreement.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class [_-A-_][M-_] Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Trustee in writing at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class [_-A-_][M-_]
Certificates, or otherwise by check mailed by first class mail to the address of
the Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trustee for that purpose as provided in
the Agreement.
[As described above, each any transferee of a Class M
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of that certificate or interest therein,
that either (i) it is not a Plan or a Plan Investor or investing with Plan
assets, (ii) it has acquired and is holding such certificate in reliance on the
Prohibited Transaction Exemption 90-29 issued by the Department of Labor, as
amended ("Exemption"), and that it understands that there are certain conditions
to the availability of the Exemption, including that the certificate must be
rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by
Fitch, Moody's or S&P, or (iii) (1) it is an insurance company, (2) the source
of funds used to acquire or hold the certificate or interest therein is an
"insurance company general
A-1-4
account," as such term is defined in PTCE 95-60, and (3) the conditions in
Sections I and III of PTCE 95-60 have been satisfied.]
[If any Book-Entry Certificate (or any interest therein) is
acquired or held in violation of the provisions of Section 5.02(d) of the
Agreement, then the last preceding Transferee that is in compliance with such
provisions shall be restored, to the extent permitted by law, to all rights and
obligations as Certificate Owner thereof retroactive to the date of such
Transfer of such Certificate. The Trustee shall be under no liability to any
Person for making any payments due on such Certificate to such preceding
Transferee.]
[Any purported Certificate Owner whose acquisition or holding
of any Book-Entry Certificate (or interest therein) was effected in violation of
the restrictions in Section 5.02(d) of the Agreement shall indemnify and hold
harmless the Depositor, the Trustee, the Servicer and the Trust Fund from and
against any and all liabilities, claims, costs or expenses incurred by such
parties as a result of such acquisition or holding.]
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate [Class Certificate Balance][Notional Amount] of the Class of
Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer and the Trustee and the rights
of the Holders of the Certificates under the Agreement at any time by the
Depositor, the Master Servicer and the Trustee, with the consent of the Holders
of Certificates evidencing Percentage Interests aggregating not less than 51% of
the Trust Fund or of the applicable Class or Classes, if such amendment affects
only such Class or Classes, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Certificateholders. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as
A-1-5
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Trustee and the Certificate Registrar duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and the
Certificate Registrar and any agent of the Depositor, the Master Servicer, the
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar nor any
such agent shall be affected by notice to the contrary.
This certificate shall be governed by and construed in
accordance with the laws of the state of New York.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trustee
and required to be paid to them pursuant to the Agreement following the earlier
of (i) the final payment (or any advance with respect thereto) on or other
liquidation of the last Mortgage Loan remaining in the Trust Fund and (ii) the
optional purchase by the party designated in the Agreement at a price determined
as provided in the Agreement from the Trust Fund of all the Mortgage Loans and
all property acquired in respect of such Mortgage Loans remaining therein. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all the Mortgage Loans and all property acquired
in respect of any Mortgage Loan remaining therein at a price determined as
provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Loan Balance of the Mortgage Loans at the time of purchase being
less than 1% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
A-1-6
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
A-1-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: ____ __, 2004
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: ____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class [_-A-_][M-_] Certificates referred to
in the within-mentioned Agreement.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: _____________________________________
Authorized Signatory
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
-------------------
(Cust) (Minor)
under Uniform Gifts
to Minors Act
-------------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and
Taxpayer Identification Number of assignee)
the Percentage Interest evidenced by the Mortgage Pass-Through Certificate and
hereby authorize(s) the registration of transfer of such interest to assignee on
the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
for the account of ________________________, account number _________________,
or, if mailed by check, to ________________________________. Applicable
statements should be mailed to ___________________________________________.
This information is provided by ______________________________________,
the assignee named above, or __________________________, as its agent.
EXHIBIT A-2
FORM OF CLASS [B-_] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND THE
CLASS M CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE CODE WILL BE REGISTERED
EXCEPT IN ACCORDANCE WITH SECTION 5.02(D) OF THE AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
MLMI Series 2004-A2, Class [B-_] Aggregate Certificate Principal Balance
of Class [B-_] Certificates as of
the Issue Date:
$------------------
Pass Through Rate: __________ Denomination: $__________
Date of Agreement and Cut-off Date: Master Servicer:
August 1, 2004 Xxxxx Fargo Bank, National Association
First Distribution Date: Trustee: Wachovia Bank, National Association
September 27, 2004 Issue Date: August 30, 2004
No. __ CUSIP: __________
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS
CERTIFICATE.
MORTGAGE PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional, one- to four-family, fixed-rate
and adjustable-rate mortgage loans secured by first liens on residential
property (the "Mortgage Loans") formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
MLMI SERIES 2004-A2
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
XXXXXXX XXXXX MORTGAGE INVESTORS, INC., THE MASTER SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that ____________________ is the registered
owner of a Percentage Interest (obtained by dividing the denomination of this
Certificate by the aggregate Certificate Principal Balance of the Class [B-_]
Certificates as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class [B-_] Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"),
A-2-2
among Xxxxxxx Xxxxx Mortgage Investors, Inc. (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement),
Xxxxx Fargo Bank, National Association as master servicer (in such capacity, the
"Master Servicer") and securities administrator (in such capacity, the
"Securities Administrator"), and Wachovia Bank, National Association (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class [B-_] Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Trustee in writing at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of Class [B-_] Certificates, or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trustee for that purpose as provided in
the Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof equal to the denomination specified on the face hereof divided by
the aggregate Certificate Principal Balance of the Class of Certificates
specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer and the Trustee and the rights
of the Holders of the Certificates under the Agreement at any time by the
Depositor, the Master Servicer and the Trustee, with the consent of the Holders
of Certificates evidencing Percentage Interests aggregating not less than 51% of
the
A-2-3
Trust Fund or of the applicable Class or Classes, if such amendment affects only
such Class or Classes, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Certificateholders. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, (i) unless such transfer is made in reliance upon
Rule 144A (as evidenced by the investment letter delivered to the Trustee, in
substantially the form attached to the Agreement as Exhibit F-3) under the 1933
Act, the Trustee and the Depositor shall require a written Opinion of Counsel
(which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act,
which Opinion of Counsel shall not be an expense of the Trustee or the Depositor
or (ii) the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Agreement as Exhibit F-2)
and the transferee to execute an investment letter (in substantially the form
attached to the Agreement as Exhibit F-2) acceptable to and in form and
substance reasonably satisfactory to the Depositor and the Trustee certifying to
the Depositor and the Trustee the facts surrounding such transfer, which
investment letter shall not be an expense of the Trustee or the Depositor. None
of the Depositor, the Certificate Registrar or the Trustee is obligated to
register or qualify the Class of Certificates specified on the face hereof under
the 1933 Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to
A-2-4
indemnify the Trustee, the Depositor, the Certificate Registrar and the Master
Servicer against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any person using Plan Assets to acquire this Certificate
shall be made except in accordance with Section 5.02(d) of the Agreement. No
service charge will be made for any such registration of transfer or exchange of
Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and the
Certificate Registrar and any agent of the Depositor, the Master Servicer, the
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar nor any
such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trustee
and required to be paid to them pursuant to the Agreement following the earlier
of (i) the Distribution Date on which the Certificate Principal Balance of each
Class of Certificates has been reduced to zero, (ii) the final payment (or any
advance with respect thereto) on or other liquidation of the last Mortgage Loan
remaining in the Trust Fund and (iii) the optional purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from the Trust Fund of all the Mortgage Loans and all property acquired in
respect of such Mortgage Loans remaining therein. The Agreement permits, but
does not require, the party designated in the Agreement to purchase from the
Trust Fund all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan remaining therein at a price determined as provided in the
Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Loan
Balance of the Mortgage Loans at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
A-2-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: ____ __, 2004
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: ____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class [B-__] Certificates referred to in
the within-mentioned Agreement.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: _____________________________________
Authorized Signatory
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
-------------------
(Cust) (Minor)
under Uniform Gifts
to Minors Act
-------------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and
Taxpayer Identification Number of assignee)
the Percentage Interest evidenced by the Mortgage Pass-Through Certificate and
hereby authorize(s) the registration of transfer of such interest to assignee on
the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
for the account of ________________________, account number _________________,
or, if mailed by check, to ________________________________. Applicable
statements should be mailed to ___________________________________________.
