EXECUTION COPY
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ABN AMRO MORTGAGE CORPORATION
Depositor
and
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
Seller and Servicer
and
U.S. BANK NATIONAL ASSOCIATION
Trustee and Custodian
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2003
$303,329,257
Mortgage Pass-Through Certificates
SERIES 2003-11
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF TRUST FUND;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.1 Conveyance of Trust Fund.......................................37
Section 2.2 Acceptance by Custodian. ......................................40
Section 2.3 Representations and Warranties of the Depositor with respect
to the Mortgage Loans..........................................43
Section 2.4 Authentication and Delivery of Certificates; Designation of
Certificates as REMIC Regular and Residual Interests...........46
Section 2.5 Designation of Startup Day.....................................48
Section 2.6 No Contributions...............................................48
Section 2.7 Representations and Warranties of the Servicer.................48
ARTICLE III
ADMINISTRATION AND SERVICING OF LOANS
Section 3.1 Servicer to Act as Servicer; Administration of the Loans.......50
Section 3.2 Collection of Certain Loan Payments; Custodial Account
for P&I........................................................53
Section 3.3 Permitted Withdrawals from the Custodial Account for P&I.......55
Section 3.4 Taxes, Assessments and Similar Items; Escrow Accounts..........57
Section 3.5 Maintenance of Insurance.......................................58
Section 3.6 Enforcement of Due-on-Sale Clauses; Assumption and
Substitution Agreements........................................59
Section 3.7 Realization upon Defaulted Loans...............................60
Section 3.8 Trustee to Cooperate; Release of Mortgage Files................62
Section 3.9 Servicing Compensation.........................................63
Section 3.10 Reports to the Trustee.........................................63
Section 3.11 Annual Statement as to Compliance..............................64
Section 3.12 Annual Independent Public Accountants' Servicing Report........64
Section 3.13 Access to Certain Documentation and Information Regarding
the Loans......................................................65
Section 3.14 [Reserved].....................................................65
Section 3.15 Sale of Defaulted Loans and REO Properties.....................65
Section 3.16 Delegation of Duties...........................................66
Section 3.17 [Reserved].....................................................67
Section 3.18 [Reserved].....................................................67
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Section 3.19 Appointment of a Special Servicer..............................67
Section 3.20 Allocation of Realized Losses..................................67
Section 3.21 Maintenance of the Rounding Accounts; Collections Thereunder...68
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; ADVANCES;
STATEMENTS AND REPORTS
Section 4.1 Distributions to Certificateholders............................69
Section 4.2 Statements to Certificateholders...............................74
Section 4.3 Advances by the Servicer; Distribution Reports to the Trustee..76
Section 4.4 Nonrecoverable Advances........................................77
Section 4.5 Foreclosure Reports............................................78
Section 4.6 Adjustment of Servicing Fees with Respect to Payoffs...........78
Section 4.7 Prohibited Transactions Taxes and Other Taxes..................78
Section 4.8 Tax Administration.............................................79
Section 4.9 Equal Status of Servicing Fee..................................79
Section 4.10 Appointment of Paying Agent....................................79
ARTICLE V
THE CERTIFICATES
Section 5.1 The Certificates...............................................80
Section 5.2 Certificates Issuable in Classes; Distributions of Principal
and Interest; Authorized Denominations.........................86
Section 5.3 Registration of Transfer and Exchange of Certificates..........86
Section 5.4 Mutilated, Destroyed, Lost or Stolen Certificates..............87
Section 5.5 Persons Deemed Owners..........................................88
Section 5.6 Temporary Certificates.........................................88
Section 5.7 Book-Entry for Book-Entry Certificates.........................88
Section 5.8 Notices to Clearing Agency.....................................90
Section 5.9 Definitive Certificates........................................90
Section 5.10 Office for Transfer of Certificates............................90
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.1 Liability of the Depositor and the Servicer....................91
Section 6.2 Merger or Consolidation of the Depositor or the Servicer.......91
Section 6.3 Limitation on Liability of the Servicer and Others.............91
Section 6.4 Servicer Not to Resign.........................................92
Section 6.5 Trustee Access.................................................92
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ARTICLE VII
DEFAULT
Section 7.1 Events of Default..............................................93
Section 7.2 Other Remedies of Trustee......................................95
Section 7.3 Directions by Certificateholders and Duties of Trustee During
Event of Default...............................................95
Section 7.4 Action upon Certain Failures of Servicer and upon Event of
Default........................................................95
Section 7.5 Appointment of Successor Servicer..............................96
Section 7.6 Notification to Certificateholders.............................97
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.1 Duties of Trustee..............................................98
Section 8.2 Certain Matters Affecting Trustee. Except as otherwise
provided in Section 8.1.......................................100
Section 8.3 Trustee Not Required to Make Investigation....................101
Section 8.4 Trustee Not Liable for Certificates or Loans..................101
Section 8.5 Trustee May Own Certificates..................................102
Section 8.6 Servicer to Pay Trustee's Fees and Expenses...................102
Section 8.7 Eligibility Requirements for Trustee..........................103
Section 8.8 Resignation and Removal of Trustee............................103
Section 8.9 Successor Trustee.............................................104
Section 8.10 Merger or Consolidation of Trustee............................104
Section 8.11 Appointment of Co-Trustee or Separate Trustee.................105
Section 8.12 Authenticating Agent..........................................106
Section 8.13 Bloomberg.....................................................107
Section 8.14 The Custodian. ..............................................107
ARTICLE IX
TERMINATION
Section 9.1 Termination upon Purchase by the Servicer or Liquidation
of All Loans..................................................108
Section 9.2 Trusts Irrevocable............................................109
Section 9.3 Additional Termination Requirements...........................109
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1 Amendment.....................................................111
Section 10.2 Recordation of Agreement......................................112
Section 10.3 Limitation on Rights of Certificateholders....................113
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Section 10.4 Governing Law; Jurisdiction...................................113
Section 10.5 Notices.......................................................114
Section 10.6 Severability of Provisions....................................114
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EXHIBITS
Exhibit A - Forms of Certificates
Exhibit B - Form of Residual Certificate
Exhibit C-1 - Form of Custodian's Initial Certification
Exhibit C-2 - Form of Custodian's Interim Certification
Exhibit C-3 - Form of Final Certification
Exhibit D - Schedule of Loans
Exhibit E - Fields of Loan Information
Exhibit F - Form of Transferor Certificate for Privately Offered
Certificates
Exhibit G - Form of Transferee's Certificate for Privately Offered
Certificates
Exhibit H - [Reserved]
Exhibit I - Form of Transferor Certificate
Exhibit J - Form of Transferee Affidavit and Agreement
Exhibit K - Form of Additional Matter Incorporated into the Form of the
Certificates
Exhibit L - Form of Rule 144A Investment Representation
Exhibit M - Aggregate Planned Principal Balances
Exhibit N - [Reserved]
Exhibit O - [Reserved]
Exhibit P - [Reserved]
Exhibit Q - Bloomberg Data
Exhibit R - Form of Special Servicing Agreement
Exhibit S - Form of Form 10-K Certificate
Exhibit T - Form of Back-up Certification to Form 10-K Certificate
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This Pooling and Servicing Agreement, dated and effective as of
September 1, 2003 (this "Agreement"), is executed by and among ABN AMRO Mortgage
Corporation, as depositor (the "Depositor"), Washington Mutual Mortgage
Securities Corp., as seller and servicer (the "Servicer"), and U.S. Bank
National Association, as trustee (the "Trustee"). Capitalized terms used in this
Agreement and not otherwise defined have the meanings ascribed to such terms in
Article I hereof.
PRELIMINARY STATEMENT
The Depositor at the Closing Date is the owner of the Loans and the
other property being conveyed by it to the Trustee for inclusion in the Trust
Fund. On the Closing Date, the Depositor will acquire the Certificates from the
Trust Fund as consideration for its transfer to the Trust Fund of the Loans and
certain other assets and will be the owner of the Certificates. The Depositor
has duly authorized the execution and delivery of this Agreement to provide for
the conveyance to the Trustee of the Loans and the issuance to the Depositor of
the Certificates representing in the aggregate the entire beneficial ownership
of the Trust Fund. All covenants and agreements made by the Depositor, the
Servicer and the Trustee herein with respect to the Loans and the other property
constituting the Trust Fund are for the benefit of the Holders from time to time
of the Certificates. The Depositor and the Servicer are entering into this
Agreement, and the Trustee is accepting the trust created hereby, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
The Certificates issued hereunder, other than the Class B-3, Class B-4
and Class B-5 Certificates have been offered for sale pursuant to a Prospectus,
dated January 23, 2003, and a Prospectus Supplement, dated September 24, 2003 of
the Depositor (together, the "Prospectus"). The Class B-3, Class B-4 and Class
B-5 Certificates have been offered for sale pursuant to a Private Placement
Memorandum dated September 26, 2003. The Trust Fund created hereunder is
intended to be the "Trust" as described in the Prospectus and the Private
Placement Memorandum and the Certificates are intended to be the "Certificates"
described therein.
As provided herein, the Trustee will elect to treat the segregated pool
of assets consisting of the Loans and other related assets in the Trust Fund
subject to this Agreement as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as "REMIC I." Component R-1 of the
Class R Certificate will represent the sole class of "residual interests" in
REMIC I for purposes of the REMIC Provisions under federal income tax law.
As provided herein, the Trustee will elect to treat the segregated pool
of assets consisting of the REMIC I Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC II." Component R-2 of the Class R Certificate will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designations, the Remittance Rate and initial Class Principal Balance or
Notional Balance for each Class of Certificates which, together with the Class
R-2 Component, constitute the entire beneficial interests in REMIC II.
Determined solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each of the REMIC I
Regular Interests and for each Class of Certificates shall be the first
Distribution Date that is at least two years after the
end of the remaining amortization schedule of the Loan in the Mortgage Pool that
has, as of the Closing Date, the longest remaining amortization schedule,
irrespective of its scheduled maturity. The following table sets forth the
designation, Remittance Rate, initial Class Principal Balance, and Last
Scheduled Distribution Date for each Class of Certificates comprising the
beneficial interests in REMIC II and the Class R Certificate:
Initial Class Principal Last Scheduled
Designation Remittance Rate(1) or Notional Balance Distribution Date*
--------------- ------------------ ----------------------- ------------------
Class A-1 4.25% $97,300,000.00 October 25, 2033
Class A-2 5.50%(2) 31,717,181.00 October 25, 2033
Class A-3 5.50% 23,937,000.00 October 25, 2033
Class A-4(3)(4) 5.50% 24,396,200.00 October 25, 2033
Class A-5(3)(4) 5.50% 3,297,333.00 October 25, 2033
Class A-6 6.00% 13,080,887.00 October 25, 2033
Class A-7 6.00% 6,012,033.00 October 25, 2033
Class A-8 6.00% 12,510,712.00 October 25, 2033
Class A-9 6.00% 33,455,515.00 October 25, 2033
Class A-10 6.00% 11,000,000.00 October 25, 2033
Class A-11 6.00% 3,000,000.00 October 25, 2033
Class A-12 6.00% 6,000,000.00 October 25, 2033
Class A-13 0.00%(5) 7,732,650.00 October 25, 2033
Class A-14 4.00% 35,213,000.00 October 25, 2033
Class A-X 5.50%(6) 22,226.24 October 25, 2033
Class A-P 0.00%(7) 18,962,260.81 October 25, 2033
Class M 5.50% 3,639,951.00 October 25, 2033
Class B-1 5.50% 1,668,310.00 October 25, 2033
Class B-2 5.50% 788,656.00 October 25, 2033
Class B-3 5.50% 424,660.00 October 25, 2033
Class B-4 5.50% 454,993.00 October 25, 2033
Class B-5 5.50% 454,997.30 October 25, 2033
Class R+ 5.50% $ 100.00(8) October 25, 2033
___________________
* The Distribution Date in the month after the maturity date for the latest
maturing Loan.
+ The Class R Certificate is entitled to receive the Residual Distribution
Amount and Excess Liquidation Proceeds.
(1) Interest distributed to the Certificates (other than the Principal Only
Certificates) on each Distribution Date will have accrued during the
related Interest Accrual Period (as defined herein) at the applicable per
annum Remittance Rate.
(2) The Class A-2 Certificates will accrue interest on the Class A-2 Notional
Amount (as defined herein).
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(3) A certain portion of realized losses, other than excess losses, otherwise
allocable to the Class A-3 Certificates and Class A-4 Certificates will be
allocated to the Class A-5 certificates until the class principal balance
of the Class A-5 certificates is reduced to zero.
(4) The Class A-4 Certificates and Class A-5 Certificates will generally not be
entitled to receive any distributions of principal, Principal Prepayments
or Liquidation Proceeds until the Distribution Date in October 2008.
(5) The Class A-13 Certificates will not be entitled to distributions of
interest.
(6) The Class A-X Certificates will accrue interest on the Class A-X Notional
Amount (as defined herein).
(7) The Class A-P Certificates will not be entitled to distributions of
interest and will receive principal only in respect of the Loans with
Pass-Through Rates that are less than 5.50% per annum.
(8) The Class R Certificate will be comprised of two components, component R-1,
which represents the sole residual interest in REMIC I (as defined herein),
and component R-2, which represents the sole residual interest in REMIC II
(as defined herein).
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W I T N E S S E T H
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
context otherwise requires, shall have the meanings specified in this Article:
ADVANCE: An Advance made by the Servicer pursuant to Section 4.3.
AFFILIATE: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. The Trustee may obtain
and rely on an Officer's Certificate of the Servicer or the Depositor to
determine whether any Person is an Affiliate of such party.
AGGREGATE CERTIFICATE PRINCIPAL BALANCE: At any given time, the sum of
the then current Class Principal Balances of all Classes of Certificates.
AGGREGATE PLANNED PRINCIPAL BALANCE: For any Distribution Date, the
amount set forth in the table attached hereto as Exhibit M for such Distribution
Date, for the aggregate Class Principal Balance of the Class A-1, Class A-3 and
Class A-14 Certificates.
AGREEMENT: This Pooling and Servicing Agreement and all amendments and
supplements hereto.
ALTA: The American Land Title Association, or any successor.
ANNIVERSARY: Each anniversary of the Cut-off Date.
APPRAISED VALUE: The amount set forth in an appraisal made by or for
the mortgage originator in connection with its origination of each Loan.
ASSIGNMENT: An assignment of the Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction where the related Mortgaged Property is located to reflect of
record the sale and assignment of the Loan to the Trustee, which assignment,
notice of transfer or equivalent instrument may, if permitted by law, be in the
form of one or more
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blanket assignments covering Mortgages secured by Mortgaged Properties located
in the same county.
AUTHENTICATING AGENT: Any authenticating agent appointed by the Trustee
pursuant to Section 8.13.
AUTHORIZED DENOMINATION: With respect to the Senior Certificates (other
than the Retail Certificates, Class A-2, Class A-X and Class R Certificate), an
initial Certificate Principal Balance equal to $25,000 each and integral
multiples of $1 in excess thereof. With respect to the Retail Certificates
(other than the Retail Lottery Certificates), an initial Certificate Principal
Balance equal to $1,000 each and integral multiples of $1 in excess thereof.
With respect to the Retail Lottery Certificates, an initial Certificate
Principal Balance equal to $1,000 each and integral multiples of $1,000 in
excess thereof. With respect to the Class A-2 Certificates, an initial Class
Notional Amount equal to $500,000 each and integral multiples of $1 in excess
thereof. With respect to the Class A-X Certificates, an initial Class Notional
Amount equal to $100,000 each and integral multiples of $1 in excess thereof.
With respect to the Class R Certificate, one Certificate with a Percentage
Interest equal to 100%. With respect to the Junior Subordinate Certificates, an
Initial Certificate Principal Balance equal to $100,000 each and integral
multiples of $1 in excess thereof, except with respect to the Class B-5
Certificates, which may be issued in a different amount that is not a multiple
of $1.
AVAILABLE DISTRIBUTION AMOUNT: With respect to the Loans, the sum of
the following amounts:
(1) the total amount of all cash received by or on behalf of
the Servicer with respect to such Loans by the Determination Date for
such Distribution Date and not previously distributed (including
Liquidation Proceeds and Insurance Proceeds), except:
(a) all Prepaid Monthly Payments;
(b) all Curtailments received after the applicable
Prepayment Period (together with any interest payment received
with such prepayments to the extent that it represents the
payment of interest accrued on a related Loan subsequent to
the applicable Prepayment Period);
(c) all Payoffs received after the Payoff Period
immediately preceding such Distribution Date (together with
any interest payment received with such Payoffs to the extent
that it represents the payment of interest accrued on such
Loan for the period subsequent to the calendar month preceding
such Distribution Date will not be included in the calculation
of Available Distribution Amount for any Distribution Date),
and any prepayment penalties related to the Mortgage Loans;
(d) Insurance Proceeds and Liquidation Proceeds on
such Loans received after the applicable Prepayment Period;
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(e) all amounts in the Custodial Account for P & I
which are due and reimbursable to the Servicer pursuant to the
terms of this Agreement;
(f) the Servicing Fee for each such Loan; and
(g) Excess Liquidation Proceeds;
(2) to the extent advanced by the Servicer and not previously
distributed, the amount of any Advance made by the Servicer to the
Trustee with respect to such Distribution Date relating to such Loans;
(3) to the extent advanced by the Servicer and not previously
distributed, any amount payable as Compensating Interest by the
Servicer on such Distribution Date relating to such Loans; and
(4) the total amount, to the extent not previously
distributed, of all cash received by the Distribution Date by the
Trustee or the Servicer, in respect of a Purchase Obligation under
Section 2.2 and Section 2.3 or any permitted repurchase of a Loan.
BANKRUPTCY COVERAGE: As of the Cut-Off Date, $100,000, and thereafter,
the initial Bankruptcy Coverage amount less (a) any scheduled or permissible
reduction in the amount of Bankruptcy Coverage pursuant to this definition and
(b) Bankruptcy Losses allocated to the Certificates. The Bankruptcy Coverage may
be reduced upon written confirmation from each Rating Agency that such reduction
will not adversely affect the then current ratings assigned to the Certificates
by each Rating Agency.
BANKRUPTCY LOSS: A loss on a Loan arising out of (i) a reduction in the
scheduled Monthly Payment for such Loan by a court of competent jurisdiction in
a case under the United States Bankruptcy Code, other than any such reduction
that arises out of clause (ii) of this definition of "Bankruptcy Loss,"
including, without limitation, any such reduction that results in a permanent
forgiveness of principal, or (ii) with respect to any Loan, a valuation, by a
court of competent jurisdiction in a case under such Bankruptcy Code, of the
related Mortgaged Property in an amount less than the then outstanding Principal
Balance of such Loan.
BENEFICIAL HOLDER: A Person holding a beneficial interest in any
Book-Entry Certificate as or through a DTC Participant or an Indirect DTC
Participant or a Person holding a beneficial interest in any Definitive
Certificate.
BOOK-ENTRY CERTIFICATES: The Class A Certificates, the Class M
Certificates, the Class B-1 Certificates and the Class B-2 Certificates
beneficial ownership and transfers of which shall be made through book entries
as described in Section 5.7.
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BUSINESS DAY: Any day other than a Saturday, a Sunday, or a day on
which banking institutions in Chicago, Illinois, Boston, Massachusetts, New
York, New York, St. Xxxx, Minnesota or the state in which the office of the
Servicer is located, are authorized or obligated by law or executive order to be
closed.
CERTIFICATE: Any one of the Certificates issued pursuant to this
Agreement, executed by the Trustee and authenticated by or on behalf of the
Trustee hereunder in substantially one of the forms set forth in Exhibits A and
B hereto. The additional matter appearing in Exhibit K shall be deemed
incorporated into Exhibits A and B as though set forth at the end of Exhibit A
and at the end of Exhibit B, as applicable.
CERTIFICATE ACCOUNT: The separate trust account created and maintained
with the Trustee or any other bank or trust company acceptable to each Rating
Agency which is incorporated or organized under the laws of the United States or
any state thereof, which account shall bear a designation clearly indicating
that the funds deposited therein are held in trust for the benefit of the
Trustee on behalf of the Certificateholders or any other account serving a
similar function acceptable to each Rating Agency. Funds in the Certificate
Account in respect of the Loans and amounts withdrawn from the Certificate
Account attributable to the Loans shall be accounted for separately. Funds on
deposit in the Certificate Account may be invested in Eligible Investments and
reinvestment earnings thereon shall be paid to the Servicer as additional
compensation. Funds deposited in the Certificate Account (exclusive of the
Servicing Fee) shall be held in trust for the Certificateholders and for the
uses and purposes set forth in Section 3.2, Section 3.3 and Section 4.1.
CERTIFICATE DISTRIBUTION AMOUNT: (I) For any Distribution Date prior to
the Credit Support Depletion Date, the Available Distribution Amount shall be
distributed to the Certificates in the following amounts and priority:
(a) with respect to the Senior Certificates:
(i) first, to the Class A-P Certificates, the sum of the
Discount Fractional Principal Amounts for such Distribution Date;
(ii) second, to the Senior Certificates entitled to receive
interest previously unpaid and then current Interest Distribution
Amounts, pro rata according to such amount payable to the extent of the
amounts available;
(iii) third, the Senior Principal Amount to the Senior
Certificates then entitled to principal (other than the Class A-P
Certificates), in the following manner and order of priority:
(a) first, to the Class R Certificate, until its
Class Principal Balance has been reduced to
zero;
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(b) second, to the Class A-4 Certificates and
Class A-5 Certificates, pro rata, up to the
Lockout Principal Amount for such
Distribution Date, until their respective
Class Principal Balances have been reduced
to zero;
(c) third, to the Class A-1, Class A-3 and Class
A-14 Certificates to the extent necessary to
reduce their aggregate Class Principal
Balance to their Aggregate Planned Principal
Balance for such Distribution Date in the
following manner and order of priority:
(i) first, to the Class A-1 Certificates
and Class A-14 Certificates, pro
rata, until their Class Principal
Balances have been reduced to zero;
and
(ii) second, to the Class A-3
Certificates, until its Class
Principal Balance has been reduced
to zero;
(d) fourth, concurrently as follows:
(i) 8.3333336028% of the Senior
Principal Amount distributable under
clause (I)(a)(iii)(d) shall be
distributed to the Class X- 00
Certificates, until its Class
Principal Balance has been reduced
to zero; and
(ii) 91.6666663972% of the Senior
Principal Amount distributable under
clause (I)(a)(iii)(d) shall be
distributed in the following manner
and order of priority:
(A) first, to the Class A-6
Certificates and Class A-10
Certificates, pro rata,
until their respective
Class Principal Balances
have been reduced to zero;
(B) second, to the Class A-7
Certificates and Class A-11
Certificates, pro rata,
until their respective
Class Principal Balances
have been reduced to zero;
(C) third, to the Class A-8
Certificates and Class A-12
Certificates, pro rata,
until their respective
Class Principal Balances
have been reduced to zero;
and
(D) fifth, to the Class A-9
Certificates, until its
Class Principal Balance has
been reduced to zero; and
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(e) fifth, to the Class A-1, Class A-3 and Class
A-14 Certificates, without regard to their
Aggregate Planned Principal Balance for such
Distribution Date, in the manner and order of
priority set forth in clause (I)(a)(iii)(c),
until their Class Principal Balances have been
reduced to zero; and
(f) sixth, to the Class A-4 Certificates and Class
A-5 Certificates, pro rata, until their
respective Class Principal Balances have been
reduced to zero;
(iv) fourth, to the Class A-P Certificates, up to the Subordinate
Principal Amount (determined without regard to the proviso of such
definition) for such Distribution Date, the sum of the Discount
Fractional Principal Shortfalls payable to the Class A-P Certificates
on previous Distribution Dates pursuant to clause (I)(a)(v) of this
definition of "Certificate Distribution Amount" and remaining unpaid
from such previous Distribution Dates; and
(v) fifth, to the Class A-P Certificates, up to the Subordinate
Principal Amount (determined without regard to the proviso of such
definition) for such Distribution Date (less any amounts distributed to
the Class A-P Certificates pursuant to paragraph (I)(a)(iv)), the sum
of the Discount Fractional Principal Shortfalls for such Distribution
Date; provided that any amounts distributed in respect of the Discount
Fractional Principal Shortfall pursuant to paragraph (I)(a)(iv) or this
paragraph (I)(a)(v) of this definition of "Certificate Distribution
Amount" shall not cause a further reduction of the Class A-P Class
Principal Balance.
(b) with respect to the Senior Certificates and Subordinate
Certificates, on any Distribution Date prior to the Credit
Support Depletion Date, to the extent of the Available
Distribution Amount remaining:
(i) first, to the Class M, Class B-1, Class B-2, Class B-3, Class
B-4 and Class B-5 Certificates, in their order of seniority, the
following:
(a) their respective amounts of previously unpaid and
then current Interest Distribution Amounts;
(b) their pro rata share, according to their respective
Class Principal Balances, of the applicable
Subordinate Principal Amount allocable pursuant to
the definition of "Subordinate Principal Amount"
herein, until their Class Principal Balances have
been reduced to zero;
(ii) second, to the Senior Certificates and Subordinate
Certificates in their order of seniority, the amount of unreimbursed
Realized Losses previously allocated to such Class, if any, provided,
that any amounts distributed in respect of losses pursuant to this
paragraph (I)(B)(ii) of this definition of "Certificate Distribution
Amount" shall not cause a further
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reduction in the Class Principal Balances of the Senior Certificates or
Subordinate Certificates; and
(iii)third, to the Class R Certificate, the Residual Distribution
Amount;
(II) for any Distribution Date on or after the Credit Support Depletion
Date, the Available Distribution Amount remaining, shall be distributed to the
outstanding Senior Certificates in the following amounts and priority:
(a) first, to the Class A-P Certificates, the sum of the Discount
Fractional Principal Amounts for such Distribution Date;
(b) second, to the Senior Certificates then entitled to interest
previously unpaid and then current Interest Distribution Amounts, pro rata,
according to such amount payable to the extent of amounts available;
(c) third, to the Senior Certificates (other than the Interest Only
Certificates and Class A-P Certificates), the Senior Principal Amount, pro rata,
according to their respective Class Principal Balances;
(d) fourth, to the Senior Certificates, pro rata, according to their
respective Class Principal Balances, the amount of unreimbursed Realized Losses
previously allocated to each such Class; and
(e) fifth, to the Class R Certificate, the Residual Distribution Amount
for such Distribution Date.
CERTIFICATE PRINCIPAL BALANCE: For each Certificate of any Class, the
portion of the related Class Principal Balance, if any, represented by such
Certificate.
CERTIFICATE REGISTER AND CERTIFICATE REGISTRAR: The register maintained
and the registrar appointed, respectively, pursuant to Section 5.3. Initially,
the Certificate Registrar shall be the Trustee.
CERTIFICATEHOLDER OR HOLDER: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purposes of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor, the Servicer or any Affiliate thereof shall be deemed not
to be outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite percentage of Percentage
Interests necessary to effect any such consent has been obtained; provided, that
the Trustee, the Certificate Registrar and the Paying Agent may conclusively
rely upon an Officer's Certificate to determine whether any Person is an
Affiliate of the Depositor or the Servicer.
CERTIFICATEHOLDERS' REPORT: As defined in Section 4.2(a).
10
CLASS: All Certificates having the same priority and rights to payments
from the Available Distribution Amount, designated as a separate Class, as set
forth in the forms of Certificates attached hereto as Exhibits A and B.
CLASS A CERTIFICATES: The Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7, Class A-8, Class A-9, Class A-10, Class A-11,
Class A-12, Class A-13, Class A-14, Class A-X and Class A-P Certificates,
collectively, and designated as such on the face thereof in substantially the
form attached hereto as Exhibit A-1.
CLASS A-2 NOTIONAL AMOUNT: As of the Closing Date $31,717,181, and
thereafter, an amount equal to (a) the sum of (i) 1.25% of the Class Principal
Balance of the Class A-1 Certificates immediately prior to such Distribution
Date and (ii) 1.50% of the Class Principal Balance of the Class A-14
Certificates immediately prior to such Distribution Date, divided by (b) 5.50%.
CLASS A-X NOTIONAL AMOUNT: As of the Closing Date y $22,226, and
thereafter, with respect to any Distribution Date will equal the total Principal
Balance, as of the first day of the month preceding such Distribution Date
(after giving effect to all payments scheduled to be made on such Distribution
Date whether or not received), of the Premium Loans multiplied by the following
fraction:
the weighted average of the Pass-Through Rates of the
Premium Loans as of the first day of such month minus 5.50%
-----------------------------------------------------------
5.50%
CLASS NOTIONAL AMOUNT: With respect to the Class A-2 Certificates and
Class A-X Certificates, the Class A-2 Notional Amount and Class A-X Notional
Amount, respectively.
CLASS PRINCIPAL BALANCE: For any Class of Certificates (other than the
Interest Only Certificates), the applicable initial Class Principal Balance set
forth in the Preliminary Statement hereto, corresponding to the rights of such
Class in payments of principal due to be passed through to Certificateholders
from principal payments on the Loans, as reduced from time to time by (x)
distributions of principal to Certificateholders of such Class and (y) the
portion of Realized Losses allocated to the Class Principal Balance of such
Class pursuant to Section 3.20 with respect to a given Distribution Date. For
any Distribution Date, the reduction of the Class Principal Balance of any Class
of Certificates pursuant to Section 3.20 shall be deemed effective prior to the
determination and distribution of principal on such Class pursuant to the
definition of "Certificate Distribution Amount". Notwithstanding the foregoing,
the Class Principal Balance of the most subordinate Class of Certificates
outstanding at any time shall be equal to the aggregate Scheduled Principal
Balance of all of the Loans less the Class Principal Balance of all other
Classes of Certificates. The Class Principal Balance for the Class A-1
Certificates shall be referred to as the "Class A-1 Principal Balance", the
Class Principal Balance for the Class A-2 Certificates shall be referred to as
the "Class A-2 Principal Balance" and so on. The Class Principal Balances of the
Interest Only Certificates shall be zero.
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CLASS R CERTIFICATE: The Certificate designated as "Class R" on the
face thereof in substantially the form attached hereto as Exhibit B, that is
composed of Components R-1 and R-2 each of which has been designated as the sole
class of "residual interests" in REMIC I and REMIC II, respectively, pursuant to
Section 2.1.
CLASS R CERTIFICATEHOLDER: The registered Holder of the Class R
Certificate.
CLEARING AGENCY: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities and Exchange Act of 1934, as amended,
which initially shall be DTC.
CLOSING DATE: September 26, 2003.
CODE: The Internal Revenue Code of 1986, as amended.
COMPENSATING INTEREST: For any Distribution Date, the lesser of (i) the
sum of (a) one-twelfth of 0.03% of the aggregate outstanding Principal Balance
of each Loan as of the second Due Date preceding such Distribution Date, (b) the
aggregate Payoff Earnings for such Distribution Date and (c) the aggregate
Payoff Interest for such Distribution Date and (ii) the aggregate Uncollected
Interest.
CORPORATE TRUST OFFICE: The corporate trust office of the Trustee, at
which at any particular time its corporate trust business with respect to this
Agreement shall be administered, which office at the date of the execution of
this Agreement has a principal address of 0 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx,
XX 00000 Attention: Corporate Trust Services, ABN AMRO 2003-11.
CREDIT SUPPORT DEPLETION DATE: The first Distribution Date on which the
aggregate of the Class Principal Balances of the Subordinate Certificates has
been or will be reduced to zero as a result of principal distributions thereon
and the allocation of Realized Losses on such Distribution Date.
CURTAILMENT: Any payment of principal on a Loan, made by or on behalf
of the related Mortgagor, other than a Monthly Payment, a Prepaid Monthly
Payment or a Payoff, which is applied to reduce the outstanding Principal
Balance of the Loan.
CURTAILMENT SHORTFALL: With respect to any Curtailment applied with a
Monthly Payment, an amount equal to one month's interest on such Curtailment at
the applicable Pass-Through Rate on such Loan.
CUSTODIAL ACCOUNT FOR P&I: The custodial account for principal and
interest established and maintained by, or at the direction of, the Servicer and
caused by the Servicer to be established and maintained pursuant to Section
3.2(b) (i) with the corporate trust department of the Trustee or another
financial institution approved by the Servicer such that the rights of such
Servicer, the Trustee and the Certificateholders thereto shall be fully
protected against the claims of any creditors
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of the Servicer and of any creditors or depositors of the institution in which
such account is maintained, (ii) within FDIC insured accounts (or other accounts
with comparable insurance coverage acceptable to each Rating Agency) created and
maintained, by or at the direction of the Servicer, and monitored by the
Servicer or (iii) in a separate non-trust account without FDIC or other
insurance in an Eligible Institution. In the event that a Custodial Account for
P&I is established pursuant to clause (ii) of the preceding sentence, amounts
held in such Custodial Account for P&I shall not exceed the level of deposit
insurance coverage on such account; accordingly, more than one Custodial Account
for P&I may be established.
CUSTODIAN: A custodian which shall initially be U.S. Bank National
Association. Any Custodian so appointed shall act as agent on behalf of the
Trustee. The Trustee shall remain at all times responsible under the terms of
this Agreement, notwithstanding the fact that certain duties have been assigned
to the Custodian or a sub-custodian.
CUT-OFF DATE: September 1, 2003.
DATA: As defined in Section 8.13.
DECEASED HOLDER: A beneficial Holder of a Retail Lottery Certificate
who was living at the time such Retail Lottery Certificate was acquired and
whose executor, authorized personal representative, surviving tenant by the
entirety, surviving joint tenant or surviving tenant in common or other person
endowed to act on behalf of such Beneficial Holder causes to be furnished to the
Trustee evidence of such Beneficial Holder's death satisfactory to the Trustee
and any tax waivers requested by the Trustee.
DEFAULTED LOAN: As of any Determination Date, any Loan for which any
payment of principal of or interest on such Loan is more than 89 days past due,
determined without giving effect to any grace period permitted by the related
Mortgage or Mortgage Note or any other document in the Mortgage File.
DEFINITIVE CERTIFICATES: As defined in Section 5.7.
DENOMINATION: The amount specified on a Certificate as representing the
aggregate Principal Balance of the Loans as of the Cut-Off Date evidenced by
such Certificate.
DEPOSITOR: ABN AMRO Mortgage Corporation, a Delaware corporation, or
its successor-in-interest.
DEPOSITORY: DTC or any successor thereto.
DEPOSITORY AGREEMENT: The Letter of Representations, dated September
26, 2003 by and among DTC, the Depositor and the Trustee.
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DETERMINATION DATE: A day not later than the 10th day (or, if such 10th
day is not a Business Day, the Business Day immediately succeeding such 10th
day) preceding a related Distribution Date in the month in which such
Distribution Date occurs, as determined by the Servicer.
DISCOUNT FRACTION: For any Discount Loan, the following fraction:
5.50% - the Pass-through Rate on such Discount Loan
---------------------------------------------------
5.50%
DISCOUNT FRACTIONAL PRINCIPAL AMOUNT: On each Distribution Date, an
amount equal to the product of the Discount Fraction multiplied by the sum of
(i) scheduled payments of principal on each Discount Loan due on or before the
related Due Date in respect of which no distribution has been made on any
previous Distribution Date and which were received by the Determination Date, or
which have been advanced as part of an Advance with respect to such Distribution
Date, (ii) the principal portion received in respect of each Discount Loan
during the Prepayment Period of (a) Curtailments, (b) Insurance Proceeds, (c)
the amount, if any, of the principal portion of the Purchase Price pursuant to a
Purchase Obligation or any repurchase of a Discount Loan permitted hereunder and
(d) Liquidation Proceeds and (iii) the principal portion of Payoffs received in
respect of each Discount Loan during the applicable Payoff Period.
DISCOUNT FRACTIONAL PRINCIPAL SHORTFALL: For any Distribution Date, an
amount equal to the Discount Fraction of any Realized Loss on a Discount Loan,
other than a Special Hazard Loss, Fraud Loss or Bankruptcy Loss in excess of the
Special Hazard Coverage, Fraud Coverage or Bankruptcy Coverage, as applicable.
DISCOUNT LOAN: The Loans having Pass-Through Rates of less than 5.50%.
DISQUALIFIED ORGANIZATION: A "disqualified organization" as defined in
Section 860E(e)(5) of the Code, and, for purposes of Section 5.1 herein, as
defined in Section 5.1(b).
DISTRIBUTION DATE: With respect to distributions on the Certificates,
the 25th day (or, if such 25th day is not a Business Day, the Business Day
immediately succeeding such 25th day) of each month, with the first such date
being October 25, 2003. The "related Due Date" for any Distribution Date is the
Due Date immediately preceding such Distribution Date.
DTC: The Depository Trust Company.
DTC PARTICIPANT: A broker, dealer, bank, other financial institution or
other Person for whom DTC effects book-entry transfers and pledges of securities
deposited with DTC.
DUE DATE: The first day of each calendar month, which is the day on
which the Monthly Payment for each Loan is due.
14
ELIGIBLE ACCOUNT: Any account or accounts held and established by the
Servicer or the Trustee in trust for the Certificateholders at any Eligible
Institution.
ELIGIBLE INSTITUTION: An institution having (i) the highest short-term
debt rating, and one of the two highest long-term debt ratings of each Rating
Agency, (ii) with respect to any Custodial Account for P&I, an unsecured
long-term debt rating of at least one of the two highest unsecured long-term
debt ratings of each Rating Agency, or (iii) the approval of each Rating Agency.
Notwithstanding the foregoing, Washington Mutual Bank, FA shall be an "Eligible
Institution" if the following conditions are satisfied: (i) Washington Mutual
Bank, FA is acting as Servicer, (ii) if S&P is a Rating Agency as defined
herein, the long-term unsecured debt obligations of Washington Mutual Bank, FA
are rated no lower than "A-" by S&P and the short-term unsecured debt
obligations of Washington Mutual Bank, FA are rated no lower than "A-2" by S&P,
(iii) if Fitch is the Rating Agency as defined herein, the long-term unsecured
debt obligations of Washington Mutual Bank, FA are rated no lower than "A" by
Fitch and the short-term unsecured debt obligations of Washington Mutual Bank,
FA are rated no lower than "F1" by Fitch and (iv) if Xxxxx'x is a Rating Agency
as defined herein, the long-term unsecured debt obligations of Washington Mutual
Bank, FA are rated no lower than "A2" by Moody's and the short-term unsecured
debt obligations of Washington Mutual Bank, FA are rate no lower than "P-1" by
Moody's; PROVIDED, that if the long- term or short-term unsecured debt
obligations of Washington Mutual Bank, FA are downgraded by any of the Rating
Agencies to a rating lower than the applicable rating specified in this
sentence, Washington Mutual Bank, FA shall cease to be an "Eligible Institution"
ten Business Days after notification of such downgrade.
ELIGIBLE INVESTMENTS: Any one or more of the following obligations or
securities payable on demand or having a scheduled maturity on or before the
Business Day preceding the following Distribution Date, (or with regard to the
Certificate Account maintained with the Trustee or the Servicer, having a
scheduled maturity on or before the following Distribution Date; provided that,
such Eligible Investments shall be managed by, or be an obligation of, the
institution that maintains the Certificate Account if such Eligible Investments
mature on the Distribution Date) regardless of whether issued by the Depositor,
the Servicer, the Trustee or any of their respective Affiliates and having at
the time of purchase, or at such other time as may be specified, the required
ratings, if any, provided for in this definition:
(a) direct obligations of, or guaranteed as to full and timely
payment of principal and interest by, the United States or any agency
or instrumentality thereof, provided, that such obligations are backed
by the full faith and credit of the United States of America;
(b) direct obligations of, or guaranteed as to timely payment of
principal and interest by, FHLMC, FNMA or the Federal Farm Credit
System, provided, that any such obligation, at the time of purchase or
contractual commitment providing for the purchase thereof, is qualified
by each Rating Agency as an investment of funds backing securities
rated "Aaa" in the case of Moody's and "AAA" in the case of Fitch and
S&P (the initial rating of the Class A Certificates);
15
(c) demand and time deposits in or certificates of deposit of, or
bankers' acceptances issued by, any bank or trust company, savings and
loan association or savings bank, provided, that the short-term deposit
ratings and/or long-term unsecured debt obligations of such depository
institution or trust company (or in the case of the principal
depository institutions in a holding company system, the commercial
paper or long-term unsecured debt obligations of such holding company)
have, in the case of commercial paper, the highest short-term rating
available for such securities by each Rating Agency and, in the case of
long-term unsecured debt obligations, one of the two highest ratings
available for such securities by each Rating Agency, or in each case
such lower rating as will not result in the downgrading or withdrawal
of the rating or ratings then assigned to any Class of Certificates by
any Rating Agency but in no event less than the initial rating of the
Senior Certificates;
(d) general obligations of or obligations guaranteed by any state
of the United States or the District of Columbia receiving one of the
two highest long-term debt ratings available for such securities by
each Rating Agency, or such lower rating as will not result in the
downgrading or withdrawal of the rating or ratings then assigned to any
Class of Certificates by any Rating Agency;
(e) commercial or finance company paper (including both
non-interest-bearing discount obligations and interest-bearing
obligations payable on demand or on a specified date not more than one
year after the date of issuance thereof) that is rated by each Rating
Agency in its highest short-term unsecured rating category at the time
of such investment or contractual commitment providing for such
investment, and is issued by a corporation the outstanding senior
long-term debt obligations of which are then rated by each Rating
Agency in one of its two highest long-term unsecured rating categories,
or such lower rating as will not result in the downgrading or
withdrawal of the rating or ratings then assigned to any Class of
Certificates by any Rating Agency but in no event less than the initial
rating of the Senior Certificates;
(f) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation rated in one of the two highest
rating levels available to such issuers by each Rating Agency at the
time of such investment, provided, that any such agreement must by its
terms provide that it is terminable by the purchaser without penalty in
the event any such rating is at any time lower than such level;
(g) repurchase obligations with respect to any security described
in clause (a) or (b) above entered into with a depository institution
or trust company (acting as principal) meeting the rating standards
described in (c) above;
(h) 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 rated by each Rating Agency
in one of its two highest long-term unsecured rating categories at the
time of such investment or contractual commitment providing for such
investment; provided,
16
however, that securities issued by any such corporation will not be
Eligible Investments to the extent that investment therein would cause
the outstanding principal amount of securities issued by such
corporation that are then held as part of the Certificate Account to
exceed 20% of the aggregate principal amount of all Eligible
Investments then held in the Certificate Account;
(i) units of taxable money market funds (including those for
which the Trustee or any affiliate thereof receives compensation with
respect to such investment) which funds have been rated by each Rating
Agency in its highest rating category or which have been designated in
writing by each Rating Agency as Eligible Investments with respect to
this definition;
(j) if previously confirmed in writing to the Trustee, any other
demand, money market or time deposit, or any other obligation, security
or investment, as may be acceptable to each Rating Agency as a
permitted investment of funds backing securities having ratings
equivalent to the initial rating of the Class A Certificates); and
(k) such other obligations as are acceptable as Eligible
Investments to each Rating Agency;
provided, however, that such instrument continues to qualify as a "cash flow
investment" pursuant to Code Section 860G(a)(6) and that no instrument or
security shall be an Eligible Investment if (i) such instrument or security
evidences a right to receive only interest payments or (ii) the right to receive
principal and interest payments derived from the underlying investment provides
a yield to maturity in excess of 120% of the yield to maturity at par of such
underlying investment.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ESCROW ACCOUNT: As defined in Section 3.4.
