================================================================================
XXXXXX XXXXXXX ABS CAPITAL I INC.,
as Depositor,
JPMORGAN CHASE BANK, N.A.,
as Master Servicer and Securities Administrator,
SAXON MORTGAGE SERVICES INC.
as Servicer,
COUNTRYWIDE HOME LOANS SERVICING LP,
as Servicer,
IXIS REAL ESTATE CAPITAL INC.,
as Unaffiliated Seller,
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee and Custodian.
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2005
IXIS REAL ESTATE CAPITAL TRUST 2005-HE3
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HE3
================================================================================
TABLE OF CONTENTS
<TABLE>
Page
----
ARTICLE I DEFINITIONS......................................................... 31
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES....... 84
Section 2.01 Conveyance of Mortgage Loans............................... 84
Section 2.02 Acceptance by the Custodian of the Mortgage Loans.......... 91
Section 2.03 Representations, Warranties and Covenants of the
Unaffiliated Seller and the Servicers...................... 92
Section 2.04 The Depositor and the Mortgage Loans....................... 97
Section 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions and Non-Qualified Mortgages.................. 97
Section 2.06 Execution and Delivery of Certificates..................... 98
Section 2.07 REMIC Matters.............................................. 98
Section 2.08 Representations and Warranties of the Depositor............ 98
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS.................... 100
Section 3.01 Servicers to Service Mortgage Loans........................ 100
Section 3.02 Subservicing Agreements Between the Servicers and
Subservicers............................................... 102
Section 3.03 Successor Subservicers..................................... 103
Section 3.04 Liability of the Servicers................................. 103
Section 3.05 No Contractual Relationship Between Subservicers and the
Trustee.................................................... 103
Section 3.06 Assumption or Termination of Subservicing Agreements by
Master Servicer............................................ 104
Section 3.07 Collection of Certain Mortgage Loan Payments; Establishment
of Certain Accounts........................................ 104
Section 3.08 Subservicing Accounts...................................... 108
Section 3.09 Collection of Taxes, Assessments and Similar Items; Escrow
Accounts................................................... 108
Section 3.10 Collection Accounts........................................ 109
Section 3.11 Withdrawals from the Collection Accounts................... 111
Section 3.12 Investment of Funds in the Accounts........................ 112
Section 3.13 Maintenance of Hazard Insurance and Errors and Omissions
and Fidelity Coverage...................................... 114
Section 3.14 Enforcement of Due-On-Sale Clauses Assumption Agreements... 115
Section 3.15 Realization Upon Defaulted Mortgage Loans.................. 116
Section 3.16 Release of Mortgage Files.................................. 118
Section 3.17 Title, Conservation and Disposition of REO Property........ 119
Section 3.18 Notification of Adjustments................................ 121
Section 3.19 Access to Certain Documentation and Information Regarding
the Mortgage Loans......................................... 121
Section 3.20 Documents, Records and Funds in Possession of each Servicer
to be Held for the Securities Administrator................ 121
Section 3.21 Servicing Compensation..................................... 122
Section 3.22 Annual Statement as to Compliance.......................... 122
</TABLE>
i
<TABLE>
Section 3.23 Annual Independent Public Accountants' Servicing Statement;
Financial Statements....................................... 123
Section 3.24 Master Servicer to Act as Servicer......................... 123
Section 3.25 Compensating Interest...................................... 124
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act................... 124
Section 3.27 Advance Facilities......................................... 125
ARTICLE IV DISTRIBUTIONS AND ADVANCES BY THE SERVICERS........................ 126
Section 4.01 Advances................................................... 126
Section 4.02 Priorities of Distribution................................. 128
Section 4.03 Monthly Statements to Certificateholders................... 137
Section 4.04 Certain Matters Relating to the Determination of LIBOR..... 141
Section 4.05 The Class A-1 Certificate Insurance Policy................. 141
Section 4.06 Effect of Payments by the Class A-1 Certificate Insurer;
Subrogation................................................ 143
Section 4.07 Allocation of Applied Realized Loss Amounts................ 144
ARTICLE V THE CERTIFICATES.................................................... 144
Section 5.01 The Certificates........................................... 144
Section 5.02 Certificate Register; Registration of Transfer and Exchange
of Certificates............................................ 145
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.......... 150
Section 5.04 Persons Deemed Owners...................................... 151
Section 5.05 Access to List of Certificateholders' Names and Addresses.. 151
Section 5.06 Maintenance of Office or Agency............................ 151
Section 5.07 Rights of the Class A-1 Class A-1 Certificate Insurer to
Exercise Rights of Class A-1 Certificateholders............ 151
Section 5.08 Securities Administrator To Act Solely with Consent of the
Class A-1 Certificate Insurer.............................. 152
Section 5.09 Mortgage Loans, Trust Fund and Accounts Held for Benefit
of the Class A-1 Certificate Insurer....................... 152
Section 5.10 Class A-1 Certificate Insurer Default...................... 153
ARTICLE VI THE DEPOSITOR AND THE SERVICER..................................... 153
Section 6.01 Respective Liabilities of the Depositor and the Servicers.. 153
Section 6.02 Merger or Consolidation of the Depositor or the Servicers.. 154
Section 6.03 Limitation on Liability of the Depositor, the Servicers and
Others..................................................... 154
Section 6.04 Limitation on Resignation of the Servicers................. 155
Section 6.05 Additional Indemnification by the Servicers; Third Party
Claims..................................................... 156
ARTICLE VII DEFAULT........................................................... 157
Section 7.01 Events of Default.......................................... 157
Section 7.02 Master Servicer to Act; Appointment of Successor........... 160
Section 7.03 Notification to Certificateholders......................... 161
ARTICLE VIII CONCERNING THE TRUSTEE........................................... 162
Section 8.01 Duties of the Trustee...................................... 162
Section 8.02 Certain Matters Affecting the Trustee and the Custodian.... 163
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans...... 164
</TABLE>
ii
<TABLE>
Section 8.04 Trustee May Own Certificates............................... 164
Section 8.05 Trustee's and Custodian's Fees and Expenses................ 165
Section 8.06 Eligibility Requirements for the Trustee................... 165
Section 8.07 Resignation and Removal of the Trustee..................... 166
Section 8.08 Successor Trustee.......................................... 166
Section 8.09 Merger or Consolidation of the Trustee..................... 167
Section 8.10 Appointment of Co-Trustee or Separate Trustee.............. 167
Section 8.11 Tax Matters................................................ 168
Section 8.12 Periodic Filings........................................... 171
Section 8.13 Tax Classification of the Supplemental Interest Account,
Excess Reserve Fund Account and the Swap Account........... 173
Section 8.14 Interest Rate Swap Agreement............................... 173
ARTICLE IX ADMINISTRATION OF THE MORTGAGE LOANS BY THE MASTER SERVICER........ 174
Section 9.01 Duties of the Master Servicer; Enforcement of the
Servicers' Obligations..................................... 174
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance.................................................. 174
Section 9.03 Representations and Warranties of the Master Servicer...... 174
Section 9.04 Master Servicer Events of Default.......................... 176
Section 9.05 Waiver of Default.......................................... 178
Section 9.06 Successor to the Master Servicer........................... 178
Section 9.07 Compensation of the Master Servicer........................ 179
Section 9.08 Merger or Consolidation.................................... 179
Section 9.09 Resignation of the Master Servicer......................... 179
Section 9.10 Assignment or Delegation of Duties by the Master Servicer.. 180
Section 9.11 Limitation on Liability of the Master Servicer............. 180
Section 9.12 Indemnification; Third Party Claims........................ 181
ARTICLE X CONCERNING THE SECURITIES ADMINISTRATOR............................. 182
Section 10.01 Duties of Securities Administrator......................... 182
Section 10.02 Certain Matters Affecting the Securities Administrator..... 183
Section 10.03 Securities Administrator Not Liable for Certificates or
Mortgage Loans............................................. 185
Section 10.04 Securities Administrator May Own Certificates.............. 185
Section 10.05 Securities Administrator's Fees and Expenses............... 185
Section 10.06 Eligibility Requirements for Securities Administrator...... 186
Section 10.07 Resignation and Removal of Securities Administrator........ 187
Section 10.08 Successor Securities Administrator......................... 188
Section 10.09 Merger or Consolidation of Securities Administrator........ 188
Section 10.10 Assignment or Delegation of Duties by the Securities
Administrator.............................................. 188
ARTICLE XI TERMINATION........................................................ 189
Section 11.01 Termination upon Liquidation or Purchase of the Mortgage
Loans...................................................... 189
Section 11.02 Final Distribution on the Certificates..................... 190
Section 11.03 Additional Termination Requirements........................ 191
ARTICLE XII MISCELLANEOUS PROVISIONS.......................................... 192
Section 12.01 Amendment.................................................. 192
</TABLE>
iii
<TABLE>
Section 12.02 Recordation of Agreement; Counterparts..................... 195
Section 12.03 Governing Law.............................................. 195
Section 12.04 Intention of Parties....................................... 195
Section 12.05 Notices.................................................... 196
Section 12.06 Severability of Provisions................................. 197
Section 12.07 Assignment................................................. 197
Section 12.08 Limitation on Rights of Certificateholders................. 197
Section 12.09 Inspection and Audit Rights................................ 198
Section 12.10 Certificates Nonassessable and Fully Paid.................. 198
Section 12.11 The Class A-1 Certificate Insurer Default.................. 198
Section 12.12 Third Party Beneficiary.................................... 199
Section 12.13 Waiver of Jury Trial....................................... 199
</TABLE>
SCHEDULES
Schedule I Mortgage Loan Schedule
Schedule IA Schedule of Countrywide Serviced Loans
Schedule IB Schedule of Saxon Serviced Loans
Schedule II Representations and Warranties of Countrywide
Schedule IIA Further Representations and Warranties of Countrywide
Schedule III Representations and Warranties of Saxon
Schedule IIIA Further Representations and Warranties of Saxon
Schedule IV Representations and Warranties as to the Unaffiliated Seller
EXHIBITS
Exhibit A Form of Class A-1, Class X-0, Xxxxx X-0, Class A-4, Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class B-1,
Class B-2 , Class B-3 and Class B-4 Certificate
Exhibit B [Reserved]
Exhibit C Form of Class P Certificate
Exhibit D Form of Class R Certificate
Exhibit E Form of Class X Certificate
Exhibit F Form of Initial Certification of Custodian
Exhibit G Form of Final Certification of Custodian
Exhibit H Form of Residual Transfer Affidavit
Exhibit I Form of Transferor Certificate
Exhibit J Form of Rule 144A Letter
Exhibit K Form of Request for Release
Exhibit L Form of Subsequent Transfer Agreement
Exhibit M Depositor Certification
Exhibit N Servicer Certification to be provided to Depositor
Exhibit O Trustee Certification to be provided to Depositor
Exhibit P Form Calculation of Realized Loss/Gain
iv
THIS POOLING AND SERVICING AGREEMENT, dated as of August 1, 2005,
among XXXXXX XXXXXXX ABS CAPITAL I INC., a Delaware corporation, as depositor
(the "Depositor"), JPMORGAN CHASE BANK, N.A., a national banking association, as
master servicer and securities administrator (respectively, the "Master
Servicer"and the "Securities Administrator"), SAXON MORTGAGE SERVICES INC., a
Virginia Corporation ("Saxon"), and COUNTRYWIDE HOME LOANS SERVICING LP, a Texas
limited partnership ("Countrywide"), and together (the "Servicers"), IXIS REAL
ESTATE CAPITAL INC. (f/k/a CDC Mortgage Capital Inc.), a New York corporation,
as unaffiliated seller (the "Unaffiliated Seller") and DEUTSCHE BANK NATIONAL
TRUST COMPANY, a national banking association, as trustee and custodian (in each
such capacity respectively, the "Trustee" and the "Custodian").
WITNESSETH:
In consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
PRELIMINARY STATEMENT
The Securities Administrator on behalf of the Trustee shall elect that
five segregated asset pools within the Trust Fund be treated for federal income
tax purposes as comprising five REMICs (each a "REMIC" or, in the alternative,
REMIC I, REMIC II, REMIC III, REMIC IV and REMIC V, respectively). Each Class of
Certificates, other than the Class P and Class R Certificates and other than the
right of each Class of LIBOR Certificates to receive Basis Risk Carry Forward
Amounts and the right of the Class X Certificates to receive payments from the
Interest Rate Swap Agreement and the Pre-Funding Reserve Account, represents
ownership of one or more regular interests in REMIC V for purposes of the REMIC
Provisions. Additionally, the Class X Certificates represent the obligation to
make certain payments of Basis Risk Carryforward Amounts to Holders of LIBOR
Certificates, and the LIBOR Certificates represent the obligation to make
certain payments to the Class X Certificateholder to the extent that the
interest accrued on its corresponding REMIC V Regular Interest is in excess of
the interest accrued on such LIBOR Certificate. The Class P Certificates
represent beneficial ownership of the Prepayment Charges, which portion of the
Trust Fund shall be treated as a grantor trust. The Class I Interests are
uncertificated REMIC V Regular Interests and are designed to fund net swap
payments, in full or in part, on the Interest Rate Swap Agreement. The Class R
Certificate represents ownership of the sole class of residual interest in each
of REMIC I, REMIC II, REMIC III, REMIC IV and REMIC V for purposes of the REMIC
Provisions. The Class R-V, Class R-IV, Class R-III, Class R-II and Class R-I
Interests comprise the Class R Certificate. The Startup Day for each REMIC
described herein is the Closing Date. The latest possible maturity date for each
regular interest is the date referenced for such regular interest in this
preliminary statement.
REMIC V shall hold as assets the several classes of uncertificated
REMIC IV Regular Interests. Each such REMIC IV Regular Interest is hereby
designated as a regular interest in REMIC IV. The Class IV-A-1, Class IV-A-2,
Class IV-A-3, Class IV-A-4, Class IV-M-1, Class IV-M-2, Class IV-M-3, Class
IV-M-4, Class IV-M-5, Class IV-M-6, Class IV-B-1, Class IV-B-2, Class IV-B-3,
and Class IV-B-4 Interests are hereby designated the REMIC IV Accretion Directed
Classes.
1
REMIC IV shall hold as assets the several classes of uncertificated
REMIC III Regular Interests. Each such REMIC III Regular Interest is hereby
designated as a regular interest in REMIC III.
REMIC III shall hold as assets the several classes of uncertificated
REMIC II Regular Interests. Each such REMIC II Regular Interest is hereby
designated as a regular interest in REMIC II.
REMIC II shall hold as assets the several classes of uncertificated
REMIC I Regular Interests. Each such REMIC I Regular Interest is hereby
designated as a regular interest in REMIC I.
REMIC I shall hold as assets all of the assets included in the Trust
Fund other than the Prepayment Charges, the Supplemental Interest Trust, the
Excess Reserve Fund Account, the Swap Account, the Pre-Funding Accounts, the
Pre-Funding Reserve Account, the Capitalized Interest Account and the Interest
Rate Swap Agreement.
The REMIC I Regular Interests and the Class R-I Interest shall have
the following tier interest rate, initial tier principal amount and latest
possible maturity date as set forth in the table below.
REMIC I CLASS TIER INTEREST INITIAL TIER PRINCIPAL LATEST POSSIBLE
DESIGNATION RATE AMOUNT MATURITY DATE
------------- ------------- ---------------------- -----------------
Class I-C1 (1) $221,287,500 December 26, 2035
Class I-PO1 (2) $ 48,567,189 December 26, 2035
Class I-D1 (3) $408,209,430 December 26, 2035
Class I-PO2 (4) $ 89,591,973 December 26, 2035
Class I-N (5) (6) November 25, 2005
Class R-I (7) (7)
(1) The interest rate with respect to any Distribution Date for this Class I-C1
Interest is (i) for the first three Distribution Dates, a per annum
variable rate equal to the weighted average of the Adjusted Net Mortgage
Rates for then in effect on the beginning of the related Prepayment Period
on the Initial Mortgage Loans relating to Group I, and (ii) thereafter, a
per annum variable rate equal to the weighted average of the Adjusted Net
Mortgage Rates then in effect on the beginning of the related Prepayment
Period on the Mortgage Loans relating to Group I.
(2) The interest rate with respect to any Distribution Date for the Class I-PO1
Interest is (i) for the first three Distribution Dates, 0.00% and (ii)
thereafter, a per annum variable rate equal to the weighted average of the
Adjusted Net Mortgage Rates then in effect on the beginning of the related
Prepayment Period on the Mortgage Loans relating to Group I.
2
(3) The interest rate with respect to any Distribution Date for this Class I-D1
Interest is (i) for the first three distribution Dates, a per annum
variable rate equal to the weighted average of the Adjusted Net Mortgage
Rates for then in effect on the beginning of the related Prepayment Period
on the Initial Mortgage Loans relating to Group II, and (ii) thereafter, a
per annum variable rate equal to the weighted average of the Adjusted Net
Mortgage Rates then in effect on the beginning of the related Prepayment
Period on the Mortgage Loans relating to Group II.
(4) The interest rate with respect to any Distribution Date for the Class I-PO2
Interest is (i) for the first three Distribution Dates, 0.00% and (ii)
thereafter, a per annum variable rate equal to the weighted average of the
Adjusted Net Mortgage Rates then in effect on the beginning of the related
Prepayment Period on the Mortgage Loans relating to Group II.
(5) The interest rate with respect to any Distribution Date for the Class I-N
Interest is (i) for the first three Distribution Dates, all interest on the
Subsequent Mortgage Loans for such Distribution Date divided by
$138,159,159, and (ii) thereafter, 0.00%.
(6) The Class I-N Interest will have a notional principal balance equal to
$138,159,159.
(7) The Class R-I Interest is the sole class of residual interest in REMIC I.
The Class R-I does not have a principal amount or an interest rate.
During the Pre-Funding Period, all principal payments (scheduled and
prepaid) and Realized Losses with respect to the Initial Mortgage Loans relating
to Group I shall be allocated to the Class I-C1 Interest, until such Class is
paid in full or eliminated by such losses. All principal payments (scheduled and
prepaid) and Realized Losses generated with respect to the Group I Subsequent
Mortgage Loans and any amounts transferred from the Group I Pre-Funding Account
to REMIC I shall be allocated to the Class I-PO1 Interest.
On each Distribution Date thereafter, all principal payments
(scheduled and prepaid) and Realized Losses generated with respect to the
Mortgage Loans relating to Group I shall be allocated, pro rata, to the Class
I-C1 and Class I-PO1 Interests, until such Classes are paid in full or
eliminated by such losses.
During the Pre-Funding Period, all principal payments (scheduled and
prepaid) and Realized Losses with respect to the Initial Mortgage Loans relating
to Group II shall be allocated to the Class I-D1 Interest, until such Class is
paid in full or eliminated by such losses. All principal payments (scheduled and
prepaid) and Realized Losses generated with respect to the Group II Subsequent
Mortgage Loans and any amounts transferred from the Group II Pre-Funding Account
to REMIC I shall be allocated to the Class I-PO2 Interest.
On each Distribution Date thereafter, all principal payments
(scheduled and prepaid) and Realized Losses generated with respect to the
Mortgage Loans relating to Group II shall be allocated, pro rata, to the Class
I-D1 and Class I-PO2 Interests, until such Classes are paid in full or
eliminated by such losses.
3
The REMIC II Regular Interests and the Class R-II Interest shall have
the following tier interest rate, initial tier principal amount and latest
possible maturity date as set forth in the table below.
REMIC II CLASS TIER INTEREST INITIAL TIER PRINCIPAL LATEST POSSIBLE
DESIGNATION RATE AMOUNT MATURITY DATE
-------------- ------------- ---------------------- -----------------
Class II-C1 (1) $ 913,142.40 December 26, 2035
Class II-C2 (1) $ 6,228,618.79 December 26, 2035
Class II-C3 (1) $ 6,071,376.53 December 26, 2035
Class II-C4 (1) $ 9,783,502.23 December 26, 2035
Class II-C5 (1) $ 9,346,147.37 December 26, 2035
Class II-C6 (1) $ 8,992,847.06 December 26, 2035
Class II-C7 (1) $ 8,655,656.86 December 26, 2035
Class II-C8 (1) $ 8,329,753.52 December 26, 2035
Class II-C9 (1) $ 8,021,915.04 December 26, 2035
Class II-C10 (1) $ 7,727,079.37 December 26, 2035
Class II-C11 (1) $ 7,444,472.80 December 26, 2035
Class II-C12 (1) $ 7,170,978.17 December 26, 2035
Class II-C13 (1) $ 6,901,425.34 December 26, 2035
Class II-C14 (1) $ 6,633,044.98 December 26, 2035
Class II-C15 (1) $ 6,350,859.70 December 26, 2035
Class II-C16 (1) $ 6,076,961.82 December 26, 2035
Class II-C17 (1) $ 5,813,044.37 December 26, 2035
Class II-C18 (1) $ 5,589,027.63 December 26, 2035
Class II-C19 (1) $ 5,461,056.58 December 26, 2035
Class II-C20 (1) $ 5,672,002.34 December 26, 2035
Class II-C21 (1) $ 9,515,703.64 December 26, 2035
Class II-C22 (1) $61,445,209.60 December 26, 2035
Class II-C23 (1) $ 8,461,904.80 December 26, 2035
Class II-C24 (1) $ 4,968,393.68 December 26, 2035
Class II-C25 (1) $ 4,434,131.78 December 26, 2035
Class II-C26 (1) $ 1,056,378.38 December 26, 2035
4
REMIC II CLASS TIER INTEREST INITIAL TIER PRINCIPAL LATEST POSSIBLE
DESIGNATION RATE AMOUNT MATURITY DATE
-------------- ------------- ---------------------- -----------------
Class II-C27 (1) $ 826,799.90 December 26, 2035
Class II-C28 (1) $ 791,024.79 December 26, 2035
Class II-C29 (1) $ 759,981.20 December 26, 2035
Class II-C30 (1) $ 778,368.34 December 26, 2035
Class II-C31 (1) $ 702,087.31 December 26, 2035
Class II-C32 (1) $ 674,565.07 December 26, 2035
Class II-C33 (1) $ 760,644.89 December 26, 2035
Class II-C34 (1) $ 4,770,420.79 December 26, 2035
Class II-C35 (1) $ 1,620,574.96 December 26, 2035
Class II-C36 (1) $ 635,487.56 December 26, 2035
Class II-C37 (1) $ 597,761.24 December 26, 2035
Class II-C38 (1) $ 341,293.14 December 26, 2035
Class II-C39 (1) $ 274,214.54 December 26, 2035
Class II-C40 (1) $ 264,500.65 December 26, 2035
Class II-C41 (1) $ 255,482.63 December 26, 2035
Class II-C42 (1) $ 246,765.09 December 26, 2035
Class II-C43 (1) $ 238,339.51 December 26, 2035
Class II-C44 (1) $ 230,196.18 December 26, 2035
Class II-C45 (1) $ 222,325.93 December 26, 2035
Class II-C46 (1) $ 214,720.03 December 26, 2035
Class II-C47 (1) $ 207,369.52 December 26, 2035
Class II-C48 (1) $ 200,266.27 December 26, 2035
Class II-C49 (1) $ 193,401.95 December 26, 2035
Class II-C50 (1) $ 186,768.85 December 26, 2035
Class II-C51 (1) $ 180,359.26 December 26, 2035
Class II-C52 (1) $ 174,165.81 December 26, 2035
Class II-C53 (1) $ 4,815,598.28 December 26, 2035
Class II-J1 (1) $21,209,340.49 December 26, 2035
Class II-D1 (2) $ 1,688,497.80 December 26, 2035
5
REMIC II CLASS TIER INTEREST INITIAL TIER PRINCIPAL LATEST POSSIBLE
DESIGNATION RATE AMOUNT MATURITY DATE
-------------- ------------- ---------------------- -----------------
Class II-D2 (2) $ 11,517,381.21 December 26, 2035
Class II-D3 (2) $ 11,226,623.47 December 26, 2035
Class II-D4 (2) $ 18,090,740.27 December 26, 2035
Class II-D5 (2) $ 17,282,024.43 December 26, 2035
Class II-D6 (2) $ 16,628,734.44 December 26, 2035
Class II-D7 (2) $ 16,005,233.74 December 26, 2035
Class II-D8 (2) $ 15,402,603.68 December 26, 2035
Class II-D9 (2) $ 14,833,377.46 December 26, 2035
Class II-D10 (2) $ 14,288,194.83 December 26, 2035
Class II-D11 (2) $ 13,765,625.10 December 26, 2035
Class II-D12 (2) $ 13,259,904.33 December 26, 2035
Class II-D13 (2) $ 12,761,472.36 December 26, 2035
Class II-D14 (2) $ 12,265,208.42 December 26, 2035
Class II-D15 (2) $ 11,743,417.70 December 26, 2035
Class II-D16 (2) $ 11,236,951.28 December 26, 2035
Class II-D17 (2) $ 10,748,939.73 December 26, 2035
Class II-D18 (2) $ 10,334,708.87 December 26, 2035
Class II-D19 (2) $ 10,098,076.72 December 26, 2035
Class II-D20 (2) $ 10,488,137.96 December 26, 2035
Class II-D21 (2) $ 17,595,552.06 December 26, 2035
Class II-D22 (2) $113,618,753.40 December 26, 2035
Class II-D23 (2) $ 15,646,965.50 December 26, 2035
Class II-D24 (2) $ 9,187,090.42 December 26, 2035
Class II-D25 (2) $ 8,199,183.12 December 26, 2035
Class II-D26 (2) $ 1,953,356.42 December 26, 2035
Class II-D27 (2) $ 1,528,841.30 December 26, 2035
Class II-D28 (2) $ 1,462,689.31 December 26, 2035
Class II-D29 (2) $ 1,405,286.40 December 26, 2035
Class II-D30 (2) $ 1,439,286.16 December 26, 2035
6
REMIC II CLASS TIER INTEREST INITIAL TIER PRINCIPAL LATEST POSSIBLE
DESIGNATION RATE AMOUNT MATURITY DATE
-------------- ------------- ---------------------- -----------------
Class II-D31 (2) $ 1,298,234.39 December 26, 2035
Class II-D32 (2) $ 1,247,342.83 December 26, 2035
Class II-D33 (2) $ 1,406,513.61 December 26, 2035
Class II-D34 (2) $ 8,821,017.41 December 26, 2035
Class II-D35 (2) $ 2,996,616.14 December 26, 2035
Class II-D36 (2) $ 1,175,084.34 December 26, 2035
Class II-D37 (2) $ 1,105,324.36 December 26, 2035
Class II-D38 (2) $ 631,087.46 December 26, 2035
Class II-D39 (2) $ 507,051.96 December 26, 2035
Class II-D40 (2) $ 489,089.95 December 26, 2035
Class II-D41 (2) $ 472,414.67 December 26, 2035
Class II-D42 (2) $ 456,295.01 December 26, 2035
Class II-D43 (2) $ 440,715.19 December 26, 2035
Class II-D44 (2) $ 425,657.32 December 26, 2035
Class II-D45 (2) $ 411,104.37 December 26, 2035
Class II-D46 (2) $ 397,040.27 December 26, 2035
Class II-D47 (2) $ 383,448.38 December 26, 2035
Class II-D48 (2) $ 370,313.73 December 26, 2035
Class II-D49 (2) $ 357,620.85 December 26, 2035
Class II-D50 (2) $ 345,355.55 December 26, 2035
Class II-D51 (2) $ 333,503.54 December 26, 2035
Class II-D52 (2) $ 322,051.19 December 26, 2035
Class II-D53 (2) $ 8,904,555.42 December 26, 2035
Class II-J2 (2) $39,218,335.21 December 26, 2035
Class II-N (3) (4) November 25, 2005
Class R-II (5) (5)
(1) The interest rate with respect to any Distribution Date for these interests
is the weighted average of the interest rates of the Class I-C1 and Class
I-PO1 Interests.
7
(2) The interest rate with respect to any Distribution Date for these interests
is the weighted average of the interest rates of the Class I-D1 and Class
I-PO2 Interests.
(3) The Class II-N Interest is entitled to all distributions of interest on the
Class I-N Interest.
(4) The Class II-N Interest will have a notional principal balance equal to the
notional principal balance of the Class I-N Interest.
(5) The Class R-II Interest is the sole class of residual interest in REMIC II.
The Class R-II Interest does not have a principal amount or an interest
rate.
On each Distribution Date, all principal payments (scheduled and
prepaid) and Realized Losses generated with respect to the Group I Mortgage
Loans and any amounts transferred from the Group I Pre-Funding Account to REMIC
I shall be allocated in the following order: (i) first, to the Class II-J1
Interest until such Class is paid in full or eliminated by such losses, (ii)
second, to the Class II-C1, Class II-C2 and Class II-C3, in reverse numerical
order, until such Classes are paid in full or eliminated by such losses and
(iii) third to the Class II-C4 through Class II-C53 Interests, sequentially,
until such Classes are paid in full or eliminated by such losses.
On each Distribution Date, all principal payments (scheduled and
prepaid) and Realized Losses generated with respect to the Group II Mortgage
Loans and any amounts transferred from the Group II Pre-Funding Account to REMIC
I shall be allocated in the following order: (i) first, to the Class II-J2
Interest until such Class is paid in full or eliminated by such losses, (ii)
second, to the Class II-D1, Class II-D2 and Class II-D3, in reverse numerical
order, until such Classes are paid in full or eliminated by such losses and
(iii) third to the Class II-D4 through Class II-D53 Interests, sequentially,
until such Classes are paid in full or eliminated by such losses.
The REMIC II Regular Interests and the Class R-II Interest shall have
the following, Corresponding REMIC II Regular Interest, tier interest rate,
initial tier principal amount and latest possible maturity date as set forth in
the table below.
<TABLE>
CORRESPONDING INITIAL TIER
REMIC III CLASS REMIC II REGULAR TIER INTEREST PRINCIPAL LATEST POSSIBLE MATURITY
DESIGNATION INTEREST RATE AMOUNT DATE
--------------- ---------------- ------------- ------------ ------------------------
Class III-C1a Class II-C1 (1) (2) December 26, 2035
Class III-C1b Class II-C1 (5) (3) December 26, 2035
Class III-C1c Class II-C1 (6) (4) December 26, 2035
Class III-C2a Class II-C2 (1) (2) December 26, 2035
Class III-C2b Class II-C2 (5) (3) December 26, 2035
Class III-C2c Class II-C2 (6) (4) December 26, 2035
Class III-C3a Class II-C3 (1) (2) December 26, 2035
</TABLE>
8
<TABLE>
CORRESPONDING INITIAL TIER
REMIC III CLASS REMIC II REGULAR TIER INTEREST PRINCIPAL LATEST POSSIBLE MATURITY
DESIGNATION INTEREST RATE AMOUNT DATE
--------------- ---------------- ------------- ------------ ------------------------
Class III-C3b Class II-C3 (5) (3) December 26, 2035
Class III-C3c Class II-C3 (6) (4) December 26, 2035
Class III-C4a Class II-C4 (7) (2) December 26, 2035
Class III-C4b Class II-C4 (8) (3) December 26, 2035
Class III-C4c Class II-C4 (9) (4) December 26, 2035
Class III-C5a Class II-C5 (7) (2) December 26, 2035
Class III-C5b Class II-C5 (8) (3) December 26, 2035
Class III-C5c Class II-C5 (9) (4) December 26, 2035
Class III-C6a Class II-C6 (10) (2) December 26, 2035
Class III-C6b Class II-C6 (11) (3) December 26, 2035
Class III-C6c Class II-C6 (12) (4) December 26, 2035
Class III-C7a Class II-C7 (10) (2) December 26, 2035
Class III-C7b Class II-C7 (11) (3) December 26, 2035
Class III-C7c Class II-C7 (12) (4) December 26, 2035
Class III-C8a Class II-C8 (10) (2) December 26, 2035
Class III-C8b Class II-C8 (11) (3) December 26, 2035
Class III-C8c Class II-C8 (12) (4) December 26, 2035
Class III-C9a Class II-C9 (10) (2) December 26, 2035
Class III-C9b Class II-C9 (11) (3) December 26, 2035
Class III-C9c Class II-C9 (12) (4) December 26, 2035
Class III-C10a Class II-C10 (10) (2) December 26, 2035
Class III-C10b Class II-C10 (11) (3) December 26, 2035
Class III-C10c Class II-C10 (12) (4) December 26, 2035
Class III-C11a Class II-C11 (10) (2) December 26, 2035
Class III-C11b Class II-C11 (11) (3) December 26, 2035
Class III-C11c Class II-C11 (12) (4) December 26, 2035
Class III-C12a Class II-C12 (10) (2) December 26, 2035
Class III-C12b Class II-C12 (11) (3) December 26, 2035
</TABLE>
9
<TABLE>
CORRESPONDING INITIAL TIER
REMIC III CLASS REMIC II REGULAR TIER INTEREST PRINCIPAL LATEST POSSIBLE MATURITY
DESIGNATION INTEREST RATE AMOUNT DATE
--------------- ---------------- ------------- ------------ ------------------------
Class III-C12c Class II-C12 (12) (4) December 26, 2035
Class III-C13a Class II-C13 (10) (2) December 26, 2035
Class III-C13b Class II-C13 (11) (3) December 26, 2035
Class III-C13c Class II-C13 (12) (4) December 26, 2035
Class III-C14a Class II-C14 (10) (2) December 26, 2035
Class III-C14b Class II-C14 (11) (3) December 26, 2035
Class III-C14c Class II-C14 (12) (4) December 26, 2035
Class III-C15a Class II-C15 (10) (2) December 26, 2035
Class III-C15b Class II-C15 (11) (3) December 26, 2035
Class III-C15c Class II-C15 (12) (4) December 26, 2035
Class III-C16a Class II-C16 (10) (2) December 26, 2035
Class III-C16b Class II-C16 (11) (3) December 26, 2035
Class III-C16c Class II-C16 (12) (4) December 26, 2035
Class III-C17a Class II-C17 (10) (2) December 26, 2035
Class III-C17b Class II-C17 (11) (3) December 26, 2035
Class III-C17c Class II-C17 (12) (4) December 26, 2035
Class III-C18a Class II-C18 (10) (2) December 26, 2035
Class III-C18b Class II-C18 (11) (3) December 26, 2035
Class III-C18c Class II-C18 (12) (4) December 26, 2035
Class III-C19a Class II-C19 (10) (2) December 26, 2035
Class III-C19b Class II-C19 (11) (3) December 26, 2035
Class III-C19c Class II-C19 (12) (4) December 26, 2035
Class III-C20a Class II-C20 (10) (2) December 26, 2035
Class III-C20b Class II-C20 (11) (3) December 26, 2035
Class III-C20c Class II-C20 (12) (4) December 26, 2035
Class III-C21a Class II-C21 (10) (2) December 26, 2035
Class III-C21b Class II-C21 (11) (3) December 26, 2035
Class III-C21c Class II-C21 (12) (4) December 26, 2035
</TABLE>
10
<TABLE>
CORRESPONDING INITIAL TIER
REMIC III CLASS REMIC II REGULAR TIER INTEREST PRINCIPAL LATEST POSSIBLE MATURITY
DESIGNATION INTEREST RATE AMOUNT DATE
--------------- ---------------- ------------- ------------ ------------------------
Class III-C22a Class II-C22 (10) (2) December 26, 2035
Class III-C22b Class II-C22 (11) (3) December 26, 2035
Class III-C22c Class II-C22 (12) (4) December 26, 2035
Class III-C23a Class II-C23 (10) (2) December 26, 2035
Class III-C23b Class II-C23 (11) (3) December 26, 2035
Class III-C23c Class II-C23 (12) (4) December 26, 2035
Class III-C24a Class II-C24 (10) (2) December 26, 2035
Class III-C24b Class II-C24 (11) (3) December 26, 2035
Class III-C24c Class II-C24 (12) (4) December 26, 2035
Class III-C25a Class II-C25 (10) (2) December 26, 2035
Class III-C25b Class II-C25 (11) (3) December 26, 2035
Class III-C25c Class II-C25 (12) (4) December 26, 2035
Class III-C26a Class II-C26 (10) (2) December 26, 2035
Class III-C26b Class II-C26 (11) (3) December 26, 2035
Class III-C26c Class II-C26 (12) (4) December 26, 2035
Class III-C27a Class II-C27 (10) (2) December 26, 2035
Class III-C27b Class II-C27 (11) (3) December 26, 2035
Class III-C27c Class II-C27 (12) (4) December 26, 2035
Class III-C28a Class II-C28 (10) (2) December 26, 2035
Class III-C28b Class II-C28 (11) (3) December 26, 2035
Class III-C28c Class II-C28 (12) (4) December 26, 2035
Class III-C29a Class II-C29 (10) (2) December 26, 2035
Class III-C29b Class II-C29 (11) (3) December 26, 2035
Class III-C29c Class II-C29 (12) (4) December 26, 2035
Class III-C30a Class II-C30 (10) (2) December 26, 2035
Class III-C30b Class II-C30 (11) (3) December 26, 2035
Class III-C30c Class II-C30 (12) (4) December 26, 2035
Class III-C31a Class II-C31 (10) (2) December 26, 2035
</TABLE>
11
<TABLE>
CORRESPONDING INITIAL TIER
REMIC III CLASS REMIC II REGULAR TIER INTEREST PRINCIPAL LATEST POSSIBLE MATURITY
DESIGNATION INTEREST RATE AMOUNT DATE
---------------- ---------------- ------------- ------------ ------------------------
Class III-C31b Class II-C31 (11) (3) December 26, 2035
Class III-C31c Class II-C31 (12) (4) December 26, 2035
Class III-C32a Class II-C32 (10) (2) December 26, 2035
Class III-C32b Class II-C32 (11) (3) December 26, 2035
Class III-C32c Class II-C32 (12) (4) December 26, 2035
Class III-C33a Class II-C33 (10) (2) December 26, 2035
Class III-C33b Class II-C33 (11) (3) December 26, 2035
Class III-C33c Class II-C33 (12) (4) December 26, 2035
Class III-C34a Class II-C34 (10) (2) December 26, 2035
Class III-C34b Class II-C34 (11) (3) December 26, 2035
Class III-C34c Class II-C34 (12) (4) December 26, 2035
Class III-C35a Class II-C35 (10) (2) December 26, 2035
Class III-C35b Class II-C35 (11) (3) December 26, 2035
Class III-C35c Class II-C35 (12) (4) December 26, 2035
Class III-C36a Class II-C36 (10) (2) December 26, 2035
Class III-C36b Class II-C36 (11) (3) December 26, 2035
Class III-C36c Class II-C36 (12) (4) December 26, 2035
Class III-C37a Class II-C37 (10) (2) December 26, 2035
Class III-C37b Class II-C37 (11) (3) December 26, 2035
Class III-C37c Class II-C37 (12) (4) December 26, 2035
Class III-C38a Class II-C38 (10) (2) December 26, 2035
Class III-C38b Class II-C38 (11) (3) December 26, 2035
Class III-C38c Class II-C38 (12) (4) December 26, 2035
Class III-C39a Class II-C39 (10) (2) December 26, 2035
Class III-C39b Class II-C39 (11) (3) December 26, 2035
Class III-C39c Class II-C39 (12) (4) December 26, 2035
Class III-C40a Class II-C40 (10) (2) December 26, 2035
Class III-C40b Class II-C40 (11) (3) December 26, 2035
</TABLE>
12
<TABLE>
CORRESPONDING INITIAL TIER
REMIC III CLASS REMIC II REGULAR TIER INTEREST PRINCIPAL LATEST POSSIBLE MATURITY
DESIGNATION INTEREST RATE AMOUNT DATE
---------------- ---------------- ------------- ------------ ------------------------
Class III-C40c Class II-C40 (12) (4) December 26, 2035
Class III-C41a Class II-C41 (10) (2) December 26, 2035
Class III-C41b Class II-C41 (11) (3) December 26, 2035
Class III-C41c Class II-C41 (12) (4) December 26, 2035
Class III-C42a Class II-C42 (10) (2) December 26, 2035
Class III-C42b Class II-C42 (11) (3) December 26, 2035
Class III-C42c Class II-C42 (12) (4) December 26, 2035
Class III-C43a Class II-C43 (10) (2) December 26, 2035
Class III-C43b Class II-C43 (11) (3) December 26, 2035
Class III-C43c Class II-C43 (12) (4) December 26, 2035
Class III-C44a Class II-C44 (10) (2) December 26, 2035
Class III-C44b Class II-C44 (11) (3) December 26, 2035
Class III-C44c Class II-C44 (12) (4) December 26, 2035
Class III-C45a Class II-C45 (10) (2) December 26, 2035
Class III-C45b Class II-C45 (11) (3) December 26, 2035
Class III-C45c Class II-C45 (12) (4) December 26, 2035
Class III-C46a Class II-C46 (10) (2) December 26, 2035
Class III-C46b Class II-C46 (11) (3) December 26, 2035
Class III-C46c Class II-C46 (12) (4) December 26, 2035
Class III-C47a Class II-C47 (10) (2) December 26, 2035
Class III-C47b Class II-C47 (11) (3) December 26, 2035
Class III-C47c Class II-C47 (12) (4) December 26, 2035
Class III-C48a Class II-C48 (10) (2) December 26, 2035
Class III-C48b Class II-C48 (11) (3) December 26, 2035
Class III-C48c Class II-C48 (12) (4) December 26, 2035
Class III-C49a Class II-C49 (10) (2) December 26, 2035
Class III-C49b Class II-C49 (11) (3) December 26, 2035
Class III-C49c Class II-C49 (12) (4) December 26, 2035
</TABLE>
13
<TABLE>
CORRESPONDING INITIAL TIER
REMIC III CLASS REMIC II REGULAR TIER INTEREST PRINCIPAL LATEST POSSIBLE MATURITY
DESIGNATION INTEREST RATE AMOUNT DATE
---------------- ---------------- ------------- ------------ ------------------------
Class III-C50a Class II-C50 (10) (2) December 26, 2035
Class III-C50b Class II-C50 (11) (3) December 26, 2035
Class III-C50c Class II-C50 (12) (4) December 26, 2035
Class III-C51a Class II-C51 (10) (2) December 26, 2035
Class III-C51b Class II-C51 (11) (3) December 26, 2035
Class III-C51c Class II-C51 (12) (4) December 26, 2035
Class III-C52a Class II-C52 (10) (2) December 26, 2035
Class III-C52b Class II-C52 (11) (3) December 26, 2035
Class III-C52c Class II-C52 (12) (4) December 26, 2035
Class III-C53a Class II-C53 (10) (2) December 26, 2035
Class III-C53b Class II-C53 (11) (3) December 26, 2035
Class III-C53c Class II-C53 (12) (4) December 26, 2035
Class III-J1 Class II-J1 (13) (14) December 26, 2035
Class III-D1a Class II-D1 (15) (2) December 26, 2035
Class III-D1b Class II-D1 (16) (3) December 26, 2035
Class III-D1c Class II-D1 (17) (4) December 26, 2035
Class III-D2a Class II-D2 (15) (2) December 26, 2035
Class III-D2b Class II-D2 (16) (3) December 26, 2035
Class III-D2c Class II-D2 (17) (4) December 26, 2035
Class III-D3a Class II-D3 (15) (2) December 26, 2035
Class III-D3b Class II-D3 (16) (3) December 26, 2035
Class III-D3c Class II-D3 (17) (4) December 26, 2035
Class III-D4a Class II-D4 (18) (2) December 26, 2035
Class III-D4b Class II-D4 (19) (3) December 26, 2035
Class III-D4c Class II-D4 (20) (4) December 26, 2035
Class III-D5a Class II-D5 (18) (2) December 26, 2035
Class III-D5b Class II-D5 (19) (3) December 26, 2035
Class III-D5c Class II-D5 (20) (4) December 26, 2035
</TABLE>
14
<TABLE>
CORRESPONDING INITIAL TIER
REMIC III CLASS REMIC II REGULAR TIER INTEREST PRINCIPAL LATEST POSSIBLE MATURITY
DESIGNATION INTEREST RATE AMOUNT DATE
---------------- ---------------- ------------- ------------ ------------------------
Class III-D6a Class II-D6 (21) (2) December 26, 2035
Class III-D6b Class II-D6 (22) (3) December 26, 2035
Class III-D6c Class II-D6 (23) (4) December 26, 2035
Class III-D7a Class II-D7 (21) (2) December 26, 2035
Class III-D7b Class II-D7 (22) (3) December 26, 2035
Class III-D7c Class II-D7 (23) (4) December 26, 2035
Class III-D8a Class II-D8 (21) (2) December 26, 2035
Class III-D8b Class II-D8 (22) (3) December 26, 2035
Class III-D8c Class II-D8 (23) (4) December 26, 2035
Class III-D9a Class II-D9 (21) (2) December 26, 2035
Class III-D9b Class II-D9 (22) (3) December 26, 2035
Class III-D9c Class II-D9 (23) (4) December 26, 2035
Class III-D10a Class II-D10 (21) (2) December 26, 2035
Class III-D10b Class II-D10 (22) (3) December 26, 2035
Class III-D10c Class II-D10 (23) (4) December 26, 2035
Class III-D11a Class II-D11 (21) (2) December 26, 2035
Class III-D11b Class II-D11 (22) (3) December 26, 2035
Class III-D11c Class II-D11 (23) (4) December 26, 2035
Class III-D12a Class II-D12 (21) (2) December 26, 2035
Class III-D12b Class II-D12 (22) (3) December 26, 2035
Class III-D12c Class II-D12 (23) (4) December 26, 2035
Class III-D13a Class II-D13 (21) (2) December 26, 2035
Class III-D13b Class II-D13 (22) (3) December 26, 2035
Class III-D13c Class II-D13 (23) (4) December 26, 2035
Class III-D14a Class II-D14 (21) (2) December 26, 2035
Class III-D14b Class II-D14 (22) (3) December 26, 2035
Class III-D14c Class II-D14 (23) (4) December 26, 2035
Class III-D15a Class II-D15 (21) (2) December 26, 2035
</TABLE>
15
<TABLE>
CORRESPONDING INITIAL TIER
REMIC III CLASS REMIC II REGULAR TIER INTEREST PRINCIPAL LATEST POSSIBLE MATURITY
DESIGNATION INTEREST RATE AMOUNT DATE
---------------- ---------------- ------------- ------------ ------------------------
Class III-D15b Class II-D15 (22) (3) December 26, 2035
Class III-D15c Class II-D15 (23) (4) December 26, 2035
Class III-D16a Class II-D16 (21) (2) December 26, 2035
Class III-D16b Class II-D16 (22) (3) December 26, 2035
Class III-D16c Class II-D16 (23) (4) December 26, 2035
Class III-D17a Class II-D17 (21) (2) December 26, 2035
Class III-D17b Class II-D17 (22) (3) December 26, 2035
Class III-D17c Class II-D17 (23) (4) December 26, 2035
Class III-D18a Class II-D18 (21) (2) December 26, 2035
Class III-D18b Class II-D18 (22) (3) December 26, 2035
Class III-D18c Class II-D18 (23) (4) December 26, 2035
Class III-D19a Class II-D19 (21) (2) December 26, 2035
Class III-D19b Class II-D19 (22) (3) December 26, 2035
Class III-D19c Class II-D19 (23) (4) December 26, 2035
Class III-D20a Class II-D20 (21) (2) December 26, 2035
Class III-D20b Class II-D20 (22) (3) December 26, 2035
Class III-D20c Class II-D20 (23) (4) December 26, 2035
Class III-D21a Class II-D21 (21) (2) December 26, 2035
Class III-D21b Class II-D21 (22) (3) December 26, 2035
Class III-D21c Class II-D21 (23) (4) December 26, 2035
Class III-D22a Class II-D22 (21) (2) December 26, 2035
Class III-D22b Class II-D22 (22) (3) December 26, 2035
Class III-D22c Class II-D22 (23) (4) December 26, 2035
Class III-D23a Class II-D23 (21) (2) December 26, 2035
Class III-D23b Class II-D23 (22) (3) December 26, 2035
Class III-D23c Class II-D23 (23) (4) December 26, 2035
Class III-D24a Class II-D24 (21) (2) December 26, 2035
Class III-D24b Class II-D24 (22) (3) December 26, 2035
</TABLE>
16
<TABLE>
CORRESPONDING INITIAL TIER
REMIC III CLASS REMIC II REGULAR TIER INTEREST PRINCIPAL LATEST POSSIBLE MATURITY
DESIGNATION INTEREST RATE AMOUNT DATE
---------------- ---------------- ------------- ------------ ------------------------
Class III-D24c Class II-D24 (23) (4) December 26, 2035
Class III-D25a Class II-D25 (21) (2) December 26, 2035
Class III-D25b Class II-D25 (22) (3) December 26, 2035
Class III-D25c Class II-D25 (23) (4) December 26, 2035
Class III-D26a Class II-D26 (21) (2) December 26, 2035
Class III-D26b Class II-D26 (22) (3) December 26, 2035
Class III-D26c Class II-D26 (23) (4) December 26, 2035
Class III-D27a Class II-D27 (21) (2) December 26, 2035
Class III-D27b Class II-D27 (22) (3) December 26, 2035
Class III-D27c Class II-D27 (23) (4) December 26, 2035
Class III-D28a Class II-D28 (21) (2) December 26, 2035
Class III-D28b Class II-D28 (22) (3) December 26, 2035
Class III-D28c Class II-D28 (23) (4) December 26, 2035
Class III-D29a Class II-D29 (21) (2) December 26, 2035
Class III-D29b Class II-D29 (22) (3) December 26, 2035
Class III-D29c Class II-D29 (23) (4) December 26, 2035
Class III-D30a Class II-D30 (21) (2) December 26, 2035
Class III-D30b Class II-D30 (22) (3) December 26, 2035
Class III-D30c Class II-D30 (23) (4) December 26, 2035
Class III-D31a Class II-D31 (21) (2) December 26, 2035
Class III-D31b Class II-D31 (22) (3) December 26, 2035
Class III-D31c Class II-D31 (23) (4) December 26, 2035
Class III-D32a Class II-D32 (21) (2) December 26, 2035
Class III-D32b Class II-D32 (22) (3) December 26, 2035
Class III-D32c Class II-D32 (23) (4) December 26, 2035
Class III-D33a Class II-D33 (21) (2) December 26, 2035
Class III-D33b Class II-D33 (22) (3) December 26, 2035
Class III-D33c Class II-D33 (23) (4) December 26, 2035
</TABLE>
17
<TABLE>
CORRESPONDING INITIAL TIER
REMIC III CLASS REMIC II REGULAR TIER INTEREST PRINCIPAL LATEST POSSIBLE MATURITY
DESIGNATION INTEREST RATE AMOUNT DATE
---------------- ---------------- ------------- ------------ ------------------------
Class III-D34a Class II-D34 (21) (2) December 26, 2035
Class III-D34b Class II-D34 (22) (3) December 26, 2035
Class III-D34c Class II-D34 (23) (4) December 26, 2035
Class III-D35a Class II-D35 (21) (2) December 26, 2035
Class III-D35b Class II-D35 (22) (3) December 26, 2035
Class III-D35c Class II-D35 (23) (4) December 26, 2035
Class III-D36a Class II-D36 (21) (2) December 26, 2035
Class III-D36b Class II-D36 (22) (3) December 26, 2035
Class III-D36c Class II-D36 (23) (4) December 26, 2035
Class III-D37a Class II-D37 (21) (2) December 26, 2035
Class III-D37b Class II-D37 (22) (3) December 26, 2035
Class III-D37c Class II-D37 (23) (4) December 26, 2035
Class III-D38a Class II-D38 (21) (2) December 26, 2035
Class III-D38b Class II-D38 (22) (3) December 26, 2035
Class III-D38c Class II-D38 (23) (4) December 26, 2035
Class III-D39a Class II-D39 (21) (2) December 26, 2035
Class III-D39b Class II-D39 (22) (3) December 26, 2035
Class III-D39c Class II-D39 (23) (4) December 26, 2035
Class III-D40a Class II-D40 (21) (2) December 26, 2035
Class III-D40b Class II-D40 (22) (3) December 26, 2035
Class III-D40c Class II-D40 (23) (4) December 26, 2035
Class III-D41a Class II-D41 (21) (2) December 26, 2035
Class III-D41b Class II-D41 (22) (3) December 26, 2035
Class III-D41c Class II-D41 (23) (4) December 26, 2035
Class III-D42a Class II-D42 (21) (2) December 26, 2035
Class III-D42b Class II-D42 (22) (3) December 26, 2035
Class III-D42c Class II-D42 (23) (4) December 26, 2035
Class III-D43a Class II-D43 (21) (2) December 26, 2035
</TABLE>
18
<TABLE>
CORRESPONDING INITIAL TIER
REMIC III CLASS REMIC II REGULAR TIER INTEREST PRINCIPAL LATEST POSSIBLE MATURITY
DESIGNATION INTEREST RATE AMOUNT DATE
---------------- ---------------- ------------- ------------ ------------------------
Class III-D43b Class II-D43 (22) (3) December 26, 2035
Class III-D43c Class II-D43 (23) (4) December 26, 2035
Class III-D44a Class II-D44 (21) (2) December 26, 2035
Class III-D44b Class II-D44 (22) (3) December 26, 2035
Class III-D44c Class II-D44 (23) (4) December 26, 2035
Class III-D45a Class II-D45 (21) (2) December 26, 2035
Class III-D45b Class II-D45 (22) (3) December 26, 2035
Class III-D45c Class II-D45 (23) (4) December 26, 2035
Class III-D46a Class II-D46 (21) (2) December 26, 2035
Class III-D46b Class II-D46 (22) (3) December 26, 2035
Class III-D46c Class II-D46 (23) (4) December 26, 2035
Class III-D47a Class II-D47 (21) (2) December 26, 2035
Class III-D47b Class II-D47 (22) (3) December 26, 2035
Class III-D47c Class II-D47 (23) (4) December 26, 2035
Class III-D48a Class II-D48 (21) (2) December 26, 2035
Class III-D48b Class II-D48 (22) (3) December 26, 2035
Class III-D48c Class II-D48 (23) (4) December 26, 2035
Class III-D49a Class II-D49 (21) (2) December 26, 2035
Class III-D49b Class II-D49 (22) (3) December 26, 2035
Class III-D49c Class II-D49 (23) (4) December 26, 2035
Class III-D50a Class II-D50 (21) (2) December 26, 2035
Class III-D50b Class II-D50 (22) (3) December 26, 2035
Class III-D50c Class II-D50 (23) (4) December 26, 2035
Class III-D51a Class II-D51 (21) (2) December 26, 2035
Class III-D51b Class II-D51 (22) (3) December 26, 2035
Class III-D51c Class II-D51 (23) (4) December 26, 2035
Class III-D52a Class II-D52 (21) (2) December 26, 2035
Class III-D52b Class II-D52 (22) (3) December 26, 2035
</TABLE>
19
<TABLE>
CORRESPONDING INITIAL TIER
REMIC III CLASS REMIC II REGULAR TIER INTEREST PRINCIPAL LATEST POSSIBLE MATURITY
DESIGNATION INTEREST RATE AMOUNT DATE
---------------- ---------------- ------------- ------------ ------------------------
Class III-D52c Class II-D52 (23) (4) December 26, 2035
Class III-D53a Class II-D53 (21) (2) December 26, 2035
Class III-D53b Class II-D53 (22) (3) December 26, 2035
Class III-D53c Class II-D53 (23) (4) December 26, 2035
Class III-J2 Class II-J2 (24) (14) December 26, 2035
Class III-N Class II-N (25) (26) December 26, 2035
Class R-III (27) (27)
</TABLE>
(1) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the Corresponding Distribution
Date through and including the Distribution Date in November 2005, 1.5
multiplied by (Group I REMIC III Net WAC minus 4.299%) and (ii) for all
other Distribution Dates, Group I REMIC III Net WAC.
(2) These REMIC III Regular Interests will have an initial principal balance
equal to the product of (i) the initial principal balance of the
Corresponding REMIC II Regular Interest and (ii) two divided by three.
(3) These REMIC III Regular Interests will have an initial principal balance
equal to the initial principal balance of the Corresponding REMIC II
Regular Interest divided by three.
(4) These REMIC III Regular Interests will have a notional principal balance
equal to the principal balance of the Corresponding REMIC II Regular
Interest.
(5) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the Corresponding Distribution
Date through and including the Distribution Date in November 2005, 3
multiplied by 1-month LIBOR, subject to a cap of 12.897% and (ii) for all
other Distribution Dates, Group I REMIC III Net WAC.
(6) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the Corresponding Distribution
Date through and including the Distribution Date in November 2005, 4.299%
minus 1-Month LIBOR, subject to a floor of zero and (ii) for all other
Distribution Dates, zero.
(7) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the Distribution Date in
December 2005 through and including the Corresponding Distribution Date,
1.5 multiplied by (Group I REMIC III
20
Net WAC minus 4.299%) and (ii) for all other Distribution Dates, Group I
REMIC III Net WAC.
(8) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the Distribution Date in
December 2005 through and including the Corresponding Distribution Date, 3
multiplied by 1-month LIBOR, subject to a cap of 12.897% and (ii) for all
other Distribution Dates, Group I REMIC III Net WAC.
(9) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the Distribution Date in
December 2005 through and including the Corresponding Distribution Date,
4.299% minus 1-Month LIBOR, subject to a floor of zero and (ii) for all
other Distribution Dates, zero.
(10) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the first Distribution Date
through and including the Corresponding Distribution Date, 1.5 multiplied
by (Group I REMIC III Net WAC minus 4.299%) and (ii) for all other
Distribution Dates, Group I REMIC III Net WAC.
(11) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the first Distribution Date
through and including the Corresponding Distribution Date, 3 multiplied by
1-month LIBOR, subject to a cap of 12.897% and (ii) for all other
Distribution Dates, Group I REMIC III Net WAC.
(12) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the first Distribution Date
through and including the Corresponding Distribution Date, 4.299% minus
1-Month LIBOR, subject to a floor of zero and (ii) for all other
Distribution Dates, zero.
(13) The interest rate for this REMIC III Regular Interest will be equal to the
Group I REMIC III Net WAC.
(14) These REMIC III Regular Interests will have an initial principal balance
equal to the initial principal balance of the Corresponding REMIC II
Regular Interest.
(15) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the Corresponding Distribution
Date through and including the Distribution Date in November 2005, 1.5
multiplied by (Group II REMIC III Net WAC minus 4.299%) and (ii) for all
other Distribution Dates, Group II REMIC III Net WAC.
(16) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the Corresponding Distribution
Date through and including the Distribution Date in November 2005, 3
multiplied by 1-month LIBOR, subject to a cap of 12.897% and (ii) for all
other Distribution Dates, Group II REMIC III Net WAC.
21
(17) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the Corresponding Distribution
Date through and including the Distribution Date in November 2005, 4.299%
minus 1-Month LIBOR, subject to a floor of zero and (ii) for all other
Distribution Dates, zero.
(18) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the Distribution Date in
December 2005 through and including the Corresponding Distribution Date,
1.5 multiplied by (Group II REMIC III Net WAC minus 4.299%) and (ii) for
all other Distribution Dates, Group II REMIC III Net WAC.
(19) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the Distribution Date in
December 2005 through and including the Corresponding Distribution Date, 3
multiplied by 1-month LIBOR, subject to a cap of 12.897% and (ii) for all
other Distribution Dates, Group II REMIC III Net WAC.
(20) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the Distribution Date in
December 2005 through and including the Corresponding Distribution Date,
4.299% minus 1-Month LIBOR, subject to a floor of zero and (ii) for all
other Distribution Dates, zero.
(21) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the first Distribution Date
through and including the Corresponding Distribution Date, 1.5 multiplied
by (Group II REMIC III Net WAC minus 4.299%) and (ii) for all other
Distribution Dates, Group II REMIC III Net WAC.
(22) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the first Distribution Date
through and including the Corresponding Distribution Date, 3 multiplied by
1-month LIBOR, subject to a cap of 12.897% and (ii) for all other
Distribution Dates, Group II REMIC III Net WAC.
(23) The interest rate for these REMIC III Regular Interests will be as follows:
(i) for all Distribution Dates commencing on the first Distribution Date
through and including the Corresponding Distribution Date, 4.299% minus
1-Month LIBOR, subject to a floor of zero and (ii) for all other
Distribution Dates, zero.
(24) The interest rate for this REMIC III Regular Interest will be equal to the
Group II REMIC III Net WAC.
(25) The Class III-N Interest is entitled to all distributions of interest on
the Class II-N Interest.
(26) The Class III-N Interest will have a notional principal balance equal to
the notional principal balance of the Class II-N Interest.
(27) The Class R-III Interest is the sole class of residual interest in REMIC
III. The Class R-III Interest does not have a principal amount or an
interest rate.