This information is provided by ______________________________________,
the assignee named above, or __________________________, as its agent.
EXHIBIT A-3
FORM OF CLASS [R-_] CERTIFICATE
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC"), AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE CODE WILL BE REGISTERED
EXCEPT IN ACCORDANCE WITH SECTION 5.02(D) OF THE AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION
UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES (I) AN AFFIDAVIT TO THE TRUSTEE
THAT (A) SUCH TRANSFEREE IS NOT (1) THE UNITED STATES OR ANY POSSESSION THEREOF,
ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING, (2) ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION
521 OF THE CODE) THAT IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE, (3) ANY ORGANIZATION DESCRIBED IN SECTION 1381(A)(2)(C) OF THE CODE (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (1), (2) OR (3) SHALL HEREINAFTER
BE REFERRED TO AS A "DISQUALIFIED ORGANIZATION") OR (4) AN AGENT OF A
DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE
ASSESSMENT OR COLLECTION OF TAX, AND (II) SUCH TRANSFEREE SATISFIES CERTAIN
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL
BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF
THIS CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE CONSENTED TO THE
PROVISIONS OF THIS PARAGRAPH AND THE PROVISIONS OF SECTION 5.02(D) OF THE
AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A DISQUALIFIED ORGANIZATION IS
PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP OF THIS CERTIFICATE.
A-3-2
MLMI Series 2004-A2, Class [R-_] Percentage Interest: 100%
Date of Agreement and Cut-off Date: Master Servicer: Xxxxx Fargo Bank,
August 1, 2004 National Association
First Distribution Date: Trustee: Wachovia Bank, National Association
September 27, 2004
No. __ Issue Date: August 30, 2004
CUSIP: __________
MORTGAGE PASS-THROUGH CERTIFICATE
MLMI SERIES 2004-A2
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of one-to four-family, fixed-rate and
adjustable-rate mortgage loans secured by first liens on residential property
(the "Mortgage Loans") formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN
XXXXXXX XXXXX MORTGAGE INVESTORS, INC., THE MASTER SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
This certifies that ____________________, is a registered
owner of a 100% Percentage Interest specified above in that certain beneficial
ownership interest evidenced by all the Class [R-_] Certificates in the Trust
Fund created pursuant to a Pooling and Servicing Agreement, dated as specified
above (the "Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc.
(hereinafter called the "Depositor," which term includes any successor entity
under the Agreement), Xxxxx Fargo Bank, National Association as master servicer
(in such capacity, the "Master Servicer") and securities administrator (in such
capacity, the "Securities Administrator"), and Wachovia Bank, National
Association (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
A-3-3
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (each, a "Distribution Date"), commencing
on the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class [R-_] Certificates on such
Distribution Date pursuant to the Agreement.
This Certificate does not have a Class Certificate Balance or
Pass-Through Rate and will be entitled to distributions only to the extent set
forth in the Agreement. In addition, any distribution of the proceeds of any
remaining assets of the Trust will be made only upon presentment and surrender
of this Certificate at the Corporate Trust Office.
This Certificate is one of a duly authorized issue of
Certificates designated as Mortgage Pass-Through Certificates of the Series
specified on the face hereof (hereinafter called the "Certificates") and
representing a Percentage Interest in the Class of Certificates specified on the
face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the related Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Collection Account and the Distribution Account
may be made from time to time for purposes other than distributions to Holders
of the Certificates, such purposes including reimbursement of advances made, or
certain expenses incurred, with respect to the related Mortgage Loans.
The Agreement permits, with certain exceptions and conditions
provided therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer and the Trustee and the rights
of the Holders of the Certificates under the Agreement at any time by the
Depositor, the Master Servicer and the Trustee, with the consent of the Holders
of Certificates evidencing Percentage Interests aggregating not less than 51% of
the Trust Fund or of the applicable Class or Classes, if such amendment affects
only such Class or Classes, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Certificateholders. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations set forth therein, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices or agencies appointed by the Trustee as provided in
the Agreement, duly endorsed by, or accompanied by an assignment in the form
below or other written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in
A-3-4
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only
without coupons in Classes and denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Class [R-_]
Certificate shall be made unless such disposition is exempt from the
registration requirements of the Securities Act of 1933, as amended (the "1933
Act"), and any applicable state securities laws or is made in accordance with
the 1933 Act and laws. In the event of any such transfer, made in reliance upon
an exemption from the 1933 Act, (i) the Trustee and the Depositor shall require
(a) the transferor to certify in writing the facts surrounding the transfer (in
substantially the form attached to the Agreement as Exhibit E-2), and the
transferee to execute an investment letter (in substantially the form attached
to the Agreement as Exhibit E-1) and (b) a written Opinion of Counsel (which may
be in-house counsel) acceptable to and in form and substance reasonably
satisfactory to the Trustee and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall not be an expense of the Trustee or the Depositor. The
Holder of this Class [R-_] Certificate desiring to effect such transfer shall,
and does hereby agree to, indemnify the Trustee and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any person using Plan Assets to acquire this Certificate
shall be made except in accordance with Section 5.02(d) of the Agreement.