ESCROW PAYMENT: Any payment received by the Servicer for the account of
any Mortgagor for application toward the payment of taxes, insurance premiums,
assessments and similar items in respect of the related Mortgaged Property.
EVENT OF DEFAULT: Any event of default as specified in Section 7.1.
EXCESS LIQUIDATION PROCEEDS: With respect to any Distribution Date, the
excess, if any, of aggregate Liquidation Proceeds in the applicable Prepayment
Period over the amount that would have been received if Payoffs had been made
with respect to such Loans on the dates such Liquidation Proceeds were received.
17
EXCESS LOSS: A Special Hazard Loss incurred on a Loan in excess of the
Special Hazard Coverage, a Fraud Loss incurred on a Loan in excess of the Fraud
Coverage and a Bankruptcy Loss incurred on a Loan in excess of the Bankruptcy
Coverage.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
FDIC: Federal Deposit Insurance Corporation, or any successor thereto.
FEDERAL FUNDS RATE: means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if for any
relevant day such rate is not so published on any such preceding Business Day,
the rate for such day will be the arithmetic mean as determined by the Trustee
of the rates for the last transaction in overnight Federal funds arranged before
9:00 a.m. (New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Trustee.
FHA: Federal Housing Administration, or any successor thereto.
FHLMC: Federal Home Loan Mortgage Corporation, or any successor
thereto.
FINAL CERTIFICATION: The certification substantially in the form of
Exhibit C-3 attached hereto.
FITCH: Fitch Ratings, provided, that at anytime it is a Rating Agency.
FNMA: Federal National Mortgage Association, or any successor thereto.
FRAUD COVERAGE: As of the Cut-Off Date approximately $3,033,292, and
thereafter, the Fraud Coverage will generally be equal to (1) prior to the third
Anniversary, an amount equal to (a) 1.00% of the aggregate Principal Balance of
all Loans as of the Cut-Off Date minus (b) the aggregate amounts allocated to
the Certificates with respect to Fraud Losses on the Loans up to such date of
determination and (2) from the third to the fifth Anniversary, an amount equal
to (a) 0.50% of the aggregate Principal Balance of all of the Loans as of the
Due Date of the calendar month preceding the most recent Anniversary minus (b)
the aggregate amounts allocated to the Certificates with respect to Fraud Losses
on the Loans since the most recent Anniversary up to such date of determination.
On and after the fifth Anniversary, the Fraud Coverage will be zero. The Fraud
Coverage may be reduced upon written confirmation from each Rating Agency that
such reduction will not adversely affect the then current ratings assigned to
the Certificates by each Rating Agency.
FRAUD LOSS: The occurrence of a loss on a Loan arising from any action,
event or state of facts with respect to such Loan which, because it involved or
arose out of any dishonest, fraudulent, criminal, negligent or knowingly
wrongful act, error or omission by the Mortgagor, originator (or assignee
thereof) of such Loan, Lender, or the Servicer, would result in an exclusion
from, denial
18
of, or defense to coverage which otherwise would be provided by an insurance
policy previously issued with respect to such Loan.
INDEPENDENT: When used with respect to any specified Person, any such
Person who (i) is in fact independent of the Depositor and the Servicer, (ii)
does not have any direct financial interest or any material indirect financial
interest in the Depositor or the Servicer or any Affiliate of either and (iii)
is not connected with the Depositor or the Servicer as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions.
INDIRECT DTC PARTICIPANTS: Entities such as banks, brokers, dealers or
trust companies that clear through or maintain a custodial relationship with a
DTC Participant, either directly or indirectly.
INITIAL CERTIFICATION: The certification substantially in the form of
Exhibit C-1 attached hereto.
INSURANCE PROCEEDS: Amounts paid or payable by the insurer under any
insurance policy (including any replacement policy permitted under this
Agreement), covering any Loan or Mortgaged Property, including, without
limitation, any flood insurance policy, primary mortgage insurance policy or
hazard insurance policy required pursuant to Section 3.5, any title insurance
policy required pursuant to Section 2.3, and any FHA insurance policy or VA
guaranty.
INTEREST ACCRUAL PERIOD: For all Classes of Certificates, the calendar
month preceding the month in which the Distribution Date occurs.
INTEREST DISTRIBUTION AMOUNT: On any Distribution Date, for any Class
of Certificates (other than the Principal Only Certificates), the amount of
interest accrued on the respective Class Principal Balance or Class Notional
Amount, as applicable, at 1/12th of the related Remittance Rate for such Class
during the applicable Interest Accrual Period, before giving effect to
allocations of Realized Losses in connection with such Distribution Date or
distributions to be made on such Distribution Date, reduced by Uncompensated
Interest Shortfall and the interest portion of Realized Losses allocated to such
Class pursuant to the definition of "Uncompensated Interest Shortfall" and
Section 3.20.
INTEREST ONLY CERTIFICATES: The Class A-2 Certificates and Class A-X
Certificates.
INTERESTED PERSON: The Depositor, the Servicer, any Holder of a
Certificate, or any Affiliate of any such Person.
INTERIM CERTIFICATION: The certification substantially in the form of
Exhibit C-2 attached hereto.
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JUNIOR SUBORDINATE CERTIFICATES: The Class B-3, Class B-4 and Class B-5
Certificates, collectively.
LIBOR: The per annum rate established by the Servicer in accordance
with Section 8.16.
LIBOR BUSINESS DAY: Any day on which dealings in United States dollars
are transacted in the London interbank market.
LIBOR DETERMINATION DATE: The second LIBOR Business Day before the
first day of the related Interest Accrual Period.
LIQUIDATED LOAN: A Loan as to which the Servicer has determined in
accordance with its customary servicing practices that all amounts which it
expects to recover from or on account of such Loan, whether from Insurance
Proceeds, Liquidation Proceeds or otherwise, have been recovered. For purposes
of this definition, acquisition of a Mortgaged Property by the Trust Fund shall
not constitute final liquidation of the related Loan.
LIQUIDATION EXPENSES: Reasonable out of pocket expenses incurred by the
Servicer in connection with the liquidation of any Defaulted Loan or property
acquired in respect thereof, including, without limitation, legal fees and
expenses, any unreimbursed amount expended by the Servicer pursuant to Section
3.7 respecting the related Loan and any unreimbursed expenditures for real
property taxes or for property restoration or preservation relating to the
Mortgaged Property that secured such Loan.
LIQUIDATION PRINCIPAL: The principal portion of Liquidation Proceeds
received with respect to each Loan which became a Liquidated Loan (but not in
excess of the Principal Balance thereof) during the applicable Prepayment
Period, exclusive of the Discount Fraction of Liquidation Proceeds received with
respect to each Discount Loan, if any.
LIQUIDATION PROCEEDS: Amounts after deduction of amounts reimbursable
under Section 3.7 received and retained in connection with the liquidation of
Defaulted Loans (including the disposition of REO Property), whether through
foreclosure or otherwise, other than Insurance Proceeds.
LIVING HOLDER: A Beneficial holder of a Retail Lottery Certificate who
is not a Deceased Holder.
LOANS: The Mortgages and the related Mortgage Notes, each transferred
and assigned to the Trustee pursuant to the provisions hereof as from time to
time are held as part of the Trust Fund, as so identified in the Loan Schedule.
Each of the Loans is referred to individually in this Agreement as a
"Loan."
20
LOAN SCHEDULE: The schedule, as amended from time to time, of Loans
attached hereto as Exhibit D, which shall set forth as to each Loan the
following, among other things:
(i) the loan number of the Loan;
(ii) the city, state and zip code of the Mortgaged Property;
(iii) the Mortgage Interest Rate as of the Cut-Off Date;
(iv) the original term and maturity date of the related Mortgage
Note;
(v) the original Principal Balance;
(vi) the first payment date;
(vii) the Monthly Payment in effect as of the Cut-Off Date;
(viii) the date of the last paid installment of interest;
(ix) the unpaid Principal Balance as of the close of business on
the Cut-Off Date;
(x) the Loan-to-Value ratio at origination;
(xi) the type of property and the Original Value of the Mortgaged
Property;
(xii) whether a primary mortgage insurance policy is in effect as of
the Cut-Off Date;
(xiii) the nature of occupancy at origination;
(xiv) the servicing fee (which may be disclosed in two parts
identified as the servicing fee and master servicing fee or
the "Lending Fee" and "Management Fee");
(xv) the county in which Mortgaged Property is located, if
available; and
(xvi) the closing date.
LOAN-TO-VALUE RATIO: The original principal amount of a Loan divided by
the Original Value; however, references to "current Loan-to-Value Ratio" shall
mean the then current Principal Balance of a Loan divided by the Original Value.
LOCKOUT PERCENTAGE: For any Distribution Date, will equal (i) the sum
of (x) the Class A-4 Class Principal Balance and (y) the Class A-5 Class
Principal Balance; divided by (ii) the aggregate
21
Scheduled Principal Balance of all the Loans immediately preceding the
Distribution Date (exclusive of the Discount Fraction of the Discount Loans).
LOCKOUT PRINCIPAL AMOUNT: For any Distribution Date will equal the sum
of (i) the product of (a) 0% for any Distribution Date prior to the Distribution
Date in October 2008, and thereafter, the Lockout Percentage and (b) the
Principal Payment Amount (exclusive of the portion thereof attributable to the
Discount Fractional Principal Amount); and (ii) the product of: (a) the Lockout
Percentage; (b) the Step Down Percentage; and (c) the sum of the following
amounts with respect to the Loans: (1) the Principal Prepayment Amount
(exclusive of the portion thereof attributable to the Discount Fractional
Principal Amount); and (2) the Liquidation Principal.
MONTHLY PAYMENT: The scheduled payment of principal and interest on a
Loan which is due on the related Due Date for such Loan after giving effect to
any reduction in the amount of interest collectible from any Mortgagor pursuant
to the Relief Act.
MOODY'S: Xxxxx'x Investors Service, Inc. provided, that at any time it
is a Rating Agency.
MORTGAGE: The mortgage, deed of trust or other instrument securing a
Mortgage Note.
MORTGAGE FILE: As defined in Section 2.1.
MORTGAGE INTEREST RATE: For any Loan, the per annum rate at which
interest accrues on such Loan pursuant to the terms of the related Mortgage Note
without regard to any reduction thereof as a result of the Relief Act.
MORTGAGE NOTE: The note or other evidence of indebtedness evidencing
the indebtedness of a Mortgagor under a Loan.
MORTGAGE POOL: All of the Loans.
MORTGAGED PROPERTY: With respect to any Loan, the real property,
together with improvements thereto, securing the indebtedness of the Mortgagor
under the related Loan.
MORTGAGOR: The obligor on a Mortgage Note.
NONRECOVERABLE ADVANCE: With respect to any Loan, any Advance which the
Servicer shall have determined to be a Nonrecoverable Advance pursuant to
Section 4.4 and which was, or is proposed to be, made by such Servicer.
NON-U.S. PERSON: A Person that is not a U.S. Person.
OFFICER'S CERTIFICATE: With respect to any Person, a certificate signed
by the Chairman of the Board, the President or a Vice-President of such Person
(or, in the case of a Person which is not a
22
corporation, signed by the person or persons having like responsibilities), and
delivered to the Trustee.
OPINION OF COUNSEL: A written opinion of counsel, who may be outside or
salaried counsel for the Depositor or the Servicer, or any Affiliate of the
Depositor or the Servicer, acceptable to the Trustee; provided, that with
respect to REMIC matters, matters relating to the determination of Eligible
Accounts or matters relating to transfers of Certificates, such counsel shall be
Independent.
ORIGINAL VALUE: With respect to any Loan other than a Loan originated
for the purpose of refinancing an existing mortgage debt, the lesser of (a) the
Appraised Value (if any) of the Mortgaged Property at the time the Loan was
originated or (b) the purchase price paid for the Mortgaged Property by the
Mortgagor. With respect to a Loan originated for the purpose of refinancing
existing mortgage debt, the Original Value shall be equal to the Appraised Value
of the Mortgaged Property at the time the Loan was originated or the appraised
value at the time the refinanced mortgage debt was incurred.
OTS: The Office of Thrift Supervision, or any successor thereto.
OWNERSHIP INTEREST: As defined in Section 5.1(b).
PASS-THROUGH ENTITY: As defined in Section 5.1(b).
PASS-THROUGH RATE: For each Loan and for any date of determination, a
per annum rate equal to the Mortgage Interest Rate for such Loan less the
applicable per annum percentage rate of the Servicing Fee. For each Loan, any
calculation of monthly interest at such rate shall be based upon annual interest
at such rate (computed on the basis of a 360-day year of twelve 30-day months)
on the unpaid Principal Balance of the related Loan divided by twelve, and any
calculation of interest at such rate by reason of a Payoff shall be based upon
annual interest at such rate on the outstanding Principal Balance of the related
Loan multiplied by a fraction, the numerator of which is the number of days
elapsed from the Due Date of the last scheduled payment of principal and
interest to, but not including, the date of such Payoff, and the denominator of
which is (a) for Payoffs received on a Due Date, 360, and (b) for all other
Payoffs, 365.
PAYING AGENT: As defined in Section 4.10.
PAYOFF: Any Mortgagor payment of principal on a Loan equal to the
entire outstanding Principal Balance of such Loan, if received in advance of the
last scheduled Due Date for such Loan and accompanied by an amount of interest
equal to accrued unpaid interest on the Loan to the date of such
payment-in-full.
PAYOFF EARNINGS: For any Distribution Date with respect to each Loan on
which a Payoff was received by the Servicer during the Payoff Period, the
aggregate of the interest earned by Servicer
23
from investment of each such Payoff from the date of receipt of such Payoff
until the Business Day immediately preceding the Distribution Date (net of
investment losses).
PAYOFF INTEREST: For any Distribution Date with respect to a Loan for
which a Payoff was received on or after the first calendar day of the month of
such Distribution Date and before the 15th calendar day of such month, an amount
of interest thereon at the applicable Pass-Through Rate from the first day of
the month of distribution through the day of receipt thereof; to the extent
(together with Payoff Earnings and the portion of the Servicing Fee described in
clause (i)(a) of the definition of Compensating Interest) not required to be
distributed as Compensating Interest on such Distribution Date. Payoff Interest
shall be payable to the Servicer as additional servicing compensation.
PAYOFF PERIOD: For the first Distribution Date, the period from the
Cut-Off Date through October 14, 2003, inclusive; and for any Distribution Date
thereafter, the period from the 15th day of the applicable calendar month
preceding such Distribution Date through the 14th day of the month of such
Distribution Date, inclusive.
PERCENTAGE INTEREST: (a) With respect to the right of each Certificate
of a particular Class in the distributions allocated to such Class, "Percentage
Interest" shall mean the percentage undivided beneficial ownership interest
evidenced by such Certificate of such Class, which percentage shall equal:
(i) with respect to any Regular Interest Certificate (other than
the Interest Only Certificates), its Certificate Principal Balance
divided by the applicable Class Principal Balance;
(ii) with respect to the Interest Only Certificates, the portion
of the respective Class Notional Amount evidenced by such Certificate
divided by the respective Class Notional Balance; and
(iii)with respect to the Class R Certificate, the percentage set
forth on the face of each such Certificate.
(b) With respect to the rights of each Certificate in connection with
Sections 5.9, 7.1, 7.3, 8.3 and 10.1, "Percentage Interest" shall mean the
percentage undivided beneficial interest evidenced by such Certificate in the
Trust Fund, which for purposes of such rights only shall equal:
(i) with respect to any Certificate (other than the Interest Only
Certificates), the product of (x) 98.00% and (y) the percentage
calculated by dividing its Certificate Principal Balance by the
Aggregate Certificate Principal Balance; provided, however, that the
product in (x) above shall be increased by one percent (1%) upon each
retirement of an Interest Only Certificate;
24
(ii) with respect to each Interest Only Certificate, one percent
(1%) of such Certificate Percentage Interest as calculated by paragraph
(a)(ii) of this definition; and
(iii)with respect to the Class R Certificate, zero.
PERMITTED TRANSFEREE: With respect to the holding or ownership of any
Residual Certificate, any Person other than (i) the United States, a State or
any political subdivision thereof, or any agency or instrumentality of any of
the foregoing, (ii) a foreign government or International Organization, or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Code Section 521) which is
exempt from the taxes imposed by Chapter 1 of the Code (unless such organization
is subject to the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Code Section 1381(a)(2)(C), (v) any electing large partnership under Section 775
of the Code, (vi) any Person from whom the Trustee or the Certificate Registrar
has not received an affidavit to the effect that it is not a "disqualified
organization" within the meaning of Section 860E(e)(5) 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 the Trust Fund 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 Code Section
7701 or successor provisions. A corporation shall not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax, and, with the exception of
the FHLMC, a majority of its board of directors is not selected by such
governmental unit.
PERSON: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PLAN: As defined in Section 5.1(d).
PREMIUM LOANS: The Loans having Pass-Through Rates in excess of 5.50%
per annum.
PREPAID MONTHLY PAYMENT: Any Monthly Payment received prior to its
scheduled Due Date, which is intended to be applied to a Loan on its scheduled
Due Date and held in the related Custodial Account for P&I until the Withdrawal
Date following its scheduled Due Date.
PREPAYMENT PERIOD: The calendar month immediately preceding any
Distribution Date.
PRINCIPAL BALANCE: At the time of any determination, the principal
balance of a Loan remaining to be paid at the close of business on the Cut-Off
Date, after deduction of all principal payments due on or before the Cut-Off
Date whether or not paid, reduced by all amounts distributed or to be
distributed to Certificateholders through the Distribution Date in the month of
determination that are reported as allocable to principal of such Loan.
25
In the case of a Substitute Loan, "Principal Balance" shall mean, at
the time of any determination, the principal balance of such Substitute Loan
transferred to the Trust Fund on the date of substitution, reduced by all
amounts distributed or to be distributed to Certificateholders through the
Distribution Date in the month of determination that are reported as allocable
to principal of such Substitute Loan.
The Principal Balance of a Loan (including a Substitute Loan) shall not
be adjusted solely by reason of any bankruptcy or similar proceeding or any
moratorium or similar waiver or grace period. Whenever a Realized Loss has been
incurred with respect to a Loan during a calendar month, the Principal Balance
of such Loan shall be reduced by the amount of such Realized Loss as of the
Distribution Date next following the end of such calendar month after giving
effect to the allocation of Realized Losses and distributions of principal to
the Certificates.
PRINCIPAL ONLY CERTIFICATES: The Class A-P Certificates.
PRINCIPAL PAYMENT: Any payment of principal on a Loan other than a
Principal Prepayment.
PRINCIPAL PAYMENT AMOUNT: On any Distribution Date, the sum of (i) the
scheduled principal payments on the Loans due on the related Due Date, (ii) the
principal portion of repurchase proceeds received with respect to any Loan which
was repurchased by the Depositor pursuant to a Purchase Obligation or as
permitted by this Agreement prior to such Distribution Date, and (iii) any other
unscheduled payments of principal which were received with respect to any Loan
during the applicable Prepayment Period, other than Payoffs, Curtailments and
Liquidation Principal.
PRINCIPAL PREPAYMENT: Any payment of principal on a Loan which
constitutes a Payoff or a Curtailment.
PRINCIPAL PREPAYMENT AMOUNT: On any Distribution Date, the sum of (i)
Curtailments received during the applicable Prepayment Period and (ii) Payoffs
received during the applicable Payoff Period.
PRO RATA ALLOCATION: The allocation of the principal portion of certain
losses relating to a Loan to the Senior Certificates (other than the Class A-P
Certificates and the Interest Only Certificates) and/or to the Subordinate
Certificates, as applicable, pro rata according to their respective Certificate
Principal Balances (except (1) if the loss is recognized with respect to a
Discount Loan, in which event the Discount Fraction of such loss will be
allocated to the Class A-P Certificates, and the remainder of such loss will be
allocated as described above in this definition without regard to this
parenthetical and (2)(a) all Realized Losses, except Excess Losses, otherwise
allocable to the Class A-3 Certificates will be allocated to the Class A-5
Certificates up to an amount equal to 17.79% of the Class Principal Balance of
the Class A-5 Certificates for such Distribution Date and up to a maximum
aggregate amount of $586,596 and (b) all Realized Losses, except Excess Losses,
otherwise allocable to the Class A-4 Certificates will be allocated to the Class
A-5 Certificates up to an amount equal to 82.21% of the Class Principal Balance
of the Class A-5
26
Certificates for such Distribution Date and up to a maximum aggregate amount of
$2,710,737, in each case until the Class Principal Balance of the Class A-5
Certificates has been reduced to zero) in reduction thereof, and the allocation
of the interest portion of such losses to the Certificates (other than the Class
A-P Certificates), pro rata according to the amount of interest accrued but
unpaid on each such Class in reduction thereof.
PURCHASE OBLIGATION: An obligation of the Depositor to repurchase Loans
under the circumstances and in the manner provided in Section 2.2 or Section
2.3.
PURCHASE PRICE: With respect to any Loan to be purchased pursuant to a
Purchase Obligation, or any Loan to be purchased or repurchased relating to an
REO Property, an amount equal to the sum of the Principal Balance thereof, plus
accrued and unpaid interest thereon, if any, to the last day of the calendar
month in which the date of repurchase occurs at a rate equal to the applicable
Mortgage Interest Rate; provided, however, that no Loan shall be purchased or
required to be purchased pursuant to Section 2.3, or more than two years after
the Closing Date under Section 2.2, unless (a) the Loan to be purchased is in
default, or default is in the judgment of the Depositor reasonably imminent, or
(b) the Depositor, at its expense, delivers to the Trustee an Opinion of Counsel
to the effect that the purchase of such Loan will not give rise to a tax on a
prohibited transaction, as defined in Section 860F(a) of the Code; provided,
further, that in the case of clause (b) above, the Depositor will use its
reasonable efforts to obtain such Opinion of Counsel if such opinion is
obtainable.
RANDOM LOT: With respect to any Distribution Date on which a mandatory
distribution is to be made on any Retail Lottery Certificate (as described in
Section 4.1(e)), the method by which the Depository will determine which Retail
Lottery Certificate will be paid principal, using its established random lot
procedures or, if such Certificates are no longer represented by a Book-Entry
Certificate, using the Paying Agent's, or if no Paying Agent has been appointed
hereunder, the Trustee's procedures.
RATING AGENCY: Initially, each of S&P and Fitch; thereafter, each
nationally recognized statistical rating organization that has rated the
Certificates at the request of the Depositor, or their respective successors in
interest.
RATINGS: As of any date of determination, the ratings, if any, of the
Certificates as assigned by each Rating Agency.
REALIZED LOSS: For any Distribution Date, with respect to any Loan
which became a Liquidated Loan during the related applicable Prepayment Period,
the sum of (i) the principal balance of such Loan remaining outstanding and the
principal portion of Nonrecoverable Advances actually reimbursed with respect to
such Loan (the principal portion of such Realized Loss), and (ii) the accrued
interest on such Loan remaining unpaid and the interest portion of
Nonrecoverable Advances actually reimbursed with respect to such Loan (the
interest portion of such Realized Loss). For any Distribution Date, with respect
to any Loan which is not a Liquidated Loan, the amount of
27
the Bankruptcy Loss incurred with respect to such Loan as of the related Due
Date will be treated as a Realized Loss.
RECORD DATE: With respect to each Distribution Date and each Class of
Certificates, the close of business on the last Business Day of the month
immediately preceding the month of the related Distribution Date.
REGULAR INTEREST CERTIFICATES: The Certificates, other than the Class R
Certificate.
RELIEF ACT: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
RELIEF ACT INTEREST SHORTFALL: With respect to any Distribution Date
and Loan, any reduction in the amount of interest collectible on such Loan for
the most recently ended calendar month immediately preceding such Distribution
Date as a result of the application of the Relief Act or similar state law.
REMIC: A real estate mortgage investment conduit, as such term is
defined in the Code.
REMIC I: The pool of assets (other than any Escrow Account or Accounts)
consisting of the Trust Fund.
REMIC I REGULAR INTERESTS: The regular interests in REMIC I as
described in Section 2.4 of this Agreement.
REMIC II: The pool of assets consisting of the REMIC I Regular
Interests and all payments of principal or interest on or with respect to the
REMIC I Regular Interests after the Cut-Off Date.
REMIC PROVISIONS: Sections 860A through 860G of the Code, related Code
provisions and regulations promulgated thereunder, as the foregoing may be in
effect from time to time.
REMITTANCE RATE: For each Class of interest bearing Certificates, the
per annum rate set forth as the Remittance Rate for such Class in the
Preliminary Statement hereto.
REO PROPERTY: A Mortgaged Property, title to which has been acquired by
the Servicer on behalf of the Trust Fund through foreclosure, deed in lieu of
foreclosure or otherwise.
RESIDUAL CERTIFICATES: The Class R Certificate, which is being issued
in a single class. Components R-1 and R-2 of the Class R Certificate is hereby
designated the sole Class of "residual interests" in REMIC I and REMIC II,
respectively, for purposes of Section 860G(a)(2) of the Code.
RESIDUAL DISTRIBUTION AMOUNT: On any Distribution Date, any portion of
the Available Distribution Amount remaining after all distributions to the
Certificates pursuant to the definition of Certificate Distribution Amount
(including the Class R Certificate only to the extent of any
28
distributions to the Class R Certificate pursuant to clause (I)(a)(iv)(b)ii.a.
of such definition). Upon termination of the obligations created by this
Agreement and the Trust Fund created hereby, the amounts which remain on deposit
in the Certificate Account after payment to the Certificateholders of the
amounts set forth in Section 9.1 of this Agreement, and subject to the
conditions set forth therein.
RESPONSIBLE OFFICER: When used with respect to the Trustee, any officer
assigned to and working in its Corporate Trust Department or similar group, and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject. When used with respect to the Servicer or the Seller, the
Chairman or Vice-Chairman of the Board of Directors, the Chairman or
Vice-Chairman of the Executive or Standing Committee of the Board of Directors,
the President, any Vice-President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, the Controller and any Assistant Controller
or any other officer of the Servicer customarily performing functions similar to
those performed by any of the above-designated officers, and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject. When used with respect to the Servicer, the Chairman or Vice-Chairman
of the Board of Directors or Trustees, the Chairman or Vice-Chairman of the
Executive or Standing Committee of the Board of Directors or Trustees, the
President, any Vice-President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, the Controller and any Assistant Controller
or any other officer of the Servicer customarily performing functions similar to
those performed by any of the above-designated officers and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject. When used with respect to the Depositor or any other Person, the
Chairman or Vice-Chairman of the Board of Directors, the Chairman or
Vice-Chairman of any executive committee of the Board of Directors, the
President, any Vice-President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, or any other officer of the Depositor
customarily performing functions similar to those performed by any of the
above-designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
RETAIL CERTIFICATES: The Class A-3, Class A-4, Class A-5, Class A-6,
Class A-7, Class A-8, Class A-9, Class A-10, Class A-11 and Class A-12
Certificates.
RETAIL LOTTERY CERTIFICATES: The Class A-10, Class A-11 and Class A-12
Certificates.
ROUNDING ACCOUNT: The separate trust account established by the Trustee
with respect to each Class of Retail Lottery Certificates as of the Closing Date
each with a deposit of $999.99 and maintained by the Trustee pursuant to Section
3.21, which account shall bear a designation clearly indicating that the funds
deposited therein are held in trust for the benefit of the Trustee on behalf of
each Class of Retail Lottery Certificateholders, or any other account serving a
similar function
29
acceptable to each Rating Agency, and which account provides that the Trustee
may make, or cause to be made, withdrawals as provided in Section 3.21 hereof.
ROUNDING AMOUNT: With respect to each Rounding Account, the amount of
funds, if any, needed to be withdrawn from such account and used to round the
amount of any principal distributions to any Class of Retail Lottery
Certificates on any Distribution Date upward to the next higher integral
multiple of $1,000.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.,
provided, that at any time it is a Rating Agency.
SCHEDULED PRINCIPAL BALANCE: With respect to any Loan as of any
Distribution Date, the unpaid principal balance of such Loan as specified in the
amortization schedule at the time relating thereto (before any adjustment to
such schedule by reason of bankruptcy or similar proceeding or any moratorium or
similar waiver or grace period) as of the first day of the month preceding the
month of such Distribution Date, after giving effect to any previously applied
Curtailments, the payment of principal due on such first day of the month and
any reduction of the principal balance of such Loan by a bankruptcy court,
irrespective of any delinquency in payment by the related Mortgagor.
SECURITIES ACT: The Securities Act of 1933, as amended.
SELLER: Washington Mutual Mortgage Securities Corp.
SENIOR CERTIFICATES: The Class A and Class R Certificate, collectively.
SENIOR LIQUIDATION AMOUNT: The aggregate, for each Loan which became a
Liquidated Loan during the applicable Prepayment Period, of the lesser of: (i)
the Senior Percentage of the Principal Balance of such Loan (exclusive of the
Discount Fraction thereof, if applicable), and (ii) the Senior Prepayment
Percentage of the Liquidation Principal with respect to such Loan.
SENIOR PERCENTAGE: As of the Closing Date 97.39%, and thereafter, with
respect to any Distribution Date, the sum of the Class Principal Balances of the
Senior Certificates (other than the Class A-P Certificates) divided by aggregate
Scheduled Principal Balance of all Loans (reduced by the Discount Fraction of
the Discount Loans), in each case immediately prior to such Distribution Date.
SENIOR PREPAYMENT PERCENTAGE: (i) On any Distribution Date occurring
before the Distribution Date in the month of October 2008, 100%; (ii) on any
other Distribution Date on which the Senior Percentage for such Distribution
Date exceeds the initial Senior Percentage as of the Cut-Off Date, 100%; and
(iii) on any other Distribution Date in each of the months of October 2008 and
thereafter, 100%, unless:
30
(a) the mean aggregate Principal Balance of the Loans which are 60 or
more days delinquent (including loans in foreclosure and property held by the
Trust Fund) for each of the immediately preceding six calendar months is less
than or equal to 50% of the Subordinate Amount as of such Distribution Date, and
(b) cumulative Realized Losses on the Loans allocated to the
Subordinate Certificates are less than or equal to the following amounts:
PERCENTAGE OF THE SUBORDINATE
DISTRIBUTION DATE OCCURRING IN AMOUNT AS OF THE CUT OFF DATE
------------------------------------------------ -----------------------------
October 2008 through September 2009............. 30%
October 2009 through September 2010............. 35%
October 2010 through September 2011............. 40%
October 2011 through September 2012............. 45%
October 2012 and thereafter..................... 50%
in which case, the Senior Prepayment Percentage shall be as follows:
DISTRIBUTION DATE OCCURRING IN SENIOR PREPAYMENT PERCENTAGE
------------------------------------------------ -------------------------------------------------
October 2003 through September 2008............. 100%
October 2008 through September 2009............. Senior Percentage + 70% of Subordinate Percentage
October 2009 through September 2010............. Senior Percentage + 60% of Subordinate Percentage
October 2010 through September 2011............. Senior Percentage + 40% of Subordinate Percentage
October 2011 through September 2012............. Senior Percentage + 20% of Subordinate Percentage
October 2012 and thereafter..................... Senior Percentage
If on any Distribution Date the allocation to the Senior Certificates
(other than the Class A-P Certificates) of Principal Prepayments in the
percentage required would reduce the sum of the Class Principal Balances of the
Senior Certificates (other than the Class A-P Certificates) below zero, the
Senior Prepayment Percentage for such Distribution Date shall be limited to the
percentage necessary to reduce such sum to zero. Notwithstanding the foregoing,
however, on each Distribution Date, the Class A-P Certificates will receive the
Discount Fraction of all principal payments, including, without limitation,
Principal Prepayments, received in respect of each Discount Loan.
SENIOR PRINCIPAL AMOUNT: For any Distribution Date, an amount equal to
the sum of (a) the Senior Percentage of the Principal Payment Amount for the
Loans (exclusive of the portion thereof included in the sum of the Discount
Fractional Principal Amounts for such Distribution Date), (b) the Senior
Prepayment Percentage of the Principal Prepayment Amount for the Loans
(exclusive of the portion thereof included in the sum of the Discount Fractional
Principal Amounts for such Distribution Date) and (c) the Senior Liquidation
Amount.
SENIOR SUBORDINATE CERTIFICATES: The Class M, Class B-1 and Class B-2
Certificates, collectively.
31
SERVICER: Washington Mutual Mortgage Securities Corp., a Delaware
corporation, or any successor thereto appointed as provided pursuant to Section
7.5, acting to service and administer such Loans pursuant to Section 3.1.
SERVICER'S SECTION 3.10 REPORT: A report delivered by the Servicer to
the Trustee pursuant to Section 3.10.
SERVICING FEE: For each Loan in the Loan Schedule, the fee paid to the
Servicer to perform primary servicing functions with respect to such Loan as
specified on the Loan Schedule.
SERVICING OFFICER: Any individual involved in, or responsible for, the
administration and servicing of the Loans whose name and specimen signature
appear on a list of servicing officers furnished to the Trustee on the Closing
Date by the Servicer in the form of an Officer's Certificate, as such list may
from time to time be amended.
SPECIAL HAZARD COVERAGE: As of the Cut-Off Date $3,033,292, and
thereafter on each anniversary of the Cut-Off Date, the Special Hazard Coverage
shall be reduced, but not increased, to an amount equal to the lesser of (1) the
greatest of (a) the aggregate Principal Balance of the Loans located in the
single California zip code area containing the largest aggregate Principal
Balance of the Loans, (b) 1% of the aggregate unpaid Principal Balance of the
Loans and (c) twice the unpaid Principal Balance of the largest single Loan, in
each case calculated as of the Due Date in the immediately preceding month, and
(2) the initial Special Hazard Coverage as of the Cut-Off Date as reduced by the
Special Hazard Losses allocated to the Certificates since the Cut-Off Date.
Special Hazard Coverage may be reduced upon written confirmation from each
Rating Agency that such reduction will not adversely affect the then current
ratings assigned to the Certificates by each Rating Agency.
SPECIAL HAZARD LOSS: The occurrence of any direct physical loss or
damage to a Mortgaged Property not covered by a standard hazard maintenance
policy with extended coverage which is caused by or results from any cause
except: (i) fire, lightning, windstorm, hail, explosion, riot, riot attending a
strike, civil commotion, vandalism, aircraft, vehicles, smoke, sprinkler
leakage, except to the extent of that portion of the loss which was uninsured
because of the application of a co-insurance clause of any insurance policy
covering these perils; (ii) normal wear and tear, gradual deterioration,
inherent vice or inadequate maintenance of all or part thereof; (iii) errors in
design, faulty workmanship or materials, unless the collapse of the property or
a part thereof ensues and then only for the ensuing loss; (iv) nuclear reaction
or nuclear radiation or radioactive contamination, all whether controlled or
uncontrolled and whether such loss be direct or indirect, proximate or remote or
be in whole or in part caused by, contributed to or aggravated by a peril
covered by this definition of Special Hazard Loss; (v) hostile or warlike action
in time of peace or war, including action in hindering, combating or defending
against an actual, impending or expected attack (a) by any government or
sovereign power (dejure or defacto), or by an authority maintaining or using
military, naval or air forces, (b) by military, naval or air forces, or (c) by
an agent of any such government, power, authority or forces; (vi) any weapon of
war employing atomic fission or radioactive force
32
whether in time of peace or war; (vii) insurrection, rebellion, revolution,
civil war, usurped power or action taken by governmental authority in hindering,
combating or defending against such occurrence; or (viii) seizure or destruction
under quarantine or customs regulations, or confiscation by order of any
government or public authority.
STEP DOWN PERCENTAGE: For any Distribution Date will be the percentage
indicated below:
DISTRIBUTION DATE OCCURRING IN STEP DOWN PERCENTAGE
------------------------------ --------------------
October 2003 through September 2008............. 0%
October 2008 through September 2009............. 30%
October 2009 through September 2010............. 40%
October 2010 through September 2011............. 60%
October 2011 through September 2012............. 80%
October 2012 and thereafter..................... 100%
SUBORDINATE AMOUNT: The excess of the aggregate Scheduled Principal
Balance of the Loans over the sum of the Certificate Principal Balances of the
Senior Certificates.
SUBORDINATE CERTIFICATES: The Class M, Class B-1, Class B-2, Class B-3,
Class B-4 and Class B-5 Certificates, collectively, and designated as such on
the face thereof in substantially the form attached hereto as Exhibits A-2 and
for purposes of this Agreement, the "order of seniority" from highest to lowest
of such certificates shall be the order designated in the beginning of this
definition.
SUBORDINATE LIQUIDATION AMOUNT: The excess, if any, of the aggregate of
Liquidation Principal for all the Loans which became Liquidated Loans during the
applicable Prepayment Period, over the related Senior Liquidation Amount for
such Distribution Date.
SUBORDINATE PERCENTAGE: As of the Closing Date 2.61%, and thereafter,
with respect to any Distribution Date, the excess of 100% over the Senior
Percentage for such date.
SUBORDINATE PREPAYMENT PERCENTAGE: As of the Closing Date 0%, and
thereafter, with respect to any Distribution Date, the excess of 100% over the
Senior Prepayment Percentage.
SUBORDINATE PRINCIPAL AMOUNT: On any Distribution Date, will be equal
to the sum of:
(1) the Subordinate Percentage of the Principal Payment Amount
(exclusive of the portion thereof attributable to the sum of the
Discount Fractional Principal Amounts for such Distribution Date);
(2) the Subordinate Principal Prepayment Amount; and
(3) the Subordinate Liquidation Amount;
33
provided, however, that the Subordinate Principal Amount shall be reduced by the
amounts required to be distributed to the Principal Only Certificates with
respect to the Discount Fractional Principal Shortfall on such Distribution
Date.
Any reduction in the Subordinate Principal Amount pursuant to the
proviso above shall offset the amount calculated pursuant to clause (1), clause
(3) and clause (2), in such order of priority. On any Distribution Date, the
Subordinate Principal Amount shall be allocated pro rata, by Class Principal
Balance, among the Classes of Subordinate Certificates and paid in the order of
distribution to such Classes pursuant to clause (I)(b) of the definition of
"Certificate Distribution Amount" herein, except as otherwise stated in such
definition. Notwithstanding the foregoing, on any Distribution Date prior to
distributions on such date, if the Subordination Level for any Class of
Subordinate Certificates is less than such percentage as of the Closing Date,
the pro rata portion of the Subordinate Principal Prepayment Amount otherwise
allocable to the Class or Classes junior to such Class will be distributed to
the most senior Class of the Subordinate Certificates for which the
Subordination Level is less than such percentage as of the Closing Date, and to
the Classes of Subordinate Certificates senior thereto, pro rata according to
the Class Principal Balances of such Classes.
SUBORDINATE PRINCIPAL PREPAYMENT AMOUNT: On any Distribution Date, the
Subordinate Prepayment Percentage of the Principal Prepayment Amount for the
Loans (exclusive of the portion thereof attributable to the sum of the Discount
Fractional Principal Amounts for such Distribution Date).
SUBORDINATION LEVEL: On any specified date, with respect to any Class
of Subordinate Certificates, the percentage obtained by dividing: (1) the sum of
the Class Principal Balances of all Classes of Certificates which are
subordinate in right of payment to such Class as of such date before giving
effect to distributions or allocations of Realized Losses on the Loans on such
date; by (2) the sum of the Class Principal Balances of all Classes of
Certificates as of such date before giving effect to distributions or
allocations of Realized Losses on the Loans on such date.