22
On each Distribution Date, all principal payments (scheduled and
prepaid) and Realized Losses generated with respect to the Group I Mortgage
Loans and any amounts transferred from the Group I Pre-Funding Account to REMIC
I shall be allocated in the following order: (i) first, to the Class III-J1
Interest until such Class is paid in full or eliminated by such losses, (ii)
second, to the Class III-C1a through Class III-C3a and Class III-C1b through
Class III-C3b Interests, first, pro rata between the two subsets of interests,
and second, in reverse numerical order among the subsets of interests, until
such Classes are paid in full or eliminated by such losses and (iii) third, to
the Class III-C4a through Class III-C53a and Class III-C4b through Class
III-C53b Interests, first, pro rata between the two subsets of interests, and
second, sequentially among the subsets of interests, until such Classes are paid
in full or eliminated by such losses.
On each Distribution Date, all principal payments (scheduled and
prepaid) and Realized Losses generated with respect to the Group II Mortgage
Loans and any amounts transferred from the Group II Pre-Funding Account to REMIC
I shall be allocated in the following order: (i) first, to the Class III-J2
Interest until such Class is paid in full or eliminated by such losses, (ii)
second, to the Class III-D1a through Class III-D3a and Class III-D1b through
Class III-D3b Interests, first, pro rata between the two subsets of interests,
and second, in reverse numerical order among the subsets of interests, until
such Classes are paid in full or eliminated by such losses and (iii) third, to
the Class III-D4a through Class III-D53a and Class III-D4b through Class
III-D53b Interests, first, pro rata between the two subsets of interests, and
second, sequentially among the subsets of interests, until such Classes are paid
in full or eliminated by such losses.
The REMIC IV Regular Interests and the Class R-IV Interest shall have
the following tier interest rate, initial principal amount, Corresponding REMIC
V Interest, and latest possible maturity date as set forth in the table below.
<TABLE>
TIER CORRESPONDING
REMIC IV CLASS INTEREST INITIAL TIER PRINCIPAL REMIC V INTEREST/ LATEST POSSIBLE
DESIGNATION RATE AMOUNT CORRESPONDING CLASS MATURITY DATE
---------------- -------- ---------------------- ------------------- -----------------
Class IV-A-1 (1) 1/4 of the Class A-1 December 26, 2035
Corresponding Class
initial principal
balance
Class IV-A-2 (1) 1/4 of the Class A-2 December 26, 2035
Corresponding Class
initial principal
balance
Class IV-A-3 (1) 1/4 of the Class A-3 December 26, 2035
Corresponding Class
initial principal
balance
Class IV-A-4 (1) 1/4 of the Class X-0 Xxxxxxxx 00, 0000
Xxxxxxxxxxxxx Class
</TABLE>
23
<TABLE>
TIER CORRESPONDING
REMIC IV CLASS INTEREST INITIAL TIER PRINCIPAL REMIC V INTEREST/ LATEST POSSIBLE
DESIGNATION RATE AMOUNT CORRESPONDING CLASS MATURITY DATE
---------------- -------- ---------------------- ------------------- -----------------
initial principal
balance
Class IV-M-1 (1) 1/4 of the Class M-1 December 26, 2035
Corresponding Class
initial principal
balance
Class IV-M-2 (1) 1/4 of the Class M-2 December 26, 2035
Corresponding Class
initial principal
balance
Class IV-M-3 (1) 1/4 of the Class M-3 December 26, 2035
Corresponding Class
initial principal
balance
Class IV-M-4 (1) 1/4 of the Class M-4 December 26, 2035
Corresponding Class
initial principal
balance
Class IV-M-5 (1) 1/4 of the Class M-5 December 26, 2035
Corresponding Class
initial principal
balance
Class IV-M-6 (1) 1/4 of the Class M-6 December 26, 2035
Corresponding Class
initial principal
balance
Class IV-B-1 (1) 1/4 of the Class B-1 December 26, 2035
Corresponding Class
initial principal
balance
Class IV-B-2 (1) 1/4 of the Class B-2 December 26, 2035
Corresponding Class
initial principal
balance
Class IV-B-3 (1) 1/4 of the Class B-3 December 26, 2035
Corresponding Class
initial principal
balance
</TABLE>
24
<TABLE>
TIER CORRESPONDING
REMIC IV CLASS INTEREST INITIAL TIER PRINCIPAL REMIC V INTEREST/ LATEST POSSIBLE
DESIGNATION RATE AMOUNT CORRESPONDING CLASS MATURITY DATE
---------------- -------- ---------------------- ------------------- -----------------
Class IV-B-4 (1) 1/4 of the Class B-4 December 26, 2035
Corresponding Class
initial principal
balance
Class IV-Accrual (1) (2) N/A December 26, 2035
Class IV-J1 (3) (4) N/A December 26, 2035
Class IV-J2 (5) (6) N/A December 26, 2035
Class IV-XX (1) (7) N/A December 26, 2035
Class IV-N (8) (9) Class X-2 December 26, 2035
Class IV-I1 (10) (10) Class I-1 December 26, 2005
Class IV-I2 (11) (11) Class I-2 December 26, 2006
Class IV-I3 (12) (12) Class I-3 December 26, 2007
Class IV-I4 (13) (13) Class I-4 December 26, 2008
Class IV-I5 (14) (14) Class I-5 December 28, 2009
Class IV-I6 (15) (15) Class I-6 February 25, 2010
Class R-IV (16) (16) Class R
</TABLE>
(1) The interest rate with respect to any Distribution Date for these REMIC IV
Regular Interests is the REMIC IV Net WAC.
(2) The Class IV-Accrual Interest will have an initial principal balance equal
to the product of (a) 25% and (b) the sum of (i) the Pool Stated Principal
Balance (ii) the Subordinated Amount and (ii) the Initial Pre-Funded
Amount.
(3) The interest rate with respect to any Distribution Date for this REMIC IV
Regular Interest is the Group I REMIC IV Net WAC.
(4) The Class IV-J1 Interest will have an initial principal balance equal to
.01% of the sum of (i) the Pool Stated Principal Balance relating to Group
I and (ii) the Group I Initial Pre-Funded Amount.
(5) The interest rate with respect to any Distribution Date for this REMIC IV
Regular Interest is the Group II REMIC IV Net WAC.
25
(6) The Class IV-J2 Interest will have an initial principal balance equal to
.01% of the sum of (i) the Pool Stated Principal Balance relating to Group
II and (ii) the Group II Initial Pre-Funded Amount.
(7) The Class IV-XX Interest will have an initial principal balance equal to
49.99% of the sum of (i) the Pool Stated Principal Balance and (ii) the
Initial Pre-Funded Amount
(8) The Class IV-N Interest is entitled to all distributions of interest on the
Class III-N Interest.
(9) The Class IV-N Interest will have a notional principal balance equal to the
notional principal balance of the Class III-N Interest.
(10) The Class IV-I1 Interest will be an interest-only regular interest and will
be entitled to receive, on each Distribution Date, the sum of the amounts
distributable on the Class III-C1c through Class III-C4c and Class III-D1c
through Class III-D4c Interests on such Distribution Date.
(11) The Class IV-I2 Interest will be an interest-only regular interest and will
be entitled to receive, on each Distribution Date, the sum of the amounts
distributable on the Class III-C5c through Class III-C16c and Class III-D5c
through Class III-D16c Interests on such Distribution Date.
(12) The Class IV-I3 Interest will be an interest-only regular interest and will
be entitled to receive, on each Distribution Date, the sum of the amounts
distributable on the Class III-C17c through Class III-C28c and Class
III-D17c through Class III-D28c Interests on such Distribution Date.
(13) The Class IV-I4 Interest will be an interest-only regular interest and will
be entitled to receive, on each Distribution Date, the sum of the amounts
distributable on the Class III-C29c through Class III-C40c and Class
III-D29c through Class III-D40c Interests on such Distribution Date.
(14) The Class IV-I5 Interest will be an interest-only regular interest and will
be entitled to receive, on each Distribution Date, the sum of the amounts
distributable on the Class III-C41c through Class III-C52c and Class
III-D41c through Class III-D52c Interests on such Distribution Date.
(15) The Class IV-I6 Interest will be an interest-only regular interest and will
be entitled to receive, on each Distribution Date, the sum of the amounts
distributable on the Class III-C53c Class III-D53c Interests on such
Distribution Date.
(16) The Class R-IV Interest is the sole class of residual interest in REMIC IV.
The Class R-IV Interest does not have a principal amount or an interest
rate.
On each Distribution Date, 25% of the increase in the Subordinated
Amount will be payable as a reduction of the principal balances of the REMIC IV
Accretion Directed Classes and will be accrued and added to the principal
balance of the Class IV-Accrual Interest. To this
26
end, each REMIC IV Accretion Directed Class will be reduced by an amount equal
to 25% of any increase in the Subordinated Amount that is attributable to a
reduction in the principal balance of its Corresponding Class. On each
Distribution Date, the increase in the principal balance of the Class IV-Accrual
Interest may not exceed interest accruals for such Distribution Date for the
Class IV-Accrual Interest. If, with respect to any Distribution Date, 25% of the
increase in the Subordinated Amount exceeds accrued interest on the Class
IV-Accrual Interest, the excess (accumulated with all such excess for all prior
Distribution Dates) will be added to any increase in the Subordinated Amount for
purposes of calculating accrued interest on the Class IV-Accrual Interest
payable as principal on the REMIC IV Accretion Directed Classes on the next
Distribution Date.
On each Distribution Date, all principal payments (scheduled and prepaid)
on the Mortgage Loans and any amounts transferred from the Pre-Funding Accounts
to REMIC I shall be allocated as follows: 25% to the Class IV-Accrual Interest
and 25% to the REMIC IV Accretion Directed Classes, until such interests are
paid in full. To this end, principal payments shall be allocated among such
REMIC IV Accretion Directed Classes in an amount equal to 25% of the principal
amounts allocated to their respective Corresponding Classes. Notwithstanding the
foregoing, 50% of the principal payments allocated to the Class X Certificates
that result in the reduction in the Subordinated Amount shall be allocated to
the Class IV-Accrual Interest until paid in full. On each Distribution Date, 50%
of all Realized Losses shall be applied so that after all distributions have
been made on each Distribution Date (i) the principal balance of each REMIC IV
Accretion Directed Class is equal to 25% of the principal balance of its
Corresponding Class, and (ii) the principal balance of the Class IV-Accrual
Interest is equal to 25% of the sum of (1) the Pool Stated Principal Balance,
(2) the Subordinated Amount and (3) the Pre-Funding Amount.
The remaining 50% of the sum of (i) all principal payments (scheduled and
prepaid) and Realized Losses generated with respect to the Mortgage Loans and
(ii) any amounts transferred from the Pre-Funding Accounts to REMIC I shall be
allocated in the following order: (i) first, to the Class IV-J1 and Class IV-J2
Interests so that after such distributions have been made on each Distribution
Date (a) the principal balance of the Class IV-J1 Interest is equal to .01% of
the sum of (1) the Pool Stated Principal Balance relating to Group I and (2) the
Group I Initial Pre-Funded Amount and (b) the principal balance of the Class
IV-J2 Interest is equal to .01% of the sum of (1) the Pool Stated Principal
Balance relating to Group II and (2) the Group II Initial Pre-Funded Amount and
(ii) second, to the Class IV-XX Interest until such Class is paid in full or
eliminated by such losses.
The REMIC V Regular Interests and the Class R-V Interest shall have
the following tier interest rate, initial tier principal amount, corresponding
classes, and latest possible maturity date as set forth in the table below.
<TABLE>
TIER
REMIC V CLASS INTEREST INITIAL TIER PRINCIPAL LATEST POSSIBLE MATURITY
DESIGNATION RATE AMOUNT CORRESPONDING CLASS DATE
------------- -------- ---------------------- ------------------- ------------------------
Class A-1 (1) $212,182,000 Class A-1(10) December 26, 2035
Class A-2 (2) $245,500,000 Class A-2(10) December 26, 2035
</TABLE>
27
<TABLE>
TIER
REMIC V CLASS INTEREST INITIAL TIER PRINCIPAL LATEST POSSIBLE MATURITY
DESIGNATION RATE AMOUNT CORRESPONDING CLASS DATE
------------- -------- ---------------------- ------------------- ------------------------
Class A-3 (2) $83,000,000 Class A-3(10) December 26, 2035
Class A-4 (2) $63,847,000 Class A-4(10) December 26, 2035
Class M-1 (3) $29,555,000 Class M-1(10) December 26, 2035
Class M-2 (3) $26,484,000 Class M-2(10) December 26, 2035
Class M-3 (3) $15,353,000 Class M-3(10) December 26, 2035
Class M-4 (3) $14,585,000 Class M-4(10) December 26, 2035
Class M-5 (3) $13,050,000 Class M-5(10) December 26, 2035
Class M-6 (3) $12,283,000 Class M-6(10) December 26, 2035
Class B-1 (3) $10,747,000 Class B-1(10) December 26, 2035
Class B-2 (3) $ 9,980,000 Class B-2(10) December 26, 2035
Class B-3 (3) $ 5,757,000 Class B-3(10) December 26, 2035
Class B-4 (3) $ 7,677,000 Class B-4(10) December 26, 2035
Class X-1(9) (4) (4) Class X(11) December 26, 2035
Class X-2(9) (5) (6) Class X(11) December 26, 2035
Class V-I1 (7) (7) Class I-1 December 25, 2005
Class V-I2 (7) (7) Class I-2 December 25, 2006
Class V-I3 (7) (7) Class I-3 December 25, 2007
Class V-I4 (7) (7) Class I-4 December 25, 2008
Class V-I5 (7) (7) Class I-5 December 25, 2009
Class V-I6 (7) (7) Class I-6 February 25, 2010
Class R-V (8) (8) Class R
</TABLE>
(1) The Class A-1 Certificates will bear interest during each Interest Accrual
Period at a per annum variable rate equal to the least of (a) one-month
LIBOR plus the applicable Pass-Through Margin, (b) Group I REMIC Rate less
the Premium Rate or (c) REMIC Adjusted WAC Cap less the Premium Rate.
(2) These Certificates will bear interest during each Interest Accrual Period
at a per annum variable rate equal to the least of (a) one-month LIBOR plus
the applicable Pass-Through Margin, (b) Group II REMIC Rate or (c) REMIC
Adjusted WAC Cap.
28
(3) These Certificates will bear interest during each Interest Accrual Period
at a per annum variable rate equal to the least of (a) one-month LIBOR plus
the applicable Pass-Through Margin or (b) REMIC Adjusted WAC Cap.
(4) The Class X-1 Interest has an initial principal balance of $17,656,090 but
it will not accrue interest on such balance but will accrue interest on a
notional principal balance. As of any Distribution Date, the Class X-1
Interest shall have a notional principal balance equal to the sum of (i)
the Pool Stated Principal Balance and (ii) any amount remaining in the
Pre-Funding Accounts as of the first day of the related Interest Accrual
Period. With respect to any Interest Accrual Period, the Class X-1 Interest
shall bear interest at a rate equal to the excess, if any, of the REMIC
Premium Adjusted WAC Cap over the product of (i) 2 and (ii) the weighted
average interest rates of the REMIC IV Accretion Direction Classes and the
Class IV-Accrual Interest, where each REMIC IV Accretion Directed Class is
subject to a cap equal to the interest rate on its Corresponding REMIC V
Interest and the Class IV-Accrual Interest is subject to a cap of zero.
With respect to any Distribution Date, interest that so accrues on the
notional principal balance of the Class X-1 Interest shall be deferred in
an amount equal to any increase in the Subordinated Amount on such
Distribution Date. Such deferred interest shall not itself bear interest.
(5) The Class X-2 Interest is entitled to all distributions of interest on the
Class IV-N Interest.
(6) The Class X-2 Interest will have a notional principal balance equal to the
notional principal balance of the Class IV-N Interest.
(7) These REMIC V Regular Interests will be interest-only regular interests and
will be entitled to receive on each Distribution Date all distribution on
its corresponding REMIC IV Regular Interest for such Distribution Date.
(8) The Class R-V Interest is the sole class of residual interest in REMIC V.
The Class R-V Interest does not have a principal amount or an interest
rate.
(9) The Class X Certificates will represent two REMIC V Regular Interests, the
Class X-1 and Class X-2 Interests.
(10) Each of these Certificates will represent not only the ownership of the
Corresponding Class of REMIC V Regular Interest but also the right to
receive payments from the Excess Reserve Fund Account and Swap Account in
respect of any Basis Risk Carry Forward Amounts. For federal income tax
purposes, the Securities Administrator will treat a Certificateholder's
right to receive of Basis Risk Carry Forward Amounts as payments made
pursuant to a notional principal contract written by the Class X
Certificateholders. Each of these Certificates will also represent the
obligation to make certain payments on such notional principal contract to
the extent that the interest accrued on its Corresponding REMIC V Regular
Interest is in excess of the related Accrued Certificate Interest.
(11) The Class X Certificates also represent the right to receive payments from
the Interest Rate Swap Agreement, the Pre-Funding Reserve Account and
certain payments from
29
Holders of the LIBOR Certificates as described in footnote 10 and the
obligation to fund certain Basis Risk Carry Forward Amounts.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates......... All Classes of Certificates other than the
Physical Certificates.
Subordinated Certificates....... Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class B-1, Class B-2,
Class B-3 and Class B-4 Certificates.
Delay Certificates.............. None.
ERISA-Restricted Certificates... Class R Certificates, Class P Certificate and
Class X Certificate; any certificate with a
rating below the lowest applicable permitted
rating under the Underwriters' Exemption.
LIBOR Certificates.............. Class A-1, Class A-2, Class A-3, Class A-4
and Subordinated Certificates.
Non-Delay Certificates.......... Class A-1, Class A-2, Class A-3, Class A-4,
Class X and Subordinated Certificates.
Offered Certificates............ All Classes of Certificates other than the
Private Certificates.
Physical Certificates........... Class P, Class X and Class R Certificates.
Private Certificates............ Class P, Class X and Class R Certificates.
Rating Agencies................. Xxxxx'x, Fitch and Standard & Poor's.
Regular Certificates............ All Classes of Certificates other than the
Class P and Class R Certificates.
Residual Certificates........... Class R Certificates.
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ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
60+ Day Delinquent Loan: Each Mortgage Loan with respect to which any
portion of a Scheduled Payment is, as of the last day of the prior Due Period,
two months or more past due (without giving effect to any grace period), each
Mortgage Loan in foreclosure, all REO Property and each Mortgage Loan for which
the Mortgagor has filed for bankruptcy.
Accepted Servicing Practices: With respect to each Servicer and any
Mortgage Loan, those mortgage servicing practices set forth in Section 3.01.
Account: Any of the Capitalized Interest Account, the Collection
Accounts, the Distribution Account, any Escrow Account, the Excess Reserve Fund
Account, the Swap Account, the Insurance Payment Account, the Pre-Funding
Accounts or the Pre-Funding Reserve Account. Each Account shall be an Eligible
Account.
Accredited: Accredited Home Lenders, Inc., a California corporation,
and its successors in interest.
Accredited Assignment Agreement: The Assignment and Recognition
Agreement, dated as of August 30, 2005, by and among the Unaffiliated Seller,
the Depositor and Accredited, and each other Assignment and Recognition
Agreement, by and among the Unaffiliated Seller, the Depositor and Accredited in
connection with any Subsequent Transfer of Accredited Mortgage Loans.
Accredited Mortgage Loan: A Mortgage Loan which was acquired from
Accredited by the Unaffiliated Seller pursuant to the Accredited Purchase
Agreement, and which has been acquired by the Trust Fund.
Accredited Purchase Agreement: The Mortgage Loan Purchase and
Warranties Agreement, dated as of February 1, 2005, as amended to date, by and
between the Unaffiliated Seller and Accredited.
Accrued Certificate Interest: With respect to any Distribution Date
for each Class of Certificates (other than the Class P, Class R and Class X
Certificates), the amount of interest accrued during the related Interest
Accrual Period at the applicable Pass-Through Rate on the related Class
Certificate Balance immediately prior to such Distribution Date, as reduced by
such Class's share of Net Prepayment Interest Shortfalls and Relief Act
Shortfalls for such Distribution Date allocated to such Class pursuant to
Section 4.02.
Addition Notice: A written notice from the Unaffiliated Seller to the
Trustee, the Rating Agencies, the Securities Administrator and the Certificate
Insurer that the Unaffiliated Seller desires to make a Subsequent Transfer.
31
Adjustable Rate Mortgage Loan: A Mortgage Loan bearing interest at an
adjustable rate.
Adjusted Mortgage Rate: As to each Mortgage Loan and at any time, the
per annum rate equal to the Mortgage Rate less the Servicing Fee Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan and at any time,
the per annum rate equal to the Mortgage Rate less the Expense Fee Rate.
Adjustment Date: As to any Adjustable Rate Mortgage Loan, the first
Due Date on which the related Mortgage Rate adjusts as set forth in the related
Mortgage Note and each Due Date thereafter on which the Mortgage Rate adjusts as
set forth in the related Mortgage Note.
Advances: Collectively, the P&I Advances and Servicing Advances.
Advance Facility: As defined in Section 3.27.
Advance Facility Trustee: As defined in Section 3.27.
Advance Reimbursement Amount: As defined in Section 3.27.
Advancing Person: As defined in Section 3.27.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all amendments or
supplements hereto.
Allstate: Allstate Home Loans, Inc., a California corporation.
Allstate Assignment Agreement: The Assignment and Recognition
Agreement, dated as of August 30, 2005, by and among the Unaffiliated Seller,
the Depositor and Allstate, and each other Assignment and Recognition Agreement
by and among the Unaffiliated Seller, the Depositor and Allstate in connection
with any Subsequent Transfer of Allstate Mortgage Loans.
Allstate Mortgage Loan: A Mortgage Loan which was acquired from
Allstate by the Unaffiliated Seller pursuant to the Allstate Purchase Agreement,
and which has been acquired by the Trust Fund.
Allstate Purchase Agreement: The Mortgage Loan Purchase and Warranties
Agreement, dated as of September 1, 2004, as amended to date, by and between the
Unaffiliated Seller and Allstate.
32
Amount Held for Future Distribution: As to the Certificates on any
Distribution Date, the aggregate amount held in each Collection Account at the
close of business on the related Determination Date on account of (i) Principal
Prepayments, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds
on the Mortgage Loans received after the end of the related Prepayment Period
and (ii) all Scheduled Payments on the Mortgage Loans due after the end of the
related Due Period.
Applied Realized Loss Amount: With respect to any Distribution Date,
the amount, if any, by which the aggregate Class Certificate Balance of the
LIBOR Certificates after distributions of principal on such Distribution Date
exceeds the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
Appraised Value: The value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of the
Mortgaged Property.
Assignment and Recognition Agreement: The Accredited Assignment
Agreement, the Allstate Assignment Agreement, the Chapel Mortgage Assignment
Agreement, the Encore Assignment Agreement, the First Bank Assignment Agreement,
the First Horizon Assignment Agreement, the First NLC Assignment Agreement, the
FlexPoint Assignment Agreement, the Homeowners Assignment Agreement, the Impac
Assignment Agreement, the Lenders Direct Assignment Agreement, the Lime
Financial Assignment Agreement, the Master Financial Assignment Agreement, the
NC Capital Assignment Agreement, the Platinum Assignment Agreement, the ResMae
Assignment Agreement or the Rose Assignment Agreement, as applicable.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form (other than the assignee's
name and recording information not yet returned from the recording office),
reflecting the sale of the Mortgage to the Trustee.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans, to the extent received by the Securities Administrator (x) the
sum of (i) the aggregate amount of Scheduled Payments on the Mortgage Loans due
on the related Due Date (net of the related Expense Fees) and received by the
Servicers on or prior to the related Determination Date, together with any P&I
Advance in respect thereof, (ii) certain unscheduled payments in respect of the
Mortgage Loans received by the Servicers during the related Prepayment Period
and remitted to the Master Servicer, including all partial or full prepayments,
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds (excluding
Prepayment Charges), (iii) Compensating Interest payments from the Servicers to
the Master Servicer in respect of Prepayment Interest Shortfalls for that
Distribution Date, (iv) for any Distribution Date on or prior to November 25,
2005, any funds required to be paid from the Capitalized Interest Account to
make up for any interest shortfalls on the Initial Mortgage Loans, (v)
immediately following the end of the Pre-Funding Period, all amounts, if any, on
deposit in the Pre-Funding Accounts, (vi) the proceeds from repurchases of
Mortgage Loans, and any Substitution Adjustment Amounts received in connection
with respect to the substitutions of Mortgage Loans that occur during the month
in which such Distribution Date occurs at the Repurchase Price and (vii) all
proceeds received with respect to the termination of the Trust Fund pursuant to
Section 9.01(a)
33
hereof, reduced by (y) amounts in reimbursement for Advances previously made
with respect to the Mortgage Loans and other amounts, in each case, as to which
the Master Servicer, the Securities Administrator, the Servicers, the Depositor,
the Custodian or the Trustee are entitled to be paid or reimbursed pursuant to
the Agreement.
Average Net Proceeds: As defined in Exhibit M hereto.
Balloon Loan: Any Mortgage Loan that requires only payments of
interest until the stated maturity date of the Mortgage Loan or Scheduled
Payments of principal which (not including the payment due on its stated
maturity date) are based on an amortization schedule that would be insufficient
to fully amortize the principal thereof by the stated maturity date of the
Mortgage Loan.
Basic Principal Distribution Amount: With respect to any Distribution
Date, the excess of (i) the aggregate Principal Remittance Amount for such
Distribution Date over (ii) the Excess Subordinated Amount, if any, for such
Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of LIBOR
Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of LIBOR Certificates is
based upon the WAC Cap, the Group I Loan Cap or the Group II Loan Cap, as
applicable, the excess of (i) the amount of interest such Class of Certificates
would otherwise be entitled to receive on such Distribution Date had such rate
been calculated as the sum of LIBOR and the applicable Pass-Through Margin on
such Class of Certificates for such Distribution Date, over (ii) the amount of
interest payable on such Class of Certificates calculated at the WAC Cap, the
Group I Loan Cap or the Group II Loan Cap, as applicable, for such Distribution
Date and (B) the Basis Risk Carry Forward Amount for such Class of Certificates
for all previous Distribution Dates not previously paid, together with interest
thereon at a rate equal to the sum of LIBOR and the applicable Pass-Through
Margin for such Class of Certificates for such Distribution Date. For federal
income tax purposes, with respect to each Class of LIBOR Certificates, as of any
Distribution Date, the sum of (A) if on such Distribution Date, the interest
rate for any Corresponding REMIC V Regular Interest is based upon the REMIC
Adjusted WAC Cap, the Group I REMIC Rate or the Group II REMIC Rate, as
applicable, the excess of (i) the amount of interest such Class of Certificates
would otherwise be entitled to receive on such Distribution Date had such rate
been calculated as the sum of LIBOR and the applicable Pass-Through Margin on
such Class of Certificates for such Distribution Date, over (ii) the amount of
interest payable on such REMIC V Regular Interest calculated at the REMIC
Adjusted WAC Cap, the Group I REMIC Rate or the Group II REMIC Rate, as
applicable, for such Distribution Date and (B) the Basis Risk Carry Forward
Amount for such Class of Certificates for all previous Distribution Dates not
previously paid, together with interest thereon at a rate equal to the sum of
LIBOR and the applicable Pass-Through Margin for such Class of Certificates for
such Distribution Date.
Basis Risk Payment: For any Distribution Date, a payment in an amount
equal to any Basis Risk Carry Forward Amount; provided, however, that with
respect to any Distribution Date, the payment cannot exceed the amounts
otherwise available for distribution on the Class X Certificates.
34
Best's: Best's Key Rating Guide, as the same shall be amended from
time to time.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) Saturday or Sunday, or (ii) a day
on which banking and savings and loan institutions, in (a) the States of
California, New York, Utah, New Jersey and Florida, (b) the applicable states in
which the Servicers' servicing operations are located, (c) the State in which
the Securities Administrator's or Master Servicer's operations are located or
(d) the State in which the Custodian's operations are located, are authorized or
obligated by law or executive order to be closed.
Capitalized Interest Account: The separate Eligible Account created
and maintained by the Securities Administrator pursuant to Section 3.07(e) in
the name of the Securities Administrator for the benefit of the LIBOR
Certificateholders and designated "JPMorgan Chase Bank, N.A., in trust for
registered holders of IXIS Real Estate Capital Trust 2005-HE3, Mortgage
Pass-Through Certificates, Series 2005-HE3".
Capitalized Interest Requirement: With respect to the Distribution
Dates occurring in September 2005, October 2005 and November 2005, the excess,
if any, of (x) the Accrued Certificate Interests for all classes of the LIBOR
Certificates for such Distribution Date over (y) all scheduled installments of
interest (net of the related Expense Fees) due on the Mortgage Loans in the
related Due Period. In no event will the Capitalized Interest Requirement be
less than zero.
Certificate: Any one of the Certificates executed by the Securities
Administrator in substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of Certificates, other
than the Class X and Class R Certificates, at any date, the maximum dollar
amount of principal to which the Holder thereof is then entitled hereunder, such
amount being equal to the Denomination thereof minus all distributions of
principal previously made with respect thereto and in the case of any
Certificates, reduced by any Applied Realized Loss Amounts allocated to such
Class of Certificates pursuant to Section 4.05; provided, however, that
immediately following the Distribution Date on which a Subsequent Recovery is
distributed, the Class Certificate Balances of any Class or Classes of
Certificates that have been previously reduced by Applied Realized Loss Amounts
will be increased, in order of seniority, by the amount of the Subsequent
Recovery distributed on such Distribution Date (up to the amount of Unpaid
Realized Loss Amounts for such Class or Classes for such Distribution Date);
provided, that the Certificate Balance of any Class of Certificates that had
previously been reduced to zero shall not be increased as a result of any
Subsequent Recoveries. The Class X and Class R Certificates have no Certificate
Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
35
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor or any Affiliate of the Depositor shall be deemed not to
be Outstanding and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage Interests
necessary to effect such consent has been obtained; provided, however, that if
any such Person (including the Depositor) owns 100% of the Percentage Interests
evidenced by a Class of Certificates, such Certificates shall be deemed to be
Outstanding for the purposes of any provision hereof that requires the consent
of the Holders of Certificates of a particular Class as a condition to the
taking of any action hereunder. The Securities Administrator is entitled to rely
conclusively on a certification of the Depositor or any Affiliate of the
Depositor in determining which Certificates are registered in the name of an
Affiliate of the Depositor.
Certification: As defined in Section 8.12(b).
Chapel Mortgage: Chapel Mortgage Corporation, a New Jersey
corporation, and its successors in interest.
Chapel Mortgage Assignment Agreement: The Assignment and Recognition
Agreement, dated as of August 30, 2005, by and among the Unaffiliated Seller,
the Depositor and Chapel Mortgage, and each other Assignment and Recognition
Agreement by and among the Unaffiliated Seller, the Depositor and Chapel
Mortgage in connection with any Subsequent Transfer of Chapel Mortgage Loans.
Chapel Mortgage Loan: A Mortgage Loan which was acquired from Chapel
Mortgage by the Unaffiliated Seller pursuant to the Chapel Mortgage Purchase
Agreement, and which has been acquired by the Trust Fund.
Chapel Mortgage Purchase Agreement: The Mortgage Loan Purchase and
Warranties Agreement, dated as of June 4, 2002, as amended to date, by and
between the Unaffiliated Seller and Chapel Mortgage.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Certificates: The Class A-1, Class A-2, Class A-3 and Class
A-4 Certificates.
Class A Principal Allocation Percentage: With respect to any
Distribution Date, the percentage equivalent of a fraction, determined as
follows: (i) in the case of the Class A-1 Certificates the numerator of which is
(x) the portion of the Principal Remittance Amount for such Distribution Date
that is attributable to principal received or advanced on the Group I Mortgage
Loans and the denominator of which is (y) the Principal Remittance Amount for
such Distribution Date and (ii) in the case of the Class A Sequential
Certificates, the numerator of which is (x) the portion of the Principal
Remittance Amount for such Distribution Date that is attributable to principal
received or advanced on the Group II Mortgage Loans and the denominator of which
is (y) the Principal Remittance Amount for such Distribution Date.
36
Class A Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the excess of (x) the aggregate Class
Certificate Balances of the Class A Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) 57.50% of the Current Maximum
Amount and (B) the excess, if any, of the Current Maximum Amount over
$3,838,280.
Class A Sequential Certificates: Collectively, the Class A-2
Certificates, the Class A-3 Certificates and the Class A-4 Certificates.
Class A-1 Certificates: All Certificates bearing the class designation
of "Class A-1."
Class A-1 Certificate Insurer: Financial Security Assurance Inc., a
financial guaranty insurance company organized and created under the laws of the
State of New York, and any successors thereto.
Class A-1 Certificate Insurer Default: The existence and continuance
of any of the following:
(a) the Class A-1 Certificate Insurer shall have failed to make a
required payment when due under the Certificate Insurance Policy;
(b) the Class A-1 Certificate Insurer shall have (i) filed a petition
or commenced any case or proceeding under any provision or chapter of the United
States Bankruptcy Code, the New York State Insurance Law or any other similar
federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation, or reorganization, (ii) made a general assignment for the benefit
of its creditors or (iii) had an order for relief entered against it under the
United States Bankruptcy Code, the New York State Insurance Law or any other
similar federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation, or reorganization that is final and nonappealable; or
(c) a court of competent jurisdiction, the New York Department of
Insurance or any other competent regulatory authority shall have entered a final
and nonappealable order, judgment or decree (i) appointing a custodian, trustee,
agent, or receiver for the Class A-1 Certificate Insurer or for all or any
material portion of its property or (ii) authorizing the taking of possession by
a custodian, trustee, agent, or receiver of the Class A-1 Certificate Insurer or
of all or any material portion of its property.
Class A-1 Certificate Insurance Policy: The Financial Guaranty
Insurance Policy No. 51670-N and all endorsements thereto dated the Closing
Date, issued by the Class A-1 Certificate Insurer for the benefit of the Class
A-1 Certificateholders.
Class A-1 Deficiency: With respect to any Distribution Date and the
Class A-1 Certificates, an amount equal to the sum of:
(i) the Class A-1 Interest Deficit Amount; plus
37
(ii) the Class A-1 Principal Parity Amount, if any, for such
Distribution Date; and
(iii) the Class Certificate Balance of the Class A-1 Certificates to
the extent unpaid on the Final Scheduled Distribution Date (after giving
effect to any Class A-1 Principal Parity Amounts paid by the Class A-1
Certificate Insurer prior to such date) or, if earlier, the date on which
the final distribution is made to the Class A-1 Certificateholders pursuant
to Article IX, in each case after giving effect to all distributions made
on such date from sources other than the Certificate Insurance Policy for
the Class A-1 Certificates.
Class A-1 Interest Deficit Amount: With respect to any Distribution
Date and the Class A-1 Certificates, the product of (i) the Interest Deficit
Amount and (ii) a fraction, the numerator of which is the outstanding Class
Certificate Balance of the Class A-1 Certificates on such Distribution Date, and
the denominator of which is the aggregate outstanding Class Certificate Balances
of all Class A Certificates on such Distribution Date, in each case, without
taking into account any reduction of principal on such Certificates on such
Distribution Date.
Class A-1 Principal Parity Amount: With respect to any Distribution
Date, the product of (i) the Principal Parity Deficit and (ii) a fraction, the
numerator of which is the initial Class Certificate Balance of the Class A-1
Certificates, and the denominator of which is the initial aggregate Class
Certificate Balances of all Class A Certificates.
Class A-2 Certificates: All Certificates bearing the class designation
of "Class A-2."
Class A-3 Certificates: All Certificates bearing the class designation
of "Class A-3."
Class A-4 Certificates: All Certificates bearing the class designation
of "Class A-4."
Class B Certificates: The Class B-1, Class B-2, Class B-3 and Class
B-4 Certificates.
Class B-1 Certificates: All Certificates bearing the class designation
of "Class B-1."
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the excess of (i) the sum of (A) the
aggregate Class Certificate Balances of the Class A Certificates (after taking
into account the distribution of the Class A Principal Distribution Amount on
such Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class M-3 Certificates (after
taking into account the distribution of the Class M-3 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class
38
M-4 Certificates (after taking into account the distribution of the Class M-4
Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (G) the Class Certificate Balance of the Class M-6 Certificates (after
taking into account the distribution of the Class M-6 Principal Distribution
Amount on such Distribution Date), and (H) the Class Certificate Balance of the
Class B-1 Certificates immediately prior to such Distribution Date over (ii) the
lesser of (A) 89.30% of the Current Maximum Amount and (B) the excess, if any,
of the Current Maximum Amount over $3,838,280.
Class B-2 Certificates: All Certificates bearing the class designation
of "Class B-2".
Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the excess of (i) the sum of (A) the
aggregate Class Certificate Balances of the Class A Certificates (after taking
into account the distribution of the Class A Principal Distribution Amount on
such Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class M-3 Certificates (after
taking into account the distribution of the Class M-3 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class M-4 Certificates (after taking into account the distribution of the Class
M-4 Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (G) the Class Certificate Balance of the Class M-6 Certificates (after
taking into account the distribution of the Class M-6 Principal Distribution
Amount on such Distribution Date), (H) the Class Certificate Balance of the
Class B-1 Certificates (after taking into account the distribution of the Class
B-1 Principal Distribution Amount on such Distribution Date), and (I) the Class
Certificate Balance of the Class B-2 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 91.90% of the Current Maximum
Amount and (B) the excess, if any, of the Current Maximum Amount over
$3,838,280.
Class B-3 Certificates: All Certificates bearing the class designation
of "Class B-3".
Class B-3 Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the excess of (i) the sum of (A) the
aggregate Class Certificate Balances of the Class A Certificates (after taking
into account the distribution of the Class A Principal Distribution Amount on
such Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class M-3 Certificates (after
taking into account the distribution of the Class M-3 Principal
39
Distribution Amount on such Distribution Date), (E) the Class Certificate
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (F) the Class Certificate Balance of the Class M-5 Certificates (after
taking into account the distribution of the Class M-5 Principal Distribution
Amount on such Distribution Date), (G) the Class Certificate Balance of the
Class M-6 Certificates (after taking into account the distribution of the Class
M-6 Principal Distribution Amount on such Distribution Date), (H) the Class
Certificate Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date), (I) the Class Certificate Balance of the Class B-2 Certificates (after
taking into account the distribution of the Class B-2 Principal Distribution
Amount on such Distribution Date), and (J) the Class Certificate Balance of the
Class B-3 Certificates immediately prior to such Distribution Date over (ii) the
lesser of (A) 93.40% of the Current Maximum Amount and (B) the excess, if any,
of the Current Maximum Amount over $3,838,280.
Class B-4 Certificates: All Certificates bearing the class designation
of "Class B-4".
Class B-4 Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the excess of (i) the sum of (A) the
aggregate Class Certificate Balances of the Class A Certificates (after taking
into account the distribution of the Class A Principal Distribution Amount on
such Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class M-3 Certificates (after
taking into account the distribution of the Class M-3 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class M-4 Certificates (after taking into account the distribution of the Class
M-4 Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (G) the Class Certificate Balance of the Class M-6 Certificates (after
taking into account the distribution of the Class M-6 Principal Distribution
Amount on such Distribution Date), (H) the Class Certificate Balance of the
Class B-1 Certificates (after taking into account the distribution of the Class
B-1 Principal Distribution Amount on such Distribution Date), (I) the Class
Certificate Balance of the Class B-2 Certificates (after taking into account the
distribution of the Class B-2 Principal Distribution Amount on such Distribution
Date), (J) the Class Certificate Balance of the Class B-3 Certificates (after
taking into account the distribution of the Class B-3 Principal Distribution
Amount on such Distribution Date), and (K) the Class Certificate Balance of the
Class B-4 Certificates immediately prior to such Distribution Date over (ii) the
lesser of (A) 95.40% of the Current Maximum Amount and (B) the excess, if any,
of the Current Maximum Amount over $3,838,280.
Class Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
40
Class I Interests: As described in the Preliminary Statement.
Class M Certificates: The Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5 and Class M-6 Certificates.
Class M-1 Certificates: All Certificates bearing the class designation
of "Class M-1".
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the excess of (i) the sum of (A) the
aggregate Class Certificate Balances of the Class A Certificates (after taking
into account the distribution of the Class A Principal Distribution Amount on
such Distribution Date) and (B) the Class Certificate Balance of the Class M-1
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(A) 65.20% of the Current Maximum Amount and (B) the excess, if any, of the
Current Maximum Amount over $3,838,280.
Class M-2 Certificates: All Certificates bearing the class designation
of "Class M-2."
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the excess of (i) the sum of (A) the
aggregate Class Certificate Balances of the Class A Certificates (after taking
into account the distribution of the Class A Principal Distribution Amount on
such Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date) and (C) the Class
Certificate Balance of the Class M-2 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 72.10% of the Current Maximum
Amount and (B) the excess, if any, of the Current Maximum Amount over
$3,838,280.
Class M-3 Certificates: All Certificates bearing the class designation
of "Class M-3".
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the excess of (i) the sum of (A) the
aggregate Class Certificate Balances of the Class A Certificates (after taking
into account the distribution of the Class A Principal Distribution Amount on
such Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), and (D) the Class Certificate Balance of the Class M-3 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) 76.10%
of the Current Maximum Amount and (B) the excess, if any, of the Current Maximum
Amount over $3,838,280.
Class M-4 Certificates: All Certificates bearing the class designation
of "Class M-4".
41
Class M-4 Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the excess of (i) the sum of (A) the
aggregate Class Certificate Balances of the Class A Certificates (after taking
into account the distribution of the Class A Principal Distribution Amount on
such Distribution Date), (B) the Class Certificate Balances of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balances of the Class M-2 Certificates (after taking into account
the distribution of the Class M-2 Principal Distribution Amount on such
Distribution Date), (D) the Class Certificate Balances of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date) and (E) the Class
Certificate Balances of the Class M-4 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 79.90% of the Current Maximum
Amount and (B) the excess, if any, of the Current Maximum Amount over
$3,838,280.
Class M-5 Certificates: All Certificates bearing the class designation
of "Class M-5".
Class M-5 Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the excess of (i) the sum of (A) aggregate
Class Certificate Balances of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount on such
Distribution Date), (B) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (C) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (D) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (E) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date) and (F) the Certificate Principal Balance of the Class M-5 Certificates
immediately prior to such Distribution Date over (i) the lesser of (A) 83.30% of
the Current Maximum Amount and (B) the excess, if any, of the Current Maximum
Amount over $3,838,280.
Class M-6 Certificates: All Certificates bearing the class designation
of "Class M-6".
Class M-6 Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the excess of (i) the sum of (A) the
aggregate Class Certificate Balances of the Class A Certificates (after taking
into account the distribution of the Class A Principal Distribution Amount on
such Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class M-3 Certificates (after
taking into account the distribution of the Class M-3 Principal Distribution
Amount on such Distribution Date), (E) the Class Certificate Balance of the
Class M-4 Certificates (after taking into account the distribution of the Class
M-4 Principal
42
Distribution Amount on such Distribution Date), (F) the Class Certificate
Balance of the Class M-5 Certificates (after taking into account the
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date) and (G) the Class Certificate Balance of the Class M-6 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) 86.50%
of the Current Maximum Amount and (B) the excess, if any, of the Current Maximum
Amount over $3,838,280.
Class P Certificates: All Certificates bearing the class designation
of "Class P".
Class R Certificates: All Certificates bearing the class designation
of "Class R".
Class X Certificates: All Certificates bearing the class designation
of "Class X".
Class X Distributable Amount: On any Distribution Date, the sum of (i)
as a distribution in respect of interest, the amount of interest that has
accrued on the Class X Regular Interests and not applied as an Extra Principal
Distribution Amount on such Distribution Date, plus any such accrued interest
remaining undistributed from prior Distribution Dates, plus, without
duplication, (ii) as a distribution in respect of principal, any portion of the
principal balance of the Class X Regular Interest which is distributable as a
Subordination Reduction Amount, less (iii) any amounts paid as a Basis Risk
Payment.
Class X Regular Interest: The REMIC V Regular Interests represented by
the Class X Certificates as specified and described in the Preliminary Statement
and the related footnote thereto.
Closing Date: August 30, 2005.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Accounts: As defined in Section 3.10(a).
Compensating Interest: For any Distribution Date, the lesser of (a)
the amount by which the Prepayment Interest Shortfall, if any, for such
Distribution Date exceeds all Prepayment Interest Excesses for such Distribution
Date, with respect to voluntary Principal Prepayments in Full (excluding any
payments made upon liquidation of the Mortgage Loan) and (b) the Servicing Fee
payable to the Servicers for such Distribution Date.
Condemnation Proceeds: All awards of settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation.
Corporate Trust Office: The designated office in the State of
California at which at any particular time its corporate trust business with
respect to this Agreement is administered, which office at the date of the
execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000, Attn: Trust Administration IX0503, facsimile no. (000)000-0000
and which is the address to which notices to and correspondence with the Trustee
should be directed.
43
Corresponding Class: As described in the Preliminary Statement.
Corresponding Distribution Date:
---------------------------------------------------------------------------
Corresponding Distribution Date is the
REMIC III Regular Interest Distribution Date occurring in:
---------------------------------------------------------------------------
Class III-C1a-c, Class III-D1a-c September 2005
---------------------------------------------------------------------------
Class III-C2a-c, Class III-D2a-c October 2005
---------------------------------------------------------------------------
Class III-C3a-c, Class III-D3a-c November 2005
---------------------------------------------------------------------------
Class III-C4a-c, Class III-D4a-c December 2005
---------------------------------------------------------------------------
Class III-C5a-c, Class III-D5a-c January 2006
---------------------------------------------------------------------------
Class III-C6a-c, Class III-D6a-c February 2006
---------------------------------------------------------------------------
Class III-C7a-c, Class III-D7a-c March 2006
---------------------------------------------------------------------------
Class III-C8a-c, Class III-D8a-c April 2006
---------------------------------------------------------------------------
Class III-C9a-c, Class III-D9a-c May 2006
---------------------------------------------------------------------------
Class III-C10a-c, Class III-D10a-c June 2006
---------------------------------------------------------------------------
Class III-C11a-c, Class III-D11a-c July 2006
---------------------------------------------------------------------------
Class III-C12a-c, Class III-D12a-c August 2006
---------------------------------------------------------------------------
Class III-C13a-c, Class III-D13a-c September 2006
---------------------------------------------------------------------------
Class III-C14a-c, Class III-D14a-c October 2006
---------------------------------------------------------------------------
Class III-C15a-c, Class III-D15a-c November 2006
---------------------------------------------------------------------------
Class III-C16a-c, Class III-D16a-c December 2006
---------------------------------------------------------------------------
Class III-C17a-c, Class III-D17a-c January 2007
---------------------------------------------------------------------------
Class III-C18a-c, Class III-D18a-c February 2007
---------------------------------------------------------------------------
Class III-C19a-c, Class III-D19a-c March 2007
---------------------------------------------------------------------------
Class III-C20a-c, Class III-D20a-c April 2007
---------------------------------------------------------------------------
44
---------------------------------------------------------------------------
Class III-C21a-c, Class III-D21a-c May 2007
---------------------------------------------------------------------------
Class III-C22a-c, Class III-D22a-c June 2007
---------------------------------------------------------------------------
Class III-C23a-c, Class III-D23a-c July 2007
---------------------------------------------------------------------------
Class III-C24a-c, Class III-D24a-c August 2007
---------------------------------------------------------------------------
Class III-C25a-c, Class III-D25a-c September 2007
---------------------------------------------------------------------------
Class III-C26a-c, Class III-D26a-c October 2007
---------------------------------------------------------------------------
Class III-C27a-c, Class III-D27a-c November 2007
---------------------------------------------------------------------------
Class III-C28a-c, Class III-D28a-c December 2007
---------------------------------------------------------------------------
Class III-C29a-c, Class III-D29a-c January 2008
---------------------------------------------------------------------------
Class III-C30a-c, Class III-D30a-c February 2008
---------------------------------------------------------------------------
Class III-C31a-c, Class III-D31a-c March 2008
---------------------------------------------------------------------------
Class III-C32a-c, Class III-D32a-c April 2008
---------------------------------------------------------------------------
Class III-C33a-c, Class III-D33a-c May 2008
---------------------------------------------------------------------------
Class III-C34a-c, Class III-D34a-c June 2008
---------------------------------------------------------------------------
Class III-C35a-c, Class III-D35a-c July 2008
---------------------------------------------------------------------------
Class III-C36a-c, Class III-D36a-c August 2008
---------------------------------------------------------------------------
Class III-C37a-c, Class III-D37a-c September 2008
---------------------------------------------------------------------------
Class III-C38a-c, Class III-D38a-c October 2008
---------------------------------------------------------------------------
Class III-C39a-c, Class III-D39a-c November 2008
---------------------------------------------------------------------------
Class III-C40a-c, Class III-D40a-c December 2008
---------------------------------------------------------------------------
Class III-C41a-c, Class III-D41a-c January 2009
---------------------------------------------------------------------------
Class III-C42a-c, Class III-D42a-c February 2009
---------------------------------------------------------------------------
Class III-C43a-c, Class III-D43a-c March 2009
---------------------------------------------------------------------------
Class III-C44a-c, Class III-D44a-c April 2009
---------------------------------------------------------------------------
45
---------------------------------------------------------------------------
Class III-C45a-c, Class III-D45a-c May 2009
---------------------------------------------------------------------------
Class III-C46a-c, Class III-D46a-c June 2009
---------------------------------------------------------------------------
Class III-C47a-c, Class III-D47a-c July 2009
---------------------------------------------------------------------------
Class III-C48a-c, Class III-D48a-c August 2009
---------------------------------------------------------------------------
Class III-C49a-c, Class III-D49a-c September 2009
---------------------------------------------------------------------------
Class III-C50a-c, Class III-D50a-c October 2009
---------------------------------------------------------------------------
Class III-C51a-c, Class III-D51a-c November 2009
---------------------------------------------------------------------------
Class III-C52a-c, Class III-D52a-c December 2009
---------------------------------------------------------------------------
Class III-C53a-c, Class III-D53a-c January 2010
---------------------------------------------------------------------------
Corresponding REMIC V Interest: As described in the Preliminary
Statement.
Countrywide: Countrywide Home Loans Servicing LP, a Texas limited
partnership.
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard and Poor's Glossary.
Cumulative Loss Percentage: With respect to any Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the aggregate
amount of Realized Losses incurred from the Cut-off Date to the last day of the
calendar month preceding the month in which the Distribution Date occurs less
any amounts received with respect to Realized Losses on the related Mortgage
Loans subsequent to the Final Recovery Determination being made with respect to
such Mortgage Loans and the denominator of which is the Cut-off Date Pool
Principal Balance of the Mortgage Loans.
Cumulative Loss Trigger Event: With respect to any Distribution Date,
a Cumulative Loss Trigger Event exists if the quotient (expressed as a
percentage) of the aggregate amount of Realized Losses incurred since the
related Cut-off Date through the last day of the related Prepayment Period
divided by the Maximum Pool Principal Balance exceeds the applicable cumulative
loss percentage as follows with respect to such Distribution Date:
DISTRIBUTION DATE OCCURRING IN CUMULATIVE LOSS PERCENTAGE
------------------------------ -----------------------------------------------
September 2007 through August 1.500% for the first month, plus an additional
2008 1/12th of 1.750% for each month thereafter
(e.g., 2.375% in March 2008)
September 2008 through August 3.250% for the first month, plus an additional
2009 1/12th of 1.750% for each month thereafter
(e.g., 4.125% in March 2009)
46
DISTRIBUTION DATE OCCURRING IN CUMULATIVE LOSS PERCENTAGE
------------------------------ -----------------------------------------------
September 2009 through August 5.000% for the first month, plus an additional
2010 1/12th of 1.500% for each month thereafter
(e.g., 5.750% in March 2010)
September 2010 through August 6.500% for the first month, plus an additional
2011 1/12th of 1.000% for each month thereafter
(e.g., 7.000% in March 2011)
September 2011 and thereafter 7.500%
Current Maximum Amount: With respect to any date of determination, the
sum of (i) the aggregate of the Stated Principal Balances of the Mortgage Loans
in the Trust at such time, and (ii) with respect to each date of determination
prior to the Distribution Date on or prior to November 25, 2005, the Pre-Funding
Amount immediately prior to such Distribution Date, net of investment earnings
on deposit therein.
Custodian: Deutsche Bank National Trust Company, a national banking
association, and its successors in interest.
Custodial File: With respect to each Mortgage Loan, the file retained
by the Custodian consisting of items (i) - (viii) of Section 2.01(b).
Cut-off Date: With respect to the Initial Mortgage Loans, August 1,
2005, and with respect to each Subsequent Mortgage Loan, the related Subsequent
Cut-off Date.
Cut-off Date Pool Principal Balance: The aggregate Stated Principal
Balances of all Mortgage Loans as of the Cut-off Date (after giving effect to
payments of principal due on that date, whether or not received).
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Data Tape Information: The information provided by the Unaffiliated
Seller as of August 1, 2005 to the Depositor setting forth the following
information with respect to each Mortgage Loan: (1) the Mortgagor's name; (2) as
to each Mortgage Loan, the Scheduled Principal Balance as of the Cut-off Date;
(3) the Mortgage Rate Cap; (4) the Index; (5) a code indicating whether the
Mortgaged Property is owner-occupied; (6) the type of Mortgaged Property; (7)
the first date on which the Scheduled Payment was due on the Mortgage Loan and,
if such date is not consistent with the Due Date currently in effect, such Due
Date; (8) the "paid through date" based on payments received from the related
Mortgagor; (9) the original principal amount of the Mortgage Loan; (10) with
respect to Adjustable Rate Mortgage Loans, the Maximum Mortgage Rate; (11) the
type of Mortgage Loan (i.e., Fixed Rate Mortgage Loan, Adjustable Rate Mortgage
Loan, First Lien Mortgage Loan or Second Lien Mortgage Loan); (12) a code
indicating the purpose of the loan (i.e., purchase, rate and term refinance,
equity take-out refinance); (13) a code indicating the documentation style
(i.e., full, asset verification, income verification and no documentation); (14)
the credit risk score (FICO score); (15) the loan credit grade classification
(as described in the Underwriting Guidelines); (16) with respect to
47
each Adjustable Rate Mortgage Loan, the Minimum Mortgage Rate; (17) the Mortgage
Rate at origination; (18) with respect to each Adjustable Rate Mortgage Loan,
the first Adjustment Date immediately following the Cut-off Date; (19) the value
of the Mortgaged Property; (20) a code indicating the type and term of
Prepayment Charges applicable to such Mortgage Loan, if any; and (21) with
respect to each Adjustable Rate Mortgage Loan, the Periodic Mortgage Rate Cap.
With respect to the Mortgage Loans in the aggregate, the Data Tape Information
shall set forth the following information, as of the Cut-off Date: (1) the
number of Mortgage Loans; (2) the current aggregate outstanding principal
balance of the Mortgage Loans; (3) the weighted average Mortgage Rate of the
Mortgage Loans; and (4) the weighted average maturity of the Mortgage Loans.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction
by a court of competent jurisdiction in a proceeding under the United States
Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which became
final and non-appealable, except such a reduction resulting from a Deficient
Valuation or any reduction that results in a permanent forgiveness of principal.
Defaulted Swap Termination Payment: Any termination payment required
to be made by the Trust to the Swap Provider pursuant to the Interest Rate Swap
Agreement as a result of: either (i) an event of default under the Interest Rate
Swap Agreement with respect to which the Swap Provider is the defaulting party
or (ii) a termination event under that agreement (other than illegality, a tax
event or a tax event upon merger of the Swap Provider) with respect to which the
Swap Provider is the sole affected party.
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 United States Bankruptcy
Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased by the
Unaffiliated Seller or the related Originator, as applicable, or replaced with a
Substitute Mortgage Loan in accordance with the terms hereof and the related
Mortgage Loan Purchase Agreement.
Delinquency Trigger Event: With respect to a Distribution Date after
the Stepdown Date, the event that is in effect if the quotient (expressed as a
percentage) of (x) the three-month rolling daily average of the aggregate Stated
Principal Balance of 60+ Day Delinquent Loans as of the last day of the related
Due Period, over (y) the Current Maximum Amount of the Mortgage Loans as of the
last day of the related Due Period exceeds 38.00% of the prior period's Senior
Enhancement Percentage.
Delinquent: A mortgage loan is "Delinquent" if any Scheduled Payment
due on a due date is not made by the close of business on the next scheduled due
date for that mortgage
48
loan (including all Mortgage Loans in foreclosure, Mortgage Loans in respect of
REO Properties and Mortgage Loans for which the related Mortgagor has declared
bankruptcy). A mortgage loan is "30 days Delinquent" if the Scheduled Payment
has not been received by the close of business on the corresponding day of the
month immediately succeeding the month in which that Scheduled Payment was due
or, if there was no corresponding date (e.g., as when a 30-day month follows a
31-day month in which the payment was due on the 31st day of that month), then
on the last day of that immediately preceding month; and similarly for "60 days
Delinquent" and "90 days Delinquent," etc.
Delivery Date: With respect to the Initial Mortgage Loans, the Closing
Date; with respect to any Subsequent Mortgage Loans, the related Subsequent
Transfer Date therefor.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: Xxxxxx Xxxxxxx ABS Capital I Inc., a Delaware corporation,
and its successors in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to each Servicer Remittance Date, the
15th of each month, or if the 15th is not a Business Day, the immediately
preceding Business Day.
Distribution Account: The separate Eligible Account created and
maintained by the Securities Administrator pursuant to Section 3.07(d) in the
name of the Securities Administrator for the benefit of the Certificateholders
and designated "JPMorgan Chase Bank, N.A., in trust for registered holders of
IXIS Real Estate Capital Trust 2005-HE3, Mortgage Pass-Through Certificates,
Series 2005-HE3". Funds in the Distribution Account shall be held in trust for
the Certificateholders for the uses and purposes set forth in this Agreement.
Distribution Date: The 25th day of each calendar month, or if such day
is not a Business Day, the next succeeding Business Day, commencing in September
2005.
Document Certification and Exception Report: The report attached to
Exhibit F hereto.
Due Date: The day of the month on which the Scheduled Payment is due
on a Mortgage Loan, exclusive of any days of grace.
49
Due Period: With respect to each Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
such Distribution Date occurs and ending on the first day of the calendar month
in which such Distribution Date occurs.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
commercial paper, short-term debt obligations, demand deposits or other
short-term deposits of which are rated in one of the two highest rating
categories by each of the Rating Agencies at the time any amounts are held on
deposit therein, (ii) an account or accounts the deposits in which are fully
insured by the FDIC (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 delivered to each Rating Agency, the
Certificateholders will have a claim with respect to the funds in such account
or a perfected first priority security interest against such collateral (which
shall be limited to Permitted Investments) securing such funds that is superior
to claims of any other depositors or creditors of the depository institution
with which such account is maintained, (iii) a trust account or accounts
maintained with the trust department of a federal or state chartered depository
institution, national banking association or trust company acting in its
fiduciary capacity, (iv) an account otherwise acceptable to each Rating Agency
or (v) an account maintained with a "qualified depository" (as such term is
defined in the related Servicing Agreement). Eligible Accounts may bear
interest.
Eligible Institution: A federal or state chartered depository
institution or trust company, which (x) with respect to any Eligible Account,
the amounts on deposit in which will be held for less than 30 days, the
commercial paper, short-term debt obligations, or other short-term deposits of
which are rated at least "F1" by Fitch, "P-1" by Moody's, and either "A-1+" or
"A-1", if the amounts on deposit represent less than 20% of the initial par
value of the securities, are not intended to be used as credit enhancement and
are to be held for less than 30 days, by Standard & Poor's (or a comparable
rating if another Rating Agency is specified by the Depositor by written notice
to the Servicers and the Securities Administrator) or (y) with respect to any
Eligible Account, the amounts on deposit in which will be held for no more than
365 days, the long-term unsecured debt obligations of which are rated at least
"A" by Fitch, "A" by Standard & Poor's and "A2" by Moody's (or a comparable
rating if another Rating Agency is specified by the Depositor by written notice
to the Servicers and the Securities Administrator).
Encore: Encore Credit Corporation, a California corporation, and its
successors in interest.
Encore Assignment Agreement: The Assignment and Recognition Agreement,
dated as of August 30, 2005, by and among the Unaffiliated Seller, the Depositor
and Encore, and each other Assignment and Recognition Agreement by and among the
Unaffiliated Seller, the Depositor and Encore in connection with any Subsequent
Transfer of Encore Mortgage Loans.
Encore Mortgage Loan: A Mortgage Loan which was acquired from Encore
by the Unaffiliated Seller pursuant to the Encore Purchase Agreement, and which
has been acquired by the Trust Fund.
50
Encore Purchase Agreement: The Mortgage Loan Purchase and Warranties
Agreement, dated as of December 1, 2002, as amended to date, by and between the
Unaffiliated Seller and Encore.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.09(b).
Escrow Payments: As defined in Section 3.09(b).
Event of Default: As defined in Section 7.01.