Prior to registration of any transfer, sale or other
disposition of this Certificate, the proposed transferee shall provide to the
Trustee (i) an affidavit to the effect that such transferee is any Person other
than a Disqualified Organization or the agent (including a broker, nominee or
middleman) of a Disqualified Organization, and (ii) a certificate that
acknowledges that (A) the Class [R-_] Certificates have been designated as a
residual interest in a REMIC, (B) it will include in its income a PRO RATA share
of the net income of the Trust Fund and that such income may be an "excess
inclusion," as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects to
have the financial means to satisfy all of its tax obligations including those
relating to holding the Class [R-_] Certificates. Notwithstanding the
registration in the Certificate Register of any transfer, sale or other
disposition of this Certificate to a Disqualified Organization or an agent
(including a broker, nominee or middleman) of a Disqualified Organization, such
registration shall be deemed to be of no legal force or effect whatsoever and
such Person shall not be deemed to be a Certificateholder for any purpose,
including, but not limited to, the receipt of distributions in respect of this
Certificate.
A-3-5
The Holder of this Certificate, by its acceptance hereof,
shall be deemed to have consented to the provisions of Section 5.02 of the
Agreement and to any amendment of the Agreement deemed necessary by counsel of
the Depositor to ensure that the transfer of this Certificate to any Person
other than a Permitted Transferee or any other Person will not cause REMIC [_]
to cease to qualify as a REMIC or cause the imposition of a tax upon REMIC [_].
No service charge will be made for any such registration of
transfer or exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and the
Certificate Registrar and any agent of the Depositor, the Master Servicer, the
Trustee or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Depositor, the Master Servicer, the Trustee, the Certificate Registrar nor any
such agent shall be affected by notice to the contrary.
This certificate shall be governed by and construed in
accordance with the laws of the state of New York.
The obligations created by the Agreement and the Trust Fund
created thereby shall terminate upon payment (or provision for payment) to the
Holders of the Certificates of all amounts held by or on behalf of the Trustee
and required to be paid to them pursuant to the Agreement following the earlier
of (i) the final payment (or any advance with respect thereto) on or other
liquidation of the last Mortgage Loan remaining in the Trust Fund and (ii) the
optional purchase by the party designated in the Agreement at a price determined
as provided in the Agreement from the Trust Fund of all the Mortgage Loans and
all property acquired in respect of such Mortgage Loans remaining therein. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all the Mortgage Loans and all property acquired
in respect of any Mortgage Loan remaining therein at a price determined as
provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Loan Balance of the Mortgage Loans at the time of purchase being
less than 1% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date.
The recitals contained herein shall be taken as statements of
the Depositor and the Trustee assumes no responsibility for their correctness.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
A-3-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: ____ __, 2004
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: ____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class [R-__] Certificates referred to in
the within-mentioned Agreement.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: _____________________________________
Authorized Signatory
ABBREVIATIONS
-------------
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
-------------------
(Cust) (Minor)
under Uniform Gifts
to Minors Act
-------------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and
Taxpayer Identification Number of assignee)
the Percentage Interest evidenced by the Mortgage Pass-Through Certificate and
hereby authorize(s) the registration of transfer of such interest to assignee on
the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Certificate of a like Percentage Interest and Class to the above named assignee
and deliver such Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
for the account of ________________________, account number _________________,
or, if mailed by check, to ________________________________. Applicable
statements should be mailed to ___________________________________________.
This information is provided by ______________________________________,
the assignee named above, or __________________________, as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
[Provided Upon Request]
B-1
EXHIBIT C
[RESERVED]
C-1
EXHIBIT D
REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx Fargo Bank, National Association
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx Xxxxxxxxx 00000
Attn: ______________________
Re: Custodial Agreement dated as of _________, among
_________________, _____, and Xxxxx Fargo Bank, National
Association, as Custodian
In connection with the administration of the Mortgage Loans held by you
as Custodian for the Owner pursuant to the above-captioned Custody Agreement, we
request the release, and hereby acknowledge receipt, of the Custodian's Mortgage
File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
1. Mortgage Paid in full
-----------------
2. Foreclosure
-----------------
3. Substitution
-----------------
4. Other Liquidation (Repurchases, etc.)
-----------------
5. Nonliquidation Reason:____________________
-----------------
By:
------------------------
(authorized singer)
Issuer: ___________________
Address:___________________
Date: ___________________
D-1
Custodian
---------
Xxxxx Fargo Bank, National Association
Please acknowledge the execution of the above request by your signature and date
below:
Please acknowledge the execution of the above request by your signature and date
below:
------------------------- --------------------
Signature Date
Documents returned to Custodian:
------------------------- --------------------
Custodian Date
D-2
EXHIBIT E-1
FORM OF TRANSFER AFFIDAVIT
Affidavit pursuant to Section
860E(e)(4) of the Internal
Revenue Code of 1986, as
amended, and for other purposes
STATE OF )
)ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Investor] (the
"Investor"), a [savings institution] [corporation] duly organized and existing
under the laws of [the State of _____] [the United States], on behalf of which
he makes this affidavit.
2. That (i) the Investor is not a "disqualified organization" as
defined in Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the "Code"), and will not be a disqualified organization as of [Closing Date]
[date of purchase]; (ii) it is not acquiring the Xxxxxxx Xxxxx Mortgage
Investors, Inc. Mortgage Pass-Through Certificates, MLMI Series 2004-A2, Class
R-__ Certificates (the "Residual Certificates") for the account of a
disqualified organization; (iii) it consents to any amendment of the Pooling and
Servicing Agreement that shall be deemed necessary by Xxxxxxx Xxxxx Mortgage
Investors, Inc. (upon advice of counsel) to constitute a reasonable arrangement
to ensure that the Residual Certificates will not be owned directly or
indirectly by a disqualified organization; and (iv) it will not transfer such
Residual Certificates unless (a) it has received from the transferee an
affidavit in substantially the same form as this affidavit containing these same
four representations and (b) as of the time of the transfer, it does not have
actual knowledge that such affidavit is false.