SUBSTITUTE LOAN: As defined in Section 2.2.
TAX MATTERS PERSON: Initially, Credit Suisse First Boston LLC, as a
Holder of a Class R Certificate issued hereunder or any Permitted Transferee of
Washington Mutual Mortgage Securities Corp. shall be the initial "tax matters
person" for REMIC I and REMIC II within the meaning of Section 6231(a)(7) of the
Code. For tax years commencing after any transfer of such Class R Certificate by
Washington Mutual Mortgage Securities Corp., the holder of the greatest
Percentage Interest in the Class R Certificate at year end shall be designated
as the Tax Matters Person with respect to that year. If the Tax Matters Person
becomes a Disqualified Organization, the last preceding Holder of such
Authorized Denomination of the Class R Certificate that is not a Disqualified
Organization shall be Tax Matters Person pursuant to Section 5.1(c). If any
Person is appointed as tax matters person by the Internal Revenue Service
pursuant to the Code, such Person shall be Tax Matters Person.
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TRANSFER: As defined in Section 5.1(b).
TRANSFEREE: As defined in Section 5.1(b).
TRANSFEREE AFFIDAVIT AND AGREEMENT: As defined in Section 5.1(c)(i)(B).
TRUST FUND: The corpus of the trust created pursuant to Section 2.1 of
this Agreement. The Trust Fund consists of (i) the Loans and all rights
pertaining thereto; (ii) such assets as from time to time may be held by the
Trustee (except amounts representing the Servicing Fee and amounts on deposit in
Escrow Accounts); (iii) such assets as from time to time may be held by the
Servicer in a Custodial Account for P&I related to the Loans (except amounts
representing the Servicing Fee); (iv) property which secured a Loan and which
has been acquired by foreclosure or deed in lieu of foreclosure after the
Cut-Off Date; (v) amounts paid or payable by the insurer under any FHA insurance
policy and proceeds of any VA guaranty and any other insurance policy related to
any Loan or the Mortgage Pool; and (vi) the rights and remedies of the Depositor
under the Mortgage Loan Purchase Agreement dated as of the Closing Date, between
the Seller and the Depositor.
TRUSTEE: U.S. Bank National Association, a national banking
association, or its successor-in-interest as provided in Section 8.9, or any
successor trustee appointed as herein provided.
UNCOLLECTED INTEREST: With respect to any Distribution Date for any
Loan on which a Payoff was made by a Mortgagor during the related Payoff Period,
except for Payoffs received during the period from the first through the 14th
day of the month of such Distribution Date, an amount equal to one month's
interest at the applicable Pass-Through Rate on such Loan less the amount of
interest actually paid by the Mortgagor with respect to such Payoff.
UNCOMPENSATED INTEREST SHORTFALL: For any Distribution Date, the
excess, if any, of (i) the sum of (a) aggregate Uncollected Interest, (b)
aggregate Curtailment Shortfall and (c) any shortfall in interest collections in
the calendar month immediately preceding such Distribution Date resulting from a
Relief Act Interest Shortfall over (ii) Compensating Interest, which excess
shall be allocated to each Class of Certificates pro rata according to the
amount of interest accrued thereon in reduction thereof.
UNDERWRITERS: Credit Suisse First Boston LLC and ABN AMRO Financial
Services, Inc.
U.S. PERSON: A citizen or resident of the United States, a corporation
or partnership (including an entity treated as a corporation or partnership for
federal income tax purposes) created or organized in, or under the laws of, the
United States or any state thereof or the District of Columbia (except, in the
case of a partnership, to the extent provided in regulations) or an estate whose
income is subject to United States federal income tax regardless of its source,
or a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more such U.S.
Persons have the authority to control all substantial decisions of the
35
trust. To the extent prescribed in regulations by the Secretary of the Treasury,
a trust which was in existence on August 20, 1996 (other than a trust treated as
owned by the grantor under subpart E of part 1 of subchapter J of chapter 1 of
the Code), and which was treated as a U.S. Person on August 20, 1996 may elect
to continue to be treated as a U.S. Person notwithstanding the previous
sentence.
VA: The Department of Veterans Affairs, formerly known as the Veterans
Administration, or any successor thereto.
WITHDRAWAL DATE: The Business Day immediately preceding the related
Distribution Date.
All references to the origination date or original date in the Loan
Schedule with respect to a Loan shall refer to the date upon which the related
Mortgage Note was originated or modified, whichever is later.
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ARTICLE II
CONVEYANCE OF TRUST FUND;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.1 CONVEYANCE OF TRUST FUND.
The Depositor, concurrently with the execution and delivery hereof,
does hereby irrevocably sell, convey and assign to the Trustee and REMIC I
without recourse all the right, title and interest of the Depositor in and to
the Trust Fund and to REMIC II without recourse all the right, title and
interest of the Depositor in and to the REMIC I Regular Interests, for the
benefit respectively of REMIC II and the Certificateholders, including all
interest and principal received by the Depositor with respect to the Loans after
the Cut-Off Date (and including without limitation scheduled payments of
principal and interest due after the Cut-Off Date but received by the Depositor
on or before the Cut-Off Date, but not including payments of principal and
interest due on the Loans on or before the Cut-Off Date). The Depositor, at its
own expense, shall file or cause to be filed protective Form UCC-1 financing
statements with respect to the Loans in the State of Delaware or other
applicable jurisdiction, listing itself as "Debtor" under such financing
statement and listing the Trustee, for the benefit of the Certificateholders, as
"Secured Party" under such financing statement.
In connection with such assignment, the Depositor does hereby deliver
to, and deposit with, the Trustee or the Custodian, as its agent, for the
benefit of the Certificateholders the following documents or instruments with
respect to each Loan so assigned:
(i) The original Mortgage Note (or, if the original Mortgage Note
has been lost or destroyed, a lost note affidavit and indemnity)
bearing all intervening endorsements endorsed, "Pay to the order of
U.S. Bank National Association, as Trustee, for the benefit of the
Certificateholders of ABN AMRO Mortgage Corporation Series 2003-11,
without recourse" and signed in the name of the last endorsee thereof
showing an unbroken chain of title from the originator thereof to the
person endorsing;
(ii) (a) The original Mortgage with evidence of recording
thereon, and if the Mortgage was executed pursuant to a power of
attorney, a certified true copy of the power of attorney certified by
the recorder's office, with evidence of recording thereon, or certified
by a title insurance company or escrow company to be a true copy
thereof; provided, that if such original Mortgage or power of attorney
cannot be delivered with evidence of recording thereon on or prior to
the Closing Date because of a delay caused by the public recording
office where such original Mortgage has been delivered for recordation
or because such original Mortgage has been lost, the Depositor shall
deliver or cause to be delivered to the Trustee or the Custodian (or a
sub-custodian) a true and correct copy of such Mortgage, together with
(1) in the case of a delay caused by the public recording office, an
Officer's Certificate signed by a Responsible Officer of the Seller
stating that such original Mortgage
37
has been dispatched to the appropriate public recording official for
recordation or (2) in the case of an original Mortgage that has been
lost, a certificate by the appropriate county recording office where
such Mortgage is recorded or from a title insurance company or escrow
company indicating that such original was lost and the copy of the
original mortgage is a true and correct copy;
(b) The original Assignment to "U.S. Bank National Association,
as custodian/trustee," which assignment shall be in form and substance
acceptable for recording, or a copy certified by the Seller or the
originator of the related Loan as a true and correct copy of the
original Assignment which has been sent for recordation. Subject to the
foregoing, such assignments may, if permitted by law, be by blanket
assignments for Loans covering Mortgaged Properties situated within the
same county. If the Assignment is in blanket form, a copy of the
Assignment shall be included in the related individual Mortgage File.
(iii)The originals of any and all instruments that modify the
terms and conditions of the Mortgage Note, including but not limited to
modification, consolidation, extension and assumption agreements
including any adjustable rate mortgage (ARM) rider, if any,
(iv) The originals of all required intervening assignments, if
any, with evidence of recording thereon, and if such assignment was
executed pursuant to a power of attorney, a certified true copy of the
power of attorney certified by the recorder's office, with evidence of
recording thereon, or certified by a title insurance company or escrow
company to be a true copy thereof; provided, that if such original
assignment or power of attorney cannot be delivered with evidence of
recording thereon on or prior to the Closing Date because of a delay
caused by the public recording office where such original assignment
has been delivered for recordation or because such original Assignment
has been lost, the Depositor shall deliver or cause to be delivered to
the Trustee or the Custodian (or a sub-custodian) a true and correct
copy of such Assignment, together with (a) in the case of a delay
caused by the public recording office, an Officer's Certificate signed
by a Responsible Officer of the Seller stating that such original
assignment has been dispatched to the appropriate public recording
official for recordation or (b) in the case of an original assignment
that has been lost, a certificate by the appropriate county recording
office where such assignment is recorded or from a title insurance
company or escrow company indicating that such original was lost and
the copy of the original assignment is a true and correct copy; and
(v) The original mortgagee policy of title insurance (including,
if applicable, the endorsement relating to the negative amortization of
the Loans) or in the event such original title policy is unavailable,
any one of an original title binder, an original preliminary title
report or an original title commitment or a copy thereof certified by
the title company with the original policy of title insurance to follow
within 180 days of the Closing Date.
The documents and instruments set forth in clauses (i) - (v) above
shall be called, collectively, the "Mortgage File".
38
If the Depositor cannot deliver the original Mortgage with evidence of
recording thereon concurrently with the execution and delivery of this Agreement
because of a delay caused by the public recording office where such original
Mortgage has been delivered for recordation, the Depositor shall deliver to the
Trustee or the Custodian an Officer's Certificate, with a photocopy of such
Mortgage attached thereto, stating that such original Mortgage has been
delivered to the appropriate public recording official for recordation. The
Depositor shall promptly deliver to the Trustee or the Custodian (or a
sub-custodian) such original Mortgage with evidence of recording indicated
thereon upon receipt thereof from the public recording official.
The Depositor shall, at its own expense, promptly record or cause to be
recorded in the appropriate public real property or other records each
Assignment referred to in Section 2.1(ii), unless the Depositor delivers to the
Trustee an Independent opinion of counsel to the effect that such recordation is
not necessary to protect the Trustee's and Certificateholder's interest in the
related Mortgage Loans, in which case such Assignments shall be delivered to the
Trustee or the Custodian (or a sub-custodian) for the benefit of the
Certificateholders in recordable form. If the Depositor cannot deliver the
original Assignment concurrently with the execution and delivery of this
Agreement solely because it is in the process of being prepared and recorded or
because of a delay caused by the public recording office where such original
Assignment has been delivered for recordation, the Depositor shall deliver a
blanket Officer's Certificate covering all such Assignments stating that such
original Assignment is in the process of being prepared and recorded or it has
been delivered to the appropriate public recording official for recordation. Any
such original recorded Assignment shall be delivered to the Trustee or the
Custodian within 180 days following the execution of this Agreement.
If the Depositor cannot deliver the original title insurance policy
concurrently with the execution and delivery of this Agreement, the Depositor
shall promptly deliver each such original title insurance policy as soon as such
policy becomes available but in no event later than 120 days following the
execution of this Agreement.
All rights arising out of Loans including, without limitation, all
funds received on or in connection with a Loan shall be held by the Depositor in
trust for the benefit of the Certificateholders. The Depositor shall maintain a
complete set of books and records for each Loan which shall be clearly marked to
reflect the ownership of each Loan by the Certificateholders.
It is the express intent of this Agreement that the conveyance of the
Loans by the Depositor to the Trustee (directly or through the Custodian or
sub-custodian) as provided in this Section 2.1 be, and be construed as, a sale
of the Loans by the Depositor to the Trustee and that the sale of the
Certificates to the Certificateholders, if they are sold, be, and be construed
as, a sale of a 100% interest in the Loans and the Trust Fund to such
Certificateholders. It is, further, not the intention of this Agreement that
such conveyance be deemed a pledge of the Loans by the Depositor to the Trustee
to secure a debt or other obligation of the Depositor. However, in the event
that, notwithstanding the intent of this Agreement, the Loans are held to be
property of the Depositor, or if for any other reason this Agreement is held or
deemed to create a security interest in the Loans,
39
then (a) this Agreement shall also be deemed to be a security agreement within
the meaning of Articles 8 and 9 of the New York Uniform Commercial Code; (b) the
conveyance provided for in this Section 2.1 shall be deemed to be a grant by the
Depositor to the Trustee for the benefit of the Certificateholders of a security
interest in all of the Depositor's right, title and interest in and to the Loans
and all amounts payable to the holders of the Loans in accordance with the terms
thereof and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, including
without limitation all amounts, other than investment earnings, from time to
time held or invested in the Certificate Account, whether in the form of cash,
instruments, securities or other property; (c) the possession by the Trustee or
any Custodian of Mortgage Notes and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"in possession by the secured party" for purposes of perfecting the security
interest pursuant to Section 9-305 of the New York Uniform Commercial Code; and
(d) notifications to persons holding such property, and acknowledgments,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the benefit
of the Certificateholders for the purpose of perfecting such security interest
under applicable law (except that nothing in this clause (d) shall cause any
person to be deemed to be an agent of the Trustee for any purpose other than for
perfection of such security interest unless, and then only to the extent,
expressly appointed and authorized by the Trustee in writing). The Depositor and
the Trustee, upon directions from the Depositor, 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 perfected security interest in Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement.
The Depositor initially appoints U.S. Bank National Association as
Custodian, and the Servicer consents to such appointment. In acting as Custodian
for the Mortgage Files, the Custodian may act through its duly authorized
officers, employees and agents; provided that the Custodian may not employ any
sub-agents without the written consent of the Depositor and the Servicer. The
Servicer shall pay any and all fees and expenses of the Custodian or any
sub-custodian; provided that, so long as U.S. Bank National Association is the
Trustee and Custodian hereunder, such fees and expenses of the Custodian, if
any, shall be paid by the Trustee. Any sub-custodian may be removed by the
Custodian with the approval of the Servicer and the Depositor, and a successor
sub- custodian shall be appointed by the Servicer as set forth in the related
sub-custodial agreement.
Section 2.2 ACCEPTANCE BY CUSTODIAN.
(a) The Custodian acknowledges, subject to the provisions of Section
2.1 and to any document exceptions reported pursuant to the Custodian's reviews
as described below, receipt on behalf of the Trustee of the Mortgage Notes (or
lost note affidavits and indemnities), the Mortgages, the assignments of the
Mortgages and the Officer's Certificates referred to in Section 2.1 above, and
declares that it holds and will hold such documents and the other documents
constituting a part of the Mortgage Files delivered to it as Custodian for the
benefit of the Trustee who holds such property
40
in trust, upon the trusts herein set forth, for the use and benefit of all
present and future Certificateholders. The Custodian acknowledges that, as of
the date of the execution of this Agreement, the Mortgage Files have been
delivered to the Custodian, and the Custodian has conducted a preliminary review
of the Mortgage Files. The Custodian further acknowledges that such review
included a review of the Mortgage Notes (or lost note affidavits and
indemnities) to determine that the appropriate Mortgage Notes (or lost note
affidavits and indemnities) have been delivered and endorsed in the manner set
forth in Section 2.1(i). In connection with such review, on or prior to the
Closing Date, the Custodian shall have delivered an exceptions report as to the
Mortgage Files that the Custodian has in its possession indicating any
discrepancies relating to such review and shall execute and deliver, or cause to
be executed and delivered to the Depositor and the Trustee an Initial
Certification, substantially in the form attached hereto as Exhibit C-1.
(b) No later than 90 days after the Closing Date, the Custodian agrees,
for the benefit of the Certificateholders, to review each Mortgage File
delivered to it and to execute and deliver, or cause to be executed and
delivered, to the Depositor and the Trustee an Interim Certification
substantially in the form attached hereto as Exhibit C-2. In conducting such
review, the Custodian agrees to ascertain that all required documents set forth
in items (i), (ii), (iii), (iv) and (v) of Section 2.1, to the extent delivered
to the Custodian have been executed and received, and that such documents relate
to the Loans identified in Exhibit D annexed hereto, and in so doing the
Custodian may rely on the purported due execution and genuineness of any such
document and on the purported genuineness of any signature thereon. The
Custodian shall have no duty to verify or determine whether any Mortgage File
should contain documents described in Sections 2.1(iii) and (iv). The Custodian
shall be under no duty or obligation to inspect, review or make any independent
examination of any documents contained in each Mortgage File beyond the review
specifically required herein. The Custodian makes no representations as to (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File or any of the Loans identified on the
Loan Schedule, or (ii) the collectability, insurability, effectiveness or
suitability of any such Loan. If at the conclusion of such 90-day period the
Custodian finds that any document constituting a part of a Mortgage File not to
have been executed or received or to be unrelated to the Loans identified in
said Exhibit D (each such finding, a "material defect"), the Custodian shall
promptly notify the Depositor which shall have a period of 90 days after the
Depositor has received notice to correct or cure any such material defect;
provided, however, that if the Custodian shall not have received a document by
reason of the fact that such document shall not have been returned by the
appropriate recording office then the Depositor shall have until a date one year
later from the Cut-Off Date to correct or cure such defect.
The Depositor hereby covenants and agrees that, if any such material
defect as defined above is not corrected or cured, the Depositor will, within 90
days of the REMIC having received notice, either (i) repurchase the related Loan
at a price equal to 100% of the Principal Balance of such Loan (or any property
acquired in respect thereof) plus accrued interest on such Principal Balance at
the applicable Mortgage Interest Rate to the next scheduled Due Date of such
Loan or (ii) substitute for any Loan to which such material defect relates a
different mortgage loan (a "Substitute Loan") maturing no later than and not
more than two years earlier than the Loan being substituted for and
41
having a principal balance equal to or less than the loan being substituted for
and a Mortgage Interest Rate equal to or greater than the Mortgage Interest Rate
of the Loan being substituted for, a Loan-to-Value Ratio equal to or less than
the Loan-to-Value Ratio of the Loan being substituted for and otherwise having
such characteristics so that the representations and warranties of the Depositor
set forth in Section 2.3 hereof would not have been incorrect had such
Substitute Loan originally been a Loan; provided, however, that if the Principal
Balance of the original Loan exceeds the principal balance of the Substitute
Loan, an amount equal to that difference shall be deposited by the Depositor in
the Certificate Account; provided, further, that if the defect would cause the
Loan to be other than a "qualified mortgage loan" as defined in Section
860(G)(a)(3) of the Code such cure, repurchase or substitution must occur within
90 days from the date such material defect was discovered, unless the Trustee
shall have received from the Depositor an Opinion of Counsel to the effect that
such cure, repurchase or substitution will not adversely affect the REMIC status
of REMIC I or REMIC II or constitute a prohibited transaction or substitution
under the REMIC provisions of the Code, and, if applicable, within the meaning
of the REMIC Provisions of the particular State, if any, which would impose a
tax on the Trust Fund.
(c) In addition, the Custodian agrees, for the benefit of
Certificateholders, to review each Mortgage File delivered to it within 180 days
after the Closing Date, or with respect to assignments which must be recorded,
within 180 days, after execution of this Agreement and to execute and deliver,
or cause to be executed and delivered, to the Depositor and the Trustee a Final
Certification substantially in the form attached hereto as Exhibit C-3. In
conducting such review, the Custodian agrees that if at the conclusion of such
180-day period the Custodian finds a material defect, the Custodian shall
promptly notify the Depositor, which shall have a period of 90 days after the
REMIC has received such notice to correct or cure any such material defect. The
Depositor hereby covenants and agrees that, if any such material defect as
defined above is not corrected or cured, the Depositor will, within 90 days of
the REMIC having received such notice, either repurchase the related Loan or
substitute for any Loan to which such material defect relates in accordance with
this Agreement.
Monthly Payments due with respect to Substitute Loans in the month of
substitution are not a part of the Trust Fund and will be retained by the
Seller. The Depositor shall notify each Rating Agency of any such substitution.
For the month of substitution, distributions to Certificateholders will include
the Monthly Payment due on the Loan being substituted for in such month. The
purchase price for the repurchased Loan or property shall be deposited by the
Depositor in the Certificate Account and in the case of a Substitute Loan, the
Mortgage File relating thereto shall be delivered to the Custodian. Upon receipt
by the Custodian or the sub-custodian of written notification of such deposit
signed by a Servicing Officer or the new Mortgage File, as the case may be, and
an Officer's Certificate that such repurchase or substitution is in accordance
with this Agreement, the Custodian shall release or cause to be released to the
Depositor the related Mortgage File for the Loan being repurchased or
substituted for, as the case may be, and shall execute and deliver or cause to
be executed and delivered such instrument of transfer or assignment presented to
it by the Depositor, in each case without recourse, as shall be necessary to
transfer to the Depositor the Custodian's interest in such original or
repurchased Loan or property and the Custodian shall have no further
responsibility with regard to such Loan. It is understood and agreed that the
obligation of the
42
Depositor to substitute a new Loan for or repurchase any Loan or property as to
which such a material defect in a constituent document exists shall constitute
the sole remedy respecting such defect available to Certificateholders or the
Trustee on behalf of Certificateholders, but such obligation shall survive
termination of this Agreement. Neither the Trustee nor the Custodian shall be
responsible for determining whether any assignment or mortgage delivered
pursuant to Section 2.1(ii) is in recordable form or, if recorded, has been
properly recorded.
Section 2.3 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR WITH
RESPECT TO THE MORTGAGE LOANS.
The Depositor hereby represents and warrants to the Trustee as of the
Closing Date:
(i) that the information set forth in the Loan Schedule appearing
as an exhibit to this Agreement is true and correct in all material
respects at the date or dates respecting which such information is
furnished as specified therein;
(ii) that as of the date of the transfer of the Loans to the
Trustee, the Depositor is the sole owner and holder of each Loan free
and clear of all liens, pledges, charges or security interests of any
nature and has full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and
assign the same;
(iii)that as of the date of initial issuance of the Certificates,
no payment of principal of or interest on or in respect of any Loan is
30 days or more past due from the Due Date of such Loan;
(iv) that to the best of the Depositor's knowledge, as of the
date of the transfer of the Loans to the Trustee, there is no valid
offset, defense or counterclaim to any Mortgage Note or Mortgage;
(v) that as of the date of the initial issuance of the
Certificates, there is no proceeding pending, or to the best of the
Depositor's knowledge, threatened for the total or partial condemnation
of any of the Mortgaged Property and, to the best of the Depositor's
knowledge, the Mortgaged Property is free of material damage and is in
good repair and neither the Mortgaged Property nor any improvement
located on or being part of the Mortgaged Property is in violation of
any applicable zoning law or regulation;
(vi) that each Loan complies in all material respects with
applicable state or federal laws, regulations and other requirements,
pertaining to usury, equal credit opportunity and disclosure laws, and
each Loan was not usurious at the time of origination;
(vii) that to the best of the Depositor's knowledge, as of the
date of the initial issuance of the Certificates, all insurance
premiums previously due and owing with respect to the Mortgaged
Property have been paid and all taxes and governmental assessments
43
previously due and owing, and which may become a lien against the
Mortgaged Property, with respect to the Mortgaged Property have been
paid;
(viii) that each Mortgage Note and the related Mortgage are
genuine and each is the legal, valid and binding obligation of the
maker thereof, enforceable in accordance with its terms except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law); all
parties to the Mortgage Note and the Mortgage had legal capacity to
execute the Mortgage Note and the Mortgage; and each Mortgage Note and
Mortgage have been duly and properly executed by the Mortgagor;
(ix) that each Mortgage is a valid and enforceable first lien on
the property securing the related Mortgage Note, and that each Loan is
covered by an ALTA mortgagee title insurance policy or other form of
policy or insurance generally acceptable to FNMA or FHLMC, issued by,
and is a valid and binding obligation of, a title insurer acceptable to
FNMA or FHLMC insuring the originator, its successor and assigns, as to
the lien of the Mortgage in the original principal amount of the Loan
subject only to (a) the lien of current real property taxes and
assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record as of the date of recording of such Mortgage acceptable to
mortgage lending institutions in the area in which the Mortgaged
Property is located or specifically referred to in the appraisal
performed in connection with the origination of the related Loan and
(c) such other matters to which like properties are commonly subject
which do not individually, or in the aggregate, materially interfere
with the benefits of the security intended to be provided by the
Mortgage;
(x) that as of the initial issuance of the Certificates, neither
the Depositor nor any prior holder of any Mortgage has, except as the
Mortgage File may reflect, modified the Mortgage in any material
respect; satisfied, canceled or subordinated such Mortgage in whole or
part; released such Mortgaged Property in whole or in part from the
lien of the Mortgage; or executed any instrument of release,
cancellation, modification or satisfaction;
(xi) that each Mortgaged Property consists of a fee simple estate
or a condominium form of ownership in real property;
(xii) no foreclosure action is threatened or has been commenced
(except for the filing of any notice of default) with respect to the
Loan; and except for payment delinquencies not in excess of 30 days, to
the best of the Depositor's knowledge, there is no default, breach,
violation or event of acceleration existing under the Mortgage or the
related Mortgage Note and no event which, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event of acceleration; and
the Depositor has not waived any default, breach, violation or event of
acceleration;
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(xiii) that each Loan was originated on FNMA or FHLMC uniform
instruments for the state in which the Mortgaged Property is located;
(xiv) that based upon a representation by each Mortgagor at the
time of origination or assumption of the applicable Mortgage Loan,
approximately 97.60% of the Mortgage Loans measured by principal
balance were to be secured by owner-occupied residences and
approximately 2.40% of the Mortgage Loans measured by principal balance
were secured by owner-occupied second home residences;
(xv) that an appraisal of each Mortgaged Property was conducted
at the time of origination of the related Loan, and that each such
appraisal was conducted in accordance with FNMA or FHLMC criteria, on
FNMA or FHLMC forms and comparables on at least three properties were
obtained;
(xvi) that no Loan had a Loan-to-Value Ratio at origination in
excess of 95%;
(xvii) the Loans were not selected in manner to adversely affect
the interests of the Certificateholders and the Depositor knows of no
conditions which reasonably would cause it to expect any Loan to become
delinquent or otherwise lose value;
(xviii) each Loan was either (A) originated directly by or closed
in the name of either: (i) a savings and loan association, savings
bank, commercial bank, credit union, insurance company, or similar
institution which is supervised and examined by a federal or state
authority or (ii) a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to Sections 203 and 211 of the National
Housing Act or (B) originated or underwritten by an entity employing
underwriting standards consistent with the underwriting standards of an
institution as described in subclause (A)(i) or (A)(ii) above;
(xix) each Loan is a "qualified mortgage" within the meaning of
Section 860G of the Code without regard to ss. 1.860G-2(f) of the REMIC
Provisions or any similar rule;
(xx) each Loan that has a Loan-to-Value Ratio in excess of 80% is
covered by a primary mortgage insurance policy;
(xxi) that no Loan permits negative amortization or the deferral
of accrued interest; and
(xxii) no Loan is a "high-cost home loan" as defined in the
Georgia Fair Lending Act, as amended, or in the New York Predatory
Lending Law, codified as N.Y. Banking Law Section 6-l, N.Y. Gen. Bus.
Law Section 771-a, and N.Y. Real Prop. Acts Law Section 1302, the
Arkansas Home Loan Protection Act, as amended, or the Kentucky Revised
Statutes Section 360.100, as amended.
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It is understood and agreed that the representations and warranties set
forth in this Section 2.3 shall survive delivery of the respective Mortgage
Files to the Trustee, or to a Custodian, as the case may be. Upon discovery by
the Depositor, Servicer, the Trustee or any Custodian of a breach of any of the
foregoing representations and warranties (referred to herein as a "breach"),
without regard to any limitation set forth in such representation or warranty
concerning the knowledge of the Depositor as to the facts stated therein, which
breach materially and adversely affects the interests of the Certificateholders
in the related Loan, the party discovering such breach shall give prompt written
notice to the others and to each Rating Agency.
Within 90 days of its discovery or its receipt of notice of breach, the
Depositor shall cure or shall cause such breach to be cured in all material
respects or shall repurchase the Loan or any property acquired in respect
thereof from the Trustee at a repurchase price equal to 100% of the Principal
Balance of such Loan plus accrued interest on such Principal Balance at the
Mortgage Interest Rate to the next scheduled Due Date of such Loan or remove
such Loan from the Trust Fund and substitute in its place a Substitute Loan or
Loans with the characteristics set forth in Section 2.2 above for Substitute
Loans; provided, however, that if such breach would cause the Loan to be other
than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any
such cure, repurchase or substitution must occur within 90 days from the date
such breach was discovered; provided, further, that no substitution (or cure
which would constitute a loan modification for federal income tax purposes) may
be effected any later than two years after the Closing Date; provided, further,
that as a pre-condition to any substitution (or cure which would constitute a
loan modification for federal income tax purposes) to be effected later than 90
days after the Closing Date (and within two years of the Closing Date), the
Trustee shall receive from the Depositor an Opinion of Counsel to the effect
that such substitution (or cure which would constitute a loan modification for
federal income tax purposes) will not adversely affect the REMIC status of REMIC
I or REMIC II or constitute a prohibited transaction under the REMIC Provisions
of the Code and, if applicable, the REMIC provisions of the relevant State.
Except as expressly set forth herein, neither the Trustee nor the Servicer is
under any obligation to discover any breach of the above mentioned
representations and warranties. It is understood and agreed that the obligation
of the Depositor to repurchase or substitute any Loan or property as to which a
breach has occurred and is continuing shall constitute the sole remedy
respecting such breach available to Certificateholders or the Trustee on behalf
of Certificateholders, and such obligation shall survive as the obligation of
the Depositor or its respective successors.
Section 2.4 AUTHENTICATION AND DELIVERY OF CERTIFICATES; DESIGNATION OF
CERTIFICATES AS REMIC REGULAR AND RESIDUAL INTERESTS.
(a) The Trustee acknowledges the transfer to the extent provided herein
and assignment to it of the Trust Fund and, concurrently with such transfer and
assignment, has caused to be authenticated and delivered to or upon the order of
the Depositor, in exchange for the Trust Fund, Certificates evidencing the
entire ownership of the Trust Fund.
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(b) This Agreement shall be construed so as to carry out the intention
of the parties that each of REMIC I and REMIC II be treated as a REMIC at all
times prior to the date on which the Trust Fund is terminated. The "regular
interests" (within the meaning of Section 860G(a)(1) of the Code) in REMIC II
shall consist of the Class A Certificates and the Subordinate Certificates. The
"residual interest" (within the meaning of Section 860G(a)(2) of the Code) in
REMIC II shall consist of Component R-2 of the Class R Certificate. The "regular
interests" (within the meaning of Section 860G(a)(1) of the Code) of REMIC I
shall consist of Class A-1 Regular Interest, the Class A-3 Regular Interest, the
Class A-4 Regular Interest, the Class A-5 Regular Interest, the Class A-6
Regular Interest, the Class A-7 Regular Interest, the Class A-8 Regular
Interest, the Class A-9 Regular Interest, the Class A-10 Regular Interest, the
Class A-11 Regular Interest, the Class A-12 Regular Interest, the Class A-13
Regular Interest, the Class A-14 Regular Interest, the Class A-X Regular
Interest, the Class A-P Regular Interest, the Class M Regular Interest, the
Class B-1 Regular Interest, the Class B-2 Regular Interest, the Class B-3
Regular Interest, the Class B-4 Regular Interest and the Class B-5 Regular
Interest. The "residual interest" (within the meaning of Section 860(G)(a)(2) of
the Code) of REMIC I shall consist of Component R-1 of the Class R Certificate.
(c) All payments with respect to each of the Class A-1, Class A-3,
Class A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class A-9, Class A-10,
Class A-11, Class A-12, Class A-13, Class A-14, Class A-X, Class A-P, Class M,
Class B-1, Class B-2, Class B-3, Class B-4 and Class B-5 Certificates shall each
be considered to have been made solely from the Regular Interest of REMIC I
having the same designation. All principal payments with respect to each such
Class of Certificates (other than the Class A-2 Certificates and Class A-X
Certificates) shall be considered to have been made solely from the principal
payments of the corresponding Regular Interests of REMIC I, and the Class
Principal Balance of each such Class of Certificate (other than the Class A-X
Certificates) shall be equal at all times to the principal balance of each such
corresponding Regular Interest of REMIC I. All interest payments with respect to
the Class A-X Certificates shall be considered to have been made solely from the
interest payments of the Class A-X Regular Interest of REMIC I. The interest
rate of each REMIC I Regular Interest Class A-1, Class A-3, Class A-4, Class
A-5, Class A-14, Class M, Class B-1, Class B-2, Class B-3, Class B-4 and Class
B-5 shall be 5.50%. The interest rate of each REMIC I Regular Interest Class
A-6, Class A-7, Class A-8, Class A-9 Class X- 00, Class A-11 and Class A-12
shall be 6.00%. The REMIC I Regular Interest Class A-13 shall not bear interest.
The Class A-P Regular Interest Class shall not bear interest, but will receive
principal only in respect of the Loans.
(d) The Class A-2 Certificates shall be considered for federal income
tax purposes to have two component notional principal amounts which are equal to
the principal balance of the Class A-1 Regular Interest, bearing interest at
1.25% and the principal balance of the Class A-14 Regular Interest, bearing
interest at 1.50%.
(e) The Class A-X Certificates shall be considered for federal income
tax purposes to have a notional principal amount which is equal to the total
Principal Balance of the Premium Loans.
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Section 2.5 DESIGNATION OF STARTUP DAY.
The Closing Date is hereby designated as the "startup day" of each of
REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the Code.
Section 2.6 NO CONTRIBUTIONS.
The Trustee shall not accept or make any contribution of cash to the
Trust Fund after 90 days of the Closing Date, and shall not accept or make any
contribution of other assets to the Trust Fund unless, in either case, it shall
have received an Opinion of Counsel to the effect that the inclusion of such
assets in the Trust Fund will not cause either REMIC I or REMIC II to fail to
qualify as a REMIC at any time that any Class A or Subordinate Certificates are
outstanding or subject the Trust Fund to any tax on contributions to the REMIC
under Section 860G(d) of the Code.
Section 2.7 REPRESENTATIONS AND WARRANTIES OF THE SERVICER.
The Servicer hereby represents, warrants and covenants to the Trustee
for the benefit of Certificateholders that, as of the date of execution of this
Agreement:
(a) the Servicer is a corporation duly formed and validly existing
under the laws of the State of Delaware;
(b) the execution and delivery of this Agreement by the Servicer and
its performance of and compliance with the terms of this Agreement will not
violate the Servicer's corporate charter or by-laws or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material contract, agreement or
other instrument to which the Servicer is a party or which may be applicable to
the Servicer or any of its assets;
(c) this Agreement, assuming due authorization, execution and delivery
by the Trustee and the Depositor, constitutes a valid, legal and binding
obligation of the Servicer, enforceable against it in accordance with the terms
hereof subject to applicable bankruptcy, insolvency, reorganization, moratorium
and other laws affecting the enforcement of creditors' rights generally and to
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(d) the Servicer 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, which default might have consequences that would
materially and adversely affect the condition (financial or other) or operations
of the Servicer or its properties or might have consequences that would affect
its performance hereunder; and
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(e) no litigation is pending or, to the best of the Servicer's
knowledge, threatened against the Servicer which would prohibit its entering
into this Agreement or performing its obligations under this Agreement.
It is understood and agreed that the representations and warranties set
forth in this Section 2.7 shall survive delivery of the respective Mortgage
Files to the Trustee, or to a Custodian, as the case may be.
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ARTICLE III
ADMINISTRATION AND SERVICING OF LOANS
Section 3.1 SERVICER TO ACT AS SERVICER; ADMINISTRATION OF THE LOANS.
(a) The Servicer shall service and administer the Loans on behalf of
the Trust Fund solely in the best interests of and for the benefit of the
Certificateholders (as determined by the Servicer in its reasonable judgment)
and the Trustee (as trustee for Certificateholders) in accordance with the terms
of this Agreement and the respective Loans and, to the extent consistent with
such terms, in the same manner in which, and with the same care, skill, prudence
and diligence with which, it services and administers similar mortgage loans for
other portfolios, giving due consideration to customary and usual standards of
practice of prudent institutional residential mortgage lenders and loan
servicers, and taking into account its other obligations hereunder, but without
regard to:
(i) any relationship that the Servicer, any sub-servicer, any
special servicer or any Affiliate of the Servicer, any sub-servicer or
any special servicer may have with the related Mortgagor;
(ii) the ownership of any Certificate by the Servicer, any
special servicer or any Affiliate of the Servicer, any sub-servicer or
any special servicer;
(iii)the Servicer's, any sub-servicer's or any special servicer's
right to receive compensation for its services hereunder or with
respect to any particular transaction; or
(iv) the ownership, or servicing or management for others, by the
Servicer, any sub-servicer or any special servicer, of any other
mortgage loans or property.
In addition, the Servicer shall have full power and authority 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, including, without
limitation, the power and authority to bring actions and defend the Trust Fund
on behalf of the Trustee in order to enforce the terms of the Mortgage Notes.
The Servicer may perform its servicing responsibilities through agents or
independent contractors, but shall not thereby be released from any of its
responsibilities hereunder and the Servicer shall diligently pursue all of its
rights against such agents or independent contractors.
To the extent consistent with the foregoing and subject to any express
limitations set forth in this Agreement, the Servicer shall seek to maximize the
timely and complete recovery of principal and interest on the Mortgage Notes;
provided, however, that nothing herein contained shall be construed as an
express or implied guarantee by the Servicer of the collectability of the Loans.
Subject only to the above-described servicing standards and the terms of this
Agreement and of the respective Loans, the Servicer, as an independent
contractor, shall service and administer the Loans
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and shall have full power and authority, acting alone or through one or more
subservicers, special servicers or agents (subject to paragraph (c) of this
Section 3.1), to do any and all things in connection with such servicing and
administration which it may deem necessary or desirable for the purpose of
conserving the assets of the Trust Fund. Without limiting the generality of the
foregoing, the Servicer shall and is hereby authorized and empowered by the
Trustee to continue to execute and deliver, on behalf of itself, the
Certificateholders and the Trustee or any of them, any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien on each Mortgaged Property and related collateral; and
modifications, waivers, consents or amendments to or with respect to any
documents contained in the related Mortgage File; and any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge,
assignments of Mortgages and endorsements of Notes in connection with
refinancings (in jurisdictions where such assignments are the customary and
usual standard of practice of mortgage lenders) and all other comparable
instruments, with respect to the Loans and with respect to the related Mortgaged
Properties. Notwithstanding the foregoing, the Servicer (whether acting alone or
through one or more subservicers, special servicers or agents) shall not modify,
amend, waive or otherwise consent to the change of the terms of any of the Loans
(including without limitation extending the stated maturity date of any Loan or
forgiving principal of or interest on any Loan), except as permitted by Section
3.2 hereof. The Servicer shall service and administer the Loans in accordance
with applicable law and shall provide to the Mortgagors any reports required to
be provided to them thereby. To enable the Servicer to carry out its servicing
and administrative duties hereunder, upon the Servicer's written request
accompanied by the forms of any documents requested, the Trustee shall execute
and deliver to the Servicer any powers of attorney and other documents necessary
or appropriate and the Trustee shall not be responsible for releasing such
powers of attorney. The Trustee shall not be responsible for, and the Servicer
shall indemnify the Trustee for, any action taken by the Servicer pursuant to
the application of any such power of attorney. The relationship of the Servicer
(and of any successor thereto) to the Trustee under this Agreement is intended
by the parties to be that of an independent contractor and not that of a joint
venturer, partner or agent.
In connection with the servicing and administration of each Loan, the
Servicer and any affiliate of the Servicer (i) may perform services such as
appraisals, default management and brokerage services that are not customarily
provided by servicers of mortgage loans, and shall be entitled to reasonable
compensation therefore not in excess of market rates for such services and (ii)
may, at its own discretion and on behalf of the Trustee, obtain credit
information in the form of a "credit score" from a credit repository.
(b) The Servicer, Trustee and Depositor intend that REMIC I and REMIC
II formed hereunder shall constitute, and that the Servicer shall perform its
duties and obligation hereunder so as to qualify each of them as, a "real estate
mortgage investment conduit" as defined in and in accordance with the REMIC
Provisions. The Tax Matters Person, or the Person acting as attorney-in-fact and
agent therefor, shall: (a) prepare and file, or cause to be prepared and filed,
federal tax returns (as well as any other federal and state information and
other returns) using a calendar year as the taxable year when and as required by
the REMIC Provisions; (b) make (or cause
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to be made) an election, on behalf of each of REMIC I and REMIC II, to be
treated as a REMIC on the Federal tax return and any applicable state or local
returns for the first taxable year, in accordance with the REMIC Provisions; (c)
prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders all information reports (including, without limitation, the
information required in connection with the computation of the present value of
anticipated excess inclusions as required by ss. 1.860E-2(a)(5) of the REMIC
Provisions) as and when required to be provided to them in accordance with the
REMIC Provisions; (d) conduct the affairs of the Trust Fund at all times that
REMIC I Regular Interests or REMIC II Certificates are outstanding so as to
maintain the status of each of REMIC I and REMIC II as a REMIC under the REMIC
Provisions; and (e) not knowingly or intentionally take any action or omit to
take any action that would cause the termination of the REMIC status of either
REMIC I or REMIC II.