Excess Reserve Fund Account: The separate Eligible Account created and
maintained by the Securities Administrator pursuant to Sections 3.07(b) and
3.07(c) in the name of the Securities Administrator, on behalf of the
Supplemental Interest Trust, for the benefit of the Holders of the Regular
Certificates and designated "JPMorgan Chase Bank, N.A., in trust for registered
holders of IXIS Real Estate Capital Trust 2005-HE3, Mortgage Pass-Through
Certificates, Series 2005-HE3". Funds in the Excess Reserve Fund Account shall
be held in trust for the Holders of the Regular Certificates for the uses and
purposes set forth in this Agreement. Amounts on deposit in the Excess Reserve
Fund Account shall not be invested.
Excess Subordinated Amount: With respect to any Distribution Date, the
excess, if any, of (a) the Subordinated Amount on such Distribution Date over
(b) the Specified Subordinated Amount for such Distribution Date.
Exchange Act: As defined in Section 8.12(a).
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal to
the sum of the Servicing Fee Rates and the Securities Administrator and Master
Servicer Fee Rate.
Expense Fees: As to each Mortgage Loan, the sum of the Servicing Fees
and the Securities Administrator and Master Servicer Fee.
Extra Principal Distribution Amount: As of any Distribution Date, the
lesser of (x) the related Total Monthly Excess Spread for such Distribution Date
and (y) the Subordination Deficiency for such Distribution Date.
Xxxxxx Xxx: The Federal National Mortgage Association, or any
successor thereto.
Xxxxxx Mae Guides: The Xxxxxx Xxx Xxxxxxx' Guide and the Xxxxxx Mae
Servicers' Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
51
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Certification: A certification submitted by the Custodian in
substantially the form of Exhibit G hereto.
Final Recovery Determination: With respect to any defaulted Mortgage
Loan or any REO Property (other than a Mortgage Loan or REO Property purchased
by an Originator as contemplated by the Assignment and Recognition Agreements),
a determination made by the applicable Servicer that all Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and other payments or recoveries
which such Servicer, in its reasonable good faith judgment, expects to be
finally recoverable in respect thereof have been so recovered. The applicable
Servicer shall maintain records, prepared by a Servicing Officer, of each Final
Recovery Determination made thereby.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for each Class of Certificates is the Distribution Date in each of the
following months:
FINAL SCHEDULED
DISTRIBUTION DATE
-----------------
Class A-1 Certificates...................................... December 26, 2035
Class A-2 Certificates...................................... December 26, 2035
Class A-3 Certificates...................................... December 26, 2035
Class A-4 Certificates...................................... December 26, 2035
Class M-1 Certificates...................................... December 26, 2035
Class M-2 Certificates...................................... December 26, 2035
Class M-3 Certificates...................................... December 26, 2035
Class M-4 Certificates...................................... December 26, 2035
Class M-5 Certificates...................................... December 26, 2035
Class M-6 Certificates...................................... December 26, 2035
Class B-1 Certificates...................................... December 26, 2035
Class B-2 Certificates...................................... December 26, 2035
Class B-3 Certificates...................................... December 26, 2035
Class B-4 Certificates...................................... December 26, 2035
Class X Certificates........................................ December 26, 2035
Class P Certificates........................................ December 26, 2035
Class R Certificates........................................ December 26, 2035
First Bank: First Bank Mortgage, a Missouri corporation, and its
successors in interest.
First Bank Assignment Agreement: The Assignment and Recognition
Agreement, dated as of August 30, 2005, by and among the Unaffiliated Seller,
the Depositor and First Bank, and each other Assignment and Recognition
Agreement by and among the Unaffiliated Seller,
52
the Depositor and First Bank in connection with any Subsequent Transfer of First
Bank Mortgage Loans.
First Bank Mortgage Loan: A Mortgage Loan which was acquired from
First Bank by the Unaffiliated Seller pursuant to the First Bank Purchase
Agreement, and which has been acquired by the Trust Fund.
First Bank Purchase Agreement: The Mortgage Loan Purchase and
Warranties Agreement, dated as of April 1, 2003, as amended to date, by and
between the Unaffiliated Seller and First Bank.
First Horizon: First Horizon Home Loan Corp., a Kansas corporation.
First Horizon Capital Assignment Agreement: The Assignment and
Recognition Agreement, dated as of August 30, 2005, by and among the
Unaffiliated Seller, the Depositor and First Horizon, and each other Assignment
and Recognition Agreement by and among the Unaffiliated Seller, the Depositor
and First Horizon in connection with any Subsequent Transfer of First Horizon
Mortgage Loans.
First Horizon Mortgage Loan: A Mortgage Loan which was acquired from
First Horizon by the Unaffiliated Seller pursuant to the First Horizon Purchase
Agreement, and which has been acquired by the Trust Fund.
First Horizon Purchase Agreement: The Mortgage Loan Purchase and
Warranties Agreement, dated as of May 1, 2005, as amended to date, by and
between the Unaffiliated Seller and First Horizon.
First Lien Mortgage Loan: A Mortgage Loan secured by a first lien
Mortgage on the related Mortgaged Property.
First NLC: First NLC Financial Services., a Florida limited liability
company.
First NLC Capital Assignment Agreement: The Assignment and Recognition
Agreement, dated as of August 30, 2005, by and among the Unaffiliated Seller,
the Depositor and First NLC, and each other Assignment and Recognition Agreement
by and among the Unaffiliated Seller, the Depositor and First NLC in connection
with any Subsequent Transfer of First Bank Mortgage Loans.
First NLC Mortgage Loan: A Mortgage Loan which was acquired from First
NLC by the Unaffiliated Seller pursuant to the First NLC Purchase Agreement, and
which has been acquired by the Trust Fund.
First NLC Purchase Agreement: The Mortgage Loan Purchase and
Warranties Agreement, dated as of June 1, 2005, as amended to date, by and
between the Unaffiliated Seller and First NLC.
Fitch: Fitch, Inc., and its successors in interest. If Fitch is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to
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Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Residential Mortgage Surveillance Group - IXIS Real Estate Capital
Trust 2005-HE3, or such other address as Fitch may hereafter furnish to the
Depositor, the Securities Administrator, the Trustee and the Servicers.
Fixed Rate Mortgage Loan: A Mortgage Loan bearing interest at a fixed
rate.
FlexPoint: FlexPoint Funding Corp., a California corporation.
FlexPoint Assignment Agreement: The Assignment and Recognition
Agreement, dated as of August 30, 2005, by and among the Unaffiliated Seller,
the Depositor and FlexPoint, and each other Assignment and Recognition Agreement
by and among the Unaffiliated Seller, the Depositor and FlexPoint in connection
with any Subsequent Transfer of FlexPoint Mortgage Loans.
FlexPoint Mortgage Loan: A Mortgage Loan which was acquired from
FlexPoint by the Unaffiliated Seller pursuant to the FlexPoint Purchase
Agreement, and which has been acquired by the Trust Fund.
FlexPoint Purchase Agreement: The Mortgage Loan Purchase and
Warranties Agreement, dated as of June 1, 2005, as amended to date, by and
between the Unaffiliated Seller and FlexPoint.
Floor Amount: An amount equal to the product of (x) 0.50% and (y) the
Maximum Pool Principal Balance.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan, the
fixed percentage amount set forth in the related Mortgage Note to be added to
the applicable Index to determine the Mortgage Rate.
Group I Allocation Percentage: With respect to any Distribution Date,
the percentage equivalent of a fraction, (i) the numerator of which is the Group
I Principal Remittance Amount for such Distribution Date, and (ii) the
denominator of which is the Principal Remittance Amount for such Distribution
Date.
Group I Initial Pre-Funded Amount: $48,567,189.
Group I Interest Remittance Amount: With respect to any Distribution
Date, the portion of the Interest Remittance Amount that was collected or
advanced on the Group I Mortgage Loans.
Group I Loan Cap: The per annum rate equal to the product of (i) the
weighted average gross rate of the Group I Mortgage Loans then in effect on the
beginning of the related Due Period, less the applicable Expense Fee Rate less
the Premium Rate in respect of the Class A-1 Certificates and further reduced by
the product of the Group I Allocation Percentage and the Swap Payment and (ii) a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days in the Interest Accrual Period related to such
Distribution Date.
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Group I Mortgage Loans: The Mortgage Loans allocated to Group I which
primarily support the Class A-1 Certificates, as initially set forth on Schedule
I hereto.
Group I Pre-Funding Account: The separate Eligible Account created and
maintained by the Securities Administrator pursuant to Section 3.07(f) in the
name of the Securities Administrator, on behalf of the Trustee, for the benefit
of the Certificateholders, and designated "JPMorgan Chase Bank, in trust for
registered holders of IXIS Real Estate Capital Trust 2005-HE3, Mortgage
Pass-Through Certificates, Series 2005-HE3," the funds of which, during the
Pre-Funding Period, shall be applied solely to the purchase of Group I
Subsequent Mortgage Loans.
Group I Principal Remittance Amount: With respect to any Distribution
Date, that portion of the Principal Remittance Amount for such Distribution Date
that was collected or advanced on the Group I Mortgage Loans.
Group I REMIC III Net WAC: The weighted average of the interest rates
on the Class II-C1 through Class II-C53 Interests and the Class II-J1 Interests.
Group I REMIC IV Net WAC: The weighted average of the interest rates
on the Class III-C1a through Class III-C53a, Class III-C1b through Class
III-C53b Interests and the Class III-J1 Interests.
Group I REMIC Rate: The interest rate on the Class IV-J1 Interest.
Group I Subsequent Mortgage Loans: The Mortgage Loans hereafter
transferred and assigned to the Trust Fund and allocated to Group I pursuant to
Section 2.01(c), each of which shall have been purchased by the Unaffiliated
Seller under a Mortgage Loan Purchase Agreement.
Group II Allocation Percentage: With respect to any Distribution Date,
the percentage equivalent of a fraction, (i) the numerator of which is the Group
II Principal Remittance Amount for such Distribution Date and (ii) the
denominator of which is the Principal Remittance Amount for such Distribution
Date.
Group II Initial Pre-Funded Amount: $89,591,973.
Group II Interest Remittance Amount: With respect to any Distribution
Date, the portion of the Interest Remittance Amount that was collected or
advanced on the Group II Mortgage Loans.
Group II Loan Cap: The per annum rate equal to the product of (i) the
weighted average gross rate of the Group II Mortgage Loans then in effect on the
beginning of the related Due Period, less the applicable Expense Fee Rate and
further reduced by the product of the Group II Allocation Percentage and the
Swap Payment and (ii) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the Interest Accrual Period
related to such Distribution Date.
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Group II Mortgage Loans: The Mortgage Loans allocated to Group II
which primarily support the Class A-2, Class A-3 and Class A-4 Certificates, as
initially set forth on Schedule I hereto.
Group II Pre-Funding Account: The separate Eligible Account created
and maintained by the Securities Administrator pursuant to Section 3.07(f) in
the name of the Securities Administrator, on behalf of the Trustee, for the
benefit of the Certificateholders, and designated "JPMorgan Chase Bank, in trust
for registered holders of IXIS Real Estate Capital Trust 2005-HE3, Mortgage
Pass-Through Certificates, Series 2005-HE3," the funds of which, during the
Pre-Funding Period, shall be applied solely to the purchase of Group II
Subsequent Mortgage Loans.
Group II Principal Remittance Amount: With respect to any Distribution
Date, that portion of the Principal Remittance Amount for such Distribution Date
that was collected or advanced on the Group II Mortgage Loans.
Group II REMIC III Net WAC: The weighted average of the interest rates
on the Class II-D1 through Class II-D53 Interests and the Class II-J2 Interests.
Group II REMIC IV Net WAC: The weighted average of the interest rates
on the Class III-D1a through Class III-D53a, Class III-D1b through Class
III-D53b Interests and the Class III-J2 Interests.
Group II REMIC Rate: The interest rate on the Class IV-J2 Interest.
Group II Subsequent Mortgage Loans: The Mortgage Loans hereafter
transferred and assigned to the Trust Fund and allocated to Group II pursuant to
Section 2.01(c), each of which shall have been purchased by the Unaffiliated
Seller under a Mortgage Loan Purchase Agreement.
High Cost Loan: A Mortgage Loan classified as (a) a "high cost" loan
under the Home Ownership and Equity Protection Act of 1994, (b) a "high cost
home," "threshold," "covered," (excluding New Jersey "Covered Home Loans" as
that term is defined in clause (1) of the definition of that term in the New
Jersey Home Ownership Security Act of 2002), "high risk home," "predatory" or
similar loan under any other applicable state, federal or local law (or a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees) or (c) a Mortgage
Loan categorized as High Cost pursuant to Appendix E of Standard & Poor's
Glossary.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
Homeowners: Homeowners Loan Corp., a Delaware corporation, and its
successors in interest.
Homeowners Assignment Agreement: The Assignment and Recognition
Agreement, dated as of August 30, 2005, by and among the Unaffiliated Seller,
the Depositor
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and Homeowners, and each other Assignment and Recognition Agreement by and among
the Unaffiliated Seller, the Depositor and Homeowners in connection with any
Subsequent Transfer of Homeowners Mortgage Loans.
Homeowners Mortgage Loan: A Mortgage Loan which was acquired from
Homeowners by the Unaffiliated Seller pursuant to the Homeowners Purchase
Agreement, and which has been acquired by the Trust Fund.
Homeowners Purchase Agreement: The Mortgage Loan Purchase and
Warranties Agreement, dated as of February 1, 2004, as amended to date, by and
between the Unaffiliated Seller and Homeowners.
I & I Payments: Payments due and owing under the Insurance and
Indemnity Agreement.
Impac: Impac Funding Corporation, a California corporation, and its
successors in interest.
Impac Assignment Agreement: The Assignment and Recognition Agreement,
dated as of August 30, 2005, by and among the Unaffiliated Seller, the Depositor
and Impac, and each other Assignment and Recognition Agreement by and among the
Unaffiliated Seller, the Depositor and Impac in connection with any Subsequent
Transfer of Impac Mortgage Loans.
Impac Mortgage Loan: A Mortgage Loan which was acquired from Impac by
the Unaffiliated Seller pursuant to the Impac Purchase Agreement, and which has
been acquired by the Trust Fund.
Impac Purchase Agreement: The Amended and Restated Mortgage Loan
Purchase and Warranties Agreement, dated as of February 7, 2003, as amended to
date, by and between the Unaffiliated Seller and Impac.
Index: As to each Adjustable Rate Mortgage Loan, the index from time
to time in effect for the adjustment of the Mortgage Rate set forth as such on
the related Mortgage Note.
Initial Cut-off Date: August 1, 2005.
Initial Mortgage Loans: The Mortgage Loans delivered by the Depositor
on the Startup Date.
Initial Pre-Funded Amount: The sum of the Group I Initial Pre-Funded
Amount and the Group II Initial Pre-Funded Amount.
Insurance and Indemnity Agreement: The Insurance and Indemnity
Agreement dated as of August 1, 2005 among the Class A-1 Certificate Insurer,
the Servicers, the Master Servicer and the Unaffiliated Seller, as such
agreement may be amended or supplemented in accordance with the provisions
thereof.
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Insurance Payment Account: The separate Eligible Account created and
maintained by the Securities Administrator pursuant to Section 4.05(c) in the
name of the Securities Administrator for the benefit of the Class A-1
Certificateholders and Class A-1 Certificate Insurer, and designated "JPMorgan
Chase Bank, N.A., in trust for Financial Security Assurance Inc. and the
registered holders of IXIS Real Estate Capital Trust 2005-HE3, Mortgage
Pass-Through Certificates, Series 2005-HE3."
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements thereto
in effect, including any replacement policy or policies for any Insurance
Policies.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Insured Payment: With respect to any Distribution Date, the amount of
the Class A-1 Deficiency for that Distribution Date.
Interest Accrual Period: With respect to any Distribution Date, the
period beginning with the preceding Distribution Date (or in the case of the
first Distribution Date, the period from and including the Closing Date to but
excluding such first Distribution Date) and ending on the day immediately
preceding the current Distribution Date (on an actual/360 day count basis).
Interest Deficit Amount: With respect to any Distribution Date, the
excess of (i) the aggregate Accrued Certificate Interest for all Classes of the
Class A Certificates on such Distribution Date, over (ii) an amount of Available
Funds allocated to pay such aggregate Accrued Certificate Interest pursuant to
Section 4.02(a)(i)(B).
Interest Rate Swap Agreement: The Interest Rate Swap Agreement dated
as of August 30, 2005, between the Supplemental Interest Trust and IXIS
Financial Products Inc.
Interest Remittance Amount: With respect to any Distribution Date, the
sum of (a) the sum, without duplication, of the following amounts received by
the Master Servicer from the Servicers on the related Remittance Date:
(i) all installments of interest due on the Mortgage Loans during the
related Prepayment Period and received or advanced by each Servicer on or prior
to the related Remittance Date;
(ii) Compensating Interest paid by each Servicer on such Remittance
Date;
(iii) the interest component of all Substitution Adjustment Amounts
and Repurchase Prices received by each Servicer during the related Prepayment
Period;
(iv) the interest component of all Condemnation Proceeds, Insurance
Proceeds and Liquidation Proceeds received by each Servicer during the related
Prepayment Period (in each case, net (but not to be reduced below zero) of
unreimbursed expenses incurred in connection with a liquidation or foreclosure
and unreimbursed Advances, if any); and
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(v) the interest component of the proceeds of any termination of the
Trust Fund;
reduced by the Securities Administrator and Master Servicer Fee and
Servicing Fee for the related Prepayment Period for the related Distribution
Date, together with amounts in reimbursement for Advances previously made with
respect to the Mortgage Loans and other amounts as to which each Servicer, or
the Trustee and Custodian is entitled to be reimbursed pursuant to the
Agreement; and
(b) the Capitalized Interest Requirement, if any, deposited into the
Distribution Account on such Distribution Date.
Investment Account: As defined in Section 3.12(a).
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the investor pursuant to the MERS Procedures
Manual.
Investor-Based Exemption: Prohibited Transaction Class Exemption
84-14, Prohibited Transaction Class Exemption 90-1, Prohibited Transaction Class
Exemption 91-38, PTCE 95-60, Prohibited Transaction Class Exemption 96-23, as
each may be amended from time to time, or any similar prohibited transaction
class exemption granted by the U.S. Department of Labor or, with respect to any
governmental plan (as defined in Section 3(32) of ERISA), granted pursuant to
any federal, state or local law materially similar to Title I of ERISA or
Section 4975 of the Code.
Late Collections: With respect to any Mortgage Loan and any Due
Period, all amounts received subsequent to the Determination Date immediately
following such Due Period, whether as late payments of Scheduled Payments or as
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise,
which represent late payments or collections of principal and/or interest due
(without regard to any acceleration of payments under the related Mortgage and
Mortgage Note) but delinquent for such Due Period and not previously recovered.
Late Payment Rate: Has the meaning ascribed thereto in the Insurance
and Indemnity Agreement.
Lenders Direct: Lenders Direct Capital Corporation, a California
corporation, and its successors in interest.
Lenders Direct Assignment Agreement: The Assignment and Recognition
Agreement, dated as of August 30, 2005, by and among the Unaffiliated Seller,
the Depositor and Lenders Direct, and each other Assignment and Recognition
Agreement by and among the Unaffiliated Seller, the Depositor and Lenders Direct
in connection with any Subsequent Transfer of Lenders Mortgage Loans.
Lenders Direct Mortgage Loan: A Mortgage Loan which was acquired from
Lenders Direct by the Unaffiliated Seller pursuant to the Lenders Direct
Purchase Agreement, and which has been acquired by the Trust Fund.
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Lenders Direct Purchase Agreement: The Amended and Restated Mortgage
Loan Purchase and Warranties Agreement, dated as of October 1, 2003, as amended
to date, by and between the Unaffiliated Seller and Lenders Direct.
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Securities Administrator on the related
LIBOR Determination Date on the basis of the offered rate for one-month U.S.
dollar deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m.
(London time) on such date; provided that if such rate does not appear on
Telerate Page 3750, the rate for such date will be determined on the basis of
the rates at which one-month U.S. dollar deposits are offered by the Reference
Banks at approximately 11:00 a.m. (London time) on such date to prime banks in
the London interbank market. In such event, the Securities Administrator shall
be required to request the principal London office of each of the Reference
Banks to provide a quotation of its rate. If at least two such quotations are
provided, the rate for that date will be the arithmetic mean of the quotations
(rounded upwards if necessary to the nearest whole multiple of 1/16%). If fewer
than two quotations are provided as requested, the rate for that date will be
the arithmetic mean of the rates quoted by major banks in New York City,
selected by the Securities Administrator, after consultation with the Depositor,
at approximately 11:00 a.m. (New York City time) on such date for one-month U.S.
dollar loans to leading European banks.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: With respect to any Interest Accrual Period
(other than the initial Interest Accrual Period) for the LIBOR Certificates, the
second London Business Day preceding the commencement of such Interest Accrual
Period.
Lime Financial: Lime Financial Services, Ltd., an Oregon corporation,
and its successors in interest.
Lime Financial Assignment Agreement: The Assignment and Recognition
Agreement, dated as of August 30, 2005, by and among the Unaffiliated Seller,
the Depositor and Lime Financial, and each other Assignment and Recognition
Agreement by and among the Unaffiliated Seller, the Depositor and Lime Financial
in connection with any Subsequent Transfer of Lenders Mortgage Loans.
Lime Financial Mortgage Loan: A Mortgage Loan which was acquired from
Lime Financial by the Unaffiliated Seller pursuant to the Lime Financial
Purchase Agreement, and which has been acquired by the Trust Fund.
Lime Financial Purchase Agreement: The Mortgage Loan Purchase and
Warranties Agreement, dated as of May 1, 2005, as amended to date, by and
between the Unaffiliated Seller and Lime Financial.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
applicable Servicer has certified to the Securities Administrator and the Master
Servicer that it has received all amounts
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it expects to receive in connection with the liquidation of such Mortgage Loan
including the final disposition of an REO Property.
Liquidation Event: With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made as to such Mortgage Loan; or (iii) such Mortgage Loan is
removed from coverage under this Agreement by reason of its being purchased,
sold or replaced pursuant to or as contemplated by this Agreement. With respect
to any REO Property, either of the following events: (i) a Final Recovery
Determination is made as to such REO Property; or (ii) such REO Property is
removed from coverage under this Agreement by reason of its being purchased
pursuant to this Agreement.
Liquidation Proceeds: Cash received in connection with the liquidation
of a Liquidated Mortgage Loan, whether through a trustee's sale, foreclosure
sale or otherwise, including any Subsequent Recoveries.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio (expressed as a percentage) of the original outstanding principal amount
of the Mortgage Loan as of the Cut-off Date (unless otherwise indicated), to the
lesser of (a) the Appraised Value of the Mortgaged Property at origination, and
(b) if the Mortgage Loan was made to finance the acquisition of the related
Mortgaged Property, the purchase price of the Mortgaged Property.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Master Financial: Master Financial, Inc., a California corporation,
and its successors in interest.
Master Financial Assignment Agreement: The Assignment and Recognition
Agreement, dated as of August 30, 2005, by and among the Unaffiliated Seller,
the Depositor and Master Financial, and each other Assignment and Recognition
Agreement by and among the Unaffiliated Seller, the Depositor and Master
Financial in connection with any Subsequent Transfer of Master Financial
Mortgage Loans.
Master Financial Mortgage Loan: A Mortgage Loan which was acquired
from Master Financial by the Unaffiliated Seller pursuant to the Master
Financial Purchase Agreement, and which has been acquired by the Trust Fund.
Master Financial Purchase Agreement: The Mortgage Loan Purchase and
Warranties Agreement, dated as of June 1, 2003, as amended to date, by and
between the Unaffiliated Seller and Master Financial.
Master Servicer: JPMorgan Chase Bank, N.A., a banking association
organized under the laws of the United States, and its successors in interest
and, if a successor master servicer is appointed hereunder, such successor
master servicer.
Master Servicer Events of Default: As defined in Section 9.04.
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Maximum Mortgage Rate: With respect to each Adjustable Rate Mortgage
Loan, a rate that (i) is set forth on the Data Tape Information and in the
related Mortgage Note and (ii) is the maximum interest rate to which the
Mortgage Rate on such Adjustable Rate Mortgage Loan may be increased during the
lifetime of such Adjustable Rate Mortgage Loan.
Maximum Pool Principal Balance: The aggregate Stated Principal
Balances of all Initial Mortgage Loans as of the Initial Cut-off Date plus the
Initial Pre-Funded Amount.
MERS: Mortgage Electronic Registration System, Inc.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Originators have designated or will designate MERS as, and have taken or will
take such action as is necessary to cause MERS to be, the mortgagee of record,
as nominee for the Originators, in accordance with the MERS Procedure Manual and
(b) the Originators have designated or will designate the Trustee as the
Investor on the MERS(R) System.
MERS Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS(R) System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Minimum Mortgage Rate: With respect to each Adjustable Rate Mortgage
Loan, a rate that (i) is set forth on the Data Tape Information and in the
related Mortgage Note and (ii) is the minimum interest rate to which the
Mortgage Rate on such Adjustable Rate Mortgage Loan may be decreased during the
lifetime of such Adjustable Rate Mortgage Loan.
Monthly Statement: The statement delivered to the Certificateholders
and other parties as specified in and pursuant to Section 4.03(a).
Moody's: Xxxxx'x Investors Service, Inc, and its successors in
interest. If Xxxxx'x is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 10.05(b) the address for notices to Moody's
shall be Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Mortgage Pass-Through Group, or such other address
as Moody's may hereafter furnish to the Depositor, the Trustee, and the
Servicers.
Mortgage: The mortgage, deed of trust or other instrument identified
on the Mortgage Loan Schedule as securing a Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the Mortgage Loan Schedule, which Mortgage Loan includes,
without limitation, the Mortgage File, the Scheduled Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition proceeds, Prepayment Charges,
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and all other rights, benefits, proceeds and obligations arising from or in
connection with such Mortgage Loan, excluding replaced or repurchased Mortgage
Loans. As applicable, "Mortgage Loan" shall be deemed to refer to REO Property.
Mortgage Loan Purchase Agreement: The Accredited Purchase Agreement,
the Allstate Purchase Agreement, the Chapel Mortgage Purchase Agreement, the
Encore Purchase Agreement, the First Bank Purchase Agreement, the First Horizon
Purchase Agreement, the First NLC Purchase Agreement, the FlexPoint Purchase
Agreement, the Homeowners Purchase Agreement, the Impac Purchase Agreement, the
Lenders Direct Purchase Agreement, the Lime Financial Purchase Agreement, the
Master Financial Purchase Agreement, the NC Capital Purchase Agreement, the
Platinum Purchase Agreement, the ResMae Purchase Agreement or the Rose Purchase
Agreement, as applicable.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto as
Schedule I, such schedule setting forth the following information with respect
to each Mortgage Loan: (1) the Originator's Mortgage Loan number; (2) the city,
state and zip code of the Mortgaged Property; (3) a code indicating whether the
Mortgaged Property is a single family residence, two-family residence,
three-family residence, four-family residence, PUD or condominium; (4) the
current Mortgage Rate; (5) the current net Mortgage Rate; (6) the current
Scheduled Payment; (7) with respect to each Adjustable Rate Mortgage Loan, the
Gross Margin; (8) the original term to maturity; (9) the scheduled maturity
date; (10) the principal balance of the Mortgage Loan as of the Cut-off Date
after deduction of payments of principal due on or before the Cut-off Date
whether or not collected; (11) the Loan-to-Value Ratio; (12) the next Interest
Rate Adjustment Date; (13) with respect to each Adjustable Rate Mortgage Loan,
the lifetime mortgage interest rate cap; (14) whether the Mortgage Loan is
convertible or not; (15) a code indicating the mortgage guaranty insurance
company; (16) the Servicing Fee; (17) the identity of the related Originator of
such Mortgage Loan; (18) the Mortgagor's name; (19) the "paid-through" date
(based on payments received from the related Mortgagor) as of the Cut-off Date;
(20) the Servicing Transfer Date; (21) a Code indicating whether the Mortgage
Loan is a Group I Mortgage Loan or Group II Mortgage Loan; (22) the Mortgage
Loan has been 30 days Delinquent since the applicable Servicing Transfer Date;
and (23) whether such Mortgage Loan provides for a Prepayment Charge as well as
the term and amount of such Prepayment Charge, if any.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne on a Mortgage Note,
which shall be adjusted from time to time with respect to Adjustable Rate
Mortgage Loans.
Mortgage Rate Caps: With respect to an Adjustable Rate Mortgage Loan,
the Periodic Mortgage Rate Cap, the Maximum Mortgage Rate, and the Minimum
Mortgage Rate for such Mortgage Loan.
Mortgaged Property: With respect to each Mortgage Loan, the real
property (or leasehold estate, if applicable) identified on the Mortgage Loan
Schedule as securing repayment of the debt evidenced by the related Mortgage
Note.
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Mortgagor: The obligor(s) on a Mortgage Note.
NC Capital: NC Capital Corporation, a California corporation.
NC Capital Assignment Agreement: The Assignment and Recognition
Agreement, dated as of August 30, 2005, by and among the Unaffiliated Seller,
the Depositor and NC Capital, and each other Assignment and Recognition
Agreement by and among the Unaffiliated Seller, the Depositor and NC Capital in
connection with any Subsequent Transfer of NC Capital Mortgage Loans.
NC Capital Mortgage Loan: A Mortgage Loan which was acquired from NC
Capital by the Unaffiliated Seller pursuant to the NC Capital Purchase
Agreement, and which has been acquired by the Trust Fund.
NC Capital Purchase Agreement: The Mortgage Loan Purchase and
Warranties Agreement, dated as of February 1, 2005, as amended to date, by and
between the Unaffiliated Seller and NC Capital.
Net Monthly Excess Cash Flow: For any Distribution Date the amount
remaining for distribution pursuant to subsection 4.02(a)(iii) (before giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date, the
amount by which the sum of the Prepayment Interest Shortfalls for such
Distribution Date exceeds the sum of (i) the Compensating Interest payments made
with respect to such Distribution Date and (ii) all Prepayment Interest Excesses
for such Distribution Date.
Net Swap Payment: For any Distribution Date, each payment required to
be made to the Swap Provider pursuant to the Swap Agreement.
Net Swap Receipt: For any Distribution Date, the net payment that the
Swap Provider will owe the Supplemental Interest Trust pursuant to the Swap
Agreement.
NIM Issuer: Any entity established as the issuer of a series of NIM
Securities.
NIM Indenture: The Indenture, dated as of [_], 2005, between IXIS Real
Estate Capital Inc. NIM Trust 2005-HE3N, as issuer, and JPMorgan Chase Bank,
N.A., as indenture trustee.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class X and Class P Certificates that are rated by Standard &
Poor's.
NIM Trustee: The trustee for any series of NIM Securities.
Non-Delay Certificates: As specified in the Preliminary Statement.
Non-Permitted Transferee: A Person other than a Permitted Transferee.
00
Xxxxxxxxxxxxxx X&X Advance: Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Property that, in the
good faith business judgment of the applicable Servicer or the Master Servicer
or any successor Master Servicer, will not or, in the case of a proposed P&I
Advance, would not be ultimately recoverable from related late payments,
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise on
such Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advances previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in the good faith business judgment of the applicable Servicer, or the
Master Servicer or any successor Master Servicer, will not or, in the case of a
proposed Servicing Advance, would not, be ultimately recoverable from related
late payments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds
or otherwise on such Mortgage Loan or REO Property. The determination by the
applicable Servicer or the Master Servicer or any successor Master Servicer that
it has made a Nonrecoverable Servicing Advance or that any proposed Servicing
Advances, if made, would constitute a Nonrecoverable Servicing Advance, shall be
evidenced by an Officers' Certificate delivered to the Securities Administrator
and the Master Servicer.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Novelle: Novelle Financial Services, Inc., a California corporation,
and its successors in interest.
Novelle Assignment Agreement: The Assignment and Recognition
Agreement, dated as of August 30, 2005, by and among the Unaffiliated Seller,
the Depositor and Novelle, and each other Assignment and Recognition Agreement
by and among the Unaffiliated Seller, the Depositor and Novelle in connection
with any Subsequent Transfer of Novelle Mortgage Loans.
Novelle Mortgage Loan: A Mortgage Loan which was acquired from Novelle
by the Unaffiliated Seller pursuant to the Novelle Purchase Agreement, and which
has been acquired by the Trust Fund.
Novelle Purchase Agreement: The Mortgage Loan Purchase and Warranties
Agreement, dated as of September 27, 2002, as amended to date, by and between
the Unaffiliated Seller and Novelle.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by an officer of each
Servicer with responsibility for the servicing of the Mortgage Loans required to
be serviced by such Servicer and listed on a list delivered to the Securities
Administrator pursuant to this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be in-house
counsel for a Servicer or the Subservicer, reasonably acceptable to the Trustee,
the Securities Administrator and to the Class A-1 Certificate Insurer; provided
that any Opinion of Counsel
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relating to (a) qualification of the Mortgage Loans in a REMIC or (b) compliance
with the REMIC Provisions, must be (unless otherwise stated in such Opinion of
Counsel) an opinion of counsel who (i) is in fact independent of the related
Servicer of the Mortgage Loans, (ii) does not have any material direct or
indirect financial interest in the related Servicer of the Mortgage Loans or in
an affiliate of either and (iii) is not connected with the related Servicer of
the Mortgage Loans as an officer, employee, director or person performing
similar functions.
Optional Termination Date: means:
(i) For so long as the Class X Certificates are 100% owned, either
directly or indirectly, by the Unaffiliated Seller or any Affiliate thereof,
then one or more of the Servicers may cause the Optional Termination Date to
occur on any Distribution Date when the aggregate Stated Principal Balance of
the Mortgage Loans is 10.00% or less of the Maximum Pool Principal Balance; and
(ii) If the Class X Certificates are not 100% owned, either directly
or indirectly, by the Unaffiliated Seller or any Affiliate thereof, then the
Holders of a majority in Class Certificate Balance of the Class X Certificates
may cause the Optional Termination Date to occur on any Distribution Date when
the aggregate Stated Principal Balance of the Mortgage Loans is 10.00% or less
of the Maximum Pool Principal Balance, and, if such Class X Certificateholders
do not do so, then the Servicers shall also have such right; provided, however,
that the Unaffiliated Seller or any of its affiliates, may only participate in
the exercise of the clean-up call by the majority owners of the Class X
Certificates if the Unaffiliated Seller or any of its affiliates, is not the
majority owner of the Class X Certificates, either directly or indirectly.
Originator: The party that originated or acquired a Mortgage Loan and,
more specifically, (i) with respect to any Accredited Mortgage Loan, Accredited,
(ii) with respect to any Allstate Mortgage Loan, Allstate, (iii) with respect to
any Chapel Mortgage Loan, Chapel, (iv) with respect to any Encore Mortgage Loan,
Encore, (v) with respect to any First Bank Mortgage Loan, First Bank, (vi) with
respect to any First Horizon Mortgage Loan, First Horizon, (vii) with respect to
any First NLC Mortgage Loan, First NLC, (viii) with respect to any FlexPoint
Mortgage Loan, FlexPoint, (ix) with respect to any Homeowners Mortgage Loan,
Homeowners, (x) with respect to any Impac Mortgage Loan or Novelle Mortgage
Loan, Impac or Novelle, as applicable, (xi) with respect to any Lenders Direct
Mortgage Loan, Lenders Direct, (xii) with respect to any Lime Financial Mortgage
Loan, Lime Financial, (xiii) with respect to any Master Financial Mortgage Loan,
Master Financial, (xiv) with respect to any NC Capital Mortgage Loan, NC
Capital, (xv) with respect to any Platinum Mortgage Loan, Platinum, (xvi) with
respect to any ResMae Mortgage Loan, ResMae, and (xvii) with respect to any Rose
Mortgage Loan, Rose.
OTS: Office of Thrift Supervision, and any successor thereto.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Securities Administrator
or delivered to the Securities Administrator for cancellation; and
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(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Securities Administrator
pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Ownership Interest: As to any Residual Certificate, any ownership
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.
P&I Advance: As to any Mortgage Loan or REO Property, any advance made
by the applicable Servicer in respect of any Remittance Date with respect to any
Mortgage Loan representing the aggregate of all payments of principal and/or
interest on such Mortgage Loan, net of the related Servicing Fee, that were due
during the related Due Period on the Mortgage Loan, and that were delinquent or
unpaid on the related Determination Date, plus certain amounts representing
assumed payments not covered by any current net income on the Mortgaged
Properties acquired by foreclosure or deed in lieu of foreclosure as determined
pursuant to Section 4.01.
Pass-Through Margin: With respect to each Class of Regular
Certificates, on or prior to the Optional Termination Date the following
percentages: Class A-1, 0.2000%; Class A-2, 0.1100%; Class A-3, 0.2400%; Class
A-4, 0.3700%; Class M-1, 0.4800%; Class M-2, 0.4900%; Class M-3, 0.5100%; Class
M-4, 0.6100%; Class M-5, 0.6500%; Class M-6, 0.7100%; Class B-1, 1.18000%; Class
B-2, 1.3300%; Class B-3, 1.8000%; and Class B-4, 3.500%. On the first
Distribution Date after the Optional Termination Date, the Pass-Through Margins
shall increase to the following percentages: Class A-1, 0.4000%; Class A-2,
0.2200%; Class A-3, 0.4800%; Class A-4, 0.7400%; Class M-1, 0.7200%; Class M-2,
0.7350%; Class M-3, 0.7650%; Class M-4, 0.9150%; Class M-5, 0.9750%; Class M-6,
1.0650%; Class B-1, 1.7700%; Class B-2, 1.9950%; Class B-3, 2.7000%; and Class
B-4, 5.2500%.
Pass-Through Rate: For any Distribution Date, the "Pass-Through Rate"
for each class of LIBOR Certificates will be:
(i) for the Class A-1 certificates, a per annum rate equal to the
least of (1) One-Month LIBOR plus the related Pass-Through Margin for that class
and that Distribution Date, (2) the WAC Cap and (3) the Group I Loan Cap;
(ii) for the Class A Sequential certificates, a per annum rate equal
to the least of (1) One-Month LIBOR plus the related Pass-Through Margin for
that class and that Distribution Date, (2) the WAC Cap and (3) the Group II Loan
Cap and
(iii) for the Class M certificates and the Class B certificates, a per
annum rate equal to the lesser of (1) One-Month LIBOR plus the related
Pass-Through Margin for those classes and that Distribution Date (2) the WAC
Cap.
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Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Periodic Mortgage Rate Cap: With respect to an Adjustable Rate
Mortgage Loan, the periodic limit on each Mortgage Rate adjustment as set forth
in the related Mortgage Note.
Permitted Investments: Any one or more of the following obligations or
securities acquired at a purchase price of not greater than par, regardless of
whether issued by the Servicers, the Trustee or any of their respective
Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof; provided such obligations are backed by
the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars and
issued by, any Eligible Institution;
(iii) repurchase obligations with respect to any security described in
clause (i) above entered into with an Eligible Institution (acting as
principal);
(iv) securities bearing interest or sold at a discount that are issued
by any corporation incorporated under the laws of the United States of
America or any state thereof and that are rated by each Rating Agency that
rates such securities in its highest long-term unsecured rating categories
at the time of such investment or contractual commitment providing for such
investment;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 30 days after the date of acquisition thereof)
that is rated by each Rating Agency that rates such securities in its
highest short-term unsecured debt rating available at the time of such
investment;
(vi) any demand, money market fund, common trust fund or time deposit
or obligation, or interest-bearing or other security or investment, (A)
rated in the highest rating category by each Rating Agency (if rated by
such Rating Agency) or (B) that would not adversely affect the then current
rating by either Rating Agency of any of the Certificates. Such investments
in this subsection (vi) may include money market mutual funds or common
trust funds, including, without limitation, the X.X. Xxxxxx Prime Money
Market Fund or any other fund for which JPMorgan Chase Bank, the Trustee or
an affiliate thereof serves as an investment advisor, administrator,
shareholder servicing agent, and/or custodian or subcustodian,
notwithstanding that (i) JPMorgan Chase Bank or an affiliate thereof
charges and collects fees and expenses from such funds for services
rendered, (ii) JPMorgan Chase Bank or an affiliate thereof charges and
collects fees and
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expenses for services rendered pursuant to this Agreement, and (iii)
services performed for such funds and pursuant to this Agreement may
converge at any time. The Trustee specifically authorizes JPMorgan Chase
Bank or an affiliate thereof to charge and collect from the Trust Fund such
fees as are collected from all investors in such funds for services
rendered to such funds (but not to exceed investment earnings thereon); and
(vii) if previously confirmed in writing to the Securities
Administrator and to the Class A-1 Certificate Insurer, any other demand,
money market or time deposit, or any other obligation, security or
investment, as may be acceptable to the Rating Agencies as a permitted
investment of funds backing "Aaa" or "AAA" rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Permitted Transferee: Any Person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, international organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in section 1381(a)(2)(C) of the Code, (v) a Person that is not a U.S.
Person, (vi) an "electing large partnership" within the meaning of section 775
of the Code and (vii) any other Person so designated by the Depositor based upon
an Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to such Person may cause any REMIC created hereunder to fail to
qualify as a REMIC at any time that the Certificates are outstanding. The terms
"United States," "State" and "international organization" shall have the
meanings set forth in section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such government unit.
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: As specified in the Preliminary Statement.
Plan: As defined in Section 5.02(b).
Platinum: Platinum Capital Group, a California corporation.
Platinum Assignment Agreement: The Assignment and Recognition
Agreement, dated as of August 30, 2005, by and among the Unaffiliated Seller,
the Depositor and Platinum,
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and each other Assignment and Recognition Agreement by and among the
Unaffiliated Seller, the Depositor and Platinum in connection with any
Subsequent Transfer of Platinum Mortgage Loans.
Platinum Mortgage Loan: A Mortgage Loan which was acquired from
Platinum by the Unaffiliated Seller pursuant to the Platinum Purchase Agreement,
and which has been acquired by the Trust Fund.
Platinum Purchase Agreement: The Mortgage Loan Purchase and Warranties
Agreement, dated as of December 14, 2004, as amended to date, by and between the
Unaffiliated Seller and Platinum.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans for such
Distribution Date which were Outstanding Mortgage Loans as of the last day of
the related Due Period.
Preference Amount: Any amounts distributed in respect of the Class A-1
Certificates that are recovered from any Holder of such Certificates as a
voidable preference by a trustee in bankruptcy pursuant to the United States
Bankruptcy Code or other similar law in accordance with a final, nonappealable
order of a court having competent jurisdiction and which have not theretofore
been repaid to such Holder.
Preference Claim: As defined in Section 4.05(f).
Pre-Funding Account: The Group I Pre-Funding Account and the Group II
Pre-Funding Account, as applicable.
Pre-Funding Amount: With respect to any date, the amount on deposit in
the Pre-Funding Accounts, which amount the Securities Administrator shall
evidence to the Custodian upon request.
Pre-Funding Earnings: The actual investment earnings realized on
amounts deposited in the Pre-Funding Accounts.
Pre-Funding Period: The period commencing on the Startup Date and
ending on the earliest to occur of (i) the date on which the amount on deposit
in the Pre-Funding Accounts (exclusive of any investment earnings) is less than
$100,000, (ii) the date on which any Event of Default occurs and (iii) November
24, 2005.
Pre-Funding Reserve Account: The separate Eligible Account created and
maintained by the Securities Administrator pursuant to Section 3.07(j) in the
name of the Securities Administrator, for the benefit of the Class X
Certificateholders and designated "JPMorgan Chase Bank, N.A., in trust for
holders of IXIS Real Estate Capital Trust 2005-HE3, Mortgage Pass-Through
Certificates, Series 2005-HE3, Class X".
Premium Amount: The product of (i) the Premium Rate and (ii) the
Certificate Balance of the Class A-1 Certificates immediately prior to such
Distribution Date.
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Premium Rate: The rate at which the "Premium" is determined as
described in a letter dated August 30, 2005 between the Unaffiliated Seller and
the Class A-1 Certificate Insurer (a copy of which shall be provided by the
Unaffiliated Seller to the Securities Administrator).
Prepayment Charge: Any prepayment premium, penalty or charge collected
by a Servicer with respect to a Mortgage Loan from a Mortgagor in connection
with any voluntary Principal Prepayment pursuant to the terms of the related
Mortgage Note.
Prepayment Interest Excess: With respect to any Distribution Date, any
interest collected by a Servicer with respect to any Mortgage Loan as to which a
Principal Prepayment in Full occurs from the 1st day of the month through the
15th day of the month in which such Distribution Date occurs and that represents
interest that accrues from the 1st day of such month to the date of such
Principal Prepayment in Full.
Prepayment Interest Shortfall: With respect to any Remittance Date,
the sum of, for each Mortgage Loan that was during the portion of the Prepayment
Period from and including the 16th day of the month preceding the month in which
such Distribution Date occurs (or from the day following the Cut-off Date, in
the case of the first Distribution Date) through the last day of such month the
subject of a Principal Prepayment in Full, that was applied by a Servicer to
reduce the outstanding principal balance of such Mortgage Loan on a date
preceding the Due Date in the succeeding Prepayment Period, an amount equal to
the product of (a) the Mortgage Rate net of the Servicing Fee Rate for such
Mortgage Loan, (b) the amount of the Principal Prepayment for such Mortgage
Loan, (c) 1/360 and (d) the number of days commencing on the date on which such
Principal Prepayment was applied and ending on the last day of the related
Prepayment Period.
Prepayment Period: With respect to any Distribution Date, the period
from and including the 16th day of the month preceding the month in which such
Distribution Date occurs (or, in the case of the first Distribution Date, from
and including the Cut-off Date) to and including the 15th day of the month in
which such Distribution Date occurs.
Principal Distribution Amount: For any Distribution Date, the sum of
(i) the Basic Principal Distribution Amount for such Distribution Date and (ii)
the Extra Principal Distribution Amount for such Distribution Date.
Principal Parity Deficit: With respect to any Distribution Date, the
excess of (i) the aggregate Class Certificate Balances of the Class A
Certificates on that Distribution Date, after taking into account any reduction
(and with respect to the Class A-1 Certificates, as reduced by any Class A-1
Principal Parity Amounts paid by the Class A-1 Certificate Insurer prior to such
Distribution Date) of those Class Certificate Balances on that Distribution
Date, less the excess of (a) any Principal Parity Deficits for all prior
Distribution Dates over (b) any Class A-1 Principal Parity Amount for all prior
Distribution Dates over (ii) the Current Maximum Amount for that Distribution
Date. For the first Distribution Date, the Principal Parity Deficit will equal
zero.
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Principal Prepayment: Any full or partial payment or other recovery of
principal on a Mortgage Loan (including upon liquidation of a Mortgage Loan)
which is received in advance of its scheduled Due Date, excluding any Prepayment
Charge thereon and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution Date,
the amount equal to the sum of the following amounts (without duplication) with
respect to the related Due Period, of: (i) each Scheduled Payment of principal
on a Mortgage Loan during the related Due Period and received by the Servicers
on or prior to the related Determination Date or advanced by the applicable
Servicer for the related Remittance Date and all Principal Prepayments received
during the related Prepayment Period; (ii) the principal component of all
Condemnation Proceeds, Insurance Proceeds and Liquidation Proceeds during the
related Due Period (in each case, net of remaining (i.e., not deducted from the
Interest Remittance Amount) unreimbursed expenses incurred in connection with a
liquidation or foreclosure and unreimbursed Advances, if any); (iii) all partial
or full prepayments on the Mortgage Loans received during the related Prepayment
Period; (iv) the principal component of all Substitution Adjustment Amounts
allocable to principal and Repurchase Prices received by the Servicers with
respect to such Distribution Date; and (v) the proceeds of any termination of
the Trust Fund pursuant to Section 9.01(a) (to the extent such proceeds relate
to principal); reduced by remaining amounts (i.e., not deducted from the
Interest Remittance Amount) in reimbursement for Advances previously made with
respect to the Mortgage Loans and other amounts as to which any Servicer is
entitled to be reimbursed pursuant to this Agreement.
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated August 25,
2005, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: Planned Unit Development.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal place of business
and each state having jurisdiction over such insurer in connection with the
insurance policy issued by such insurer, duly authorized and licensed in such
states to transact a mortgage guaranty insurance business in such states and to
write the insurance provided by the insurance policy issued by it, approved as a
FNMA- or FHLMC-approved mortgage insurer or having a claims paying ability
rating of at least "AA" or equivalent rating by a nationally recognized
statistical rating organization. Any replacement insurer with respect to a
Mortgage Loan must have at least as high a claims paying ability rating as the
insurer it replaces had on the Closing Date.
Rating Agency: Each of Standard & Poor's, Fitch and Xxxxx'x. If such
organization or a successor is no longer in existence, "Rating Agency" shall be
such nationally
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recognized statistical rating organization, or other comparable Person, as is
designated by the Depositor, notice of which designation shall be given to the
Trustee and the Securities Administrator. References herein to a given rating or
rating category of a Rating Agency shall mean such rating category without
giving effect to any modifiers. For purposes of Section 10.05(b), the addresses
for notices to each Rating Agency shall be the address specified therefor in the
definition corresponding to the name of such Rating Agency, or such other
address as such Rating Agency may hereafter furnish to the Depositor, the
Trustee, the Securities Administrator, and the Servicers.
Realized Loss: With respect to each Liquidated Mortgage Loan the
excess (not less than zero or more than the Stated Principal Balance of the
Mortgage Loan) of the unpaid principal balance of a Liquidated Mortgage Loan
together with accrued and unpaid interest thereon over the Liquidation Proceeds,
net of customary out-of-pocket expenses incurred by the applicable Servicer in
connection with the liquidation of such Liquidated Mortgage Loan and net of the
amount of any unreimbursed Servicing Advances with respect to such Liquidated
Mortgage Loan.
Record Date: With respect to any Distribution Date, the close of
business on the Business Day immediately preceding such Distribution Date;
provided, however, that for any Certificate issued in definitive form, the
Record Date shall be the close of business on the last Business Day of the month
immediately preceding the month in which such applicable Distribution Date
occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
Reimbursement Amount: As of any Distribution Date, the sum of (a)(i)
all Insured Payments previously received by the Securities Administrator and all
Preference Amounts previously paid by the Class A-1 Ceritificate Insurer and in
each case not previously repaid to the Class A-1 Ceritificate Insurer pursuant
to Section 4.02(a) plus (ii) interest accrued on each such Insured Payment and
Preference Amounts not previously repaid calculated at the Late Payment Rate
from the date the Securities Administrator received the related Insured Payment
or Preference Amounts were paid by the Class A-1 Ceritificate Insurer and (b)(i)
any amounts then due and owing to the Class A-1 Ceritificate Insurer under the
Insurance and Indemnity Agreement (excluding the Premium Amount due on such
Distribution Date), as certified to the Securities Administrator by the Class
A-1 Ceritificate Insurer plus (ii) interest on such amounts at the rate
specified in the Insurance and Indemnity Agreement. The Class A-1 Ceritificate
Insurer shall notify the Securities Administrator and the Unaffiliated Seller of
the amount of any Reimbursement Amount.
Relief Act Shortfall: With respect to any Distribution Date and any
Mortgage Loan, any reduction in the amount of interest or principal collectible
on such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers Civil Relief Act and similar state laws.
Remainder Amount: As defined in Section 9.01.
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REMIC: A "real estate mortgage investment conduit" within the meaning
of section 860D of the Code.
REMIC Adjusted WAC Cap: The weighted average of the interest rates on
the REMIC IV Accretion Directed Classes and the Class IV-Accrual Interest.
REMIC Premium Adjusted WAC Cap: The weighted average of the interest
rates on the REMIC IV Accretion Directed Classes and the Class IV-Accrual
Interest where the interest rate on the Class IV-A1 Interest is first reduced by
two times the Premium Rate.
REMIC Provisions: Provisions of the federal income tax law relating to
REMICs, which appear at sections 860A through 860G of Subchapter M of Chapter 1
of the Code, and related provisions, and regulations promulgated thereunder, as
the foregoing may be in effect from time to time as well as provisions of
applicable state laws.
REMIC Trust: The segregated pool of assets consisting of the Trust
Fund, exclusive of Prepayment Charges, the Supplemental Interest Trust, the
Excess Reserve Fund Account, the Pre-Funding Accounts, the Swap Account, the
Pre-Funding Reserve Account, the Capitalized Interest Account and the Interest
Rate Swap Agreements.
REMIC I: As described in the Preliminary Statement.
REMIC I Regular Interest: As described in the Preliminary Statement.
REMIC II: As described in the Preliminary Statement.
REMIC II Regular Interest: As described in the Preliminary Statement.
REMIC III: As described in the Preliminary Statement.
REMIC III Regular Interest: As described in the Preliminary Statement.
REMIC IV: As described in the Preliminary Statement.
REMIC IV Accretion Directed Class: As described in the Preliminary
Statement.
REMIC IV Net WAC: The weighted average of the interest rates on the
Class III-C1a through Class III-C53a, Class III-C1b through Class III-C53b,
Class III-D1a through Class III-D53a, Class III-D1b through Class III-D53b,
Class III-J1 and Class III-J2 Interests.
REMIC IV Regular Interest: As described in the Preliminary Statement.
REMIC V: As described in the Preliminary Statement.
REMIC V Regular Interest: As described in the Preliminary Statement.
Remittance Date: With respect to any Distribution Date, 21st day (or
if such day is a Saturday, then it shall be the first business day immediately
preceding that day, or if such
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day is a Sunday or otherwise not a Business Day, then it shall be the
immediately following Business Day) of the month of the related Distribution
Date.
REO Disposition: The final sale by the applicable Servicer of any REO
Property.
REO Imputed Interest: As to any REO Property, for any period, an
amount equivalent to interest (at the Mortgage Rate net of the Servicing Fee
Rate that would have been applicable to the related Mortgage Loan had it been
outstanding) on the unpaid principal balance of the Mortgage Loan as of the date
of acquisition thereof (as such balance is reduced pursuant to Section 3.17 by
any income from the REO Property treated as a recovery of principal).
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Representative: Xxxxxx Xxxxxxx & Co. Incorporated, as representative
on behalf of itself, Bank of America Securities LLC, Countrywide Securities
Corporation and IXIS Securities LLC.
Repurchase Price: With respect to any Mortgage Loan, an amount equal
to the sum (without duplication) of (i) the unpaid principal balance of such
Mortgage Loan as of the date of repurchase and (ii) (x) if such Mortgage Loan is
being repurchased by the Unaffiliated Seller, the sum of (A) interest on such
unpaid principal balance of such Mortgage Loan at the Mortgage Rate from the
last date through which interest has been paid and distributed to the Trustee to
the last day of the month in which such repurchase occurs, (B) all xxxxxxxxxxxx
X&X Advances and Servicing Advances, (C) all unpaid Servicing Fees, (D) all
expenses reasonably incurred by the Servicers, the Trustee, the Custodian, the
Class A-1 Certificate Insurer, the Securities Administrator, the Master Servicer
or the Unaffiliated Seller, as the case may be, in respect of a breach or
defect, including, without limitation, expenses arising out of any such party's
enforcement of the Originator's repurchase obligation, to the extent not
included in (B), and (E) all costs and expenses incurred by, or on behalf of,
the Trust Fund in connection with any violation by such Mortgage Loan of a
predatory or abusive-lending law or (y) if such Mortgage Loan is being
repurchased by the related Originator, all other amounts payable by such
Originator in accordance with the terms of the related Mortgage Loan Purchase
Agreement.
Request for Release: The Request for Release submitted by a Servicer
to the Trustee, the Securities Administrator and Custodian, substantially in the
form of Exhibit K.
Residual Certificates: As specified in the Preliminary Statement.
ResMae: ResMae Mortgage Corporation, a California corporation.
ResMae Assignment Agreement: The Assignment and Recognition Agreement,
dated as of August 30, 2005, by and among the Unaffiliated Seller, the Depositor
and ResMae, and each other Assignment and Recognition Agreement by and among the
Unaffiliated Seller, the Depositor and ResMae in connection with any Subsequent
Transfer of ResMae Mortgage Loans.
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ResMae Mortgage Loan: A Mortgage Loan which was acquired from ResMae
by the Unaffiliated Seller pursuant to the ResMae Purchase Agreement, and which
has been acquired by the Trust Fund.
ResMae Purchase Agreement: The Mortgage Loan Purchase and Warranties
Agreement, dated as of February 1, 2005, as amended to date, by and between the
Unaffiliated Seller and ResMae.
Responsible Officer: When used with respect to the Trustee, the Master
Servicer or the Securities Administrator, as applicable, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer or
any other officer of the Trustee, the Master Servicer or the Securities
Administrator, as applicable, customarily performing functions similar to those
performed by any of the above designated officers who at such time shall be
officers to whom, with respect to a particular matter, such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject and who, in each case, shall have direct responsibility for the
administration of this Agreement.
Rose: Rose Mortgage Corporation, a New Jersey corporation.
Rose Assignment Agreement: The Assignment and Recognition Agreement,
dated as of August 30, 2005, by and among the Unaffiliated Seller, the Depositor
and Rose, and each other Assignment and Recognition Agreement by and among the
Unaffiliated Seller, the Depositor and Rose in connection with any Subsequent
Transfer of Rose Mortgage Loans.
Rose Mortgage Loan: A Mortgage Loan which was acquired from Rose by
the Unaffiliated Seller pursuant to the Rose Purchase Agreement, and which has
been acquired by the Trust Fund.
Rose Purchase Agreement: The Mortgage Loan Purchase and Warranties
Agreement, dated as of June 1, 2005, as amended to date, by and between the
Unaffiliated Seller and Rose.
Rule 144A Letter: As defined in Section 5.02(b).
Saxon: Saxon Mortgage Services, Inc., a Texas corporation.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
scheduled payment due on such Mortgage Loan.
Scheduled Principal Balance: With respect to any Mortgage Loan: (a) as
of the Cut-off Date, the outstanding principal balance of such Mortgage Loan as
of such date, net of the principal portion of all unpaid Scheduled Payments, if
any, due on or before such date; (b) as of any Due Date subsequent to the
Cut-off Date up to and including the Due Date in the calendar month in which a
Liquidation Event occurs with respect to such Mortgage Loan, the Scheduled
Principal Balance of such Mortgage Loan as of the Cut-off Date, minus the sum of
(i) the
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principal portion of each Scheduled Payment due on or before such Due Date but
subsequent to the Cut-off Date, whether or not received, (ii) all Principal
Prepayments received before such Due Date but after the Cut-off Date, (iii) the
principal portion of all Liquidation Proceeds and Insurance Proceeds received
before such Due Date but after the Cut-off Date, net of any portion thereof that
represents principal due (without regard to any acceleration of payments under
the related Mortgage and Mortgage Note) on a Due Date occurring on or before the
date on which such proceeds were received and (iv) any reduction in the
principal balance of such Mortgage Loan incurred with respect thereto as a
result of a Deficient Valuation occurring before such Due Date, but only to the
extent such reduction in principal balance represents a reduction in the portion
of principal of such Mortgage Loan not yet due (without regard to any
acceleration of payments under the related Mortgage and Mortgage Note) as of the
date of such Deficient Valuation; and (c) as of any Due Date subsequent to the
occurrence of a Liquidation Event with respect to such Mortgage Loan, zero.
SEC: As defined in Section 8.12(a).
Second Lien Mortgage Loan: A Mortgage Loan secured by a second lien
Mortgage on the related Mortgaged Property.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: JPMorgan Chase Bank, N.A., a banking
association organized under the laws of the United States, and its successors
and assigns, in its capacity as Securities Administrator hereunder.
Securities Administrator and Master Servicer Fee: With respect to any
Distribution Date, an amount equal to the product of (a) one-twelfth of the
Securities Administrator and Master Servicer Fee Rate and (b) the sum of (i) the
Stated Principal Balance of the Mortgage Loans as of the prior Distribution Date
(or as of the Cut-off Date in the case of the first Distribution Date) and (ii)
the Pre-Funding Amount.
Securities Administrator and Master Servicer Fee Rate: With respect to
each Mortgage Loan, 0.0065% per annum.
Senior Enhancement Percentage: With respect to any Distribution Date,
the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the Subordinated
Amount (in each case after taking into account the distribution of the Principal
Distribution Amount for such Distribution Date) by (y) the Current Maximum
Amount for that Distribution Date.
Senior Specified Enhancement Percentage: As of any date of
determination, 42.50%.
Servicer: Each of Countrywide and Saxon, each in its capacity as a
Servicer hereunder.
Servicer Remittance Report: As defined in Section 4.03(d).