3. That the Investor is one of the following: (i) a citizen or resident
of the United States, (ii) a corporation or partnership (including an entity
treated as a corporation or partnership for federal income tax purposes) created
or organized in, or under the laws of, the United States or any state thereof or
the District of Columbia (except, in the case of a partnership, to the extent
provided in regulations), provided that no partnership or other entity treated
as a partnership for United States federal income tax purposes shall be treated
as a United States Person unless all persons that own an interest in such
partnership either directly or through any entity that is not a corporation for
United States federal income tax purposes are United States Persons, (iii) an
estate whose income is subject to United States federal income tax regardless of
its source, or (iv) a trust other than a "foreign trust," as defined in Section
7701 (a)(31) of the Code.
4. That the Investor's taxpayer identification number is
______________________.
E-1-1
5. That no purpose of the acquisition of the Residual Certificates is
to avoid or impede the assessment or collection of tax.
6. That the Investor understands that, as the holder of the Residual
Certificates, the Investor may incur tax liabilities in excess of any cash flows
generated by such Residual Certificates.
7. That the Investor intends to pay taxes associated with holding the
Residual Certificates as they become due.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[Title of Officer] this ____ day of _________, 20__.
[NAME OF INVESTOR]
By: ____________________________________
[Name of Officer]
[Title of Officer]
[Address of Investor for receipt of
distributions]
Address of Investor for receipt of
tax information:
E-1-2
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE
__________ , 20__
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Trustee]
Attention: Xxxxxxx Xxxxx Mortgage Investors, Inc, Series _______
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, MLMI Series 2004-A2, Class [ _]
-------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Seller") to _____________________(the "Purchaser")
of $______________ Initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, MLMI Series ________, Class R[-__] (the
"Certificates"), pursuant to Section 5.02 of the Pooling and Servicing
Agreement, dated as of August 1, 2004 among Xxxxxxx Xxxxx Mortgage Investors,
Inc., (the "Depositor"), Xxxxx Fargo Bank, National Association as master
servicer (in such capacity, the "Master Servicer") and securities administrator
(in such capacity, the "Securities Administrator"), and Wachovia Bank, National
Association, as trustee (the "Trustee"). All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Seller hereby certifies, represents and warrants to, and
covenants with, the Company and the Trustee that:
1. No purpose of the Seller relating to the transfer of the Certificate
by the Seller to the Purchaser is or will be to impede the assessment or
collection of any tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee and the Master Servicer a transfer affidavit and agreement in the form
attached to the Pooling and Servicing Agreement as Exhibit E-1. The Seller does
not know or believe that any representation contained therein is false.
3. The Seller has at the time of the transfer conducted a reasonable
investigation of the financial condition of the Purchaser as contemplated by
Treasury Regulations Section 1.860E- 1(c)(4)(i) and, as a result of that
investigation, the Seller has determined that the Purchaser has historically
paid its debts as they become due and has found no significant evidence to
indicate that the Purchaser will not continue to pay its debts as they become
due in the future. The Seller understands that the transfer of a Class R[-__]
Certificate may not be respected for United States income tax purposes (and the
Seller may continue to be liable for
X-0-0
Xxxxxx Xxxxxx income taxes Associated therewith) unless the Seller has conducted
such an investigation.
4. The Seller has no actual knowledge that the proposed Transferee is
not both a United States Person and a Permitted Transferee.
Very truly yours,
------------------------------------------
(Seller)
By:_______________________________________
Name:
Title:
E-2-2
EXHIBIT F-1
FORM OF TRANSFEROR REPRESENTATION LETTER
______________,200___
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, MLMI Series 2004-A2, Class [ _]
-------------------------------------------------------------
Ladies and Gentlemen:
In connection with the sale by ___________ (the "Seller") to ________
(the "Purchaser") of $_________ Initial Certificate Principal Balance of
Mortgage Pass-Through Certificates, Series 2004-A2, Class _____ (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of August 1, 2004 among Xxxxxxx
Xxxxx Mortgage Investors, Inc., (the "Depositor"), Xxxxx Fargo Bank, National
Association as master servicer (in such capacity, the "Master Servicer") and
securities administrator (in such capacity, the "Securities Administrator"), and
Wachovia Bank, National Association, as trustee (the "Trustee"). The Seller
hereby certifies, represents and warrants to, and covenants with, the Depositor
and the Trustee that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act in any
manner set forth in the foregoing sentence with respect to any Certificate. The
Seller has not and will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Pooling and Servicing Agreement.
F-1-1
Very truly yours,
_______________________________
(Seller)
By:____________________________
Name:__________________________
Title:_________________________
F-1-2
EXHIBIT F-2
FORM OF INVESTOR REPRESENTATION LETTER (NON-RULE 144A)
__________, 200__
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, MLMI Series 2004-A2, Class [R-_]
-------------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (The "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
institutional "accredited investor," as defined in Regulation D under the Act,
and have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or a plan or arrangement that is subject to Section
4975 of the Internal Revenue Code of 1986, as amended ("Code"), nor are we
acting on behalf of any such plan or arrangement nor are we using the assets of
any such plan or arrangement to effect such acquisition or (ii) the proposed
transfer and holding of such a Certificate and the servicing, management and
operation of the Trust: (I) will not result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code which is not covered under an
individual or class prohibited transaction exemption including but not limited
to Department of Labor Prohibited Transaction Class Exemption ("PTCE") 84-14
(Class Exemption for Plan Asset Transactions Determined by Independent Qualified
Professional Asset Managers); PTCE 91-38 (Class Exemption for Certain
Transactions Involving Bank Collective Investment Funds); PTCE 90-1 (Class
Exemption for Certain Transactions Involving Insurance Company Pooled Separate
Accounts), PTCE 95-60 (Class Exemption for Certain Transactions Involving
Insurance Company General Accounts), and PTCE 96-23 (Class Exemption for Plan
Asset Transactions Determined by In-House Asset Managers) and (II) will not
subject the Depositor, the Servicer, the Master Servicer, the Securities
Administrator or the Trustee to any obligation in addition to those undertaken
in the Agreement, (e) we are acquiring the Certificates for investment for our
own account and not with a view to any distribution of
F-2-1
such Certificates (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificates in accordance with clause (g) below), (f)
we have not offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, or taken any other action which would result in a
violation of Section 5 of the Act, and (g) we will not sell, transfer or
otherwise dispose of any Certificates unless (1) such sale, transfer or other
disposition is made pursuant to an effective registration statement under the
Act or is exempt from such registration requirements, and if requested, we will
at our expense provide an opinion of counsel satisfactory to the addressees of
this Certificate that such sale, transfer or other disposition may be made
pursuant to an exemption from the Act, (2) The purchaser or transferee of such
Certificate has executed and delivered to you a certificate to substantially the
same effect as this certificate, and (3) The purchaser or transferee has
otherwise complied with any conditions for transfer set forth in the Pooling and
Servicing Agreement.