The Servicer may enter into sub-servicing agreements with third parties
with respect to any of its respective rights and obligations hereunder,
provided, that any such agreement shall be consistent with the provisions of
this Agreement. Any such sub-servicing agreement may permit the sub-servicer to
delegate its rights and duties to agents or subcontractors so long as the
related agreements or arrangements with such agents or subcontractors are
consistent with the provisions of this Section 3.1(c). As long as the Servicer
has any obligations to service the Loans hereunder (and it has not assigned such
obligations pursuant to Section 3.1(c)), the Loans shall be serviced by a FNMA
approved lender or a FHLMC seller/servicer in good standing.
Any sub-servicing agreement, and any other transactions or services
relating to the Loans involving a sub-servicer, including (if applicable) the
Depositor in its capacity as sub-servicer under a sub-servicing agreement and
not in its capacity as a party to this Agreement, shall be deemed to be between
the Servicer and such sub-servicer (including the Depositor) alone, and the
Trustee and the Certificateholders shall not be deemed parties thereto and shall
have no claims, rights, obligations, duties or liabilities with respect to the
sub-servicer, except as set forth in Section 3.1(d).
In the event that the Trustee assumes the servicing obligations of the
Servicer (including by reason of an Event of Default which is not cured by the
Servicer within the time permitted hereunder), upon request of the Trustee, the
Servicer shall at its own expense deliver to the Trustee all documents and
records relating to any sub-servicing agreement and the Loans then being
serviced thereunder and an accounting of amounts collected and held by it, if
any, and will otherwise use its best efforts to effect the orderly and efficient
transfer of any sub-servicing agreement to the Trustee.
(c) Costs incurred by the Servicer in effectuating the timely payment
of taxes and assessments on the Mortgaged Property securing a Mortgage Note
shall be recoverable by the Servicer pursuant to Section 3.3. The Servicer shall
ensure all such taxes and assessments are timely paid.
The Servicer, as initial servicer, shall pay all of its costs and
proven damages incurred with respect to or arising out of any allegation of
impropriety in its servicing of the Loans. Further, the
52
Servicer shall not be entitled to reimbursement or indemnification from either
the Trust Fund or the Certificateholders with respect to any such costs, claims
and damages.
(d) Notwithstanding any sub-servicing agreement, any of the provisions
of this Agreement relating to agreements or arrangements between the Servicer
and any Person (including the Depositor) acting as sub-servicer (or its agents
or subcontractors) or any reference to actions taken through any Person
(including the Depositor) acting as sub-servicer or otherwise, the Servicer
shall remain obligated and primarily liable to the Trustee and
Certificateholders for the servicing and administering of the Loans in
accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such sub-servicing agreements or
arrangements or by virtue of indemnification from the Depositor or any other
Person acting as sub-servicer (or its agents or subcontractors) to the same
extent and under the same terms and conditions as if the Servicer alone were
servicing and administering the Loans. The Servicer shall be entitled to enter
into an agreement with any sub-servicer providing for indemnification of the
Servicer by such sub-servicer (including the Depositor and the Trustee), and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification, but no such agreement for indemnification shall be deemed to
limit or modify this Agreement.
Section 3.2 COLLECTION OF CERTAIN LOAN PAYMENTS; CUSTODIAL ACCOUNT FOR
P&I.
(a) The Servicer shall make reasonable efforts to collect all payments
called for under the terms and provisions of the Loans, and shall, to the extent
such procedures shall be consistent with this Agreement, follow such collection
procedures as it follows with respect to conventional mortgage loans it services
for itself and any of its Affiliates; provided, however, that the Servicer
agrees not to permit any modification with respect to any Loan that would change
the manner in which the Mortgage Interest Rate is computed, forgive any
principal or interest or change the term of such Loan. Consistent with the
foregoing, the Servicer may in its discretion (i) waive any assumption fee, late
payment charge or other charge in connection with a Loan, and (ii) arrange a
schedule, running for no more than 180 days after the scheduled Due Date, for
payment of any installment on any Mortgage Note or after the due date of any
other payment due under the related Mortgage Note for the liquidation of
delinquent items, provided, that the Servicer shall continue to be obligated to
make Advances in accordance with Section 4.3 during the continuance of such
period. With respect to any Loans which provide for the right of the holder
thereof to call for early repayment thereof at times specified therein, neither
the Trustee nor the Servicer shall exercise any such right, except that the
Trustee shall exercise such right at the written direction of the Servicer set
forth in an Officer's Certificate in connection with a default under the related
Note. Notwithstanding anything herein to the contrary, neither the Servicer nor
any other party may take any action that would cause a "significant
modification" of any Loan within the meaning of the REMIC Provisions that would
cause REMIC I or REMIC II to fail to qualify as a REMIC at any time or cause a
tax to be imposed on the Trust Fund under the REMIC Provisions.
(b) The Servicer shall establish and maintain one or more separate
accounts as set forth in Article I (collectively, the "Custodial Account for
P&I"), and shall on the Closing Date credit any
53
amounts representing scheduled payments of principal and interest due after the
Cut-off Date but received by the Servicer on or before the Closing Date, and
thereafter on a daily basis the following payments and collections received or
made by it (other than in respect of principal of and interest on the Loans due
on or before the Cut-off Date):
(i) All Mortgagor payments on account of principal, including
Principal Prepayments on the Loans;
(ii) All Mortgagor payments on account of interest on the Loans,
which may be net of that portion thereof which the Servicer is entitled
to retain as Servicing Fees (adjusted for any amounts related to
Compensating Interest) or other servicing compensation (including any
prepayment penalties) pursuant to Section 3.9, as adjusted pursuant to
Section 4.6;
(iii)All net Liquidation Proceeds;
(iv) All Insurance Proceeds received by the Servicer, other than
proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the Mortgagor in
accordance with the Servicer's normal servicing procedures, and all
amounts deposited by the Servicer with respect to the failure to
maintain flood or fire and hazard insurance policies, pursuant to
Section 3.5;
(v) All repurchase proceeds from the repurchase of a Loan
pursuant to a Purchase Obligation;
(vi) any amounts required to be deposited pursuant to Section
3.2(c) in connection with net losses realized on Eligible Investments
with respect to funds held in the Custodial Account for P&I;
(vii) all income and gain realized from any investment of the
funds in the Custodial Account for P&I in Eligible Investments;
(viii) all net income from the renting of REO Property pursuant
to Section 3.7(c); and
(ix) All other amounts required to be deposited in the Custodial
Account for P&I pursuant to this Agreement.
(c) The Servicer may invest the funds in the Custodial Account for P&I
in Eligible Investments which shall mature not later than the Business Day
preceding the next Distribution Date unless the Custodial Account for P&I is
maintained with the Trustee in which case they may mature on the Distribution
Date. The Eligible Investments may not be sold or disposed of prior to their
maturity. All such Eligible Investments shall be made in the name of the
Servicer (in its capacity as such) or its nominee. All income and gain realized
from any such investment shall be for the benefit
54
of the Servicer, and shall be payable to the Servicer. The amount of any losses
incurred in respect of any such investments shall be deposited in the Custodial
Account for P&I by the Servicer, out of its own funds immediately as realized
without right to reimbursement therefor.
(d) The foregoing requirements for deposit in the Custodial Account for
P&I shall be exclusive, it being understood and agreed that, without limiting
the generality of the foregoing, payments in the nature of those described in
the last paragraph of this Section 3.2 and payments in the nature of late
payment charges or assumption fees need not be deposited by the Servicer in the
Custodial Account for P&I. All funds deposited by the Servicer in the Custodial
Account for P&I shall be held by it in trust in the Custodial Account for P&I
until disbursed in accordance with Section 4.1 or withdrawn in accordance with
Section 3.3; provided, however, that the Servicer shall withdraw such funds and
deposit them in such manner as to not result in a downgrading or withdrawal of
the rating then assigned to the Certificates by each Rating Agency. If the
Servicer deposits in the Custodial Account for P&I any amount not required to be
deposited therein, it may at any time withdraw such amount from the Custodial
Account for P&I pursuant to Section 3.3(i) of this Agreement.
Certain of the Loans may provide for payment by the Mortgagor of
amounts to be used for payment of taxes, assessments, hazard or other insurance
premiums or comparable items for the account of the Mortgagor. The Servicer may
deal with these amounts in accordance with its normal servicing procedures and
pursuant to Section 3.4 of this Agreement.
Section 3.3 PERMITTED WITHDRAWALS FROM THE CUSTODIAL ACCOUNT FOR P&I.
The Servicer may, from time to time, make withdrawals from the
Custodial Account for P&I for the following purposes:
(a) to reimburse itself for Advances made by or on behalf of it
pursuant to Section 3.4 or 4.3, the Servicer's right to reimburse itself
pursuant to this subclause (a) being limited to (i) amounts received on or in
respect of particular Loans (including, for this purpose, Liquidation Proceeds
and Insurance Proceeds which represent late recoveries of payments of principal
and/or interest respecting which any such Advance was made and any net income
received from the renting of REO Property pursuant to Section 3.7(c)) and (ii)
amounts in the Custodial Account for P&I held for future distribution or
withdrawal, such amounts referred to in clause (ii) of this subclause (a) to be
replaced by the Servicer to the extent that funds in the Custodial Account for
P&I on a future Withdrawal Date are less than the payment required to be made to
the Certificate Account therefrom as of such future Distribution Date;
(b) (i) to reimburse itself from Liquidation Proceeds for Liquidation
Expenses, (ii) for amounts expended by it pursuant to Section 3.7 in good faith
in connection with the restoration of damaged property and (iii) to the extent
that Liquidation Proceeds after such reimbursement are in excess of the
Principal Balance of the related Loan together with accrued and unpaid interest
thereon at the applicable Pass-Through Rate to the date of such liquidation, net
of any related Advances
55
which were unreimbursed prior to the receipt of such Liquidation Proceeds, to
pay to itself any unpaid Servicing Fees, and any assumption fees, late payment
charges or other Mortgage charges on the related Loan;
(c) to pay to itself from any Mortgagor payment as to interest or other
recovery with respect to a particular Loan, to the extent permitted by this
Agreement, that portion of any payment as to interest in excess of interest at
the applicable Pass-Through Rate which the Servicer is entitled to retain as
Servicing Fees pursuant to Section 3.9 or otherwise;
(d) to reimburse itself for expenses incurred by and recoverable by or
reimbursable to it pursuant to Section 3.1 or 3.5 after the related Mortgagor
has reimbursed the Trust Fund for such expenses or following liquidation of the
related Loan, or pursuant to Section 6.3;
(e) to pay to itself with respect to each Loan or property acquired in
respect thereof that has been repurchased pursuant to Section 2.2 or 2.3 or
purchased by the Servicer pursuant to Section 9.1 all amounts received thereon
and not distributed as of the date on which the related Principal Balance is
determined;
(f) to reimburse itself for any Nonrecoverable Advances;
(g) to disburse to the Trustee in order that the Trustee may make
payments to Certificateholders in the amounts and in the manner provided for in
Section 4.1;
(h) to pay itself any net interest or other income earned and received
on or investment income received with respect to funds in the Custodial Account
for P&I; and
(i) to make payments to itself or others pursuant to any provision of
this Agreement and to remove any amounts not required to be deposited therein
and to clear and terminate the Custodial Account for P&I pursuant to Section
9.1.
Since in connection with withdrawals pursuant to subclauses (a), (b),
(c) and (e) the Servicer's entitlement thereto is limited to collections or
other recoveries on the related Loan, the Servicer shall keep and maintain a
separate accounting for each Loan for the purpose of justifying any withdrawal
from the Custodial Account for P&I pursuant to such subclauses.
The Servicer shall make the withdrawal referred to in subclause (g)
above and shall deposit the amount so withdrawn into the Certificate Account
prior to 4:00 P.M. New York City time on each related Withdrawal Date.
The Servicer may establish, or cause to be established, two or more
Custodial Accounts for P&I into which funds collected by the Servicer or its
subservicers in connection with the Loans may be deposited. Funds collected in
connection with mortgage loans other than the Loans may also be deposited in the
Custodial Accounts for P&I and co-mingled with collections on the Loans. The
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Servicer may, in its discretion, withdraw funds from one Custodial Account for
P&I and deposit such funds into another Custodial Account for P&I prior to the
date such funds must be deposited in the Certificate Account.
Section 3.4 TAXES, ASSESSMENTS AND SIMILAR ITEMS; ESCROW ACCOUNTS.
(a) The Servicer shall establish and maintain one or more accounts
(each, an "Escrow Account") into which all Escrow Payments shall be deposited
and in which all Escrow Payments shall be retained. Escrow Accounts shall be
Eligible Accounts, and funds in the Escrow Account may be invested in Eligible
Investments. Withdrawals of amounts from an Escrow Account may be made only to:
(i) effect payment of taxes, assessments, insurance premiums and comparable
items; (ii) refund to Mortgagors any sums that are determined to be overages;
(iii) reimbursement to the Servicer for any cost incurred in paying taxes,
insurance premiums and assessments or comparable items; (iv) pay interest, if
required and as described below, to Mortgagors on balances in the Escrow
Account; (v) withdraw interest or other income which may lawfully be retained by
the Trust Fund, for deposit into the Certificate Account; or (vi) clear and
terminate the Escrow Account at the termination of this Agreement in accordance
with Section 9.1. Unless otherwise required by applicable law, any interest
earned on funds in Escrow Accounts shall be remitted to the related Mortgagors
if required by the related Mortgage Note or otherwise to the Servicer as
additional servicing compensation.
(b) With respect to each Loan, the Servicer shall maintain, or cause to
be maintained, accurate records with respect to each related Mortgaged Property
reflecting the status of taxes, assessments and other similar items that are or
may become a lien on the related Mortgaged Property and the status of insurance
premiums payable with respect thereto. The Servicer shall require that payments
for taxes, assessments, insurance premiums and other similar items be made by
the Mortgagor at the time they first become due. If a Mortgagor fails to make
any such payment on a timely basis, the Servicer shall advance, or cause to be
advanced, the amount of any shortfall unless the Servicer determines in its good
faith judgment that such advance would not be ultimately recoverable from future
payments and collections on the related Loan (including without limitation
Insurance Proceeds and Liquidation Proceeds), or otherwise. The Servicer shall
be entitled to reimbursement of advances made pursuant to the preceding
sentence, together with interest thereon at the Federal Funds Rate, from amounts
received on or in respect of the related Loan respecting which such advance was
made or if such advance has become nonrecoverable, in either case to the extent
permitted by Section 3.3 of this Agreement. No costs incurred by the Servicer in
effecting the payment of taxes and assessments on the Mortgaged Properties
shall, for the purpose of calculating distributions to Certificateholders, be
added to the amount owing under the related Loans, notwithstanding that the
terms of such Loans so permit.
The Servicer may establish, or cause to be established, two or more
Escrow Accounts into which funds collected by the Servicer or its subservicers
in connection with the Loans may be deposited. Funds collected in connection
with mortgage loans other than the Loans may also be deposited in the Escrow
Accounts and co-mingled with collections on the Loans. The Servicer may,
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in its discretion, withdraw funds from one Escrow Account and deposit such funds
into another Escrow Account prior to the date such funds must be used to make
Escrow Payments.
Section 3.5 MAINTENANCE OF INSURANCE.
The Servicer shall also cause to be maintained for each Loan fire and
hazard insurance with extended coverage as is customary in the area where the
Mortgaged Property is located in an amount which is at least equal to the lesser
of (i) the Principal Balance of such Loan or (ii) the replacement value costs of
improvements securing such Loan. The Servicer shall cause to be maintained fire
and hazard insurance with extended coverage on each REO Property in an amount
which is at least equal to the greater of (i) an amount not less than is
necessary to avoid the application of any co-insurance clause contained in the
related fire and hazard insurance policy or (ii) the replacement cost of the
improvements which are a part of such property. The Servicer shall also cause to
be maintained for each Loan with a Loan-to-Value Ratio greater than 80% a
primary mortgage insurance policy which will cover at least 75% of the original
fair market value of the related Mortgaged Property until such time as the
principal balance of such Loan is reduced to 80% of the current fair market
value or otherwise in accordance with applicable law. The Servicer on behalf of
the Trustee as Mortgagee shall maintain or cause the related Mortgagor to
maintain for each Loan such other insurance on the related Mortgaged Property as
may be required by the terms of the related Mortgage Note. If the Mortgaged
Property is in an area identified in the Federal Register by the Flood Emergency
Management Agency as having special flood hazards the Servicer will cause to be
maintained a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least of
(i) the full insurable value, (ii) the maximum amount of insurance which is
available under the Flood Disaster Protection Act of 1973, and (iii) the
Principal Balance of the related Loan. The Servicer shall also maintain fire and
hazard insurance with extended coverage and, if applicable, flood insurance on
property acquired upon foreclosure, or by deed in lieu of foreclosure, of any
Loan in an amount that 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 principal balance owing on such Loan at the time of such foreclosure or
grant of deed in lieu of foreclosure plus accrued interest and related
Liquidation Expenses. If an REO Property was located at the time of origination
of the related Loan in a federally designated special flood hazard area, the
Servicer will obtain flood insurance in respect thereof providing substantially
the same coverage as described in the preceding sentence. If at any time during
the term of this Agreement a recovery under a flood or fire and hazard insurance
policy in respect of an REO Property is not available but would have been
available if such insurance were maintained thereon in accordance with the
standards applied to Mortgaged Properties described herein, the Servicer shall
either (i) immediately deposit into the Custodial Account for P&I from its own
funds the amount that would have been recovered or (ii) apply to the restoration
and repair of the property from its own funds the amount that would have been
recovered, if such application would be consistent with the servicing standard
set forth in Section 3.1. It is understood and agreed that such insurance shall
be with insurers approved by the Servicer and that no earthquake or other
additional insurance is to be required of any Mortgagor, other than pursuant to
such applicable laws and regulations or policies of the Servicer as shall at any
time be in force and
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as shall require such additional insurance. Pursuant to Section 3.2, any amounts
collected by the Servicer under any insurance policies maintained pursuant to
this Section 3.5 (other than amounts to be applied to the restoration or repair
of the property subject to the related Mortgage or released to the Mortgagor in
accordance with the Servicer's normal servicing procedures) shall be deposited
into the Custodial Account for P&I, subject to withdrawal pursuant to Section
3.3. Any cost incurred by the Servicer in maintaining any such insurance shall
be recoverable by the Servicer pursuant to Section 3.3. In the event that the
Servicer shall obtain and maintain a blanket policy issued by an insurer that
qualifies under the guidelines set forth for the Servicer by FNMA or FHLMC,
insuring against hazard losses on all of the Loans, then, to the extent such
policy provides coverage in an amount equal to the unpaid principal balance on
the Loans without co-insurance and otherwise complies with all other
requirements set forth in the first paragraph of this Section 3.5, it shall
conclusively be deemed to have satisfied its obligation as set forth in such
first paragraph, it being understood and agreed that such policy may contain a
deductible clause, in which case the Servicer shall, in the event that there
shall not have been maintained on the related mortgaged or acquired property an
insurance policy complying with the first paragraph of this Section 3.5 and
there shall have been a loss which would have been covered by such a policy had
it been maintained, be required to deposit from its own funds into the Custodial
Account for P&I or apply to the restoration of the property the amount not
otherwise payable under the blanket policy because of such deductible clause.
The Servicer shall obtain and maintain at its own expense throughout
the term of this Agreement a blanket fidelity bond and an errors and omissions
insurance policy with broad coverage with responsible companies covering the
Servicer's officers and employees and other persons acting on behalf of the
Servicer in connection with its activities under this Agreement. Any such
fidelity bond and errors and omissions insurance shall provide an amount of
coverage and will maintain such coverage at a level which will permit the
Servicer to continue to be a FNMA or a FHLMC-qualified Servicer and shall
protect and insure the Servicer against losses, including forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of such persons. No
provision of this Section 3.5 requiring such fidelity bond and errors and
omissions insurance shall diminish or relieve the Servicer from its duties and
obligations as set forth in this Agreement.
Section 3.6 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION AND
SUBSTITUTION AGREEMENTS.
In any case in which property subject to a Mortgage is conveyed by the
Mortgagor, the Servicer will enforce any due-on-sale clause contained in the
related Mortgage Note or Mortgage, to the extent permitted under applicable law
and governmental regulations, but only to the extent that such enforcement will
not adversely affect or jeopardize coverage under any related insurance policy
or result in legal action by the Mortgagor. Subject to the foregoing, the
Servicer is authorized to take or enter into an assumption or substitution
agreement from or with the Person to whom such property has been or is about to
be conveyed. The Servicer is also authorized to release the original Mortgagor
from liability upon the Loan and substitute the new Mortgagor as obligor
thereon. In connection with such assumption or substitution, the Servicer shall
apply such underwriting standards and follow
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such practices and procedures as shall be normal and usual and as it applies to
mortgage loans owned solely by it or any of its Affiliates. The Servicer shall
notify the Trustee that any such assumption or substitution agreement has been
completed by forwarding to the Trustee the original copy of such assumption or
substitution agreement, which copy shall be added by the Trustee 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. In connection with any such assumption or substitution agreement,
the interest rate of the related Mortgage Note shall not be changed. Any fee
collected by the Servicer for entering into an assumption or substitution of
liability agreement will be retained by the Servicer as servicing compensation.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any conveyance by the
Mortgagor of the Mortgaged Property or any assumption of a Loan by operation of
law which the Servicer in good faith determines it may be restricted by law from
preventing, for any reason whatsoever.
Section 3.7 REALIZATION UPON DEFAULTED LOANS.
(a) Consistent with the servicing standard set forth in Section 3.1 and
with a view to the best economic interest of the Trust Fund, the Servicer shall
foreclose upon or otherwise comparably convert (which may include acquisition of
an REO Property) the Mortgaged Properties securing such of the 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 3.2. In
connection with such foreclosure or other conversion, the Servicer shall follow
such practices and procedures as it shall deem necessary or advisable and as
shall be normal and usual in its general mortgage servicing activities. The
foregoing is subject to the proviso that the Servicer shall not be required to
expend its own funds in connection with any foreclosure or to restore any
damaged property unless it shall determine (i) that such foreclosure and/or
restoration expenses will increase the Liquidation Proceeds to
Certificateholders after reimbursement to itself for such expenses and (ii) that
such expenses will be recoverable to it through Liquidation Proceeds (respecting
which it shall have priority for purposes of withdrawal from the Custodial
Account for P&I pursuant to Section 3.3). Any gain on foreclosure or other
conversion of a Liquidated Loan shall be distributed to the Class R
Certificateholders, but only to the extent that such gain is not necessary to
make distributions to the Certificateholders of the other Classes of
Certificates. The 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 (as well as any Servicing Fees and other
amounts due it, if any), to the extent, but only to the extent, that withdrawals
from the Custodial Account for P&I with respect thereto are permitted under
Section 3.3. Within 30 days after receipt of Liquidation Proceeds in respect of
a Liquidated Loan, the Servicer shall provide to the Trustee a statement of
accounting for the related Liquidated Loan, including without limitation (i) the
Loan number, (ii) the date the Loan was acquired in foreclosure or deed in lieu,
and the date the Loan became a Liquidated Loan, (iii) the gross sales price and
the related selling and other expenses, (iv) accrued interest calculated from
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the foreclosure date to the liquidation date, and (v) such other information as
the Trustee may reasonably specify.
(b) Prior to any such foreclosure, the Servicer may, at its option,
repurchase any Loan which is 90 days or more delinquent and which the Servicer
determines in good faith would otherwise become subject to foreclosure
proceedings or any Loan as to which the Mortgagor tenders a deed in lieu of
foreclosure at a price equal to the outstanding Principal Balance of the Loan
plus accrued interest at the applicable Pass-Through Rate to the next Due Date.
Any such repurchase shall be deemed a Principal Prepayment for purposes of this
Agreement and all amounts in respect thereof shall be deposited into the
Custodial Account for P&I pursuant to Section 3.2(b).
(c) The Trust Fund shall not acquire any real property (or personal
property incident to such real property) except in connection with a default or
imminent default of a Loan. Based on a report prepared by an Independent Person
who regularly conducts environmental audits that the Mortgaged Property for
which foreclosure proceedings are contemplated is not in compliance with
applicable environmental laws, or there are circumstances present at such
Mortgaged Property relating to the use, management or disposal of any hazardous
materials, wastes, or petroleum based materials for which investigation,
testing, monitoring, containment, clean-up or remediation could be required
under any federal, state or local law or that it would not be in the best
economic interest of the Trust Fund to acquire title to such Mortgaged Property
and further to take such actions as would be necessary and appropriate to effect
such compliance and/or respond to such circumstances, the Servicer will not
conduct such foreclosure proceedings. If the Servicer otherwise becomes aware,
under its customary servicing procedures, of an environmental hazard with
respect to a Loan for which foreclosure proceedings are contemplated, the
Servicer will not conduct such foreclosure proceedings unless it determines in
good faith that the liability associated with the environmental hazard will be
less than the Liquidation Proceeds to be realized from the sale of the related
Mortgaged Property. In the event that the Trust Fund acquires any real property
(or personal property incident to such real property) in connection with a
default or imminent default of a Loan, such REO Property shall be disposed of by
the Trust Fund within three years after its acquisition by the Trust Fund unless
the Trustee shall have received from the Servicer an Opinion of Counsel to the
effect that the holding by the Trust Fund of such REO Property subsequent to
three years after its acquisition will not cause either REMIC I or REMIC II to
fail to qualify as a REMIC under the REMIC Provisions at any time that any REMIC
I Regular Interests or Certificates are outstanding, in which case such REO
Property shall be disposed of as soon as possible by the Trust Fund but in no
event shall be held longer than the maximum period of time during which the
Trust Fund is then permitted to hold such REO Property and allow REMIC I and
REMIC II to remain qualified as REMICs under the REMIC Provisions. The Servicer
shall manage, conserve, protect and operate each such REO Property for the
Certificateholders solely for the purpose of its prompt disposition and sale in
a manner which does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code.
Pursuant to its efforts to sell such REO Property, the Servicer shall either
itself or through an agent selected by the Servicer protect and conserve such
REO Property in the same manner and to such extent as is customary in the
locality where such property is located and may, incident to its conservation
and protection of the interests
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of the Certificateholders, rent the same, or any part thereof, as the Servicer
deems to be in the best interest of the Servicer and the Certificateholders for
the period prior to the sale of such REO Property. All proceeds from the renting
of such REO Property shall, net of any costs or expenses of the Servicer in
connection therewith, be deposited into the Custodial Account for P&I pursuant
to Section 3.3(b)(ix).
(d) In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Trustee, or to its nominee on behalf of
Certificateholders. Notwithstanding any such acquisition of title and
cancellation of the related Loan, such Loan shall (except for purposes of
Section 9.1) be considered to be a Loan held in the Trust Fund until such time
as the related REO Property shall be sold by the Trust Fund and shall be reduced
only by collections net of expenses. Consistent with the foregoing, for purposes
of all calculations hereunder, so long as such Loan shall be considered to be an
outstanding Loan, it shall be assumed that, notwithstanding that the
indebtedness evidenced by the related Mortgage Note shall have been discharged,
such Mortgage Note and, for purposes of determining the Scheduled Principal
Balance thereof, the related amortization schedule in effect at the time of any
such acquisition of title remain in effect.
(e) The Servicer shall not acquire for the benefit of the Trust Fund
any personal property pursuant to this Section 3.7 unless either:
(i) such personal property is incident to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the
Servicer for the benefit of the Trust Fund; or
(ii) the Servicer shall have requested and received an Opinion of
Counsel (which opinion shall be an expense of the Trust Fund) to the
effect that the holding of such personal property by the Trust Fund
will not cause the imposition of a tax on the Trust Fund under the
REMIC Provisions or cause either REMIC I or REMIC II of the Trust Fund
to fail to qualify as a REMIC at any time that any Certificate is
outstanding.
Section 3.8 TRUSTEE TO COOPERATE; RELEASE OF MORTGAGE FILES.
Upon the payment in full of any Loan, or the receipt by the Servicer of
a notification that the payment in full will be escrowed in a manner customary
for such purposes, the Servicer will immediately notify the Trustee, the
Custodian or any related sub-custodian by an Officer's Certificate (which
Officer's Certificate shall include a statement to the effect that all amounts
received in connection with such payment which are required to be deposited in
the Custodial Account for P&I pursuant to Section 3.2 have been or will be so
deposited) and shall by such Officer's Certificate request delivery to it of the
Mortgage File. Upon receipt of such Officer's Certificate and request, the
Trustee, the Custodian or any such sub-custodian, as applicable, shall, not
later than the 5th succeeding Business Day, release or cause to be released the
related Mortgage File to the Servicer. Upon the Trustee's, the Custodian's or
any such sub-custodian's receipt of any release or reconveyance documents or
instruments relating to a Loan paid in full, the Trustee, the
62
Custodian or any such sub-custodian, as the case may be, shall, not later than
the 5th succeeding Business Day, execute and return such documents and
instruments to the Servicer. From time to time and as appropriate for the
servicing or foreclosure of any Loan, the Custodian shall, upon written request
of the Servicer and delivery to the Custodian or any sub-custodian, as
applicable, of a trust receipt signed by a Servicing Officer, release or cause
to be released, not later than the 5th succeeding Business Day, the related
Mortgage File to the Servicer and shall execute such documents furnished to it
as shall be necessary to the prosecution of any such proceedings. Such trust
receipt shall obligate the Servicer to return each and every document previously
requested from the Mortgage File to the Custodian or the sub-custodian, as
applicable, when the need therefor by the Servicer no longer exists unless the
Loan shall be liquidated, in which case, upon receipt of a certificate of a
Servicing Officer similar to that hereinabove specified, the trust receipt shall
be released by the Custodian or any such sub-custodian to the Servicer by
delivery to a Servicing Officer and the Custodian and sub-custodian shall have
no further responsibility with respect to such Mortgage Files.
Section 3.9 SERVICING COMPENSATION.
The Servicer shall be entitled to retain or, if not retained, to
withdraw from the Certificate Account or the Custodial Account for P&I as
servicing compensation its Servicing Fee out of each payment on account of
interest on each Loan, subject to adjustment as provided in Section 4.6. The
Servicer shall also be entitled to payment of unpaid Servicing Fees with respect
to a delinquent Loan out of Liquidation Proceeds with respect to such Loan, to
the extent permitted by Section 3.3(b). Servicing compensation in the form of
assumption fees, late payment charges or otherwise shall be retained by the
Servicer and need not be deposited in the Custodial Account for P&I. The
Servicer shall also be entitled to additional servicing compensation out of
Liquidation Proceeds to the extent provided in Section 3.3(b). The Servicer
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder (including maintenance of the blanket fidelity
bond and errors and omissions policy required by Section 3.5) and shall not be
entitled to reimbursement therefor except as specifically provided in Sections
3.1, 3.3, 3.5 and 3.7.
Section 3.10 REPORTS TO THE TRUSTEE.
On or before 12:00 noon (New York City time) on the second Business Day
prior to each Distribution Date, the Servicer shall deliver or cause to be
delivered to the Trustee or its designee a statement in electronic or written
form as may be agreed upon by the Servicer and the Trustee containing the
information described in Section 4.2 and such other information as may be
necessary for the Trustee to distribute the amounts to be distributed to the
Certificateholders by the Trustee (the "Servicer's Section 3.10 Report"). Not
later than 25 days after each Distribution Date, the Servicer shall forward or
cause to be forwarded to the Trustee a statement, certified by a Servicing
Officer, as to the Certificate Account as of the close of business on the
related Distribution Date, stating that all distributions into the Certificate
Account required to be made by this Agreement have been made for the period
covered by such statement (or if any required distribution has not been made,
specifying the nature and status thereof) and showing, for the period covered by
such statement, the
63
aggregate of deposits into the Certificate Account and withdrawals from the
Custodial Account for P&I, for each category of deposit specified in Section 3.2
and each category of withdrawal specified in Section 3.3. Such statement shall
also include information as to the aggregate Principal Balance of all of the
Loans as of the last day of the calendar month immediately preceding such
Distribution Date. Copies of such statement shall be provided to any
Certificateholder upon request by the Servicer, or by the Trustee so long as the
Trustee has received the report as stipulated above at the Servicer's expense if
the Servicer shall fail to provide such copies.
Section 3.11 ANNUAL STATEMENT AS TO COMPLIANCE.
Not later than the earlier of (a) March 15 of each calendar year (other
than the calendar year during which the Closing Date occurs) or (b) with respect
to any calendar year during which the Depositor's annual report on Form 10-K is
required to be filed in accordance with the Exchange Act and the rules and
regulations of the Commission, 15 calendar days before the date on which the
Depositor's annual report on Form 10-K is required to be filed in accordance
with the Exchange Act and the rules and regulations of the Commission (or, in
each case, if such day is not a Business Day, the immediately preceding Business
Day), the Servicer will deliver to the Trustee an Officer's Certificate stating
as to each signer thereof, that (i) a review of the activities of the Servicer
during the preceding calendar year and of performance under this Agreement has
been made under such officer's supervision, and (ii) to the best of such
officer's knowledge, based on such review, the Servicer has fulfilled all of its
obligations under this Agreement throughout such year, or if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof. Copies of such
statement shall be provided to each Rating Agency and to any Certificateholder
upon request by the Servicer, or by the Trustee at the Servicer's expense.
Section 3.12 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
Not later than the earlier of (a) March 15 of each calendar year (other
than the calendar year during which the Closing Date occurs) or (b) with respect
to any calendar year during which the Depositor's annual report on Form 10-K is
required to be filed in accordance with the Exchange Act and the rules and
regulations of the Commission, 15 calendar days before the date on which the
Depositor's annual report on Form 10-K is required to be filed in accordance
with the Exchange Act and the rules and regulations of the Commission (or, in
each case, if such day is not a Business Day, the immediately preceding Business
Day), the Servicer, at its expense, shall cause a firm of independent public
accountants who are members of the American Institute of Certified Public
Accountants to furnish a statement to the Trustee to the effect that, in
connection with the firm's examination of the financial statements as of the
previous December 31 of the Servicer's parent corporation (which shall include a
limited examination of the Servicer's financial statements), nothing came to
their attention that indicated that the Servicer was not in compliance with
Section 3.02, Section 3.03, Section 3.04, Section 3.05, Section 3.11, Section
3.12 and Section 3.13 of this Agreement, except for (i) such exceptions as such
firm believes to be immaterial, and (ii) such other
64
exceptions as are set forth in such statement. Copies of such statement shall be
provided to Certificateholders upon request by the Servicer, or by the Trustee
at the Servicer's expense.
Section 3.13 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING
THE LOANS.
The Servicer shall provide access to the Trustee or to its designees at
its request, and to Certificateholders which are savings and loan associations,
banks or insurance companies, the OTS, the FDIC and the supervisory agents and
examiners of the OTS and the FDIC or examiners of any other federal or state
banking or insurance regulatory authority to the documentation regarding the
Loans if so required by applicable regulations of the OTS or other regulatory
authority, such access to be afforded without charge but only upon reasonable
request and during normal business hours at the offices of the Servicer
designated by it. The Trustee or its designee may without charge copy any
document or electronic record maintained by the Servicer hereunder.
Section 3.14 [RESERVED].
Section 3.15 SALE OF DEFAULTED LOANS AND REO PROPERTIES.
(a) With respect to any Defaulted Loan or REO Property which the
Servicer has determined to sell in accordance with the standards set forth in
Section 3.7, the Servicer shall deliver to the Trustee an Officer's Certificate
to the effect that no satisfactory arrangements can be made for collection of
delinquent payments thereon pursuant to Section 3.2, and, consistent with the
servicing standard set forth in Section 3.1 and with a view to the best economic
interest of the Trust Fund, the Servicer has determined to sell such Defaulted
Loan or REO Property in accordance with this Section 3.15. The Servicer may then
offer to sell to any Person any Defaulted Loan or any REO Property or, subject
to the following sentence, purchase any such Defaulted Loan or REO Property (in
each case at the Purchase Price therefor), but shall in any event, so offer to
sell any REO Property no later than the time determined by the Servicer to be
sufficient to result in the sale of such REO Property within the period
specified in Section 3.7(c). The Servicer shall accept the highest bid received
from any Person for any Defaulted Loan or any REO Property in an amount at least
equal to the Purchase Price therefor or, at its option, if it has received no
bid at least equal to the Purchase Price therefor, purchase the Defaulted Loan
or REO Property at the Purchase Price.
In the absence of any such bid or purchase by the Servicer, the
Servicer shall accept the highest bid received from any Person that is
determined by the Servicer to be a fair price for such Defaulted Loan or REO
Property, if the highest bidder is a Person other than an Interested Person, or
is determined to be such a price by the Trustee, if the highest bidder is an
Interested Person. Notwithstanding anything to the contrary herein, neither the
Trustee, in its individual capacity, nor any of its Affiliates may bid for or
purchase any Defaulted Loan or any REO Property pursuant hereto.
The Servicer shall not be obligated by either of the foregoing
paragraphs or otherwise to accept the highest bid if the Servicer determines, in
accordance with the servicing standard stated
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in Section 3.1, that rejection of such bid would be in the best interests of the
Certificateholders. In addition, the Servicer may accept a lower bid if it
determines, in accordance with the servicing standard stated in Section 3.1,
that acceptance of such bid would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower bid
is more likely to perform its obligations, or the terms offered by the
prospective buyer making the lower bid are more favorable). In the event that
the Servicer determines with respect to any REO Property that the bids being
made with respect thereto are not in the best interests of the
Certificateholders and that the end of the period referred to in Section 3.7(c)
with respect to such REO Property is approaching, the Servicer shall seek an
extension of such period in the manner described in Section 3.7(c).
(b) In determining whether any bid received from an Interested Person
represents a fair price for any Defaulted Loan or any REO Property, the Trustee
may conclusively rely on the opinion of an Independent appraiser or other expert
in real estate matters retained by the Servicer the expense of which shall be an
expense of the Trust Fund. In determining whether any bid constitutes a fair
price for any Defaulted Loan or any REO Property, the Servicer or the Trustee
(or, if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into account,
as applicable, among other factors, the period and amount of any delinquency on
the affected Defaulted Loan, the physical condition of the related Mortgaged
Property or such REO Property, the state of the local economy and the Trust
Fund's obligation to dispose of any REO Property within the time period
specified in Section 3.7(c).
(c) The Servicer shall act on behalf of the Trust Fund in negotiating
and taking any other action reasonably necessary or appropriate in connection
with the sale of any Defaulted Loan or REO Property, including the collection of
all amounts payable in connection therewith. Any sale of a Defaulted Loan or any
REO Property shall be without recourse to, or representation or warranty by, the
Trustee, the Depositor, the Servicer or the Trust Fund (except that any contract
of sale and assignment and conveyance documents may contain customary warranties
of title, so long as the only recourse for breach thereof is to the Trust Fund),
and, if consummated in accordance with the terms of this Agreement, neither the
Servicer, the Depositor nor the Trustee shall have any liability to the Trust
Fund or any Certificateholder with respect to the purchase price therefor
accepted by the Servicer or the Trustee.
(d) The proceeds of any sale after deduction of the expenses of such
sale incurred in connection therewith shall be promptly deposited in the
Custodial Account for P & I in accordance with Section 3.2(b).
Section 3.16 DELEGATION OF DUTIES.
In the ordinary course of business, the Servicer or the Trustee may at
any time delegate any duties hereunder to any Person who agrees to conduct such
duties in accordance with the applicable terms of this Agreement. In case of
such delegation, the Servicer or the Trustee shall supervise, administer,
monitor and oversee the activities of such Person hereunder to insure that such
Person performs such duties in accordance herewith and shall be responsible for
the acts and omissions of
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such Person to the same extent as it is responsible for its own actions or
omissions hereunder. Any such delegations shall not relieve the Servicer or the
Trustee of its liability and responsibility with respect to such duties, and
shall not constitute a resignation within the meaning of Section 6.4 hereof and
shall be revocable by any successor Servicer or the Trustee.
Section 3.17 [RESERVED].
Section 3.18 [RESERVED].
Section 3.19 APPOINTMENT OF A SPECIAL SERVICER.
The Servicer may enter into a special servicing agreement with an
unaffiliated holder of Subordinate Certificates or a holder of a class of
securities representing interests in such Class of Subordinate Certificates,
such agreement to be (i) substantially in the form of Exhibit R hereto or (ii)
subject to each Rating Agency's acknowledgment that the ratings of the
Certificates in effect immediately prior to the entering into of such agreement
would not be qualified, downgraded or withdrawn and the Certificates would not
be placed on credit review status (except for possible upgrading) as a result of
such agreement. Any such agreement may contain provisions whereby such holder
may instruct the Servicer to commence or delay foreclosure proceedings with
respect to delinquent Loans and may contain provisions for the deposit of cash
by the holder that would be available for distribution to Certificateholders if
Liquidation Proceeds are less than they otherwise may have been had the Servicer
acted in accordance with its normal procedures.
Section 3.20 ALLOCATION OF REALIZED LOSSES.
Prior to each Distribution Date, the Servicer shall determine the
amount of Realized Losses, if any, with respect to each Loan. All Realized
Losses, except for Excess Losses, will be allocated as follows: (i) for losses
allocable to principal (a) first, to the Subordinate Certificates in reverse
order of seniority until each of their Class Principal Balances have been
reduced to zero and (b) second, to the Senior Certificates (other than the
Principal Only Certificates), by Pro Rata Allocation, until the Certificate
Principal Balances thereof have been reduced to zero; provided, however, that
prior to the Credit Support Depletion Date if the loss is recognized with
respect to a Discount Loan, the Discount Fraction of such loss will first be
allocated to the Class A-P Certificates and the remainder of such loss will be
allocated as described above in this clause (i); and (ii) for losses allocable
to interest (a) first, to the Subordinate Certificates in reverse order of
seniority, in reduction of accrued but unpaid interest thereon and (b) second,
to the Senior Certificates (other than the Principal Only Certificates), by Pro
Rata Allocation in reduction of accrued but unpaid interest thereon.