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Servicing Advances: The reasonable "out-of-pocket" costs and expenses
(including legal fees) incurred by the applicable Servicer in the performance of
its servicing obligations in connection with a default, delinquency or other
unanticipated event, including, but not limited to, the cost of (i) the
preservation, restoration, inspection and protection of a Mortgaged Property,
(ii) any enforcement, administrative or judicial proceedings, including
foreclosures and litigation, in respect of a particular Mortgage Loan, (iii) the
management (including reasonable fees in connection therewith) and liquidation
of any REO Property and (iv) the performance of its obligations under Section
3.01, Section 3.09, Section 3.13 and Section 3.15. Servicing Advances also
include any reasonable "out-of-pocket" costs and expenses (including legal fees)
incurred by the applicable Servicer in connection with executing and recording
instruments of satisfaction, deeds of reconveyance or Assignments of Mortgage in
connection with any foreclosure in respect of any Mortgage Loan to the extent
not recovered from the Mortgagor or otherwise payable under this Agreement. No
Servicer shall be required to make any Nonrecoverable Servicing Advances.
Servicing Fee: With respect to each Servicer and each Mortgage Loan
and for any calendar month, an amount equal to one month's interest (or in the
event of any payment of interest which accompanies a Principal Prepayment in
Full made by the Mortgagor during such calendar month, interest for the number
of days covered by such payment of interest) at the Servicing Fee Rate on the
applicable Stated Principal Balance of such Mortgage Loan at the end of the
related Due Period. Such fee shall be payable monthly, and shall be pro rated
for any portion of a month during which the Mortgage Loan is serviced by such
Servicer under this Agreement. The Servicing Fee is payable solely from, the
interest portion (including recoveries with respect to interest from Liquidation
Proceeds, Insurance Proceeds, Condemnation Proceeds and proceeds received with
respect to REO Properties, to the extent permitted by Section 3.11) of such
Scheduled Payment collected by such Servicer, or as otherwise provided under
Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.50% per
annum.
Servicing File: With respect to each Mortgage Loan, the file retained
by the applicable Servicer consisting of originals or copies of all documents in
the Mortgage File which are not delivered to the Custodian in the Custodial File
and copies of each of the other Mortgage Loan documents required to be delivered
by the related Originator pursuant to the terms of the related Mortgage Loan
Purchase Agreement.
Servicing Officer: Any officer of either Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee, the Securities Administrator, the Master Servicer and the Custodian
by such Servicer on the Closing Date pursuant to this Agreement, as such list
may from time to time be amended.
Servicing Transfer Date: With respect to each Mortgage Loan, the date
on which Countrywide or Saxon commenced servicing such Mortgage Loan, as set
forth on the Mortgage Loan Schedule.
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Specified Subordinated Amount: With respect to any Distribution Date
prior to the Stepdown Date, an amount equal to 2.30% of the Maximum Pool
Principal Balance; and with respect to any Distribution Date on and after the
Stepdown Date, an amount equal to 4.60% of the Current Maximum Amount for that
Distribution Date subject to a minimum amount equal to 0.50% of the Maximum Pool
Principal Balance; provided, however, that if, on any Distribution Date, a
Trigger Event exists, the Specified Subordinated Amount shall not be reduced to
the applicable percentage of the Current Maximum Amount, but instead will remain
the same as the prior period's Specified Subordinated Amount until the
Distribution Date on which a Trigger Event no longer exists. When the Class
Certificate Balance of each Class of LIBOR Certificates has been reduced to
zero, the Specified Subordinated Amount shall thereafter equal zero.
Standard & Poor's: Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., and its successors in interest. If Standard &
Poor's is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to Standard & Poor's shall
be Standard & Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Mortgage Surveillance Group - IXIS Real Estate Capital Trust
2005-HE3, or such other address as Standard & Poor's may hereafter furnish to
the Depositor, the Trustee, the Securities Administrator and the Servicers.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)Glossary,
as may be in effect from time to time.
Startup Day: For each REMIC created hereunder, the Closing Date.
Stated Principal Balance: As to each Mortgage Loan and as of any date
of determination, (i) the principal balance of the Mortgage Loan at the Cut-off
Date after giving effect to payments of principal due on or before such date, to
the extent actually received, minus (ii) all amounts previously remitted to the
Securities Administrator with respect to the related Mortgage Loan representing
payments or recoveries of principal, including Advances in respect of Scheduled
Payments of principal. For purposes of any Distribution Date, the Stated
Principal Balance of any Mortgage Loan will give effect to any Scheduled
Payments of principal received by the related Servicer on or prior to the
related Determination Date or advanced by the related Servicer prior to the
related Remittance Date and any unscheduled principal payments and other
unscheduled principal collections received during the related Prepayment Period,
and the Stated Principal Balance of any Mortgage Loan that has prepaid in full
or has become a Liquidated Mortgage Loan during the related Prepayment Period
shall be zero.
Stepdown Date: The later to occur of (i) the earlier to occur of (a)
the Distribution Date in September 2008 and (b) the Distribution Date on which
the aggregate Class Certificate Balance of the Class A Certificates have been
reduced to zero and (ii) the first Distribution Date on which the Senior
Enhancement Percentage (calculated for this purpose only after taking into
account scheduled and unscheduled payments of principal on the Mortgage Loans on
the last day of the related Due Period but prior to any allocation of the
Principal Distribution Amount together with any principal payments from the Swap
Account to the LIBOR Certificates on the applicable Distribution Date) is
greater than or equal to the Senior Specified Enhancement Percentage.
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Subordinated Amount: With respect to any Distribution Date, the
excess, if any, of (a) the Current Maximum Amount for that Distribution Date on
such Distribution Date over (b) the aggregate of the Class Certificate Balances
of the LIBOR Certificates as of such Distribution Date plus, except for federal
income tax purposes. the Class Certificate Balances of the Class P Certificates
(after giving effect to the payment of the Principal Remittance Amount on such
Certificates on such Distribution Date).
Subordinated Certificates: As specified in the Preliminary Statement.
Subordination Deficiency: With respect to any Distribution Date, the
excess, if any, of (a) the Specified Subordinated Amount applicable to such
Distribution Date over (b) the Subordinated Amount applicable to such
Distribution Date.
Subordination Reduction Amount: With respect to any Distribution Date,
an amount equal to the lesser of (a) the Excess Subordinated Amount and (b) the
Net Monthly Excess Cash Flow.
Subsequent Recovery: With respect to any Mortgage Loan or related
Mortgaged Property that became a Liquidated Mortgage Loan or was otherwise
disposed of, all amounts received in respect of such Liquidated Mortgage Loan
after an Applied Realized Loss Amount related to such Mortgage Loan or Mortgaged
Property is allocated to reduce the Class Certificate Balance of any Class of
Subordinated Certificates. Any Subsequent Recovery that is received during a
Prepayment Period will be treated as Liquidation Proceeds and included as part
of the Principal Remittance Amount for the related Distribution Date.
Subsequent Cut-off Date: As to any Subsequent Mortgage Loans, the date
specified in the Addition Notice delivered in connection therewith, which date
shall be the close of business on the first day of the month in which such
Subsequent Mortgage Loans will be conveyed to the Trust Fund.
Subsequent Mortgage Loans: The Mortgage Loans hereafter transferred
and assigned to the Trust Fund pursuant to Section 2.01(c), each of which shall
have been purchased by the Unaffiliated Seller under a Mortgage Loan Purchase
Agreement.
Subsequent Transfer: The transfer and assignment by the Depositor to
the Trust of the Subsequent Mortgage Loans pursuant to the terms hereof.
Subsequent Transfer Agreement: A subsequent transfer agreement in
substantially the form of Exhibit L.
Subsequent Transfer Date: The Business Day on which a Subsequent
Transfer occurs.
Subservicer: As defined in Section 3.02(a).
Subservicing Account: As defined in Section 3.08.
Subservicing Agreement: As defined in Section 3.02(a).
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Substitute Mortgage Loan: A Mortgage Loan substituted by the
Unaffiliated Seller or an Originator for a Deleted Mortgage Loan in accordance
with the terms of this Agreement or the related Mortgage Loan Purchase
Agreement, as applicable, which must, on the date of such substitution, as
confirmed in a Request for Release, substantially in the form of Exhibit K, (i)
have a Stated Principal Balance, after deduction of the principal portion of the
Scheduled Payment due in the month of substitution, not in excess of, and not
more than 10% less than, the Stated Principal Balance of the Deleted Mortgage
Loan; (ii) be accruing interest at a rate no lower than and not more than 1% per
annum higher than, that of the Deleted Mortgage Loan; (iii) have a Loan-to-Value
Ratio no higher than that of the Deleted Mortgage Loan; (iv) have a remaining
term to maturity no greater than (and not more than one year less than that of)
the Deleted Mortgage Loan; and (v) comply with each representation and warranty
set forth in Sections 3.01(f), 3.01(h), 3.01(n), 3.01(o), 3.01(p) and 3.03 of
the Unaffiliated Seller's Agreement, each representation and warranty set forth
in the applicable Mortgage Loan Purchase Agreement and each of the requirements
set forth in Sections 2.01(c) hereof.
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant to Section 2.03.
Supplemental Interest Trust: IXIS Real Estate Capital Supplemental
Interest Trust 2005-HE3 established pursuant to Section 2.01(d).
Swap Account: The separate Eligible Account created and maintained by
the Securities Administrator pursuant to Section 3.07(m) in the name of the
Securities Administrator, on behalf of the Supplemental Interest Trust, for the
benefit of the Certificateholders and the Swap Provider, and designated
"JPMorgan Chase Bank, N.A. in trust for registered holders of IXIS Real Estate
Capital Trust 2005-HE3, Mortgage Pass-Through Certificates, Series 2005-HE3 and
IXIS Financial Products, Inc.".
Swap Payment Rate: For any Distribution Date the Swap Payment Rate is
a fraction, the numerator of which is any Net Swap Payment or Swap Termination
Payment owed to the Swap Provider for such Distribution Date and the denominator
of which is the Stated Principal Balance of the mortgage loans at the beginning
of the related Due Period plus amounts in the Pre-Funding Accounts, multiplied
by 12.
Swap Provider: IXIS Financial Products Inc., a Delaware corporation,
and any successor thereto.
Swap Termination Payment: A termination payment required to be made by
either the Supplemental Interest Trust or the Swap Provider pursuant to the
Interest Rate Swap Agreement as a result of termination of the Interest Rate
Swap Agreement.
Tax Matters Person: The Holder of the Class R Certificates designated
as "tax matters person" of REMIC I, REMIC II, REMIC III, REMIC IV and REMIC V,
respectively, in the manner provided under Treasury regulations section
1.860F-4(d) and Treasury regulations section 301.6231(a)(7)-1.
Tax Service Contract: As defined in Section 3.09(a).
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Telerate Page 3750: The display page currently so designated on the
Bridge Telerate Service (or such other page as may replace that page on that
service for displaying comparable rates or prices).
Termination Price: As defined in Section 9.01.
Total Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess if any, of (i) the interest on the Mortgage Loans received
by the Servicers on or prior to the related Determination Date (other than
Prepayment Interest Excesses) or advanced by the Servicers for the related
Remittance Date (net of Expense Fees) over (ii) the sum of the amounts payable
to the LIBOR Certificates and to the Class A-1 Certificate Insurer pursuant to
Section 4.02(a)(i) and Net Swap Payments to the Swap Provider on such
Distribution Date.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(b).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: The occurrence of either a Delinquency Trigger Event or
a Cumulative Loss Trigger Event.
Trust: The express trust created hereunder in Section 2.01(d).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal received on or with
respect thereto after the related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or before the related Cut-off Date; (ii) each
Account, other than the Swap Account and the Excess Reserve Fund Account, and
all amounts deposited therein pursuant to the applicable provisions of this
Agreement; (iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure or otherwise; (iv) all rights of the
Depositor against the Unaffiliated Seller under the Unaffiliated Seller's
Agreement; (v) all rights of the Depositor against each Originator under the
related Assignment and Recognition Agreement and the related Mortgage Loan
Purchase Agreement; (vi) the Certificate Insurance Policy, and (vii) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing.
Trustee: Deutsche Bank National Trust Company, a national banking
association, and its successors in interest and, if a successor trustee is
appointed hereunder, such successor.
Unaffiliated Seller's Agreement: The Unaffiliated Seller's Agreement,
dated as of the date hereof, among the Unaffiliated Seller and the Depositor
relating to the sale of the Mortgage Loans from the Unaffiliated Seller to the
Depositor.
Underwriters' Exemption: Prohibited Transaction Exemption 90-24, as
amended.
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Unpaid Interest Amount: As of any Distribution Date and any Class of
Certificates, the sum of (a) the excess of (i) the sum of the Accrued
Certificate Interest for such Distribution Date and any portion of such Accrued
Certificate Interest from prior Distribution Dates remaining unpaid over (ii)
the amount in respect of interest on such Class of Certificates actually
distributed on that Distribution Date and (b) 30 days' interest on the amount in
clause (a) above at the applicable Pass-Through Rate (to the extent permitted by
applicable law).
Unpaid Realized Loss Amount: With respect to any Class of Subordinated
Certificates and as to any Distribution Date, is the excess of (i) the Applied
Realized Loss Amount with respect to such Class over (ii) the sum of (a) all
distributions in reduction of such Applied Realized Loss Amounts on all previous
Distribution Dates and (b) the amount by which the Class Certificate Balance of
such Class has been increased due to the distribution of any Subsequent
Recoveries on all previous Distribution Dates. Any amounts distributed to a
Class of Subordinated Certificates in respect of any Unpaid Realized Loss Amount
will not be applied to reduce the Class Certificate Balance of such Class.
U.S. Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of any
State thereof, including, for this purpose, the District of Columbia; (iii) a
partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any State
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the Holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any, and (c) the remaining Voting Rights shall be allocated
among Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
WAC Cap: With respect to the Mortgage Loans as of any Distribution
Date, the product of (i) the weighted average of the Adjusted Net Mortgage Rates
then in effect on the beginning of the related Due Period on the Mortgage Loans,
less the Swap Payment Rate, and in the case of the Class A-1 Certificates, minus
the Premium Rate and (ii) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the Interest Accrual Period
related to such Distribution Date.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the
Trustee for the benefit of the Certificateholders, without recourse, all the
right, title and interest of the Depositor in and to the Trust Fund and the
Trustee, on behalf of the Trust, hereby accepts the Trust Fund, other than any
Subsequent Mortgage Loans, which will be so sold, transferred, assigned,
set-over and conveyed on the related Subsequent Transfer Date. The Mortgage
Loans permitted by the terms of this Agreement to be included in the Trust Fund
are limited to (i) the Initial Mortgage Loans (which the Depositor acquired
pursuant to the Unaffiliated Seller's Agreement), (ii) Subsequent Mortgage Loans
(which the Depositor acquired pursuant to the Unaffiliated Seller's Agreement,
which contains, among other representations and warranties, a representation and
warranty of the Unaffiliated Seller that no Mortgage Loan is a "High-Cost Home
Loan" as defined in the New Jersey Home Ownership Act to the extent originated
on or after November 27, 2003) (which the Depositor is required hereunder to
have acquired pursuant to Subsequent Transfer Agreements) and (iii) Substitute
Mortgage Loans (which the Depositor acquired pursuant to the Unaffiliated
Seller's Agreement, which contains, among other representations and warranties,
a representation and warranty of the Unaffiliated Seller that no Mortgage Loan
is a "High-Cost Home Loan" as defined in the New Jersey Home Ownership Act to
the extent originated on or after November 27, 2003) (which, by definition as
set forth herein and referred to in the Unaffiliated Seller's Agreement and
Subsequent Transfer Agreements). It is agreed and understood by the parties
hereto that it is not intended that any Mortgage Loan be included in the Trust
that is a High Cost Loan.
(b) In connection with the transfer and assignment of each Mortgage
Loan, the Unaffiliated Seller has delivered or caused to be delivered to the
Custodian for the benefit of the Certificateholders the following documents or
instruments with respect to each Mortgage Loan so assigned (to the extent such
documents or instruments are required to be delivered by the related Originator
under each Mortgage Loan Purchase Agreement):
(i) the original Mortgage Note bearing all intervening endorsements
evidencing a complete chain of assignment from the originator to the
related Originator, endorsed "Pay to the order of _________, without
recourse" and signed in the name of the related Originator by an authorized
officer. To the extent that there is no room on the face of the Mortgage
Notes for endorsements, the endorsement may be contained on an allonge,
unless the Trustee and the Custodian are advised by the related Originator
that state law does not so allow. If the Mortgage Loan was acquired by an
Originator in a merger, the endorsement must be by "[related Originator],
successor by merger to [name of predecessor]". If the Mortgage Loan was
acquired or originated by the related Originator while doing business under
another name, the endorsement must be by "[related Originator], formerly
known as [previous name]";
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(ii) the original of any guarantee executed in connection with the
Mortgage Note;
(iii) the original Mortgage with evidence of recording thereon. If in
connection with any Mortgage Loan, the original Mortgage with evidence of
recording thereon cannot be delivered on or prior to the related Delivery
Date because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage has
been lost or because such public recording office retains the original
recorded Mortgage, then the related Originator, as required by the terms of
the related Mortgage Loan Purchase Agreement, will be required to deliver
to the Custodian, on behalf of the Trustee, a photocopy of such Mortgage
and (i) the original recorded Mortgage or a copy of such Mortgage certified
by such public recording office to be a true and complete copy of the
original recorded Mortgage promptly upon receipt thereof by the related
Originator (but in any event within 360 days from the related Delivery
Date); or (ii) in the case of a Mortgage where a public recording office
retains the original recorded Mortgage or in the case where a Mortgage is
lost after recordation in a public recording office, a copy of such
Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(v) the original Assignment of Mortgage for each Mortgage Loan
endorsed in blank, in form and substance acceptable for recording (except
with respect to MERS Designated Mortgage Loans);
(vi) the originals of all intervening assignments of mortgage,
evidencing a complete chain of assignment from the originator (or MERS with
respect to each MERS Designated Mortgage Loan) to the related Originator,
with evidence of recording thereon or if any such intervening assignment
has not been returned from the applicable recording office or has been lost
or if such public recording office retains the original recorded
assignments of mortgage;
(vii) the original or duplicate lender's title policy and all riders
thereto or, if such original is unavailable, either an original title
binder or an original or copy of the title commitment, and if copies then
certified to be true and complete by the title company; and
(viii) the security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage, if any.
If any Mortgage has been recorded in the name of Mortgage Electronic
Registration System, Inc. ("MERS") or its designee, no Assignment of Mortgage in
favor of the Trustee will be required to be prepared or delivered and instead,
the applicable Servicer shall take all reasonable actions as are necessary at
the expense of the applicable Originator to the extent permitted under the
related Purchase Agreement and otherwise at the expense of the
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Depositor to cause the Trustee to be shown as Investor of the related Mortgage
Loan on the records of MERS for the purpose of the system of recording transfers
of beneficial ownership of mortgages maintained by MERS. Within 90 days after
the Closing Date, the Trustee shall, for the benefit of the Holders of the
Certificates, based solely on the list of MERS Designated Mortgage Loans and
screen printouts from the MERS system provided to the Trustee by the
Unaffiliated Seller (such to be provided to the Trustee no later than 45 days
from the Closing Date), the Trustee shall confirm, on behalf of the Trust, that
the Trustee is shown as the Investor with respect to each MERS Designated
Mortgage Loan on such screen printouts. If the Trustee is not shown as the
Investor with respect to any MERS Designated Mortgage Loans on such screen
printouts, the Trustee shall promptly notify the Unaffiliated Seller of such
fact and the Unaffiliated Seller shall then either cure such defect or
repurchase such Mortgage Loan in accordance with Section 2.03.
From time to time, each Servicer shall forward to the Custodian
additional original documents, additional documents evidencing an assumption,
modification, consolidation or extension of a Mortgage Loan approved by the
applicable Servicer, in accordance with the terms of this Agreement. All such
mortgage documents held by the Custodian as to each Mortgage Loan shall
constitute the "Custodial File".
On or prior to the related Delivery Date, the Unaffiliated Seller
shall deliver, or cause the related Originator to deliver, to the Custodian
Assignments of Mortgage, in blank, for each Mortgage Loan. If an Assignment of
Mortgage is required to be recorded pursuant to the terms hereof, the applicable
Servicer, or the applicable Servicer's designee shall direct the Custodian to
promptly forward such Assignment of Mortgage to such Servicer for recording. No
later than thirty (30) Business Days following the date of receipt by a Servicer
of all necessary recording information for a Mortgage, such Servicer shall
promptly submit or cause to be submitted for recording, at the expense of the
Unaffiliated Seller (the Unaffiliated Seller to seek reimbursement from the
related Originator under the applicable Mortgage Loan Purchase Agreement) in the
appropriate public office for real property records, each Assignment of Mortgage
referred to in Section 2.01(b)(v). Notwithstanding the foregoing, however, for
administrative convenience and facilitation of servicing and to reduce closing
costs, the Assignment of Mortgage shall not be required to be completed and
submitted for recording with respect to any MERS Designated Mortgage Loan or any
Mortgage Loan (other than any Mortgage Loan where the Mortgaged Property is
located in any state where recordation is required by any Rating Agency to
obtain the initial ratings on the Certificates, which states as of the date
hereof, are Florida and Maryland) until the earliest to occur of (i) direction
by the Class A-1 Certificate Insurer or (ii) upon a determination by the
applicable Servicer that recordation is necessary for the enforcement of rights
under, or satisfaction or assignment of, the related Mortgage, at which time,
such Servicer shall record any such Assignment of Mortgage in accordance with
the terms hereof. If any Assignment of Mortgage is required to be recorded
pursuant to the terms hereof, the Mortgage shall be assigned from the related
Originator, to "Deutsche Bank National Trust Company, as trustee under the
Pooling and Servicing Agreement dated as of August 1, 2005, IXIS Real Estate
Capital Trust 2005-HE3." In the event that any such assignment is lost or
returned unrecorded because of a defect therein, the Unaffiliated Seller shall
cause the related Originator to promptly prepare a substitute assignment to cure
such defect and thereafter cause each such assignment to be duly recorded. In
the event the Unaffiliated Seller does not pay or otherwise reimburse the
applicable Servicer for any of the foregoing costs
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of recording any such Assignment of Mortgage, such Servicer shall be entitled to
be reimbursed from the Trust Fund from amounts on deposit in its Collection
Account. In the event the related Originator fails to reimburse the Unaffiliated
Seller for the recording costs described above, upon receipt of written
direction from the Unaffiliated Seller, the Trustee shall assign its rights
under the applicable Mortgage Loan Purchase Agreement solely with respect to
payment of such expenses to the Unaffiliated Seller.
The Unaffiliated Seller shall use commercially reasonable efforts to
assist each Servicer in causing the related Originator to deliver (at the
expense of such Originator pursuant to the related Mortgage Loan Purchase
Agreement) to each Servicer copies of all trailing documents required to be
included in the Custodial File at the same time the originals or certified
copies thereof are delivered to the Custodian, such documents, including, but
not limited to, the mortgagee policy of title insurance and any mortgage loan
documents upon return from the recording office. The Unaffiliated Seller shall
use commercially reasonable efforts to assist each Servicer in seeking
reimbursement from the related Originator pursuant to the related Mortgage Loan
Purchase Agreement for any fees or costs incurred by such Servicer in obtaining
such documents.
On or prior to the Closing Date, the Unaffiliated Seller shall deliver
to the Trustee, the Custodian, the Securities Administrator, the Master Servicer
and the Servicers a copy of the Data Tape Information in electronic, machine
readable medium in a form mutually acceptable to the Custodian, the Trustee, the
Securities Administrator, the Master Servicer and the Servicers. Within ten days
of the Closing Date, the Unaffiliated Seller shall deliver a copy of the
complete Mortgage Loan Schedule to the Custodian, the Trustee, the Securities
Administrator, the Master Servicer and the Servicers.
In the event that such original or copy of any document submitted for
recordation to the appropriate public recording office is not so delivered to
the Custodian within 90 days following the related Delivery Date, as evidenced
by the Custodian's Final Certification, and in the event that the Originator
does not cure such failure within 30 days of discovery or receipt of written
notification of such failure from the Depositor, the Trustee, the Securities
Administrator, the Master Servicer or the Class A-1 Certificate Insurer, the
Securities Administrator shall notify the related Originator to repurchase the
Mortgage Loan pursuant to the related Mortgage Loan Purchase Agreement, upon the
request of the Depositor, the Trustee, the Securities Administrator or the Class
A-1 Certificate Insurer, at the Repurchase Price and in the manner specified in
Section 2.03. The foregoing repurchase provision shall not apply in the event
that the related Originator cannot deliver such original or copy of any document
submitted for recordation to the appropriate public recording office within the
specified period due to a delay caused by the recording office in the applicable
jurisdiction; provided that the related Originator shall instead be required to
deliver a recording receipt of such recording office or, if such recording
receipt is not available, an officer's certificate of a servicing officer of the
Originator confirming that such document has been accepted for recording.
(c) Purchase and Sale of Subsequent Mortgage Loans.
(i) Subject to the satisfaction of the conditions set forth in
paragraph (ii) below, and upon the Securities Administrator's receipt of a
Subsequent Transfer
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Agreement executed by all other parties thereto, in consideration of the
Securities Administrator's delivery on the related Subsequent Transfer
Dates to or upon the order of the Depositor of all or a portion of the
balance of funds in the related Pre-Funding Accounts, the Depositor shall
on any Subsequent Transfer Date sell, transfer, assign, set over and convey
to the Trustee without recourse but subject to terms and provisions of this
Agreement, all of the right, title and interest of the Depositor in and to
the Group I Subsequent Mortgage Loans or the Group II Subsequent Mortgage
Loans, as applicable, including the outstanding principal of and interest
due on such Subsequent Mortgage Loans, and all other related assets
included or to be included in the Trust Fund with respect thereto.
The amount released from the Group I Pre-Funding Account with respect
to a transfer of Group I Subsequent Mortgage Loans, or from the Group II
Pre-Funding Account with respect to a transfer of the Group II Subsequent
Mortgage Loans, shall be one-hundred percent (100%) of the aggregate Stated
Principal Balances as of the related Subsequent Cut-off Date of the
Subsequent Mortgage Loans so transferred.
(ii) The Subsequent Mortgage Loans and the other property and rights
related thereto described in paragraph (a) above shall be transferred by
the Depositor to the Trust Fund only upon the satisfaction of each of the
following conditions on or prior to the related Subsequent Transfer Date:
(a) the Unaffiliated Seller shall have provided the Depositor, the
Trustee, the Securities Administrator, the Rating Agencies and
the Class A-1 Certificate Insurer with a timely Addition Notice,
which shall include a Mortgage Loan Schedule, listing the
Subsequent Mortgage Loans and shall have provided any other
information reasonably requested by any of the foregoing with
respect to the Subsequent Mortgage Loans;
(b) the applicable Servicer shall have deposited in the related
Collection Account all collections of (x) principal in respect of
the Subsequent Mortgage Loans received and due after the related
Subsequent Cut-off Date and (y) interest due on the Subsequent
Mortgage Loans after the related Subsequent Cut-off Date;
(c) as of each Subsequent Transfer Date, the Unaffiliated Seller was
not insolvent nor will be made insolvent by such transfer nor is
the Unaffiliated Seller aware of any pending insolvency;
(d) such addition will not result in a "prohibited transaction" (as
defined in the REMIC Provisions) for any REMIC created hereunder,
and will not cause any REMIC created hereunder to cease to
qualify as a REMIC, as evidenced by an Opinion of Counsel with
respect to such matters (which may be a blanket opinion dated the
Closing Date);
(e) the Pre-Funding Period shall not have terminated;
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(f) the Unaffiliated Seller shall have delivered to the Securities
Administrator an executed Assignment and Recognition Agreement
with respect to each related Originator of Subsequent Mortgage
Loans to be added to the Trust Fund on such Subsequent Transfer
Date (which Assignment and Recognition Agreement shall include a
representation and warranty from the related Originator that none
of the Subsequent Mortgage Loans is a High Cost Loan, none of the
Subsequent Mortgage Loans is covered by the Home Ownership and
Equity Protection Act of 1994 and none of the Subsequent Mortgage
Loans is in violation of any comparable state law);
(g) the Unaffiliated Seller shall have delivered to the Securities
Administrator an Officer's Certificate confirming the
satisfaction of each condition precedent specified in this
paragraph (ii), and the Opinion of Counsel referenced in clause
(d);
(h) the Unaffiliated Seller and the Depositor shall have delivered to
the Securities Administrator an executed copy of a Subsequent
Transfer Agreement, substantially in the form of Exhibit L
hereto;
(i) the Unaffiliated Seller shall have obtained the consent of the
Class A-1 Certificate Insurer; and
(j) each of the Rating Agencies shall have provided a notice in
either written or electronic format acknowledging their
respective consents to the transfer of the Subsequent Mortgage
Loans to the Trust Fund.
(iii) The obligation of the Trust Fund to purchase the Subsequent
Mortgage Loans on a Subsequent Transfer Date is subject to the requirements
that, following the purchase of such Subsequent Mortgage Loans, with
respect to the entire mortgage loan pool:
(A) no more than 3.00% may be second lien mortgage loans;
(B) no more than 37.00% may be first lien mortgage loans which are
secured by Mortgaged Properties which also secure second lien
mortgage loans;
(C) no less than 10.00% and no more than 12.00% may be Fixed Rate
Mortgage Loans;
(D) the weighted average original term to maturity may not exceed 360
months;
(E) the weighted average gross Mortgage Rate must not be less than
7.400%, or more than 7.600%;
(F) the weighted average original LTV must not exceed 81.00%, and no
more than 36.50% of the Mortgage Loans may have LTVs in excess of
80.00%;
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(G) at least 82.50% of the Mortgage Loans must have Prepayment
Charges;
(H) the weighted average Gross Margin for the Adjustable Rate
Mortgage Loans must be at least 6.33%;
(I) the weighted average credit score (FICO Score) must be at least
625, and none of the Mortgage Loans may have credit scores below
500;
(J) the weighted average credit score for the second-lien mortgage
loans must be at least 665;
(K) the weighted average Stated Documentation and No Ratio
Documentation percentage must not exceed 53.00%.
(L) no more than 32.00% may have an interest-only period;
(M) all of the Group I Subsequent Mortgage Loans will conform with
Xxxxxxx Mac or Xxxxxx Mae Guidelines;
(N) no mortgage loan is classified as a "high cost" loan under the
Home Ownership and Equity Protection Act of 1994 ("HOEPA") and no
mortgage loan is in violation of, or classified as a "high cost,"
"threshold," "predatory" or similar loan under, any other
applicable state, federal or local law;
(O) no Mortgage Loan originated on or after October 1, 2002 but
before or on March 7, 2003 will be secured by property located in
the State of Georgia and no mortgage loan originated on or after
March 7, 2003 is a "high cost home loan" as defined under the
Georgia Fair Lending Act;
(P) Each Mortgage Loan originated on or after November 27, 2003 but
prior to July 7, 2004, which is secured by an owner-occupied
property located in the State of New Jersey, will be a purchase
money home loan and no Mortgage Loan originated on or after
November 27, 2003 but prior to July 7, 2004, which is secured by
an owner-occupied property located in the State of New Jersey,
will be a "covered" loan; and
(Q) No Mortgage Loan originated on or after November 27, 2003 which
is secured by an owner-occupied property located in the State of
New Jersey, will be a "high cost" loan, a home improvement loan
or be secured by manufactured housing.
Any of the requirements set forth in clauses (ii) and (iii) above may
be waived or modified in any respect with the consent of the Class A-1
Certificate Insurer and Rating Agencies.
(iv) In connection with the transfer and assignment of the Subsequent
Mortgage Loans, the Unaffiliated Seller shall satisfy the document delivery
requirements set forth in Section 2.01(b).
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(d) The Depositor does hereby establish, pursuant to the further
provisions of the Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "IXIS REAL ESTATE CAPITAL
TRUST 2005-HE3" and Deutsche Bank National Trust Company is hereby appointed as
Trustee in accordance with the provisions of this Agreement. The parties hereto
acknowledge and agree that it is the policy and intention of the Trust to
acquire only Mortgage Loans meeting the requirements set forth in this
Agreement. In addition Depositor does hereby establish, pursuant to the further
provisions of the Agreement and the laws of the State of New York, an express
trust (the "Supplemental Interest Trust") to be known, for convenience, as "IXIS
REAL ESTATE CAPITAL SUPPLEMENTAL INTEREST TRUST 2005-HE3", which, as a subtrust
of the Trust Fund, will hold the Swap Agreement, the Swap Account and the Excess
Reserve Fund Account.
(e) The Trust shall have the capacity, power and authority, and the
Trustee on behalf of the Trust is hereby authorized, to accept the sale,
transfer, assignment, set over and conveyance by the Depositor to the Trust of
all the right, title and interest of the Depositor in and to the Trust Fund
(including, without limitation, the Mortgage Loans) pursuant to Section 2.01(a).
The Securities Administrator is hereby authorized and directed to execute the
Swap Agreement on behalf of the Supplemental Interest Trust.
Section 2.02 Acceptance by the Custodian of the Mortgage Loans.
The Custodian shall acknowledge, on each Delivery Date, receipt of the
documents identified in the Initial Certification in the form annexed hereto as
Exhibit F, and declares that it holds and will hold such documents and the other
documents delivered to it pursuant to Section 2.01, and that it holds or will
hold such other assets as are included in the Trust Fund, on behalf of the
Trustee, in trust for the exclusive use and benefit of all present and future
Certificateholders and the Class A-1 Certificate Insurer. The Custodian
acknowledges that it will maintain possession of the related Mortgage Notes in
the State of California, unless otherwise permitted under this Agreement or by
the Rating Agencies and the Class A-1 Certificate Insurer.
In connection with each Delivery, the Custodian shall deliver via
facsimile (with original to follow the next Business Day) to the Depositor, the
Trustee, the Securities Administrator, the Unaffiliated Seller, the Servicers
and the Class A-1 Certificate Insurer an Initial Certification on or prior to
the related Delivery Date, certifying receipt of the related Mortgage Notes and
Assignments of Mortgage for each related Mortgage Loan. The Custodian shall not
be responsible for verifying the validity, sufficiency or genuineness of any
document in any Custodial File.
Within 120 days after the related Delivery Date, the Custodian shall
ascertain that all documents required to be reviewed by it are in its
possession, and shall deliver to the Depositor, the Unaffiliated Seller, the
Servicers, the Trustee, the Securities Administrator and the Class A-1
Certificate Insurer a Final Certification to the effect that, as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or any Mortgage Loan specifically identified in such certification
as an exception and not covered by such certification): (i) all documents
required to be reviewed by it are in its possession; (ii) such documents have
been reviewed by it and appear regular on their face and relate to such Mortgage
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Loan; (iii) based on its examination and only as to the foregoing documents, the
information set forth in items (1), (2) and (18) of the Mortgage Loan Schedule
and items (1), (9) and (17) of the Data Tape Information respecting such
Mortgage Loan is correct; (iv) each Mortgage Note has been endorsed as provided
in Section 2.01 of this Agreement; and (v) upon receipt of the screen printouts
specified in Section 2.01, with respect to each MERS Designated Loan, the
Trustee, on behalf of the Trust Fund, is listed as the Investor of such MERS
Designated Loan on the MERS System. The Custodian shall not be responsible to
verify the validity, sufficiency or genuineness of any document in any Custodial
File. Upon receipt of such Final Certification, if the Depositor, the
Unaffiliated Seller or the Class A-1 Certificate Insurer determines that any
noncompliance identified by the Custodian is a breach of a representation or
warranty relating to such Mortgage Loan, such party shall give written notice to
the Trustee and the Securities Administrator thereof.
The Custodian shall retain possession and custody of each Custodial
File in accordance with and subject to the terms and conditions set forth
herein. Each Servicer shall promptly deliver to the Custodian, upon the
execution or receipt thereof, the originals of such other documents or
instruments constituting the Custodial File as come into the possession of the
applicable Servicer from time to time.
Section 2.03 Representations, Warranties and Covenants of the
Unaffiliated Seller and the Servicers.
(a) Countrywide hereby makes the representations and warranties set
forth in (i) Schedule II hereto to the Depositor, the Unaffiliated Seller, the
Custodian, the Securities Administrator, the Class A-1 Certificate Insurer and
the Trustee and (ii) Schedule IIA hereto to the Unaffiliated Seller and the
Class A-1 Certificate Insurer, in each case, as of the Closing Date, and with
respect to Subsequent Mortgage Loans, as of the related Subsequent Transfer
Date; provided, however, that in the case of clause (ii), Countrywide only makes
representations and warranties with respect to those Mortgage Loans on Schedule
IA hereto for which the Servicing Transfer Date has occurred prior to the
Closing Date or the related Subsequent Transfer Date, as applicable.
(b) Saxon hereby makes the representations and warranties set forth in
(i) Schedule III hereto to the Depositor, the Unaffiliated Seller, the
Custodian, the Securities Administrator, the Class A-1 Certificate Insurer and
the Trustee and (ii) Schedule IIIA hereto to the Unaffiliated Seller and the
Class A-1 Certificate Insurer, in each case, as of the Closing Date, and with
respect to Subsequent Mortgage Loans, as of the related Subsequent Transfer
Date; provided, however, that in the case of clause (ii), Saxon only makes
representations and warranties with respect to those Mortgage Loans on Schedule
IB hereto for which the Servicing Transfer Date has occurred prior to the
Closing Date or the related Subsequent Transfer Date, as applicable.
(c) IXIS Real Estate Capital Inc., in its capacity as the Unaffiliated
Seller, hereby makes the representations and warranties set forth in Schedule IV
hereto to the Depositor, the Trustee, the Securities Administrator, the
Custodian and the Class A-1 Certificate Insurer, as of the Closing Date.
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(d) It is understood and agreed by each Servicer and the Unaffiliated
Seller that the representations and warranties set forth in Section 2.03 shall
survive the transfer of the Mortgage Loans to the Trust Fund, and shall inure to
the benefit of the Trust Fund notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment of Mortgage or the examination or
failure to examine any Mortgage File. Upon discovery by any of the Depositor,
the Unaffiliated Seller, the Trustee, the Securities Administrator, the Class
A-1 Certificate Insurer or either Servicer of a breach by the Unaffiliated
Seller of any of the foregoing representations or any of the representations and
warranties made pursuant to Sections 3.01(f), 3.01(h), 3.01(n), 3.01(o), 3.01(p)
or 3.03 of the Unaffiliated Seller's Agreement or by any Originator of the
representations and warranties made pursuant to the related Assignment and
Recognition Agreement, the party discovering such breach shall give prompt
written notice to the others.
Within 90 days of the earlier of either discovery by or notice to the
Unaffiliated Seller of any breach of a representation or warranty set forth in
Section 3.01(f), 3.01(h), 3.01(n), 3.01(o), 3.01(p) or 3.03 of the Unaffiliated
Seller's Agreement that materially and adversely affects the value of the
Mortgage Loans or the interest of the Trustee, the Class A-1 Certificate Insurer
or the Certificateholders therein, the Unaffiliated Seller shall use its best
efforts to cure such breach in all material respects and, if such breach cannot
be remedied, the Unaffiliated Seller shall, (i) if such 90-day period expires
prior to the second anniversary of the related Delivery Date, remove such
Mortgage Loan from the Trust Fund and substitute in its place a Substitute
Mortgage Loan, in the manner and subject to the conditions set forth in this
Section 2.03; or (ii) repurchase such Mortgage Loan at the Repurchase Price;
provided, however, that any such substitution pursuant to (i) above shall not be
effected prior to the delivery to the Trustee of the Opinion of Counsel required
by Section 2.05, if any, and a Request for Release substantially in the form of
Exhibit K, and the Mortgage File for any such Substitute Mortgage Loan. The
Trustee shall forward such Request for Release to the Custodian and the
Custodian shall release the related Mortgage File.
In the event there is a breach of a representation or warranty by
Allstate Home Loans with respect to a Allstate Home Loan that materially and
adversely affects the value of such Mortgage Loan or the interest of the Trustee
and the Certificateholders therein, and, upon discovery or receipt of notice,
Allstate fails to cure, substitute or repurchase such Mortgage Loan within the
period specified in either the Allstate Assignment Agreement or the Allstate
Purchase Agreement, the Unaffiliated Seller shall cure, substitute or repurchase
such Mortgage Loan subject to the conditions set forth in this Section 2.03. In
the event there is a breach of a representation or warranty by Chapel Mortgage
with respect to a Chapel Mortgage Loan that materially and adversely affects the
value of such Mortgage Loan or the interest of the Trustee and the
Certificateholders therein, and, upon discovery or receipt of notice, Chapel
Mortgage fails to cure, substitute or repurchase such Mortgage Loan within the
period specified in either the Chapel Mortgage Assignment Agreement or the
Chapel Mortgage Purchase Agreement, the Unaffiliated Seller shall cure,
substitute or repurchase such Mortgage Loan subject to the conditions set forth
in this Section 2.03. In the event there is a breach of a representation or
warranty by Encore with respect to an Encore Mortgage Loan that materially and
adversely affects the value of such Mortgage Loan or the interest of the Trustee
and the Certificateholders therein, and, upon discovery or receipt of notice,
Encore fails to cure, substitute or repurchase such Mortgage Loan within the
period specified in either the Encore Assignment Agreement or
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the Encore Purchase Agreement, the Unaffiliated Seller shall cure, substitute or
repurchase such Mortgage Loan subject to the conditions set forth in this
Section 2.03. In the event there is a breach of a representation or warranty by
First Bank with respect to a First Bank Mortgage Loan that materially and
adversely affects the value of such Mortgage Loan or the interest of the Trustee
and the Certificateholders therein, and, upon discovery or receipt of notice,
First Bank fails to cure, substitute or repurchase such Mortgage Loan within the
period specified in either the First Bank Assignment Agreement or the First Bank
Purchase Agreement, the Unaffiliated Seller shall cure, substitute or repurchase
such Mortgage Loan subject to the conditions set forth in this Section 2.03. In
the event there is a breach of a representation or warranty by Homeowners with
respect to a Homeowners Mortgage Loan that materially and adversely affects the
value of such Mortgage Loan or the interest of the Trustee and the
Certificateholders therein, and, upon discovery or receipt of notice, Homeowners
fails to cure, substitute or repurchase such Mortgage Loan within the period
specified in either the Homeowners Assignment Agreement or the Homeowners
Purchase Agreement, the Unaffiliated Seller shall cure, substitute or repurchase
such Mortgage Loan subject to the conditions set forth in this Section 2.03. In
the event there is a breach of a representation or warranty by Lenders Direct
with respect to a Lenders Direct Mortgage Loan that materially and adversely
affects the value of such Mortgage Loan or the interest of the Trustee and the
Certificateholders therein, and, upon discovery or receipt of notice, Lenders
Direct fails to cure, substitute or repurchase such Mortgage Loan within the
period specified in either the Lenders Direct Assignment Agreement or the
Lenders Direct Purchase Agreement, the Unaffiliated Seller shall cure,
substitute or repurchase such Mortgage Loan subject to the conditions set forth
in this Section 2.03. In the event there is a breach of a representation or
warranty by Lime Financial with respect to a Lime Financial Mortgage Loan that
materially and adversely affects the value of such Mortgage Loan or the interest
of the Trustee and the Certificateholders therein, and, upon discovery or
receipt of notice, Lime Financial fails to cure, substitute or repurchase such
Mortgage Loan within the period specified in either the Lime Financial
Assignment Agreement or the Lime Financial Purchase Agreement, the Unaffiliated
Seller shall cure, substitute or repurchase such Mortgage Loan subject to the
conditions set forth in this Section 2.03. In the event there is a breach of a
representation or warranty by Master Financial with respect to a Master
Financial Mortgage Loan that materially and adversely affects the value of such
Mortgage Loan or the interest of the Trustee and the Certificateholders therein,
and, upon discovery or receipt of notice, Master Financial fails to cure,
substitute or repurchase such Mortgage Loan within the period specified in
either the
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ResMae Assignment Agreement or the ResMae Purchase Agreement, the Unaffiliated
Seller shall cure, substitute or repurchase such Mortgage Loan subject to the
conditions set forth in this Section 2.03. Notwithstanding the Unaffiliated
Seller's lack of knowledge, in the event it is discovered by the Unaffiliated
Seller, the Depositor or the Trust (including the Trustee and the Servicers
acting on the Trust's behalf), that the substance of a representation or
warranty was inaccurate as of the applicable date of such representation or
warranty and such inaccuracy materially and adversely affects the value of the
related Mortgage Loan, the Unaffiliated Seller shall use its best efforts to
cure such breach or substitute or repurchase such Mortgage Loan in accordance
with this Section 2.03(d).
With respect to any Substitute Mortgage Loan or Loans, the
Unaffiliated Seller shall deliver to the Custodian, on behalf of the Trustee,
for the benefit of the Certificateholders the Mortgage Note, the Mortgage, the
related Assignment of the Mortgage, and such other documents and agreements as
are required by Section 2.01, with the Mortgage Note endorsed and the Mortgage
assigned as required by Section 2.01. No substitution is permitted to be made in
any calendar month after the Determination Date for such month. Scheduled
Payments due with respect to Substitute Mortgage Loans in the Due Period of
substitution shall not be part of the Trust Fund and will be retained by the
related Originator on the next succeeding Distribution Date. For the Due Period
of substitution, distributions to Certificateholders will include the Scheduled
Payment due on any Deleted Mortgage Loan for such Due Period and thereafter the
related Originator shall be entitled to retain all amounts received in respect
of such Deleted Mortgage Loan.
For any month in which the Unaffiliated Seller substitutes one or more
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the applicable
Servicer will determine the amount (if any) by which the aggregate principal
balance of all such Substitute Mortgage Loans as of the date of substitution is
less than the aggregate unpaid principal balance of all such Deleted Mortgage
Loans. The Unaffiliated Seller shall deposit the amount of such shortage plus an
amount equal to the aggregate of any unreimbursed Advances and accrued and
unpaid Servicing Fees with respect to such Deleted Mortgage Loans (the
"Substitution Adjustment Amount") into the related Collection Account on or
before the Remittance Date for the Distribution Date in the month succeeding the
calendar month during which the related Mortgage Loan became required to be
purchased or replaced hereunder.
Upon receipt of written notice (x) from the Custodian that any
document does not comply with the requirements set forth in clauses (i) through
(iv) of the Custodian's review of the Custodial Files pursuant to Section 2.02
or (y) of a breach of a representation and warranty, the Securities
Administrator shall in turn promptly notify the applicable Originator (with a
copy to the applicable Servicer, the Custodian, the Class A-1 Certificate
Insurer and the Unaffiliated Seller) in writing of such non-compliance or breach
and request that the related Originator cure such non-compliance or breach
within the time period set forth in the applicable Mortgage Loan Purchase
Agreement (but in any event, within 60 days from the date the related Originator
is notified of such non-compliance or breach) and if the related Originator does
not cure such non-compliance or breach in all material respects during such
period, the Securities Administrator shall notify such Originator to repurchase
such Mortgage Loan from the Trust Fund at the Repurchase Price. In the event the
Securities Administrator receives written notice (x) of a breach by any
Originator of a representation and warranty that is subject to an automatic
sixty-
95
day repurchase obligation pursuant to Section 9.03 of the related Mortgage Loan
Purchase Agreement, which representations and warranties relate to Prepayment
Fees, Predatory Lending Regulations, Single Premium Credit Insurance, the
Georgia Fair Lending Act, the Fair Credit Reporting Act, New York State Banking
Law or (y) that a Mortgage Loan does not constitute a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code, the Securities
Administrator shall notify such Originator to repurchase the Mortgage Loan at
the Repurchase Price within sixty (60) days of such Originator's receipt of such
notice.
(e) Upon receipt of the Final Certification with respect to each
Mortgage Loan, the Securities Administrator will notify the related Originator
within 5 Business Days of such delivery of any missing documents from the
Custodial File and if the related Originator does not deliver such missing
documents within 60 days from the date the related Originator is notified of
such noncompliance or breach, the Securities Administrator shall notify such
Originator to repurchase such Mortgage Loan from the Trust Fund at the
Repurchase Price.
(f) Based solely on information received with respect to any
Substitute Mortgage Loan from the Unaffiliated Seller or the related Originator,
as applicable, the related Servicer shall amend the Mortgage Loan Schedule to
reflect the removal of such Deleted Mortgage Loan and the substitution of the
Substitute Mortgage Loan or Loans and the related Servicer shall deliver the
amended Mortgage Loan Schedule to the Securities Administrator. Upon such
substitution, the Substitute Mortgage Loan or Loans shall be subject to the
terms of this Agreement in all respects, and the Unaffiliated Seller shall be
deemed to have made with respect to such Substitute Mortgage Loan or Loans, as
of the date of substitution, the representations and warranties made pursuant to
Sections 3.01(f), 3.01(h), 3.01(n), 3.01(o), 3.01(p) and 3.03 of the
Unaffiliated Seller's Agreement with respect to such Mortgage Loan. Upon any
such substitution and the deposit to the related Collection Account of the
amount required to be deposited therein in connection with such substitution as
described in this Section 2.03, the Securities Administrator shall forward the
Request for Release from the related Servicer to the Custodian and the Custodian
shall release the Mortgage File relating to such Deleted Mortgage Loan to the
Unaffiliated Seller or the related Originator, as applicable, and shall execute
and deliver at the Unaffiliated Seller's or related Originator's direction, as
applicable, such instruments of transfer or assignment prepared by such party,
in each case without recourse, as shall be necessary to vest title in the
Unaffiliated Seller or the related Originator, or its designee, as applicable,
the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to
this Section 2.03.
(g) In the event that the Unaffiliated Seller or the related
Originator, as applicable, shall have repurchased a Mortgage Loan, the
Repurchase Price therefor shall be deposited in the related Collection Account
pursuant to Section 3.10 on or before the Remittance Date for the Distribution
Date in the month following the month during which the Unaffiliated Seller or
the related Originator, as applicable, became obligated hereunder to repurchase
or replace such Mortgage Loan and upon such deposit of the Repurchase Price, the
delivery of the Opinion of Counsel required by Section 2.05 and receipt of a
Request for Release in the form of Exhibit K hereto, the Securities
Administrator shall forward the Request for Release from the applicable Servicer
to the Custodian, and the Custodian shall release the related Custodial File to
such Person as directed by such Servicer, and the Trustee shall execute and
deliver at such Person's direction such instruments of transfer or assignment
prepared by such Person, in each
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case without recourse, as shall be necessary to transfer title from the Trustee.
It is understood and agreed that the obligation under this Agreement of any
Person to cure, repurchase or replace any Mortgage Loan as to which a breach has
occurred and is continuing shall constitute the sole remedy against such Persons
respecting such breach available to Certificateholders, the Depositor, the
Unaffiliated Seller, the Custodian, the Securities Administrator, the Class A-1
Certificate Insurer or the Trustee on their behalf. In the event such required
repurchase or replacement does not occur, the Securities Administrator shall
take such actions as directed upon written direction from the Depositor or the
Class A-1 Certificate Insurer and the provision of reasonable indemnity
satisfactory to the Securities Administrator in accordance with Sections 6.03
and 10.02.
(h) If the Unaffiliated Seller is required to repurchase or replace a
Mortgage Loan pursuant to the terms hereof, upon receipt by the Trustee of
written direction from the Unaffiliated Seller and either written certification
from the Unaffiliated Seller that it has deposited the related Repurchase Price
with the Securities Administrator or receipt by the Trustee of a Substitute
Mortgage Loan, as applicable, the Trustee shall assign to the Unaffiliated
Seller its rights under the related Mortgage Loan Purchase Agreement solely with
respect to such Mortgage Loan by an assignment in form and substance mutually
satisfactory to the Unaffiliated Seller, the Trustee and the Securities
Administrator.
(i) The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Custodial Files to the Custodian.
Section 2.04 The Depositor and the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee, the
Securities Administrator and the Class A-1 Certificate Insurer with respect to
each Mortgage Loan as of the date hereof or such other date set forth herein
that as of the related Delivery Date, and following the transfer of the Mortgage
Loans to it by the Unaffiliated Seller, the Depositor had good title to the
Mortgage Loans and the Mortgage Notes were subject to no offsets, defenses or
counterclaims.
The Depositor hereby assigns, transfers and conveys to the Trustee all
of its rights with respect to the Initial Mortgage Loans and shall, on each
subsequent Transfer Date, convey all of its right, title and interest with
respect to the related subsequent Mortgage Loans.
Section 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions and Non-Qualified Mortgages.
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.03 shall be made more than 30 days after the
related Delivery Date unless the Unaffiliated Seller delivers, or causes the
related Originator to deliver, as applicable, to the Securities Administrator an
Opinion of Counsel, at the expense of the Unaffiliated Seller or the related
Originator, as applicable, addressed to the Trustee and the Securities
Administrator, to the effect that such substitution will not (i) result in the
imposition of the tax on "prohibited transactions" on the Trust Fund or
contributions after the Startup Day, as defined in Sections
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860F(a)(2) and 860G(d) of the Code, respectively, or (ii) cause any REMIC
created hereunder to fail to qualify as one or more REMICs at any time that any
Certificates are outstanding.
Section 2.06 Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the
Trust Fund and, concurrently with such transfer and assignment, the Securities
Administrator has executed and delivered to or upon the order of the Depositor,
the Certificates in authorized denominations evidencing directly or indirectly
the entire ownership of the Trust Fund. The Trustee agrees to hold the Trust
Fund and exercise the rights referred to above for the benefit of all present
and future Holders of the Certificates and for the benefit of the Class A-1
Certificate Insurer.
Section 2.07 REMIC Matters.
The Preliminary Statement sets forth the designations for federal
income tax purposes of all interests created hereby. The "Startup Day" for
purposes of the REMIC Provisions shall be the Closing Date. Unless otherwise
stated, the "latest possible maturity date" is December 26, 2035, which is the
Distribution Date in the month following the month in which the latest maturity
date of any Mortgage Loan occurs.
Section 2.08 Representations and Warranties of the Depositor.
The Depositor hereby represents, warrants and covenants to the
Trustee, the Custodian, the Securities Administrator, the Class A-1 Certificate
Insurer and each Servicer that as of the date of this Agreement or as of such
date specifically provided herein:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to convey the
Mortgage Loans and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed and
delivered by the Depositor, all requisite corporate action having been taken,
and, assuming the due authorization, execution and delivery hereof by the other
parties hereto, constitutes or will constitute the legal, valid and binding
agreement of the Depositor, enforceable against the Depositor in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law);
(d) No consent, approval, authorization or order of or registration or
filing with, or notice to, any governmental authority or court is required for
the execution, delivery and performance of or compliance by the Depositor with
this Agreement or the consummation by the Depositor of any of the transactions
contemplated hereby, except as have been made on or prior to the Closing Date;
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(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or by-laws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of trust, contract
or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound; (ii)
results or will result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Depositor of any court or governmental
authority having jurisdiction over the Depositor or its subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or encumbrance which
would have a material adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the Depositor
to the Trustee, the Depositor had, or, with respect to the Subsequent Mortgage
Loans, will have, good title to, and was, or will be, the sole owner of each
Mortgage Loan, free of any interest of any other Person, and the Depositor has
transferred, or shall transfer, all right, title and interest in each Mortgage
Loan to the Trustee. The transfer of the Mortgage Note and the Mortgage to the
Custodian, on behalf of the Trustee, as and in the manner contemplated by this
Agreement is sufficient either (i) fully to transfer to the Trustee, for the
benefit of the Certificateholders and for the benefit of the Class A-1
Certificate Insurer, all right, title, and interest of the Depositor thereto as
note holder and mortgagee or (ii) to grant to the Trustee, for the benefit of
the Certificateholders and the Class A-1 Certificate Insurer, the security
interest referred to in Section 10.04.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.08 shall survive delivery of the
respective Custodial Files to the Custodian and shall inure to the benefit of
the Trustee.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicers to Service Mortgage Loans.
(a) For and on behalf of the Certificateholders, and for the benefit
of the Class A-1 Certificate Insurer, each Servicer shall service and administer
the Mortgage Loans for which it is acting as Servicer in accordance with the
terms of this Agreement and the respective Mortgage Loans and, to the extent
consistent with such terms, in the same manner in which it services and
administers similar mortgage loans for its own portfolio, giving due
consideration to customary and usual standards of practice of prudent mortgage
lenders and loan servicers administering similar mortgage loans but without
regard to:
(i) any relationship that such Servicer, any Subservicer or any
Affiliate of such Servicer or any Subservicer may have with the related
Mortgagor;
(ii) the ownership or non-ownership of any Certificate by such
Servicer or any Affiliate of such Servicer;
(iii) such Servicer's obligation to make P&I Advances or
Servicing Advances; or
(iv) such Servicer's or any Subservicer's right to receive
compensation for its services hereunder or with respect to any particular
transaction.
To the extent consistent with the foregoing, each Servicer shall seek
to maximize the timely and complete recovery of principal and interest on the
Mortgage Notes. Subject only to the above-described servicing standards and the
terms of this Agreement and of the respective Mortgage Loans, each Servicer
shall have full power and authority, acting alone or through Subservicers as
provided in Section 3.02, to do or cause to be done any and all things in
connection with such servicing and administration which it may deem necessary or
desirable. Without limiting the generality of the foregoing, each Servicer in
its own name or in the name of a Subservicer is hereby authorized and empowered
by the Trustee when such Servicer believes it appropriate in its best judgment
in accordance with the servicing standards set forth above, to execute and
deliver any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge, and all other comparable instruments, with respect
to the Mortgage Loans and the Mortgaged Properties and to institute foreclosure
proceedings or obtain a deed-in-lieu of foreclosure so as to convert the
ownership of such properties, and to hold or cause to be held title to such
properties, on behalf of the Trustee. Each Servicer shall service and administer
the Mortgage Loans in accordance with applicable state and federal law and shall
provide to the Mortgagors any reports required to be provided to them thereby.
Each Servicer covenants that its computer and other systems used in servicing
the Mortgage Loans operate in a manner such that such Servicer can service the
Mortgage Loans in accordance with the terms of this Agreement. Each Servicer
shall also comply in the performance of this Agreement with all reasonable rules
and requirements of each insurer under any standard hazard insurance policy.
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Subject to Section 3.15, the Trustee shall execute, at the written request of
the applicable Servicer, and furnish, or cause to be furnished, to such Servicer
and any Subservicer such documents as are necessary or appropriate to enable
such Servicer or any Subservicer to carry out their servicing and administrative
duties hereunder, and the Trustee hereby grants to each Servicer, and this
Agreement shall constitute, a power of attorney to carry out such duties
including a power of attorney to take title to Mortgaged Properties after
foreclosure on behalf of the Trustee. The Trustee shall execute a separate power
of attorney in favor of each Servicer for the purposes described herein to the
extent necessary or desirable to enable the Servicers to perform its duties
hereunder. The Trustee shall not be liable for the actions of the Servicers or
any Subservicers under such powers of attorney.
(b) Subject to Section 3.09(b), in accordance with the standards of
the preceding paragraph, each Servicer shall advance or cause to be advanced
funds as necessary for the purpose of effecting the timely payment of taxes and
assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09(b), and further as provided in Section 3.11.
Any cost incurred by the a Servicer or by Subservicers in effecting the timely
payment of taxes and assessments on a Mortgaged Property shall not be added to
the unpaid principal balance of the related Mortgage Loan, notwithstanding that
the terms of such Mortgage Loan so permit.
(c) Notwithstanding anything in this Agreement to the contrary, each
Servicer may not make any future advances with respect to a Mortgage Loan
(except as provided in Section 4.01) and no Servicer shall (i) permit any
modification with respect to any Mortgage Loan that would change the Mortgage
Rate, reduce or increase the principal balance (except for reductions resulting
from actual payments of principal) or change the final maturity date on such
Mortgage Loan (except for a reduction of interest payments resulting from the
application of the Servicemembers Civil Relief Act or any similar state
statutes) or (ii) permit any modification, waiver or amendment of any term of
any Mortgage Loan that would both (A) effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed
Department of the Treasury regulations promulgated thereunder) and (B) cause any
REMIC created hereunder to fail to qualify as a REMIC under the Code or the
imposition of any tax on "prohibited transactions" or "contributions after the
startup day" under the REMIC Provisions, or (iii) except as provided in Section
3.07(a), waive any Prepayment Charges.
(d) Each Servicer may delegate its responsibilities under this
Agreement; provided, however, that no such delegation shall release such
Servicer from the responsibilities or liabilities arising under this Agreement.
(e) In the event that the Mortgage Loan Documents relating to any
Mortgage Loan contain provisions requiring the related Mortgagor to submit to
binding arbitration of any disputes arising in connection with such Mortgage
Loan, the applicable Servicer shall be entitled to waive any such provisions on
behalf of the Trust and to send written notice of such waiver to the related
Mortgagor, although the Mortgagor may still require arbitration of such disputes
at its option.
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Section 3.02 Subservicing Agreements Between the Servicers and
Subservicers.
(a) Subject to the consent of the Class A-1 Certificate Insurer (so
long as no Certificate Insurer Default has occurred and is continuing and the
Class A-1 Certificates are still outstanding or any amounts are owed to the
Class A-1 Certificate Insurer), which consent shall not be unreasonably
withheld, each Servicer may enter into subservicing agreements with Subservicers
(each, a "Subservicer"), for the servicing and administration of the Mortgage
Loans.