Very truly yours,
----------------------------------
Print Name of Transferee
By: ______________________________
Authorized Officer
F-2-2
EXHIBIT F-3
FORM OF RULE 144A LETTER
____________, 200__
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, MLMI Series 2004-A2, Class [R-_]
-------------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (The "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either we are not an employee benefit plan that
is subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended ("Code"), nor are we acting on behalf
of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such acquisition or the proposed transfer and holding of
such a Certificate and the servicing, management and operation of the Trust: (I)
will not result in a prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code which is not covered under an individual or class
prohibited transaction exemption including but not limited to Department of
Labor Prohibited Transaction Class Exemption ("PTCE") 84-14 (Class Exemption for
Plan Asset Transactions Determined by Independent Qualified Professional Asset
Managers); PTCE 91-38 (Class Exemption for Certain Transactions Involving Bank
Collective Investment Funds); PTCE 90-1 (Class Exemption for Certain
Transactions Involving Insurance Company Pooled Separate Accounts), PTCE 95-60
(Class Exemption for Certain Transactions Involving Insurance Company General
Accounts), and PTCE 96-23 (Class Exemption for Plan Asset Transactions
Determined by In-House Asset Managers) and (II) will not subject the Depositor,
the Servicer, the Master Servicer, the Securities Administrator or the Trustee
to any obligation in addition to those undertaken in the Agreement, (e) we have
not, nor has anyone acting on our behalf offered, transferred, pledged, sold or
otherwise disposed of the Certificates, any interest in the Certificates or any
other similar security to, or solicited any offer to buy or
F-3-1
accept a transfer, pledge or other disposition of the Certificates, any interest
in the Certificates or any other similar security from, or otherwise approached
or negotiated with respect to the Certificates, any interest in the Certificates
or any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the Certificates
under the Act or that would render the disposition of the Certificates a
violation of Section 5 of the Act or require registration pursuant thereto, nor
will act, nor has authorized or will authorize any person to act, in such manner
with respect to the Certificates, (f) we are a "qualified institutional buyer"
as that term is defined in Rule 144A under the Act ("Rule 144A") and have
completed either of the forms of certification to that effect attached hereto as
Annex 1 or Annex 2, (g) we are aware that the sale to us is being made in
reliance on Rule 144A, and (h) we are acquiring the Certificates for our own
account or for resale pursuant to Rule 144A and further, understand that such
Certificates may be resold, pledged or transferred only (A) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (B) pursuant to another exemption from registration under the Act.
Very truly yours,
-----------------------------------------
Print Name of Transferee
By:______________________________________
Authorized Officer
F-3-2
ANNEX I TO EXHIBIT F-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (The "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, The undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, The Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because (i) The Buyer owned and/or
invested on a discretionary basis $___________1 in securities (except for the 1
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A and (ii)
The Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, The business of which is substantially confined to banking
and is supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is attached
hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association
or similar institution, which is supervised and examined by a State or
Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose primary
and predominant business activity is the writing of insurance or the
reinsuring of risks
----------
1 Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case,
Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
Ax.I to F-2-1
underwritten by insurance companies and which is subject to supervision
by the insurance commissioner or a similar official or agency of a
State, territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained
by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Buyer is an investment advisor registered
under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small Business Investment Act of
1958.
___ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisors Act
of 1940.
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part of
an unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) securities issued or guaranteed by the U.S. or any instrumentality
thereof, (iv) bank deposit notes and certificates of deposit, (v) loan
participations, (vi) repurchase agreements, (vii) securities owned but subject
to a repurchase agreement and (viii) currency, interest rate and commodity
swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, The Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
The securities may be valued at market. Further, in determining such aggregate
amount, The Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
Ax.I to F-2-2
6. Until the date of purchase of the Rule 144A Securities, The Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
The Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, The Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
-------------------------------------
Print Name of Buyer
By:__________________________________
Name:
Title:
Date:________________________________
Ax.I to F-2-3
ANNEX II TO EXHIBIT F-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (The "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, The undersigned is the President, Chief Financial Officer
or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, The Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) The Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, The Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, The cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, The securities may be valued at market.
___ The Buyer owned $ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which owned
in the aggregate $ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of
Investment Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
Ax II to F-2-1
5. The Buyer is familiar with Rule 144A and understands that the parties listed
in the Rule 144A Transferee Certificate to which this certification relates are
relying and will continue to rely on the statements made herein because one or
more sales to the Buyer will be in reliance on Rule 144A. In addition, The Buyer
will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, The undersigned will notify
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions herein.
Until such notice is given, The Buyer's purchase of the Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
-----------------------------------------
Print Name of Buyer or Adviser
By:______________________________________
Name:
Title:
IF AN ADVISER:
------------------------------------------
Print Name of Buyer
Date:_____________________________________
Ax II to F-2-2
EXHIBIT G
CUSTODIAL AGREEMENT
-------------------
THIS CUSTODIAL AGREEMENT (as amended and supplemented from
time to time, the "Agreement'), dated as of August 30, 2004, by and among
WACHOVIA BANK, NATIONAL ASSOCIATION, as trustee (including its successors under
the Pooling and Servicing Agreement defined below, the "Trustee"), XXXXXXX XXXXX
MORTGAGE INVESTORS, INC., as company (together with any successor in interest,
the "Company"), XXXXX FARGO BANK, NATIONAL ASSOCIATION, as master servicer and
securities administrator (together with any successor in interest or successor
under the Pooling and Servicing Agreement referred to below, the "Master
Servicer") and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as custodian (together
with any successor in interest or any successor appointed hereunder, the
"Custodian").
WITNESSETH THAT:
---------------
WHEREAS, the Company, the Master Servicer and the Trustee have
entered into a Pooling and Servicing Agreement, dated as of August 1, 2004,
relating to the issuance of Mortgage Pass-Through Certificates, MLMI Series
2004-A2 (as in effect on the date of this agreement, the "Original Pooling and
Servicing Agreement," and as amended and supplemented from time to time, the
"Pooling and Servicing Agreement"); and
WHEREAS, the Custodian has agreed to act as agent for the
Trustee for the purposes of receiving and holding certain documents and other
instruments delivered by the Company or the Master Servicer under the Pooling
and Servicing Agreement and the Servicers under their respective Servicing
Agreements, all upon the terms and conditions and subject to the limitations
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter set forth, the Trustee, the Company,
the Master Servicer and the Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement and not defined
herein shall have the meanings assigned in the Original Pooling and Servicing
Agreement, unless otherwise required by the context herein.