Excess Losses shall be allocated among the Senior Certificates and the
Subordinate Certificates by Pro Rata Allocation.
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On each Distribution Date, after giving effect to the principal
distributions and allocations and reimbursement of losses as provided in this
Agreement (without regard to this paragraph), if the Aggregate Certificate
Principal Balance of all outstanding Classes of Certificates exceeds the
aggregate principal balance of the Loans, after deduction of (i) all principal
payments due on or before the Cut-Off Date in respect of each such Loan whether
or not paid and (ii) all amounts of principal in respect of each such Loan that
have been received or advanced and included in the Available Distribution
Amount, and all losses in respect of such Loans that have been allocated to the
Certificates, on such Distribution Date or prior Distribution Dates, then such
excess will be deemed a principal loss and will be allocated (i) first, to the
Subordinate Certificates in reverse order of seniority until each of their Class
Principal Balances has been reduced to zero, and (ii) second, to the Senior
Certificates, other than the Interest Only Certificates, by Pro Rata Allocation.
Section 3.21 MAINTENANCE OF THE ROUNDING ACCOUNTS; COLLECTIONS
THEREUNDER.
On or prior to the Closing Date, the Trustee shall establish with
respect to each Class of Retail Lottery Certificates a Rounding Account and
Credit Suisse First Boston LLC shall deposit in each such Rounding Account
$999.99 therein. The Trustee shall maintain each such account to provide, if
needed, the applicable Rounding Amount on any Distribution Date. On the first
Distribution Date with respect to which the Servicer determines that amounts are
available out of the applicable Available Distribution Amount for distributions
of principal on the Retail Lottery Certificates, and the aggregate amount
allocable to such distributions of principal is not an amount equal to an
integral multiple of $1,000, the Servicer shall notify the Trustee by noon New
York City time, two Business Days prior to such Distribution Date of the
applicable Rounding Amount, and the Trustee shall withdraw from the Rounding
Account the applicable Rounding Amount. On each succeeding Distribution Date,
prior to the Credit Support Depletion Date, with respect to which the Servicer
determines that amounts are available out of the applicable Available
Distribution Amount for distributions of principal on the Retail Lottery
Certificates, the aggregate amount allocable to such Class will be applied first
to replenish any funds withdrawn from the related Rounding Account on prior
Distribution Dates which have not been repaid. If the remainder of the aggregate
amount allocable to distributions of principal to the Retail Lottery
Certificates is not an amount equal to an integral multiple of $1,000, the
Servicer shall notify the Trustee by noon New York City time, two Business Days
prior to such Distribution Date of the applicable Rounding Amount, and the
Trustee shall withdraw from the related Rounding Account, to the extent funds
are available therein, the applicable Rounding Amount.
Any amounts withdrawn by the Trustee from any Rounding Account shall be
deposited in the Certificate Account for distribution to the Holders of related
Retail Lottery Certificates as described in the immediately preceding paragraph.
Amounts on deposit in any Rounding Account shall not be invested.
Each Rounding Account shall be a "qualified reserve fund" under the
REMIC Provisions.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; ADVANCES;
STATEMENTS AND REPORTS
Section 4.1 DISTRIBUTIONS TO CERTIFICATEHOLDERS.
(a) The Trustee shall establish and maintain a separate account as set
forth in Article I (the "Certificate Account"), the purpose of which is to
accept deposits from the Servicer and to make distributions to the
Certificateholders of the amounts set forth in this Section 4.1.
(b) On each Distribution Date, the Trustee or the Paying Agent, if any,
shall (i) withdraw from the Certificate Account the Available Distribution
Amount for such Distribution Date and shall distribute to each
Certificateholder, from the amount so withdrawn and to the extent of the
Available Distribution Amount, such Certificateholder's share (based on the
aggregate Percentage Interests represented by the Certificates of the applicable
Class held by such Certificateholder) of the amounts and in the order of
priority as set forth in the definition of "Certificate Distribution Amount",
and (ii) distribute Excess Liquidation Proceeds to the Class R Certificateholder
by wire transfer in immediately available funds for the account of the
Certificateholder, or by any other means of payment acceptable to each
Certificateholder of record on the immediately preceding Record Date (other than
as provided in Section 9.1 respecting the final distribution), as specified by
each such Certificateholder and at the address of such Holder appearing in the
Certificate Register; provided, that such distributions in (i) and (ii) above
shall be made in accordance with written statements received from the Servicer
pursuant to Section 4.2.
(c) All reductions in the Certificate Principal Balance of a
Certificate effected by distributions of principal or allocations of Realized
Losses with respect to Loans made on any Distribution Date shall be binding upon
all Holders of such Certificate and of any Certificate issued upon the
registration of transfer or exchange therefor or in lieu thereof, whether or not
such distribution is noted on such Certificate. The final distribution of
principal of each Certificate (and the final distribution with respect to the
Class R Certificate upon termination of the Trust Fund) shall be payable in the
manner provided above only upon presentation and surrender thereof on or after
the Distribution Date therefor at the office or agency of the Trustee specified
in the notice delivered pursuant to Section 4.1(d) or Section 9.1.
(d) Whenever, on the basis of Curtailments, Payoffs and Monthly
Payments on the Loans and Insurance Proceeds and Liquidation Proceeds received
and expected to be received during the applicable Prepayment Period, the Trustee
believes, or the Servicer has notified the Trustee that it believes, that the
entire remaining unpaid Class Principal Balance of any Class of Certificates
will become distributable on the next Distribution Date, the Trustee shall, no
later than the Determination Date of the month of such Distribution Date, mail
or cause to be mailed to each Person in whose name a Certificate to be so
retired is registered at the close of business on the Record Date, to the
Underwriters and to each Rating Agency a notice to the effect that:
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(i) it is expected that funds sufficient to make such final
distribution will be available in the Certificate Account on such
Distribution Date, and
(ii) if such funds are available, (A) such final distribution
will be payable on such Distribution Date, but only upon presentation
and surrender of such Certificate at the office or agency of the
Certificate Registrar maintained for such purpose (the address of which
shall be set forth in such notice), and (B) no interest shall accrue on
such Certificate after such Distribution Date.
(e) Prior to the Credit Support Depletion Date, distributions in
reduction of the outstanding Class Principal Balances of the Retail Lottery
Certificates will be made in integral multiples of $1,000 at the request of the
appropriate representatives of Deceased Holders of Certificates and at the
request of Living Holders of Certificates or by mandatory distributions,
pursuant to Section 4.1(e)(i) and Section 4.1(e)(iv). On and after the Credit
Support Depletion Date, distributions in reduction of the outstanding Class
Principal Balances of the Retail Lottery Certificates will be made on a pro rata
basis pursuant to Section 4.1(e)(v).
(i) On each Distribution Date prior to the Credit Support
Depletion Date on which principal distributions to the Retail Lottery
Certificates are made pursuant to Section 4.1, such distributions shall
be made to the Retail Lottery Certificateholders by the Depository
pursuant to the Depository Agreement in the following priority:
(1) first, to requesting Deceased Holders, in the order in
which such requests are received by the Depository, but not
exceeding an aggregate amount of $100,000 for each requesting
Deceased Holder; and
(2) second, to requesting Living Holders, in the order in
which such requests are received by the Depository, but not
exceeding an aggregate amount of $10,000 for each requesting
Living Holder.
Thereafter, the Depository shall make distributions with respect
to the Retail Lottery Certificates as provided in clauses (1) and (2)
above up to a second $100,000 and $10,000, respectively. This sequence
of priorities shall be repeated until the Depository has honored all
requests for principal distributions by Deceased Holders and Living
Holders to the extent of amounts available for principal distributions
to the Retail Lottery Certificates.
All requests for principal distributions to the Retail Lottery
Certificates will be accepted in accordance with the provisions set
forth in Section 4.1(e)(iii). Requests for principal distributions that
are received by the Trustee after the related Record Date and requests
for principal distributions received in a timely manner but not
accepted with respect to any Distribution Date, will be treated as
requests for principal distributions by the Beneficial Holder(s) making
such requests on the next succeeding Distribution Date, and each
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succeeding Distribution Date thereafter, until each such request is
accepted or is withdrawn as provided in Section 4.1(e)(iii). Such
requests as are not so withdrawn shall retain their order of priority
without the need for any further action on the part of the appropriate
Beneficial Holder of the Retail Lottery Certificates, all in accordance
with the procedures of the Depository and the Trustee. Upon the
transfer of beneficial ownership of the Retail Lottery Certificates,
any distribution request previously submitted shall be deemed to have
been withdrawn only upon the receipt by the Trustee, on or before the
Record Date for any applicable Distribution Date of notification of
such withdrawal in the manner set forth in Section 4.1(e)(iii) using a
form required by the Depository.
Distributions in reduction of the outstanding Class Principal
Balances of the Retail Lottery Certificates shall be applied by the
Trustee in an amount equal to the portion of the Certificate
Distribution Amount allocable to the Retail Lottery Certificates, plus
any amounts available for distribution from the related Rounding
Account established as provided in Section 3.21, provided that the
aggregate distribution of principal to the Retail Lottery
Certificateholders on any Distribution Date shall be made in an
integral multiple of $1,000.
To the extent that the portion of the Certificate Distribution
Amount allocable to the Retail Lottery Certificates on any Distribution
Date exceeds the outstanding Class Principal Balances of the Retail
Lottery Certificates with respect to which principal distribution
requests, as set forth above, have been received, principal
distributions in reduction of the outstanding Class Principal Balances
of the Retail Lottery Certificates will be made by mandatory
distribution pursuant to Section 4.1(e)(iv).
(ii) The Retail Lottery Certificates shall be deemed to be held
by a Deceased Holder for purposes of this Section 4.1(e) if the death
of the Beneficial Holder thereof is deemed to have occurred. Retail
Lottery Certificates beneficially owned by tenants by the entirety,
joint tenants or tenants in common shall be considered to be
beneficially owned by a single owner. The death of a tenant by the
entirety, joint tenant or tenant in common shall be deemed to be the
death of the Beneficial Holder, and the Retail Lottery Certificates so
beneficially owned shall be eligible for priority with respect to
principal distributions, subject to the limitations stated above. The
Retail Lottery Certificates beneficially owned by a trust shall be
considered to be beneficially owned by each beneficiary of the trust to
the extent of such beneficiary's beneficial interest therein, but in no
event will a trust's beneficiaries collectively be deemed to be
Beneficial Holders of a number of Retail Lottery Certificates greater
than the number of Retail Lottery Certificates of which such trust is
the owner.
The death of a beneficiary of a trust shall be deemed to be the
death of a Beneficial Holder of Retail Lottery Certificates
beneficially owned by the trust to the extent of such beneficiary's
beneficial interest in such trust. The death of an individual who was a
tenant by the entirety, joint tenant or tenant in common in a tenancy
which is the beneficiary of a trust shall be deemed to be the death of
the beneficiary of such trust. The death of a person who, during his or
her lifetime, was entitled to substantially all of the beneficial
ownership
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interests in Retail Lottery Certificates shall be deemed to be the
death of the holder of such Retail Lottery Certificates regardless of
the registration of ownership, if such beneficial ownership interest
can be established to the satisfaction of the Trustee. Such beneficial
interest shall be deemed to exist in typical cases of street name or
nominee ownership, ownership by a trustee, ownership under the Uniform
Gifts to Minors Act and community property or other joint ownership
arrangements between a husband and wife. Beneficial interest shall
include the power to sell, transfer or otherwise dispose of Retail
Lottery Certificates and the right to receive the proceeds therefrom,
as well as interest and principal distributions, as applicable, payable
with respect thereto. Neither the Trustee nor the Paying Agent shall be
under any duty to determine independently the occurrence of the death
of any Deceased Holder. The Trustee may rely entirely upon
documentation delivered to it pursuant to Section 4.1(e)(iii) in
establishing the eligibility of any Holder to receive the priority
accorded Deceased Holders in Section 4.1(e)(i).
(iii)Requests for principal distributions to Retail Lottery
Certificates shall be made by delivering a written request therefor to
the DTC Participant or Indirect DTC Participant that maintains the
account evidencing such Beneficial Holder's interest in such
Certificate. In the case of a request on behalf of a Deceased Holder,
appropriate evidence of death and any tax waivers are required to be
forwarded to the Trustee, under separate cover; provided, however, that
the Trustee has no obligation and will incur no liability for failure
to examine the sufficiency of such tax waiver. The DTC Participant
shall in turn make the request of the Depository (or, in the case of an
Indirect DTC Participant, such Indirect DTC Participant shall notify
the related DTC Participant of such request, which DTC Participant
shall make the request of the Depository) on a form required by the
Depository and provided to the DTC Participant. Upon receipt of such
request, the Depository will date and time stamp such request and
forward such request to the Trustee. The Depository may establish such
procedures as it deems fair and equitable to establish the order of
receipt of requests for such distributions received by it on the same
day. None of the Company, the Servicer, the Paying Agent or the Trustee
shall be liable for any delay in delivery of requests for distributions
or withdrawals of such requests by the Depository, a DTC Participant or
any Indirect DTC Participant.
The Trustee shall maintain a list of those DTC Participants
representing the appropriate holders of Retail Lottery Certificates
that have submitted requests for principal distributions, together with
the order of receipt and the amounts of such requests. The Trustee
shall notify the Depository as to which requests should be honored on
each Distribution Date at least two Business Days prior to such
Distribution Date and shall notify the Depository as to the portion of
the Certificate Distribution Amount (together with any amounts
available for distribution from the related Rounding Account) to be
distributed to Retail Lottery Certificates by mandatory distribution
pursuant to Section 4.1(e)(iv). Requests shall be honored by the
Depository in accordance with the procedures, and subject to the
priorities and limitations, described in this Section 4.1(e). The exact
procedures to be followed by the Trustee and the Depository for
purposes of determining such priorities and limitations will
72
be those established from time to time by the Trustee or the
Depository, as the case may be. The decisions of the Trustee and the
Depository concerning such matters will be final and binding on all
affected persons.
Retail Lottery Certificates that have been accepted for a
distribution shall receive distributions on the applicable Distribution
Date. Such Certificates shall cease to bear interest on the amount of
principal to be distributed on any Distribution Date after the last
calendar day of the month preceding the month in which such
Distribution Date occurs.
Any Beneficial Holder of a Retail Lottery Certificate that has
requested a principal distribution may withdraw its request by so
notifying in writing the DTC Participant or Indirect DTC Participant
that maintains such Beneficial Holder's account. In the event that such
account is maintained by an Indirect DTC Participant, such Indirect DTC
Participant must notify the related DTC Participant which in turn must
forward the withdrawal of such request, on a form required by the
Depository, to the Depository to be forwarded to the Trustee. If such
notice of withdrawal of a request for distribution has not been
received by the Depository and forwarded to the Trustee on or before
the Record Date for the next Distribution Date, the previously made
request for a principal distribution shall be irrevocable with respect
to the making of principal distributions on such Distribution Date.
In the event any requests for principal distributions are
rejected by the Trustee for failure to comply with the requirements of
this Section 4.1(e), the Trustee shall return such request to the
appropriate DTC Participant with a copy to the Depository with an
explanation as to the reason for such rejection.
(iv) To the extent, if any, that principal distributions to be
made to the applicable Retail Lottery Certificates on a Distribution
Date exceed the aggregate amount of principal distribution requests
which have been received on or before the applicable Record Date, as
provided in Section 4.1(e)(i) above, additional Retail Lottery
Certificates will be selected to receive mandatory principal
distributions in lots equal to $1,000 in accordance with the
then-applicable Random Lot procedures of the Depository, and the
then-applicable procedures of the DTC Participants and Indirect DTC
Participants representing the Beneficial Holders (which procedures may
or may not be by random lot). The Trustee shall notify the Depository
of the aggregate amount of the mandatory principal distribution to be
made on the next Distribution Date. The Depository shall then allocate
such aggregate amount among the DTC Participants on a Random Lot basis.
Each DTC Participant and, in turn, each Indirect DTC Participant shall
then select, in accordance with its own procedures, the applicable
Retail Lottery Certificates from among those held in its accounts to
receive mandatory principal distributions, such that the total amount
of principal distributed to the so selected Retail Lottery Certificates
is equal to the aggregate amount of such mandatory distributions
allocated to such DTC Participant by the Depository and to such
Indirect DTC Participant by its related DTC Participant, as the case
may be. DTC Participants and Indirect DTC Participants that hold Retail
Lottery Certificates selected for mandatory principal
73
distributions are required to provide notice of such mandatory
distributions to the affected Beneficial Holders. The Servicer shall
notify the Trustee of the amount of principal distributions to be made
on each Distribution Date in a timely manner such that the Trustee may
fulfill its obligations under the Depository Agreement.
(v) Notwithstanding any provisions herein to the contrary, on
each Distribution Date on and after the Credit Support Depletion Date,
distributions in reduction of the outstanding Class Principal Balances
of the Retail Lottery Certificates will be made pro rata (based upon
their respective outstanding Class Principal Balances) among the
Beneficial Holders of the Retail Lottery Certificates and shall not be
made in integral multiples of $1,000 nor pursuant to requests for
distribution or by mandatory distributions as provided for by this
Section 4.1(e).
Subject to the third paragraph of Section 10.1 hereof, in the
event that Definitive Certificates representing Retail Lottery
Certificates are issued, an amendment to this Agreement, which may be
approved without the consent of any Certificateholders, shall establish
procedures relating to the manner in which distributions in reduction
of the outstanding Class Principal Balances of Retail Lottery
Certificates are to be made; provided that such procedures shall be
consistent, to the extent practicable and customary for certificates
similar to the Retail Lottery Certificates, with the provisions of
Section 4.1.
Section 4.2 STATEMENTS TO CERTIFICATEHOLDERS.
(a) Not later than 12:00 noon (New York City time) on the second
Business Day prior to each Distribution Date, the Servicer shall forward to the
Trustee the Servicer's Section 3.10 Report setting forth certain information
with respect to the Loans. With each distribution from the Certificate Account
on a Distribution Date, the Trustee shall make available to each
Certificateholder, through the Trustee's Corporate Trust home page on the world
wide web which is currently located at "xxxxxxxxxxxxxxxxxxxxxx.xxxxxx.xxx", a
statement (each a "Certificateholders' Report") prepared by the Servicer based
on the information set forth in the Servicer's Section 3.10 Report, setting
forth, to the extent applicable, the amount of the distribution payable to the
applicable Class that represents principal, separately identifying the aggregate
amount of any Principal prepayments included in such distribution, and the
amount that represents interest, and the applicable Class Principal Balance
after giving effect to such distribution.
In addition, not later than each Distribution Date, the Trustee shall
forward to such Certificateholder and the Depositor an additional report which
sets forth with respect to the Loans:
(i) The number and aggregate Principal Balance of the Loans
delinquent one, two and three months or more;
(ii) The (A) number and aggregate Principal Balance of Loans with
respect to which foreclosure proceedings have been initiated, and (B)
the number and aggregate book value
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of Mortgaged Properties acquired through foreclosure, deed in lieu of
foreclosure or other exercise of rights respecting the Trustee's
security interest in the Loans;
(iii)The aggregate Principal Balance of the Loans as of the close
of business on the last day of the related Prepayment Period;
(iv) The amount of the Servicing Fee retained or withdrawn by the
Servicer from the Certificate Account and the amount of any Excess
Liquidation Proceeds received by the Servicer during the related
Prepayment Period;
(v) The amount of Special Hazard Coverage available to the Senior
Certificates remaining as of the close of business on the applicable
Determination Date;
(vi) The amount of Bankruptcy Coverage available to the Senior
Certificates remaining as of the close of business on the applicable
Determination Date;
(vii) The amount of Fraud Coverage available to the Senior
Certificates remaining as of the close of business on the applicable
Determination Date;
(viii) The amount of Realized Losses allocable to the related
Certificates on the related Distribution Date and the cumulative amount
of Realized Losses incurred allocated to such Certificates since the
Cut-Off Date;
(ix) The amount of funds advanced by the Servicer on the related
Withdrawal Date;
(x) The total amount of Payoffs and Curtailments received during
the related Prepayment Period; and
(xi) The weighted average Pass-Through Rates as of the first day
of the month immediately preceding the month of the Distribution Date.
Upon request by any Certificateholder, the Servicer, as soon as
reasonably practicable, shall provide the requesting Certificateholder with such
information as is necessary and appropriate, in Servicer's sole discretion, for
purposes of satisfying applicable reporting requirements under Rule 144A of the
Securities Act.
The Servicer may make available any reports, statements or other
information to Certificateholders through the Servicer's home page on the world
wide web. Such web page is located at "xxx.xxxxxxx.xxx" and information is
available by clicking on "Investor Information."
The Trustee may make available any reports, statements or other
information to Certificateholders through the Trustee's home page on the world
wide web. Such web page is currently located at
"xxxxxxxxxxxxxxxxxxxxxx.xxxxxx.xxx".
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(b) Upon request to the Trustee by any Certificateholder or Beneficial
Holder at the time of making such request (an "Eligible Certificateholder"), the
Servicer shall provide in electronic format loan by loan data with respect to
the payment experience of the Loans containing at least the fields of
information listed on Exhibit E hereto (based on information provided by the
Servicer). In addition, upon the written request of any Eligible
Certificateholder, the Trustee shall provide similar loan by loan data with
respect to any prior monthly remittance report to the Certificateholders
pursuant to this Agreement (as and when such information becomes available). The
expense of providing any tape or disk pursuant to this subsection shall be an
expense of the Eligible Certificateholder.
(c) The Servicer shall, on behalf of the Depositor and in respect of
the Trust Fund, prepare, sign and cause to be filed with the Commission any
periodic reports required to be filed under the provisions of the Exchange Act,
and the rules and regulations of the Commission thereunder. In connection with
the preparation and filing of such periodic reports, upon request from the
Servicer, the Depositor and the Trustee shall timely provide to the Servicer all
material information specifically and reasonably requested by the Servicer that
is in the possession of the Depositor or the Trustee, as the case may be, and is
not, to the best of the Depositor's or the Trustee's knowledge, in the
possession of the Servicer and which the Servicer has specifically identified as
being required to be included in such reports. The Servicer shall not have any
liability with respect to the Servicer's failure to properly prepare or file
such periodic reports resulting from or relating to the Servicer's inability or
failure to obtain any information not resulting from the Servicer's own
negligence or willful misconduct. Neither the Depositor nor the Trustee shall
have any liability for the Servicer's failure to properly prepare or file
periodic reports. Prior to January 30 of the first year in which the Servicer is
able to do so under applicable law, the Servicer shall file a Form 15 Suspension
Notification with respect to the Trust Fund. Any Form 10-K filed with the
Commission in connection with this clause (c) shall include a certification,
signed by the senior officer in charge of the servicing functions of the
Servicer, in the form attached as Exhibit S hereto or such other form as may be
required or permitted by the Commission (the "Form 10-K Certification"), in
compliance with Rule 13a-14 and 15d-14 under the Exchange Act and any additional
directives of the Commission. In connection with the Form 10-K Certification,
the Trustee shall provide the Master Servicer with a back-up certification
substantially in the form attached hereto as Exhibit T, but neither the
Depositor nor the Trustee shall have any responsibility with respect to the
preparation or filing of a Form 10-K or the related 10-K Certification. This
Section 4.2(c) may be amended in accordance with this Agreement without the
consent of the Certificateholders. The Servicer shall promptly forward copies of
all filings made pursuant to this Section 4.2(c) to the Depositor.
Section 4.3 ADVANCES BY THE SERVICER; DISTRIBUTION REPORTS TO THE
TRUSTEE.
To the extent described below, the Servicer is obligated to advance its
own funds to the Certificate Account to cover any shortfall between (i) payments
scheduled to be received in respect of Loans serviced by such Servicer, and (ii)
the amounts actually deposited in the Certificate Account on account of such
payments. The Servicer's obligation to make any Advance or Advances described in
this Section 4.3 is effective only to the extent that such Advance is, in the
good faith judgment of
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the Servicer, reimbursable from Insurance Proceeds or Liquidation Proceeds of
the related Loans or recoverable as late Monthly Payments with respect to the
related Loans or otherwise.
Prior to the close of business on the second Business Day prior to each
Distribution Date, the Servicer shall determine whether or not it will make an
Advance on the next Withdrawal Date and shall furnish a statement to the
Trustee, the Paying Agent, if any, and to any Certificateholder or Beneficial
Holder requesting the same, setting forth the aggregate amount to be distributed
on the next succeeding Distribution Date on account of principal and interest in
respect of the Loans, stated separately. In the event that full scheduled
amounts of principal and interest in respect of the related Loans shall not have
been received by or on behalf of the Servicer prior to the Determination Date
preceding such Distribution Date and the Servicer shall have determined that an
Advance shall be made in accordance with this Section 4.3, the Servicer shall so
specify and shall specify the aggregate amount of such Advance.
In the event that the Servicer shall be required to make an Advance, it
shall on the Business Day prior to the Distribution Date either (i) deposit in
the Certificate Account an amount equal to such Advance, (ii) direct the Trustee
to make an appropriate entry in the records of the Certificate Account, or the
Servicer shall make an appropriate entry in the records for the Custodial
Account for P&I, that funds in such account being held for future distribution
or withdrawal have been, as permitted by this Section 4.3, used by such Servicer
to make such Advance, or (iii) make advances in the form of any combination of
(i) and (ii) aggregating the amount of such Advance. Any funds being held for
future distribution to Certificateholders and so used shall be replaced by the
Servicer by deposit in the Certificate Account on any future Distribution Date
to the extent that funds in the Certificate Account on such Distribution Date
with respect to the related Loans shall be less than payments to
Certificateholders required to be made on such date with respect to such Loans.
The Servicer shall be entitled to reimbursement for any Advance as
provided in Section 3.3 of this Agreement.
Prior to 5:00 P.M. New York City time on the second Business Day prior
to each Distribution Date, the Servicer shall provide the Trustee with a
statement regarding the amount of principal and interest, the Residual
Distribution Amount and the Excess Liquidation Proceeds to be distributed to
each Class of Certificates on such Distribution Date (such amounts to be
determined in accordance with the definition of "Certificate Distribution
Amount", Section 4.1 hereof and other related definitions set forth in Article I
hereof).
Section 4.4 NONRECOVERABLE ADVANCES.
Any Advance previously made by or on behalf of the Servicer with
respect to a Loan that the Servicer shall determine in its good faith judgment
not to be ultimately recoverable from Insurance Proceeds or Liquidation Proceeds
or otherwise with respect to such Loan or recoverable as late Monthly Payments
with respect to such Loan shall be a Nonrecoverable Advance. The determination
by the Servicer that it has made a Nonrecoverable Advance or that any advance
would constitute a
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Nonrecoverable Advance, shall be evidenced by an Officer's Certificate of the
Servicer delivered to the Trustee on the Determination Date and detailing the
reasons for such determination. Notwithstanding any other provision of this
Agreement, any insurance policy relating to the Loans, or any other agreement
relating to the Loans to which the Depositor or the Servicer is a party, (a) the
Servicer shall not be obligated to, and shall not, make any advance that, after
reasonable inquiry and in its sole discretion, it determines would be a
Nonrecoverable Advance, and (b) the Servicer shall be entitled to reimbursement
for any Nonrecoverable Advance as provided in Section 3.3 of this Agreement.
Section 4.5 FORECLOSURE REPORTS.
Each year beginning in 2004 the Servicer shall make any reports of
foreclosures and abandonments of any Mortgaged Property required by Section
6050J of the Code. In order to facilitate this reporting process, the Servicer,
on or before February 28th of each year, commencing with 2004, shall provide to
the Internal Revenue Service and the Trustee reports relating to each instance
occurring during the previous calendar year in which the Servicer (i) on behalf
of the Trustee acquires an interest in a Mortgaged Property through foreclosure
or other comparable conversion in full or partial satisfaction of a Loan, or
(ii) knows or has reason to know that a Mortgaged Property has been abandoned.
The reports from the Servicer shall be in form and substance sufficient to meet
the reporting requirements imposed by such Section 6050J.
Section 4.6 ADJUSTMENT OF SERVICING FEES WITH RESPECT TO PAYOFFS.
The aggregate amount of the Servicing Fee subject to retention from
deposit into or withdrawal from the Certificate Account by the Servicer, in any
month of distribution shall be decreased by any Compensating Interest due and
owing with respect to any Loan with respect to which a Payoff has occurred in
the related Prepayment Period. The Servicer shall include the amount of any such
Compensating Interest with the deposits into the Certificate Account on the
related Withdrawal Date. Notwithstanding the foregoing, the amount by which the
Servicing Fee may be reduced with respect to the related Prepayment Period
pursuant to this Section 4.6 shall not exceed an amount greater than the amount
described in clause (i) of the definition of Compensating Interest for all Loans
as to which Payoffs have occurred and the rights of the Certificateholders to
such portion of the Servicing Fee shall not be cumulative.
Section 4.7 PROHIBITED TRANSACTIONS TAXES AND OTHER TAXES.
In the event that any tax (including a tax on "prohibited transactions"
as defined in Section 860F(a)(2) of the Code and including any and all interest,
penalties, fines and additions to tax, as well as any and all reasonable counsel
fees and out-of-pocket expenses incurred in contesting the imposition of such
tax) is imposed on the Trust Fund and is not otherwise paid pursuant to Section
4.7(b) hereof, the Servicer shall pay such taxes when and as the same shall be
due and payable (but such obligation shall not prevent the Servicer, the Trustee
or any other appropriate Person from contesting any such tax in appropriate
proceedings and shall not prevent the Servicer from
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withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings); provided, that the Servicer shall be entitled to be
indemnified for any such taxes (excluding taxes referred to in Section 4.7(b))
to the extent set forth in Section 6.3 hereof so long as the Servicer's failure
to exercise reasonable care with respect to the performance of its duties
hereunder was not the primary cause of the imposition of such taxes. If the
Servicer is indemnified for such taxes pursuant to this Section 4.7(a), such
amount shall be first charged against amounts otherwise distributable to the
Holders of Component R-1 of the Class R Certificate (or, if the tax relates to
REMIC II, Component R-2 of the Class R Certificate) on a pro rata basis, then
against amounts otherwise distributable with respect to the REMIC I Regular
Interests (or, if the tax relates to REMIC II, to the Holders of the REMIC II
Certificates) on a pro rata basis. The Trustee is hereby authorized to retain
from amounts otherwise distributable to the Certificateholders sufficient funds
to reimburse the Servicer for the payment of such tax for which the Servicer is
entitled to indemnification.
Section 4.8 TAX ADMINISTRATION.
The Servicer is hereby appointed as attorney-in-fact and agent for the
initial Tax Matters Person.
Section 4.9 EQUAL STATUS OF SERVICING FEE.
The right of the Servicer to receive its Servicing Fee will be equal
and not subordinate to the right of the Certificateholders to receive principal
and interest payments based on their interests as provided herein. The
Servicer's Servicing Fee may be collected from Monthly Payments as received
pursuant to Section 3.2 without deposit into the Certificate Account, whereas
the Certificateholders' distributions shall be made on a delayed basis as set
forth in the terms of the Certificates.
Section 4.10 APPOINTMENT OF PAYING AGENT.
The Trustee may appoint an Eligible Institution to act as a paying
agent (the "Paying Agent") in order to delegate to such Eligible Institution any
of its duties under this Agreement to administer the issuance, transfer and
exchange of the Certificates, administer payments to Certificateholders or
prepare information related to the Certificates; provided, that the Trustee
shall remain primarily responsible for any duties so delegated; provided,
further, that the Trustee shall receive no additional compensation in connection
with such appointment and delegation.
Initially, the Trustee will be the Paying Agent. If the Trustee ceases
to serve as Paying Agent, the Trustee shall send written notice to all
Certificateholders (i) indicating that it is no longer serving in such capacity
and (ii) setting forth its replacement, if any, appointed pursuant to this
Section 4.10.
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ARTICLE V
THE CERTIFICATES
Section 5.1 THE CERTIFICATES.
(a) The Certificates shall be substantially in the forms set forth in
Exhibits A and B attached hereto, and shall be executed by the Trustee,
authenticated by the Trustee (or any duly appointed Authenticating Agent) and
delivered to or upon the order of the Depositor upon receipt by the Trustee of
the documents specified in Section 2.1. The Certificates shall be issuable in
Authorized Denominations evidencing Percentage Interests. Certificates shall be
executed by manual or facsimile signature on behalf of the Trust Fund by
authorized officers of the Trustee. Certificates bearing the manual or facsimile
signatures of individuals who were at the time of execution the proper officers
of the Trustee shall bind the Trust Fund, notwithstanding that such individuals
or any of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein
executed by the Trustee or any Authenticating Agent by manual signature, and
such certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
(b) The following definitions apply for purposes of this Section 5.1:
"Disqualified Organization" means any Person which is not a Permitted
Transferee, but does not include any "Pass-Through Entity" which owns or holds a
Residual Certificate and of which a Disqualified Organization, directly or
indirectly, may be a stockholder, partner or beneficiary; "Pass-Through Entity"
means any regulated investment company, real estate investment trust, common
trust fund, partnership, trust or estate, and any organization to which Section
1381 of the Code applies; "Ownership Interest" means, with respect to any
Residual Certificate, any ownership or security interest in such Residual
Certificate, including any interest in a Residual Certificate as the Holder
thereof and any other interest therein whether direct or indirect, legal or
beneficial, as owner or as pledgee; "Transfer" means any direct or indirect
transfer or sale of, or directly or indirectly transferring or selling, any
Ownership Interest in a Residual Certificate; and "Transferee" means any Person
who is acquiring by Transfer any Ownership Interest in a Residual Certificate.
(c) Restrictions on Transfers of the Residual Certificate to
Disqualified Organizations are set forth in this Section 5.1(c).
(i) Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition
of such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Trustee, the Servicer
or the Paying Agent under clause (iii)(A) below to deliver payments to
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a Person other than such Person and to negotiate the terms of any
mandatory sale under clause (iii)(B) below and to execute all
instruments of transfer and to do all other things necessary in
connection with any such sale. The rights of each Person acquiring any
Ownership Interest in a Residual Certificate are expressly subject to
the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee or the Certificate Registrar if not
the same Person as the Trustee of any change or impending change
in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate to a U.S. Person, the Trustee
or the Certificate Registrar if not the same Person as the
Trustee shall require delivery to it, and shall not register the
Transfer of any Residual Certificate until its receipt of (1) an
affidavit and agreement (a "Transferee Affidavit and Agreement")
attached hereto as Exhibit J from the proposed Transferee, in
form and substance satisfactory to the Depositor, representing
and warranting, among other things, that it is not a Non-U.S.
Person, that such transferee is a Permitted Transferee, that it
is not acquiring its Ownership Interest in the Residual
Certificate that is the subject of the proposed Transfer as a
nominee, trustee or agent for any Person who is not a Permitted
Transferee, that for so long as it retains its Ownership Interest
in a Residual Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of this
Section 5.1(c) and agrees to be bound by them, and (2) a
certificate, attached hereto as Exhibit I, from the Holder
wishing to transfer the Residual Certificate, in form and
substance satisfactory to the Depositor, representing and
warranting, among other things, that no purpose of the proposed
Transfer is to allow such Holder to impede the assessment or
collection of tax.
(C) Notwithstanding the delivery of a Transferee Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Trustee or the Certificate Registrar if not the same Person as
the Trustee has actual knowledge that the proposed Transferee is
not a Permitted Transferee, no Transfer of an Ownership Interest
in a Residual Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate agrees by holding or acquiring such
Ownership Interest (i) to require a Transferee Affidavit and
Agreement from any other Person to whom such Person attempts to
transfer its Ownership Interest and to provide a certificate to
the Trustee or the Certificate Registrar if not the same Person
as the Trustee in the form attached hereto as Exhibit J; (ii) to
obtain the express written consent of the Depositor prior to any
transfer of such Ownership Interest, which consent may be
withheld in the Depositor's sole discretion; and (iii) to provide
a certificate to the Trustee or the Certificate Registrar if not
the same Person as the Trustee in the form attached hereto as
Exhibit I.
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(ii) The Trustee or the Certificate Registrar if not the same
Person as the Trustee shall register the Transfer of any Residual
Certificate only if it shall have received the Transferee Affidavit and
Agreement, a certificate of the Holder requesting such transfer in the
form attached hereto as Exhibit J and all of such other documents as
shall have been reasonably required by the Trustee or the Certificate
Registrar if not the same Person as the Trustee as a condition to such
registration.
(iii)(A) If any Disqualified Organization shall become a Holder
of a Residual Certificate, then the last preceding Permitted Transferee
shall be restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of registration
of such Transfer of such Residual Certificate. If any Non-U.S. Person
shall become a Holder of a Residual Certificate, then the last
preceding Holder which is a U.S. Person shall be restored, to the
extent permitted by law, to all rights and obligations as Holder
thereof retroactive to the date of registration of the Transfer to such
Non-U.S. Person of such Residual Certificate. If a transfer of a
Residual Certificate is disregarded pursuant to the provisions of
Treasury Regulations Section 1.860E-1 or Section 1.860G-3, then the
last preceding Permitted Transferee shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such Transfer of such
Residual Certificate. The Trustee, the Servicer, the Certificate
Registrar and the Paying Agent shall be under no liability to any
Person for any registration of Transfer of a Residual Certificate that
is in fact not permitted by this Section 5.1(c) or for making any
payments due on such Certificate to the Holder thereof or for taking
any other action with respect to such Holder under the provisions of
this Agreement.
(B) If any purported Transferee shall become a Holder of the
Residual Certificate in violation of the restrictions in this
Section 5.1(c) and to the extent that the retroactive restoration
of the rights of the Holder of such Residual Certificate as
described in clause (iii)(A) above shall be invalid, illegal or
unenforceable, then the Depositor shall have the right, without
notice to the Holder or any prior Holder of such Residual
Certificate, to sell such Residual Certificate to a purchaser
selected by the Depositor on such terms as the Depositor may
choose. Such purported Transferee shall promptly endorse and
deliver the Residual Certificate in accordance with the
instructions of the Depositor. Such purchaser may be the
Depositor itself or any affiliate of the Depositor. The proceeds
of such sale, net of the commissions (which may include
commissions payable to the Depositor or its affiliates), expenses
and taxes due, if any, shall be remitted by the Depositor to such
purported Transferee. The terms and conditions of any sale under
this clause (iii)(B) shall be determined in the sole discretion
of the Depositor, and the Depositor shall not be liable to any
Person having an Ownership Interest in the Residual Certificate
as a result of its exercise of such discretion.
(iv) The Depositor, on behalf of the Trustee, shall make
available, upon written request from the Trustee, or the Servicer all
information necessary to compute any tax imposed (A) as a result of the
Transfer of an Ownership Interest in the Residual Certificate to any
Person
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who is not a Permitted Transferee, including the information regarding
"excess inclusions" of such Residual Certificate required to be
provided to the Internal Revenue Service and certain Persons as
described in Treasury Regulation Section 1.860D-1(b)(5), and (B) as a
result of any regulated investment company, real estate investment
trust, common trust fund, partnership, trust, estate or organizations
described in Section 1381 of the Code having as among its record
holders at any time any Person who is not a Permitted Transferee.
Reasonable compensation for providing such information may be required
by the Depositor from such Person.
(v) The provisions of this Section 5.1 set forth prior to this
Section 5.1(c)(v) may be modified, added to or eliminated, provided,
that there shall have been delivered to the Trustee and the Servicer
the following:
(A) written notification from each Rating Agency to the effect
that the modification, addition to or elimination of such
provisions will not cause such Rating Agency to downgrade its
then-current Ratings of the Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Depositor (as evidenced by a certificate of the
Depositor), to the effect that such modification, addition to or
absence of such provisions will not cause any REMIC to cease to
qualify as a REMIC and will not create a risk that (1) the Trust
Fund may be subject to an entity-level tax caused by the Transfer
of any Residual Certificate to a Person which is not a Permitted
Transferee or (2) a Certificateholder or another Person will be
subject to a REMIC-related tax caused by the Transfer of a
Residual Certificate to a Person which is not a Permitted
Transferee.
(vi) The following legend shall appear on all Residual
Certificates:
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED
TRANSFEREE PROVIDES A TRANSFEREE AFFIDAVIT AND
AGREEMENT TO THE DEPOSITOR, THE TRUSTEE AND THE
CERTIFICATE REGISTRAR THAT (1) SUCH TRANSFEREE IS NOT
EITHER (A) THE UNITED STATES, ANY STATE OR POLITICAL
SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING, (B) ANY
ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN
SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX
IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION
511 OF THE CODE, (C) ANY ORGANIZATION DESCRIBED IN
SECTION 1381(a)(2)(C) OF THE CODE (ANY SUCH PERSON
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DESCRIBED IN THE FOREGOING CLAUSES (A), (B), OR (C)
BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED
ORGANIZATION"), OR (D) AN AGENT OF A DISQUALIFIED
ORGANIZATION AND (2) NO PURPOSE OF SUCH TRANSFER IS TO
ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX. SUCH AFFIDAVIT SHALL INCLUDE
CERTAIN REPRESENTATIONS AS TO THE FINANCIAL CONDITION
OF THE PROPOSED TRANSFEREE. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R
CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT
OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON
THIS CERTIFICATE. EACH HOLDER OF THE CLASS R
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE
DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
(vii) in the tax year following Washington Mutual Mortgage
Securities Corp.'s transfer of its Class R Certificate, the Class R
Certificateholder with the largest Percentage Interest, while not a
Disqualified Organization, is the Tax Matters Person.