Unless otherwise approved by the Class A-1 Certificate Insurer (so
long as no Certificate Insurer Default has occurred and is continuing), each
Subservicer shall be (i) authorized to transact business in the state or states
in which the related Mortgaged Properties it is to service are situated, if and
to the extent required by applicable law to enable the Subservicer to perform
its obligations hereunder and under the Subservicing Agreement, (ii) an
institution approved as a mortgage loan originator by the Federal Housing
Administration or an institution that has deposit accounts insured by the FDIC
and (iii) a Xxxxxxx Mac or Xxxxxx Mae approved mortgage servicer. Each
Subservicing Agreement must impose on the Subservicer requirements conforming to
the provisions set forth in Section 3.08 and provide for servicing of the
Mortgage Loans consistent with the terms of this Agreement. Each Servicer will
examine each Subservicing Agreement to which it is a party and will be familiar
with the terms thereof. The terms of any Subservicing Agreement will not be
inconsistent with any of the provisions of this Agreement. Each Servicer and the
Subservicers may enter into and make amendments to the Subservicing Agreements
or enter into different forms of Subservicing Agreements; provided, however,
that any such amendments or different forms shall be consistent with and not
violate the provisions of this Agreement, and that no such amendment or
different form shall be made or entered into which could be reasonably expected
to be materially adverse to the interests of the Trustee. Any variation from the
provisions set forth in Section 3.08 relating to insurance or priority
requirements of Subservicing Accounts, or credits and charges to the
Subservicing Accounts or the timing and amount of remittances by the
Subservicers to the applicable Servicer, are conclusively deemed to be
inconsistent with this Agreement and therefore prohibited. Each Servicer shall
deliver to the Securities Administrator, the Trustee, the Class A-1 Certificate
Insurer, the Master Servicer, the Unaffiliated Seller and the Depositor copies
of all Subservicing Agreements, and any amendments or modifications thereof,
promptly upon such Servicer's execution and delivery of such instruments.
(b) As part of its servicing activities hereunder, each Servicer
(except as otherwise provided in the last sentence of this paragraph), for the
benefit of the Trustee, shall enforce the obligations of each Subservicer under
the related Subservicing Agreement, including, without limitation, any
obligation to make advances in respect of delinquent payments as required by a
Subservicing Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Subservicing Agreements, and the
pursuit of other appropriate remedies, shall be in such form and carried out to
such an extent and at such time as the applicable Servicer, in its good faith
business judgment, would require were it the owner of the related Mortgage
Loans. Each Servicer shall pay the costs of such enforcement at its own expense,
and shall be reimbursed therefor only (i) from a general recovery resulting from
such enforcement, to the extent, if any, that such recovery exceeds all amounts
due in respect of the
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related Mortgage Loans or (ii) from a specific recovery of costs, expenses or
attorneys' fees against the party against whom such enforcement is directed.
Section 3.03 Successor Subservicers.
Each Servicer shall be entitled to terminate any Subservicing
Agreement to which it is a party and the rights and obligations of any
Subservicer pursuant to any Subservicing Agreement in accordance with the terms
and conditions of such Subservicing Agreement. In the event of termination of
any Subservicer, all servicing obligations of such Subservicer shall be assumed
simultaneously by the applicable Servicer without any act or deed on the part of
such Subservicer or such Servicer, and such Servicer either shall service
directly the related Mortgage Loans or shall enter into a Subservicing Agreement
with a successor Subservicer which qualifies under Section 3.02.
Any Subservicing Agreement shall include the provision that such
agreement may be immediately terminated by the Depositor, the Master Servicer or
the Securities Administrator without fee, in accordance with the terms of this
Agreement, in the event that the applicable Servicer shall, for any reason, no
longer be one of the Servicers (including termination due to an Event of
Default).
Section 3.04 Liability of the Servicers.
Notwithstanding any Subservicing Agreement, any of the provisions of
this Agreement relating to agreements or arrangements between a Servicer and a
Subservicer or reference to actions taken through a Subservicer or otherwise,
such Servicer shall remain obligated and primarily liable to the Trustee for the
servicing and administering of the Mortgage Loans in accordance with the
provisions of Section 3.01 without diminution of such obligation or liability by
virtue of such Subservicing Agreements or arrangements or by virtue of
indemnification from the Subservicer and to the same extent and under the same
terms and conditions as if such Servicer alone were servicing and administering
the Mortgage Loans. Each Servicer shall be entitled to enter into any agreement
with a Subservicer for indemnification of the applicable Servicer by such
Subservicer and nothing contained in this Agreement shall be deemed to limit or
modify such indemnification.
Section 3.05 No Contractual Relationship Between Subservicers and the
Trustee.
Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to be between the Subservicer and the
applicable Servicer alone, and neither the Trustee nor the Securities
Administrator (or any successor Servicer) shall not be deemed a party thereto
and shall have no claims, rights, obligations, duties or liabilities with
respect to the Subservicer except as set forth in Section 3.06. Each Servicer
shall be solely liable for all fees owed by it to any Subservicer, irrespective
of whether such Servicer's compensation pursuant to this Agreement is sufficient
to pay such fees.
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Section 3.06 Assumption or Termination of Subservicing Agreements by
Master Servicer.
In the event that a Servicer at any time shall for any reason no
longer be a Servicer (including by reason of the occurrence of an Event of
Default), the Master Servicer or its designee shall thereupon assume all of the
rights and obligations of the applicable Servicer under each Subservicing
Agreement that such Servicer may have entered into, with copies thereof provided
to the Master Servicer prior to the Master Servicer assuming such rights and
obligations, unless the Master Servicer elects to terminate any Subservicing
Agreement in accordance with its terms as provided in Section 3.03.
Upon such assumption, the Master Servicer, its designee or the
successor servicer shall be deemed, subject to Section 3.03, to have assumed all
of the applicable Servicer's interest therein and to have replaced such Servicer
as a party to each Subservicing Agreement to which the predecessor Servicer was
a party to the same extent as if each Subservicing Agreement had been assigned
to the assuming party, except that (i) the applicable Servicer shall not thereby
be relieved of any liability or obligations under any Subservicing Agreement
that arose before it ceased to be a Servicer and (ii) none of the Depositor, the
Trustee, their designees or any successor Servicer shall be deemed to have
assumed any liability or obligation of such Servicer that arose before it ceased
to be a Servicer.
The applicable Servicer at its expense shall, upon request of the
Master Servicer, deliver to the assuming party all documents and records
relating to each Subservicing Agreement to which it is a party and the Mortgage
Loans then being serviced by it and an accounting of amounts collected and held
by or on behalf of it, and otherwise use its best efforts to effect the orderly
and efficient transfer of the Subservicing Agreements to the assuming party.
Section 3.07 Collection of Certain Mortgage Loan Payments;
Establishment of Certain Accounts.
(a) Each Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Mortgage Loans, and
shall, to the extent such procedures shall be consistent with this Agreement and
the terms and provisions of any applicable Insurance Policies, follow such
collection procedures as it would follow with respect to mortgage loans
comparable to the Mortgage Loans and held for its own account. Consistent with
the foregoing and Accepted Servicing Practices, a Servicer may (i) waive any
late payment charge or, if applicable, any penalty interest, or (ii) extend the
due dates for the Scheduled Payments due on a Mortgage Note for a period of not
greater than 180 days; provided that any extension pursuant to clause (ii) above
shall not affect the amortization schedule of any Mortgage Loan for purposes of
any computation hereunder, except as provided below. In the event of any such
arrangement pursuant to clause (ii) above, such Servicer shall make timely
advances on such Mortgage Loan during such extension pursuant to Section 4.01
and in accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements, subject to Section 4.01(d)
pursuant to which such Servicer shall not be required to make any such advances
that are Nonrecoverable P&I Advances. Notwithstanding the foregoing, a Servicer
may not waive, in whole or in part, a Prepayment Charge, except under the
following circumstances: (i) such waiver relates to a default or a
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reasonably foreseeable default and would, in the reasonable judgment of such
Servicer, maximize recovery of total proceeds taking into account the value of
such Prepayment Charge and the related Mortgage Loan, and doing so is standard
and customary in servicing mortgage loans similar to the Mortgage Loans
(including any waiver of a Prepayment Charge in connection with a refinancing of
a Mortgage Loan that is related to a default or a reasonably foreseeable
default), and in no event will such Servicer waive a Prepayment Charge in
connection with a refinancing of a Mortgage Loan that is not related to a
default or a reasonably foreseeable default or (ii) such Prepayment Charge is
not permitted to be collected by applicable law. If a Prepayment Charge is
waived other than as permitted by the prior sentence, then such Servicer is
required to pay the amount of such waived Prepayment Charge, for the benefit of
the Holders of the Class P Certificates, by depositing such amount into the
related Collection Account together with and at the time that the amount prepaid
on the related Mortgage Loan is required to be deposited into the related
Collection Account. Notwithstanding any provision in this Agreement to the
contrary, in the event the Prepayment Charge payable under the terms of the
Mortgage Note is less than the amount of the Prepayment Charge set forth in the
Mortgage Loan Schedule or other information provided to the applicable Servicer,
such Servicer shall not have any liability or obligation with respect to such
difference, and in addition shall not have any liability or obligation to pay
the amount of any uncollected Prepayment Charge if the failure to collect such
amount is the direct result of inaccurate or incomplete information on the
Mortgage Loan Schedule.
(b) (i) The Securities Administrator shall establish and maintain the
Excess Reserve Fund Account, on behalf of the Class X Certificateholders to
receive any Basis Risk Payment and to secure their limited recourse obligation
to pay to the LIBOR Certificateholders Basis Risk Carry Forward Amounts.
(ii) On each Distribution Date, the Securities Administrator
shall deposit the amount of any Basis Risk Payment made for the benefit of the
Certificateholders made for the benefit of the LIBOR Certificates for such date
into the Excess Reserve Fund Account.
(c) (i) On each Distribution Date on which there exists a Basis Risk
Carry Forward Amount on any Class of Certificates, the Securities Administrator
shall (1) withdraw from the Distribution Account and deposit in the Excess
Reserve Fund Account, as set forth in Section 4.02(a)(iii)(U), the lesser of (a)
the Class X Distributable Amount (without regard to the reduction in the
definition thereof with respect to the Basis Risk Payment) (to the extent
remaining after the distributions specified in Sections 4.02(a)(iii)(A)-(T), and
(b) the Basis Risk Payment and (2) withdraw from the Excess Reserve Fund Account
amounts necessary to pay to such Class or Classes of Certificates the Basis Risk
Carry Forward Amount. Such payments shall be allocated to those Classes on a pro
rata basis based upon the amount of Basis Risk Carry Forward Amount owed to each
such Class and shall be paid in the priority set forth in Section
4.02(a)(iii)(V).
(ii) The Securities Administrator shall account for each of the
Supplemental Interest Trust, the Excess Reserve Fund Account and the Swap
Account as an outside reserve fund within the meaning of Treasury regulations
section 1.860G-2(h) and not as an asset of any REMIC created pursuant to this
Agreement. The beneficial owners of the
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Supplemental Interest Trust, the Excess Reserve Fund Account and the Swap
Account are the Class X Certificateholders. For all federal tax purposes,
amounts transferred by REMIC V to the Excess Reserve Fund Account shall be
treated as distributions by the Securities Administrator to the Class X
Certificateholders. For all federal tax purposes, amounts transferred by REMIC V
to the Swap Account shall be treated as distributions by the Securities
Administrator on the Class I Interests.
(iii) Any Basis Risk Carry Forward Amounts paid by the Securities
Administrator to the LIBOR Certificateholders shall be accounted for by the
Securities Administrator as amounts paid first to the Holders of the Class X
Certificates and then to the respective Class or Classes of LIBOR Certificates.
(iv) Notwithstanding any provision contained in this Agreement,
the Securities Administrator shall not be required to make any payments from the
Excess Reserve Fund Account except as expressly set forth in this Section
3.07(c) and Sections 4.02(a)(iii)(V)-(W).
(d) The Securities Administrator, on behalf of the Trustee, shall
establish and maintain the Distribution Account on behalf of the
Certificateholders. The Securities Administrator shall, promptly upon receipt,
deposit in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by each Servicer to the Master
Servicer pursuant to Section 3.11(a)(i) which amounts the Master Servicer
will then remit to the Securities Administrator prior to the related
distribution date;
(ii) any amount deposited by each Servicer pursuant to Section
3.10 in connection with any losses on Permitted Investments; and
(iii) any other amounts deposited hereunder which are required to
be deposited in the Distribution Account.
In the event that any Servicer remit any amount not required to be
remitted, it may at any time direct the Securities Administrator in writing to
withdraw such amount from the Distribution Account, any provision herein to the
contrary notwithstanding. Such direction may be accomplished by delivering
notice to the Securities Administrator which describes the amounts deposited in
error in the Distribution Account. All funds deposited in the Distribution
Account shall be held by the Securities Administrator in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 4.02. In no event shall the Securities
Administrator incur liability for withdrawals from the Distribution Account at
the direction of the Servicers.
(e) The Securities Administrator, on behalf of the Trustee, shall
establish and maintain the Capitalized Interest Account, on behalf of the
Certificateholders. On the Closing Date, the Securities Administrator shall
deposit $100.00 into the Capitalized Interest Account from the proceeds of the
sale of the LIBOR Certificates. Withdrawals from the Capitalized Interest
Account shall be made in accordance with Sections 4.02(c) and (d). The
Securities Administrator shall account for the Capitalized Interest Account as
an outside reserve fund
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within the meaning of Treasury regulations section 1.860G-2(h) and not as an
asset of any REMIC created pursuant to this Agreement. The beneficial owner of
the Capitalized Interest Account shall be the Unaffiliated Seller.
(f) The Securities Administrator, on behalf of the Trustee, shall
establish and maintain the Pre-Funding Accounts on behalf of the
Certificateholders. On the Closing Date, the Securities Administrator shall
deposit the Group I Initial Pre-Funded Amount into the Group I Pre-Funding
Account and the Group II Initial Pre-Funded Amount into the Group II Pre-Funding
Account, in each case from the proceeds of the sale of the LIBOR Certificates.
Withdrawals from the Pre-Funding Accounts shall be made in accordance with
Sections 4.02(e) and (f).
(g) The Securities Administrator may invest the funds in the Accounts,
other than the Collection Account or the Distribution Account, with prior
written investment direction. With respect to the Distribution Account such
funds shall be held uninvested. With respect to the Pre-Funding Accounts and the
Capitalized Interest Account such direction shall be provided by the
Unaffiliated Seller, and shall be in Permitted Investments and such directions
shall be in accordance with Section 3.12. Amounts on deposit in the Excess
Reserve Fund Account shall not be invested.
(h) Each Servicer shall give prior written notice to the Trustee, the
Securities Administrator, the Master Servicer, each Rating Agency and the
Depositor of any proposed change of the location of the related Collection
Account.
(i) In order to comply with its duties under the U.S.A. Patriot Act,
the Trustee shall obtain and verify certain information and documentation from
the parties hereto, including but not limited to, each party's name, address and
other identifying information.
(j) The Securities Administrator shall establish and maintain the
Pre-Funding Reserve Account, on behalf of the Class X Certificateholders. On the
Closing Date, the Unaffiliated Seller shall remit to the Securities
Administrator and the Securities Administrator shall deposit $4,769,346 into the
Pre-Funding Reserve Account. The Securities Administrator shall account for the
Pre-Funding Reserve Account as an outside reserve fund within the meaning of
Treasury regulations section 1.860G-2(h) and not as an asset of any REMIC
created pursuant to this Agreement. The beneficial owner of the Pre-Funding
Reserve Account shall be the Unaffiliated Seller. On the Closing Date, the Class
X Certificateholders' rights in the Pre-Funding Reserve Account will be conveyed
to JPMorgan Chase Bank, N.A., as indenture trustee on behalf of the Noteholders
of the IXIS Real Estate Capital Inc. NIM 2005-HE3N Notes and shall be subject to
the terms of the NIM Indenture.
(k) On each Subsequent Transfer Date, the amount required to remain on
deposit in the Pre-Funding Reserve Account will be permitted to step down to an
amount equal to the product of (a) $4,769,346 multiplied by (b) a fraction, the
numerator of which is the amount remaining in the Pre-Funding Accounts (after
giving effect to any withdrawals on such Subsequent Transfer Date) and the
denominator of which is the Initial Pre-Funded Amount. Any excess amount that is
not required to remain in the Pre-Funding Reserve Account will be withdrawn by
the Securities Administrator from the Pre-Funding Reserve Account and released
to the Unaffiliated Seller.
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(l) On any Subsequent Transfer Date on which at least 99% of the
Initial Pre-Funded Amount has been used to purchase Subsequent Mortgage Loans,
the Securities Administrator shall withdraw and release to the Unaffiliated
Seller any remaining amounts in the Pre-Funding Reserve Account. If less than
99% of the Initial Pre-Funded Amount has been used to purchase Subsequent
Mortgage Loans, then on the Distribution Date following the end of the
Pre-Funding Period, the Securities Administrator shall (a) withdraw an amount
equal to (i) the percentage of the Initial Pre-Funded Amount not used to
purchase Subsequent Mortgage Loans multiplied by (ii) $4,769,346 and remit such
amount to the Class X Certificateholders and (b) withdraw any remaining amounts
in the Pre-Funding Reserve Account and release such amounts to the Unaffiliated
Seller, and thereafter the Pre-Funding Reserve Account shall be terminated.
(m) The Securities Administrator, on behalf of the Trustee, shall
establish and maintain the Swap Account, on behalf of the Certificateholders,
the Swap Provider and the Class A-1 Certificate Insurer. Withdrawals from the
Swap Account shall be made in accordance with Section 4.02(h).
(n) The Securities Administrator shall pay the Custodian and the
Trustee their fees and expenses, if any, based upon a separate fee schedule. The
fees of the Custodian and the Trustee shall be payable solely by the Securities
Administrator from its own funds. The expenses of the Custodian and the Trustee,
if any, shall be paid from the Trust Fund.
Section 3.08 Subservicing Accounts.
In those cases where a Subservicer is servicing a Mortgage Loan
pursuant to a Subservicing Agreement, the Subservicer will be required to
establish and maintain one or more accounts (collectively, the "Subservicing
Account"). The Subservicing Account shall be an Eligible Account and shall
otherwise be acceptable to the related Servicer. The Subservicer shall deposit
in the clearing account (which account must be an Eligible Account) in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after the Subservicer's receipt thereof, all proceeds
of Mortgage Loans received by the Subservicer less its servicing compensation to
the extent permitted by the Subservicing Agreement, and shall thereafter deposit
such amounts in the Subservicing Account, in no event more than two Business
Days after the deposit of such funds into the clearing account. The Subservicer
shall thereafter deposit such proceeds in the Collection Account of the related
Servicer or remit such proceeds to the related Servicer for deposit in the
related Collection Account not later than two Business Days after the deposit of
such amounts in the Subservicing Account. For purposes of this Agreement, such
Servicer shall be deemed to have received payments on the Mortgage Loans when
the Subservicer receives such payments.
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
(a) Each Servicer shall ensure that each of the first lien Mortgage
Loans serviced by such Servicer shall be covered by a paid-in-full,
life-of-the-loan tax service contract with a nationally recognized provider
acceptable to the applicable Servicer (each, a "Tax Service
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Contract"). Each Tax Service Contract shall be assigned to the Trustee, or its
designee, at the applicable Servicer's expense in the event that a Servicer is
terminated as servicer of the related Mortgage Loan.
(b) To the extent that the services described in this paragraph (b)
are not otherwise provided pursuant to the Tax Service Contracts described in
paragraph (a) hereof, each Servicer undertakes to perform such functions. Each
Servicer shall establish and maintain, or cause to be established and
maintained, one or more accounts (the "Escrow Accounts"), which shall be
Eligible Accounts. Each Servicer shall deposit in the clearing account (which
account must be an Eligible Account) in which it customarily deposits payments
and collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after a
Servicer's receipt thereof, all collections from the Mortgagors (or related
advances from Subservicers) for the payment of taxes, assessments, hazard
insurance premiums and comparable items for the account of the Mortgagors
("Escrow Payments") collected on account of the Mortgage Loans and shall
thereafter deposit such Escrow Payments in the Escrow Accounts, in no event more
than two Business Days after the deposit of such funds in the clearing account,
for the purpose of effecting the payment of any such items as required under the
terms of this Agreement. Withdrawals of amounts from an Escrow Account may be
made only to (i) effect payment of taxes, assessments, hazard insurance
premiums, and comparable items; (ii) reimburse the applicable Servicer (or a
Subservicer to the extent provided in the related Subservicing Agreement) out of
related collections for any advances made pursuant to Section 3.01 (with respect
to taxes and assessments) and Section 3.13 (with respect to hazard insurance);
(iii) refund to Mortgagors any sums as may be determined to be overages; (iv)
pay interest, if required and as described below, to Mortgagors on balances in
the Escrow Account, and the applicable Servicer shall be entitled to withdraw
from the Escrow Account any interest earned and not required to be paid to
Mortgagors; (v) clear and terminate the Escrow Account at the termination of the
applicable Servicer's obligations and responsibilities in respect of the
Mortgage Loans under this Agreement, and the applicable Servicer shall be
entitled to withdraw from the Escrow Account any interest earned and not
required to be paid to the Mortgagors; (vi) to transfer such funds to a
replacement Escrow Account that meets the requirements hereof; or (vii) recover
amounts deposited in error. As part of its servicing duties, each Servicer or
Subservicer shall pay to the Mortgagors interest on funds in Escrow Accounts, to
the extent required by law and, to the extent that interest earned on funds in
the Escrow Accounts is insufficient, to pay such interest from its or their own
funds, without any reimbursement therefor. To the extent that a Mortgage does
not provide for Escrow Payments, the applicable Servicer shall determine whether
any such payments are made by the Mortgagor in a manner and at a time that
avoids the loss of the Mortgaged Property due to a tax sale or the foreclosure
of a tax lien. The applicable Servicer assumes full responsibility for the
payment of all such bills within such time and shall effect payments of all such
bills irrespective of the Mortgagor's faithful performance in the payment of
same or the making of the Escrow Payments and shall make advances from its own
funds to effect such payments; provided, however, that such advances are deemed
to be Servicing Advances.
Section 3.10 Collection Accounts.
(a) On behalf of the Trustee, each Servicer shall establish and
maintain, or cause to be established and maintained, one or more separate
Eligible Accounts (each such
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account or accounts, a "Collection Account"), held in trust for the benefit of
the Trustee entitled "Deutsche Bank National Trust Company on behalf of IXIS
Real Estate Capital Trust 2005-HE3". On behalf of the Trustee, each Servicer
shall deposit or cause to be deposited in the clearing account (which account
must be an Eligible Account) in which it customarily deposits payments and
collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after
the applicable Servicer's receipt thereof, and shall thereafter deposit in the
related Collection Account, in no event more than two Business Days after the
deposit of such funds into the clearing account, as and when received or as
otherwise required hereunder, the following payments and collections received or
made by it subsequent to the related Cut-off Date (other than in respect of
principal or interest on the related Mortgage Loans due on or before the related
Cut-off Date, and except for $279,596.46 in interest, which is being retained by
the Unaffiliated Seller), or payments (other than Principal Prepayments)
received by it on or prior to the related Cut-off Date but allocable to a Due
Period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of the related
Servicing Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds and Condemnation Proceeds to the
extent such Insurance Proceeds and Condemnation Proceeds are not to be
applied to the restoration of the related Mortgaged Property or released to
the related Mortgagor in accordance with the express requirements of law or
in accordance with Accepted Servicing Practices, and Liquidation Proceeds;
(iv) any amounts required to be deposited pursuant to Section
3.12 in connection with any losses realized on Permitted Investments with
respect to funds held in the related Collection Account;
(v) any amounts required to be deposited by such Servicer
pursuant to the second paragraph of Section 3.13(a) in respect of any
blanket policy deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or purchased
in accordance with this Agreement; and
(vii) all Prepayment Charges collected by such Servicer.
The foregoing requirements for deposit in the related Collection
Accounts shall be exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, payments in the nature of late payment
charges, NSF fees, reconveyance fees, assumption fees and other similar fees and
charges need not be deposited by the Servicers in the Collection Account and
shall, upon collection, belong to the applicable Servicer as additional
compensation for its servicing activities. In the event that a Servicer shall
deposit in the related Collection Account any amount not required to be
deposited therein, such Servicer may at any time withdraw such amount from its
Collection Account, any provision herein to the contrary notwithstanding.
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(b) Funds in the Collection Accounts may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12. Each
Servicer shall give notice to the Trustee, the Securities Administrator, the
Master Servicer and the Depositor of the location of its Collection Account
maintained by it when established and prior to any change thereof.
Section 3.11 Withdrawals from the Collection Accounts.
(a) Each Servicer shall, from time to time, make withdrawals from the
Collection Accounts for any of the following purposes or as described in Section
4.01:
(i) On or prior to each Remittance Date, to remit to the Master
Servicer the Interest Remittance Amount and the Principal Remittance Amount
in respect of the related Distribution Date together with all amounts
representing Prepayment Charges from the Mortgage Loans received during the
related Prepayment Period;
(ii) to reimburse such Servicer for xxxxxxxxxxxx X&X Advances, but
only to the extent of amounts received which represent Late Collections
(net of the related Servicing Fees) of Scheduled Payments on Mortgage Loans
that it Services with respect to which such P&I Advances were made in
accordance with the provisions of Section 4.01;
(iii) to pay such Servicer or any Subservicer (a) any unpaid Servicing
Fees or (b) any unreimbursed Servicing Advances with respect to each
Mortgage Loan that it services, but only to the extent of any Late
Collections, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, or other amounts as may be collected by such Servicer from the
related Mortgagor, or otherwise received with respect to such Mortgage Loan
(or the related REO Property);
(iv) to pay to such Servicer as servicing compensation (in addition to
the Servicing Fee) on the Remittance Date any interest or investment income
earned on funds deposited in the related Collection Account and any
Prepayment Interest Excesses;
(v) to pay to the Unaffiliated Seller or the related Originator, as
applicable, with respect to each Mortgage Loan that it services that has
previously been purchased or replaced by the Unaffiliated Seller or such
Originator, as applicable, pursuant to this Agreement, all amounts received
thereon subsequent to the date of purchase or substitution, as the case may
be;
(vi) to reimburse such Servicer for (a) any P&I Advance or Servicing
Advance previously made which such Servicer has determined to be a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance in
accordance with the provisions of Section 4.01 and (b) any unpaid Servicing
Fees to the extent not recoverable from Late Collections, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, or other amounts
received with respect to the related Mortgage Loan under Section
3.11(a)(iii); provided, that this clause (b) shall only apply with respect
to Servicing Fees to second lien Mortgage Loans;
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(vii) to pay, or to reimburse such Servicer for advances in respect
of, expenses incurred in connection with any Mortgage Loan pursuant to
Section 3.15;
(viii) to reimburse such Servicer, the Depositor, the Custodian, the
Securities Administrator or the Trustee for expenses and/or indemnities
incurred by or reimbursable to such Servicer, the Depositor, the Custodian,
the Securities Administrator or the Trustee, as the case may be, pursuant
to Section 6.03;
(ix) to reimburse such Servicer, the Unaffiliated Seller, the
Depositor, the Custodian, the Securities Administrator, the Class A-1
Certificate Insurer or the Trustee, as the case may be, for expenses
reasonably incurred in respect of the breach or defect giving rise to the
repurchase obligation under Section 2.03 of this Agreement that were
included in the Repurchase Price of the Mortgage Loan, including any
expenses arising out of the enforcement of the repurchase obligation to the
extent not otherwise paid pursuant to the terms hereof;
(x) to withdraw any amounts deposited in the Collection Accounts in
error; and
(xi) to clear and terminate the Collection Accounts upon termination
of this Agreement.
(b) Each Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from its Collection Account, to the extent held by or on behalf of
it, pursuant to subclauses (a)(ii), (iii), (v), (vi), (vii), (viii) and (ix)
above. Each Servicer shall provide written notification to the Master Servicer,
on or prior to the next succeeding Remittance Date, upon making any withdrawals
from the related Collection Account pursuant to subclause (a)(vi) above.
(c) Each Servicer shall be responsible for reviewing and reconciling
the applicable Collection Account in accordance with Accepted Servicing
Practices. Each Servicer shall act promptly to resolve any discrepancies.
Section 3.12 Investment of Funds in the Accounts.
(a) Each Servicer may invest funds in its Collection Account and the
Master Servicer may direct the Securities Administrator to invest funds in the
Distribution Account, and the Unaffiliated Seller may direct the Securities
Administrator to invest the funds in the Pre-Funding Accounts, the Pre-Funding
Reserve Account and the Capitalized Interest Account (each of such Accounts, for
purposes of this Section 3.12, an "Investment Account"), in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand no later than the Business Day immediately preceding
the date on which such funds are required to be withdrawn from such account
pursuant to this Agreement. All such investment directions shall be in writing
and if the Securities Administrator does not receive such written instructions
no investment shall be made. All such Permitted Investments shall be held to
maturity, unless payable on demand. Any investment of funds in an Investment
Account (other than a Collection Account) shall be made in the name of the
Securities Administrator. The Securities Administrator shall be entitled to sole
possession (except with respect to investment
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direction of funds held in the related Account and any income and gain realized
thereon) over each such investment, and any certificate or other instrument
evidencing any such investment shall be delivered directly to the Securities
Administrator or its agent, together with any document of transfer necessary to
transfer title to such investment to the Securities Administrator. Any
investment of funds in a Collection Account shall be made in the name of the
related Servicer. Each Servicer shall be entitled to sole possession (except
with respect to investment direction of funds held in the related Account and
any income and gain realized thereon) over each such investment, and any
certificate or other instrument evidencing any such investment shall be
delivered directly to the related Servicer or its agent, together with any
document of transfer necessary to transfer title to such investment to the such
Servicer. In the event amounts on deposit in an Investment Account are at any
time invested in a Permitted Investment payable on demand, the Securities
Administrator may:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount
equal to the lesser of (1) all amounts then payable thereunder
and (2) the amount required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder that such Permitted
Investment would not constitute a Permitted Investment in respect
of funds thereafter on deposit in the Investment Account.
(b) (i) All income and gain realized from the investment of funds
deposited in the related Collection Account with respect to the Servicers, and
the Distribution Account, with respect to the Master Servicer, held by or on
behalf of the applicable Servicer, shall be for the benefit of the applicable
Servicer or the Master Servicer, as applicable, and shall be subject to its
withdrawal in the manner set forth in Section 3.11 in the case of income in the
applicable Collection Account. Whether in regard to the Collection Accounts or
the Distribution Account, each Servicer and the Master Servicer shall deposit in
the Collection Accounts or the Distribution Account, as applicable, the amount
of any loss of principal incurred in respect of any such Permitted Investment
directed by the applicable Servicer or Master Servicer, as applicable, made with
funds in such accounts immediately upon realization of such loss. (ii) All
income and gain realized from the investment of funds deposited in the
Pre-Funding Accounts, the Pre-Funding Reserve Account and the Capitalized
Interest Account held by or on behalf of the Unaffiliated Seller shall be
retained in such Investment Account, subject to withdrawal as provided in
Section 4.02. Whether in regard to the Pre-Funding Accounts or the Capitalized
Interest Account, the Unaffiliated Seller shall deposit in the Pre-Funding
Accounts or the Capitalized Interest Account, as applicable, the amount of any
loss of principal incurred in respect of any such Permitted Investment made with
funds in such accounts immediately upon realization of such loss.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Securities Administrator shall take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings. The Securities Administrator shall
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not be liable for the amount of any loss incurred in respect of any investment
or lack of investment of funds held in any Investment Account or the
Distribution Account if made in accordance with this Section 3.12.
(d) The Securities Administrator and Master Servicer or any of their
Affiliates shall be permitted to receive additional compensation that could be
deemed to be in the Securities Administrator's or Master Servicer's economic
self-interest for (i) serving as investment adviser, administrator, shareholder,
servicing agent, custodian or sub-custodian with respect to certain of the
Permitted Investments, (ii) using Affiliates to effect transactions in certain
Permitted Investments and (iii) effecting transactions in certain Permitted
Investments. Such compensation shall not be considered an amount that is
reimbursable or payable pursuant to this Agreement.
(e) The Securities Administrator or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the Securities
Administrator's economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to effect
transactions in certain Permitted Investments and (iii) effecting transactions
in certain Permitted Investments. Such compensation shall not be considered an
amount that is reimbursable or payable pursuant to this Agreement.
Section 3.13 Maintenance of Hazard Insurance and Errors and Omissions
and Fidelity Coverage.
(a) Each Servicer shall cause to be maintained for each Mortgage Loan
serviced by such Servicer fire insurance with extended coverage on the related
Mortgaged Property in an amount which is at least equal to the least of (i) the
outstanding principal balance of such Mortgage Loan, (ii) the amount necessary
to fully compensate for any damage or loss to the improvements that are a part
of such property on a replacement cost basis and (iii) the maximum insurable
value of the improvements which are a part of such Mortgaged Property, in each
case in an amount not less than such amount as is necessary to avoid the
application of any coinsurance clause contained in the related hazard insurance
policy. Each Servicer shall also cause to be maintained fire insurance with
extended coverage on each REO Property serviced by such Servicer in an amount
which is at least equal to the lesser of (i) the maximum insurable value of the
improvements which are a part of such property and (ii) the outstanding
principal balance of the related Mortgage Loan at the time it became an REO
Property, plus accrued interest at the Mortgage Rate and related Servicing
Advances. Each Servicer will comply in the performance of this Agreement with
all reasonable rules and requirements of each insurer under any such hazard
policies. Any amounts to be collected by such Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the property
subject to the related Mortgage or amounts to be released to the Mortgagor in
accordance with the procedures that such Servicer would follow in servicing
loans held for its own account, subject to the terms and conditions of the
related Mortgage and Mortgage Note) shall be deposited in the related Collection
Account, subject to withdrawal pursuant to Section 3.11. Any cost incurred by a
Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to the Securities Administrator, be added to the
unpaid principal balance of the related Mortgage Loan, notwithstanding that the
terms of such Mortgage Loan so permit. It is understood and
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agreed that no earthquake or other additional insurance is to be required of any
Mortgagor other than pursuant to such applicable laws and regulations as shall
at any time be in force and as shall require such additional insurance. If the
Mortgaged Property or REO Property is at any time in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards and flood insurance has been made available, the applicable
Servicer will cause to be maintained a flood insurance policy in respect
thereof. Such flood insurance shall be in an amount equal to the lesser of (i)
the unpaid principal balance of the related Mortgage Loan and (ii) the maximum
amount of such insurance available for the related Mortgaged Property under the
national flood insurance program (assuming that the area in which such Mortgaged
Property is located is participating in such program).
In the event that a Servicer shall obtain and maintain a blanket
policy with an insurer having a General Policy Rating of A:X or better from
Best's (or such other rating that is comparable to such rating) insuring against
hazard losses on all of the Mortgage Loans, it shall conclusively be deemed to
have satisfied its obligations as set forth in the first two sentences of this
Section 3.13, it being understood and agreed that such policy may contain a
deductible clause, in which case the applicable Servicer shall, in the event
that there shall not have been maintained on the related Mortgaged Property or
REO Property a policy complying with the first two sentences of this Section
3.13, and there shall have been one or more losses which would have been covered
by such policy, deposit to the related Collection Account from its own funds the
amount not otherwise payable under the blanket policy because of such deductible
clause. In connection with its activities as administrator and servicer of the
Mortgage Loans, each Servicer agrees to prepare and present, on behalf of
itself, the Trustee claims under any such blanket policy in a timely fashion in
accordance with the terms of such policy.
(b) Each Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of such Servicer's obligations under this Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of the
Mortgage Loans, unless such Servicer has obtained a waiver of such requirements
from Xxxxxx Mae or Xxxxxxx Mac. Each Servicer shall also maintain a fidelity
bond in the form and amount that would meet the requirements of Xxxxxx Mae or
Xxxxxxx Mac, unless such Servicer has obtained a waiver of such requirements
from Xxxxxx Mae or Xxxxxxx Mac. Each Servicer shall provide the Master Servicer
with copies of any such insurance policies and fidelity bond upon the Master
Servicer's request. Each Servicer shall be deemed to have complied with this
provision if an Affiliate of such Servicer has such errors and omissions and
fidelity bond coverage and, by the terms of such insurance policy or fidelity
bond, the coverage afforded thereunder extends to such Servicer. Any such errors
and omissions policy and fidelity bond shall by its terms not be canceled by
such Servicer without thirty days' prior written notice to the Master Servicer.
Each Servicer shall also cause each Subservicer to maintain a policy of
insurance covering errors and omissions and a fidelity bond which would meet
such requirements.
Section 3.14 Enforcement of Due-On-Sale Clauses Assumption Agreements.
Each Servicer will, to the extent it has knowledge of any conveyance
or prospective conveyance of any Mortgaged Property by any Mortgagor (whether by
absolute
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conveyance or by contract of sale, and whether or not the Mortgagor remains or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise its
rights to accelerate the maturity of such Mortgage Loan under the "due-on-sale"
clause, if any, applicable thereto; provided, however, that the applicable
Servicer shall not be required to take such action if, in its sole business
judgment, such Servicer believes it is not in the best interests of the Trust
Fund and shall not exercise any such rights if prohibited by law from doing so.
If such Servicer reasonably believes it is unable under applicable law to
enforce such "due-on-sale" clause or if any of the other conditions set forth in
the proviso to the preceding sentence apply, such Servicer will enter into an
assumption and modification agreement from or with the person to whom such
property has been conveyed or is proposed to be conveyed, pursuant to which such
person becomes liable under the Mortgage Note and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. Each Servicer is
also authorized to enter into a substitution of liability agreement with such
person, pursuant to which the original Mortgagor is released from liability and
such person is substituted as the Mortgagor and becomes liable under the
Mortgage Note; provided that no such substitution shall be effective unless such
person satisfies the underwriting criteria of such Servicer, and such
substitution is in the best interest of the Certificateholders as determined by
such Servicer. In connection with any assumption, modification or substitution,
the applicable Servicer shall apply such underwriting standards and follow such
practices and procedures as shall be normal and usual in its general mortgage
servicing activities and as it applies to other mortgage loans owned solely by
it. Neither Servicer shall take or enter into any assumption and modification
agreement, however, unless (to the extent practicable in the circumstances) it
shall have received confirmation, in writing, of the continued effectiveness of
any applicable hazard insurance policy, or a new policy meeting the requirements
of this Section is obtained. Any fee collected by a Servicer in respect of an
assumption or substitution of liability agreement will be retained by such
Servicer as additional servicing compensation. In connection with any such
assumption, no material term of the Mortgage Note (including, but not limited
to, the related Mortgage Rate and the amount of the Scheduled Payment) may be
amended or modified, except as otherwise required pursuant to the terms thereof.
Each Servicer shall notify the Trustee, the Securities Administrator, the Master
Servicer and the Custodian that any such substitution, modification or
assumption agreement has been completed and forward to the Custodian the
executed original of such substitution or assumption agreement, which document
shall be added to the related Mortgage File and shall, for all purposes, be
considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, a Servicer shall not be deemed to be in default, breach or any other
violation of its obligations hereunder by reason of any assumption of a Mortgage
Loan by operation of law or by the terms of the Mortgage Note or any assumption
which such Servicer may be restricted by law from preventing, for any reason
whatsoever. For purposes of this Section 3.14, the term "assumption" is deemed
to also include a sale (of the Mortgaged Property) subject to the Mortgage that
is not accompanied by an assumption or substitution of liability agreement.
Section 3.15 Realization Upon Defaulted Mortgage Loans.
Each Servicer shall use its best efforts, consistent with Accepted
Servicing Practices, to foreclose upon or otherwise comparably convert (which
may include an acquisition
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of REO Property) the ownership of properties securing such of the Mortgage Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.07, and which are not released from this Agreement pursuant to any
other provision hereof. Each Servicer shall use reasonable efforts to realize
upon such defaulted Mortgage Loans in such manner as will maximize the receipt
of principal and interest, taking into account, among other things, the timing
of foreclosure proceedings. The foregoing is subject to the provisions that, in
any case in which Mortgaged Property shall have suffered damage from an
uninsured cause, the applicable Servicer shall not be required to expend its own
funds toward the restoration of such property unless it shall determine in its
sole discretion (i) that such restoration will increase the net proceeds of
liquidation of the related Mortgage Loan, after reimbursement to itself for such
expenses, and (ii) that such expenses will be recoverable by such Servicer
through Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds from
the related Mortgaged Property, as contemplated in Section 3.11. Each Servicer
shall be responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the related property, as contemplated in Section 3.11.
The proceeds of any liquidation or REO Disposition, as well as any
recovery resulting from a partial collection of Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds or any income from an REO Property, will be
applied in the following order of priority: first, to reimburse the applicable
Servicer or any Subservicer for any related unreimbursed Servicing Advances,
pursuant to Section 3.11 or 3.17; second, to reimburse the applicable Servicer
for any related xxxxxxxxxxxx X&X Advances, pursuant to Section 3.11; third, to
accrued and unpaid interest on the Mortgage Loan or REO Imputed Interest, at the
Mortgage Rate, to the date of the liquidation or REO Disposition, or to the Due
Date prior to the Remittance Date on which such amounts are to be distributed if
not in connection with a liquidation or REO Disposition and fourth, as a
recovery of principal of the Mortgage Loan. If the amount of the recovery so
allocated to interest is less than a full recovery thereof, that amount will be
allocated as follows: first, to unpaid Servicing Fees; and second, as interest
at the Mortgage Rate (net of the Servicing Fee Rate). The portion of the
recovery so allocated to unpaid Servicing Fees shall be reimbursed to the
applicable Servicer or any Subservicer pursuant to Section 3.11 or 3.17. The
portions of the recovery so allocated to interest at the Mortgage Rate (net of
the Servicing Fee Rate) and to principal of the Mortgage Loan shall be applied
as follows: first, to reimburse the applicable Servicer or any Subservicer for
any related unreimbursed Servicing Advances in accordance with Section 3.11 or
3.17, and second, to the Securities Administrator in accordance with the
provisions of Section 4.02, subject to the last paragraph of Section 3.17 with
respect to certain excess recoveries from an REO Disposition.
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure, in
the event a Servicer has received actual notice of, or has actual knowledge of
the presence of, hazardous or toxic substances or wastes on the related
Mortgaged Property, or if the Master Servicer otherwise requests, such Servicer
shall cause an environmental inspection or review of such Mortgaged Property to
be conducted by a qualified inspector. Upon completion of the inspection, such
Servicer shall promptly provide the Master Servicer with a written report of the
environmental inspection.
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After reviewing the environmental inspection report, the applicable
Servicer shall determine consistent with Accepted Servicing Practices, how to
proceed with respect to the Mortgaged Property. In the event (a) the
environmental inspection report indicates that the Mortgaged Property is
contaminated by hazardous or toxic substances or wastes and (b) the applicable
Servicer determines, consistent with Accepted Servicing Practices, to proceed
with foreclosure or acceptance of a deed in lieu of foreclosure, such Servicer
shall be reimbursed for all reasonable costs associated with such foreclosure or
acceptance of a deed in lieu of foreclosure and any related environmental
clean-up costs, as applicable, from the related Liquidation Proceeds, or if the
Liquidation Proceeds are insufficient to fully reimburse such Servicer, such
Servicer shall be entitled to be reimbursed from amounts in the Collection
Accounts pursuant to Section 3.11. In the event the applicable Servicer
determines not to proceed with foreclosure or acceptance of a deed in lieu of
foreclosure, such Servicer shall be reimbursed from general collections for all
Servicing Advances made with respect to the related Mortgaged Property from the
related Collection Account pursuant to Section 3.11.
Section 3.16 Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
any Servicer of a notification that payment in full shall be escrowed in a
manner customary for such purposes, the applicable Servicer will, within five
(5) Business Days of the payment in full, notify the Trustee, the Securities
Administrator and the Custodian by a certification (which certification shall
include a statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the related
Collection Account pursuant to Section 3.10 have been or will be so deposited)
of a Servicing Officer and shall request delivery to it of the Custodial File.
Upon receipt of such certification and Request for Release, the Custodian shall
promptly release the related Custodial File to the applicable Servicer within
five (5) Business Days. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the related
Collection Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any Insurance Policy relating to the Mortgage Loans, the Custodian shall, upon
request of any Servicer and delivery to the Custodian, of a Request for Release,
release the related Custodial File to such Servicer, and the Trustee shall, at
the direction of such Servicer, execute such documents as shall be necessary to
the prosecution of any such proceedings and such Servicer shall retain the
Mortgage File in trust for the benefit of the Trustee. Such Request for Release
shall obligate the applicable Servicer to return each and every document
previously requested from the Custodial File to the Custodian when the need
therefor by such Servicer no longer exists, unless the Mortgage Loan has been
charged-off or liquidated and the Liquidation Proceeds relating to the Mortgage
Loan have been deposited in a Collection Account or the Mortgage File or such
document has been delivered to an attorney, or to a public trustee or other
public official as required by law, for purposes of initiating or pursuing legal
action or other proceedings for the foreclosure of the Mortgaged Property either
judicially or non-judicially, and such 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. Upon receipt of a certificate of a
Servicing Officer stating that such Mortgage Loan was charged-off or liquidated
and that all amounts received or to be received in connection with
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such liquidation that are required to be deposited into the related Collection
Account have been so deposited, or that such Mortgage Loan has become an REO
Property, a copy of the Request for Release of documents shall be released by
the Custodian to the applicable Servicer or its designee.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the applicable Servicer any court pleadings, requests for
trustee's sale or other documents reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Mortgagor on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity, or shall exercise and deliver to the applicable Servicer a power of
attorney sufficient to authorize such Servicer to execute such documents on its
behalf. Each such certification shall include a request that such pleadings or
documents be executed by the Trustee and a statement as to the reason such
documents or pleadings are required and that the execution and delivery thereof
by the Trustee will not invalidate or otherwise affect the lien of the Mortgage,
except for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
Upon receipt of a Request for Release under this Section 3.16, the
Custodian shall deliver the related Custodial File to the applicable Servicer by
regular mail, unless such Servicer requests that the Custodian deliver such
Custodial File to such Servicer by overnight courier (in which case such
delivery shall be at such Servicer's expense). To the extent that the applicable
Servicer requires an overnight courier for such delivery and incurs the related
expense due to such Servicer not having previously received copies of the
documents required to be delivered to such Servicer hereunder, the Unaffiliated
Seller shall use commercially reasonable efforts to assist such Servicer in
causing the related Originator pursuant to the related Mortgage Loan Purchase
Agreement to reimburse such Servicer for such expense.
Section 3.17 Title, Conservation and Disposition of REO Property.
(a) This Section shall apply only to REO Properties acquired for the
account of the Trustee and shall not apply to any REO Property relating to a
Mortgage Loan which was purchased or repurchased from the Trustee pursuant to
any provision hereof. In the event that title to any such REO Property is
acquired, the applicable Servicer shall cause the deed or certificate of sale to
be issued in the name of the Trustee, on behalf of the Certificateholders. Upon
written request by the applicable Servicer, the Trustee shall provide such
Servicer with a power of attorney prepared by such Servicer with respect to such
REO Property.
(b) Each Servicer shall manage, conserve, protect and operate each REO
Property for the Trustee solely for the purpose of its prompt disposition and
sale. Each Servicer, either itself or through an agent selected by such
Servicer, shall manage, conserve, protect and operate the REO Property in the
same manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property in
the same locality as the REO Property is managed. Each Servicer shall attempt to
sell the same (and may temporarily rent the same for a period not greater than
one year, except as otherwise provided below) on such terms and conditions as
such Servicer deems to be in the best interest of
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the Trustee. The applicable Servicer shall notify the Trustee and the Securities
Administrator from time to time as to the status of each REO Property.
(c) [Reserved].
(d) [Reserved].
(e) Each Servicer shall segregate and hold all funds collected and
received in connection with the operation of any REO Property separate and apart
from its own funds and general assets and shall deposit such funds in the
related Collection Account.
(f) Each Servicer shall deposit net of reimbursement to such Servicer
for any related outstanding P&I Advances, Servicing Advances and unpaid
Servicing Fees provided in Section 3.11, or cause to be deposited, on a daily
basis in the related Collection Account all revenues received with respect to
the related REO Property and shall withdraw therefrom funds necessary for the
proper operation, management and maintenance of the REO Property.
(g) Each Servicer, upon an REO Disposition, shall be entitled to
reimbursement for any related xxxxxxxxxxxx X&X Advances and Servicing Advances
as well as any unpaid Servicing Fees from proceeds received in connection with
the REO Disposition, as further provided in Section 3.11.
(h) Any net proceeds from a REO Disposition which are in excess of the
applicable Stated Principal Balance plus all unpaid REO Imputed Interest thereon
through the date of the REO Disposition shall be retained by the applicable
Servicer as additional servicing compensation.
(i) Each Servicer shall use its reasonable best efforts to sell, or
cause the Subservicer to sell, any REO Property as soon as possible, but in no
event later than the conclusion of the third calendar year beginning after the
year of its acquisition by REMIC I unless (i) the applicable Servicer applies
for an extension of such period from the Internal Revenue Service pursuant to
the REMIC Provisions and Code Section 856(e)(3), in which event such REO
Property shall be sold within the applicable extension period, or (ii) the
applicable Servicer obtains for the Trustee and the Securities Administrator an
Opinion of Counsel, addressed to the Depositor, the Trustee, the Securities
Administrator and such Servicer, to the effect that the holding by REMIC I of
such REO Property subsequent to such period will not result in the imposition of
taxes on "prohibited transactions" as defined in Section 860F of the Code or
cause any REMIC created hereunder to fail to qualify as a REMIC under the REMIC
Provisions or comparable provisions of relevant state laws at any time. Each
Servicer shall manage, conserve, protect and operate each REO Property that it
services for the Trustee solely for the purpose of its prompt disposition and
sale in a manner which does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) or result in the
receipt by any REMIC created hereunder of any "income from non-permitted assets"
within the meaning of Section 860F(a)(2)(B) of the Code or any "net income from
foreclosure property" which is subject to taxation under Section 860G(a)(1) of
the Code. Pursuant to its efforts to sell such REO Property, the applicable
Servicer shall either itself or through an agent selected by such Servicer
protect and conserve such REO Property in the same manner and to
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such extent as is customary in the locality where such REO Property is located
and may, incident to its conservation and protection of the interests of the
Trustee on behalf of the Certificateholders, rent the same, or any part thereof,
as such Servicer deems to be in the best interest of the Trustee on behalf of
the Certificateholders for the period prior to the sale of such REO Property;
provided, however, that any rent received or accrued with respect to such REO
Property qualifies as "rents from real property" as defined in Section 856(d) of
the Code.
Section 3.18 Notification of Adjustments.
With respect to each Adjustable Rate Mortgage Loan that it services,
each Servicer shall adjust the Mortgage Rate on the related Adjustment Date and
shall adjust the Scheduled Payment on the related mortgage payment adjustment
date, if applicable, in compliance with the requirements of applicable law and
the related Mortgage and Mortgage Note. Each Servicer shall execute and deliver
any and all necessary notices required under applicable law and the terms of the
related Mortgage Note and Mortgage regarding the Mortgage Rate and Scheduled
Payment adjustments. Each Servicer shall promptly, upon written request
therefor, deliver to the Master Servicer such notifications and any additional
applicable data regarding such adjustments and the methods used to calculate and
implement such adjustments. Upon the discovery by a Servicer or the receipt of
notice from the Master Servicer that such Servicer has failed to adjust a
Mortgage Rate or Scheduled Payment in accordance with the terms of the related
Mortgage Note, such Servicer shall deposit in its Collection Account from its
own funds the amount of any interest loss caused as such interest loss occurs.
Section 3.19 Access to Certain Documentation and Information Regarding
the Mortgage Loans.
Each Servicer shall provide, or cause the applicable Subservicer to
provide, to the Depositor, the Custodian, the Unaffiliated Seller, the
Securities Administrator, the Class A-1 Certificate Insurer, the Master
Servicer, the Trustee, the OTS or the FDIC and the examiners and supervisory
agents thereof access to the documentation regarding the Mortgage Loans in its
possession. Such access shall be afforded without charge, but only upon
reasonable and prior written request and during normal business hours at the
offices of the applicable Servicer or any Subservicer. Nothing in this Section
shall derogate from the obligation of any such party to observe any applicable
law prohibiting disclosure of information regarding the Mortgagors and the
failure of any such party to provide access as provided in this Section as a
result of such obligation shall not constitute a breach of this Section.
Section 3.20 Documents, Records and Funds in Possession of each
Servicer to be Held for the Securities Administrator.
Each Servicer shall account fully to the Trustee, the Master Servicer,
the Securities Administrator for any funds received by such Servicer or which
otherwise are collected by such Servicer as Liquidation Proceeds, Condemnation
Proceeds or Insurance Proceeds in respect of any Mortgage Loan. All Mortgage
Files and funds collected or held by, or under the control of, a Servicer in
respect of any Mortgage Loans, whether from the collection of principal and
interest payments or from Liquidation Proceeds, including, but not limited to,
any funds on deposit in its Collection Account, shall be held by such Servicer
for and on behalf of
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the Trustee and shall be and remain the sole and exclusive property of the
Trustee, subject to the applicable provisions of this Agreement. Each Servicer
also agrees that it shall not create, incur or subject any Mortgage File or any
funds that are deposited in any Account, or any funds that otherwise are or may
become due or payable to the Securities Administrator for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy, writ
of attachment or other encumbrance, or assert by legal action or otherwise any
claim or right of setoff against any Mortgage File or any funds collected on, or
in connection with, a Mortgage Loan, except, however, that the applicable
Servicer shall be entitled to set off against and deduct from any such funds any
amounts that are properly due and payable to such Servicer under this Agreement.
Section 3.21 Servicing Compensation.
(a) As compensation for its activities hereunder, each Servicer shall,
with respect to each Mortgage Loan, be entitled to retain from deposits to its
Collection Account and from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and REO Proceeds related to such Mortgage Loan, the Servicing
Fee with respect to each Mortgage Loan that it services (less any portion of
such amounts retained by any Subservicer). In addition, each Servicer shall be
entitled to recover unpaid Servicing Fees out of related late collections and as
otherwise permitted under Section 3.11. The right to receive the Servicing Fee
may not be transferred in whole or in part except in connection with the
transfer of all of the applicable Servicer's responsibilities and obligations
under this Agreement; provided, however, that a Servicer may pay from the
Servicing Fee any amounts due to a Subservicer pursuant to a Subservicing
Agreement entered into under Section 3.02.
(b) Additional servicing compensation in the form of assumption or
modification fees, late payment charges, NSF fees, reconveyance fees and other
similar fees and charges (other than Prepayment Charges) shall be retained by a
Servicer only to the extent such fees or charges are received by such Servicer.
Each Servicer shall also be entitled pursuant to Section 3.11(a)(iv) to withdraw
from the related Collection Account, as additional servicing compensation,
interest or other income earned on deposits therein. In addition, each Servicer
shall be entitled to retain Prepayment Interest Excesses (to the extent not
required to offset Prepayment Interest Shortfalls), but only to the extent such
amounts are received by such Servicer.
(c) Each Servicer shall be required to pay all expenses incurred by it
in connection with its servicing activities hereunder (including payment of
premiums for any blanket policy insuring against hazard losses pursuant to
Section 3.13, servicing compensation of the Subservicer to the extent not
retained by it and the fees and expenses of independent accountants and any
agents appointed by such Servicer), and shall not be entitled to reimbursement
therefor from the Trust Fund except as specifically provided in Section 3.11.
Section 3.22 Annual Statement as to Compliance.
Each Servicer will deliver or cause to be delivered to the Depositor,
the Rating Agencies, the Unaffiliated Seller, the Class A-1 Certificate Insurer,
the Master Servicer, the Securities Administrator and the Trustee on or before
March 15th of each year in which a 10-K is required to be filed, or on or before
March 24th of each year in which no 10-K is required to
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be filed, of each calendar year, commencing in 2006, an Officer's Certificate
stating, as to each signatory thereof, that (i) a review of the activities of
the applicable Servicer during the preceding calendar year and of performance
under this Agreement has been made, and (ii) based on such review, the
applicable Servicer has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such Servicer and the
nature and status thereof. The obligations of a Servicer under this Section
apply to each Servicer that serviced a Mortgage Loan during the applicable
period, whether or not such Servicer is acting as a Servicer at the time such
Officer's Certificate is required to be delivered.
Section 3.23 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
(a) Not later than March 15th of each year in which a 10-K is required
to be filed, or not later than March 24th of each year in which no 10-K is
required to be filed, of each calendar year commencing in 2006, each Servicer,
at its expense, shall cause a nationally recognized firm of independent
certified public accountants to furnish to the Depositor, the Unaffiliated
Seller, the Rating Agencies, the Class A-1 Certificate Insurer, the Master
Servicer, the Securities Administrator and the Trustee a report stating that (i)
it has obtained a letter of representation regarding certain matters from the
management of the applicable Servicer which includes an assertion that such
Servicer has complied with certain minimum residential mortgage loan servicing
standards, identified in the Uniform Single Attestation Program for Mortgage
Bankers established by the Mortgage Bankers Association of America, with respect
to the servicing of residential mortgage loans during the most recently
completed calendar year and (ii) on the basis of an examination conducted by
such firm in accordance with standards established by the American Institute of
Certified Public Accountants, such representation is fairly stated in all
material respects, subject to such exceptions and other qualifications that may
be appropriate. In rendering its report such firm may rely, as to matters
relating to the direct servicing of residential mortgage loans by Subservicers,
upon comparable reports of firms of independent certified public accountants
rendered on the basis of examinations conducted in accordance with the same
standards (rendered within one year of such report) with respect to those
Subservicers.
(b) As soon as available, and in any event within 90 days after the
close of each fiscal year of each Servicer, such Servicer, at its expense, shall
cause the audited balance sheets of such Servicer, as of the end of such fiscal
year and the audited statements of income, changes in equity and cash flows of
such Servicer, for such fiscal year, all in reasonable detail and stating in
comparative form the respective figures for the corresponding date and period in
the preceding fiscal year, prepared in accordance with generally accepted
accounting principles, consistently applied, and accompanied by the certificate
of the nationally recognized firm of independent certified public accountants to
be delivered to the Class A-1 Certificate Insurer.
Section 3.24 Master Servicer to Act as Servicer.
In the event that a Servicer shall for any reason no longer be a
Servicer hereunder (including by reason of an Event of Default), except as
provided under Section 7.02, the Master Servicer or its successor shall
thereupon assume all of the rights and obligations of such Servicer hereunder
arising thereafter (except that the Master Servicer shall not be (i) liable for
losses of
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such Servicer pursuant to Section 3.10 or any acts or omissions of the
predecessor Servicer hereunder, (ii) obligated to make Advances if it is
prohibited from doing so by applicable law, (iii) obligated to effectuate
repurchases or substitutions of Mortgage Loans hereunder, including, but not
limited to, repurchases or substitutions pursuant to Section 2.03, (iv)
responsible for expenses of the predecessor Servicer pursuant to Section 2.03 or
(v) deemed to have made any representations and warranties of such Servicer
hereunder). Any such assumption shall be subject to Section 7.02.
Every subservicing agreement entered into by a Servicer shall contain
a provision giving the successor Servicer the option to terminate such agreement
in the event a successor Servicer is appointed.
If a Servicer shall for any reason no longer be a Servicer (including
by reason of any Event of Default), the Master Servicer (or any other successor
Servicer) may, at its option, succeed to any rights and obligations of such
Servicer under any subservicing agreement in accordance with the terms thereof;
provided that the Master Servicer (or any other successor Servicer) shall not
incur any liability or have any obligations in its capacity as successor
Servicer under a subservicing agreement arising prior to the date of such
succession unless it expressly elects to succeed to the rights and obligations
of such Servicer thereunder; and such Servicer shall not thereby be relieved of
any liability or obligations under the subservicing agreement arising prior to
the date of such succession.
The applicable Servicer shall, upon request of the Master Servicer,
but at the expense of such Servicer, deliver to the assuming party all documents
and records relating to each subservicing agreement (if any) and the Mortgage
Loans then being serviced thereunder and an accounting of amounts collected and
held by it and otherwise use its best efforts to effect the orderly and
efficient transfer of the subservicing agreement to the assuming party.
Section 3.25 Compensating Interest.
Each Servicer shall remit to the Master Servicer on each Remittance
Date an amount from its own funds equal to the Compensating Interest payable by
applicable the Servicer for the related Distribution Date.
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act.
(a) With respect to each Mortgage Loan that it services, each Servicer
agrees to fully furnish, in accordance with the Fair Credit Reporting Act and
its implementing regulations, accurate and complete information (i.e., favorable
and unfavorable) on its borrower credit files to Equifax, Experian, and Trans
Union Credit Information Company (three of the national credit repositories), on
a monthly basis.