ARTICLE II
CUSTODY OF MORTGAGE
DOCUMENTS
Section 2.1 Custodian to Act as Agent: Acceptance of Mortgage
Files. The Custodian, as the duly appointed agent of the Trustee for these
purposes, acknowledges (subject to any exceptions noted in the Initial
Certification referred to in Section 2.3(a) receipt of the Mortgage Files
relating to the Mortgage Loans identified on the schedule attached hereto (the
G-1
"Mortgage Files") and declares that it holds and will hold such Mortgage Files
as agent for the Trustee, in trust, for the use and benefit of all present and
future Certificateholders.
Section 2.2 Recordation of Assignments. If any Mortgage File
includes one or more assignments of Mortgage to the Trustee in a state which is
specifically excluded from the Opinion of Counsel delivered by the Seller to the
Trustee (with a copy to the Custodian) pursuant to the provisions of Section
2.01 of the Pooling and Servicing Agreement, the Custodian shall deliver each
such assignment to the Company for the purpose of recording it in the
appropriate public office for real property records, and the Company, at no
expense to the Custodian, shall promptly cause to be recorded in the appropriate
public office for real property records each such assignment of Mortgage and,
upon receipt thereof from such public office, shall return each such assignment
of Mortgage to the Custodian.
Section 2.3 Review of Mortgage Files.
(a) On or prior to the Closing Date, the Custodian agrees, for
the benefit of Certificateholders, to review, in accordance with the provisions
of Section 2.02 of the Pooling and Servicing Agreement, each such document, and
shall deliver to the Trustee an Initial Certification in the form annexed hereto
as Exhibit One evidencing receipt (subject to any exceptions noted therein) of a
Mortgage File for each of the Mortgage Loans listed on the Schedule attached
hereto (the "Mortgage Loan Schedule") and certifying that all such documents
have been executed and received and that such documents relate to the Mortgage
Loans identified on the Mortgage Loan Schedule, except for any exceptions listed
on Schedule A attached to such Initial Certification. The Custodian shall be
under no duty or obligation to inspect, review or examine said documents,
instruments, certificates or other papers to determine that the same are
genuine, enforceable, or appropriate for the represented purpose or that they
have actually been recorded or that they are other than what they purport to be
on their face.
(b) Not later than 180 days after the Closing Date, the
Custodian shall review the Mortgage Files as provided in Section 2.02 of the
Pooling and Servicing Agreement and deliver to the Trustee a Final Certification
in the form annexed hereto as Exhibit Two evidencing the completeness of the
Mortgage Files (subject to any exceptions noted therein).
(c) In reviewing the Mortgage Files as provided herein and in
the Pooling and Servicing Agreement, the Custodian shall make no representation
as to and shall not be responsible to verify (i) the validity, legality,
enforceability, due authorization, recordability, sufficiency or genuineness of
any of the documents included in any Mortgage File or (ii) the collectibility,
insurability, effectiveness or suitability of any of the documents in any
Mortgage File.
Upon receipt of written request from the Trustee, the
Custodian shall as soon as practicable supply the Trustee with a list of all of
the documents relating to the Mortgage Loans then contained in the Mortgage
Files.
Section 2.4 Notification of Breaches of Representations and
Warranties. Upon discovery by the Custodian of a breach of any representation or
warranty made by the Company as set forth in the Pooling and Servicing Agreement
with respect to a Mortgage Loan relating to a
G-2
Mortgage File, the Custodian shall give prompt written notice to the Company,
the related Servicer and the Trustee.
Section 2.5 Custodian to Cooperate: Release of Mortgage Files.
Upon receipt of written notice from the Master Servicer that the Mortgage Loan
Seller has repurchased a Mortgage Loan pursuant to Article II of the Pooling and
Servicing Agreement, and that the purchase price therefore has been deposited in
the Master Servicer Collection Account or the Distribution Account, then the
Custodian agrees to promptly release to the Mortgage Loan Seller the related
Mortgage File.
Upon the Custodian's receipt of a request for release (a
"Request for Release") substantially in the form of Exhibit D to the Pooling and
Servicing Agreement signed by a Servicing Officer of the related Servicer
stating that it has received payment in full of a Mortgage Loan or that payment
in full will be escrowed in a manner customary for such purposes, the Custodian
agrees promptly to release to the related Servicer the related Mortgage File.
The Company shall deliver to the Custodian and the Custodian agrees to accept
the Mortgage Note and other documents constituting the Mortgage File with
respect to any Substitute Mortgage Loan.
From time to time as is appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any Primary Insurance Policy, the related Servicer shall deliver to the
Custodian a Request for Release signed by a Servicing Officer requesting that
possession of all of the Mortgage File be released to the related Servicer and
certifying as to the reason for such release and that such release will not
invalidate any insurance coverage provided in respect of the Mortgage Loan under
any of the Insurance Policies. Upon receipt of the foregoing, the Custodian
shall deliver the Mortgage File to the related Servicer. The related Servicer
shall cause each Mortgage File or any document therein so released to be
returned to the Custodian when the need therefore by the related Servicer no
longer exists, unless (i) the Mortgage Loan has been liquidated and the
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Master Servicer Collection Account or the Distribution Account or (ii) the
Mortgage File or such document has been delivered to an attorney, or to a public
trustee or other public official as required by law, for purposes of initiating
or pursuing legal action or other proceedings for the foreclosure of the
Mortgaged Property either judicially or non-judicially, and the related Servicer
has delivered to the Custodian a certificate of a Servicing Officer certifying
as to the name and address of the Person to which such Mortgage File or such
document was delivered and the purpose or purposes of such delivery.
At any time that a Servicer is required to deliver to the
Custodian a Request for Release, the Servicer shall deliver two copies of the
Request for Release if delivered in hard copy or the Servicer may furnish such
Request for Release electronically to the Custodian, in which event the
Servicing Officer transmitting the same shall be deemed to have signed the
Request for Release. In connection with any Request for Release of a Mortgage
File because of a repurchase of a Mortgage Loan, the Serviced shall send to the
Trustee an assignment of mortgage, without recourse, representation or warranty
from the Trustee to the Mortgage Loan Seller and the related Mortgage Note which
shall be endorsed without recourse, representation or warranty by the Trustee
and the Trustee shall forward such documents to the Mortgage Loan
G-3
Seller. In connection with any Request for Release of a Mortgage File because of
the payment in full of a Mortgage Loan, the Serviced shall send to the Trustee a
certificate of satisfaction or other similar instrument to be executed by or on
behalf of the Trustee and returned to the related Servicer.