(d) (i) No purchase or transfer of a Senior Certificate or a Senior
Subordinate Certificate or any interest therein shall be made by or to any
"employee benefit plan" subject to ERISA or any "plan" described by Section
4975(e)(1) of the Code, or any entity deemed to hold plan assets of any of the
foregoing by reason of a plan's investment in such entity (each, a "Plan")
unless (A) in the case of any such Class of Certificates (other than the Class R
Certificate), such Plan qualifies as an accredited investor as defined in Rule
501(a)(1) of Regulation D under the Securities Act and either (1) at the time of
such transfer, the Certificates are rated in one of the top four rating
categories by at least one Rating Agency, or (2) the purchaser is an insurance
company general account that is eligible for, and satisfies all of the
requirements of, Sections I and III of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60") and (B) in the case of a Class R Certificate, the Trustee
receives an Opinion of Counsel, for the benefit of the Trustee, the Depositor
and the Servicer and on which they may rely acceptable to and in form and
substance satisfactory to the Trustee, the Depositor and the Servicer to the
effect that the purchase or holding of such Class R Certificate is permissible
under applicable law, will not constitute or result in any non-exempt prohibited
transaction under Section 406 of ERISA, or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), and will not subject the
Trustee, the Depositor or the Servicer to any obligation or liability (including
obligations or liabilities under ERISA or Section 4975 of the Code) in addition
to those undertaken in this Agreement, which Opinion of Counsel shall not be an
expense of the
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Trustee, the Depositor or the Servicer. Each Person who acquires a Senior
Certificate or a Senior Subordinate Certificate shall be deemed to certify that
it meets the foregoing conditions, and that it will not transfer such
Certificate in violation of the foregoing.
(ii) No purchase or transfer of a Junior Subordinate Certificate shall
be made by or to a Plan unless such purchaser or transferee is an "insurance
company general account" (within the meaning of PTCE 95-60) and is eligible for,
and satisfies all of the requirements for exemptive relief under Sections I and
III of PTCE 95-60. Each Person who acquires a Junior Subordinate Certificate or
any interest therein shall be deemed to certify and shall be required by the
Certificate Registrar to provide an Officer's Certificate (substantially in the
form of Exhibit L hereto) signed by a Responsible Officer of such Person, which
Officer's Certificate shall not be an expense of the Trustee, the Servicer, if
any, the Certificate Registrar or the Depositor) that it meets the foregoing
conditions, and that it will not transfer such Certificate in violation of the
foregoing.
(e) No transfer, sale, pledge or other disposition of a Junior
Subordinate Certificate shall be made unless such transfer, sale, pledge or
other disposition is made in accordance with this Section 5.1(e) or Section
5.1(f). Each Person who, at any time, acquires any ownership interest in any
Junior Subordinate Certificate shall be deemed by the acceptance or acquisition
of such ownership interest to have agreed to be bound by the following
provisions of this Section 5.1(e) and Section 5.1(f), as applicable. No transfer
of a Junior Subordinate Certificate shall be deemed to be made in accordance
with this Section 5.1(e) unless such transfer is made pursuant to an effective
registration statement under the Securities Act or unless the Trustee or the
Certificate Registrar, if not the same Person as the Trustee, is provided with
the certificates and an Opinion of Counsel, if required, on which the Trustee
and the Certificate Registrar may conclusively rely, which establishes or
establish to the Trustee's or the Certificate Registrar's, as applicable,
satisfaction that such transfer is exempt from the registration requirements
under the Securities Act, as follows: In the event that a transfer is to be made
in reliance upon an exemption from the Securities Act, the Trustee or the
Certificate Registrar, if not the same Person as the Trustee, shall require, in
order to assure compliance with the Securities Act, that the Certificateholder
desiring to effect such transfer certify to the Trustee and the Certificate
Registrar in writing, in substantially the form attached hereto as Exhibit F,
the facts surrounding the transfer, with such modifications to such Exhibit F as
may be appropriate to reflect the actual facts of the proposed transfer, and
that the Certificateholder's proposed transferee certify to the Trustee and the
Certificate Registrar in writing, in substantially the form attached hereto as
Exhibit G, the facts surrounding the transfer, with such modifications to such
Exhibit G as may be appropriate to reflect the actual facts of the proposed
transfer. If such certificate of the proposed transferee does not contain
substantially the substance of Exhibit G, the Trustee or the Certificate
Registrar, if not the same Person as the Trustee, shall require an Opinion of
Counsel satisfactory to it that such transfer may be made without registration,
which Opinion of Counsel shall not be obtained at the expense of the Trustee,
the Servicer, the Certificate Registrar, the Trust Fund or the Depositor. Such
Opinion of Counsel shall allow for the forwarding, and the Trustee shall
forward, a copy thereof to each Rating Agency. Notwithstanding the foregoing,
any Class of Junior Subordinate Certificates may be transferred, sold, pledged
or otherwise disposed of in accordance with the requirements set forth in
Section 5.1(f).
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(f) Transfers of the Junior Subordinate Certificates may be made in
accordance with this Section 5.1(f). To effectuate a Certificate transfer in
accordance with this Section 5.1(f), the proposed transferee of such Certificate
must provide the Trustee, the Certificate Registrar and the Depositor with an
investment letter substantially in the form of Exhibit L attached hereto, which
investment letter shall not be an expense of the Trustee, the Servicer, the
Certificate Registrar or the Depositor, and which investment letter states that,
among other things, such transferee (i) is a "qualified institutional buyer" as
defined under Rule 144A, acting for its own account or the accounts of other
"qualified institutional buyers" as defined under Rule 144A, and (ii) is aware
that the proposed transferor intends to rely on the exemption from registration
requirements under the Securities Act provided by Rule 144A. Notwithstanding the
foregoing, the proposed transferee of such Certificate shall not be required to
provide the Trustee, the Certificate Registrar or the Depositor with Annex 1 or
Annex 2 to the form of Exhibit L attached hereto if the Depositor so consents
prior to each such transfer. Such transfers shall be deemed to have complied
with the requirements of this Section 5.1(f). The Holder of a Certificate
desiring to effect such transfer does hereby agree to indemnify the Trustee, the
Servicer, if any, the Depositor, and the Certificate Registrar against any
liability that may result if transfer is not made in accordance with this
Agreement.
(g) None of the Trustee, the Servicer, the Certificate Registrar or the
Paying Agent shall have any liability to the Trust Fund arising from a
registration or transfer of a Certificate in reliance upon a certification,
Officer's Certificate, affidavit, ruling or Opinion of Counsel described in this
Section 5.1.
Section 5.2 CERTIFICATES ISSUABLE IN CLASSES; DISTRIBUTIONS OF
PRINCIPAL AND INTEREST; AUTHORIZED DENOMINATIONS.
The aggregate principal amount of Certificates that may be
authenticated and delivered under this Agreement is limited to the aggregate
Principal Balance of the Loans as of the Cut-Off Date, as specified in the
Preliminary Statement to this Agreement, except for Certificates authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Certificates pursuant to Section 5.3. Such aggregate principal amount
shall be allocated among one or more Classes having designations, types of
interests, initial per annum Remittance Rates, initial Class Principal Balances
and last scheduled Distribution Dates as specified in the Preliminary Statement
to this Agreement. The aggregate Percentage Interest of each Class of
Certificates of which the Class Principal Balance equals zero as of the Cut-Off
Date that may be authenticated and delivered under this Agreement is limited to
100%. Certificates shall be issued in Authorized Denominations.
Section 5.3 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
The Trustee shall cause to be maintained at one of its offices or at
its designated Certificate Registrar, a Certificate Register in which there
shall be recorded the name and address of each Certificateholder. Subject to
such reasonable rules and regulations as the Trustee may prescribe, the
Certificate Register shall be amended from time to time by the Trustee or its
agent to reflect notice
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of any changes received by the Trustee or its agent pursuant to Section 10.5.
The Trustee hereby appoints itself as the initial Certificate Registrar. The
Trustee may appoint an Eligible Institution to act as its agent in order to
delegate to such Eligible Institution its duties as Certificate Registrar under
this Agreement.
Upon surrender for registration of transfer of any Certificate to the
Trustee at its Corporate Trust Office or at the office of U.S. Bank National
Association, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, or such
other address or agency as may hereafter be provided to the Servicer in writing
by the Trustee, the Trustee shall execute, and the Trustee or any Authenticating
Agent shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Certificates of Authorized Denominations of like
Percentage Interest. At the option of the Certificateholders, Certificates may
be exchanged for other Certificates in Authorized Denominations of like
Percentage Interest, upon surrender of the Certificates to be exchanged at any
such office or agency. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute, and the Trustee, or any Authenticating
Agent, shall authenticate and deliver, the Certificates which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for transfer shall (if so required by the Trustee or
any Authenticating Agent) be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Trustee or any Authenticating
Agent and duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing.
A reasonable service charge may be made for any such exchange or
transfer of Certificates, and the Trustee or an Authenticating Agent may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange or transfer of Certificates.
All Certificates surrendered for exchange or transfer shall be canceled
by the Trustee or any Authenticating Agent.
Section 5.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (i) any mutilated Certificate is surrendered to the Trustee or any
Authenticating Agent, or (ii) the Trustee or any Authenticating Agent receives
evidence to their satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustee or any Authenticating Agent
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Trustee or any Authenticating
Agent that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute and the Trustee or any Authenticating Agent shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Percentage
Interest. Upon the issuance of any new Certificate under this Section 5.4, the
Trustee or any Authenticating Agent may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
or any Authenticating Agent) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.4 shall constitute
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complete and indefeasible evidence of ownership in the Trust Fund, as if
originally issued, whether or not the lost or stolen Certificate shall be found
at any time.
Section 5.5 PERSONS DEEMED OWNERS.
The Depositor, the Servicer, the Trustee and any agent of any of them
may treat the Person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions pursuant to Section
4.1 and for all other purposes whatsoever, and neither the Depositor, the
Servicer, the Trustee, the Certificate Registrar, nor any agent of the
Depositor, the Servicer or the Trustee shall be affected by notice to the
contrary.
Section 5.6 TEMPORARY CERTIFICATES.
Upon the initial issuance of the Certificates, the Trustee may execute,
and the Trustee or any Authenticating Agent shall authenticate and deliver,
temporary Certificates which are printed, lithographed, typewritten or otherwise
produced, in any Authorized Denomination, of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations in form
from the forms of the Certificates set forth as Exhibits A and B hereto as the
Trustee's officers executing such Certificates may determine, as evidenced by
their execution of the Certificates. Notwithstanding the foregoing, the
Certificates may remain in the form set forth in this Section.
If temporary Certificates are issued, the Trustee shall cause
definitive Certificates to be prepared within ten Business Days of the Closing
Date or as soon as practicable thereafter. After preparation of definitive
Certificates, the temporary Certificates shall be exchangeable for definitive
Certificates upon surrender of the temporary Certificates at the office or
agency of the Trustee to be maintained as provided in Section 5.10 hereof,
without charge to the Holder. Any tax or governmental charge that may be imposed
in connection with any such exchange shall be borne by the Depositor. Upon
surrender for cancellation of any one or more temporary Certificates, the
Trustee shall execute and the Trustee or any Authenticating Agent shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Certificates of Authorized Denominations. Until so exchanged, the
temporary Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Certificates.
Section 5.7 BOOK-ENTRY FOR BOOK-ENTRY CERTIFICATES.
Notwithstanding the foregoing, the Book-Entry Certificates, upon
original issuance, shall be issued in the form of one or more typewritten
Certificates of Authorized Denomination representing the Book-Entry
Certificates, to be delivered to DTC, the initial Clearing Agency, by, or on
behalf of, the Depositor. The Book-Entry Certificates shall initially be
registered on the Certificate Register in the name of Cede & Co., the nominee of
DTC, as the initial Clearing Agency, and no Beneficial Holder shall receive a
definitive certificate representing such Beneficial Holder's interest in any
Class of Book-Entry Certificate, except as provided above and in Section 5.9.
Each Book-Entry Certificate shall bear the following legend:
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Unless this Certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Trustee or its agent for
registration of transfer, exchange, or payment, and any
Certificate issued is registered in the name of Cede & Co. or
such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
Unless and until definitive, fully registered Book-Entry Certificates (the
"Definitive Certificates") have been issued to the Beneficial Holders pursuant
to Section 5.9:
(a) the provisions of this Section 5.7 shall be in full force and
effect with respect to the Book-Entry Certificates;
(b) the Trustee may deal with the Clearing Agency for all purposes with
respect to the Book-Entry Certificates (including the making of distributions on
the Book-Entry Certificates) as the sole Certificateholder;
(c) to the extent that the provisions of this Section 5.7 conflict with
any other provisions of this Agreement, the provisions of this Section 5.7 shall
control; and
(d) the rights of the Beneficial Holders shall be exercised only
through the Clearing Agency and the DTC Participants and shall be limited to
those established by law and agreements between such Beneficial Holders and the
Clearing Agency and/or the DTC Participants. Pursuant to the Depositary
Agreement, unless and until Definitive Certificates are issued pursuant to
Section 5.9, the initial Clearing Agency will make book-entry transfers among
the DTC Participants and receive and transmit distributions of principal and
interest on the related Class of Book-Entry Certificates to such DTC
Participants.
For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Holders of Book-Entry
Certificates evidencing a specified Percentage Interest, such direction or
consent may be given by the Clearing Agency at the direction of Beneficial
Holders owning Book-Entry Certificates evidencing the requisite Percentage
Interest represented by the Book-Entry Certificates. The Clearing Agency may
take conflicting actions with respect to the Book-Entry Certificates to the
extent that such actions are taken on behalf of the Beneficial Holders.
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Section 5.8 NOTICES TO CLEARING AGENCY.
Whenever notice or other communication to the Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to the related Certificateholders pursuant to Section 5.9, the
Trustee shall give all such notices and communications specified herein to be
given to Holders of the Book-Entry Certificates to the Clearing Agency which
shall give such notices and communications to the related DTC Participants in
accordance with its applicable rules, regulations and procedures.
Section 5.9 DEFINITIVE CERTIFICATES.
If (a) the Clearing Agency notifies the Trustee that it is no longer
willing or able to discharge properly its responsibilities under the Depositary
Agreement with respect to the Book-Entry Certificates and the Trustee is unable
to locate a qualified successor, (b) the Depositor, at its option, advises the
Trustee in writing that it elects to terminate the book-entry system with
respect to the Book-Entry Certificates through the Clearing Agency or (c) after
the occurrence of an Event of Default, Certificateholders holding Book-Entry
Certificates evidencing Percentage Interests aggregating not less than 66% of
the aggregate Class Principal Balance of such Certificates advise the Trustee
and the Clearing Agency through DTC Participants in writing that the
continuation of a book-entry system with respect to the Book-Entry Certificates
through the Clearing Agency is no longer in the best interests of the
Certificateholders with respect to such Certificates, the Trustee shall notify
or cause to be notified all Certificateholders of Book-Entry Certificates of the
occurrence of any such event and of the availability of Definitive Certificates.
Upon surrender to the Trustee of the Book-Entry Certificates by the Clearing
Agency, accompanied by registration instructions from the Clearing Agency for
registration, the Trustee shall execute and the Trustee or any Authenticating
Agent shall authenticate and deliver the Definitive Certificates. Neither the
Depositor, the Authenticating Agent nor the Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Certificates for all of the Certificates all references herein to obligations
imposed upon or to be performed by the Clearing Agency shall be deemed to be
imposed upon and performed by the Trustee, and the Trustee, the Certificate
Registrar and the Paying Agent shall recognize the Holders of Definitive
Certificates as Certificateholders hereunder.
Section 5.10 OFFICE FOR TRANSFER OF CERTIFICATES.
The Trustee shall maintain in New York, New York, an office or agency
where Certificates may be surrendered for registration of transfer or exchange.
U.S. Bank National Association, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000, Attn: Corporate Trust Window, is initially designated for said purposes.
The Trustee will give prompt written notice to the Certificateholders of any
change in such location of any such office or agency.
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ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.1 LIABILITY OF THE DEPOSITOR AND THE SERVICER.
The Depositor and the Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically imposed by this
Agreement and undertaken hereunder by the Depositor and the Servicer herein.
Section 6.2 MERGER OR CONSOLIDATION OF THE DEPOSITOR OR THE SERVICER.
Subject to the following paragraph, the Depositor and the Servicer each
will keep in full effect its existence, rights and franchises as corporations,
each under the laws of the jurisdiction of its incorporation, and will obtain
and preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Loans and to perform its respective duties under this Agreement.
The Depositor or the Servicer may be merged or consolidated with or
into any Person, or transfer all or substantially all of its assets to any
Person, in which case any Person resulting from any merger or consolidation to
which the Depositor or Servicer shall be a party, or any Person succeeding to
the business of the Depositor or Servicer, shall be the successor of the
Depositor or 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.
Section 6.3 LIMITATION ON LIABILITY OF THE SERVICER AND OTHERS.
Neither the Servicer nor any of the directors, officers, employees or
agents of the Servicer shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect any director, officer,
employee or agent of the Servicer against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Servicer and any director, officer, employee or agent of
the Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Servicer and any director, officer, employee or agent of the
Servicer shall be indemnified by the Trust Fund and held harmless against any
loss, liability or expense incurred in connection with any legal action relating
to this Agreement or the Certificates, other than any loss, liability or
expense, in the case of the Servicer and any director, officer, employee or
agent of the Servicer, incurred by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or by reason of
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reckless disregard of obligations and duties hereunder. The Servicer shall not
be under any obligation to appear in, prosecute or defend any legal action which
is not incidental to its duties to service the Loans in accordance with this
Agreement and which in its opinion may involve it in any expense or liability;
provided, however, that the Servicer may in its discretion undertake any such
action which 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
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 Servicer shall be entitled to be
reimbursed therefor out of the Certificate Account as provided by Section 3.3.
Section 6.4 SERVICER NOT TO RESIGN.
The Servicer shall not resign from the obligations and duties hereby
imposed on it, except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee. The Servicer shall notify each Rating Agency of
any such resignation. No such resignation shall become effective until a
successor servicer shall have assumed the Servicer's responsibilities and
obligations in accordance with Section 7.5 hereof.
Section 6.5 TRUSTEE ACCESS.
The Servicer shall afford the Depositor and the Trustee, upon
reasonable notice, during normal business hours access to all records maintained
by the Servicer, in respect of its rights and obligations hereunder and access
to such of its officers as are responsible for such obligations. Upon reasonable
request, the Servicer, shall furnish the Depositor and the Trustee with its most
recent financial statements (or, for so long as Washington Mutual Mortgage
Securities Corp. is Servicer hereunder, the most recent consolidated financial
statements of Washington Mutual, Inc., or the entity with whose financial
statements the financial statements of the Servicer are consolidated) and such
other information as it possesses, and which it is not prohibited by law or, to
the extent applicable, binding obligations to third parties with respect to
confidentiality from disclosing, regarding its business, affairs, property and
condition, financial or otherwise.
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ARTICLE VII
DEFAULT
Section 7.1 EVENTS OF DEFAULT.
In case one or more of the following Events of Default by the Servicer
shall occur and be continuing, that is to say:
(i) any failure by the Servicer to distribute or cause to be
distributed to the Trustee or its delegate on the Withdrawal Date any
payment required to be made to the Trustee under the terms of this
Agreement which continues unremedied for a period of five days after
the date upon which written notice of such failure, requiring the same
to be remedied, shall have been given to the Servicer by the Trustee or
to the Servicer and the Trustee by the Holders of Certificates
evidencing Percentage Interests aggregating not less than 25% of the
Trust Fund or 51% of the aggregate Percentage Interests of any Class of
Certificates;
(ii) any failure on the part of the Servicer duly to observe or
perform in any material respect any other of the covenants or
agreements on the part of the Servicer in the Certificates or in this
Agreement which continues unremedied for a period of 60 days after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Trustee, or to
the Servicer and the Trustee by the Holders of Certificates evidencing,
in aggregate, not less than 25% of the Trust Fund or 51% of the
aggregate Percentage Interests of any Class of Certificates;
(iii)a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshaling of assets and liabilities or similar proceedings,
or for the winding-up or liquidation of its affairs, shall have been
entered against the Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days;
(iv) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator or liquidating committee in any
insolvency, readjustment of debt marshaling of assets and liabilities,
voluntary liquidation or similar proceedings of or relating to the
Servicer or of or relating to all or substantially all of its property;
(v) the 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
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(vi) any failure of the Servicer to make any Advance required to
be made from its own funds pursuant to Section 4.3 which continues
unremedied for a period of one Business Day after the date upon which
such Advance was to have been made;
then, if an Event of Default described in clauses (i)-(v) of this Section 7.1
shall occur, and in each and every such case, subject to applicable law, so long
as an Event of Default shall not have been remedied, either the Trustee or the
Holders of Certificates evidencing, in aggregate, not less than 25% of the Trust
Fund or 51% of the aggregate Percentage Interests of any Class of Certificates
by notice in writing to the Servicer (and to the Trustee if given by the
Certificateholders) may terminate all of the rights and obligations of the
Servicer under this Agreement, but without prejudice to any rights it may have
to reimbursement of expenses, Advances and other advances of its own funds as
Servicer to the extent permitted by this Agreement, other than the Depositor's
(or its successors') obligation to repurchase any Loans pursuant to Section 2.2
or 2.3 shall survive any such termination. If an Event of Default described in
clause (vi) hereof shall occur, the Trustee shall, by notice in writing to the
Servicer, which shall be telecopied to the Servicer, immediately terminate all
of the rights and obligations of the Servicer, under this Agreement and in and
to the Loans and the proceeds thereof. On or after the receipt by the Servicer
of such written notice, all authority and power of the Servicer under this
Agreement, whether with respect to the Certificates or the Loans or otherwise,
shall pass to and be vested in the Trustee pursuant to and under this Section
7.1 (subject to the provisions of Section 7.5); and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the 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 Loans and related
documents or otherwise at the expense of the Servicer. The Servicer agrees to
cooperate with the Trustee in effecting the termination of the Servicer's
responsibilities and rights hereunder and shall promptly provide the Trustee all
documents and records whether in written or electronic form reasonably requested
by it to enable it to assume the Servicer's functions hereunder and shall
promptly also transfer to the Trustee of this Agreement all amounts which then
have been or should have been deposited in the Custodial Account for P&I by the
Servicer or which are thereafter received with respect to the Loans as well as
any escrowed funds held by it or in connection with its servicing activities
hereunder. The Servicer and the Trustee shall give each Rating Agency notice of
any Event of Default. If the Servicer shall within two Business Days following
such suspension remit to the Trustee the amount of any Advance the nonpayment of
which by the Servicer was an Event of Default described in clause (vi) of this
Section 7.1, the Trustee, subject to the last sentence of this paragraph, shall
permit the Servicer to resume its rights and obligations as Servicer hereunder.
The Servicer agrees that it will reimburse the Trustee for actual, necessary and
reasonable costs incurred by the Trustee because of action taken pursuant to
clause (vi) of this Section 7.1. The Servicer agrees that if an Event of Default
as described in clause (vi) of this Section 7.1 shall occur more than two times
in any twelve month period, the Trustee shall be under no obligation to permit
the Servicer to resume its rights and obligations as Servicer hereunder.
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Section 7.2 OTHER REMEDIES OF TRUSTEE.
During the continuance of any Event of Default, so long as such Event
of Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.1, shall have the right, in its own name as trustee of an
express trust, to take all actions now or hereafter existing at law, in equity
or by statute to enforce its rights and remedies, and to protect the interests,
and enforce the rights and remedies, of the Certificateholders (including the
institution and prosecution of all judicial, administrative and other
proceedings and the filing of proofs of claim and debt in connection therewith).
Except as otherwise expressly provided in this Agreement, no remedy provided for
by this Agreement shall be exclusive of any other remedy, and each and every
remedy shall be cumulative and in addition to any other remedy and no delay or
omission to exercise any right or remedy shall impair any such right or remedy
or shall be deemed to be a waiver of any Event of Default.
Section 7.3 DIRECTIONS BY CERTIFICATEHOLDERS AND DUTIES OF TRUSTEE
DURING EVENT OF DEFAULT.
During the continuance of any Event of Default, Holders of Certificates
evidencing, in aggregate, not less than 25% of the Trust Fund or 51% of the
aggregate Percentage Interests of any Class of Certificates may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee under this
Agreement; provided, however, that the Trustee shall be under no obligation to
pursue any such remedy, or to exercise any of the trusts or powers vested in it
by this Agreement (including, without limitation, (i) the conducting or
defending of any administrative action or litigation hereunder or in relation
hereto and (ii) the terminating of the Servicer or any successor servicer from
its rights and duties as servicer hereunder) at the request, order or direction
of any of the Certificateholders, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; and,
provided, further, that, subject to the provisions of Section 8.1, the Trustee
shall have the right to decline to follow any such direction if the Trustee, in
accordance with an Opinion of Counsel, determines that the action or proceeding
so directed may not lawfully be taken or if the Trustee in good faith determines
that the action or proceeding so directed would involve it in personal liability
or be unjustly prejudicial to the non-assenting Certificateholders or if the
Trustee has received contrary directions pursuant to this Section 7.3.
Section 7.4 ACTION UPON CERTAIN FAILURES OF SERVICER AND UPON EVENT OF
DEFAULT.
In the event that the Trustee shall have knowledge of any failure of
the Servicer specified in Section 7.1(i) or (ii) which would become an Event of
Default upon the Servicer's failure to remedy the same after notice, the Trustee
shall give notice thereof to the Servicer. In the event that the Trustee shall
have knowledge of an Event of Default, the Trustee shall give prompt written
notice thereof to the Certificateholders and to each Rating Agency. For all
purposes of this Agreement, in the absence of actual knowledge by a Responsible
Officer of the Trustee, the Trustee shall not be
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deemed to have knowledge of any failure of the Servicer as specified in Section
7.1(i) and (ii) or any Event of Default unless notified thereof in writing by
the Servicer or by a Certificateholder.
Section 7.5 APPOINTMENT OF SUCCESSOR SERVICER.
(a) When the Servicer receives a notice of termination pursuant to
Section 7.1 or the Trustee receives the resignation of the Servicer evidenced by
an Opinion of Counsel pursuant to Section 6.4, the Trustee shall become the
successor in all respects to the Servicer in its capacity as Servicer under this
Agreement and the transactions set forth or provided for herein, provided,
however, that the Trustee's obligation to make any Advances shall be no greater
than set forth in Section 4.3 of this Agreement, and the Trustee shall have all
the rights and powers and be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof and in its capacity as such successor shall have the same limitation of
liability herein granted to the Servicer and provided, further, that the Trustee
shall not be required to make an Advance from its own funds if such Advance
would be prohibited by law. As compensation therefor, the Trustee shall be
entitled to receive monthly an amount not to exceed the Servicing Fee as agreed
by the Trustee and the Depositor, together with such other servicing
compensation in the form of assumption fees, late charges, prepayment fees or
otherwise provided in Section 3.9. If the agreed amount is less than the
Servicing Fee, the excess shall be paid to the Class R Certificateholder. If the
Trustee and the Depositor shall not agree on the amount of such compensation,
the Trustee shall solicit bids for a successor servicer as described in Section
7.5(b), provided, however, if no successor servicer is obtained through the
bidding process, the Trustee may act as such, or may pursuant to Section 7.5(b)
appoint a successor servicer to act as such, for the Servicing Fee together with
such other servicing compensation as provided in Section 3.9. In no event shall
the Trustee's assumption of or succession to the obligations of the Servicer
make the Trustee liable for any actions or omissions of the Servicer in its
capacity as Servicer.
(b) Notwithstanding the above, the Trustee may and shall, if it is
unable (or unwilling due to disagreement on compensation as provided in Section
7.5 (a)) to act as Servicer, appoint, or petition a court of competent
jurisdiction to appoint, any established housing and home finance institution,
bank or mortgage servicing institution which is an approved FNMA or FHLMC
servicer having a net worth of not less than $15,000,000 and meeting such other
standards as are set forth in Section 6.4 hereof for a successor to the Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer hereunder (except the repurchase obligations set
forth in Sections 2.2 and 2.3 hereof, which shall remain obligations of the
Depositor); provided, however, that until such appointment and assumption, the
Trustee will continue to perform the servicing obligations pursuant to this
Agreement (and until such time shall be entitled to receive the Servicing Fees
pursuant to Section 3.9); provided, further, that prior to the appointment of
any successor servicer, the Rating Agencies confirm that the appointment of such
successor servicer would not result in the downgrade of the Rating assigned to
any Class of Certificates. The compensation of any successor servicer so
appointed shall be equal to the Servicing Fees specified in Section 3.9 together
with such other compensation as is provided in said Section 3.9. In the event
the Trustee is required to solicit bids as provided above, the Trustee shall
solicit, by public
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announcement, bids from housing and home finance institutions, banks and
mortgage servicing institutions acceptable to the Trustee and meeting the
qualifications set forth above in this Section 7.5(b) for the purchase of the
servicing functions. Such public announcement shall specify that the successor
servicer shall be entitled to the full amount of the Servicing Fee on the
aggregate unpaid principal balance of the Loans as servicing compensation for
servicing the Loans, together with the other servicing compensation in the form
of assumption fees, late payment charges, prepayment fees or otherwise as
provided in Section 3.9. Within 45 days after any such public announcement, the
Trustee shall negotiate and effect the sale, transfer and assignment of the
servicing rights and responsibilities hereunder (except the repurchase
obligations set forth in Sections 2.2 and 2.3 hereof, which shall remain
obligations of the Depositor) to the qualified party submitting the highest
qualifying bid. The Trustee shall deduct all costs and expenses of any public
announcement and of any sale, transfer and assignment of the servicing rights
and responsibilities hereunder from any sum received by the Trustee from the
successor to the Servicer in respect of such sale, transfer and assignment.
After such deductions, the remainder of such sum shall be paid by the Trustee to
the Class R Certificateholders at the time of such sale, transfer and assignment
to the Servicer's successor.
(c) In the event that the Servicer resigns or is terminated in
accordance with the terms of this Agreement, the Servicer agrees to cooperate
with the Trustee and any successor servicer in effecting the termination of the
Servicer's servicing responsibilities and rights hereunder and shall promptly
provide the Trustee or such successor servicer, as applicable, all documents and
records reasonably requested by it to enable it to assume the Servicer's
functions hereunder and shall promptly also transfer to the Trustee or such
successor servicer, as applicable, all amounts which then have been or should
have been deposited in the Custodial Account for P&I by the Servicer or which
are thereafter received with respect to the Loans. Neither the Trustee 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 caused by the failure of the Servicer to deliver, or any delay
in delivering, cash, documents or records to it.
Section 7.6 NOTIFICATION TO CERTIFICATEHOLDERS.
Upon any termination of the Servicer or appointment of a successor to
the Servicer, in each case as provided herein, the Trustee shall as soon as
practicable give written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register and each Rating
Agency.
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ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.1 DUTIES OF TRUSTEE.
The Trustee, prior to the occurrence of an Event of Default and after
the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred (which has not been cured),
the Trustee, subject to the provisions of Sections 7.1, 7.3, 7.4 and 7.5, shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs. Any permissive right of the Trustee enumerated in this Agreement shall
not be construed as a duty.
Subject to Sections 8.2(i), 8.3 and 8.4, the Trustee, upon receipt of
all resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments furnished to the Trustee which are specifically required to
be furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they are in the form required by this Agreement; provided,
however, that the Trustee shall not be responsible for the accuracy or content
of any resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by any party hereunder. If any such instrument is
found not to conform to the requirements of this Agreement in a material manner,
the Trustee shall take action as it deems appropriate to have the instrument
corrected, and if the instrument is not corrected to the Trustee's reasonable
satisfaction, the Trustee will provide notice thereof to the Certificateholders
and each Rating Agency.
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 or in the event the Trustee is acting as
successor servicer pursuant to Section 7.5, to the standard imposed on the
Servicer pursuant to Section 6.3 of this Agreement; provided, however, that:
(i) Prior to the occurrence of an Event of Default and after the
curing of all such Events of Default which may have occurred, 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 such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and,
in the absence of bad faith on the part of the Trustee, 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;
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(ii) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith
in accordance with this Agreement or at the direction of
Certificateholders holding Certificates which have an aggregate
Certificate Principal Balance aggregating not less than 25% of the
aggregate Certificate Principal Balance of all Certificates or 51% of
the aggregate Certificate Principal Balance of any Class of
Certificates relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising or
omitting to exercise any trust or power conferred upon the Trustee,
under this Agreement;
(iii)The Trustee shall not be liable in its individual capacity
for any error of judgment made in good faith by any Responsible
Officer, unless it shall be proved that the Trustee or such Responsible
Officer was negligent in ascertaining the pertinent facts;
(iv) The Trustee shall not be liable for any act or omission of
the Depositor or the Servicer (except for its own acts or omissions as
Servicer hereunder) or for any but its own acts or omissions;
(v) The Trustee shall not be deemed to take notice or be deemed
to have knowledge of any matter, including without limitation any
default or Event of Default, unless written notice thereof, referring
to the Certificates, the Depositor, the Trust Fund or this Agreement is
received by a Responsible Officer of the Trustee at its Corporate Trust
Office;
(vi) Subject to the other provisions of this Agreement and
without limiting the generality of this Section 8.1, the Trustee 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 of any thereof, (B) to
see any insurance, (C) to see to the payment or discharge of any tax,
assessment, or other governmental charge or any lien or encumbrance of
any kind owing with respect to, assessed or levied against, any part of
the Trust Fund other than from funds available in the Certificate
Account, and (D) to confirm or verify the contents of any reports or
certificates of the Servicer delivered to the Trustee pursuant to this
Agreement believed by the Trustee to be genuine and to have been signed
or presented by the proper party or parties;
(vii) No provision of this Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of its duties hereunder (except for the giving of
required notices), or in the exercise of any of its rights and powers,
if it shall have reasonable grounds for believing the repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it; and
(viii) When the Trustee is acting as the Servicer pursuant to
Section 7.5, and to the extent permitted under applicable law, the
Trustee is hereby authorized, in making or
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disposing of any investment permitted hereunder, to deal with itself
(in its individual capacity) or with any one or more of its Affiliates,
whether its Affiliate is acting as an agent of the Trustee or of any
third person or dealing as principal for its own account.
None of the provisions contained in this Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties as Trustee hereunder or in the exercise
of any of its rights or powers if there is reasonable ground for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it, and none of the provisions contained in this
Agreement shall in any event require the Trustee to perform, or be responsible
for the manner of performance of, any of the obligations of the 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 Servicer in accordance with the terms of this Agreement.
Section 8.2 CERTAIN MATTERS AFFECTING TRUSTEE. EXCEPT AS OTHERWISE
PROVIDED IN SECTION 8.1:
(i) Before acting or refraining from acting the Trustee may
request or require an Officer's Certificate; the Trustee may rely and
shall be protected in acting or refraining from acting upon any
resolution, Officer's Certificate, opinion of counsel, certificate of
auditors or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) The Trustee may consult with counsel, 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 Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(iv) 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;
(v) 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
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, attorneys or custodians, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such
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agent, attorney or custodian appointed by the Trustee with care. Any
such agents, attorneys or custodians shall be entitled to all
indemnities and protection afforded to the Trustee. Any designee of the
Trustee shall be considered its "agent" hereunder whether performing
certain functions as an independent contractor or otherwise.
Section 8.3 TRUSTEE NOT REQUIRED TO MAKE INVESTIGATION.
Prior to the occurrence of an Event of Default hereunder and after the
curing of all Events of Default which may have occurred, the Trustee shall not
be bound to ascertain or inquire as to the performance or observance of any of
the terms, conditions, covenants or agreements herein or to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, Mortgage, Mortgage Note or other paper or document, unless
requested in writing so to do by Holders of Certificates having a Percentage
Interest not less than 51% of the Trust Fund; 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 reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability as a condition to such
proceeding. The reasonable expense of every such examination shall be paid by
the Depositor or, if paid by the Trustee, shall be repaid by the Depositor upon
demand.
Section 8.4 TRUSTEE NOT LIABLE FOR CERTIFICATES OR LOANS.
The recitals contained herein and in the Certificates (other than the
certificate of authentication on the Certificates) shall be taken as the
statements of the Depositor, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations or warranties as
to the validity or sufficiency of this Agreement or of the Certificates or of
any Loan or related document. The Trustee shall not be accountable for the use
or application by the Depositor of any of the Certificates or of the proceeds of
such Certificates or for the use or application of any funds paid to the
Servicer in respect of the Loans or deposited in or withdrawn from the Custodial
Account for P&I by the Servicer or for investment of any such amounts. The
Trustee shall not be responsible for the legality or validity of this Agreement
or the validity, priority, perfection or sufficiency of the security for the
Certificates issued or intended to be issued hereunder. The Trustee shall have
no responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the perfection of
any security interest or lien granted to it hereunder or to record this
Agreement.
Neither the Trustee or the Custodian nor any of the directors,
officers, employees or agents of the Trustee or the Custodian shall be under any
liability to the Trust Fund or the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment while an Event of Default exists; provided,
however, that this provision shall not protect the Trustee and or the Custodian
or any such person against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the
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performance of duties. The Depositor hereby agrees to indemnify and hold
harmless the Trustee and the Custodian and any director, officer, employee or
agent of the Trustee and the Custodian against any loss, liability or expense,
including reasonable attorneys' fees, incurred in connection with or related to
the Trustee's or the Custodian's performance of its powers and duties under this
Agreement (including, without limitation, performance under Section 8.1 hereof),
or any action relating to this Agreement or the Certificates, or the performance
of the Trustee's or the Custodian's duties hereunder, other than any loss,
liability or expense incurred by any such Person by reason of willful
misfeasance, bad faith or negligence in the performance of duties. Any such
losses, liabilities and expenses resulting therefrom shall be losses,
liabilities and expenses of the Depositor. The indemnification provided
hereunder shall survive termination of this Agreement.
Section 8.5 TRUSTEE MAY OWN CERTIFICATES.
The Trustee and any agent of the Trustee in its individual or any other
capacity may become the owner of or a pledgee of the Certificates with the same
rights it would have if it were not Trustee or such agent, and may otherwise
deal with the parties hereto.
Section 8.6 SERVICER TO PAY TRUSTEE'S FEES AND EXPENSES.
The Servicer covenants and agrees to pay to the Trustee and the
Custodian monthly (or as otherwise agreed), and the Trustee and the Custodian
shall be entitled to receive, reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trustor a custodian) for all services rendered by it in the execution of
the trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee and the Custodian (including any
custodial services), and the Servicer shall pay or reimburse the Trustee and the
Custodian upon its request for all reasonable and usual expenses, disbursements
and advances, including reasonable attorneys' fees, incurred or made by the
Trustee and the Custodian in accordance with any of the provisions of this
Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Tax Matters Person (or Person acting as its
attorney-in-fact or agent) shall indemnify the Trustee for any liability of or
assessment against the Trustee resulting from any error in any tax or tax
information returns prepared or caused to be prepared by such Person. In the
event that (i) the Servicer does not pay to the Trustee and the Custodian any
compensation owed to the Trustee or the Custodian pursuant to this Agreement or
(ii) the Trustee or the Custodian is not reimbursed for any expense,
disbursement or advance incurred or made by the Trustee or the Custodian
pursuant to this Agreement, the Trustee on behalf of itself and the Custodian
shall be entitled to withdraw and retain such amount from the Certificate
Account. In the event the Trustee incurs expenses or renders services in any
proceedings which result from an Event of Default under Section 7.1, subsections
(iii), (iv) or (v) of this Agreement, or from any default which, with the
passage of time, would become an Event of Default, the expenses so incurred and
compensation for services so rendered are intended to constitute expenses of
administration under the United States Bankruptcy Code or equivalent law.
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Section 8.7 ELIGIBILITY REQUIREMENTS FOR TRUSTEE.
The Trustee hereunder shall at all times be a corporation or
association organized and doing business under the laws of any state of the
United States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority. The Trustee
shall not control the Servicer nor be a parent of or a subsidiary of the
Servicer. 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 8.7
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 the provisions of this Section 8.7, the Trustee
shall resign immediately in the manner and with the effect specified in Section
8.8.
Section 8.8 RESIGNATION AND REMOVAL OF TRUSTEE.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Servicer. Such
notice shall also be furnished to each Rating Agency. Upon receiving such notice
of resignation, the Servicer shall promptly appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee at the expense of the Depositor.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.7 and shall fail to resign after written
request for the Trustee's resignation by the Servicer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged 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, then, with or without cause, the Servicer may remove the Trustee
and appoint a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee.
The Holders of Certificates having a Percentage Interest aggregating
not less than 51% of the aggregate Denomination of all Certificates 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 instrument or instruments shall be
delivered to the Servicer, one complete set to the Trustee so removed and one
complete set to the successor trustee so appointed.
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Any resignation or removal of the Trustee and appointment of successor
trustee pursuant to any of the provisions of this Section 8.8 shall become
effective only upon acceptance of appointment by the successor trustee as
provided in Section 8.9.