(b) Each Servicer shall comply with Title V of the Xxxxx-Xxxxx-Xxxxxx
Act of 1999 and all applicable regulations promulgated thereunder, relating to
the Mortgage Loans that it services and the related borrowers and shall provide
all required notices thereunder.
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Section 3.27 Advance Facilities.
With the prior written consent of the Class A-1 Certificate Insurer,
each Servicer is hereby authorized to enter into a financing or other facility
(an "Advance Facility") under which (l) such Servicer sells, assigns or pledges
to another Person (an "Advancing Person") such Servicer's rights under this
Agreement to be reimbursed for any Advances and/or (2) an Advancing Person
agrees to fund some or all P&I Advances or Servicing Advances required to be
made by such Servicer pursuant to this Agreement. Except as provided in the
preceding sentence, no consent of any party is required before such Servicer may
enter into an Advance Facility. Notwithstanding the existence of any Advance
Facility under which an Advancing Person agrees to fund P&I Advances and/or
Servicing Advances on such Servicer's behalf, such Servicer shall remain
obligated pursuant to this Agreement to make P&I Advances and Servicing Advances
pursuant to and as required by this Agreement, and shall not be relieved of such
obligations by virtue of such Advance Facility.
Reimbursement amounts ("Advance Reimbursement Amounts") shall consist
solely of amounts in respect of P&I Advances and/or Servicing Advances made with
respect to the Mortgage Loans for which the applicable Servicer would be
permitted to reimburse itself in accordance with this Agreement, assuming such
Servicer had made the related P&I Advance(s) and/or Servicing Advance(s).
Each Servicer shall maintain and provide to any successor Servicer a
detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged
or assigned to, and reimbursed to any Advancing Person. The successor Servicer
shall be entitled to rely on any such information provided by the predecessor
Servicer, and the successor Servicer shall not be liable for any errors in such
information.
An Advancing Person who purchases or receives an assignment or pledge
of the rights to be reimbursed for P&I Advances and/or Servicing Advances,
and/or whose obligations hereunder are limited to the funding of P&I Advances
and/or Servicing Advances shall not be required to meet the criteria for
qualification of a subservicer set forth in this Agreement.
The documentation establishing any Advance Facility shall require that
Advance Reimbursement Amounts distributed with respect to each Mortgage Loan be
allocated to outstanding xxxxxxxxxxxx X&X Advances or Servicing Advances (as the
case may be) made with respect to that Mortgage Loan on a "first-in, first out"
(FIFO) basis. Such documentation shall also require the applicable Servicer to
provide to the related Advancing Person or its designee loan-by-loan information
with respect to each Advance Reimbursement Amount distributed to such Advancing
Person or to a trustee or custodian (an "Advance Facility Trustee") on each
Distribution Date, to enable the Advancing Person or Advance Facility Trustee to
make the FIFO allocation of each Advance Reimbursement Amount with respect to
each Mortgage Loan. The applicable Servicer shall remain entitled to be
reimbursed pursuant to the Advance Facility by the Advancing Person or Advance
Facility Trustee for all P&I Advances and Servicing Advances funded by such
Servicer to the extent the related rights to be reimbursed therefor have not
been sold, assigned or pledged to an Advancing Person.
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Any amendment to this Section 3.27 or to any other provision of this
Agreement that may be necessary or appropriate to effect the terms of an Advance
Facility as described generally in this Section 3.27, including amendments to
add provisions relating to successor Servicers, may be entered into by the
Trustee, the Securities Administrator, the Depositor, the Unaffiliated Seller
and the Servicer without the consent of any Certificateholder, but with the
consent of the Class A-1 Certificate Insurer, notwithstanding anything to the
contrary in this Agreement. Prior to entering into an Advance Facility, each
Servicer shall notify the lender under such facility in writing that: (a) the
Advances financed by and/or pledged to the lender are obligations owed to such
Servicer on a non-recourse basis payable only from the cash flows and proceeds
received under this Agreement for reimbursement of such Advances only to the
extent provided herein, and the Securities Administrator is not otherwise
obligated or liable to repay any Advances financed by the lender; (b) such
Servicer will be responsible for remitting to the lender the applicable amounts
collected by it as reimbursement for Advances funded by the lender, subject to
the restrictions and priorities created in this Agreement; (c) none of the
Master Servicer, the Trustee or the Securities Administrator shall have any
responsibility to track or monitor the administration of the financing
arrangement between the applicable Servicer and the lender; (d) if the
applicable Servicer is replaced by a successor servicer, the lender shall
continue to be entitled to receive reimbursements as provided in clause (a)
above but shall have no further right to make advances with respect to the
transaction subject to this Agreement; and (e) (i) the pledge, if any, of
applicable Servicer's rights to the lender under the facility conveys no rights
(such as a right to fees after the removal of such Servicer or the right to
become a substitute servicer) under this Agreement, or against the Trust Fund,
any investor in or guarantor of securities issued hereunder, or any person other
than such Servicer, (ii) the applicable Servicer is only pledging assets and
rights that it owns and any purported pledge of any assets or rights that are
not property of such Servicer shall be of force and effect and will not be
deemed to create any additional rights or assets of either the lender or such
Servicer and (iii) the lender shall take such steps as are reasonably necessary
to confirm to a successor servicer that it has no rights in any collateral due
or payable on or after the date of servicing transfer other than such Servicer's
rights to reimbursement of Advances (to be repaid pursuant to the terms of this
Agreement) for Advances made prior to such servicing transfer.
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICERS
Section 4.01 Advances.
(a) The amount of P&I Advances to be made by each Servicer for any
Remittance Date shall equal, subject to Section 4.01(c), the sum of (i) with
respect to the Mortgage Loans, the aggregate amount of Scheduled Payments (with
each interest portion thereof net of the related Servicing Fee), due on the Due
Date immediately preceding such Remittance Date in respect of such Mortgage
Loans, which Scheduled Payments were not received as of the related
Determination Date, plus (ii) with respect to each REO Property, which REO
Property was acquired during or prior to the related Prepayment Period and as to
which such REO Property an REO Disposition did not occur during the related
Prepayment Period, an amount equal to the excess, if any, of the Scheduled
Payments (with each interest portion thereof
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net of the related Servicing Fee) that would have been due on the related Due
Date in respect of the related Mortgage Loans, over the net income from such REO
Property transferred to the Collection Accounts for distribution on such
Remittance Date.
(b) On the Remittance Date, each Servicer shall remit in immediately
available funds to the Master Servicer an amount equal to the aggregate amount
of P&I Advances, if any, to be made in respect of the Mortgage Loans and REO
Properties serviced by such Servicer for the related Remittance Date either (i)
from its own funds, (ii) from the related Collection Account, to the extent of
funds held therein for future distribution (in which case, it will cause to be
made an appropriate entry in the records of the related Collection Account that
Amounts Held for Future Distribution have been, as permitted by this Section
4.01, used by such Servicer in discharge of any such P&I Advance) or (iii) in
the form of any combination of (i) and (ii) aggregating the total amount of P&I
Advances to be made by such Servicer with respect to the Mortgage Loans and REO
Properties. Any Amounts Held For Future Distribution and so used shall be
appropriately reflected in such Servicer's records and replaced by such Servicer
by deposit in the related Collection Account on or before any future Remittance
Date to the extent required.
(c) The obligation of each Servicer to make such P&I Advances is
mandatory, notwithstanding any other provision of this Agreement but subject to
paragraph (d) below, and, with respect to any Mortgage Loan or REO Property,
shall continue until a Final Recovery Determination in connection therewith or
the removal thereof from coverage under this Agreement, except as otherwise
provided in this Section.
(d) Notwithstanding anything herein to the contrary, no P&I Advance or
Servicing Advance shall be required to be made hereunder by any Servicer if such
P&I Advance or Servicing Advance would, if made, constitute a Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance. The determination by the applicable
Servicer that it has made a Nonrecoverable P&I Advance or a Nonrecoverable
Servicing Advance or that any proposed P&I Advance or Servicing Advance, if
made, would constitute a Nonrecoverable P&I Advance or a Nonrecoverable
Servicing Advance, respectively, shall be evidenced by an Officers' Certificate
of such Servicer delivered to the Securities Administrator and Master Servicer.
(e) Except as otherwise provided herein, each Servicer shall be
entitled to reimbursement pursuant to Section 3.11 hereof for P&I Advances and
Servicing Advances from recoveries from the related Mortgagor or from all
Liquidation Proceeds and other payments or recoveries (including Insurance
Proceeds and Condemnation Proceeds) with respect to the related Mortgage Loan.
(f) On each Remittance Date, the Master Servicer shall deposit all
funds remitted to it by the Servicers pursuant to Sections 3.11(a)(i) and 3.25
and this Section 4.01 in a segregated Eligible Account for the benefit of the
Certificateholders and, prior to each Distribution Date, will withdraw all
amounts from such account and remit such amounts to the Securities Administrator
for deposit in the Distribution Account. The Master Servicer may retain or
withdraw from the Distribution Account, (i) the Securities Administrator and
Master Servicer Fee, (ii) amounts necessary to reimburse it for any previously
unreimbursed Advances and any
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Advances the Master Servicer deems to be nonrecoverable from the related
Mortgage Loan proceeds, (iii) an amount to indemnify itself for amounts due in
accordance with this Agreement, and (iv) any other amounts that it is entitled
to receive hereunder for reimbursement, indemnification or otherwise.
Section 4.02 Priorities of Distribution.
(a) On each Distribution Date, the Securities Administrator shall,
solely in accordance with the information provided by the Master Servicer,
allocate from amounts then on deposit in the Distribution Account in the
following order of priority and to the extent of the Available Funds remaining:
(i) to the holders of each class of LIBOR Certificates, the Class A-1
Certificate Insurer and the Swap Account in the following order of
priority:
(A) to the Swap Account, the sum of (x) all Net Swap Payments and (y)
any Swap Termination Payment owed to the Swap Provider other than
a Defaulted Swap Termination Payment owed to the Swap Provider,
if any;
(B) from the Interest Remittance Amount, in the following order of
priority:
(1) to the Class A-1 Certificate Insurer, the Premium Amount for
that Distribution Date;
(2) concurrently, with equal priority of payment:
(a) payable solely from the Group I Interest Remittance
Amount for that Distribution Date, to the holders of the
Class A-1 Certificates, the Accrued Certificate Interest and
any Unpaid Interest Amount for the Class A-1 Certificates,
and to the extent that the Group I Interest Remittance
Amount is less than the Accrued Certificate Interest and any
Unpaid Interest Amount for the Class A-1 Certificates,
payable from any Group II Interest Remittance Amount for
that Distribution Date remaining after payment of the
Accrued Certificate Interest and any Unpaid Interest Amount
with respect to the Class A Sequential Certificates, to the
Class A-1 Certificates, the unpaid portion of the Accrued
Certificate Interest and any Unpaid Interest Amount for the
Class A-1 Certificates; and
(b) payable solely from the Group II Interest Remittance
Amount for that Distribution Date, to the holders of the
Class A Sequential Certificates pro rata, based upon their
respective Class Certificate Balances, the Accrued
Certificate Interest and any Unpaid Interest Amount for each
class of the Class A Sequential Certificates, and to the
extent that the Group II Interest Remittance Amount is less
than the Accrued Certificate Interest and any Unpaid
Interest Amount for the
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Class A Sequential Certificates, payable from any Group I
Interest Remittance Amount for that Distribution Date
remaining after payment of the Accrued Certificate Interest
and any Unpaid Interest Amount with respect to the Class A-1
Certificates, to the holders of the Class A Sequential
Certificates, the unpaid portion of the Accrued Certificate
Interest and any Unpaid Interest Amount for the Class A
Sequential Certificates;
(3) payable from any remaining Interest Remittance Amounts, to
the Class A-1 Certificate Insurer, any Reimbursement Amount
then owing to it on account of a prior draw relating to
interest on the Class A-1 Certificates;
(4) payable from any remaining Interest Remittance Amounts, to
the Class M-1 Certificates, the Accrued Certificate Interest
for such Class on such Distribution Date;
(5) payable from any remaining Interest Remittance Amounts, to
the Class M-2 Certificates, the Accrued Certificate Interest
for such Class on such Distribution Date;
(6) payable from any remaining Interest Remittance Amounts, to
the Class M-3 Certificates, the Accrued Certificate Interest
for such Class on such Distribution Date;
(7) payable from any remaining Interest Remittance Amounts, to
the Class M-4 Certificates, the Accrued Certificate Interest
for such Class on such Distribution Date;
(8) payable from any remaining Interest Remittance Amounts, to
the Class M-5 Certificates, the Accrued Certificate Interest
for such Class on such Distribution Date; and (9) payable
from any remaining Interest Remittance Amounts, to the Class
M-6 Certificates, the Accrued Certificate Interest for such
Class on such Distribution Date;
(10) payable from any remaining Interest Remittance Amounts, to
the Class B-1 Certificates, the Accrued Certificate Interest
for such Class on such Distribution Date;
(11) payable from any remaining Interest Remittance Amounts, to
the Class B-2 Certificates, the Accrued Certificate Interest
for such Class on such Distribution Date;
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(12) payable from any remaining Interest Remittance Amounts, to
the Class B-3 Certificates, the Accrued Certificate Interest
for such Class on such Distribution Date; and
(13) payable from any remaining Interest Remittance Amounts, to
the Class B-4 Certificates, the Accrued Certificate Interest
for such Class on such Distribution Date.
(ii) (x) on each Distribution Date (A) before the Stepdown Date or (B)
with respect to which a Trigger Event is in effect, to the Holders of the
Class or Classes of LIBOR Certificates then entitled to distributions of
principal as set forth below, and to the Class A-1 Certificate Insurer,
from the amounts remaining on deposit in the Distribution Account after
making distributions pursuant to clause (i) above, in an amount equal to
the Principal Distribution Amount in the following order of priority:
(A) concurrently, with equal priority of payment:
(1) to the Holders of the Class A-1 Certificates, the Group I
Allocation Percentage of the Principal Distribution Amount,
until the Certificate Balance of the Class A-1 Certificates
has been reduced to zero; and
(2) to the Holders of the Class A Sequential Certificates, pro
rata based on the Class Certificate Balance, the Group II
Allocation Percentage of the Principal Distribution Amount,
until the Certificate Balance of the Class A Sequential
Certificates has been reduced to zero;
(B) to the Class A-1 Certificate Insurer, the amount of any
Reimbursement Amount then owing to the Class A-1 Certificate
Insurer on account of a prior draw relating to principal on the
Class A-1 Certificates;
(C) concurrently, with equal priority of payment:
(1) if the Class Certificate Balance of the Class A-1
Certificates has been reduced to zero, then to the Holders
of the Class A Sequential Certificates, pro rata based upon
their Class Certificate Balance, the amount of any remaining
Principal Distribution Amount, until the Class Certificate
Balance of the Class A Sequential Certificates has been
reduced to zero; or
(2) if the Class Certificate Balance of the Class A Sequential
Certificates has been reduced to zero, then to the Holders
of the Class A-1 Certificates, the amount of any remaining
Principal Distribution Amount, until the Class Certificate
Balance of the Class A-1 Certificates has been reduced to
zero;
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(D) sequentially to the Class X-0, Xxxxx X-0, Class M-3, Class M-4,
Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class
B-4 Certificates, in that order, until the respective Class
Certificate Balances are reduced to zero;
(y) on each Distribution Date (1) on and after the Stepdown Date
and (2) as long as a Trigger Event is not in effect, to the holders of the
related Class or Classes of LIBOR Certificates then entitled to
distribution of principal and to the Class A-1 Certificate Insurer, from
amounts remaining on deposit in the Distribution Account after making
distributions pursuant to clause (i) above, in an amount equal to, in the
aggregate, the Principal Distribution Amount in the following amounts and
order of priority:
(A) concurrently, with equal priority of payment:
(1) to the Holders of the Class A-1 Certificates, the Group I
Allocation Percentage of the lesser of the Principal
Distribution Amount and the Class A Principal Distribution
Amount, until the Class Certificate Balance of the Class A-1
Certificates has been reduced to zero; and
(2) to the Holders of the Class A Sequential Certificates, pro
rata based on the Class Certificate Balances, the Group II
Allocation Percentage of the lesser of the Principal
Distribution Amount and the Class A Principal Distribution
Amount, until the Class Certificate Balance of the Class A
Sequential Certificates has been reduced to zero;
(B) to the Class A-1 Certificate Insurer, the amount of any
Reimbursement Amount then owing to the Class A-1 Certificate
Insurer on account of a prior draw relating to principal on the
Class A-1 Certificates;
(C) concurrently, with equal priority of payment:
(1) if the Class Certificate Balance of the Class A-1
Certificates has been reduced to zero, then to the Holders
of the Class A Sequential Certificates, pro rata based on
Class Certificate Balances, any remaining amounts allocable
but not required to be distributed pursuant to clauses
(A)(1) or (B) above, until the Class Certificate Balance of
the Class A Sequential Certificates has been reduced to
zero,; or
(2) if the Class Certificate Balance of each Class of the Class
A Sequential Certificates has been reduced to zero, then to
the Holders of the Class A-1 Certificates, any remaining
amounts allocable but not required to be distributed
pursuant to clauses (A)(2) or (B) above, until the Class
Certificate Balance of the Class A-1 Certificates has been
reduced to zero;
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(D) to the Class M-1 Certificates, the lesser of the remaining
Principal Distribution Amount and the Class M-1 Principal
Distribution Amount, until the Class Certificate Balance thereof
has been reduced to zero;
(E) to the Class M-2 Certificates, the lesser of the remaining
Principal Distribution Amount and the Class M-2 Principal
Distribution Amount, until the Class Certificate Balance thereof
has been reduced to zero;
(F) to the Class M-3 Certificates, the lesser of the remaining
Principal Distribution Amount and the Class M-3 Principal
Distribution Amount, until the Class Certificate Balance thereof
has been reduced to zero;
(G) to the Class M-4 Certificates, the lesser of the remaining
Principal Distribution Amount and the Class M-3 Principal
Distribution Amount, until the Class Certificate Balance thereof
has been reduced to zero;
(H) to the Class M-5 Certificates, the lesser of the remaining
Principal Distribution Amount and the Class M-3 Principal
Distribution Amount, until the Class Certificate Balance thereof
has been reduced to zero;
(I) to the Class M-6 Certificates, the lesser of the remaining
Principal Distribution Amount and the Class M-3 Principal
Distribution Amount, until the Class Certificate Balance thereof
has been reduced to zero;
(J) to the Class B-1 Certificates, the lesser of the remaining
Principal Distribution Amount and the Class B-1 Principal
Distribution Amount, until the Class Certificate Balance thereof
has been reduced to zero;
(K) to the Class B-2 Certificates, the lesser of the remaining
Principal Distribution Amount and the Class B-2 Principal
Distribution Amount, until the Class Certificate Balance thereof
has been reduced to zero;
(L) to the Class B-3 Certificates, the lesser of the remaining
Principal Distribution Amount and the Class B-3 Principal
Distribution Amount, until the Class Certificate Balance thereof
has been reduced to zero; and
(M) to the Class B-4 Certificates, the lesser of the remaining
Principal Distribution Amount and the Class B-4 Principal
Distribution Amount, until the Class Certificate Balance thereof
has been reduced to zero;
(iii) any amount remaining in the Distribution Account after the
distributions in clauses (i) and (ii) above, plus as specifically indicated
below, from amounts on deposit in the Excess Reserve Fund Account, shall be
distributed in the following order of priority:
(A) to the Class A-1 Certificate Insurer, to the extent of any
remaining Reimbursement Amount then owing to it;
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(B) to the Holders of the Class M-1 Certificates, any Unpaid Interest
Amount for such Class;
(C) to the Holders of the Class M-1 Certificates, any Unpaid Realized
Loss Amount for such Class;
(D) to the Holders of the Class M-2 Certificates, any Unpaid Interest
Amount for such Class;
(E) to the Holders of the Class M-2 Certificates, any Unpaid Realized
Loss Amount for such Class;
(F) to the Holders of the Class M-3 Certificates, any Unpaid Interest
Amount for such Class;
(G) to the Holders of the Class M-3 Certificates, any Unpaid Realized
Loss Amount for such Class;
(H) to the Holders of the Class M-4 Certificates, any Unpaid Interest
Amount for such Class;
(I) to the Holders of the Class M-4 Certificates, any Unpaid Realized
Loss Amount for such Class;
(J) to the Holders of the Class M-5 Certificates, any Unpaid Interest
Amount for such Class;
(K) to the Holders of the Class M-5 Certificates, any Unpaid Realized
Loss Amount for such Class;
(L) to the Holders of the Class M-6 Certificates, any Unpaid Interest
Amount for such Class;
(M) to the Holders of the Class M-6 Certificates, any Unpaid Realized
Loss Amount for such Class;
(N) to the Holders of the Class B-1 Certificates, any Unpaid Interest
Amount for such Class;
(O) to the Holders of the Class B-1 Certificates, any Unpaid Realized
Loss Amount for such Class;
(P) to the Holders of the Class B-2 Certificates, any Unpaid Interest
Amount for such Class;
(Q) to the Holders of the Class B-2 Certificates, any Unpaid Realized
Loss Amount for such Class;
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(R) to the Holders of the Class B-3 Certificates, any Unpaid Interest
Amount for such Class;
(S) to the Holders of the Class B-3 Certificates, any Unpaid Realized
Loss Amount for such Class;
(T) to the Holders of the Class B-4 Certificates, any Unpaid Interest
Amount for such Class;
(U) to the Holders of the Class B-4 Certificates, any Unpaid Realized
Loss Amount for such Class;
(V) to the Excess Reserve Fund Account, the amount of any Basis Risk
Payment for such Distribution Date;
(W) from amounts on deposit in the Excess Reserve Fund Account, an
amount equal to any unpaid remaining Basis Risk Carry Forward
Amount, prior to application of any amounts on deposit in the
Swap Account, with respect to any LIBOR Certificates allocated to
the LIBOR Certificates in the same order and priority in which
Accrued Certificate Interest is allocated among those Classes of
Certificates, with the allocation to the Class A Certificates
being further allocated: (a) first, between the Class A-1, Class
A-2, Class A-3 and Class A-4 Certificates pro rata, based upon
their respective Class Certificate Balances and (b) second, any
remaining amounts to the Class A-1, Class A-2, Class A-3 and
Class A-4 Certificates, pro rata, based on any Basis Risk Carry
Forward Amounts remaining unpaid, in order to reimburse such
unpaid amounts;
(X) to the Swap Account, the amount of any Defaulted Swap Termination
Payment owed to the Swap Provider;
(Y) to the Holders of the Class P Certificates (as a payment from
REMIC V to the Class X Certificates), the outstanding principal
balance thereof, if any, and to the Holders of the Class X
Certificates, the remainder of the Class X Distributable Amount
not distributed pursuant to Sections 4.02(a)(iii)(A)-(X) (to the
extent stated in clause (i) of the definition of Class X
Distributable Amount, as interest, and to the extent stated in
clause (ii) of the definition of Class X Distributable Amount, as
principal); and
(Z) to the Holders of the Class R Certificates, any remaining amount.
(b) On each Distribution Date prior to any distributions on any other
Class of Certificates, all amounts representing Prepayment Charges from the
Mortgage Loans received during the related Prepayment Period shall be
distributed by the Securities Administrator to the Holders of the Class P
Certificates.
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(c) On the September 2005, October 2005 and November 2005 Distribution
Dates, the Securities Administrator shall transfer from the Capitalized Interest
Account to the Distribution Account the Capitalized Interest Requirement, if
any, for such Distribution Date.
(d) On either the Distribution Date following the final Subsequent
Transfer Date or November 24, 2005, whichever date is earlier, any amounts
remaining in the Capitalized Interest Account and all Pre-Funding Earnings in
the Pre-Funding Accounts, after taking into account the transfers in respect of
the Distribution Date described in clause (c) above, shall be paid by the
Securities Administrator to the Unaffiliated Seller.
(e) On each Subsequent Transfer Date, the Unaffiliated Seller shall
instruct in writing the Securities Administrator to withdraw from the related
Pre-Funding Account an amount equal to 100% of the aggregate Stated Principal
Balances as of the related Subsequent Cut-off Date of the Subsequent Mortgage
Loans sold to the Trust Fund on such Subsequent Transfer Date and pay such
amount to or upon the order of the Unaffiliated Seller upon satisfaction of the
conditions set forth in Section 2.01(c) with respect to such transfer. The
Securities Administrator may conclusively rely on such written instructions from
the Unaffiliated Seller.
(f) If the Pre-Funding Amount available in the Pre-Funding Accounts
(exclusive of Pre-Funding Earnings) has been reduced to $100,000 or less by the
close of business on October 1, 2005 then, on the October 25, 2005 Distribution
Date, after giving effect to any reductions in such Pre-Funding Amount on such
date, the Securities Administrator shall withdraw from the related Pre-Funding
Account on such date and deposit in the Distribution Account the amount on
deposit in such Pre-Funding Account other than any Pre-Funding Earnings; if the
Pre-Funding Amount available in such Pre-Funding Account has not been reduced to
zero by the close of business on November 24, 2005, the Securities Administrator
shall withdraw from such Pre-Funding Account the amount on deposit therein,
other than the Pre-Funding Earnings, and deposit such amount into the
Distribution Account on such day for distribution on the November 25, 2005
Distribution Date into the Distribution Account. Any amount deposited into the
Distribution Account pursuant to the preceding sentence from the Group I
Pre-Funding Account shall be distributed first, to the Holders of the Class A-1
Certificates until those Certificates are reduced to zero, second to the Holders
of the Class A Sequential Certificates until those Certificates are reduced to
zero and third, pro rata based on their relative Class Certificate Balances
immediately prior to the related Distribution Date, to the Holders of the Class
M Certificates and the Class B Certificates, as a separate payment of principal.
on the Related Distribution Date. Any amount deposited into the Distribution
Account pursuant to the preceding sentence from the Group II Pre-Funding Account
shall be distributed first, pro rata, to the Holders of the Class A Sequential
Certificates until those Certificates are reduced to zero, second to the Holders
of the Class A-1 Certificates until those Certificates are reduced to zero and
third, pro rata based on their relative Class Certificate Balances immediately
prior to the related Distribution Date, to the Holders of the Class M
Certificates and Class B Certificates as a separate payment of principal, on the
related Distribution Date.
(g) On any Distribution Date, any Relief Act Shortfalls and Net
Prepayment Interest Shortfalls for such Distribution Date shall be allocated by
the Securities Administrator as a reduction in the following order:
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(1) first, to the amount of interest payable to the Class X
Certificates; and
(2) second, pro rata, as a reduction of the Accrued Certificate
Interest for the Class A-1, Class A-2, Class X-0, Xxxxx X-0, Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class B-1, Class
B-2, Class B-3 and Class B-4 Certificates, based on the amount of interest
to which such Classes would otherwise be entitled.
(h) On any Distribution Date any funds on deposit in the Swap Accounts
shall be distributed in the following order of priority:
(i) to the Swap Provider, all Net Swap Payments, if any, owed to
the Swap Provider for that Distribution Date;
(ii) to the Swap Provider, any Swap Termination Payment, other
than a Defaulted Swap Termination Payment, if any, owed to the Swap
Provider for that Distribution Date;
(iii) to the Class A-1 Certificate Insurer, the Premium Amount
for that Distribution Date, to the extent unpaid from Available Funds;
(iv) to the Class A Certificates, to pay Accrued Certificate
Interest and, if applicable, any Unpaid Interest Amounts to the extent
unpaid from Available Funds;
(v) to the Class A-1 Certificate Insurer, the amount owing to the
Class A-1 Certificate Insurer for reimbursement for prior claims paid under
the Class A-1 Certificate Insurance Policy in respect of the Class A-1
Certificates and any other amounts owing to the Class A-1 Certificate
Insurer under the Insurance and Indemnity agreement, to the extent
remaining unpaid from Available Funds;
(vi) sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class
M-4, Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4,
in that order to pay principal as described and, in the same manner of
priority to the extent unpaid from Available Funds;
(vii) to the LIBOR Certificates, to pay principal but only to the
extent necessary to maintain the Subordinated Amount at the Specified
Subordinated Amount, after giving effect to payments and distributions from
Available Funds;
(viii) to the Class A certificates, to pay any Basis Risk Carry
Forward Amounts, pro rata, based on their Class Certificate Balances for
such Distribution Date, up to the Swap Payment Allocation for each class of
Class A certificates and to the extent unpaid from Available Funds
(including funds on deposit in the Excess Reserve Fund Account);
(ix) sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class
M-4, Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4
certificates, to pay any Basis Risk Carry Forward Amounts, up to the Swap
Payment Allocation for each class of
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Class M and Class B certificates and to the extent unpaid from Available
Funds (including funds on deposit in the Excess Reserve Fund Account);
(x) to the LIBOR Certificates, any remaining unpaid Basis Risk
Carry Forward Amount, pro rata, based on their respective remaining unpaid
Basis Risk Carry Forward Amount after the allocation of payments as set
forth in clauses (f) and (g) above;
(xi) sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class
M-4, Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4
certificates, to pay any Unpaid Realized Loss Amounts, to the extent unpaid
from Available Funds;
(xii) to the Swap Provider, any Defaulted Swap Termination
Payment owed to the Swap Provider for that Distribution Date; and
(xiii) to the holders of the Class X certificates, any remaining
amounts.
(i) Following the applicable Final Scheduled Distribution Date, no
Class of Certificates other than the Class R Certificates shall be entitled to
receive any remaining amounts. Any amounts remaining in any of the Accounts
shall be applied (i) to the Class A-1 Certificate Insurer, the Securities
Administrator, the Master Servicer and the Servicers pro rata to the extent of
any remaining unpaid amounts then owed to them, and then (ii) to the Class R
Certificates, any remaining amount.
Section 4.03 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Securities
Administrator shall make available to each Certificateholder, each Servicer, the
Depositor, the Unaffiliated Seller, the Trustee, the Master Servicer, the Class
A-1 Certificate Insurer, the Swap Provider and each Rating Agency a statement
(the "Monthly Statement"), based solely on the information provided by the
Master Servicer (and the Class A-1 Certificate Insurer to the extent of any
Reimbursement Amount) two Business Days prior to the Distribution Date, setting
forth with respect to the related distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any Unpaid
Interest Amounts included in such distribution and any remaining Unpaid
Interest Amounts after giving effect to such distribution, any Basis Risk
Carry Forward Amount for such Distribution Date and the amount of all Basis
Risk Carry Forward Amount covered by withdrawals from the Excess Reserve
Fund Account on such Distribution Date;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest, including any Basis Risk Carry Forward Amount not covered by
amounts in the Excess Reserve Fund Account;
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(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) the Pool Stated Principal Balance for the following
Distribution Date;
(vi) the amount of the Expense Fees paid to or retained by (i)
each Servicer (stated separately and in the aggregate) with respect to such
Distribution Date and (ii) the Master Servicer and the Securities
Administrator;
(vii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(viii) the amount of Advances included in the distribution on
such Distribution Date and the aggregate amount of Advances reported by
each Servicer and the Master Servicer as outstanding as of the close of
business on such Distribution Date;
(ix) the number and aggregate Scheduled Principal Balances of
Mortgage Loans (1) as to which the Scheduled Payment is delinquent 31 to 60
days, 61 to 90 days and 91 or more days, (2) that have become REO Property,
(3) that are in foreclosure and (4) that are in bankruptcy, in each case as
of the close of business on the last Business Day of the immediately
preceding month;
(x) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the
Determination Date preceding such Distribution Date and the date of
acquisition thereof;
(xi) the total number and aggregate principal balance of any REO
Properties (and market value, if available) as of the close of business on
the Determination Date preceding such Distribution Date;
(xii) whether a Trigger Event has occurred and is continuing
(including the calculation of thereof and the aggregate outstanding balance
of all 60+ Day Delinquent Loans);
(xiii) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on such Distribution Date);
(xiv) the aggregate amount of Applied Realized Loss Amounts
incurred during the preceding calendar month and aggregate Applied Realized
Loss Amounts through such Distribution Date;
(xv) the aggregate amount of Subsequent Recoveries incurred
during the preceding calendar month and aggregate Subsequent Recoveries
through such Distribution Date;
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(xvi) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the Certificateholders with
respect to Applied Realized Loss Amounts and Unpaid Interest Amounts;
(xvii) the Subordinated Amount and Specified Subordinated Amount;
(xviii) the Interest Remittance Amount, the Principal Remittance
Amount and the Prepayment Charges remitted by each Servicer with respect to
that Distribution Date;
(xix) the Pre-Funded Amount as of the end of the prior Due
Period;
(xx) the amount of any principal prepayment on the Certificates
resulting from the application of unused moneys in the Pre-Funding
Accounts;
(xxi) the Class A-1 Deficiency and the Insured Payment Rate for
such Distribution Date;
(xxii) the Reimbursement Amount immediately prior to such
Distribution Date and the amount of any payments to the Class A-1
Certificate Insurer on account thereof on such Distribution Date; and
(xxiii) the Net Swap Payment or Net Swap Receipt, as applicable,
or any Defaulted Swap Termination Payment, if any, for such Distribution
Date.
(b) The Securities Administrator's responsibility for providing the
above statement is limited to the availability, timeliness and accuracy of the
information derived from the Master Servicer or, in the case of the
Reimbursement Amount, from the Class A-1 Certificate Insurer. The Master
Servicer's responsibility for providing the above information is limited to the
availability, timeliness and accuracy of the information provided to the Master
Servicer by the Servicers in the Servicer Remittance Reports upon which the
Master Servicer's information provided to the Securities Adminstrator shall be
based. The Securities Administrator will provide the above statement via the
Securities Administrator's internet website except that the Securities
Administrator shall deliver, if requested, a hard copy of such statement to the
Class A-1 Certificate Insurer on each Distribution Date. The Securities
Administrator's website will initially be located at xxx.xxxxxxxx.xxx/xxx and
assistance in using the website can be obtained by calling the Securities
Administrator's investor relations desk at 0-000-000-0000. A paper copy of the
statement will also be made available upon written request.
(c) Within a reasonable period of time after the end of each calendar
year, the Securities Administrator shall cause to be made available to each
Person who at any time during the calendar year was a Certificateholder, a
statement containing the information set forth in clauses (a)(i) and (a)(ii) of
this Section 4.03 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of the
Securities Administrator shall be deemed to have been satisfied to the extent
that substantially comparable information shall have been previously provided by
the Securities Administrator.
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(d) Not later than the 18th day of each month (or if such day is a
Saturday, the prior Business Day or if such day is a Sunday or otherwise not a
Business Day, prior to the next Business Day), each Servicer shall furnish to
the Master Servicer and the Swap Provider and, subject to the terms of the
confidentiality agreement between the related Servicer and the Unaffiliated
Seller, the Unaffiliated Seller a monthly remittance advice statement containing
such information as shall be reasonably requested by the Master Servicer to
provide the reports required of it by Section 4.03(a) as to the accompanying
remittance and the period ending on the close of business on the last day of the
related Prepayment Period including, but not limited to, the information
provided for in Exhibit P (the "Servicer Remittance Report").
Each Servicer shall furnish to the Master Servicer and, subject to the
terms of the confidentiality agreement between the related Servicer and the
Unaffiliated Seller, the Unaffiliated Seller an individual loan accounting
report, as of the 18th day of each month (or if such day is a Saturday, the
prior Business Day or if such day is a Sunday or otherwise not a Business Day,
prior to the next Business Day), to document Mortgage Loan payment activity on
an individual Mortgage Loan basis. With respect to each month, the corresponding
individual loan accounting report (in electronic format) shall be received by
the Master Servicer no later than the related Determination Date, which report
shall contain the following:
(i) with respect to each Scheduled Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any
Prepayment Charges, along with a detailed report of interest on principal
prepayment amounts remitted in accordance with Section 3.25);
(ii) with respect to each Scheduled Payment, the amount of such
remittance allocable to interest and assumption fees;
(iii) the amount of servicing compensation received by each
Servicer during the prior distribution period;
(iv) the individual and aggregate Stated Principal Balance of the
Mortgage Loans (combined and for each of the Group I and Group II Mortgage
Loans);
(v) the individual and aggregate Scheduled Principal Balances of
the Mortgage Loans (combined and for each of the Group I and Group II
Mortgage Loans);
(vi) the aggregate of any expenses reimbursed to each Servicer
during the prior distribution period pursuant to Section 3.05 and 3.11;
(vii) the number and aggregate Scheduled Principal Balances of
Group I Mortgage Loans (a) as to which the Scheduled Payment is delinquent
(1) 31 to 60 days,
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(2) 61 to 90 days and (3) 91 days or more; (b) as to which foreclosure has
commenced; (c) as to which REO Property has been acquired and (d) that are
in bankruptcy.
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Securities Administrator in
accordance with the definition of LIBOR. Until all of the LIBOR Certificates are
paid in full, the Securities Administrator will at all times retain at least
four Reference Banks for the purpose of determining LIBOR with respect to each
LIBOR Determination Date. The Securities Administrator, after consultation with
the Depositor, initially shall designate the Reference Banks. Each "Reference
Bank" shall be a leading bank engaged in transactions in Eurodollar deposits in
the international Eurocurrency market, shall not control, be controlled by, or
be under common control with, the Securities Administrator and shall have an
established place of business in London. If any such Reference Bank should be
unwilling or unable to act as such or if the Securities Administrator should
terminate a Reference Bank, the Securities Administrator, after consultation
with the Depositor, shall promptly appoint or cause to be appointed another
Reference Bank. The Securities Administrator shall have no liability or
responsibility to any Person for (i) the selection of any Reference Bank for
purposes of determining LIBOR or (ii) any inability to retain at least four
Reference Banks which is caused by circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Securities Administrator on
each LIBOR Determination Date so long as the LIBOR Certificates are outstanding
on the basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement. The Securities Administrator shall
not have any liability or responsibility to any Person for its inability,
following a good-faith reasonable effort, to obtain quotations from the
Reference Banks or to determine the arithmetic mean referred to in the
definition of LIBOR, all as provided for in this Section 4.04 and the definition
of LIBOR. The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Securities Administrator shall (in the absence of manifest
error) be final, conclusive and binding upon each Holder of a Certificate and
the Securities Administrator.
Section 4.05 The Class A-1 Certificate Insurance Policy
(a) Within two (2) Business Days prior to each Distribution Date, the
Securities Administrator shall determine with respect to the immediately
following Distribution Date, the amount to be on deposit in the Distribution
Account on such Distribution Date as a result of (i) the Servicers' remittances
of the Interest Remittance Amount and the Principal Remittance Amount on the
related Remittance Date, and (ii) any transfers to the Distribution Account made
from the Capitalized Interest Account and/or the Pre-Funding Accounts relating
to such Distribution Date pursuant to Section 4.02 hereof, excluding the amount
of any Insured Payment.
(b) If on any Distribution Date there is a Class A-1 Deficiency, the
Securities Administrator shall complete a Notice in the form of Exhibit A to the
Class A-1 Certificate Insurance Policy and submit such notice to the Class A-1
Certificate Insurer no later than 12:00
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noon New York City time on the second Business Day preceding such Distribution
Date as a claim for an Insured Payment in an amount equal to such Class A-1
Deficiency.
(c) The Securities Administrator shall establish a separate Eligible
Account for the benefit of Holders of the Class A-1 Certificates and the Class
A-1 Certificate Insurer, referred to herein as the "Insurance Payment Account,"
over which the Securities Administrator shall have exclusive control and sole
right of withdrawal. The Securities Administrator shall deposit upon receipt any
amount paid under the Class A-1 Certificate Insurance Policy in the Insurance
Payment Account and distribute such amount only for purposes of payment to the
Class A-1 Certificateholders of the Insured Amount and such amount may not be
applied to satisfy any costs, expenses or liabilities of the Servicers, the
Securities Administrator, the Trustee or the Trust Fund. Amounts paid under the
Class A-1 Certificate Insurance Policy, to the extent needed to pay the Insured
Amount, shall be transferred to the Distribution Account on the related
Distribution Date and disbursed by the Securities Administrator to the Class A-1
Certificateholders in accordance with Section 4.02. It shall not be necessary
for such payments to be made by checks or wire transfers separate from the
checks or wire transfers used to pay other distributions to the Class A-1
Certificateholders with other funds available to make such payment. However, the
amount of any payment of principal or of interest on the Class A-1 Certificates
to be paid from funds transferred from the Insurance Payment Account shall be
noted as provided in paragraph (d) below in the Certificate Register and in the
statement to be furnished to Holders of such Certificates pursuant to Section
4.03(a). Funds held in the Insurance Payment Account shall not be invested. Any
funds remaining in the Insurance Payment Account on the first Business Day
following a Distribution Date shall be returned to the Class A-1 Certificate
Insurer pursuant to the written instructions of the Class A-1 Certificate
Insurer by the end of such Business Day.
(d) The Securities Administrator shall keep a complete and accurate
record of the amount of interest and principal paid in respect of any Class A-1
Certificate from moneys received under the Class A-1 Certificate Insurance
Policy. The Class A-1 Certificate Insurer shall have the right to inspect such
records at reasonable times during normal business hours upon one Business Day's
prior notice to the Securities Administrator.
(e) In the event that the Securities Administrator has received a
certified copy of an order of the appropriate court that any Insured Payment has
been voided in whole or in part as a preference payment under applicable
bankruptcy law, the Securities Administrator shall so notify the Class A-1
Certificate Insurer, shall comply with the provisions of the Class A-1
Certificate Insurance Policy to obtain payment by the Class A-1 Certificate
Insurer of such voided Insured Payment, and shall, at the time it provides
notice to the Class A-1 Certificate Insurer, notify, by mail to the Class A-1
Certificateholders of the affected Certificates that, in the event any Class A-1
Certificateholder's Insured Payment is so recovered, such Class A-1
Certificateholder will be entitled to payment pursuant to the Class A-1
Certificate Insurance Policy, a copy of which shall be made available through
the Securities Administrator, the Class A-1 Certificate Insurer or the Class A-1
Certificate Insurer's fiscal agent, if any, and the Securities Administrator
shall furnish to the Class A-1 Certificate Insurer or its fiscal agent, if any,
its records evidencing the payments which have been made by the Securities
Administrator and subsequently recovered from the Class A-1 Certificateholders,
and dates on which such payments were made.
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(f) The Securities Administrator shall promptly notify the Class A-1
Certificate Insurer of any proceeding or the institution of any action, of which
a Responsible Officer of the Securities Administrator has actual knowledge,
seeking the avoidance as a preferential transfer under applicable bankruptcy,
insolvency, receivership or similar law (a "Preference Claim") of any
distribution made with respect to the Class A-1 Certificates. Each Class A-1
Certificateholder, by its purchase of Class A-1 Certificates, each Servicer, the
Master Servicer, the Trustee and the Securities Administrator agree that the
Class A-1 Certificate Insurer (so long as no Class A-1 Certificate Insurer
Default exists) may at any time during the continuation of any proceeding
relating to a Preference Claim direct all matters relating to such Preference
Claim, including, without limitation, (i) the direction of any appeal of any
order relating to such Preference Claim and (ii) the posting of any surety,
supersedes or performance bond pending any such appeal. In addition and without
limitation of the foregoing, the Class A-1 Certificate Insurer shall be
subrogated to, and each Class A-1 Certificateholder, the Servicers, the Master
Servicer, the Trustee and the Securities Administrator hereby delegate and
assign to the Class A-1 Certificate Insurer, to the fullest extent permitted by
law, the rights of the Securities Administrator, the Servicers, the Master
Servicer, the Trustee and each Class A-1 Certificateholder in the conduct of any
such Preference Claim, including, without limitation, all rights of any party to
any adversary proceeding or action with respect to any court order issued in
connection with any such Preference Claim.
(g) The Securities Administrator shall, once the Certificate Balance
of the Class A-1 Certificates has been reduced to zero (after giving effect to
all payments including any payments made under the Class A-1 Certificate
Insurance Policy), furnish to the Class A-1 Certificate Insurer a notice of such
retirement, and, upon retirement of the Class A-1 Certificates and the
expiration of the term of the Class A-1 Certificate Insurance Policy, the
Trustee shall surrender the Class A-1 Certificate Insurance Policy to the Class
A-1 Certificate Insurer for cancellation. Such cancellation shall in not way
reduce the rights of the Class A-1 Certificate Insurer to amounts subrogated to
the Class A-1 Certificate Insurer or to be reimbursed for any Reimbursement
Amounts.
(h) The Trustee designates, appoints, authorizes and directs the
Securities Administrator to deliver on behalf of the Trustee the notice in the
form of Exhibit A to the Class A-1 Certificate Insurance Policy in accordance
with Section 4.05 and to make, on behalf of and with full power to bind the
Trustee, any of the agreements, assignments or covenants of the Trustee
contained therein. To the extent necessary, this Agreement shall constitute an
irrevocable limited power of attorney, coupled with an interest, from the
Trustee to the Securities Administrator, to accomplish the foregoing. The
Trustee shall have no liability for any actions or omissions of the Securities
Administrator or any use of such power of attorney.
Section 4.06 Effect of Payments by the Class A-1 Certificate Insurer;
Subrogation
Anything herein to the contrary notwithstanding, any payment with
respect to principal of or interest on the Class A-1 Certificates which is made
with moneys received pursuant to the terms of the Class A-1 Certificate
Insurance Policy shall not be considered payment of the Class A-1 Certificates
from the Trust Fund. The Depositor, each Servicer, the Master Servicer, the
Trustee and the Securities Administrator acknowledge, and each Holder by
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its acceptance of a Class A-1 Certificate agrees, that without the need for any
further action on the part of the Class A-1 Certificate Insurer, the Depositor,
each Servicer, the Master Servicer, the Securities Administrator, the Trustee or
the Certificate Registrar (a) to the extent the Class A-1 Certificate Insurer
makes payments, directly or indirectly, on account of principal of or interest
on the Class A-1 Certificates to the Holders of such Class A-1 Certificates, the
Class A-1 Certificate Insurer will be fully subrogated to, and each Class A-1
Certificateholder, the Master Servicer, each Servicer and the Securities
Administrator hereby delegate and assign to the Class A-1 Certificate Insurer,
to the fullest extent permitted by law, the rights of such Holders to receive
such principal and interest from the Trust Fund, including, without limitation,
any amounts due to the Class A-1 Certificateholders in respect of securities law
violations arising from the offer and sale of the Class A-1 Certificates, and
(b) the Class A-1 Certificate Insurer shall be paid such amounts from the
sources and in the manner provided herein for the payment of such amounts and as
provided in the Insurance and Indemnity Agreement. The Securities Administrator,
the Master Servicer and each Servicer shall cooperate in all respects with any
reasonable request by the Class A-1 Certificate Insurer for action to preserve
or enforce the Class A-1 Certificate Insurer's rights or interests under this
Agreement without limiting the rights or affecting the interests of the Holders
as otherwise set forth herein.
Section 4.07 Allocation of Applied Realized Loss Amounts.
Any Applied Realized Loss Amounts shall be allocated by the Securities
Administrator to the most junior Class of Subordinated Certificates then
outstanding in reduction of the Class Certificate Balance thereof.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
The Certificates shall be substantially in the forms attached hereto
as exhibits. The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples in excess thereof (except that one
Certificate in each Class may be issued in a different amount and aggregate
denominations per Class set forth in the Preliminary Statement).
The Depositor hereby directs the Securities Administrator to register
the Class X Certificates and the Class P Certificates initially to "Xxxxxx &
Co.", as nominee of JPMorgan Chase Bank, N.A., as indenture trustee on behalf of
the Noteholders of the IXIS Real Estate Capital Inc. NIM 2005-HE3N Notes, and to
deliver such Class X Certificates and Class P Certificates on the Closing Date
to JPMorgan Chase Bank N.A., or as otherwise directed by the Depositor.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator shall make
distributions to each Certificateholder of record on the preceding Record Date
(x) by wire transfer in immediately available funds to the account of such
holder at a bank or other entity having appropriate facilities therefor, or (y)
upon the request, in writing, of the applicable Certificateholder, by
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check mailed by first class mail to such Certificateholder at the address of
such holder appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer and authenticated by the
Securities Administrator by manual or facsimile signature by an authorized
officer. Certificates bearing the manual or facsimile signatures of individuals
who were, at the time such signatures were affixed, authorized to sign on behalf
of the Trustee or Securities Administrator, respectively, shall bind the Trustee
and the Securities Administrator, respectively, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
execution, authentication and delivery of any 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
authenticated by the Securities Administrator by manual signature, and such
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their authentication. On the Closing
Date, the Securities Administrator shall authenticate the Certificates to be
issued at the direction of the Depositor, or any affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates.
(a) The Securities Administrator, on behalf of the Trustee, shall
maintain, or cause to be maintained in accordance with the provisions of Section
5.06, a Certificate Register for the Trust Fund in which, subject to the
provisions of subsections (b) and (c) below and to such reasonable regulations
as it may prescribe, the Securities Administrator shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. Upon surrender for registration of transfer of any Certificate,
the Securities Administrator shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator shall execute, 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 be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator duly executed by the holder thereof
or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but 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 may be required.
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All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Securities Administrator in
accordance with the Securities Administrator's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. Except
with respect to (i) the transfer of Class X, Class P or Class R Certificates to
the Depositor or an Affiliate of the Depositor, (ii) the transfer of the Class X
and Class P Certificates to the NIM Issuer, if any, or the NIM Trustee, if any,
or (iii) a transfer of the Class X or Class P Certificates from the NIM Issuer,
if any, or the NIM Trustee, if any, to the Depositor, Unaffiliated Seller or an
Affiliate of the Depositor or the Unaffiliated Seller, in the event that a
transfer of a Private Certificate which is a Physical Certificate is to be made
in reliance upon an exemption from the Securities Act and such laws, in order to
assure compliance with the Securities Act and such laws, the Certificateholder
desiring to effect such transfer shall certify to the Securities Administrator
in writing the facts surrounding the transfer in substantially the form set
forth in Exhibit I (the "Transferor Certificate") and either (i) there shall be
delivered to the Securities Administrator a letter in substantially the form of
Exhibit J (the "Rule 144A Letter") or (ii) there shall be delivered to the
Securities Administrator at the expense of the transferor an Opinion of Counsel
that such transfer may be made without registration under the Securities Act. In
the event that a transfer of a Private Certificate which is a Book-Entry
Certificate is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer will be deemed to
have made as of the transfer date each of the certifications set forth in the
Transferor Certificate in respect of such Certificate and the transferee will be
deemed to have made as of the transfer date each of the certifications set forth
in the Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate. The Depositor shall, and
the Unaffiliated Seller may, provide to any Holder of a Private Certificate and
any prospective transferee designated by any such Holder, information regarding
the related Certificates and the Mortgage Loans and such other information as
shall be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by Rule
144A. The Trustee, the Securities Administrator, the Master Servicer and each
Servicer shall cooperate with the Depositor and the Unaffiliated Seller in
providing the Rule 144A information referenced in the preceding sentence,
including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund as
the Depositor and the Unaffiliated Seller shall reasonably request to meet its
obligation under the preceding sentence. Each Holder of a Private Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Trustee, the Securities Administrator, the Depositor, the Servicers, the Master
Servicer and the Unaffiliated Seller 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.
Except with respect to (i) the transfer of Class X, Class P or Class R
Certificates to the Depositor or an Affiliate of the Depositor, (ii) a transfer
of the Class X and Class P Certificates to the NIM Issuer, if any, or the NIM
Trustee, if any, or (iii) a transfer of the Class X or Class P Certificates from
the NIM Issuer, if any, or the NIM Trustee, if any, to the Depositor,
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Unaffiliated Seller or an Affiliate of the Depositor or the Unaffiliated Seller,
no transfer of an ERISA-Restricted Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee in substantially the form of Exhibit J, to the effect that either (A)
such transferee is not an employee benefit plan or arrangement subject to Title
I of ERISA, Section 4975 of the Code or any Federal, state or local law
materially similar to the foregoing provisions of ERISA or the Code (each, a
"Plan"), and is not acting on behalf of any Plan or using the assets of any Plan
to effect such transfer or (B) with respect to the transfer of an
ERISA-Restricted Certificate that is not a Class P, Class X or Class R
Certificate, such transferee is an insurance company that is purchasing the
Certificate with funds contained in an "insurance company general account" (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60") and the conditions for exemptive relief under Sections I
and III of PTCE 95-60 are satisfied with respect to the purchase and holding of
such Certificate. For purposes of the preceding sentence, with respect to (i)
the transfer of an ERISA-Restricted Certificate that is not a Physical
Certificate and (ii) the transfer of the Class X or Class P Certificates from
the NIM Issuer, if any, or the NIM Trustee, if any, to an Affiliate of the
Depositor or Unaffiliated Seller, in the event the representation letter
referred to in the preceding sentence is not furnished, such representation
shall be deemed to have been made to the Securities Administrator by the
transferee's (including an initial acquiror's) acceptance of the
ERISA-Restricted Certificate. In the event that such representation is violated,
such attempted transfer or acquisition shall be void and of no effect.
Each purchaser or transferee of an Offered Certificate that is a Plan,
or that is acting on behalf of a Plan or using the assets of a Plan to acquire
such Offered Certificate, shall be deemed to represent that (i) it qualifies as
an accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities and Exchange Commission under the Securities Act and, for so long as
the Interest Rate Swap Agreement is in effect, (ii) its acquisition and holding
of an interest in the Supplemental Interest Trust will be eligible for the
exemptive relief available under an Investor-Based Exemption.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Securities Administrator shall be under no liability to
any Person for any registration of transfer of any ERISA-Restricted Certificate
that is in fact not permitted by this Section 5.02(b) or for making any payments
due on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered by the Securities Administrator in accordance with the
foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee;
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(ii) No Ownership Interest in a Residual Certificate may be registered
on the Closing Date or thereafter transferred, and the Securities
Administrator shall not register the Transfer of any Residual Certificate
unless, in addition to the certificates required to be delivered to the
Securities Administrator under subparagraph (b) above, the Securities
Administrator shall have been furnished with an affidavit (a "Transfer
Affidavit") of the initial owner or the proposed transferee in the form
attached hereto as Exhibit H;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit from
any Person for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Residual Certificate, and (C) not to
Transfer its Ownership Interest in a Residual Certificate or to cause the
Transfer of an Ownership Interest in a Residual Certificate to any other
Person if it has actual knowledge that such Person (i) is a Non-Permitted
Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Residual Certificate in violation of the provisions of Section 5.02(b)
and this Section 5.02(c) shall be absolutely null and void and shall vest
no rights in the purported Transferee. If any purported transferee shall
become a Holder of a Residual Certificate in violation of the provisions of
Section 5.02(b) and this Section 5.02(c), then the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof retroactive to
the date of registration of Transfer of such Residual Certificate. The
Securities Administrator shall be under no liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not
permitted by Section 5.02(b) and this Section 5.02(c) or for making any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement
so long as the Transfer was registered after receipt of the related
Transfer Affidavit, Transferor Certificate and the Rule 144A Letter. The
Securities Administrator shall be entitled but not obligated to recover
from any Holder of a Residual Certificate that was in fact a Non-Permitted
Transferee at the time it became a Holder or, at such subsequent time as it
became a Non-Permitted Transferee, all payments made on such Residual
Certificate at and after either such time. Any such payments so recovered
by the Securities Administrator shall be paid and delivered by the
Securities Administrator to the last preceding Permitted Transferee of such
Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Securities Administrator, all
information necessary to compute any tax imposed under Section 860E(e) of
the Code as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is a Non-Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Securities Administrator of an Opinion of
Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund, the
Trustee, the Securities Administrator, the Unaffiliated Seller or the Servicers,
to the effect
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that the elimination of such restrictions will not cause the transfer to be
disregarded under Treasury regulations section 1.860E-1(c), cause any REMIC
created hereunder to fail to qualify as a REMIC at any time that the
Certificates are outstanding or result in the imposition of any tax on the Trust
Fund, a Certificateholder or another Person. Each Person holding or acquiring
any Ownership Interest in a Residual Certificate hereby consents to any
amendment of this Agreement which, based on an Opinion of Counsel furnished to
the Securities Administrator, is reasonably necessary (a) to ensure that the
record ownership of, or any beneficial interest in, a Residual Certificate is
not transferred, directly or indirectly, to a Person that is a Non-Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is a Non-Permitted Transferee to a
Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided 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 the Certificates may not be transferred by the
Securities Administrator 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 Book-Entry Certificates; (iii)
ownership and transfers of registration of the Book-Entry 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 Securities
Administrator shall deal with the Depository, Depository Participants and
indirect participating firms as representatives of the Certificate Owners of the
Book-Entry Certificates for purposes of exercising the rights of Holders under
this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (vi) the Securities Administrator
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.
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 Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (ii) the Securities
Administrator or the Depositor is unable to locate a qualified successor or (y)
after the occurrence of an Event of Default, Certificate Owners representing at
least a majority of the Certificate Balance of the Book-Entry Certificates
together advise the Securities Administrator and the Depository through the
Depository Participants in writing that the continuation of a book-entry system
through the Depository is no longer in the best interests of the Certificate
Owners, the Securities Administrator shall notify all Certificate
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Owners, through the Depository, of the occurrence of any such event and of the
availability of definitive, fully-registered Certificates (the "Definitive
Certificates") to Certificate Owners requesting the same. Upon surrender to the
Securities Administrator of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Securities Administrator shall issue the Definitive Certificates. Neither the
Servicers, the Depositor, the Securities Administrator nor the Trustee shall be
liable for any delay in delivery of such instruction and each may conclusively
rely on, and shall be protected in relying on, such instructions. The Depositor
shall provide the Securities Administrator with an adequate inventory of
Certificates to facilitate the issuance and transfer of Definitive Certificates.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Depository shall be deemed to
be imposed upon and performed by the Securities Administrator, to the extent
applicable with respect to such Definitive Certificates and the Securities
Administrator shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder; provided, that the Securities Administrator shall
not by virtue of its assumption of such obligations become liable to any party
for any act or failure to act of the Depository.
(f) Each Private Certificate presented or surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of transfer
and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and all appropriate
attachments) or W-9 in form satisfactory to the Securities Administrator, duly
executed by the Certificateholder or his attorney duly authorized in writing.
Each Certificate presented or surrendered for registration of transfer or
exchange shall be canceled and subsequently disposed of by the Securities
Administrator in accordance with its customary practice. No service charge shall
be made for any registration of transfer or change of Private Certificates, but
the Securities Administrator may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of private Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Securities
Administrator, or the Securities Administrator receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b) there
is delivered to the Depositor, each Servicer, the Class A-1 Certificate Insurer,
the Securities Administrator and the Trustee such security or indemnity as may
be required by them to hold each of them harmless, then, in the absence of
notice to the Securities Administrator that such Certificate has been acquired
by a bona fide purchaser, the Securities Administrator shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.03, the Securities Administrator may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Securities Administrator) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
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Section 5.04 Persons Deemed Owners.
Each Servicer, the Trustee, the Class A-1 Certificate Insurer, the
Securities Administrator, the Master Servicer and the Depositor and any agent of
the Servicers, the Depositor, the Securities Administrator, the Class A-1
Certificate Insurer, the Master Servicer or the Trustee may treat the Person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and neither the Servicers, the Trustee, the
Securities Administrator, the Class A-1 Certificate Insurer, the Master Servicer
and the Depositor nor any agent of the Servicers, the Depositor, the Securities
Administrator, the Class A-1 Certificate Insurer, the Master Servicer or the
Trustee shall be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses.
If three or more Certificateholders (a) request in writing such
information from the Securities Administrator, (b) state that such
Certificateholders desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates, and (c)
provide a copy of the communication which such Certificateholders propose to
transmit, or if the Depositor or a Servicer shall request such information in
writing from the Securities Administrator, then the Securities Administrator
shall, within ten Business Days after the receipt of such request, provide the
Depositor, such Servicer or such Certificateholders at such recipients' expense
the most recent list of the Certificateholders of such Trust Fund held by the
Securities Administrator, if any. The Depositor and every Certificateholder, by
receiving and holding a Certificate, agree that the Securities Administrator
shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency.
The Securities Administrator will maintain or cause to be maintained
at its expense an office or offices or agency or agencies in Dallas where
Certificates may be surrendered for registration of transfer or exchange. The
Securities Administrator initially designates its office for such purposes
located at 0000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000. The Securities
Administrator shall give prompt written notice to the Certificateholders of any
change in such location of any such office or agency.
Section 5.07 Rights of the Class A-1 Class A-1 Certificate Insurer to
Exercise Rights of Class A-1 Certificateholders.