Section 2.6 Assumption Agreements. In the event that any
assumption agreement or substitution of liability agreement is entered into with
respect to any Mortgage Loan subject to this Agreement in accordance with the
terms and provisions of the Pooling and Servicing Agreement, the Master
Servicer, to the extent provided in the related Servicing Agreement, shall cause
the related Servicer to notify the Custodian that such assumption or
substitution agreement has been completed by forwarding to the Custodian the
original of such assumption or substitution agreement, which shall be added to
the related Mortgage File and, for all purposes, shall be considered a part of
such Mortgage File to the same extent as all other documents and instruments
constituting parts thereof.
ARTICLE III
CONCERNING THE CUSTODIAN
Section 3.1 Custodian a Bailee and Agent of the Trustee. With
respect to each Mortgage Note, Mortgage and other documents constituting each
Mortgage File which are delivered to the Custodian, the Custodian is exclusively
the bailee and agent of the Trustee and has no instructions to hold any Mortgage
Note or Mortgage for the benefit of any person other than the Trustee and the
Certificateholders and undertakes to perform such duties and only such duties as
are specifically set forth in this Agreement. Except upon compliance with the
provisions of Section 2.5 of this Agreement, no Mortgage Note, Mortgage or
Mortgage File shall be delivered by the Custodian to the Company, the Servicers
or the Master Servicer or otherwise released from the possession of the
Custodian.
Section 3.2 Reserved.
Section 3.3 Custodian May Own Certificates. The Custodian in
its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not Custodian.
Section 3.4 Master Servicer to Pay Custodian's Fees and
Expenses. The Master Servicer covenants and agrees to pay to the Custodian from
time to time, and the Custodian shall be entitled to, reasonable compensation
for all services rendered by it in the exercise and performance of any of the
powers and duties hereunder of the Custodian, and the Master Servicer will pay
or reimburse the Custodian upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Custodian in accordance with
any of the provisions of this Agreement (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ), except any such expense, disbursement or advance as
may arise from its negligence or bad faith or to the extent that such cost or
expense is indemnified by the Company pursuant to the Pooling and Servicing
Agreement.
G-4
Section 3.5 Custodian May Resign; Trustee May Remove
Custodian. The Custodian may resign from the obligations and duties hereby
imposed upon it as such obligations and duties relate to its acting as Custodian
of the Mortgage Loans. Upon receiving such notice of resignation, the Trustee
shall either take custody of the Mortgage Files itself and give prompt notice
thereof to the Company, the Master Servicer and the Custodian, or promptly
appoint a successor Custodian by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Custodian and one copy to
the successor Custodian. If the Trustee shall not have taken custody of the
Mortgage Files and no successor Custodian shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Custodian may petition any court of competent
jurisdiction for the appointment of a successor Custodian.
The Trustee may remove the Custodian at any time with the
consent of the Master Servicer. In such event, the Trustee shall appoint, or
petition a court of competent jurisdiction to appoint, a successor Custodian
hereunder. Any successor Custodian shall be a depository institution subject to
supervision or examination by federal or state authority, shall be able to
satisfy the other requirements contained in Section 3.7 and shall be
unaffiliated with the Servicer or the Company.
Any resignation or removal of the Custodian and appointment of
a successor Custodian pursuant to any of the provisions of this Section 3.5
shall become effective upon acceptance of appointment by the successor
Custodian. The Trustee shall give prompt notice to the Company and the Master
Servicer of the appointment of any successor Custodian. No successor Custodian
shall be appointed by the Trustee without the prior approval of the Company and
the Master Servicer.
Section 3.6. Merger or Consolidation of Custodian. Any Person
into which the Custodian may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any Person succeeding
to the business of the Custodian, shall be the successor of the Custodian
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 3.7. Representations of the Custodian. The Custodian
hereby represents that it is a depository institution subject to supervision or
examination by a federal or state authority, has a combined capital and surplus
of at least $15,000,000 and is qualified to do business in the jurisdictions in
which it will hold any Mortgage File.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.1 Notices. All notices, requests, consents and
demands and other communications required under this Agreement or pursuant to
any other instrument or document delivered hereunder shall be in writing and,
unless otherwise specifically provided, may be delivered personally, by telegram
or telex, or by registered or certified mail, postage prepaid, return receipt
requested, at the addresses specified on the signature page hereof (unless
changed by
G-5
the particular party whose address is stated herein by similar notice in
writing), in which case the notice will be deemed delivered when received.
Section 4.2 Amendments. No modification or amendment of or
supplement to this Agreement shall be valid or effective unless the same is in
writing and signed by all parties hereto, and neither the Company, the Master
Servicer nor the Trustee shall enter into any amendment hereof except as
permitted by the Pooling and Servicing Agreement. The Trustee shall give prompt
notice to the Custodian of any amendment or supplement to the Pooling and
Servicing Agreement and furnish the Custodian with written copies thereof.
Section 4.3 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 4.4 Recordation of Agreement. To the extent permitted
by applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Company and at the Trust's expense on
direction by the Trustee, but only upon direction accompanied by an Opinion of
Counsel reasonably satisfactory to the Company to the effect that the failure to
effect such recordation is likely to materially and adversely affect the
interests of the Certificateholders.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 4.5 Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
G-6
IN WITNESS WHEREOF, this Agreement is executed as of the date
first above written.