Section 8.9 SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 8.8 shall
execute, acknowledge and deliver to the Servicer and to its predecessor trustee
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 like effect as if originally named as trustee
herein. The predecessor trustee shall deliver or cause to be delivered to the
successor trustee all Mortgage Files and related documents and statements held
by it hereunder (other than any Mortgage Files at the time held by the
Custodian, if it shall agree to become the agent of any successor trustee
hereunder), and the Servicer and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for more fully and certainly vesting and confirming in the successor trustee all
such rights, powers, duties and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.9 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.7.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.9, the Servicer shall mail notice of the succession of such
trustee hereunder to all holders of Certificates at their addresses as shown in
the Certificate Register and to each Rating Agency. If the Servicer fails to
mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Servicer.
Section 8.10 MERGER OR CONSOLIDATION OF TRUSTEE.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee and the Custodian hereunder,
provided, that such Person shall be eligible under the provisions of Section
8.7, 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.
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Section 8.11 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
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, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.11, such powers, duties, obligations, rights and trusts as the Servicer and
the Trustee may consider necessary or desirable. If the Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
so to do, or in case an Event of Default shall have occurred and be continuing,
the Trustee alone shall have the power to make such appointment. Each co-trustee
separate trustee hereunder shall not be required to meet the terms of
eligibility as a successor trustee under Section 8.7 hereunder and no notice to
holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.9 hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.11, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or a
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
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. The Trustee shall not be responsible
for any action or inaction of any such separate trustee or co-trustee. If any
separate trustee or co-trustee shall die, become incapable of acting, resign or
be removed, all of its estates,
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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.
The Trustee may appoint one or more Eligible Institutions to act as its
agent or agents to perform any or all of its duties and obligations under this
Agreement. Each such agent shall be subject to all of the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee.
Section 8.12 AUTHENTICATING AGENT.
(a) The Trustee may appoint from time to time an authenticating agent
(the "Authenticating Agent") which shall be authorized to act on behalf of the
Trustee in authenticating Certificates. Wherever reference is made in this
Agreement to the authentication of Certificates by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication on behalf of the Trustee by the Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by the
Authenticating Agent. Any successor Authenticating Agent must be acceptable to
the Servicer and have a principal office and place of business in Boston,
Massachusetts, New York, New York or Chicago, Illinois, have a combined capital
and surplus of at least $50,000,000, and be authorized to do a trust business
and subject to supervision or examination by federal or state authorities.
(b) Any corporation into which the Authenticating Agent 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 Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency business of the Authenticating Agent, shall continue to be
the Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee and to the
Servicer. The Trustee may at any time terminate the agency of the Authenticating
Agent by giving written notice of termination to the Authenticating Agent and to
the Servicer. Upon receiving a notice of resignation or upon such a termination,
or in case at any time the Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 8.13, the Trustee promptly shall
appoint a successor Authenticating Agent, shall give written notice of such
appointment to the Servicer and shall mail notice of such appointment to all
Certificateholders. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent herein. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
8.13.
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(d) The Authenticating Agent shall have no responsibility or liability
for any action taken by it as such at the direction of the Trustee. Any
reasonable compensation paid to the Authenticating Agent shall be a reimbursable
expense under Section 8.6.
Section 8.13 BLOOMBERG.
As soon as practicable after the Closing Date, the Servicer will
arrange with Bloomberg to have the Depositor set up on Bloomberg to provide the
information set forth on Exhibit Q (the "Data") with respect to the Loans on a
monthly basis in a format acceptable to Bloomberg and acceptable to the
Underwriters. During the term of this Agreement, the Servicer will provide
updated Data to Bloomberg on or before each Distribution Date.
Section 8.14 THE CUSTODIAN.
The rights, privileges, protections, immunities and benefits given to
the Trustee hereunder are extended to, and shall be enforceable by, the
Custodian. In exercising such rights and powers, the Custodian shall use the
same degree of care and skill as similarly situated financial institutions
acting in a comparable capacity. The Custodian's obligations hereunder shall be
considered ministerial in nature, and the Custodian shall have no fiduciary
obligation to the Certificateholders; provided however, this Section shall in no
way alter the fiduciary obligations of the Trustee hereunder.
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ARTICLE IX
TERMINATION
Section 9.1 TERMINATION UPON PURCHASE BY THE SERVICER OR LIQUIDATION OF
ALL LOANS.
The respective obligations and responsibilities of the Servicer and the
Trustee created hereby (other than the obligation to make payments to
Certificateholders as hereafter set forth in this Section 9.1 and obligations to
the Trustee in Sections 8.4 and 8.6) shall terminate upon the earlier of (i) the
later of the final payment or other liquidation (or any Advance with respect
thereto) of the last Loan remaining in the Trust Fund and the disposition of all
property acquired in respect of any Loan or (ii) the purchase by the Servicer of
all Loans at a price equal to the sum of (a) the principal balance of each Loan
plus accrued interest thereon at the applicable Mortgage Interest Rate to the
next scheduled Due Date and (b) the fair market value of all acquired property
in respect of Loans such fair market value to be determined by an appraiser
selected by the Trustee; provided, however, that in no event shall the trust
created hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of
the United States to the Court of St. Xxxxx, living on the date hereof; and
provided, further, that a "plan of liquidation" of each of REMIC I and II in
accordance with Section 860F of the Code must be adopted in conjunction with any
termination effected pursuant to subclauses (i) or (ii) of this Section 9.1.
The Servicer is hereby granted the right to purchase the Loans pursuant
to clause (ii) above, provided, however, that such right shall be conditioned
upon (a) the Principal Balances of such Loans, at the time of any such purchase,
aggregating an amount less than 5% of the aggregate Principal Balance of the
Loans on the Cut-off Date, after deduction of payments due on or before such
date, and (b) the aggregate price in clause (ii) above must be not greater than
the aggregate fair market value of the Loans and all such acquired property.
Notice of any termination pursuant to clause (i) or (ii) above,
specifying the Distribution Date upon which all Certificateholders may surrender
their Certificates to the Trustee or its agent for payment and cancellation,
shall be given promptly by the Trustee or its agent (upon direction by the
Servicer no less than 10 days prior to the date such notice is to be mailed) by
letter to Certificateholders and each Rating Agency mailed by first class mail
no later than the 25th day of the month preceding the month of such final
distribution specifying (i) the Distribution Date upon which final payment on
the Certificates will be made upon presentation and surrender of Certificates at
the office or agency of the Trustee or the Certificate Registrar therein
designated, (ii) the amount of any such final payment and (iii) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificates at the
office or agency of the Trustee or the Certificate Registrar therein specified.
The Trustee or its agent shall give such notice to the Certificate Registrar and
each Rating Agency at the time such notice is given to the Certificateholders.
Upon any such termination, the duties of the Certificate
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Registrar shall also terminate. In the event such notice is given in connection
with Servicer's election to purchase, the Servicer shall deposit in the
Certificate Account on the related Withdrawal Date an amount equal to the
above-described purchase price and upon such deposit Certificateholders will be
entitled to the amount of such purchase price but not amounts in excess thereof,
all as provided herein. With respect to the Certificates, upon presentation and
surrender of the Certificates pursuant to any termination under this Section
9.1, the Trustee or Paying Agent shall cause to be distributed to
Certificateholders an amount equal to (a) the amount otherwise distributable on
such Distribution Date, if not in connection with a purchase; or (b) if the
Servicer elected to so purchase, the purchase price calculated as above
provided. Upon any termination pursuant to clause (ii) above, or upon
certification to the Trustee by a Servicing Officer following such final
deposit, the Trustee and any Custodian shall promptly release to the Servicer
the Mortgage Files for the remaining Loans, and the Trustee shall execute all
assignments, endorsements and other instruments necessary to effectuate such
transfer.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within three months after the time specified
in the above-mentioned written notice, the Trustee or its agent 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 three months after the second notice all the Certificates
shall not have been surrendered for cancellation, the Trustee or its agent shall
take appropriate and reasonable steps as directed by the Servicer, 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 in
trust hereunder.
Section 9.2 TRUSTS IRREVOCABLE.
Except as expressly provided herein, all trusts created hereby are
irrevocable.
Section 9.3 ADDITIONAL TERMINATION REQUIREMENTS.
(a) In the event the Servicer exercises its purchase option as provided
in Section 9.1, the Trust Fund shall be terminated in accordance with the
following additional requirements, unless the Trustee has received an Opinion of
Counsel to the effect that the failure of the Trust Fund to comply with the
requirements of this Section 9.3 will not (i) result in the imposition of taxes
on "prohibited transactions" of REMIC I or REMIC II of the Trust Fund as
described in Section 860F(a)(2) of the Code, or (ii) cause either REMIC I or
REMIC II of the Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(A) Within 90 days prior to the final Distribution Date set forth
in the notice given by the Depositor under Section 9.1, the Tax Matters
Person shall prepare the documents associated with and shall adopt a
plan of complete liquidation of each of REMIC I and REMIC II of the
Trust Fund; and
109
(B) At or after the time of adoption of such a plan of complete
liquidation and at or prior to the final Distribution Date, the
Servicer as agent of the Trustee shall sell all of the assets of the
Trust Fund to the Depositor for cash in accordance with such plan of
liquidation; provided, however, that in the event that a calendar
quarter ends after the time of adoption of such a plan of complete
liquidation but prior to the final Distribution Date, the Servicer
shall not sell any of the assets of the Trust Fund prior to the close
of that calendar quarter.
(b) The Tax Matters Person hereby agrees to adopt such a plan of
complete liquidation and to take such other action in connection therewith as
may be reasonably requested by the Servicer.
110
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1 AMENDMENT.
This Agreement may be amended from time to time by the Depositor,
Servicer and the Trustee, without the consent of any of the Certificateholders,
(a) to cure any ambiguity, to correct or supplement any provision herein which
may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Agreement,
(b) to modify, eliminate or add to any provisions to such extent as shall be
necessary to maintain the qualification of the Trust Fund as two REMICs at all
times that any Class A or Subordinate Certificates are outstanding, provided,
that the Trustee has received an Opinion of Counsel to the effect that such
action is necessary or desirable to maintain such qualification, provided, that
such action under clauses (a) and (b) above shall not adversely affect in any
material respect the interests of any Certificateholder or (c) such amendment is
made to conform the terms of this Agreement to the terms described in the
Prospectus dated January 23, 2003, together with the Prospectus Supplement dated
September 24, 2003.
This Agreement may also be amended from time to time by the Depositor,
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing, in aggregate, not less than 66- 2/3% of each Class of Certificates
affected thereby for the purpose of adding any provisions 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 of such Class; provided,
however, that no such amendment shall (a) reduce in any manner the amount of, or
delay the timing of, payments received on Loans which are required to be
distributed in respect of any Certificate without the consent of the Holder of
such Certificate; (b) adversely affect in any material respect the interest of
the Holders of the Class A Certificates in a manner other than as described in
(a) above without the consent of the Holders of Class A Certificates aggregating
not less than 66-2/3% of the aggregate Percentage Interest evidenced by all
Class A Certificates; (c) adversely affect in any material respect the interest
of the Holders of the Subordinate Certificates in a manner other than as
described in clause (a) above without the consent of the Holders of Subordinate
Certificates aggregating not less than 66-2/3% of the aggregate Percentage
Interest evidenced by all Subordinate Certificates; (d) adversely affect in any
material respect the interest of the Class R Certificateholder without the
consent of the Holder of the Class R Certificate; (e) change in any material
respect the rights and obligations of the Servicer or successor Servicer under
this Agreement without the prior written consent of such party; or (f) reduce
the aforesaid percentage of the Certificates the Holders of which are required
to consent to any such amendments without the consent of the Holders of all
Certificates then outstanding; provided, that for the purposes of this
Agreement, the Holder of the Class R Certificate shall have no right to vote at
all times that any Class A Certificates or Subordinate Certificates are
outstanding if such amendment relates to the modification, elimination or
addition of any provision necessary to maintain the qualification of the Trust
Fund as two REMICs.
111
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 to the effect that such amendment will not cause
either REMIC I or REMIC II of the Trust Fund to fail to qualify as a REMIC at
any time that any REMIC I Regular Interests or REMIC II Certificates are
outstanding.
As soon as practicable after the execution of any such amendment, the
Trustee shall furnish written notification of the substance of such amendment to
each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of the Certificateholders
under this Section 10.1 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.
Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by this Agreement.
The Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Trustee's own rights, duties or immunities under this
Agreement.
Section 10.2 RECORDATION OF AGREEMENT.
This Agreement (or an abstract hereof, if acceptable by the applicable
recording office) is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Mortgages are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected by the Servicer at its expense, but only after the Depositor has
delivered to the Trustee an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders. Without limiting the foregoing, the Trustee shall make the
filings required by Chapter 182 of the Massachusetts General Laws.
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.
000
Xxxxxxx 00.0 XXXXXXXXXX XX RIGHTS OF CERTIFICATEHOLDERS.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
Except as otherwise expressly provided herein no Certificateholder,
solely by virtue of its status as Certificateholder, shall have any right to
vote 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
person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
holder previously shall have given to the Trustee a written notice of default
and of the continuance thereof, as hereinbefore provided, and unless all of the
Holders of Certificates evidencing, in aggregate, not less than 25% of the Trust
Fund shall have made written request upon the Trustee to institute such action,
suit or proceeding in its own name as Trustee hereunder and shall have offered
to the Trustee such reasonable indemnity as it may require against the costs,
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 of any provision of this Agreement to affect, disturb
or prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 10.3, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 10.4 GOVERNING LAW; JURISDICTION.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
113
Section 10.5 NOTICES.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or mailed
by certified or registered mail, return receipt requested (a) in the case of the
Depositor, to ABN AMRO Mortgage Corporation, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxx - Director - ABN AMRO
Mortgage Operations, with a copy to LaSalle Bank Corporation, 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxx - Associate General
Counsel, or such other address as may hereafter be furnished to the Servicer and
the Trustee in writing by the Depositor, (b) in the case of the Servicer, to
Washington Mutual Mortgage Securities Corp., 0000 Xxxxx Xxxxxx, XXX00, Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Legal Department, or such other address as may
hereafter be furnished to the Depositor and the Trustee in writing by the
Servicer, (c) in the case of the Trustee, to the Corporate Trust Office, or such
other address as may hereafter be furnished to the Depositor and the Servicer in
writing by the Trustee, in each case Attention: Corporate Trust Department, (d)
in the case of S&P, to Standard & Poor's, a division of the XxXxxx-Xxxx
Companies, Inc., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: Residential Mortgage Surveillance Department, or such other address
as may hereinafter be furnished to the Depositor in writing by S&P and (e) in
the case of Fitch, to Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx, Residential Mortgage, or such other
address as may hereinafter be furnished to the Depositor in writing by Fitch.
Any notice required or permitted to be mailed to a Certificateholder shall be
given by first class mail, postage prepaid, at the address of such Holder as
shown in the Certificate Register. Any notice mailed or transmitted within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the addressee receives such notice; provided, that
any demand, notice or communication to or upon the Depositor, the Servicer or
the Trustee shall not be effective until received.
Section 10.6 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
114
IN WITNESS WHEREOF, the Depositor, the Servicer and the Trustee have
caused their names to be signed hereto by their respective officers thereunto
duly authorized, all as of the day and year first above written.
ABN AMRO MORTGAGE CORPORATION, as
Depositor
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Its: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Trustee and Custodian
By: /s/ Xxxxx X. X'Xxxxx
-------------------------------
Name: Xxxxx X. X'Xxxxx
Its: Vice President
WASHINGTON MUTUAL MORTGAGE
SECURITIES CORP., as Servicer
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Its: First Vice President
000
XXXXX XX XXXXXXX )
) ss.
COUNTY OF )
On the 26th day of September, 2003, before me, _______________________,
personally appeared Xxxxxx X. Xxxxxxx, a Vice President of ABN AMRO Mortgage
Corporation, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument, and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal:
Signature _____________________________________
(SEAL)
116
STATE OF )
) ss.
COUNTY OF )
On the 26th day of September, 2003, before me, _______________________,
personally appeared ___________________, known to me to be a __________________
of U.S. Bank National Association, one of the institutions that executed the
within instrument and also known to me to be the person who executed it on
behalf of said institution, and acknowledged to me that such institution
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
____________________________________________
Notary Public
[NOTARIAL SEAL]
117
STATE OF )
) ss.
COUNTY OF )
On the 26th day of September, 2003, before me, _________________,
personally appeared _________________, known to me to be a _________________ of
Washington Mutual Mortgage Securities Corp., one of the corporations that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
_____________________________________
Notary Public
[NOTARIAL SEAL]
118
EXHIBIT A-1
-----------
CUSIP ________
FORM OF SENIOR AND SENIOR SUBORDINATE CERTIFICATE
MORTGAGE PASS-THROUGH CERTIFICATE
Class [A-[__], M, B-[__]]
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended. The issue
date (the "Issue Date") of this Certificate is September 26, 2003. [The rate at
which interest is payable as of the Issue Date with respect to this Certificate
is [___]% per annum.][Interest is not payable with respect to this Certificate.]
[Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee or its
agent for registration of transfer, exchange, or payment, and any Certificate
issued is registered in the name of Cede & Co. or such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
[The Class [M, B-[__]] Certificates will be subordinate in right of payment to
and provide credit support to certain Classes of Certificates, as described in
the Pooling Agreement.
Series 20[__-__] Portion of the Class
A-[__] [Principal Balance][Notional
Amount] as of the Cut-Off Date
evidenced by this Certificate:
$________________
Class A-[__] Remittance Rate: [___]%
Cut-Off Date: [_________]
First Distribution Date: [__________]
Last Scheduled Distribution Date: [__________]
Class A-[__] [Principal Balance][Notional Amount] as of the Cut-Off Date:
$______________
--------------------
A-1
Registered Owner Certificate No.___
EXHIBIT A-2
CUSIP_______
FORM OF JUNIOR SUBORDINATE CERTIFICATE
MORTGAGE PASS-THROUGH CERTIFICATE
Class B-[__]
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
This Certificate represents ownership of a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined in Sections 860G and
860D, respectively, of the Internal Revenue Code of 1986, as amended (the
"Code"). The issue date (the "Issue Date") of this Certificate is September 26,
2003. The rate at which interest is payable as of the Issue Date with respect to
this Certificate is [___]% per annum.
IN THE CASE OF ANY CLASS B-[__] CERTIFICATE PRESENTED FOR REGISTRATION IN THE
NAME OF AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE CODE (OR COMPARABLE PROVISIONS OF ANY
SUBSEQUENT ENACTMENTS) (A "PLAN"), A TRUSTEE OF ANY SUCH PLAN, OR ANY OTHER
PERSON WHO IS USING "PLAN ASSETS" OF ANY SUCH PLAN TO EFFECT SUCH ACQUISITION,
THE TRUSTEE OR CERTIFICATE REGISTRAR SHALL REQUIRE SUCH TRANSFEREE TO PROVIDE AN
OFFICER'S CERTIFICATE SIGNED BY A RESPONSIBLE OFFICER OF SUCH TRANSFEREE STATING
THAT THE TRANSFEREE IS AN INSURANCE COMPANY USING ASSETS OF AN "INSURANCE
COMPANY GENERAL ACCOUNT" (WITHIN THE MEANING OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION ("PTCE") 95-60) TO EFFECT SUCH PURCHASE AND
SATISFIES ALL OF THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND III
OF PTCE 95-60, WHICH OFFICER'S CERTIFICATE SHALL NOT BE AN EXPENSE OF THE
TRUSTEE OR THE DEPOSITOR.
The Class B-[__] Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in the
Pooling Agreement.
Series 20[__-__] Portion of the Class B-[__] Principal
Balance as of the Cut-Off Date
evidenced by this Certificate:
$_________________
A-2
Class B-[__] Remittance Rate: [____]%
Cut-Off Date: [___________]
First Distribution Date: [____________]
Last Scheduled Distribution Date: [____________]
Class B-[__] Principal Balance as of the Cut-Off Date: $________________
--------------------
Registered Owner Certificate No.___
A-3
EXHIBIT B
---------
FORM OF RESIDUAL CERTIFICATE
MORTGAGE PASS-THROUGH CERTIFICATE CUSIP_____
Class R
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to-four family mortgage loans formed and administered by
ABN AMRO MORTGAGE CORPORATION
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE DEPOSITOR AND
THE CERTIFICATE REGISTRAR THAT (1) SUCH TRANSFEREE IS NOT EITHER (A) THE UNITED
STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING, (B) ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION
521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE, (C) ANY ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), OR (C) BEING
HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (D) AN AGENT OF A
DISQUALIFIED ORGANIZATION AND (2) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE
TRANSFER TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. SUCH AFFIDAVIT SHALL
INCLUDE CERTAIN REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
IN THE CASE OF ANY CLASS R CERTIFICATE PRESENTED FOR REGISTRATION IN THE NAME OF
AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE CODE (OR COMPARABLE
B-4
PROVISIONS OF ANY SUBSEQUENT ENACTMENTS) (A "PLAN"), OR A TRUSTEE OF ANY SUCH
PLAN, OR ANY OTHER PERSON WHO IS USING "PLAN ASSETS" OF ANY SUCH PLAN TO EFFECT
SUCH ACQUISITION, THE TRUSTEE OR CERTIFICATE REGISTRAR SHALL REQUIRE SUCH
TRANSFEREE TO PROVIDE AN OFFICER'S CERTIFICATE SIGNED BY A RESPONSIBLE OFFICER
OF SUCH TRANSFEREE STATING THAT THE TRANSFEREE IS AN INSURANCE COMPANY USING
ASSETS OF AN "INSURANCE COMPANY GENERAL ACCOUNT" (WITHIN THE MEANING OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60) TO
EFFECT SUCH PURCHASE AND SATISFIES ALL OF THE REQUIREMENTS FOR EXEMPTIVE RELIEF
UNDER SECTIONS I AND III OF PTCE 95-60, WHICH OFFICER'S CERTIFICATE SHALL NOT BE
AN EXPENSE OF THE TRUSTEE OR THE DEPOSITOR.
Solely for U.S. federal income tax purposes, this Certificate represents
"residual interests" in "real estate mortgage investment conduits," as those
terms are defined in Sections 860G and 860D, respectively, of the Internal
Revenue Code of 1986, as amended.
Series 20[__-__] Percentage Interest evidenced by this Class R Certificate in
the distributions to be made with respect to the Class R Certificate: [____]%
Class R Remittance Rate: [___]% Additionally, the Class R Certificates are
entitled to Excess Liquidation Proceeds and the Residual Distribution Amount as
defined in the Pooling Agreement.
Cut-Off Date: [__________]
First Distribution Date: [__________]
Last Scheduled Distribution Date: [___________]
Class R Principal Balance as of the Cut-Off Date: $100
--------------------
Registered Owner Certificate No.___
B-5
EXHIBIT C-1
-----------
FORM OF CUSTODIAN'S INITIAL CERTIFICATION
[Date]
ABN AMRO Mortgage Corporation
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Re: Pooling and Servicing Agreement, dated as of September 1, 2003,
among ABN AMRO Mortgage Corporation, Washington Mutual Mortgage
Securities Corp. and U.S. Bank National Association, Multi-Class
Mortgage Pass-Through Certificates, Series 2003-11
--------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.1 of the Pooling and Servicing Agreement,
dated as of September 1, 2003, among ABN AMRO Mortgage Corporation as Depositor,
Washington Mutual Mortgage Securities Corp., as seller and servicer and U.S.
Bank National Association as trustee, we hereby acknowledge that as to each
Mortgage Loan listed in the Loan Schedule (other than any Mortgage Loan paid in
full or any Mortgage Loan specifically identified in the exception report
annexed thereto as not being covered by such certification), (i) the documents
constituting part of the Mortgage File described in Sections 2.1(i) and (ii)(b)
required to be delivered to it pursuant to this Agreement are in its possession
except as otherwise set forth in the Schedule hereto, (ii) such documents have
been reviewed by it and are not mutilated, torn or defaced unless initialed by
the related borrower and relate to such Mortgage Loan, and (iii) based on its
examination of the information set forth in the Loan Schedule accurately
reflects information set forth in such portions of the Mortgage File.
The Custodian was under no duty or obligation (i) to inspect,
review or examine any such documents, instruments, certificates or other papers
to determine whether they are genuine, enforceable, or appropriate for the
represented purpose or whether they have actually been recorded or that they are
other than what they purport to be on their face or (ii) to determine whether
any Mortgage File should include any of the documents specified in clause (v) of
Section 2.1.
C-1-1
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
U.S. BANK NATIONAL ASSOCIATION, as
Custodian
By:______________________________
Name:
Title:
C-1-2
EXHIBIT C-2
-----------
FORM OF INTERIM CERTIFICATION
[Date]
ABN AMRO Mortgage Corporation U.S. Bank National Association, as Trustee
000 Xxxxx XxXxxxx Xxxxxx 0 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx 000 Xxxxxx, XX 00000
Xxxxxxx, Xxxxxxxx 00000 Attn: Corporate Trust Services, ABN AMRO
2003-11
Attention: ABN AMRO Mortgage Corporation, Multi-Class Mortgage Pass-Through
Certificates, Series 2003-11
Re: Pooling and Servicing Agreement, dated as of September
1, 2003, by and among ABN AMRO Mortgage Corporation,
ABN Washington Mutual Mortgage Securities Corp. and
U.S. Bank National Association relating to ABN AMRO
Mortgage Corporation, Multi-Class Mortgage Pass-Through
Certificates, Series 2003-11
-------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Custodian, hereby certifies that it or
the sub-custodian has received a Mortgage File with respect to each Loan listed
in the Mortgage Loan Schedule containing with respect to each such Loan:
i. The original Mortgage Note, endorsed without recourse to
the order of the Trustee and showing an unbroken chain of endorsements
from the originator thereof to the Person endorsing it to the Trustee
or an original lost note affidavit from the related Depositor stating
that the original Mortgage Note was lost, misplaced or destroyed,
together with a copy of the related Mortgage Note;
ii. The original Mortgage with evidence of recording indicated
thereon or a copy of the Mortgage certified by the public recording
office in which such mortgage has been recorded;
C-2-1
iii. An original Assignment of the Mortgage to the Trustee
with evidence of recording indicated thereon or a copy of such
assignment certified by the public recording office in which such
assignment has been recorded;
iv. With respect to each Mortgage Loan, to the extent
available, the original recorded assignment or assignments of the
Mortgage showing an unbroken chain of title from the originator thereof
to the Person assigning it to the Trustee or a copy of such assignment
or assignments of the Mortgage certified by the public recording office
in which such assignment or assignments have been recorded; and
v. The original of each modification, assumption, extension or
guaranty agreement, if any, relating to such Loan or a copy of each
modification, assumption, extension or guaranty agreement certified by
the public recording office in which such document has been recorded.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Pooling and
Servicing Agreement.
U.S. BANK NATIONAL ASSOCIATION
By:_______________________
Name:
Title:
C-2-2
EXHIBIT C-3
-----------
FORM OF FINAL CERTIFICATION
[Date]
ABN AMRO Mortgage Corporation U.S. Bank National Association, as Trustee
000 Xxxxx XxXxxxx Xxxxxx 0 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx 000 Xxxxxx, XX 00000
Xxxxxxx, Xxxxxxxx 00000 Attn: Corporate Trust Services, ABN AMRO
2003-11
Attention: ABN AMRO Mortgage Corporation, Multi-Class Mortgage Pass-Through
Certificates, Series 2003-11
Re: Pooling and Servicing Agreement, dated as of September
1, 2003, by and among ABN AMRO Mortgage Corporation,
Washington Mutual Mortgage Securities Corp. and U.S.
Bank National Association relating to ABN AMRO Mortgage
Corporation, Multi-Class Mortgage Pass-Through
Certificates, Series 2003-11
-------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Custodian, hereby certifies that it or
the sub-custodian has received a Mortgage File with respect to each Loan listed
in the Mortgage Loan Schedule containing with respect to each such Loan:
i. The original Mortgage Note, endorsed without recourse to the order
of the Trustee and showing an unbroken chain of endorsements from the
originator thereof to the Person endorsing it to the Trustee or an original
lost note affidavit from the related Depositor stating that the original
Mortgage Note was lost, misplaced or destroyed, together with a copy of the
related Mortgage Note;
ii. The original Mortgage with evidence of recording indicated thereon
or a copy of the Mortgage certified by the public recording office in which
such mortgage has been recorded;
C-2-1
iii. An original Assignment of the Mortgage to the Trustee with
evidence of recording indicated thereon or a copy of such assignment
certified by the public recording office in which such assignment has been
recorded;
iv. With respect to each Mortgage Loan, to the extent available, the
original recorded assignment or assignments of the Mortgage showing an
unbroken chain of title from the originator thereof to the Person assigning
it to the Trustee or a copy of such assignment or assignments of the
Mortgage certified by the public recording office in which such assignment
or assignments have been recorded; and
v. The original of each modification, assumption, extension or
guaranty agreement, if any, relating to such Loan or a copy of each
modification, assumption, extension or guaranty agreement certified by the
public recording office in which such document has been recorded.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
U.S. BANK NATIONAL ASSOCIATION
By:____________________________
Name:
Title:
X-0-0
XXXXXXX X
---------
XXXXXXXX XX XXXXX
X-0
EXHIBIT E
---------
FIELDS OF LOAN INFORMATION
Deal Name
Distribution Date
Loan Number
City
State
Zip Code
Property Type (SFR, CONDO, etc.)
Occupancy Status (Owner, Investor, etc.)
Loan Purpose (Purchase, Refi, etc.)
Loan Type Loan Status (Current, Foreclosure, REO, Bankruptcy)
Original Term of Loan
Amortization Term
First Payment of Loan
Maturity Date
Appraisal Value
Original LTV
Original Principal Balance
Previous Month's Balance
Current Principal Balance
Prepay Date
Prepay Status (Loan has been prepaid, liquidated or repurchased by the Servicer)
Original Scheduled P&I
Current Scheduled P&I
Scheduled Interest Amount
Scheduled Principal Amount
Curtailment
Note Rate
Paid to Date
Payment Date
E-1
EXHIBIT F
---------
FORM OF TRANSFEROR CERTIFICATE FOR
PRIVATELY OFFERED CERTIFICATES
[Date]
U.S. Bank National Association, as Trustee
0 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Corporate Trust Services, ABN AMRO 2003-11
Re: Purchase of ABN AMRO Mortgage Corporation Mortgage Pass-Through
Certificates Series 2003-11, Class [B-3] [B-4] [B-5] (the
"Certificates")
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we certify
that (a) we understand the Certificates have not been registered under the
Securities Act of 1933, as amended (the "Act") and are being disposed by us in a
transaction that is exempt from the registration requirements of the Act, and
(b) we have not offered or sold any certificates to, or solicited offers to buy
any Certificates from, any person, or otherwise approached or negotiated with
any person with respect thereto, or taken any other action which would result in
a violation of Section 5 of the Act.
Very truly yours,
[Name of Transferor]
By:________________________
Authorized Officer
F-1
EXHIBIT G
---------
FORM OF TRANSFEREE'S CERTIFICATE FOR
PRIVATELY OFFERED CERTIFICATES
[Date]
U.S. Bank National Association
0 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Corporate Trust Services, ABN AMRO 2003-11
ABN AMRO Mortgage Corporation
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
The undersigned (the "Purchaser") proposes to purchase [Class B-3]
[Class B-4] [Class B-5] Certificates evidencing an undivided interest in ABN
AMRO Mortgage Corporation Mortgage Pass-Through Certificates, Series 2003-11
(the "Purchased Certificates") in the principal amount of $__________. In doing
so, the Purchaser hereby acknowledges and agrees as follows:
Section 1. Definitions. Each capitalized term used herein and not
otherwise defined herein shall have the meaning ascribed to it in the Pooling
and Servicing Agreement, dated as of September 1, 2003, between ABN AMRO
Mortgage Corporation ("AAMC"), Washington Mutual Mortgage Securities Corp., as
servicer (the "Servicer") and U.S. Bank National Association, as trustee (the
"Trustee"), of the ABN AMRO Mortgage Corporation Mortgage Pass-Through
Certificates, Series 2003-11.
Section 2. Representations and Warranties of the Purchaser. In
connection with the proposed transfer, the Purchaser represents and warrants to
AAMC, the Servicer, the Certificate Registrar and the Trustee that:
(a) The Purchaser is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which the Purchaser is organized,
is authorized to invest in the Purchased Certificates, and to enter into this
Agreement, and duly executed and delivered this Agreement;
(b) The Purchaser is acquiring the Purchased Certificates for its own
account as principal and not with a view the distribution thereof, in whole or
in part;
(c) The Purchaser is an "accredited investor" as such term is defined
in paragraph (a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) of Section 501 of
Regulation D under the Securities Act of 1933, as amended (the "Act"), has
knowledge of financial and business matters and is capable of evaluating
G-1
the merits and risks of an investment in the Purchased Certificates; the
Purchaser has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Purchaser is able to
bear the economic risk of an investment in the Purchased Certificates and can
afford a complete loss of such investment;
(d) The Purchaser is not affiliated with the Trustee;
(e) The Purchaser confirms that AAMC has made available to the
Purchaser the opportunity to ask questions of, and receive answers from AAMC
concerning the Trust, the purchase by the Purchaser of the Purchased
Certificates and all matters relating thereto that AAMC possesses or can acquire
without unreasonable effort or expense;
(f) If applicable, the Purchaser has complied, and will continue to
comply, with the guidelines established by Thrift Bulletin 12 issued December
13, 1988, by the Office of Regulatory Activities of the Federal Home Loan Bank
System; and
(g) The Purchaser will provide the Trustee and the Servicer with
affidavits substantially in the form of Exhibit A attached hereto.
Section 3. Transfer of Purchased Certificates.
(a) The Purchaser understands that the Purchased Certificates have not
been registered under the Act, or any state securities laws and that no transfer
may be made unless the Purchased Certificates are registered under the Act and
under applicable state law or unless an exemption from registration is
available. The Purchaser further understands that neither AAMC nor the Trust is
under any obligation to register the Purchased Certificates or make an exemption
available. In the event that such a transfer is to be made within two years from
the Closing Date without registration under the Act or applicable state
securities laws, (i) the Trustee or the Certificate Registrar shall require, in
order to assure compliance with such laws, that the Certificateholder's
prospective transferees each certify to AAMC, the Certificate Registrar and the
Trustee as to the factual basis for the registration or qualification exemption
relied upon, and (ii) the Trustee, the Certificate Registrar or AAMC may require
an Opinion of Counsel that such transfer may be made pursuant to an exemption
from the Act and state securities laws, which Opinion of Counsel shall not be an
expense of the Trustee, the Certificate Registrar or AAMC. Any such
Certificateholder desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee and AAMC 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.
(b) No transfer of a Purchased Certificate shall be made unless the
transferee provides AAMC, the Certificate Registrar and the Trustee with (i) a
Transferee's Agreement, substantially in the form of this Agreement, and (ii) an
affidavit substantially in the form of Exhibit A hereto that the proposed
transferee (x) is not an employee benefit plan or other plan or arrangement
subject to the prohibited transaction provisions of ERISA or Section 4975 of the
Internal Revenue Code of
G-2
1986, as amended, or comparable provisions of any subsequent enactments (a
"Plan"), a trustee of any Plan, or any other Person who is using the "plan
assets" of any Plan to effect such acquisition or (y) is an insurance company,
the source of funds to be used by it to purchase the Purchased Certificates is
an "insurance company general account" (within the meaning of Department of
Labor Prohibited Transaction Class Exemption ("PTCE") 95-60), and is eligible
for, and satisfies all the requirements for, exemptive relief under Sections I
and III of PTCE 95-60.
(c) The Purchaser acknowledges that its Purchased Certificates bear a
legend setting forth the applicable restrictions on transfer.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
validly executed by its duly authorized representative as of the day and the
year first above written.
[Purchaser]
By: ____________________
Its:
G-3
Exhibit A to Form of Transferee Agreement (Exhibit G)
BENEFIT PLAN AFFIDAVIT
----------------------
RE: ABN AMRO Mortgage Corporation Mortgage Pass-through Certificates, Series
2003-11 (The "Trust") [Class B-3] [Class B-4] [Class B-5] Certificates (The
"Purchased Certificates")
Under penalties of perjury, I, , declare that, to the best of my knowledge
and belief, the following representations are true, correct and complete; and
1. That I am the of (the "Purchaser"), whose taxpayer identification number
is , and on behalf of which I have the authority to make this affidavit.
2. That the Purchaser is acquiring a Purchased Certificate representing an
interest in Trust.
3. That the Purchaser (i) is not an employee benefit plan or other plan or
arrangement subject to the prohibited transaction provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") or Section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code"), or comparable
provisions of any subsequent enactments (a "Plan"), a trustee of any Plan, or
any other Person who is using the "plan assets" of any Plan to effect such
acquisition, or (ii) has provided an Officer's Certificate signed by a
Responsible Officer of the Purchaser satisfactory to ABN AMRO Mortgage
Corporation (the "Depositor"), the Certificate Registrar, and the Trustee of the
Trust stating that the Purchaser is an insurance company using assets of an
"insurance company general account" (within the meaning of Department of Labor
Prohibited Transaction Class Exemption ("PTCE") 95-60) to effect such purchase
and is eligible for, and satisfies all of the requirements for exemptive relief
under Sections I and III of PTCE 95-60, which Officer's Certificate shall not be
an expense of the Depositor or the Trustee.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly
executed on its behalf, by its duly authorized officer this ______ day of
_________, 20__.
[Purchaser]
By:________________________________
Its:
G-4
Personally appeared before me , known or proved to me to be the same person
who executed the foregoing instrument and to be a of the Purchaser, and
acknowledged to me that (s)he executed the same as his/her free act and deed and
as the free act and deed of the Purchaser.
SUBSCRIBED and SWORN to before me this __day of _______________, 20___.
_____________________________________
Notary Public
G-5
EXHIBIT H
---------
[RESERVED]
H-1
EXHIBIT I
---------
FORM OF TRANSFEROR CERTIFICATE
[Date]
U.S. Bank National Association, as Certificate Registrar
0 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Corporate Trust Services, ABN AMRO 2003-11
RE: ABN AMRO Mortgage Corporation Mortgage Pass-through Certificates,
Series 2003-11 Class R
This letter is delivered to you in connection with the sale by
____________ (the "Seller") to _____________________ (the "Purchaser") of
$________ initial Certificate Principal Balance of Mortgage Pass-Through
Certificates, Series 2003-11, Class R (the "Certificate"), pursuant to Section
5.1 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of September 1, 2003 among ABN AMRO Mortgage Corporation,
as depositor (the "Company"), Washington Mutual Mortgage Securities Corp., as
servicer (the "Servicer"), and U.S. Bank National Association, as trustee (the
"Trustee"). All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Seller hereby
certifies, represents and warrants to, and covenants with the Depositor, the
Servicer, the Certificate Registrar and the Trustee that:
1. No purpose of the Seller relating to the sale of the Certificate by
the Seller to the Purchaser is or will be to enable the Seller to impede the
assessment or collection of tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee, the Servicer, the Certificate Registrar and the Depositor a transferee
affidavit and agreement in the form attached to the Pooling and Servicing
Agreement as Exhibit J. The Seller does not know or believe that any
representation contained therein is false.
3. The Seller has no actual knowledge that the Proposed Transferee is
not a Permitted Transferee.
4. The Seller has no actual knowledge that the Purchaser would be
unwilling or unable to pay taxes due on its share of the taxable income
attributable to the Certificates.
5. At the time of this transfer (i) the Seller has conducted a
reasonable investigation of the financial condition of the Purchaser and, as a
result of the investigation, found that the Purchaser has historically paid its
debts as they came due, and found no significant evidence to indicate that the
Purchaser will not continue to pay its debts as they come due in the future, and
(ii) either (A) the
I-1
Seller both (1) has determined all of the following (I) at the time of the
transfer, and at the close of each of the Purchaser's two fiscal years preceding
the year of transfer, the Purchaser's gross assets for financial reporting
purposes exceed $100 million and its net assets for such purposes exceed $10
million (disregarding, for purposes of determining gross or net assets, the
obligation of any person related to the Purchaser within the meaning of section
860L(g) of the Code or any other asset if a principal purpose for holding or
acquiring that asset is to permit the Purchaser to satisfy this minimum gross
asset or net asset requirement), (II) the Purchaser is a domestic C corporation
for United States federal income tax purposes that is not for such purposes an
exempt corporation, a regulated investment company, a real estate investment
trust, a REMIC, or a cooperative organization to which part I of subchapter T of
the Code applies, (III) there are no facts or circumstances on or before the
date of transfer (or anticipated) which would reasonably indicate that the taxes
associated with the Certificates will not be paid, (IV) the Purchaser is not a
foreign branch of a domestic corporation, and (V) the transfer does not involve
a transfer or assignment to a foreign branch of a domestic corporation (or any
other arrangement by which any Certificate is at any time subject to net tax by
a foreign country or U.S. possession) and the Purchaser will not hereafter
engage in any such transfer or assignment (or any such arrangement), and (2)
does not know or have reason to know that the Purchaser will not honor the
restrictions on subsequent transfers of any Class R Certificate described in
paragraph 12 and 13 of the Transferee's Transfer Affidavit, or (B) the Seller
has determined that the present value of the anticipated tax liabilities
associated with the holding of the Certificates do not exceed the sum of (1) the
present value of any consideration given to the Purchaser to acquire the
Certificates, (2) the present value of the expected future distributions on the
Certificates, and (3) the present value of the anticipated tax savings
associated with holding the Certificates as each REMIC generates losses (having
made such determination by (I) assuming that the Purchaser pays tax at a rate
equal to the highest rate of tax specified in Section 11(b)(1) of the Code, and
(II) utilizing a discount rate for present valuation purposes equal to the
applicable Federal rate prescribed by Section 1274(d) of the Code compounded
semi-annually (or a lower discount rate based on the Purchaser having
demonstrated that it regularly borrows, in the course of its trade or business,
substantial funds at such lower rate from unrelated third parties)).