By accepting its Class A-1 Certificate, each Class A-1
Certificateholder agrees that unless a Class A-1 Certificate Insurer Default
exists, the Class A-1 Certificate Insurer shall be deemed to be the Class A-1
Certificateholders for all purposes (other than with respect to the receipt of
payment on the Class A-1 Certificates) and shall have the right to exercise all
rights of the Class A-1 Certificateholders under this Agreement and under the
Class A-1 Certificates without any further consent of the Class A-1
Certificateholders, including, without limitation:
(a) the right to require the Unaffiliated Seller to repurchase
Mortgage Loans pursuant to Section 2.03 to the extent set forth in such Section;
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(b) the right to give notices of breach or to terminate the rights and
obligations of the Servicers as servicer pursuant to Section 7.01;
(c) the right to direct the actions of the Securities Administrator
during the continuance of a Servicer default pursuant to Sections 3.24, 7.01 and
7.02;
(d) the right to institute proceedings against each Servicer pursuant
to Section 7.01;
(e) the right to direct the Securities Administrator to investigate
certain matters pursuant to Sections 8.01 and 8.02;
(f) the right to remove the Trustee pursuant to Section 8.07;
(g) the right to remove the Master Servicer pursuant to Section 9.04;
(h) the right to remove the Securities Administrator pursuant to
Section 10.07; and
(i) any rights or remedies expressly given the Class A-1
Certificateholders.
In addition, each Certificateholder agrees that, subject to Section
12.11, unless a Class A-1 Certificate Insurer Default exists, the rights
specifically enumerated above may only be exercised by the Certificateholders
with the prior written consent of the Class A-1 Certificate Insurer.
Section 5.08 Securities Administrator To Act Solely with Consent of
the Class A-1 Certificate Insurer.
Unless a Class A-1 Certificate Insurer Default exists, the Securities
Administrator shall not, without the Class A-1 Certificate Insurer's consent or
unless directed by the Class A-1 Certificate Insurer:
(a) terminate the rights and obligations of the Servicers as Servicers
pursuant to Section 7.01 or the Master Servicer pursuant to Section 9.04;
(b) agree to any amendment pursuant to Section 10.01; or
(c) undertake any litigation.
The Class A-1 Certificate Insurer may, in writing and in its sole
discretion renounce all or any of its rights under this Agreement or any
requirement for the Class A-1 Certificate Insurer's consent for any period of
time.
Section 5.09 Mortgage Loans, Trust Fund and Accounts Held for Benefit
of the Class A-1 Certificate Insurer.
(a) The Securities Administrator on behalf of the Trustee and the
Trustee shall hold the Trust Fund (including the Supplemental Interest Trust)
and the Custodian shall hold the
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Custodial Files for the benefit of the Certificateholders and the Class A-1
Certificate Insurer and all references in this Agreement and in the Certificates
to the benefit of Holders of the Certificates shall be deemed to include the
Class A-1 Certificate Insurer. The Securities Administrator, Trustee and
Custodian shall follow all reasonable instructions and requests of the Class A-1
Certificate Insurer to assist it to take action to preserve or enforce the Class
A-1 Certificate Insurer's rights or interests under this Agreement unless a
Class A-1 Certificate Insurer Default exists.
(b) Each Servicer hereby acknowledges and agrees that it shall service
the Mortgage Loans for the benefit of the Certificateholders and for the benefit
of the Class A-1 Certificate Insurer, and all references in this Agreement to
the benefit of or actions on behalf of the Certificateholders shall be deemed to
include the Class A-1 Certificate Insurer.
Section 5.10 Class A-1 Certificate Insurer Default.
Notwithstanding anything elsewhere in this Agreement or in the
Certificates to the contrary, if a Class A-1 Certificate Insurer Default exists,
or if and to the extent the Class A-1 Certificate Insurer has delivered its
written renunciation of all of its rights under this Agreement, all provisions
of this Agreement which (a) permit the Class A-1 Certificate Insurer to exercise
rights of the Class A-1 Certificateholders, (b) restrict the ability of the
Certificateholders, the Servicers, the Securities Administrator, the Master
Servicer or the Trustee to act without the consent or approval of the Class A-1
Certificate Insurer, (c) provide that a particular act or thing must be
acceptable to the Class A-1 Certificate Insurer, (d) permit the Class A-1
Certificate Insurer to direct (or otherwise to require) the actions of the
Trustee, the Securities Administrator, the Servicers, the Master Servicer or the
Certificateholders, (e) provide that any action or omission taken with the
consent, approval or authorization of the Class A-1 Certificate Insurer shall be
authorized hereunder or shall not subject the party taking or omitting to take
such action to any liability hereunder or (f) which have a similar effect, shall
be of no further force and effect and the Securities Administrator shall
administer the Trust Fund (including the Supplemental Interest Trust) and
perform its obligations hereunder solely for the benefit of the Holders of the
Certificates. Nothing in the foregoing sentence, nor any action taken pursuant
thereto or in compliance therewith, shall be deemed to have released the Class
A-1 Certificate Insurer from any obligation or liability it may have to any
party or to the Class A-1 Certificateholders hereunder, under any other
agreement, instrument or document (including, without limitation, the Class A-1
Certificate Insurance Policy) or under applicable law.
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.01 Respective Liabilities of the Depositor and the
Servicers.
The Depositor and each Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them herein.
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Section 6.02 Merger or Consolidation of the Depositor or the
Servicers.
The Depositor and each Servicer will each keep in full effect its
existence, rights and franchises as a corporation or limited partnership, as the
case may be, under the laws of the United States or under the laws of one of the
states thereof and will each 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, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor or a Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Depositor or a Servicer shall be a party, or any person succeeding to the
business of the Depositor or a Servicer, shall be the successor of the Depositor
or such Servicer, as the case may be, hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or surviving Person to such Servicer shall be qualified to sell
mortgage loans to, and to service mortgage loans on behalf of, Xxxxxx Mae or
FHLMC.
Each Servicer is and shall continue to be an institution which is a
Xxxxxx Xxx and FHLMC approved seller/servicer in good standing and shall
maintain a net worth of at least $30,000,000.
Section 6.03 Limitation on Liability of the Depositor, the Servicers
and Others.
None of the Depositor, the Servicers, the Custodian, the Securities
Administrator, the Trustee, the Master Servicer nor any of their respective
directors, officers, employees or agents shall be under any liability to the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, the
Servicers, the Custodian, the Securities Administrator, the Trustee, the Master
Servicer or any such Person against any breach of representations or warranties
made by it herein or protect the Depositor, the Servicers, the Custodian, the
Securities Administrator, the Trustee, the Master Servicer or any such Person
from any liability which would otherwise be imposed by reasons of willful
misfeasance, bad faith or negligence (or with respect to the Depositor, gross
negligence) in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Depositor and any director, officer,
employee or agent of the Depositor may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Depositor, the Servicers, the Custodian, the
Securities Administrator, the Trustee, the Master Servicer and any director,
officer, employee or agent of the Depositor, the Servicers, the Custodian, the
Securities Administrator, the Master Servicer or the Trustee shall be
indemnified by the Trust Fund and held harmless against any loss, liability or
expense incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action and,
in the case of the Trustee and the Securities Administrator, other matters
(other than standard administrative expenses incurred in its role as Securities
Administrator) relating to this Agreement or the Certificates (including, as to
the Trustee and the Securities Administrator, the undertaking of actions as
directed by the Unaffiliated Seller or the Class A-1 Certificate Insurer
pursuant to
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Section 2.03), other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence (or with respect to the Depositor,
gross negligence) in the performance of their respective duties hereunder or by
reason of reckless disregard of their respective obligations and duties
hereunder. The Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its respective
duties hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that the Depositor may in its discretion undertake
any such action (or direct the Securities Administrator to undertake any such
actions pursuant to Section 2.03 hereof for the benefit of the
Certificateholders) that it may deem necessary or desirable in respect of this
Agreement and the rights and duties of the parties hereto and interests of the
Securities Administrator and 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
Depositor shall be entitled to be reimbursed therefor out of the Collection
Accounts.
Neither Servicer nor any of the officers, employees or agents of each
Servicer shall be under any liability to the Trustee, the Custodian, the
Securities Administrator, the Master Servicer or the Depositor for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement; provided, however, that this provision shall not protect each
Servicer or any such person against any breach of warranties or representations
made herein, or failure to perform its obligations in compliance with the terms
of this Agreement, or any liability which would otherwise be imposed by reason
of any breach of the terms and conditions of this Agreement. Each Servicer and
any officer, employee or agent of such 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. Neither Servicer shall be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement and which in its opinion may involve it in any expenses or liability;
provided, however, that each Servicer may undertake any such action which it may
deem necessary or desirable in respect to this Agreement and the rights and
duties of the parties hereto. 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 such Servicer shall be entitled to be
reimbursed therefor out of its Collection Account. In the event such Servicer
agrees, at the request of the Depositor, to act on behalf of the Depositor in
any litigation relating to the origination of a Mortgage Loan, the Depositor
shall pay all expenses associated with the defense and management of such claim
(without reimbursement from the Trust Fund).
Section 6.04 Limitation on Resignation of the Servicers.
Neither Servicer shall assign this Agreement or resign from the
obligations and duties hereby imposed on it except by mutual consent of such
Servicer, the Class A-1 Certificate Insurer, the Securities Administrator, the
Master Servicer, the Depositor and the Trustee (and written notice to the
Custodian) or upon the determination that its duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by such
Servicer. Any such determination permitting the resignation of a Servicer shall
be evidenced by an Opinion of Counsel to such effect delivered to the Depositor
and the Securities Administrator which Opinion of Counsel shall be in form and
substance acceptable to the Depositor and the Securities Administrator. No such
resignation shall become effective until a successor shall have assumed
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such Servicer's responsibilities and obligations hereunder. Notwithstanding
anything to the contrary herein, such Servicer may pledge or assign as
collateral all its rights, title and interest under this Agreement to a lender
(the "Lender"); provided that the Lender may only terminate a Servicer under
this Agreement if there has been an Event of Default under this Agreement, in
which event the Lender may replace such Servicer in the same manner and subject
to the same conditions applicable in the event such Servicer is appointing a
successor Servicer upon a servicer termination pursuant to Section 7.02.
Notwithstanding the provisions of Section 6.04 herein to the contrary,
in the event that a Servicer determines that it will no longer engage in the
business of servicing mortgage loans, such Servicer may assign its rights under
this Agreement, provided that, (i) as long as the Class A-1 Certificates are
outstanding or any amounts are owed to the Class A-1 Certificate Insurer, the
Class A-1 Certificate Insurer in its sole discretion has consented, (ii) the
Rating Agencies' ratings of the Certificates in effect immediately prior to such
action will not be qualified, reduced or withdrawn as a result thereof (as
evidenced by a letter to such effect from the Rating Agencies) and (iii) such
Servicer shall be liable for all costs and expenses associated with the transfer
of servicing, provided further, that such Servicer shall indemnify and hold each
of the Trust Fund, the Master Servicer, the Trustee, the Custodian, Class A-1
Certificate Insurer, the Depositor, the other Servicers hereunder, any
sub-servicer, the successor Servicer and each Certificateholder harmless against
any and all claims, losses, penalties, fines, forfeitures, reasonable legal fees
and related costs, judgments, and any other costs, fees and expenses that such
party may sustain in any way related to such assignment except with respect to a
successor Servicer's failure to comply with the terms of this Agreement. No
assignment by such Servicer shall become effective until a successor Servicer
acceptable to the Class A-1 Certificate Insurer (as long as the Class A-1
Certificates are outstanding or any amounts are owed to the Class A-1
Certificate Insurer), the Depositor and the Master Servicer shall have assumed
in writing such Servicer's responsibilities, duties, liabilities (other than
those liabilities arising prior to the appointment of such successor) and
obligations under this Agreement. Any such assignment shall not relieve a
Servicer of responsibility for any of the obligations specified herein except to
the extent that such responsibilities have been expressly assumed by the
successor Servicer.
Section 6.05 Additional Indemnification by the Servicers; Third Party
Claims.
Each Servicer shall indemnify the Depositor (and its Affiliate, Xxxxxx
Xxxxxxx Mortgage Capital Inc.), the Unaffiliated Seller, the Custodian, the
Securities Administrator, the Master Servicer and the Trustee and any director,
officer, employee, or agent of the Depositor (or its Affiliate, Xxxxxx Xxxxxxx
Mortgage Capital Inc.), the Unaffiliated Seller, the Custodian, the Securities
Administrator, the Master Servicer and the Trustee and hold them harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and any other
costs, fees and expenses that any of them may sustain in any way related to any
breach by such Servicer, of any of its representations and warranties referred
to in Section 2.03(a)(i) or the failure of such Servicer to perform its duties
and service the Mortgage Loans in compliance with the terms of this Agreement.
Each Servicer shall indemnify the Unaffiliated Seller and any director, officer,
employee, or agent of the Unaffiliated Seller and the Trust Fund and hold it
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs,
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judgments, and any other costs, fees and expenses that it may sustain in any way
related to any breach by such Servicer, of any of its representations and
warranties referred to in Section 2.03(a)(ii). Each Servicer immediately shall
notify the Depositor, the Unaffiliated Seller, the Custodian, the Securities
Administrator, the Master Servicer and the Trustee if a claim is made by a third
party with respect to any such breach or failure by the related Servicer under
this Agreement, assume (with the prior written consent of the Depositor, the
Unaffiliated Seller, the Custodian, the Securities Administrator, the Master
Servicer and the Trustee, as applicable) the defense of any such claim and pay
all expenses in connection therewith, including reasonable counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or the Depositor, the Unaffiliated Seller, the Custodian, the
Securities Administrator, the Master Servicer or the Trustee in respect of such
claim; provided, that if it is determined that the Servicer is not obligated to
indemnify such parties in accordance with this Section 6.05, each such party (or
the Trust Fund, if applicable) shall promptly reimburse the applicable Servicer
in connection with each of the foregoing payments made to such party by such
Servicer. This indemnity shall survive the termination of this Agreement or the
earlier resignation or removal of each Servicer.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
"Event of Default," wherever used herein, means with respect to each
Servicer individually, any one of the following events:
(a) any failure by the applicable Servicer to remit to the Securities
Administrator or the Master Servicer any payment required to be made under the
terms of this Agreement which continues unremedied for a period of one Business
Day after the date upon which written notice of such failure, requiring the same
to be remedied, shall have been given to such Servicer by the Depositor, by the
Securities Administrator, by the Master Servicer or by the Trustee or to such
Servicer, the Trustee, the Depositor, the Securities Administrator or the Master
Servicer by the Class A-1 Certificate Insurer or by Certificateholders entitled
to at least 25% of the Voting Rights in the Certificates; or
(b) failure on the part of the related Servicer to duly observe or
perform in any material respect any other of the covenants or agreements on the
part of such Servicer set forth in this Agreement which continues unremedied for
a period of forty-five days (except that (x) such number of days shall be
fifteen in the case of a failure to pay any premium for any insurance policy
required to be maintained under this Agreement and (y) such number of days shall
be ten in the case of a failure to observe or perform any of the obligations set
forth in Sections 3.22, 3.23 or 8.12) after the earlier of (i) the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to such Servicer by the Depositor, by the Class A-1 Certificate
Insurer, by the Securities Administrator, the Master Servicer or by the Trustee,
or to the Master Servicer by Certificateholders entitled to at least 25% of the
Voting Rights in the Certificates and (ii) actual knowledge of such failure by a
Servicing Officer of the applicable Servicer; or
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(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the applicable
Servicer and such decree or order shall have remained in force undischarged or
unstayed for a period of sixty days; or
(d) the applicable Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to such Servicer or of or relating to all or
substantially all of its property; or
(e) the applicable Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take advantage of
any applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(f) Fitch reduces its servicer rating of the applicable Servicer to
"RPS2-" or lower, Moody's reduces its servicer rating of the applicable Servicer
to "SQ3" or lower, or Standard & Poor's reduces its servicer rating of the
applicable Servicer to "Average" or lower; or
(g) any failure of the related Servicer to make any P&I Advance on any
Remittance Date required to be made from its own funds pursuant to Section 4.01
which continues unremedied for one Business Day immediately following the
Remittance Date; or
(h) a breach of any representation and warranty of the applicable
Servicer referred to in Section 2.03(a), which materially and adversely affects
the interests of the Certificateholders or the Class A-1 Certificate Insurer and
which continues unremedied for a period of thirty days after the earlier of (i)
the date upon which written notice of such breach is given to such Servicer by
the Trustee, by the Securities Administrator, by the the Master Servicer or by
the Depositor, or to such Servicer, the Depositor, the Class A-1 Certificate
Insurer, the Master Servicer, the Securities Administrator and the Trustee by
any Certificateholders entitled to at least 25% of the Voting Rights in the
Certificates or by the Class A-1 Certificate Insurer and (ii) actual knowledge
of such breach by a Servicing Officer of such Servicer; or
(i) any reduction, withdrawal or qualification of the applicable
Servicer's servicer rating by any Rating Agency which results in the Servicer
being deemed unacceptable by any Rating Agency to act as a primary servicer for
this transaction or a primary servicer or a special servicer for any other
mortgage-backed or asset-backed transaction rated or to be rated by any such
Rating Agency; or
(j) the Class A-1 Certificate Insurer notifies the Master Servicer and
the Securities Administrator in writing of any uncured "event of default" (as
such term is used in the Insurance and Indemnity Agreement) by the related
Servicer under the Insurance and Indemnity Agreement.
If an Event of Default shall occur, then, and in each and every such
case, so long as such Event of Default shall not have been remedied, the Master
Servicer may, or at the
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direction of the Class A-1 Certificate Insurer or of Holders holding a majority
of the Voting Rights, the Master Servicer shall, by notice in writing to the
related Servicer (with a copy to each Rating Agency), terminate all of the
rights and obligations of such Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder; provided, however, that the Master Servicer shall
not be required to give written notice to the related Servicer of the occurrence
of an Event of Default described in clauses (b) through (i) of this Section 7.01
unless and until a Responsible Officer of the Master Servicer has actual
knowledge of the occurrence of such an Event of Default. In the event that a
Responsible Officer of the Master Servicer has actual knowledge of the
occurrence of an event of default described in clause (a) of this Section 7.01,
the Master Servicer shall give written notice to the applicable Servicer of the
occurrence of such an event within one Business Day of the first day on which
such Responsible Officer obtains actual knowledge of such occurrence; provided,
however, that the failure of the Master Servicer to provide such notice within
one Business Day will not affect the rights of the Depositor, the Class A-1
Certificate Insurer or the Certificateholders to provide notice as required
pursuant to clause (a) of this Section 7.01. On and after the receipt by the
applicable Servicer of such written notice, all authority and power of such
Servicer hereunder, whether with respect to the Mortgage Loans serviced by such
Servicer or otherwise, shall pass to and be vested in the Master Servicer. If an
Event of Default described in clause (g) shall occur, and shall not have been
cured at least two (2) Business Days, prior to the related Distribution Date,
the Master Servicer shall, prior to the related Distribution Date, immediately
terminate the rights and obligations of the applicable Servicer hereunder and
the Master Servicer shall succeed to the rights and obligations of such Servicer
hereunder pursuant to Section 7.02, including the obligation to immediately make
any P&I Advances, which the applicable Servicer failed to make subject to
Section 4.01 pursuant to the terms hereof prior to such Distribution Date and
prior to the date that the Securities Administrator is required to give a notice
of claim to the Class A-1 Certificate Insurer. Notwithstanding anything to the
contrary herein, the Class A-1 Certificate Insurer shall have the right to
terminate the Master Servicer as successor Servicer with or without cause upon
30 days notice and appoint a successor Servicer, which may be the terminated
Servicer. Any costs related to the transfer of servicing from the Master
Servicer to such successor Servicer shall be reimbursable by the Trust Fund
subject to the cap on Securities Administrator expenses described in Section
8.05. The Master Servicer is hereby authorized and empowered to execute and
deliver, on behalf of such 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. Unless expressly
provided in such written notice, no such termination shall affect any obligation
of either Servicer to pay amounts owed pursuant to Article VIII. Each Servicer
agrees to cooperate with the Master Servicer in effecting the termination of
such Servicer's responsibilities and rights hereunder, including, without
limitation, the transfer to the Master Servicer of all cash amounts which shall
at the time be credited to the Collection Account of such predecessor Servicer,
or thereafter be received with respect to the Mortgage Loans serviced by such
predecessor Servicer.
Notwithstanding any termination of the activities of a Servicer
hereunder, such Servicer shall be entitled to receive, out of any late
collection of a Scheduled Payment on a Mortgage Loan which was due prior to the
notice terminating such Servicer's rights and obligations as a Servicer
hereunder and received after such notice, that portion thereof to which
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such Servicer would have been entitled pursuant to Section 3.11, and any other
amounts payable to such Servicer hereunder the entitlement to which arose prior
to the termination of its activities hereunder in accordance with Section 3.11
and in the time period specified in Section 3.11. Such Servicer shall continue
to be entitled to the benefits of Section 6.03, notwithstanding any termination
hereunder, with respect to events occurring prior to such termination.
Section 7.02 Master Servicer to Act; Appointment of Successor.
On and after the time the applicable Servicer receives a notice of
termination pursuant to Section 3.24 or Section 7.01, subject to the third
paragraph of this Section 7.02, the Master Servicer shall, unless the Class A-1
Certificate Insurer shall have named an alternative successor Servicer and given
written notice thereof to the Master Servicer of at least 30 days prior to the
effective date of the transfer of servicing to such successor, subject to and to
the extent provided in Section 3.05, be the successor to such Servicer in its
capacity as servicer under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on such Servicer by the terms and provisions
hereof and applicable law including the obligation to make P&I Advances and
Servicing Advances pursuant to Section 4.01, provided, however, that the Class
A-1 Certificate Insurer shall not have the right to name an alternative Servicer
if either (i) a Class A-1 Certificate Insurer Default exists and is continuing,
or (ii) the Class Certificate Balance of the Class A-1 Certificates has been
reduced to zero and there are no remaining outstanding amounts owed to the Class
A-1 Certificate Insurer. As compensation therefor, the Master Servicer shall be
entitled to all funds relating to the Mortgage Loans that the applicable
Servicer would have been entitled to charge to the related Collection Account or
the Distribution Account if such Servicer had continued to act hereunder
including, if such Servicer was receiving the Servicing Fee, the Servicing Fee
and the income on investments or gain related to the related Collection Account
and the Distribution Account.
Notwithstanding the foregoing, if the Master Servicer has become the
successor to a Servicer in accordance with Section 7.01, the Master Servicer
may, if it shall be unwilling to so act, or shall, if it is prohibited by
applicable law from making P&I Advances and Servicing Advances pursuant to
Section 4.01, if it is otherwise unable to so act, or at the direction of
Holders holding a majority of the Voting Rights, appoint, or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution the appointment of which does not adversely affect the then current
rating of the Certificates by each Rating Agency, as the successor to such
Servicer hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of such Servicer hereunder. Any successor to such Servicer
shall be an institution which is a Xxxxxx Mae and FHLMC approved seller/servicer
in good standing, which has a net worth of at least $30,000,000, which is
willing to service the Mortgage Loans and which executes and delivers to the
Depositor and the Trustee an agreement accepting such delegation and assignment,
containing an assumption by such Person of the rights, powers, duties,
responsibilities, obligations and liabilities of such Servicer (other than
liabilities of such Servicer under Section 6.03 incurred prior to termination of
such Servicer under Section 7.01), with like effect as if originally named as a
party to this Agreement; provided that each Rating Agency acknowledges that its
rating of the Certificates in effect immediately prior to such assignment and
delegation will not be qualified or reduced, as a result of such assignment and
delegation. Pending appointment of a successor to a Servicer hereunder, the
Master Servicer,
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unless the Master Servicer is prohibited by law from so acting, shall, subject
to Section 3.05, act in such capacity as hereinabove provided. In connection
with such appointment and assumption, the Master Servicer may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans serviced by such predecessor Servicer as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of the
Servicing Fee Rate and amounts paid to the predecessor Servicer from
investments. The Master Servicer and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Neither the Master Servicer nor any other successor Servicer shall
be deemed to be in default hereunder by reason of any failure to make, or any
delay in making, any distribution hereunder or any portion thereof or any
failure to perform, or any delay in performing, any duties or responsibilities
hereunder, in either case caused by the failure of the predecessor Servicer to
deliver or provide, or any delay in delivering or providing, any cash,
information, documents or records to it. If no successor Servicer meeting such
qualifications shall have been approved by the Depositor within 30 days after
the giving of such notice or resignation, the Master Servicer may petition any
court of competent jurisdiction for the appointment of a successor Servicer
meeting the qualifications set forth in Section 7.02.
Notwithstanding any provision in this Agreement to the contrary, prior
to the 20th day following the notice of termination of a Servicer and with the
consent of the Class A-1 Certificate Insurer (such consent not to be
unreasonably withheld, delayed or conditioned), the terminated Servicer may
appoint a successor Servicer that satisfies the eligibility criteria of a
successor Servicer set forth in this Section 7.02; provided such successor
Servicer agrees to fully effect the servicing transfer within 90 days following
the termination of the predecessor Servicer and to make all P&I Advances and
Servicing Advances that would otherwise be made by the Master Servicer under
this Section 7.02 as of the date of such appointment and prior thereto, the
terminated Servicer makes all P&I Advances and Servicing Advances; otherwise the
Master Servicer shall appoint a successor Servicer as otherwise set forth in
this Section 7.02. Any proceeds received in connection with the appointment of
such successor Servicer shall be the property of the terminated Servicer or its
designee.
Any successor to a Servicer as servicer shall give notice to the
related Mortgagors of such change of servicer and shall, during the term of its
service as servicer, maintain in force the policy or policies that each Servicer
is required to maintain pursuant to Section 3.13.
Section 7.03 Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to a
Servicer, the Securities Administrator shall give prompt written notice thereof
to Certificateholders, the Class A-1 Certificate Insurer, the Unaffiliated
Seller, the Swap Provider and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Securities Administrator shall transmit by mail to all Certificateholders, the
Class A-1 Certificate Insurer, the Unaffiliated Seller, the Swap Provider and
each Rating Agency notice of each such Event of Default hereunder known to the
Securities Administrator, unless such Event of Default shall have been cured or
waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee.
The Trustee, before the occurrence of a Master Servicer Event of
Default and after the curing of Master Servicer Events of Default that may have
occurred, shall undertake to perform such duties and only such duties as are
specifically set forth in this Agreement. In case a Master Servicer Event of
Default has occurred and remains uncured, the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct.
Unless a Master Servicer Event of Default of which a Responsible
Officer of the Trustee has actual knowledge or written notice has occurred and
is continuing,
(a) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of the duties and obligations specifically set
forth in this Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee, and the Trustee 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 and
conforming to the requirements of this Agreement which it believed in good faith
to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken,
suffered, or omitted to be taken by it in good faith in accordance with the
direction of the Class A-1 Certificate Insurer or of the Holders of Certificates
evidencing not less than 25% of the Voting Rights of Certificates relating to
the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee under this Agreement; and
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(d) none of the provisions contained in this Agreement shall in any
event require the Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Master Servicer under this
Agreement except during such time, if any, as the Trustee shall be the successor
to, and be vested with the rights, duties, powers and privileges of, the Master
Servicer in accordance with the terms of this Agreement.
Section 8.02 Certain Matters Affecting the Trustee and the Custodian.
Except as otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, 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 and the Trustee shall have no responsibility to
ascertain or confirm the genuineness of any signature of any such party or
parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(c) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document, unless requested in writing to do so by the Class A-1 Certificate
Insurer or by the Holders of Certificates evidencing not less than 25% of the
Voting Rights allocated to each Class of Certificates; provided, however, that
if the payment within a reasonable time to the Trustee 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, not assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require indemnity
satisfactory to the Trustee against such cost, expense or liability as a
condition to taking any such action;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own funds
or otherwise incur any financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers hereunder if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it;
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(g) the Trustee shall not be liable for any loss on any investment of
funds pursuant to this Agreement;
(h) except as otherwise provided in Section 7.01 or if a Responsible
Officer of the Trustee has actual knowledge or written notice of the occurrence
of a Master Servicer Event of Default, the Trustee shall not be deemed to have
knowledge of a Master Servicer Event of Default until a Responsible Officer of
the Trustee shall have received written notice thereof;
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby;
(j) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act;
(k) the Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the powers granted
hereunder; and
(l) the Custodian shall be entitled to the same protections,
immunities and indemnities afforded the Trustee in and under this Agreement.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken
as the statements of the Depositor and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document other than with respect solely as to the Trustee's execution of
the Certificates. The Trustee shall not be accountable for the use or
application by the Depositor, the Master Servicer, the Securities Administrator
or any Servicer of any funds paid to the Depositor, the Master Servicer, the
Securities Administrator or any Servicer in respect of the Mortgage Loans or
deposited in or withdrawn from the Distribution Account or any Collection
Account by the Depositor, the Master Servicer, the Securities Administrator or
any Servicer.
The Trustee, the Securities Administrator, and the Master Servicer
shall have no responsibility for filing or recording 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 (unless the Master Servicer (or the Trustee as successor Master
Servicer) shall have become the successor Servicer).
Section 8.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights as it would have if it
were not the Trustee.
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Section 8.05 Trustee's and Custodian's Fees and Expenses.
(a) As compensation for its activities under this Agreement, the
Trustee shall be paid its fee by the Securities Administrator from the
Securities Administrator's own funds pursuant to a separate fee schedule and
shall have no lien on the Trust Fund for the payment of such fees. The Trustee
and any director, officer, employee, or agent of the Trustee shall be
indemnified by the Servicers against any loss, liability, or expense (including
reasonable attorney's fees) resulting from any failure by the Servicers to
perform their obligations under this Agreement. This indemnity shall survive the
termination of this Agreement or the resignation or removal of the Trustee and
the Custodian, as applicable, under this Agreement.
(b) On each Distribution Date, the Custodian shall be paid its fee by
the Securities Administrator from the Securities Administrator's own funds
pursuant to a separate fee schedule and shall have no lien on the Trust Fund for
the payment of such fees. The Custodian and any director, officer, employee or
agent of the Custodian shall be indemnified by the Servicers against any loss,
liability or expense (including reasonable attorney's fees) resulting from any
failure by the Servicers to perform their obligations under this Agreement. This
indemnity shall survive the termination of this Agreement or the resignation or
removal of the Custodian under this Agreement.
(c) Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust Fund in the Certificates is made and intended not
as a personal undertaking or agreement by the Trustee but is made and intended
for the purpose of binding only the Trust Fund.
Section 8.06 Eligibility Requirements for the Trustee.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of a state or the United
States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by federal or state authority and with a credit
rating which would not cause any of the Rating Agencies to reduce their
respective then current ratings of the Certificates (or having provided such
security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with this
Section 8.06, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.07. The entity serving as Trustee may have normal
banking and trust relationships with the Depositor and its affiliates or the
Servicers and their affiliates; provided, however, that such entity cannot be an
affiliate of the Depositor, the Unaffiliated Seller or the Servicers other than
the Trustee as Master Servicer who may become a successor to the Servicers.
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Section 8.07 Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Servicers, the Custodian, the Unaffiliated Seller, the Securities Administrator,
the Class A-1 Certificate Insurer, the Master Servicer and each Rating Agency
not less than 60 days before the date specified in such notice, when, subject to
Section 8.08, such resignation is to take effect, and acceptance by a successor
trustee in accordance with Section 8.08 meeting the qualifications set forth in
Section 8.06. If no successor trustee meeting such qualifications shall have
been so appointed and have accepted appointment within 30 days after the giving
of such notice or resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.06 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor may remove the Trustee and appoint a
successor trustee reasonably acceptable to the Class A-1 Certificate Insurer by
written instrument, in triplicate, one copy of which shall be delivered to the
Trustee, one copy to each Servicer, one copy to the Master Servicer and one copy
to the successor trustee.
The Class A-1 Certificate Insurer or the Holders of Certificates
entitled to at least a majority of the Voting Rights may at any time remove the
Trustee and appoint a successor trustee by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which shall be delivered by the successor Trustee to each
Servicer, one complete set to the Trustee so removed and one complete set to the
successor so appointed. The successor trustee shall notify each Rating Agency of
any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.08.
Section 8.08 Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor and to its predecessor trustee
and each Servicer an instrument accepting such appointment hereunder and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor, each Servicer, the Class A-1 Certificate
Insurer, the Securities Administrator and the predecessor trustee shall execute
and deliver such instruments and do such
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other things as may reasonably be required for more fully and certainly vesting
and confirming in the successor trustee all such rights, powers, duties, and
obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 8.09 Merger or Consolidation of the Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder; provided that such corporation shall be eligible under
Section 8.06 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 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, each Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee 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 Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as each
Servicer and the Trustee may consider appropriate. If a Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
to do so, or in the case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this Section
8.10, all rights, powers, duties and obligations conferred or imposed upon the
Trustee (except for the obligation of the Trustee as successor Master Servicer
under this Agreement to advance funds), shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is not
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authorized to act separately without the Trustee joining in such act), 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 applicable Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction of
the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Master Servicer, shall be liable for
the payment of reasonable compensation and expenses to any such separate trustee
or co-trustee on each Distribution Date.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the 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 and indemnity to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to the Servicers and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Tax Matters.
As set forth in the Preliminary Statement, the assets within the Trust
Fund for which any REMIC election is to be made shall constitute, and the
conduct of matters relating to such assets shall be consistent with the
treatment of such assets as, a REMIC. To this end, the Securities Administrator
covenants and agrees to act as agent (and the Securities Administrator is hereby
appointed to act as agent) on behalf of any REMIC created hereunder, and that in
such capacity it shall:
(a) prepare and file in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit Income Tax Return (Form 1066 or any successor form adopted by
the
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Internal Revenue Service) and prepare and file with the Internal Revenue Service
and applicable state or local tax authorities income tax or information returns
for each taxable year with respect to any REMIC described in the Preliminary
Statement containing such information and at the times and in the manner as may
be required by the Code or state or local tax laws, regulations, or rules, and
furnish to Certificateholders the schedules, statements or information at such
times and in such manner as may be required thereby;
(b) within thirty days of the Closing Date, furnish to the Internal
Revenue Service on Form 8811 or as otherwise may be required by the Code, the
name, title, address, and telephone number of the person that the Holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the Code;
(c) make an election that each of REMIC I, REMIC II, REMIC III, REMIC
IV and REMIC V be treated as a REMIC on the federal tax return for its first
taxable year (and, if necessary, under applicable state law);
(d) prepare and forward to the Certificateholders and to the Internal
Revenue Service and, if necessary, state tax authorities, all information
returns and reports as and when required to be provided to them in accordance
with the REMIC Provisions, including the calculation of any original issue
discount using the prepayment assumption (as described in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is a Non-Permitted
Transferee, or an agent (including a broker, nominee or other middleman) of a
Non-Permitted Transferee, or a pass-through entity in which a Non-Permitted
Transferee is the record holder of an interest (the reasonable cost of computing
and furnishing such information may be charged to the Person liable for such
tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so as
to maintain the status of any REMIC created hereunder as a REMIC under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take any
action that would cause the termination of the REMIC status of any REMIC created
hereunder;
(h) pay, from the sources specified in the last paragraph of this
Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on any REMIC created hereunder
before its termination when and as the same shall be due and payable (but such
obligation shall not prevent the Securities Administrator or any other
appropriate Person from contesting any such tax in appropriate proceedings and
shall not prevent the Securities Administrator from withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings);
(i) cause federal, state or local income tax or information returns to
be signed by the Trustee or the Securities Administrator or such other person as
may be required to sign such returns by the Code or state or local laws,
regulations or rules;
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(j) maintain records relating to each REMIC created hereunder,
including the income, expenses, assets, and liabilities thereof on a calendar
year basis and on the accrual method of accounting and the fair market value and
adjusted basis of the assets determined at such intervals as may be required by
the Code, as may be necessary to prepare the foregoing returns, schedules,
statements or information; and
The Holder of the largest Percentage Interest of the Class R
Certificates shall act as Tax Matters Person for REMIC I, REMIC II, REMIC III,
REMIC IV and REMIC V, within the meaning of Treasury regulations section
1.860F-4(d), and the Securities Administrator is hereby designated as agent of
such Certificateholder for such purpose (or if the Securities Administrator is
not so permitted, such Holder shall be the Tax Matters Person in accordance with
the REMIC Provisions). In such capacity, the Securities Administrator shall, as
and when necessary and appropriate, represent each REMIC created hereunder in
any administrative or judicial proceedings relating to an examination or audit
by any governmental taxing authority, request an administrative adjustment as to
any taxable year of each REMIC created hereunder, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of any REMIC created hereunder, and
otherwise act on behalf of the REMIC in relation to any tax matter or
controversy involving it.
The Securities Administrator shall treat the rights of the Class P
Certificateholders to Prepayment Charges as the beneficial ownership of
interests in a grantor trust, and not as an obligation of any REMIC created
hereunder, for federal income tax purposes.
To enable the Securities Administrator to perform its duties under
this Agreement, the Depositor shall provide to the Securities Administrator
within ten days after the Closing Date all information or data that the
Securities Administrator requests in writing and determines to be relevant for
tax purposes to the valuations and offering prices of the Certificates,
including the price, yield, prepayment assumption, and projected cash flows of
the Certificates and the Mortgage Loans. Moreover, the Depositor shall provide
information to the Securities Administrator concerning the value to each Class
of Certificates of the right to receive Basis Risk Carry Forward Amounts from
the Excess Reserve Fund Account and the Swap Account. Thereafter, the Depositor
shall provide to the Securities Administrator promptly upon written request
therefor any additional information or data that the Securities Administrator
may, from time to time, reasonably request to enable the Securities
Administrator to perform its duties under this Agreement. The Depositor hereby
indemnifies the Securities Administrator for any losses, liabilities, damages,
claims, or expenses of the Securities Administrator arising from any errors or
miscalculations of the Securities Administrator that result from any failure of
the Depositor to provide, or to cause to be provided, accurate information or
data to the Securities Administrator on a timely basis.
If any tax is imposed on "prohibited transactions" of any REMIC
created hereunder as defined in Section 860F(a)(2) of the Code, on the "net
income from foreclosure property" of such REMIC as defined in Section 860G(c) of
the Code, on any contribution to the REMIC after the Startup Day pursuant to
Section 860G(d) of the Code, or any other tax is imposed, including any minimum
tax imposed on the REMIC pursuant to Sections 23153 and 24874 of the California
Revenue and Taxation Code, if not paid as otherwise provided for herein, the tax
shall be paid by (i) the Master Servicer or the Securities Administrator if such
tax
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arises out of or results from negligence of the Securities Administrator in the
performance of any of its obligations under this Agreement, (ii) the applicable
Servicer if such tax arises out of or results from a breach by such Servicer of
any of its obligations under this Agreement, (iii) the Unaffiliated Seller shall
pay if such tax arises out of or results from the Unaffiliated Seller's
obligation to repurchase a Mortgage Loan pursuant to Section 2.03, or (iv) in
all other cases, or if the Master Servicer, the Securities Administrator, a
Servicer or the Unaffiliated Seller fails to honor its obligations under the
preceding clauses (i), (ii) or (iii), any such tax will be paid with amounts
otherwise to be distributed to the Certificateholders, as provided in Section
4.02(a).
Section 8.12 Periodic Filings.
(a) The Trustee, Securities Administrator and each Servicer shall
reasonably cooperate with the Depositor in connection with the Trust's
satisfying the reporting requirements under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"). The Securities Administrator shall prepare on
behalf of the Trust any Forms 8-K and 10-K customary for similar securities as
required by the Exchange Act and the Rules and Regulations of the Securities and
Exchange Commission thereunder, and the Securities Administrator shall file (via
the Securities and Exchange Commission's Electronic Data Gathering and Retrieval
System) such Forms with the SEC on behalf of the Depositor. The Depositor hereby
grants to the Securities Administrator a limited power of attorney to execute
and file execute and file each such Form 8-K but only to the extent no
accompanying certification is required to be filed on behalf of the Depositor.
Such power of attorney shall continue until either the earlier of (i) receipt by
the Securities Administrator from the Depositor of written termination of such
power of attorney and (ii) the termination of the Trust. The Depositor shall
execute the Form 10-K. The Securities Administrator shall have no liability with
respect to any failure to properly prepare or file such periodic reports
resulting from or relating to the Securities Administrator's inability or
failure to obtain any information not resulting from its own negligence or
willful misconduct.
(b) Each Form 8-K shall be filed by the Securities Administrator
within 15 days after each Distribution Date, including a copy of the statement
to the Certificateholders for such Distribution Date as an exhibit thereto.
Prior to March 30th of each year (or such earlier date as may be required by the
Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission), the Securities Administrator shall file a Form 10-K, in substance
as required by applicable law or applicable Securities and Exchange Commission
staff's interpretations. Such Form 10-K shall include as exhibits each
Servicer's annual statement of compliance described under Section 3.22 (upon
which the Securities Administrator may rely) and the accountant's report
described under Section 3.23, in each case to the extent they have been timely
delivered to the Securities Administrator. If they are not so timely delivered,
the Securities Administrator shall file an amended Form 10-K including such
documents as exhibits reasonably promptly after they are delivered to the
Securities Administrator. The Securities Administrator shall have no liability
with respect to any failure to properly prepare or file such periodic reports
resulting from or relating to the Securities Administrator's inability or
failure to obtain any information not resulting from its own negligence, willful
misconduct or bad faith. The Form 10-K shall also include a certification in the
form attached hereto as Exhibit L, with such changes as may be necessary or
appropriate as a result of changes promulgated by the Securities and Exchange
Commission (the "Certification"), which shall, except as described
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below, be signed by the senior officer of the Depositor in charge of
securitization. The Securities Administrator shall prepare and deliver each Form
10-K to the Depositor for execution no later than March 20th (or if such day is
not a Business Day, the immediately preceding Business Day) of each year. The
Depositor shall return the executed Form 10-K to the Securities Administrator
for filing no later than March 25th (or if such day is not a Business Day, the
immediately preceding Business Day) of each year.
(c) Notwithstanding that the Certification is to be signed by an
officer of the Depositor, the Securities Administrator shall sign a
certification (in the form attached hereto as Exhibit M, with such changes as
may be necessary or appropriate as a result of changes promulgated by the
Securities and Exchange Commission) for the benefit of the Depositor and its
officers, directors and Affiliates in respect of items 1 through 3 thereof of
the Certification (provided, however, that the Securities Administrator shall
not undertake an analysis of the accountant's report attached as an exhibit to
the Form 10-K), and each Servicer shall sign a certification solely with respect
to such Servicer (in the form attached hereto as Exhibit N, with such changes as
may be necessary or appropriate as a result of changes promulgated by the
Securities and Exchange Commission) for the benefit of the Depositor, the
Securities Administrator and their respective officers, directors and Affiliates
in respect of items 4 and 5 of the Certification. Each such certification shall
be delivered to the Depositor and the Securities Administrator, as applicable,
no later than March 15th of each year (or if such day is not a Business Day, the
immediately preceding Business Day) and the Depositor shall deliver the
Certification to be filed to the Securities Administrator no later than March
20th of each year (or if such day is not a Business Day, the immediately
preceding Business Day). In the event that prior to the filing date of the Form
10-K in March of each year, the Securities Administrator or any Servicer has
actual knowledge of information material to the Certification, that party shall
promptly notify the Depositor and each of the other parties signing the
certifications. In addition, (i) the Securities Administrator shall indemnify
and hold harmless the Depositor and its officers, directors, employees, agents
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 any breach of the
Securities Administrator's obligations under this Section 8.12(c) or the
Securities Administrator's negligence, bad faith or willful misconduct in
connection therewith, and (ii) each Servicer, severally and not jointly, shall
indemnify and hold harmless the Depositor, the Securities Administrator, the
Master Servicer and their respective officers, directors, employees, agents 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 any breach of the applicable
Servicer's obligations under this Section 8.12(c) or any material misstatement
or omission, negligence, bad faith or willful misconduct of such Servicer in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless any indemnified party, then (i) the Securities
Administrator agrees in connection with a breach of the Securities
Administrator's obligations under this Section 8.12(c) or the Securities
Administrator's negligence, bad faith or willful misconduct in connection
therewith that it shall contribute to the amount paid or payable by the
Depositor as a result of the losses, claims, damages or liabilities of the
Depositor in such proportion as is appropriate to reflect the relative fault of
the Depositor on the one hand and the Securities Administrator on the other and
(ii) each Servicer agrees that it shall contribute to the amount paid or payable
by such indemnified party as a result of the losses, claims, damages or
liabilities of such indemnified
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party in such proportion as is appropriate to reflect the relative fault of such
indemnified party, on the one hand, and such Servicer, on the other hand, in
connection with a breach of the Servicers' obligations under this Section
8.12(c) or any material misstatement or omission, negligence, bad faith or
willful misconduct of such Servicer in connection therewith.
(d) Upon any filing with the Securities and Exchange Commission, the
Securities Administrator shall promptly deliver to the Depositor a copy of any
such executed report, statement or information.
(e) Prior to January 30 of the first year in which the Securities
Administrator is able to do so under applicable law, the Securities
Administrator shall file a Form 15 Suspension Notification with respect to the
Trust.
Section 8.13 Tax Classification of the Supplemental Interest Account,
the Excess Reserve Fund Account and the Swap Account.
For federal income tax purposes, the Securities Administrator shall
treat each of the Supplemental Interest Account, the Excess Reserve Fund Account
and the Swap Account as an outside reserve fund, within the meaning of Treasury
Regulation Section 1.860G-2(h), that is beneficially owned by the holder of the
Class X Certificate. The Securities Administrator shall treat the rights that
each Class of LIBOR Certificates has to receive payments of Basis Risk Carry
Forward Amounts from the Excess Reserve Fund Account and the Swap Account as
rights to receive payments under a notional principal contract written by the
Class X Certificateholder in favor of each Class. Accordingly, each Class of
Certificates (excluding the Class X, Class P and Class R Certificates) will be
comprised of two components - a REMIC V Regular Interest and an interest in a
notional principal contract. The Securities Administrator shall allocate the
issue price for a Class of Certificates between such two components for purposes
of determining the issue price of the REMIC V Regular Interest component based
on information received from the Depositor.
Section 8.14 Interest Rate Swap Agreement.
The Securities Administrator is hereby authorized and directed to
execute and deliver the Interest Rate Swap Agreement not in its individual
capacity but solely on behalf of the Supplemental Interest Trust of the Trust
and to acknowledge the provisions thereof. The Securities Administrator is
directed to administer the Swap Agreement in accordance with the terms thereof
and hereof. The Securities Administrator shall not enter into any amendment to
the Swap Agreement without the prior written consent of the Class A-1
Certificate Insurer so long as any Class A-1 Certificates are outstanding or any
amounts are owed to the Class A-1 Certificate Insurer. In the event that the
Swap Provider fails to make a payment as required pursuant to the Swap
Agreement, the Securities Administrator shall make a demand for such payment
from the guarantor of the Swap Agreement.
ARTICLE IX
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ADMINISTRATION OF THE MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of the
Servicers' Obligations. (a) In addition to the other duties of the Master
Servicer set forth in this Agreement, the Master Servicer, on behalf of the
Trustee, the Securities Administrator, the Depositor, the Class A-1 Certificate
Insurer and the Certificateholders, shall monitor the performance of the
Servicers under this Agreement, and (except as set forth below) shall use its
reasonable good faith efforts to cause the Servicers to duly and punctually
perform their duties and obligations hereunder as applicable. Upon the
occurrence of an Event of Default of which a Responsible Officer of the Master
Servicer has actual knowledge, the Master Servicer shall promptly notify the
Securities Administrator, the Class A-1 Certificate Insurer and the Trustee and
shall specify in such notice the action, if any, the Master Servicer plans to
take in respect of such default. So long as an Event of Default shall occur and
be continuing, the Master Servicer shall take the actions specified in Article
VII.
(b) The Master Servicer shall bear the costs of monitoring the
Servicers as required hereunder. The costs associated with (i) termination of
any Servicer, (ii) the appointment of a successor servicer or (iii) the transfer
to and assumption of, the servicing by the Master Servicer) shall be paid by the
terminated Servicer. In the event the full costs associated with the transition
of servicing responsibilities to the Master Servicer are not paid for by the
predecessor or successor Servicer (provided such successor Servicer is not the
Master Servicer), such costs shall be paid by the Trust Fund.
(c) If the Master Servicer assumes the servicing with respect to any
of the Mortgage Loans, it will not assume liability for the representations and
warranties of any Servicer it replaces or for any errors or omissions of such
Servicer.
(d) Neither the Depositor nor the Securities Administrator shall
consent to the assignment by any Servicer of such Servicer's rights and
obligations under the Agreement without the prior written consent of the Master
Servicer, the Class A-1 Certificate Insurer and the Depositor, which consent, in
the case of the Depositor, shall not be unreasonably withheld.
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance. (a) 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, directors, 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 9.03 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the Depositor, the
Securities Administrator and the Trustee, for the benefit of the
Certificateholders, as of the Closing Date that:
(i) it is a banking association organized under the laws of the United
States of America, validly existing and in good standing under the laws of
the United States of
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America, and as Master Servicer has full power and authority to transact
any and all business contemplated by this Agreement and to execute, deliver
and comply with its obligations under the terms of this Agreement, the
execution, delivery and performance of which have been duly authorized by
all necessary corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it is bound
or to which any of its assets are subject, which violation, default or
breach would materially and adversely affect the Master Servicer's ability
to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights in general, and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any order
or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency to the extent that any such default would
materially and adversely affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any agreement or
instrument or subject to any charter provision, bylaw or any other
corporate restriction or any judgment, order, writ, injunction, decree, law
or regulation that may materially and adversely affect its ability as
Master Servicer to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this Agreement
or the performance by the Master Servicer of its obligations under this
Agreement;
(vi) no litigation is pending or, to the best of the Master Servicer's
knowledge, threatened against the Master Servicer which would prohibit its
entering into this Agreement or performing its obligations under this
Agreement;
(vii) [Reserved];
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master Servicer
with this Agreement or the
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consummation of the transactions contemplated by this Agreement, except for
such consents, approvals, authorizations and orders (if any) as have been
obtained; and
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer.
(b) It is understood and agreed that the representations and
warranties set forth in this Section shall survive the execution and delivery of
this Agreement. The Master Servicer shall indemnify the Depositor, Securities
Administrator, the Trustee, the Class A-1 Certificate Insurer and the Trust and
hold them harmless against any loss, damages, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and other reasonable costs
and expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a material breach of the Master Servicer's
representations and warranties contained in Section 9.03(a) above. It is
understood and agreed that the enforcement of the obligation of the Master
Servicer set forth in this Section 9.03 to indemnify the Depositor, Securities
Administrator, the Trustee, the Class A-1 Certificate Insurer and the Trust
constitutes the sole remedy of the Depositor and the Trustee, respecting a
breach of the foregoing representations and warranties. Such indemnification
shall survive any termination of the Master Servicer as Master Servicer
hereunder and any termination of this Agreement.
Any cause of action against the Master Servicer relating to or arising
out of the breach of any representations and warranties made in this Section
shall accrue upon discovery of such breach by either the Depositor, the Master
Servicer, Securities Administrator, Class A-1 Certificate Insurer or the Trustee
or notice thereof by any one of such parties to the other parties.
Section 9.04 Master Servicer Events of Default. Each of the following
shall constitute a "Master Servicer Event of Default":
(a) any failure by the Master Servicer to remit to the Securities
Administrator for deposit in the Distribution Account any payment received by it
from any Servicer or required to be made by the Master Servicer under the terms
of this Agreement which continues unremedied for a period of two (2) 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 by any other
party hereto;
(b) failure by the Master Servicer to duly observe or perform, in any
material respect, any other covenants, obligations or agreements of the Master
Servicer as set forth in this Agreement which failure continues unremedied for a
period of thirty (30) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the Master
Servicer by the Class A-1 Certificate Insurer or the Trustee or to the Master
Servicer and Trustee by the holders of Certificates evidencing at least 25% of
the Voting Rights;
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
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Servicer and such decree or order shall have remained in force, undischarged or
unstayed for a period of sixty (60) days;
(d) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Master Servicer or relating to all or
substantially all of its property;
(e) the Master Servicer shall admit in writing its inability to pay
its debts as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations for
three (3) Business Days;
(f) Except as otherwise set forth herein, the Master Servicer attempts
to assign this Agreement or its responsibilities hereunder or to delegate its
duties hereunder (or any portion thereof) without the consent of the Trustee,
Securities Administrator and the Depositor; or
(g) the indictment of the Master Servicer for the taking of any action
by the Master Servicer, any employee thereof, any Affiliate or any director or
employee thereof that constitutes fraud or criminal activity in the performance
of its obligations under this Agreement, in each case, where such indictment
materially and adversely affects the ability of the Master Servicer to perform
its obligations under this Agreement (subject to the condition that such
indictment is not dismissed within ninety (90) days).
In each and every such case, so long as a Master Servicer Event of
Default shall not have been remedied, in addition to whatever rights the
Securities Administrator may have at law or equity to damages, including
injunctive relief and specific performance, the Securities Administrator, by
notice in writing to the Master Servicer, may, and at the direction of the Class
A-1 Certificate Insurer or the Holders of Certificates representing at least 51%
of the Voting Rights (with the consent of the Class A-1 Certificate Insurer),
shall, terminate with cause all the rights and obligations of the Master
Servicer under this Agreement.
Upon receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer under this Agreement, shall pass to
and be vested in any successor master servicer appointed hereunder which accepts
such appointments. Upon written request from the Trustee or the Depositor, the
Master Servicer shall prepare, execute and deliver to the successor entity
designated by the Trustee and acceptable to the Class A-1 Certificate Insurer
any and all documents and other instruments related to the performance of its
duties hereunder as the Master Servicer and, place in such successor's
possession all such documents with respect to the master servicing of the
Mortgage Loans and do or cause to be done all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, at the Master
Servicer's sole expense. The Master Servicer shall cooperate with the Trustee
and such successor master servicer in effecting the termination of the Master
Servicer's responsibilities and rights hereunder, including without limitation,
the transfer to such successor master servicer for administration by it of all
cash amounts which shall at the time be credited to the Distribution Account or
are thereafter received with respect to the Mortgage Loans.
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Section 9.05 Waiver of Default. By a written notice, the Trustee may,
with the consent of a Holders of Certificates evidencing at least 51% of the
Voting Rights (with the consent of the Class A-1 Certificate Insurer) and, at
the direction of the Class A-1 Certificate Insurer shall waive any default by
the Master Servicer in the performance of its obligations hereunder and its
consequences. Upon any waiver of a past default, such default shall cease to
exist, and any Master Servicer Event of Default arising therefrom shall be
deemed to have been remedied for every purpose of this Agreement. No such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon except to the extent expressly so waived.
Section 9.06 Successor to the Master Servicer. Upon termination of the
Master Servicer's responsibilities and duties under this Agreement, the Trustee
shall appoint a successor, which shall succeed to all rights and assume all of
the responsibilities, duties and liabilities of the Master Servicer under this
Agreement, except liabilities incurred by the terminated Master Servicer (unless
such terminated Master Servicer is the Trustee) for which the terminated Master
Servicer shall still be responsible. Any successor shall be a Xxxxxx Xxx and
Xxxxxxx Mac approved servicer in good standing and acceptable to the Depositor,
the Class A-1 Certificate Insurer and the Rating Agencies. In connection with
such appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that in no event shall the master
servicing fee paid to such successor master servicer exceed the Securities
Administrator and Master Servicer Fee paid to the Master Servicer hereunder. In
the event that the Master Servicer's duties, responsibilities and liabilities
under this Agreement are terminated, the Master Servicer shall continue to
discharge its duties and responsibilities hereunder until the effective date of
such termination with the same degree of diligence and prudence which it is
obligated to exercise under this Agreement and shall take no action whatsoever
that might impair or prejudice the rights of its successor. The termination of
the Master Servicer shall not become effective until a successor shall be
appointed pursuant hereto and shall in no event (i) relieve the Master Servicer
of responsibility for the representations and warranties made pursuant to
Section 9.03(a) hereof and the remedies available to the Trustee under Section
9.03(b) hereof, it being understood and agreed that the provisions of Section
9.03 hereof shall be applicable to the Master Servicer notwithstanding any such
sale, assignment, resignation or termination of the Master Servicer or the
termination of this Agreement; or (ii) affect the right of the Master Servicer
to receive payment and/or reimbursement of any amounts accruing to it hereunder
prior to the date of termination (or during any transition period in which the
Master Servicer continues to perform its duties hereunder prior to the date the
successor master servicer fully assumes its duties).
If no successor Master Servicer has accepted its appointment within 90
days of the time the Trustee receives the resignation of the Master Servicer,
the Trustee shall become the successor Master Servicer in all respects under
this Agreement until another successor Master Servicer is appointed, and shall
have all the rights and powers and be subject to all the responsibilities,
duties and liabilities, except liabilities incurred by the terminated Master
Servicer (unless such terminated Master Servicer is the Trustee) for which the
terminated Master Servicer shall still be responsible, including the obligation
to make P&I Advances; provided, however, that any failure to perform any duties
or responsibilities caused by the Master Servicer's failure to provide
information required by this Agreement shall not be considered a default by the
Trustee hereunder. In the Trustee's capacity as such successor Master Servicer,
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the Trustee shall have the same limitations on liability herein granted to the
Master Servicer. As compensation therefor, the Trustee shall be entitled to
receive the compensation, reimbursement and indemnities otherwise payable to the
Master Servicer, including the fees and other amounts payable pursuant to
Section 9.07 hereof.
Any successor master servicer appointed as provided herein, shall
execute, acknowledge and deliver to the predecessor Master Servicer, the Class
A-1 Certificate Insurer and to the Trustee an instrument accepting such
appointment, wherein the successor shall make the representations and warranties
set forth in Section 9.03 hereof, and whereupon such successor shall become
fully vested with all of the rights, powers, duties, responsibilities,
obligations and liabilities of the Master Servicer, with like effect as if
originally named as a party to this Agreement. Any termination or resignation of
the Master Servicer or termination of this Agreement shall not affect any claims
that the Trustee may have against the Master Servicer arising out of the Master
Servicer's actions or failure to act prior to any such termination or
resignation or in connection with the Trustee's assumption of such obligations,
duties and responsibilities.
Upon a successor's acceptance of appointment as such, the Master
Servicer shall notify by mail the Trustee and the Class A-1 Certificate Insurer
of such appointment.
Section 9.07 Compensation of the Master Servicer. As compensation for
its activities under this Agreement, the Master Servicer shall be paid the
Securities Administrator and Master Servicer Fee.
Section 9.08 Merger or Consolidation. Any Person into which the Master
Servicer may be merged or consolidated, or any Person resulting from any merger,
conversion, other change in form or consolidation to which the Master Servicer
shall be a party, or any Person succeeding to the business of the Master
Servicer, shall be the successor to the Master Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided,
however, that the successor or resulting Person to the Master Servicer shall (i)
be a Person (or have an Affiliate) that is qualified and approved to service
mortgage loans for Xxxxxx Xxx and FHLMC (provided further that a successor
Master Servicer that satisfies subclause (i) through an Affiliate agrees to
service the Mortgage Loans in accordance with all applicable Xxxxxx Mae and
FHLMC guidelines) and (ii) have a net worth of not less than $25,000,000.
Section 9.09 Resignation of the Master Servicer. Except as otherwise
provided in Sections 9.08 and 9.10 hereof, the Master Servicer shall not resign
from the obligations and duties hereby imposed on it unless the Master
Servicer's duties hereunder are no longer permissible under applicable law or
are in material conflict by reason of applicable law with any other activities
carried on by it and cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of Counsel
that shall be independent to such effect delivered to the Trustee and the Class
A-1 Certificate Insurer. No such resignation shall become effective until the
Trustee shall have assumed, or a successor master servicer satisfactory to the
Trustee, the Class A-1 Certificate Insurer and the Depositor shall have assumed,
the Master Servicer's responsibilities and obligations under this Agreement.
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Notice of such resignation shall be given promptly by the Master Servicer and
the Depositor to the Trustee.
If at any time, JPMorgan Chase Bank, National Association, as Master
Servicer, resigns under this Section 9.09, or is removed as Master Servicer
pursuant to Section 9.04, then at such time JPMorgan Chase Bank, National
Association shall also resign (and shall be entitled to resign) as Securities
Administrator under this Agreement.
Section 9.10 Assignment or Delegation of Duties by the Master
Servicer. Except as expressly provided herein, the Master Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer; provided, however, that the Master Servicer
shall have the right with the prior written consent of the Depositor (which
shall not be unreasonably withheld or delayed) and the Class A-1 Certificate
Insurer, and upon delivery to the Trustee, the Securities Administrator, the
Class A-1 Certificate Insurer and the Depositor of a letter from each Rating
Agency to the effect that such action shall not result in a downgrade of the
ratings assigned to any of the Certificates, to delegate or assign to or
subcontract with or authorize or appoint any qualified Person to perform and
carry out any duties, covenants or obligations to be performed and carried out
by the Master Servicer hereunder. Notice of such permitted assignment shall be
given promptly by the Master Servicer to the Depositor, the Securities
Administrator, the Class A-1 Certificate Insurer and the Trustee. If, pursuant
to any provision hereof, the duties of the Master Servicer are transferred to a
successor master servicer, the entire compensation payable to the Master
Servicer pursuant hereto shall thereafter be payable to such successor master
servicer but in no event shall the fee payable to the successor master servicer
exceed that payable to the predecessor master servicer.