Address: WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 By:_________________________________________
Name:
Attention: Title:
Telecopy:
Confirmation:
Address: XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 By:_________________________________________
Name:
Title:
Address: XXXXX FARGO BANK,
NATIONAL ASSOCIATION, as Master Servicer
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
By:_________________________________________
Name:
Title:
Address: XXXXX FARGO BANK,
NATIONAL ASSOCIATION, as Custodian
0000 00xx Xxxxxx Xxxxxxxxx, XX 0031
Xxxxxxxxxxx, XX 00000 By:_________________________________________
Name:
Title:
STATE OF NEW YORK )
)ss:
COUNTY OF NEW YORK )
On the __ day of August 2004 before me, a notary public in and
for said State, personally appeared __________________________________________,
known to me to be an ________________________ of Wachovia Bank, National
Association, a national banking association that executed the within instrument,
and also known to me to be the person who executed it on behalf of said national
banking association, and acknowledged to me that such national banking
association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-------------------------------------------
Notary Public
[SEAL]
STATE OF NEW YORK )
)ss:
COUNTY OF NEW YORK )
On the ___ day of August 2004 before me, a notary public in
and for said State, personally appeared
__________________________________________, known to me to be a
______________________ of Xxxxxxx Xxxxx Mortgage Investors, Inc., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-------------------------------------------
Notary Public
[Notarial Seal]
STATE OF MARYLAND )
)ss:
COUNTY OF XXXXXX )
On the ___ day of August 2004 before me, a notary public in
and for said State, personally appeared
__________________________________________, known to me to be an
_________________________ of Xxxxx Fargo Bank, National Association, a national
banking association that executed the within instrument, and also known to me to
be the person who executed it on behalf of said national banking association,
and acknowledged to me that such national banking association executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-------------------------------------------
Notary Public
[SEAL]
STATE OF MINNESOTA )
)ss:
COUNTY OF HENNEPIN )
On the ___ day of August 2004 before me, a notary public in
and for said State, personally appeared
__________________________________________, known to me to be an
____________________ of Xxxxx Fargo Bank, National Association, one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-------------------------------------------
Notary Public
[Notarial Seal]
EXHIBIT ONE
FORM OF CUSTODIAN INITIAL CERTIFICATION
__________, 20__
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: Pooling and Servicing Agreement, dated as of August 1, 2004,
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor,
Xxxxx Fargo Bank, National Association, as master servicer and
securities administrator, and Wachovia Bank, National
Association, as trustee, Mortgage Pass-Through Certificates,
Series 2004-A2
--------------------------------------------------------------
Ladies and Gentlemen:
Attached is the Custodian's preliminary exception report delivered in
accordance with Section 2.02 of the referenced Pooling and Servicing Agreement
(The "Pooling and Servicing Agreement"). Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Custodian makes no representations as to
(i) the validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, isnurability,
effectiveness or suitability for any such Mortgage Loan or (iii) the existence
of any assumption, modification, written assurance, or substitution agreement,
with respect to any Mortgage File if no such documents appear in the Mortgage
File delivered to the Custodian.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Custodian
By:_________________________________
Name:
Title:
EXHIBIT TWO
FORM OF CUSTODIAN FINAL CERTIFICATION
____________, 2004
Xxxxxxx Xxxxx Mortgage Investors, Inc.
World Financial Center--North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx XxXxx
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: Pooling and Servicing Agreement, dated as of August 1, 2004,
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor,
Xxxxx Fargo Bank, National Association, as master servicer and
securities administrator and Wachovia Bank, National
Association, as trustee, Mortgage Pass-Through Certificates,
Series 2004-A2
--------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, hereby certifies that, except as noted on
the Schedule of Exceptions attached hereto, for each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attachment hereto), it has received a complete Mortgage File which includes
the documents required to be included in the Mortgage File as set forth in the
Pooling and Servicing Agreement.
The undersigned has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The undersigned makes no
representation as to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any documents contained in any Mortgage File for any of the
Mortgage Loans listed on the Mortgage Loan Schedule to the Pooling and Servicing
Agreement, (ii) the collectability, insurability, effectiveness or suitability
of any such Mortgage Loan or (iii) whether any Mortgage File should include any
flood insurance policy, any rider, addends, surety or guaranty agreement, power
of attorney, buy down agreement, assumption agreement, modification agreement,
written assurance or substitution agreement.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
XXXXX FARGO BANK,
NATIONAL ASSOCIATION, as Custodian
By:_______________________________
Name:
REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx Fargo Bank, National Association
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: MLMI 2004-A2
Re: Custodial Agreement dated as of August 1, 2004, among Wachovia
Bank, National Association, as Trustee, Xxxxxxx Xxxxx Mortgage
Investors, Inc., as Company, Xxxxx Fargo Bank, National
Association, as Master Servicer and Securities Administrator,
and Xxxxx Fargo Bank, National Association, as Custodian
In connection with the administration of the Mortgage Loans held by you
as Custodian for the Owner pursuant to the above-captioned Custody Agreement, we
request the release, and hereby acknowledge receipt, of the Custodian's Mortgage
File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
________ 1. Mortgage Paid in full
________ 2. Foreclosure
________ 3. Substitution
________ 4. Other Liquidation (Repurchases, etc.)
________ 5. Nonliquidation Reason:_____________________
By:
(authorized singer)
Issuer:____________________
Address:___________________
___________________
Date: ____________________
Custodian
---------
Xxxxx Fargo Bank, National Association
Please acknowledge the execution of the above request by your signature and date
below:
------------------------- --------------------
Signature Date
Documents returned to Custodian:
------------------------- --------------------
Custodian Date
EXHIBIT H-1
SERVICING AGREEMENT
NATIONAL CITY MORTGAGE CO
H-1-1
EXHIBIT I
ASSIGNMENT AGREEMENT
(See Tabs [_____])
I-1
EXHIBIT J
MORTGAGE LOAN PURCHASE AGREEMENT
(See Tab [___])
J-1
PAGE>
EXHIBIT K
FORM CERTIFICATION TO BE PROVIDED BY THE MASTER SERVICER
WITH FORM 10-K
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc.
Mortgage Pass-Through Certificates, Series 2004-A2
I, [identify the certifying individual], certify that:
l. I have reviewed this annual report on Form 10-K, and all
reports on Form 8-K containing distribution or servicing reports filed in
respect of periods included in the year covered by this annual report, of
Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Registrant");
2. Based on my knowledge, the information in these reports,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required
to be provided to the Trustee by the Master Servicer under the Pooling and
Servicing Agreement for inclusion in these reports is included in these reports;
4. I am responsible for reviewing the activities performed by
the Servicer under the Servicing Agreement and based upon my knowledge and the
annual compliance review required under the Servicing Agreement, and except as
disclosed in the reports, the Servicer has fulfilled its obligations under the
Servicing Agreement; and
5. The reports disclose all significant deficiencies relating
to the Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
or similar standard as set forth in the Servicing Agreement that is included in
these reports.
In giving the certifications above, I have reasonably relied
on information provided to me by the following unaffiliated parties:
----------------------------
----------------------------
----------------------------
K-1
Capitalized terms used but not defined herein have the
meanings ascribed to them in Pooling and Servicing Agreement, dated August 1,
2004, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Xxxxx Fargo
Bank, National Association, as master servicer and securities administrator and
Wachovia Bank, National Association, as trustee.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By:____________________________
Name:
Title:
Date:
K-2