Section 9.11 Limitation on Liability of the Master Servicer. Neither
the Master Servicer nor any of the directors, officers, employees or agents of
the Master Servicer shall be under any liability to the Trustee, Securities
Administrator, the Servicers or the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Master Servicer or any such person against any liability
that would otherwise be imposed by reason of willful malfeasance, bad faith or
negligence in the performance of its duties or by reason of reckless disregard
for its obligations and duties under this Agreement. The Master Servicer and any
director, officer, employee or agent of the Master Servicer may rely in good
faith on any document prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Master Servicer shall be under no
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties as Master Servicer with respect to the Mortgage Loans
under this Agreement and that in its opinion may involve it in any expenses or
liability; provided, however, that the Master Servicer may in its sole
discretion undertake any such action that it may deem necessary or desirable in
respect to this Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom, shall
be liabilities of the Trust Fund, and the Master Servicer shall be entitled to
be reimbursed therefor out of the Master Servicer Account in accordance with the
provisions of Section 9.07 and Section 9.12.
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The Master Servicer shall not be liable for any acts or omissions of
any Servicer except to the extent that damages or expenses are incurred as a
result of such act or omissions and such damages and expenses would not have
been incurred but for the negligence, willful malfeasance, bad faith or
recklessness of the Master Servicer in supervising, monitoring and overseeing
the obligations of the Servicers as required under this Agreement.
Section 9.12 Indemnification; Third Party Claims. The Master Servicer
agrees to indemnify the Depositor, each Servicer, the Trustee, the Class A-1
Certificate Insurer, the Custodian, the Securities Administrator and the Trust
Fund, and hold them harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, liability, fees and expenses that the Depositor, such Servicer, the
Trustee, the Class A-1 Certificate Insurer, the Custodian, the Securities
Administrator or the Trust Fund may sustain as a result of the Master Servicer's
willful malfeasance, bad faith or negligence in the performance of its duties
hereunder or by reason of its reckless disregard for its obligations and duties
under this Agreement. The Depositor, Securities Administrator, the applicable
Servicer, the Class A-1 Certificate Insurer, the Custodian and the Trustee shall
immediately notify the Master Servicer if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans which would entitle the
Depositor, such Servicer, the Trustee, the Securities Administrator, the Class
A-1 Certificate Insurer, the Custodian or the Trust Fund to indemnification
under this Section 9.12, whereupon the Master Servicer shall assume the defense
of any such claim and pay all expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or them in respect of such claim.
The Master Servicer agrees to indemnify and hold harmless the Trustee
from and against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liability, fees
and expenses (including reasonable attorneys' fees) that the Trustee may sustain
as a result of such liability or obligations of the Master Servicer and in
connection with the Trustee's assumption (not including the Trustee's
performance, except to the extent that costs or liability of the Trustee are
created or increased as a result of negligent or wrongful acts or omissions of
the Master Servicer prior to its replacement as Master Servicer) of the Master
Servicer's obligations, duties or responsibilities under such agreement.
The Trust Fund will indemnify the Master Servicer and hold it harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that the Master Servicer may incur or sustain in connection with,
arising out of or related to this Agreement or the Certificates, except to the
extent that any such loss, liability or expense is related to (i) a material
breach of the Master Servicer's representations and warranties in this Agreement
or (ii) the Master Servicer's willful malfeasance, bad faith or negligence or by
reason of its reckless disregard of its duties and obligations under any such
agreement; provided that any such loss, liability or expense constitutes an
"unanticipated expense incurred by the REMIC" within the meaning of Treasury
Regulations Section 1.860G-1(b)(3)(ii). The Master Servicer shall be entitled to
reimbursement for any such indemnified amount from funds on deposit in the
Distribution Account.
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ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator. The Securities
Administrator shall undertake to perform such duties and only such duties as are
specifically set forth in this Agreement.
The Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Securities Administrator that are specifically
required to be furnished pursuant to any provision of this Agreement shall
examine them to determine whether they are in the form required by this
Agreement; provided, however, that the Securities Administrator shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Securities Administrator shall notify the
Certificateholders of such non conforming instrument in the event the Securities
Administrator, after so requesting, does not receive a satisfactorily corrected
instrument.
No provision of this Agreement shall be construed to relieve 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) the duties and obligations of the Securities Administrator shall
be determined solely by the express provisions of this Agreement, the
Securities Administrator shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Securities Administrator and the Securities
Administrator 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 Securities Administrator and conforming to the
requirements of this Agreement which it believed in good faith to be
genuine and to have been duly executed by the proper authorities respecting
any matters arising hereunder;
(ii) the Securities Administrator shall not be liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Securities Administrator, unless it shall be conclusively
determined by a court of competent jurisdiction, such determination no
longer subject to appeal, that the Securities Administrator was negligent
in ascertaining the pertinent facts;
(iii) the Securities Administrator shall not be liable with respect to
any action or inaction taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of the Class A-1 Certificate Insurer
or the Holders of Certificates evidencing not less than 25% of the Voting
Rights of Certificates relating to the time, method and place of conducting
any proceeding for any remedy available to the Securities Administrator, or
exercising or omitting to exercise any trust or power conferred upon the
Securities Administrator under this Agreement; and
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(iv) the Securities Administrator shall not be accountable, shall have
no liability and makes no representation as to any acts or omissions
hereunder of the Master Servicer or the Trustee.
Section 10.02 Certain Matters Affecting the Securities Administrator.
Except as otherwise provided in Section 10.01:
(i) the Securities Administrator may request and conclusively rely
upon and shall be fully protected in acting or refraining from acting upon
any resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, 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 and the Securities Administrator shall have no responsibility to
ascertain or confirm the genuineness of any signature of any such party or
parties;
(ii) the Securities Administrator may consult with counsel, financial
advisers or accountants and the advice of any such counsel, financial
advisers or accountants and any advice or Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(iii) the Securities Administrator shall not be liable for any action
or inaction 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;
(iv) the Securities Administrator shall not 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 so to do by the Class A-1 Certificate Insurer or Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to
each Class of Certificates; provided, however, that if the payment within a
reasonable time to the Securities Administrator of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Securities Administrator, not reasonably assured
to the Securities Administrator by the security afforded to it by the terms
of this Agreement, the Securities Administrator may require reasonable
indemnity against such expense or liability as a condition to so
proceeding. Nothing in this clause (iv) shall derogate from the obligation
of the Master Servicer to observe any applicable law prohibiting disclosure
of information regarding the Mortgagors, provided that the Master Servicer
shall have no liability for disclosure required by this Agreement;
(v) the Securities Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian and the Securities Administrator
shall not be responsible for any misconduct or negligence on the part of
any such agent, attorney or custodian appointed by the Securities
Administrator with due care;
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(vi) the Securities Administrator shall not be required to risk or
expend its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not assured to it, and none of the provisions contained in
this Agreement shall in any event require the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer under this Agreement;
(vii) the Securities Administrator shall be under no obligation to
exercise any of the trusts, rights or powers vested in it by this Agreement
or to institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the Certificateholders
or the Class A-1 Certificate Insurer, pursuant to the provisions of this
Agreement, unless such Certificateholders or the Class A-1 Certificate
Insurer, as applicable, shall have offered to the Securities Administrator
reasonable security or indemnity satisfactory to the Securities
Administrator against the costs, expenses and liabilities which may be
incurred therein or thereby;
(viii) the Securities Administrator shall have no obligation to appear
in, prosecute or defend any legal action that is not incidental to its
duties hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that the Securities Administrator may in its
discretion undertake any such action that it may deem necessary or
desirable in respect of this Agreement and the rights and duties of the
parties hereto and the interests of the Trustee, the Securities
Administrator, the Class A-1 Certificate Insurer and 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 Securities Administrator shall be entitled to be
reimbursed therefor out of the Distribution Account;
(ix) the right of the Securities Administrator to perform any
discretionary act enumerated in this Agreement shall not be construed as a
duty, and the Securities Administrator shall not be answerable for other
than its negligence, bad faith or willful misconduct in the performance of
such act; and
(x) the Securities Administrator shall not be required to give any
bond or surety in respect of the execution of the Trust Fund created hereby
or the powers granted hereunder.
The Securities Administrator shall have no duty (A) to see to any
recording, filing, or depositing of this Agreement or any agreement referred to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing thereof, (B) to
see to the provision of any insurance or (C) to see to the payment or discharge
of any tax, assessment, or other governmental charge or any lien or encumbrance
of any kind owing with respect to, assessed or levied against, any part of the
Trust Fund other than from funds available in the Distribution Account.
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Section 10.03 Securities Administrator Not Liable for Certificates or
Mortgage Loans. The recitals contained herein and in the Certificates shall not
be taken as the statements of the Securities Administrator, and the Securities
Administrator assumes no responsibility for their correctness. The Securities
Administrator makes no representations as to the validity or sufficiency of this
Agreement or of the Certificates or of any Mortgage Loan or related document
other than with respect to the Securities Administrator's execution and
authentication of the Certificates. The Securities Administrator shall not be
accountable for the use or application by the Depositor or the Master Servicer
of any funds paid to the Depositor or the Master Servicer in respect of the
Mortgage Loans or deposited in or withdrawn from the Distribution Account by the
Depositor or the Master Servicer.
Section 10.04 Securities Administrator May Own Certificates. The
Securities Administrator in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact business with the parties
hereto and their Affiliates with the same rights as it would have if it were not
the Securities Administrator.
Section 10.05 Securities Administrator's Fees and Expenses. The
Securities Administrator shall be entitled to the investment income earned on
amounts in the Distribution Account. The Securities Administrator and any
director, officer, employee, agent or "control person" within the meaning of the
Securities Act of 1933, as amended, and the Securities Exchange of 1934, as
amended ("Control Person"), of the Securities Administrator shall be indemnified
by the Trust and held harmless against any loss, liability or expense (including
reasonable attorney's fees) (i) incurred in connection with any claim or legal
action relating to (a) this Agreement, (b) the Mortgage Loans or (c) the
Certificates, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Securities Administrator's duties hereunder, (ii) incurred in connection with
the performance of any of the Securities Administrator's duties hereunder, other
than any loss, liability or expense incurred by reason of willful misfeasance,
bad faith or negligence in the performance of any of the Securities
Administrator's duties hereunder or (iii) incurred by reason of any action of
the Securities Administrator taken at the direction of the Certificateholders,
provided that any such loss, liability or expense constitutes an "unanticipated
expense incurred by the REMIC" within the meaning of Treasury Regulations
Section 1.860G 1(b)(3)(ii). Such indemnity shall survive the termination of this
Agreement or the resignation or removal of the Securities Administrator
hereunder. Without limiting the foregoing, and except for any such expense,
disbursement or advance as may arise from the Securities Administrator's
negligence, bad faith or willful misconduct, or which would not be an
"unanticipated expense" within the meaning of the second preceding sentence, the
Securities Administrator shall be reimbursed by the Trust Fund for all
reasonable expenses, disbursements and advances incurred or made by the
Securities Administrator in accordance with any of the provisions of this
Agreement with respect to: (A) the reasonable compensation and the expenses and
disbursements of its counsel not associated with the closing of the issuance of
the Certificates, (B) the reasonable compensation, expenses and disbursements of
any accountant, engineer, appraiser or other agent that is not regularly
employed by the Securities Administrator, to the extent that the Securities
Administrator must engage such Persons to perform acts or services hereunder and
(C) printing and engraving expenses in connection with preparing any Definitive
Certificates. The Trust shall fulfill its obligations under this paragraph from
amounts on deposit from time to time in the Distribution Account. The Securities
Administrator shall be required to pay all expenses
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incurred by it in connection with its activities hereunder and shall not be
entitled to reimbursement therefor except as provided in this Agreement.
Notwithstanding anything to the contrary contained herein, any amounts
payable to JPMorgan Chase Bank, N.A. in its capacity as Securities Administrator
pursuant to Section 8.05 and Sections 3.11 and 6.03 shall be reimbursable by the
Trust Fund in an amount equal to $250,000 in the aggregate per calendar year as
a first priority expense and all other amounts in excess of $250,000 per
calendar year shall be reimbursable from the Trust Fund on each Distribution
Date after distribution of all amounts pursuant to Section 4.02(a)(iii)(R) on
such Distribution Date; provided, however, that JPMorgan Chase Bank, N.A. in its
capacity as Securities Administrator shall be entitled to reimbursement by the
Trust Fund in an amount up to an additional $250,000 in the aggregate per
calendar year as a first priority expense with respect to servicing transfer
costs and expenses incurred by JPMorgan Chase Bank, N.A. in its capacity as
Securities Administrator.
The Securities Administrator shall not be entitled to payment or
reimbursement from the Unaffiliated Seller for any routine ongoing expenses
incurred by JPMorgan Chase Bank, N.A. in its capacity as Securities
Administrator and/or Master Servicer in the ordinary course of its duties as
Securities Administrator, Master Servicer, Registrar, or paying agent under this
Agreement or for any other expenses, including indemnification payments, except
as set forth herein.
The Trustee executes the Certificates and the Securities Administrator
authenticates the Certificates not in its individual capacity but solely as
Trustee and Securities Administrator, respectively, of the Trust Fund created by
this Agreement, in the exercise of the powers and authority conferred and vested
in it by this Agreement.
Section 10.06 Eligibility Requirements for Securities Administrator.
The Securities Administrator hereunder shall at all times be a corporation or
association organized and doing business under the laws the United States of
America or any state thereof, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating of at least investment grade. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 10.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 10.06, the Securities
Administrator shall resign immediately in the manner and with the effect
specified in Section 10.07 hereof. The entity serving as Securities
Administrator may have normal banking and trust relationships with the Depositor
and its affiliates or the Trustee and its affiliates.
Any successor Securities Administrator (i) may not be an originator,
the Master Servicer, a Servicer, the Depositor or an affiliate of the Depositor
unless the Securities Administrator functions are operated through an
institutional trust department of the Securities Administrator, (ii) must be
authorized to exercise corporate trust powers under the laws of its
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jurisdiction of organization, and (iii) must be rated at least "A/F1" by Fitch,
if Fitch is a Rating Agency and rates such successor, or the equivalent rating
by S&P or Xxxxx'x. If no successor Securities Administrator shall have been
appointed and shall have accepted appointment within 60 days after the
Securities Administrator ceases to be the Securities Administrator pursuant to
Section 10.07, then the Trustee may (but shall not be obligated to) become the
successor Securities Administrator. The Depositor shall appoint a successor to
the Securities Administrator in accordance with Section 10.07. The Trustee shall
notify the Rating Agencies of any change of Securities Administrator.
Section 10.07 Resignation and Removal of Securities Administrator. The
Securities Administrator may at any time resign by giving written notice of
resignation to the Depositor, the Class A-1 Certificate Insurer, the Swap
Provider and the Trustee and each Rating Agency not less than 60 days before the
date specified in such notice when, subject to Section 10.08, such resignation
is to take effect, and acceptance by a successor Securities Administrator in
accordance with Section 10.08 meeting the qualifications set forth in Section
10.06. If no successor Securities Administrator meeting such qualifications
shall have been so appointed by the Depositor or the Class A-1 Certificate
Insurer and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Securities Administrator may petition any
court of competent jurisdiction for the appointment of a successor Securities
Administrator.
If at any time the Securities Administrator shall cease to be eligible
in accordance with the provisions of Section 10.06 hereof and shall fail to
resign after written request thereto by the Depositor, or if at any time the
Securities Administrator shall become incapable of acting, or shall be adjudged
as bankrupt or insolvent, or a receiver of the Securities Administrator or of
its property shall be appointed, or any public officer shall take charge or
control of the Securities Administrator or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or a tax is imposed with
respect to the Trust Fund by any state in which the Securities Administrator or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different Securities Administrator, then the Depositor may
remove the Securities Administrator and appoint a successor Securities
Administrator by written instrument, in triplicate, one copy of which instrument
shall be delivered to the Securities Administrator so removed, one copy of which
shall be delivered to the Master Servicer and one copy to the successor
Securities Administrator.
The Class A-1 Certificate Insurer may at any time remove the
Securities Administrator and appoint a successor Securities Administrator by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys in fact duly authorized, one complete set of which instruments
shall be delivered by the successor Securities Administrator to the Trustee and
the Class A-1 Certificate Insurer, one complete set to the Securities
Administrator so removed and one complete set to the successor so appointed.
Notice of any removal of the Securities Administrator shall be given to each
Rating Agency by the successor Securities Administrator.
Any resignation or removal of the Securities Administrator and
appointment of a successor Securities Administrator pursuant to any of the
provisions of this Section 10.07 shall become effective upon acceptance by the
successor Securities Administrator of appointment as provided in Section 10.08
hereof.
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Section 10.08 Successor Securities Administrator. Any successor
Securities Administrator (which may be the Trustee) appointed as provided in
Section 10.07 hereof shall execute, acknowledge and deliver to the Class A-1
Certificate Insurer, the Swap Provider and the Depositor and to its predecessor
Securities Administrator and the Trustee an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor Securities Administrator shall become effective and such successor
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 the like effect as if originally named as Securities
Administrator herein. The Depositor, the Class A-1 Certificate Insurer, the
Trustee, the Master Servicer and the predecessor Securities Administrator 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
Securities Administrator all such rights, powers, duties, and obligations.
No successor Securities Administrator shall accept appointment as
provided in this Section 10.08 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 10.06 hereof and its appointment shall not adversely affect the then
current rating of the Certificates, as confirmed in writing by each Rating
Agency.
Upon acceptance by a successor Securities Administrator of appointment
as provided in this Section 10.08, the Depositor shall mail notice of the
succession of such Securities Administrator hereunder to all Holders of
Certificates and the Class A-1 Certificate Insurer. If the Depositor fails to
mail such notice within 10 days after acceptance by the successor Securities
Administrator of appointment, the successor Securities Administrator shall cause
such notice to be mailed at the expense of the Depositor.
Section 10.09 Merger or Consolidation of Securities Administrator. Any
corporation or other entity into which the Securities Administrator may be
merged or converted or with which it may be consolidated or any corporation or
other entity resulting from any merger, conversion or consolidation to which the
Securities Administrator shall be a party, or any corporation or other entity
succeeding to the business of the Securities Administrator, shall be the
successor of the Securities Administrator hereunder, provided that such
corporation or other entity shall be eligible under the provisions of Section
10.06 hereof, 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 10.10 Assignment or Delegation of Duties by the Securities
Administrator. Except as expressly provided herein, the Securities Administrator
shall not assign or transfer any of its rights, benefits or privileges hereunder
to any other Person, or delegate to or subcontract with, or authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by the Securities Administrator; provided, however, that the
Securities Administrator shall have the right with the prior written consent of
the Depositor (which shall not be unreasonably withheld or delayed) and the
Class A-1 Certificate Insurer, and upon delivery to the Trustee and the
Depositor of a letter from each Rating Agency to the effect that such action
shall not result in a downgrade of the ratings assigned to any of the
Certificates, to delegate or assign to or subcontract with or authorize or
appoint any qualified
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Person to perform and carry out any duties, covenants or obligations to be
performed and carried out by the Securities Administrator hereunder. Notice of
such permitted assignment shall be given promptly by the Securities
Administrator to the Depositor, the Class A-1 Certificate Insurer, the Swap
Provider and the Trustee. If, pursuant to any provision hereof, the duties of
the Securities Administrator are transferred to a successor securities
administrator, the entire compensation payable to the Securities Administrator
pursuant hereto shall thereafter be payable to such successor securities
administrator but in no event shall the fee payable to the successor Securities
Administrator exceed that payable to the predecessor Securities Administrator.
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the Mortgage
Loans.
Subject to Section 11.03, the obligations and responsibilities of the
Depositor, each Servicer, the Securities Administrator and the Trustee created
hereby with respect to the Trust Fund shall terminate upon the earlier of (a)
the purchase, on or after the applicable Optional Termination Date, by one or
more Servicers or the Class X Certificateholders (subject to the restrictions
set forth in the definition of "Optional Termination Date") of all Mortgage
Loans (and REO Properties) at the price equal to the sum of (i) 100% of the
unpaid principal balance of each Mortgage Loan (other than in respect of REO
Property) plus accrued and unpaid interest thereon at the applicable Mortgage
Rate, (ii) the lesser of (x) the appraised value of any REO Property as
determined by the higher of two appraisals completed by two independent
appraisers selected by the party exercising the optimal termination at the
expense of the party exercising the optimal termination plus, accrued and unpaid
interest on each Mortgage Loan at the applicable Mortgage Rate and (y) the
unpaid principal balance of each Mortgage Loan related to any REO Property, in
each case plus accrued and unpaid interest thereon at the applicable Mortgage
Rate, (iii) all costs and expenses incurred by, or on behalf of, the Trust Fund,
of which the Securities Administrator has actual knowledge, in connection with
any violation by such Mortgage Loan of any predatory or abusive-lending law and
(iv) any Swap Termination Payment, other than a Defaulted Swap Termination
Payment, owed to the Swap Provider (the "Termination Price") and (b) the later
of (i) the maturity or other liquidation of the last Mortgage Loan remaining in
the Trust Fund and the disposition of all REO Property and (ii) the distribution
to Certificateholders of all amounts required to be distributed to them pursuant
to this Agreement. In no event shall the trusts created hereby continue beyond
the expiration of 21 years from the death of the survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof.
Notwithstanding the foregoing, if Standard & Poor's has rated a class
of debt securities ("NIM Securities") that are backed by the Class X
Certificates and Class P Certificates and that are outstanding on any date on
which a Servicer intends or the Servicers intend to exercise its option to
purchase the Mortgage Loans, a Servicer or the Servicers will be permitted to
exercise such option only if one of the following additional conditions is met:
(i) after distribution of the Termination Price to the Certificateholders (other
than the Holders of the Class X Certificates, Class P Certificates and Class R
Certificates) to redeem the related Certificates, the remainder of the
Termination Price (the "Remainder Amount") is distributed to
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the Holders of the Class X Certificates and Class P Certificates and is
sufficient to pay the outstanding principal amount of and accrued and unpaid
interest on the NIM Securities to the extent the NIM Securities are then
outstanding; or (ii) (A) at the same time that a Servicer remits or the
Servicers remit the Termination Price to the Master Servicer, it also remits to
the Securities Administrator an additional amount which, in combination with the
Remainder Amount, is sufficient to pay the outstanding principal amount of and
accrued and unpaid interest on the NIM Securities, to the extent the NIM
Securities are then outstanding, and (B) the Securities Administrator remits the
Remainder Amount to the Holders of the Class X Certificates and Class P
Certificates and remits that additional amount directly to the NIM Trustee (plus
any outstanding fees and expenses due and owing to the NIM Trustee) under the
indenture creating the NIM Securities.
No purchase under this Section 11.01 will be permitted without the
consent of the Class A-1 Certificate Insurer, unless no draw on the Class A-1
Certificate Insurance Policy would be made and no amounts due to the Class A-1
Certificate Insurer would remain unreimbursed on the final Distribution Date.
Section 11.02 Final Distribution on the Certificates.
If on any Remittance Date, the Servicers determine that there are no
Outstanding Mortgage Loans and no other funds or assets in the Trust Fund other
than the funds in the Collection Accounts, the Servicers shall direct the
Securities Administrator promptly to send a Notice of Final Distribution to each
Certificateholder. If any Servicer individually elects to terminate the Trust
Fund pursuant to clause (a) of Section 11.01, such Servicer shall notify the
other Servicer of such election by the 15th day of the month preceding the month
of the final distribution and the other Servicer shall have 5 days to elect, by
notice to the other Servicer, to purchase the Mortgage Loans it services. If the
other such Servicer does not so elect to purchase the Mortgage Loans it
services, the terminating Servicer shall be required to purchase all the
Mortgage Loans. If any Servicer or both Servicers so elect to terminate, by the
25th day of the month preceding the month of the final distribution, such
Servicer or Servicers shall notify the Depositor, the Securities Administrator
and the Trustee of the final Distribution Date the Servicers or the Class X
Certificateholder of the date such Servicer or Servicers intend to terminate the
Trust Fund and of the applicable repurchase price of the Mortgage Loans and REO
Properties.
A Notice of Final Distribution, specifying the Distribution Date on
which Certificateholders may surrender their Certificates for payment of the
final distribution and cancellation, shall be given promptly by the Securities
Administrator by letter to Certificateholders mailed not earlier than the 10th
day and not later than the 15th day of the month of such final distribution. Any
such Notice of Final Distribution shall specify (a) the Distribution Date upon
which final distribution on the Certificates will be made upon presentation and
surrender of Certificates at the office therein designated, (b) the amount of
such final distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office therein
specified. A Servicer or the Servicers, as the case may be, will give such
Notice of Final Distribution to each Rating Agency, the Class A-1 Certificate
Insurer
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and the Swap Provider at the time such Notice of Final Distribution is given to
Certificateholders.
In the event such Notice of Final Distribution is given, each Servicer
shall cause all funds in its Collection Account to be remitted to the Master
Servicer for deposit in the Distribution Account on the Business Day prior to
the applicable Distribution Date in an amount equal to the final distribution in
respect of the Certificates. Upon such final deposit with respect to the Trust
Fund and the receipt by the Securities Administrator of a Request for Release
therefor, the Securities Administrator shall forward the Request for Release to
the Custodian and the Custodian shall promptly release to the applicable
Servicer or Servicers, as the case may be, the Custodial Files for the Mortgage
Loans.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class (after reimbursement of all amounts due to the Servicers, the Depositor,
the Class A-1 Certificate Insurer, the Swap Provider and the Trustee hereunder),
in each case on the final Distribution Date and in the order set forth in
Section 4.02, in proportion to their respective Percentage Interests, with
respect to Certificateholders of the same Class, up to an amount equal to (i) as
to each Class of Regular Certificates (except the Class X Certificates), the
Certificate Balance thereof plus for each such Class and the Class X
Certificates accrued interest thereon in the case of an interest-bearing
Certificate and all other amounts to which such Classes are entitled pursuant to
Section 4.02 and (ii) as to the Residual Certificates, the amount, if any, which
remains on deposit in the Distribution Account (other than the amounts retained
to meet claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Securities Administrator shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Securities
Administrator may take appropriate steps, or may appoint an 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 a part of the Trust Fund. If within one year
after the second notice all Certificates shall not have been surrendered for
cancellation, the Class R Certificateholders shall be entitled to all unclaimed
funds and other assets of the Trust Fund which remain subject hereto.
Section 11.03 Additional Termination Requirements.
In the event the applicable Servicer or all of the Servicers exercise
their purchase option with respect to the Mortgage Loans as provided in Section
11.01, the Trust Fund shall be terminated in accordance with the following
additional requirements, unless the Securities Administrator has been supplied
with an Opinion of Counsel, at the expense of the applicable Servicer or all of
the Servicers or the Class X Certificateholder, as applicable, to the effect
that the failure to comply with the requirements of this Section 11.03 will not
(i) result in the
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imposition of taxes on "prohibited transactions" on any REMIC
created hereunder as defined in Section 860F of the Code, or (ii) cause any
REMIC created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(a) The Securities Administrator on behalf of the Trustee shall sell
all of the assets of the Trust Fund to the applicable Servicer and, no later
than the next Distribution Date after such sale (and in no event more than 90
days after such sale), shall, in the order set forth in Section 4.02 and subject
to the payment of all amounts payable under Section 4.02, distribute to the
Certificateholders the proceeds of such sale in complete liquidation of each of
the REMICs created hereunder; and
(b) The Securities Administrator shall attach a statement to the final
federal income tax return for each of the REMICs created hereunder stating that
pursuant to Treasury regulations section 1.860F-1, the first day of the 90-day
liquidation period for each such REMIC was the date on which the Securities
Administrator on behalf of the Trustee sold the assets of the Trust Fund to the
applicable Servicer or Servicers, as the case may be.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment.
This Agreement may be amended from time to time (x) by the Depositor,
each Servicer, the Custodian, the Securities Administrator, the Master Servicer
and the Trustee, with the prior written consent of the Class A-1 Certificate
Insurer (y) with the consent of the Unaffiliated Seller unless the Securities
Administrator and the Trustee receive an Opinion of Counsel (which Opinion of
Counsel shall not be an expense of the Securities Administrator, the Master
Servicer, the Trustee or the Trust Fund) stating that the amendment will not
adversely affect the Unaffiliated Seller, but (z) without the consent of any of
the Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision herein or to supplement any provision herein which may be
inconsistent with any other provision herein, (iii) to add to the duties of the
Depositor, the Master Servicer, the Securities Administrator or the Servicers,
(iv) to add any other provisions with respect to matters or questions arising
hereunder or (v) to modify, alter, amend, add to or rescind any of the terms or
provisions contained in this Agreement; provided, that any action pursuant to
clauses (iv) or (v) above shall not, as evidenced by an Opinion of Counsel
(which Opinion of Counsel shall not be an expense of the Securities
Administrator, the Trustee or the Trust Fund), adversely affect in any material
respect the interests of any Certificateholder (it being understood that any
Opinion of Counsel with respect to income tax matters will be limited to an
opinion that such amendment will not cause the imposition of any federal income
tax on any REMIC created hereunder or the Certificateholders or cause any REMIC
created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding); and provided, further, that any such action
pursuant to clause (iv) or (v) above shall not be deemed to adversely affect in
any material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency stating that
the amendment would not result in the downgrading or withdrawal of the
respective ratings then assigned to the Certificates; it being understood and
agreed that any such
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letter in and of itself will not represent a determination as to the materiality
of any such amendment and will represent a determination only as to the credit
issues affecting any such rating.
In addition, this Agreement may also be amended from time to time (x)
by the Trustee, the Depositor, the Custodian, the Securities Administrator, the
Master Servicer and the Servicers, with the prior written consent of the Class
A-1 Certificate Insurer and (y) with the consent of the Unaffiliated Seller
unless the Trustee and the Securities Administrator receive an Opinion of
Counsel (which Opinion of Counsel shall not be an expense of the Securities
Administrator, the Master Servicer, the Trustee or the Trust Fund) stating that
the amendment will not adversely affect the Unaffiliated Seller, but (z) without
the consent of the Certificateholders, to modify, eliminate or add to any of its
provisions to such extent as shall be necessary or helpful to (i) maintain the
qualification of REMIC I, REMIC II, REMIC III, REMIC IV and REMIC V under the
Code, (ii) avoid or minimize the risk of the imposition of any tax on REMIC I,
REMIC II, REMIC III, REMIC IV or REMIC V pursuant to the Code that would be a
claim at any time prior to the final redemption of the Certificates or (iii)
comply with any other requirements of the Code; provided, that the Trustee and
the Securities Administrator has been provided an Opinion of Counsel, which
opinion shall be an expense of the party requesting such opinion but in any case
shall not be an expense of the Securities Administrator, the Master Servicer,
the Trustee or the Trust Fund, to the effect that such action is necessary or
helpful to, as applicable, (i) maintain such qualification, (ii) avoid or
minimize the risk of the imposition of such a tax or (iii) comply with any such
requirements of the Code.
This Agreement may also be amended from time to time (x) by the
Depositor, the Servicers, the Master Servicer, the Custodian, the Securities
Administrator and the Trustee, with the prior written consent of the Class A-1
Certificate Insurer (y) with the consent of the Unaffiliated Seller unless the
Securities Administrator receives an Opinion of Counsel (which Opinion of
Counsel shall not be an expense of the Securities Administrator, the Master
Servicer, the Trustee or the Trust Fund) stating that the amendment will not
adversely affect the Unaffiliated Seller, and (z), except as set forth in
Section 3.27, with the consent of the Holders of Certificates evidencing
Percentage Interests aggregating not less than 66-2/3% of each Class of
Certificates (based on the aggregate outstanding principal balance of such class
at such time) affected thereby, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments required to be distributed on any Certificate
without the consent of the Holder of such Certificate, (ii) adversely affect in
any material respect the interests of the Holders of any Class of Certificates
in a manner other than as described in (i), without the consent of the Holders
of Certificates of such Class evidencing, as to such Class, Percentage Interests
aggregating not less than 66-2/3%, or (iii) reduce the aforesaid percentages of
Certificates the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel, which opinion shall not be an expense of the
Securities Administrator, the Master Servicer, the Trustee or the Trust Fund, to
the effect that such amendment will not cause the
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imposition of any federal income tax on any REMIC or the Certificateholders or
cause any REMIC created hereunder to fail to qualify as a REMIC at any time that
any Certificates are outstanding.
Notwithstanding the foregoing provisions of this Section 12.01, with
respect to any amendment that significantly modifies the permitted activities of
the Trustee, the Securities Administrator, the Master Servicer or the Servicers,
any Certificate beneficially owned by the Depositor, the Unaffiliated Seller or
any of their respective Affiliates shall be deemed not to be outstanding (and
shall not be considered when determining the percentage of Certificateholders
consenting or when calculating the total number of Certificates entitled to
consent) for purposes of determining if the requisite consents of
Certificateholders under this Section 10.01 have been obtained.
Notwithstanding any contrary provision of this Agreement, the
Securities Administrator shall not consent to any amendment, modification or
change to this Agreement without the prior written consent of the Swap Provider,
if such amendment, modification or change could reasonably be expected to have a
material adverse effect on the rights or obligations of the Swap Provider under
this Agreement or under the Interest Rate Swap Agreement. Unless notified by the
Swap Provider that the Swap Provider could reasonably be materially and
adversely affected by such amendment, modification or change, for purposes of
determining whether an amendment, modification or change could reasonably be
expected to have a material adverse effect on the Swap Provider, the Trustee and
the Securities Administrator shall be entitled to rely on an Opinion of Counsel
(which Opinion of Counsel shall not be an expense of the Securities
Administrator or the Trustee) after giving notice of such amendment,
modification or change to the Swap Provider. The Securities Administrator shall
furnish to the Swap Provider a copy of each proposed amendment, modification or
change to this Agreement at least ten Business Days prior to the execution
thereof and a copy of each executed amendment, modification or change to this
Agreement promptly upon execution thereof, along with copies of the letter from
each Rating Agency stating that the amendment, modification or change would not
result in the downgrading or withdrawal of the respective ratings then assigned
to the Certificates.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Securities Administrator shall
furnish written notification of the substance or a copy of such amendment to the
Swap Provider, each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section 10.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Securities Administrator,
the Trustee or the Custodian to enter into an amendment without receiving an
Opinion of Counsel (which Opinion shall not be an expense of the Trustee, the
Custodian, the Securities Administrator, the Master Servicer or the Trust Fund),
satisfactory to the Trustee, the Securities Administrator, the
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Master Servicer and the Custodian that (i) such amendment is permitted and is
not prohibited by this Agreement and that all requirements for amending this
Agreement have been complied with; and (ii) either (A) the amendment does not
adversely affect in any material respect the interests of any Certificateholder
or (B) the conclusion set forth in the immediately preceding clause (A) is not
required to be reached pursuant to this Section 10.01.
Section 12.02 Recordation of Agreement; Counterparts.
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, such recordation
to be effected by each Servicer at its expense, but only upon receipt of an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 12.03 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS AND THE CLASS A-1
CERTIFICATE INSURER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.04 Intention of Parties.
It is the express intent of the parties hereto that the conveyance (i)
of the Mortgage Loans by the Depositor and (ii) of the Trust Fund by the
Depositor to the Trustee each be, and be construed as, an absolute sale thereof.
It is, further, not the intention of the parties that such conveyances be deemed
a pledge thereof. However, in the event that, notwithstanding the intent of the
parties, such assets are held to be the property of the Depositor, as the case
may be, or if for any other reason this Agreement is held or deemed to create a
security interest in either such assets, then (i) this Agreement shall be deemed
to be a security agreement within the meaning of the Uniform Commercial Code of
the State of New York and (ii) the conveyances provided for in this Agreement
shall be deemed to be an assignment and a grant by the Depositor to the Trustee,
for the benefit of the Certificateholders, of a security interest in all of the
assets transferred, whether now owned or hereafter acquired.
The Depositor, for the benefit of the Certificateholders, the Class
A-1 Certificate Insurer and the Swap Provider, shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Trust Fund, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
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of the Agreement. The Depositor shall arrange for filing any Uniform Commercial
Code continuation statements in connection with any security interest granted or
assigned to the Trustee for the benefit of the Certificateholders.
Section 12.05 Notices.
(a) The Securities Administrator shall use its best efforts to
promptly provide notice to each Rating Agency with respect to each of the
following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of a Servicer, the Securities
Administrator, the Master Servicer or the Trustee and the
appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to
Section 2.03; and
5. The final payment to Certificateholders.
(b) In addition, the Securities Administrator shall promptly furnish
to each Rating Agency copies of the following:
1. Each report to Certificateholders described in Section 4.03; and
2. Any notice of a purchase of a Mortgage Loan pursuant to Section
2.02, 2.03 or 3.11.
All directions, demands, consents, notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given when delivered
to (a) in the case of the Depositor or the Representative, Xxxxxx Xxxxxxx ABS
Capital I Inc. or Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxxxx Xxx, with a copy to Xxxxxxxx
Xxxxx, Esq., 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, (b) in the
case of the Servicers, Countrywide Home Loans Servicing LP, 0000 Xxxxxxxxx
Xxxxx, Xxxxx, Xxxxx 00000, Attention: Secretary; Saxon Mortgage Services, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxx, 00000, Attention: Xxxxx Xxxx,
President, with a copy to Saxon Capital, Inc., 0000 Xxx Xxxx, Xxxxx 000, Xxxx
Xxxxx, Xxxxxxxx 00000, Attention: General Counsel, or such other address as may
be hereafter furnished to the parties hereto in writing, (c) in the case of the
Securities Administrator or Master Servicer to the Corporate Trust Office,
JPMorgan Chase Bank, N.A., 4 New York Plaza, 6th Floor, New York, New York
10004, Attention: Worldwide Securities/Global Debt - IXIS Real Estate Capital
Trust 2005-HE3 or such other address as the Securities Administrator or Master
Servicer may hereafter furnish to the parties hereto, (d) in the case of the
Trustee and the Custodian to Deutsche Bank National Trust Company, 0000 Xxxx Xx.
Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attention: Trust Administration
- IX0503, (e) in the case of the Unaffiliated Seller, IXIS Real Estate Capital,
Inc., 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel,
or such other address as the Unaffiliated
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Seller may hereafter furnish to the parties hereto, (f) in the case of each of
the Rating Agencies, the address specified therefor in the definition
corresponding to the name of such Rating Agency, (g) in the case of any
Originator, the address specified therefor in the applicable Mortgage Loan
Purchase Agreement , (h) in the case of the Class A-1 Certificate Insurer,
Financial Security Assurance Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
and (i) in the case of the Swap Provider, the address specified therefor in the
Interest Rate Swap Agreement. Notices to Certificateholders shall be deemed
given when mailed, first class postage prepaid, to their respective addresses
appearing in the Certificate Register.
Section 12.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 12.07 Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 6.04, this Agreement may not be assigned by any Servicer
without the prior written consent of the Trustee, the Securities Administrator,
the Class A-1 Certificate Insurer and the Depositor; provided, however, that,
subject to Section 3.27, a Servicer may pledge or sell its interest in any
reimbursements for P&I Advances or Servicing Advances hereunder.
Section 12.08 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
party by reason of any action taken by the parties to this Agreement pursuant to
any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates, and the Class A-1 Certificate Insurer,
shall also have made
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written request to 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, expenses, and
liabilities to be incurred therein or thereby, and 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; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of the Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder or to enforce any right under this Agreement, except in
the manner herein provided and for the common benefit of all Certificateholders.
For the protection and enforcement of the provisions of this Section 12.08, each
and every Certificateholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Section 12.09 Inspection and Audit Rights.
Each Servicer agrees that, on reasonable prior notice, it will permit
any representative of the Depositor, the Unaffiliated Seller, the Securities
Administrator, the Master Servicer, the Class A-1 Certificate Insurer or the
Trustee during such Servicer's normal business hours, to examine all the books
of account, records, reports and other papers of such Servicer relating to the
Mortgage Loans, to make copies and extracts therefrom, to cause such books to be
audited by independent certified public accountants selected by the party
conducting the inspection and to discuss its affairs, finances and accounts
relating to the Mortgage Loans with its officers, employees and independent
public accountants (and by this provision each Servicer hereby authorizes said
accountants to discuss with such representative such affairs, finances and
accounts), all at such reasonable times and as often as may be reasonably
requested. Any customary out-of-pocket expense of a Servicer incident to the
exercise by the Depositor, the Unaffiliated Seller, the Securities
Administrator, the Class A-1 Certificate Insurer or the Trustee of any right
under this Section 12.09 shall be borne by such Servicer.
Section 12.10 Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall not
be personally liable for obligations of the Trust Fund, that the interests in
the Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof by
the Securities Administrator pursuant to this Agreement, are and shall be deemed
fully paid.
Section 12.11 The Class A-1 Certificate Insurer Default.
Any right conferred to the Class A-1 Certificate Insurer shall be
suspended during any period in which a Class A-1 Certificate Insurer Default
exists. At such time as the Class A-1 Certificates are no longer outstanding
hereunder, and no amounts owed to the Class A-1 Certificate Insurer hereunder
remain unpaid, the Class A-1 Certificate Insurer's rights hereunder shall
terminate.
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Section 12.12 Third Party Beneficiary.
The parties agree that each of the Class A-1 Certificate Insurer and
the Swap Provider is intended and shall have all rights of a third-party
beneficiary of this Agreement.
Section 12.13 Waiver of Jury Trial.
EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, WAIVES (TO
THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY
SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
199
IN WITNESS WHEREOF, the Depositor, the Trustee, the Unaffiliated
Seller, the Servicers and the Custodian have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
XXXXXX XXXXXXX ABS CAPITAL I INC.,
as Depositor
By:
----------------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A., as Master
Servicer and Securities Administrator
By:
----------------------------------
Name:
Title:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
solely as Trustee and not in its
individual capacity, and as Custodian
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
COUNTRYWIDE HOME LOANS SERVICING LP,
as Servicer
By: COUNTRYWIDE GP, INC.
By:
----------------------------------
Name:
Title:
Signature Page No.1 to Pooling and Servicing Agreement
200
SAXON MORTGAGE SERVICES INC., as
Servicer
By:
By:
----------------------------------
Name:
Title:
IXIS REAL ESTATE CAPITAL INC.,
as Unaffiliated Seller
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
Signature Page No.2 to Pooling and Servicing Agreement
201
SCHEDULE I
Mortgage Loan Schedule
[On File with Xxxxx Xxxxxxxxxx LLP]
I-A-1
SCHEDULE IA
Schedule of Countrywide Serviced Loans
[On File with Xxxxx Xxxxxxxxxx LLP]
IA-1
SCHEDULE IB
Schedule of Saxon Serviced Loans
[On File with Xxxxx Xxxxxxxxxx LLP]
IB-1
SCHEDULE II
IXIS REAL ESTATE CAPITAL TRUST 2005-HE3
Mortgage Pass-Through Certificates,
Series 2005-HE3
Representations and Warranties of Countrywide
(1) The Servicer is duly organized as a limited partnership and is
validly existing and in good standing under the laws of the state of Texas
and is licensed and qualified to transact any and all business contemplated
by this Pooling and Servicing Agreement to be conducted by the Servicer in
any state in which a Mortgaged Property securing a Mortgage Loan is located
or is otherwise not required under applicable law to effect such
qualification and, in any event, is in compliance with the doing business
laws of any such State, to the extent necessary to ensure its ability to
enforce each Mortgage Loan and to service the Mortgage Loans in accordance
with the terms of this Pooling and Servicing Agreement;
(2) The Servicer has the full power and authority to service each
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by this Pooling and Servicing
Agreement and has duly authorized by all necessary action on the part of
the Servicer the execution, delivery and performance of this Pooling and
Servicing Agreement; and this Pooling and Servicing Agreement, assuming the
due authorization, execution and delivery thereof by the other parties
thereto, constitutes a legal, valid and binding obligation of the Servicer,
enforceable against the Servicer in accordance with its terms, except to
the extent that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to the equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought;
(3) The execution and delivery of this Pooling and Servicing Agreement
by the Servicer, the servicing of the Mortgage Loans by the Servicer
hereunder, the consummation by the Servicer of any other of the
transactions herein contemplated, and the fulfillment of or compliance with
the terms hereof are in the ordinary course of business of the Servicer and
will not (A) result in a breach of any term or provision of the
organizational documents of the Servicer or (B) conflict with, result in a
breach, violation or acceleration of, or result in a default under, the
terms of any other material agreement or instrument to which the Servicer
is a party or by which it may be bound, or any statute, order or regulation
applicable to the Servicer of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Servicer; and the
Servicer is not a party to, bound by, or in breach or violation of any
indenture or other agreement or instrument, or subject to or in violation
of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it,
which materially and adversely affects or, to the Servicer's
II-1
knowledge, would in the future materially and adversely affect, (x) the
ability of the Servicer to perform its obligations under this Pooling and
Servicing Agreement or (y) the business, operations, financial condition,
properties or assets of the Servicer taken as a whole;
(4) The Servicer is an approved seller/servicer for Xxxxxx Xxx or
Xxxxxxx Mac in good standing;
(5) No action, suit, proceeding or investigation is pending or, to the
best of the Servicer's knowledge, threatened against the Servicer, before
any court, administrative agency or other tribunal asserting the invalidity
of this Pooling and Servicing Agreement, seeking to prevent the
consummation of any of the transactions contemplated by this Pooling and
Servicing Agreement or which, either in any one instance or in the
aggregate, may result in any material adverse change in business,
operations, financial conditions, properties or assets of the Servicer, or
in any material impairment of the right or ability of the Servicer to carry
on its business substantially as now conducted, or in any material
liability on the part of the Servicer, or which would draw into question
the validity of this Pooling and Servicing Agreement or the Mortgage Loans
or of any action taken or to be taken in connection with the obligations of
the Servicer contemplated herein, or which would be likely to impair
materially the ability of the Servicer to perform under the terms of this
Pooling and Servicing Agreement;
(6) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer of, or compliance by the Servicer with, this
Pooling and Servicing Agreement or the consummation by the Servicer of the
transactions contemplated by this Pooling and Servicing Agreement, except
for such consents, approvals, authorizations or orders, if any, that have
been obtained prior to the Closing Date;
(7) The Servicer represents that its computer and other systems used
in servicing the Mortgage Loans operate in a manner such that the Servicer
can service the Mortgage Loans in accordance with the terms of this Pooling
and Servicing Agreement; and
(8) With respect to each Mortgage Loan, to the extent the Servicer
serviced such Mortgage Loan and to the extent the Servicer provided monthly
reports to the three credit repositories, the Servicer has fully furnished,
in accordance with the Fair Credit Reporting Act and its implementing
regulation, accurate and compete information (i.e., favorable and
unfavorable) on its borrower credit files to Equifax, Experian, and Trans
Union Credit Information Company (three of the national credit
repositories), on a monthly basis.
II-2
SCHEDULE IIA
Further Representations and Warranties of Countrywide
(1) Mortgage Loan Schedule. With respect to each Mortgage Loan, as of
the applicable Cut-off Date, each of (1) the last Due Date on which a
payment was actually applied to the outstanding principal balance of each
Mortgage Loan; (2) the Stated Principal Balance of each Mortgage Loan,
after deduction of payments of principal due and collected on or before the
applicable Cut-off Date; and (3) the Servicing Transfer Date for each
Mortgage Loan, in each case, as listed on the Mortgage Loan Schedule, is
true and correct;
(2) Payments Current. Unless otherwise indicated on the related
Mortgage Loan Schedule, with respect to each Mortgage Loan, no Scheduled
Payment is 30 days or more Delinquent as of the Cut-off Date nor has any
Payment been 30 days or more Delinquent at any time from and after the
Servicing Transfer Date through the Cut-off Date;
(3) Original Terms Unmodified. With respect to each Mortgage Loan, the
terms of the Mortgage Note and Mortgage have not been impaired, waived,
altered or modified by or on behalf of the Servicer from and after the
Servicing Transfer Date;
(4) No Satisfaction of Mortgage. With respect to each Mortgage Loan,
since the related Servicing Transfer Date and except for prepayments in
full, the Mortgage has not been satisfied, cancelled, subordinated or
rescinded, in whole or in part, and the Mortgaged Property has not been
released from the lien of the Mortgage, in whole or in part, nor has any
instrument been executed that would effect any such release, cancellation,
subordination or rescission. From and after the Servicing Transfer Date,
the Servicer has not waived the performance by the Mortgagor of any action,
if the Mortgagor's failure to perform such action would cause the Mortgage
Loan to be in default, nor has the Servicer waived any default resulting
from any action or inaction by the Mortgagor;
(5) No Defaults. With respect to each Mortgage Loan, to the best
knowledge of the Servicer, other than payments due but not yet 30 days
Delinquent, there is no material default, breach, violation or event which
would permit acceleration existing under the Mortgage or the Mortgage Note;
(6) Escrow Payments/Interest Rate Adjustments. With respect to each
Mortgage Loan, since the Servicing Transfer Date, the servicing and
collection practices used by the Servicer with respect to such Mortgage
Loan have been in all material respects in compliance with Accepted
Servicing Practices, applicable laws and regulations, and have been in all
material respects legal and proper. With respect to escrow deposits and
Escrow Payments, if any, all such deposits and payments received by the
Servicer are in the possession of, or under the control of, the Servicer
and there exist no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made. All Escrow Payments
have been collected in full
II-A-1
compliance with state and federal law and the provisions of the related
Mortgage Note and Mortgage (to the extent not otherwise prohibited by law).
From and after the Servicing Transfer Date, all Mortgage Rate adjustments
(if any) have been made in strict compliance with state and federal law and
the terms of the related Mortgage Note;
(7) Other Insurance Policies. The improvements upon each Mortgaged
Property are covered by a valid and existing hazard insurance policy with a
generally acceptable carrier that provides for fire and extended coverage
and coverage for such other hazards as are customary in the area where the
Mortgaged Property is located; and
(8) Servicemembers Civil Relief Act. With respect to each Mortgage
Loan, from and after the Servicing Transfer Date, no Mortgagor has notified
the Servicer, and the Servicer has no knowledge, of any relief requested
and allowed to the Mortgagor under the Servicemembers Civil Relief Act or
any similar state or local law.
II-A-2
SCHEDULE III
IXIS REAL ESTATE CAPITAL TRUST 2005-HE3
Mortgage Pass-Through Certificates,
Series 2005-HE3
Representations and Warranties of Saxon
(1) The Servicer is duly organized as a corporation and is validly
existing and in good standing under the laws of the state of Texas and is
licensed and qualified to transact any and all business contemplated by
this Pooling and Servicing Agreement to be conducted by the Servicer in any
state in which a Mortgaged Property securing a Mortgage Loan is located or
is otherwise not required under applicable law to effect such qualification
and, in any event, is in compliance with the doing business laws of any
such State, to the extent necessary to ensure its ability to enforce each
Mortgage Loan and to service the Mortgage Loans in accordance with the
terms of this Pooling and Servicing Agreement;
(2) The Servicer has the full power and authority to service each
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by this Pooling and Servicing
Agreement and has duly authorized by all necessary action on the part of
the Servicer the execution, delivery and performance of this Pooling and
Servicing Agreement; and this Pooling and Servicing Agreement, assuming the
due authorization, execution and delivery thereof by the other parties
thereto, constitutes a legal, valid and binding obligation of the Servicer,
enforceable against the Servicer in accordance with its terms, except to
the extent that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to the equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought;
(3) The execution and delivery of this Pooling and Servicing Agreement
by the Servicer, the servicing of the Mortgage Loans by the Servicer
hereunder, the consummation by the Servicer of any other of the
transactions herein contemplated, and the fulfillment of or compliance with
the terms hereof are in the ordinary course of business of the Servicer and
will not (A) result in a breach of any term or provision of the
organizational documents of the Servicer or (B) conflict with, result in a
breach, violation or acceleration of, or result in a default under, the
terms of any other material agreement or instrument to which the Servicer
is a party or by which it may be bound, or any statute, order or regulation
applicable to the Servicer of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Servicer; and the
Servicer is not a party to, bound by, or in breach or violation of any
indenture or other agreement or instrument, or subject to or in violation
of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it,
which materially and adversely affects or, to the Servicer's
III-1
knowledge, would in the future materially and adversely affect, (x) the
ability of the Servicer to perform its obligations under this Pooling and
Servicing Agreement or (y) the business, operations, financial condition,
properties or assets of the Servicer taken as a whole;
(4) The Servicer is an approved seller/servicer for Xxxxxx Xxx or
Xxxxxxx Mac;
(5) No action, suit, proceeding or investigation is pending or, to the
best of the Servicer's knowledge, threatened against the Servicer, before
any court, administrative agency or other tribunal asserting the invalidity
of this Pooling and Servicing Agreement, seeking to prevent the
consummation of any of the transactions contemplated by this Pooling and
Servicing Agreement or which, either in any one instance or in the
aggregate, may result in any material adverse change in business,
operations, financial conditions, properties or assets of the Servicer, or
in any material impairment of the right or ability of the Servicer to carry
on its business substantially as now conducted, or in any material
liability on the part of the Servicer, or which would draw into question
the validity of this Pooling and Servicing Agreement or the Mortgage Loans
or of any action taken or to be taken in connection with the obligations of
the Servicer contemplated herein, or which would be likely to impair
materially the ability of the Servicer to perform under the terms of this
Pooling and Servicing Agreement;
(6) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer of, or compliance by the Servicer with, this
Pooling and Servicing Agreement or the consummation by the Servicer of the
transactions contemplated by this Pooling and Servicing Agreement, except
for such consents, approvals, authorizations or orders, if any, that have
been obtained prior to the Closing Date;
(7) The Servicer represents that its computer and other systems used
in servicing the Mortgage Loans operate in a manner such that the Servicer
can service the Mortgage Loans in accordance with the terms of this Pooling
and Servicing Agreement; and
(8) With respect to each Mortgage Loan, to the extent the Servicer
serviced such Mortgage Loan and to the extent the Servicer provided monthly
reports to the three credit repositories, the Servicer has fully furnished,
in accordance with the Fair Credit Reporting Act and its implementing
regulation, accurate and compete information (i.e., favorable and
unfavorable) on its borrower credit files to Equifax, Experian, and Trans
Union Credit Information Company (three of the national credit
repositories), on a monthly basis.
III-2
SCHEDULE IIIA
Further Representations and Warranties of Saxon
(1) Mortgage Loan Schedule. With respect to each Mortgage Loan, as of
the applicable Cut-off Date, each of (1) the last Due Date on which a
payment was actually applied to the outstanding principal balance of each
Mortgage Loan; (2) the Stated Principal Balance of each Mortgage Loan,
after deduction of payments of principal due and collected on or before the
applicable Cut-off Date; and (3) the Servicing Transfer Date for each
Mortgage Loan, in each case, as listed on the Mortgage Loan Schedule, is
true and correct;
(2) Payments Current. Unless otherwise indicated on the related
Mortgage Loan Schedule, with respect to each Mortgage Loan, no Scheduled
Payment is 30 days or more Delinquent as of the Cut-off Date nor has any
Payment been 30 days or more Delinquent at any time from and after the
Servicing Transfer Date through the Cut-off Date;
(3) Original Terms Unmodified. With respect to each Mortgage Loan, the
terms of the Mortgage Note and Mortgage have not been impaired, waived,
altered or modified by or on behalf of the Servicer from and after the
Servicing Transfer Date;
(4) No Satisfaction of Mortgage. With respect to each Mortgage Loan,
since the related Servicing Transfer Date and except for prepayments in
full, the Mortgage has not been satisfied, cancelled, subordinated or
rescinded, in whole or in part, and the Mortgaged Property has not been
released from the lien of the Mortgage, in whole or in part, nor has any
instrument been executed that would effect any such release, cancellation,
subordination or rescission. From and after the Servicing Transfer Date,
the Servicer has not waived the performance by the Mortgagor of any action,
if the Mortgagor's failure to perform such action would cause the Mortgage
Loan to be in default, nor has the Servicer waived any default resulting
from any action or inaction by the Mortgagor;
(5) No Defaults. With respect to each Mortgage Loan, to the best
knowledge of the Servicer, other than payments due but not yet 30 days
Delinquent, there is no material default, breach, violation or event which
would permit acceleration existing under the Mortgage or the Mortgage Note;
(6) Escrow Payments/Interest Rate Adjustments. With respect to each
Mortgage Loan, since the Servicing Transfer Date, the servicing and
collection practices used by the Servicer with respect to such Mortgage
Loan have been in all material respects in compliance with Accepted
Servicing Practices, applicable laws and regulations, and have been in all
material respects legal and proper. With respect to escrow deposits and
Escrow Payments, if any, all such deposits and payments received by the
Servicer are in the possession of, or under the control of, the Servicer
and there exist no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made. All Escrow Payments
have been collected in full
III-A-1
compliance with state and federal law and the provisions of the related
Mortgage Note and Mortgage (to the extent not otherwise prohibited by law).
From and after the Servicing Transfer Date, all Mortgage Rate adjustments
(if any) have been made in strict compliance with state and federal law and
the terms of the related Mortgage Note;
(7) Other Insurance Policies. The improvements upon each Mortgaged
Property are covered by a valid and existing hazard insurance policy with a
generally acceptable carrier that provides for fire and extended coverage
and coverage for such other hazards as are customary in the area where the
Mortgaged Property is located; and
(8) Servicemembers Civil Relief Act. With respect to each Mortgage
Loan, from and after the Servicing Transfer Date, no Mortgagor has notified
the Servicer, and the Servicer has no knowledge, of any relief requested
and allowed to the Mortgagor under the Servicemembers Civil Relief Act or
any similar state or local law.
III-A-2
SCHEDULE IV
(a) Due Organization and Authority. The Unaffiliated Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
state of New York and has all licenses necessary to carry on its business
as now being conducted and is licensed, qualified and in good standing in
each state wherein it owns or leases any material properties or where a
Mortgaged Property is located, if the laws of such state require licensing
or qualification in order to conduct business of the type conducted by the
Unaffiliated Seller, and in any event the Unaffiliated Seller is in
compliance with the laws of any such state to the extent necessary; the
Unaffiliated Seller has the full corporate power, authority and legal right
to execute and deliver this Agreement and to perform its obligations
hereunder; the execution, delivery and performance of this Agreement by the
Unaffiliated Seller and the consummation of the transactions contemplated
hereby have been duly and validly authorized; this Agreement and all
agreements contemplated hereby have been duly executed and delivered and
constitute the valid, legal, binding and enforceable obligations of the
Unaffiliated Seller, regardless of whether such enforcement is sought in a
proceeding in equity or at law; and all requisite corporate action has been
taken by the Unaffiliated Seller to make this Agreement and all agreements
contemplated hereby valid and binding upon the Unaffiliated Seller in
accordance with their terms;
(b) No Conflicts. Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the fulfillment
of or compliance with the terms and conditions of this Agreement, will
conflict with or result in a breach of any of the terms, conditions or
provisions of the Unaffiliated Seller's charter or by-laws or any legal
restriction or any agreement or instrument to which the Unaffiliated Seller
is now a party or by which it is bound, or constitute a default or result
in an acceleration under any of the foregoing, except such unfulfillment,
non-compliance or default or acceleration does not in the aggregate have a
material adverse effect on the operation, business, condition (business or
otherwise) of the Unaffiliated Seller or result in the violation of any
law, rule, regulation, order, judgment or decree to which the Unaffiliated
Seller or its property is subject, except such violation does not in the
aggregate have a material adverse effect on the operation, business,
condition (business or otherwise) of the Unaffiliated Seller or result in
the creation or imposition of any lien, charge or encumbrance that would
have an adverse effect upon any of its properties pursuant to the terms of
any mortgage, contract, deed of trust or other instrument;
(c) No Litigation Pending. There is no action, suit, proceeding or
investigation pending nor, to the Unaffiliated Seller's knowledge,
threatened against the Unaffiliated Seller, before any court,
administrative agency or other tribunal asserting the invalidity of this
Agreement, seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or which, either in any one instance or in
the aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Unaffiliated
Seller, or in any material impairment of the right or ability of the
Unaffiliated Seller to carry on its business substantially as now
conducted, or which would draw into question the validity of this Agreement
or of any action taken or to be taken in connection with the obligations of
the Unaffiliated Seller contemplated herein, or
IV-1
which would be likely to impair materially the ability of the Unaffiliated
Seller to perform under the terms of this Agreement; and
(d) No Consent Required. No consent, approval, authorization or order of, or
registration or filing with, or notice to any court or governmental agency
or body including HUD, the FHA or the VA is required for the execution,
delivery and performance by the Unaffiliated Seller of or compliance by the
Unaffiliated Seller with this Agreement or the consummation of the
transactions contemplated by this Agreement, or if required, such approval
has been obtained prior to the Closing Date.
IV-2