6. The Purchaser has represented to the Seller that, if the
Certificates constitute a noneconomic residual interest, it (i) understands that
as holder of a noneconomic residual interest it may incur tax liabilities in
excess of any cash flows generated by the interest, and (ii) intends to pay
taxes associated with its holding of the Certificates as they become due.
7. The Seller understands that the transfer of the Certificates may not
be respected for United States income tax purposes (and the Seller may continue
to be liable for United States income taxes associated therewith) unless there
is compliance with the standards of paragraph 5 above as to any transfer.
Very truly yours,
[Seller]
By: _______________________________
Name:
Title:
I-2
EXHIBIT J
---------
FORM OF TRANSFEREE AFFIDAVIT AND AGREEMENT
STATE OF )
) ss.
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Owner] (record or
beneficial owner of the Class R Certificate (the "Owner")), a [savings
institution] [corporation] duly organized and existing under the laws of [the
State of ] [the United States], on behalf of which he makes this affidavit and
agreement.
2. That the Owner (i) is not and will not be a "disqualified
organization" as of the [date of transfer] within the meaning of Section
860E(e)(5) of the Internal Revenue Code of 1986, as amended (the "Code") and
will endeavor to remain other than a disqualified organization for so long as it
retains its ownership interest in the Class R Certificate, and (ii) is acquiring
the Class R Certificate for its own account or for the account of another Owner
from which it has received an affidavit and agreement in substantially the same
form as this affidavit and agreement. (For this purpose, a "disqualified
organization" means the United States, any state or political subdivision
thereof, or any agency or instrumentality of any of the foregoing (other than an
instrumentality all of the activities of which are subject to tax and, except
for the Federal Home Loan Mortgage Corporation, a majority of whose board of
directors is not selected by any such governmental entity, or any foreign
government or international organization, or any agency or instrumentality of
such foreign government or organization, any rural electric or telephone
cooperative, or any organization (other than certain farmers' cooperatives) that
is generally exempt from federal income tax unless such organization is subject
to the tax on unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of the Class R Certificate; (ii) that such tax would be on the
transferor, or, if such transfer is through an agent (which person includes a
broker, nominee or middleman) for a disqualified organization, on the agent;
(iii) that the person otherwise liable for the tax shall be relieved of
liability for the tax if the transferee furnished to such person an affidavit
that the transferee is not a disqualified organization and, at the time of
transfer, such person does not have actual knowledge that the affidavit is
false; and (iv) that the Class R Certificate may represent "noneconomic residual
interests" within the meaning of Treasury regulations promulgated pursuant to
the Code and that the transferor of a noneconomic residual interest will remain
liable for any taxes due with respect to the income on such residual interest,
if a significant purpose of the transfer was to enable the transferor to impede
the assessment or collection of tax.
J-1
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding the Class R Certificate if at any time during the taxable year
of the pass-through entity a disqualified organization is the record holder of
an interest in such entity. (For this purpose, a "pass-through entity" includes
a regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. That the Owner is aware that the Trustee and the Certificate
Registrar will not register the transfer of the Class R Certificate unless the
transferee, or other transferee's agent, delivers to each of them an affidavit
and agreement, among other things, in substantially the same form as this
affidavit and agreement. The Owner expressly agrees that it will not consummate
any such transfer if it knows or believes that any of the representations
contained in such affidavit and agreement are false.
6. That the Owner has reviewed the restrictions set forth on the face
of each Class R Certificate and the provisions of Section 5.1 of the Pooling and
Servicing Agreement under which the Class R Certificates was issued. The Owner
expressly agrees to be bound by and to comply with such restrictions and
provisions.
7. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that such Class R Certificate will only be
owned, directly or indirectly, by an Owner that is not a disqualified
organization.
8. The Owner's Taxpayer Identification Number is____________ .
9. That no purpose of the Owner relating to the purchase of the Class R
Certificate by the Owner is or will be to enable the transferor to impede the
assessment or collection of tax.
10. That the Owner has no present knowledge or expectation that it will
be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding.
11. That the Owner has no present knowledge or expectation that it will
become insolvent or subject to a bankruptcy proceeding for so long as any of the
Certificates remain outstanding.
12. The Owner will, in connection with any transfer that it makes of
the Class R Certificate, deliver to the Certificate Registrar a representation
letter substantially in the form of Exhibit I to the Pooling and Servicing
Agreement. [The Owner hereby agrees that it will not make any transfer of any
Class R Certificate unless (i) the transfer is to an entity which is a domestic
C corporation (other than an exempt corporation, a regulated investment company,
a real estate investment trust, a REMIC, or a cooperative organization to which
part I of Subchapter T of the Code applies) for federal income tax purposes, and
(ii) the transfer is in compliance with the conditions set forth in paragraph 5
of Exhibit I of the Pooling and Servicing Agreement.](1)
J-2
13. The Owner (i) is a citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States or any state thereof or the District of Columbia
(except, in the case of a partnership, to the extent provided in regulations) or
an estate whose income is subject to United States federal income tax regardless
of its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more such U.S. Persons have the authority to control all substantial decisions
of the trust, and (ii) if the Owner is a partnership for U.S. federal income tax
purposes, each person or entity which holds an interest (directly or indirectly,
through a pass-through entity) is a person or entity described in (i). To the
extent prescribed in regulations by the Secretary of the Treasury, which have
not yet been issued, a trust which was in existence on August 20, 1996 (other
than a trust treated as owned by the grantor under subpart E of part 1 of
subchapter J of chapter 1 of the Code), and which was treated as a U.S. Person
on August 20, 1996 may elect to continue to be treated as a U.S. Person
notwithstanding the previous sentence.
14. The Owner hereby agrees to cooperate with the Depositor and to take
any action required of it by the Code or Treasury regulations thereunder
(whether now or hereafter promulgated) in order to create or maintain the REMIC
status of the REMIC I or the REMIC II.
15. The Owner hereby agrees that it will not take any action that could
endanger the REMIC status of the REMIC I or the REMIC II, as applicable, or
result in the imposition of tax on the REMIC I or the REMIC II unless counsel
for, or acceptable to, the Depositor has provided an opinion that such action
will not result in the loss of such REMIC status or the imposition of such tax,
as applicable.
16. The Owner as transferee of the Class R Certificate has represented
to their transferor that, if a Class R Certificate represents noneconomic
residual interests, the Owner (i) understands that as holder of a noneconomic
residual interest it may incur tax liabilities in excess of any cash flows
generated by the interest, and (ii) intends to pay taxes associated with its
holding of the Class R Certificate as they become due.
[17. The Owner hereby represents to and for the benefit of the
transferor that (i) at the time of the transfer, and at the close of each of the
Owners's two fiscal years preceding the year of transfer, the Owners's gross
assets for financial reporting purposes exceed $100 million and its net assets
for such purposes exceed $10 million (disregarding, for purposes of determining
gross or net assets, the obligation of any person related to the Owner within
the meaning of section 860L(g) of the Code or any other asset if a principal
purpose for holding or acquiring that asset is to permit the Owner to satisfy
this minimum gross asset or net asset requirement), (ii) the Owner is a domestic
C corporation for United States federal income tax purposes that is not for such
purposes an exempt corporation, a regulated investment company, a real estate
investment trust, a REMIC, or a cooperative organization to which part I of
subchapter T of the Code applies, (iii) there are no facts or circumstances on
or before the date of transfer (or anticipated) which would reasonably indicate
that the taxes associated with the Class R Certificate will not be paid, and
(iv) the Owner is not a
J-3
foreign branch of a domestic corporation, the transfer does not involve a
transfer or assignment to a foreign branch of a domestic corporation (or any
other arrangement by which any Class R Certificate is at any time subject to net
tax by a foreign country or U.S. possession), and the Owner will not hereafter
engage in any such transfer or assignment (or any such arrangement).](2)
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed
on its behalf, pursuant to the authority of its Board of Directors, by its
[Title of Officer] and its corporate seal to be hereunto attached, attested by
its [Assistant] Secretary, this day of , 20 .
[Name of Owner]
By: _______________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
[Assistant] Secretary
J-4
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Owner, and Acknowledged to me that he
executed the same as his free act and deed and free act and deed of the Owner.
Subscribed and sworn before me this ____ day of ___________, 20__.
NOTARY PUBLIC
COUNTY OF
STATE OF
My Commission expires the day
of , 20
J-5
EXHIBIT K
---------
FORM OF ADDITIONAL MATTER INCORPORATED
INTO THE FORM OF THE CERTIFICATES
This Certificate does not represent an obligation of or interest in ABN
AMRO Mortgage Corporation or any of its affiliates. Neither this Certificate nor
the underlying Loans are guaranteed by any agency or instrumentality of the
United States.
This certifies that the above-mentioned Registered Owner is the
registered owner of certain interests in a trust fund (the "Certificate Trust
Fund") whose assets consist of, among other things, of a pool (the "Mortgage
Pool") of conventional one- to four-family mortgage loans (the "Loans"), formed
by ABN AMRO Mortgage Corporation (the "Depositor"). The Loans were originated or
acquired by various financial institutions and subsequently acquired by the
Depositor. The Mortgage Pool was created pursuant to a Pooling and Servicing
Agreement, dated as of the Cut-Off Date stated above (the "Pooling Agreement"),
between the Depositor, Washington Mutual Mortgage Securities Corp., as Servicer
(the "Servicer"), and U.S. Bank National Association, as Trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling Agreement. Nothing herein shall
be deemed inconsistent with such meanings, and in the event of any conflict
between the Pooling Agreement and the terms of this Certificate, the Pooling
Agreement shall control. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling Agreement, to which Pooling
Agreement the Holder of this Certificate, by virtue of the acceptance hereof,
assents and by which such Holder is bound.
Distributions will be made, pursuant to the Pooling Agreement, on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), to the
extent of such Certificateholder's Percentage Interest represented by this
Certificate in the portion of the Certificate Distribution Amount for such
Distribution Date then distributable on the Certificates of this Class, as
specified in Section 4.1 of the Pooling Agreement.
Distributions on this Certificate will be made by the Trustee or its
Paying Agent by wire transfer or by other means of payment acceptable to each
Certificateholder of record on the immediately preceding Record Date.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee or its Paying Agent of the pendency of such
distribution and only upon presentation and surrender of this Certificate to the
Certificate Registrar.
Reference is hereby made to the further provisions of this Certificate
set forth below, which further provisions shall for all purposes have the same
effect as if set forth at this place.
K-1
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
U.S. BANK NATIONAL
ASSOCIATION, as Trustee
By: _______________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Pooling Agreement.
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: _________________________________
Dated:
K-2
ABN AMRO MORTGAGE CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATE
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Pass-Through Certificates of the Series and Class
specified hereon (herein called the "Certificates") and representing certain
interests in the Certificate Trust Fund.
The Certificates do not represent an obligation of, or an interest in,
the Depositor or any of its affiliates and are not insured or guaranteed by any
governmental agency. The Certificates are limited in right of payment to certain
collections and recoveries respecting the Loans, all as more specifically set
forth herein and in the Pooling Agreement. To the extent described in the
Pooling Agreement, the Servicer is obligated to advance its own funds to cover
certain shortfalls with respect to payments on the Loans. In the event Servicer
funds are advanced with respect to any Loan, such advance is reimbursable to the
Servicer from the related recoveries on such Loan or from other cash deposited
in the Custodial Account for P&I to the extent that such advance is not
otherwise recoverable.
As provided in the Pooling Agreement, withdrawals from the Custodial
Account for P&I may be made by the Servicer from time to time for purposes other
than distributions to Certificateholders, such purposes including reimbursement
to the Servicer of advances made, or certain expenses incurred, by it.
The Pooling Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the Servicer, and the rights of the
Certificateholders under the Pooling Agreement at any time by the Depositor and
the Trustee, with the consent of the Holders of the Certificates aggregating not
less than 66-2/3% of the aggregate Percentage Interest evidenced by each Class
of Certificates affected thereby. For the purposes of such provision and except
as provided below, voting rights related to 100% of the Aggregate Certificate
Principal Balance of any Class will be allocated pro rata (by Certificate
Principal Balance) among the Certificates of such Class. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Pooling Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Holders of any of the Certificates.
As provided in the Pooling Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar or the office maintained by
the Trustee in the City and State of New York, duly endorsed by, or accompanied
by an assignment in the form below or other written instrument of transfer in
form satisfactory to the Trustee or any Authenticating Agent duly executed by,
the Holder hereof or such Holder's attorney duly authorized
K-3
in writing, and thereupon one or more new Certificates of Authorized
Denominations evidencing the same Percentage Interest set forth hereinabove will
be issued to the designated transferee or transferees.
No transfer of a Certificate will be made unless such transfer is
exempt from or is made in accordance with the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act") and any applicable
state securities laws. No transfer, sale, pledge or other disposition of a
Junior Subordinate Certificate shall be made unless such transfer, sale, pledge
or other disposition is made in accordance with Section 5.1(e) or Section 5.1(f)
of the Pooling Agreement. Each Person who, at any time, acquires any ownership
interest in any Junior Subordinate Certificate shall be deemed by the acceptance
or acquisition of such ownership interest to have agreed to be bound by the
provisions of such Section 5.1(e) and Section 5.1(f), as applicable. No transfer
of a Junior Subordinate Certificate shall be deemed to be made in accordance
with such Section 5.1(e) unless such transfer is made pursuant to an effective
registration statement under the Securities Act or unless the Trustee and the
Certificate Registrar are provided with the certificates and an Opinion of
Counsel, if required, on which the Trustee and the Certificate Registrar may
conclusively rely, which establishes or establish to the Trustee's and the
Certificate Registrar's satisfaction that such transfer is exempt from the
registration requirements under the Securities Act, as follows: In the event
that a transfer is to be made in reliance upon an exemption from the Securities
Act, the Trustee and the Certificate Registrar shall require, in order to assure
compliance with the Securities Act, that the Certificateholder desiring to
effect such transfer certify to the Trustee and the Certificate Registrar in
writing, in substantially the form attached as Exhibit F to the Pooling
Agreement, the facts surrounding the transfer, with such modifications to such
Exhibit F as may be appropriate to reflect the actual facts of the proposed
transfer, and that the Certificateholder's proposed transferee certify to the
Trustee and the Certificate Registrar in writing, in substantially the form
attached as Exhibit G to the Pooling Agreement, the facts surrounding the
transfer, with such modifications to such Exhibit G as may be appropriate to
reflect the actual facts of the proposed transfer. If such certificate of the
proposed transferee does not contain substantially the substance of Exhibit G,
the Trustee and the Certificate Registrar shall require an Opinion of Counsel
satisfactory to it that such transfer may be made without registration, which
Opinion of Counsel shall not be obtained at the expense of the Trustee, the
Certificate Registrar, the Trust Fund or the Depositor.
Transfers of the Junior Subordinate Certificates may also be made in
accordance with Section 5.1(f) of the Pooling Agreement. To effectuate a
Certificate transfer in accordance with such Section 5.1(f), the proposed
transferee of such Certificate must provide the Trustee, the Certificate
Registrar and the Depositor with an investment letter substantially in the form
of Exhibit L attached to the Pooling Agreement, which investment letter shall
not be an expense of the Trustee, the Certificate Registrar or the Depositor,
and which investment letter states that, among other things, such transferee (i)
is a "qualified institutional buyer" as defined under Rule 144A, acting for its
own account or the accounts of other "qualified institutional buyers" as defined
under Rule 144A, and (ii) is aware that the proposed transferor intends to rely
on the exemption from registration requirements under the Securities Act
provided by Rule 144A. Notwithstanding the foregoing, the
K-4
proposed transferee of such Certificate shall not be required to provide the
Trustee, the Certificate Registrar or the Depositor with Annex 1 or Annex 2 to
the form of such Exhibit L if the Depositor so consents prior to each such
transfer. Such transfers shall be deemed to have complied with the requirements
of Section 5.1(f) of the Pooling Agreement. The Holder of a Certificate desiring
to effect such transfer does hereby agree to indemnify the Trustee, and the
Certificate Registrar, the Depositor, and the Certificate Registrar against any
liability that may result if transfer is not made in accordance with the Pooling
Agreement.
The Certificates are issuable only as registered Certificates without
coupons in Authorized Denominations specified in the Pooling Agreement. As
provided in the Pooling Agreement and subject to certain limitations therein set
forth, Certificates are exchangeable for new Certificates of Authorized
Denominations evidencing the same aggregate interest in the portion of the
Available Distribution Amount distributable on this Class of Certificate, as
requested by the Holder surrendering the same.
A reasonable service charge may be made for any such registration of
transfer or exchange, and the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Depositor, the Certificate Registrar, the Servicer, the Trustee and
any agent of any of them may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Certificate Registrar, the Servicer, the Trustee nor any such agent shall be
affected by notice to the contrary.
The respective obligations and responsibilities of the Servicer and the
Trustee created under the Pooling Agreement (other than the obligation to make
payments to Certificateholders as set forth therein) shall terminate upon the
earlier of (i) the later of the final payment or other liquidation (or any
Advance with respect thereto) of the last Loan remaining in the Trust Fund and
the disposition of all property acquired in respect of any Loan or (ii) the
purchase by the Class R Certificateholders of all Loans at a price established
pursuant to the Pooling Agreement; provided, however, that in no event shall the
trust created hereby continue beyond 21 years from the death of the survivor of
certain persons identified in the Pooling Agreement.
K-5
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s) and assign(s) and
transfer(s) unto
(Please print or typewrite name and address, including postal zip code
of assignee. Please insert social security or other identifying number of
assignee.) _____________________________________________________________________
________________________________________________________________________________
the within Mortgage Pass-Through Certificate and hereby irrevocably constitutes
and appoints _________________________________ Attorney to transfer said
Certificate on the Certificate Register, with full power of substitution in the
premises.
Dated: __________________ ____________________________________
Signature Guaranteed
NOTICE:
The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.
K-6
EXHIBIT L
---------
FORM OF RULE 144A INVESTMENT REPRESENTATION
Description of Rule 144A Securities, including numbers:
_____________________________
_____________________________
_____________________________
The undersigned seller, as registered holder (the "Seller"), intends to transfer
the Rule 144A Securities described above to the undersigned buyer (the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the Seller
hereby certifies the following facts: Neither the Seller nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security to, or solicited any offer to buy or accept a transfer, pledge
or any disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities in
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the
Seller, the Trustee, the Certificate Registrar and the Servicer (as defined in
the Pooling and Servicing Agreement (the "Agreement") dated as of September 1,
2003 between ABN AMRO Mortgage Corporation, as Depositor, Washington Mutual
Mortgage Securities Corp., as Servicer, and U.S. Bank National Association, as
Trustee pursuant to Section 5.1(f) of the Agreement, as follows:
(a) The Buyer understands that the Rule 144A Securities have not been
registered under the 1933 Act or the securities laws of any state.
(b) The Buyer considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
investment in the Rule 144A Securities.
L-1
(c) The Buyer has received and reviewed the Private Placement
Memorandum dated as of September 26, 2003 relating to the Rule 144A Securities
and has been furnished with all information regarding the Rule 144A Securities
that it has requested from the Seller, the Trustee, the Depositor or the
Servicer.
(d) Neither the Buyer nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition of
the Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security from, or otherwise approached or negotiated with respect to the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Rule 144A
Securities under the 1933 Act or that would render the disposition of the Rule
144A Securities a violation of Section 5 of the 1933 Act or require registration
pursuant thereto, nor will it act, nor has it authorized or will it authorize
any person to act, in such manner with respect to the Rule 144A Securities.
(e) The Buyer is a "qualified institutional buyer" as that term is
defined in Rule 144A under the 1933 Act and has (1) completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex 2, or
(2) obtained the waiver of the Depositor with respect to Annex 1 and Annex 2
pursuant to Section 5.1(f) of the Agreement. The Buyer is aware that the sale to
it is being made in reliance on Rule 144A. The Buyer is acquiring the Rule 144A
Securities for its own account or the accounts of other qualified institutional
buyers, understands that such Rule 144A Securities may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the 1933 Act.
(f) The Buyer is not affiliated with (i) the Trustee or (ii) any Rating
Agency that rated the Rule 144A Securities.
(g) If applicable, the Buyer has complied, and will continue to comply,
with the guidelines established by Thrift Bulletin 12 issued December 13, 1988,
by the Office of Regulatory Activities of the Federal Home Loan Bank System.
[Required only in the case of a transfer of a Class B-3, Class B-4, or
Class B-5 Certificate][3. The Buyer warrants and represents to, and covenants
with, the Seller, the Servicer, the Certificate Registrar and the Depositor that
(1) the Buyer is not an employee benefit plan (within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), subject to the prohibited transaction provisions of ERISA ("Plan"),
or a plan (within the meaning of Section 4975(e)(1) of the Internal Revenue Code
of 1986 ("Code")) subject to Section 4975 of the Code (also a "Plan"), and the
Buyer is not directly or indirectly purchasing the Rule 144A Securities on
behalf of, as investment manager of, as named fiduciary of, as trustee of, or
with "plan
L-2
assets" of any Plan, or (2) the Buyer has provided the Seller, the Servicer, the
Certificate Registrar and the Depositor with an Officer's Certificate signed by
a Responsible Officer of the Buyer stating that the Buyer is an insurance
company using assets of an "insurance company general account" (within the
meaning of Department of Labor Prohibited Transaction Class Exemption ("PTCE")
95-60) to effect such purchase and is eligible for, and satisfies all of the
requirements for exemptive relief under Sections I and III of PTCE 95-60, which
Officer's Certificate shall not be an expense of the Servicer or the Depositor.]
3. This document may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as
of the date set forth below.
_________________________________ _________________________________
Print Name of Seller Print Name of Seller
By:______________________________ By:______________________________
Name: Name:
Title: Title:
Taxpayer Identification Taxpayer Identification
No.: No.:
Date: Date:
L-3
Annex 1 to Exhibit L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice-President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested on a
discretionary basis $________(1) in securities (except for the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A) and (ii) the
Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code.
____ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of Columbia,
the business of which is substantially confined to banking and is supervised by
the State or territorial banking commission or similar official or is a foreign
bank or equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements, a copy of
which is attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements.
____ Broker-Dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
______________________
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
L-4
____ Insurance Company. The Buyer is an insurance company whose primary
and predominant business activity is the writing of insurance or the reinsuring
of risks underwritten by insurance companies and which is subject to supervision
by the insurance commissioner or a similar official or agency of a State or
territory or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit of
its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA") and is subject to the fiduciary responsibility provisions
of ERISA.
____ Investment Adviser. The Buyer is an investment adviser registered
under the Investment Advisers Act of 1940.
____ SBIC. The Buyer is a Small Business Investment Company licensed by
the U.S. Small Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
____ Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940.
____ Trust Fund. The Buyer is a trust fund whose trustee is a bank or
trust company and whose participants are exclusively (a) plans established and
maintained by a State, its political subdivision, or any agency or
instrumentality of the State or its political subdivision, for the benefit of
its employees, or (b) employee benefit plans within the meaning of Title I of
the Employee Retirement Income Security Act of 1974, but is not a trust fund
that includes as participants individual retirement accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that are part of
an unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the cost
of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer
L-5
is a majority-owned, consolidated subsidiary of another enterprise and the Buyer
is not itself a reporting company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer may be in reliance
on Rule 144A.
[____] [____] Will the Buyer be purchasing the Rule 144A Securities
Yes No only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees
that, in connection with any purchase of securities sold to the Buyer
for the account of a third party (including any separate account) in
reliance on Rule 144A, the Buyer will only purchase for the account of
a third party that at the time is a "qualified institutional buyer"
within the meaning of Rule 144A. In addition, the Buyer agrees that the
Buyer will not purchase securities for a third party unless the Buyer
has obtained a current representation letter from such third party or
taken other appropriate steps contemplated by Rule 144A to conclude
that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of Rule 144A
Securities will constitute a reaffirmation of this certification as of
the date of such purchase.
Print Name of Buyer
By:__________________________________
Name:
Title:
Date:
L-6
Annex 2 to Exhibit L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice-President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because Buyer is a part of a Family of
Investment Companies (as defined below), is such an officer the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and (ii)
as marked below, the Buyer alone, or the Buyer's Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such securities was used.
___ The Buyer owned $_______ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which owned
in the aggregate $_______ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser in a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer or are part of the Buyer's Family
of Investment Companies, (ii) bank deposit notes and certificates of deposit,
(iii) loan participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and commodity
swaps.
L-7
5. The Buyer is familiar with Rule 144A and understands that each of
the parties to which this certification is made are relying and will continue to
rely on the statements made herein because one or more sales to the Buyer will
be reliance on Rule 144A. In addition, the Buyer will only purchase for the
Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Buyer's purchase of Rule 144A Securities will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
Print Name of Buyer
By: _______________________________
Name:
Title:
Date:
IF AN ADVISER
Print Name of Buyer
By: _______________________________
Name:
Title:
Date:
(SEAL)
L-8
EXHIBIT M
---------
Aggregate Planned Principal Balances
DISTRIBUTION DATE AGGREGATE CLASS A-1,CLASS A-3
----------------- AND CLASS A-14
Initial Balance.................. $156,450,000.00
October 25, 2003................. 156,023,818.96
November 25, 2003................ 155,537,027.95
December 25, 2003................ 154,989,884.65
January 25, 2004................. 154,382,585.67
February 25, 2004................ 153,715,366.54
March 25, 2004................... 152,988,501.57
April 25, 2004................... 152,202,303.78
May 25, 2004..................... 151,357,124.71
June 25, 2004.................... 150,453,354.23
July 25, 2004.................... 149,491,420.28
August 25, 2004.................. 148,471,788.59
September 25, 2004............... 147,394,962.33
October 25, 2004................. 146,261,481.77
November 25, 2004................ 145,071,923.86
December 25, 2004................ 143,826,901.75
January 25, 2005................. 142,527,064.32
February 25, 2005................ 141,173,095.66
March 25, 2005................... 139,765,714.49
April 25, 2005................... 138,305,673.51
May 25, 2005..................... 136,793,758.82
June 25, 2005.................... 135,230,789.19
July 25, 2005.................... 133,617,615.37
August 25, 2005.................. 131,955,119.30
September 25, 2005............... 130,244,213.34
October 25, 2005................. 128,485,839.45
November 25, 2005................ 126,680,968.34
December 25, 2005................ 124,830,598.54
January 25, 2006................. 122,935,755.54
February 25, 2006................ 120,997,490.82
March 25, 2006................... 119,072,518.43
April 25, 2006................... 117,160,751.50
May 25, 2006..................... 115,262,103.75
June 25, 2006.................... 113,376,489.44
July 25, 2006.................... 111,503,823.39
August 25, 2006.................. 109,644,020.99
September 25, 2006............... 107,796,998.16
October 25, 2006................. 105,962,671.40
November 25, 2006................ 104,140,957.74
December 25, 2006................ 102,331,774.74
January 25, 2007................. 100,535,040.51
February 25, 2007................ 98,750,673.71
March 25, 2007................... 96,978,593.49
April 25, 2007................... 95,218,719.58
May 25, 2007..................... 93,470,972.20
June 25, 2007.................... $91,735,272.09
M-1
DISTRIBUTION DATE AGGREGATE CLASS A-1,CLASS A-3
----------------- AND CLASS A-14
July 25, 2007.................... 90,011,540.53
August 25, 2007.................. 88,299,699.30
September 25, 2007............... 86,599,670.69
October 25, 2007................. 84,911,377.50
November 25, 2007................ 83,234,743.05
December 25, 2007................ 81,569,691.13
January 25, 2008................. 79,916,146.06
February 25, 2008................ 78,274,032.63
March 25, 2008................... 76,643,276.14
April 25, 2008................... 75,023,802.36
May 25, 2008..................... 73,415,537.57
June 25, 2008.................... 71,818,408.51
July 25, 2008.................... 70,232,342.42
August 25, 2008.................. 68,657,266.98
September 25, 2008............... 67,093,110.39
October 25, 2008................. 65,650,551.64
November 25, 2008................ 64,218,625.17
December 25, 2008................ 62,797,260.89
January 25, 2009................. 61,386,389.16
February 25, 2009................ 59,985,940.80
March 25, 2009................... 58,595,847.09
April 25, 2009................... 57,216,039.74
May 25, 2009..................... 55,846,450.95
June 25, 2009.................... 54,487,013.31
July 25, 2009.................... 53,137,659.90
August 25, 2009.................. 51,798,324.22
September 25, 2009............... 50,468,940.20
October 25, 2009................. 49,170,843.20
November 25, 2009................ 47,882,396.98
December 25, 2009................ 46,603,537.08
January 25, 2010................. 45,334,199.49
February 25, 2010................ 44,074,320.62
March 25, 2010................... 42,823,837.28
April 25, 2010................... 41,582,686.72
May 25, 2010..................... 40,357,173.36
June 25, 2010.................... 39,160,476.82
July 25, 2010.................... 37,991,981.66
August 25, 2010.................. 36,851,085.06
September 25, 2010............... 35,737,196.53
October 25, 2010................. 34,759,088.47
November 25, 2010................ 33,804,316.92
December 25, 2010................ 32,872,367.41
January 25, 2011................. 31,962,736.30
February 25, 2011................ 31,074,930.57
March 25, 2011................... 30,208,467.57
April 25, 2011................... 29,362,874.85
May 25, 2011..................... 28,537,689.92
June 25, 2011.................... 27,732,460.06
July 25, 2011.................... 26,946,742.12
August 25, 2011.................. $26,180,102.31
M-2
DISTRIBUTION DATE AGGREGATE CLASS A-1,CLASS A-3
----------------- AND CLASS A-14
September 25, 2011............... 25,432,116.04
October 25, 2011................. 24,795,192.89
November 25, 2011................ 24,173,207.91
December 25, 2011................ 23,565,827.34
January 25, 2012................. 22,972,724.63
February 25, 2012................ 22,393,580.28
March 25, 2012................... 21,828,081.69
April 25, 2012................... 21,275,923.01
May 25, 2012..................... 20,736,805.01
June 25, 2012.................... 20,210,434.92
July 25, 2012.................... 19,696,526.32
August 25, 2012.................. 19,194,798.98
September 25, 2012............... 18,704,978.77
October 25, 2012................. 18,301,811.61
November 25, 2012................ 17,907,076.40
December 25, 2012................ 17,520,600.28
January 25, 2013................. 17,142,213.88
February 25, 2013................ 16,771,751.26
March 25, 2013................... 16,409,049.85
April 25, 2013................... 16,053,950.34
May 25, 2013..................... 15,706,296.67
June 25, 2013.................... 15,365,935.92
July 25, 2013.................... 15,032,718.28
August 25, 2013.................. 14,706,496.98
September 25, 2013............... 14,387,128.19
October 25, 2013................. 14,074,471.02
November 25, 2013................ 13,768,387.44
December 25, 2013................ 13,468,742.19
January 25, 2014................. 13,175,402.77
February 25, 2014................ 12,888,239.37
March 25, 2014................... 12,607,124.81
April 25, 2014................... 12,331,934.47
May 25, 2014..................... 12,062,546.29
June 25, 2014.................... 11,798,840.65
July 25, 2014.................... 11,540,700.41
August 25, 2014.................. 11,288,010.74
September 25, 2014............... 11,040,659.21
October 25, 2014................. 10,798,535.63
November 25, 2014................ 10,561,532.05
December 25, 2014................ 10,329,542.74
January 25, 2015................. 10,102,464.09
February 25, 2015................ 9,880,194.62
March 25, 2015................... 9,662,634.90
April 25, 2015................... 9,449,687.52
May 25, 2015..................... 9,241,257.06
June 25, 2015.................... 9,037,250.03
July 25, 2015.................... 8,837,574.87
August 25, 2015.................. 8,642,141.85
September 25, 2015............... 8,450,863.08
October 25, 2015................. $8,263,652.47
M-3
DISTRIBUTION DATE AGGREGATE CLASS A-1,CLASS A-3
----------------- AND CLASS A-14
November 25, 2015................ 8,080,425.68
December 25, 2015................ 7,901,100.08
January 25, 2016................. 7,725,594.73
February 25, 2016................ 7,553,830.33
March 25, 2016................... 7,385,729.22
April 25, 2016................... 7,221,215.31
May 25, 2016..................... 7,060,214.06
June 25, 2016.................... 6,902,652.46
July 25, 2016.................... 6,748,458.97
August 25, 2016.................. 6,597,563.55
September 25, 2016............... 6,449,897.54
October 25, 2016................. 6,305,393.73
November 25, 2016................ 6,163,986.26
December 25, 2016................ 6,025,610.61
January 25, 2017................. 5,890,203.60
February 25, 2017................ 5,757,703.32
March 25, 2017................... 5,628,049.14
April 25, 2017................... 5,501,181.68
May 25, 2017..................... 5,377,042.75
June 25, 2017.................... 5,255,575.37
July 25, 2017.................... 5,136,723.72
August 25, 2017.................. 5,020,433.13
September 25, 2017............... 4,906,650.04
October 25, 2017................. 4,795,322.00
November 25, 2017................ 4,686,397.63
December 25, 2017................ 4,579,826.59
January 25, 2018................. 4,475,559.60
February 25, 2018................ 4,373,548.37
March 25, 2018................... 4,273,745.62
April 25, 2018................... 4,176,105.01
May 25, 2018..................... 4,080,581.19
June 25, 2018.................... 3,987,129.71
July 25, 2018.................... 3,895,707.05
August 25, 2018.................. 3,806,270.58
September 25, 2018............... 3,718,778.55
October 25, 2018................. 3,633,190.07
November 25, 2018................ 3,549,465.09
December 25, 2018................ 3,467,564.37
January 25, 2019................. 3,387,449.50
February 25, 2019................ 3,309,082.85
March 25, 2019................... 3,232,427.57
April 25, 2019................... 3,157,447.56
May 25, 2019..................... 3,084,107.48
June 25, 2019.................... 3,012,372.70
July 25, 2019.................... 2,942,209.32
August 25, 2019.................. 2,873,584.13
September 25, 2019............... 2,806,464.61
October 25, 2019................. 2,740,818.92
November 25, 2019................ 2,676,615.86
December 25, 2019................ $2,613,824.88
M-4
DISTRIBUTION DATE AGGREGATE CLASS A-1,CLASS A-3
----------------- AND CLASS A-14
January 25, 2020................. 2,552,416.06
February 25, 2020................ 2,492,360.13
March 25, 2020................... 2,433,628.37
April 25, 2020................... 2,376,192.70
May 25, 2020..................... 2,320,025.59
June 25, 2020.................... 2,265,100.12
July 25, 2020.................... 2,211,389.87
August 25, 2020.................. 2,158,869.03
September 25, 2020............... 2,107,512.28
October 25, 2020................. 2,057,294.83
November 25, 2020................ 2,008,192.44
December 25, 2020................ 1,960,181.32
January 25, 2021................. 1,913,238.22
February 25, 2021................ 1,867,340.35
March 25, 2021................... 1,822,465.39
April 25, 2021................... 1,778,591.50
May 25, 2021..................... 1,735,697.28
June 25, 2021.................... 1,693,761.79
July 25, 2021.................... 1,652,764.50
August 25, 2021.................. 1,612,685.34
September 25, 2021............... 1,573,504.63
October 25, 2021................. 1,535,203.11
November 25, 2021................ 1,497,761.93
December 25, 2021................ 1,461,162.63
January 25, 2022................. 1,425,387.12
February 25, 2022................ 1,390,417.70
March 25, 2022................... 1,356,237.04
April 25, 2022................... 1,322,828.18
May 25, 2022..................... 1,290,174.49
June 25, 2022.................... 1,258,259.70
July 25, 2022.................... 1,227,067.89
August 25, 2022.................. 1,196,583.46
September 25, 2022............... 1,166,791.14
October 25, 2022................. 1,137,675.98
November 25, 2022................ 1,109,223.36
December 25, 2022................ 1,081,418.92
January 25, 2023................. 1,054,248.66
February 25, 2023................ 1,027,698.83
March 25, 2023................... 1,001,755.98
April 25, 2023................... 976,406.96
May 25, 2023..................... 951,638.86
June 25, 2023.................... 927,439.09
July 25, 2023.................... 903,795.27
August 25, 2023.................. 880,695.33
September 25, 2023............... 858,127.41
October 25, 2023................. 836,079.94
November 25, 2023................ 814,541.57
December 25, 2023................ 793,501.19
January 25, 2024................. 772,947.93
February 25, 2024................ $752,871.15
M-5
DISTRIBUTION DATE AGGREGATE CLASS A-1,CLASS A-3
----------------- AND CLASS X-00
Xxxxx 00, 2024................... 733,260.42
April 25, 2024................... 714,105.56
May 25, 2024..................... 695,396.58
June 25, 2024.................... 677,123.70
July 25, 2024.................... 659,277.36
August 25, 2024.................. 641,848.20
September 25, 2024............... 624,827.05
October 25, 2024................. 608,204.94
November 25, 2024................ 591,973.09
December 25, 2024................ 576,122.91
January 25, 2025................. 560,645.98
February 25, 2025................ 545,534.07
March 25, 2025................... 530,779.12
April 25, 2025................... 516,373.24
May 25, 2025..................... 502,308.71
June 25, 2025.................... 488,577.98
July 25, 2025.................... 475,173.64
August 25, 2025.................. 462,088.46
September 25, 2025............... 449,315.36
October 25, 2025................. 436,847.40
November 25, 2025................ 424,677.80
December 25, 2025................ 412,799.91
January 25, 2026................. 401,207.24
February 25, 2026................ 389,893.42
March 25, 2026................... 378,852.24
April 25, 2026................... 368,077.60
May 25, 2026..................... 357,563.54
June 25, 2026.................... 347,304.22
July 25, 2026.................... 337,293.94
August 25, 2026.................. 327,527.12
September 25, 2026............... 317,998.28
October 25, 2026................. 308,702.08
November 25, 2026................ 299,633.28
December 25, 2026................ 290,786.76
January 25, 2027................. 282,157.50
February 25, 2027................ 273,740.62
March 25, 2027................... 265,531.30
April 25, 2027................... 257,524.85
May 25, 2027..................... 249,716.68
June 25, 2027.................... 242,102.30
July 25, 2027.................... 234,677.30
August 25, 2027.................. 227,437.38
September 25, 2027............... 220,378.34
October 25, 2027................. 213,496.05
November 25, 2027................ 206,786.49
December 25, 2027................ 200,245.70
January 25, 2028................. 193,869.85
February 25, 2028................ 187,655.14
March 25, 2028................... 181,597.90
April 25, 2028................... $175,694.51
M-6
DISTRIBUTION DATE AGGREGATE CLASS A-1,CLASS A-3
----------------- AND CLASS A-14
May 25, 2028..................... 169,941.43
June 25, 2028.................... 164,335.21
July 25, 2028.................... 158,872.47
August 25, 2028.................. 153,549.91
September 25, 2028............... 148,364.28
October 25, 2028................. 143,312.43
November 25, 2028................ 138,391.25
December 25, 2028................ 133,597.73
January 25, 2029................. 128,928.89
February 25, 2029................ 124,381.84
March 25, 2029................... 119,953.75
April 25, 2029................... 115,641.85
May 25, 2029..................... 111,443.42
June 25, 2029.................... 107,355.82
July 25, 2029.................... 103,376.44
August 25, 2029.................. 99,502.77
September 25, 2029............... 95,732.31
October 25, 2029................. 92,062.63
November 25, 2029................ 88,491.38
December 25, 2029................ 85,016.22
January 25, 2030................. 81,634.90
February 25, 2030................ 78,345.18
March 25, 2030................... 75,144.91
April 25, 2030................... 72,031.96
May 25, 2030..................... 69,004.25
June 25, 2030.................... 66,059.76
July 25, 2030.................... 63,196.50
August 25, 2030.................. 60,412.54
September 25, 2030............... 57,705.97
October 25, 2030................. 55,074.96
November 25, 2030................ 52,517.67
December 25, 2030................ 50,032.34
January 25, 2031................. 47,617.23
February 25, 2031................ 45,270.66
March 25, 2031................... 42,990.97
April 25, 2031................... 40,776.53
May 25, 2031..................... 38,625.77
June 25, 2031.................... 36,537.13
July 25, 2031.................... 34,509.10
August 25, 2031.................. 32,540.21
September 25, 2031............... 30,629.01
October 25, 2031................. 28,774.09
November 25, 2031................ 26,974.06
December 25, 2031................ 25,227.58
January 25, 2032................. 23,533.32
February 25, 2032................ 21,890.00
March 25, 2032................... 20,296.36
April 25, 2032................... 18,751.16
May 25, 2032..................... 17,253.20
June 25, 2032.................... $15,801.31
M-7
DISTRIBUTION DATE AGGREGATE CLASS A-1,CLASS A-3
----------------- AND CLASS A-14
July 25, 2032.................... 14,394.33
August 25, 2032.................. 13,031.14
September 25, 2032............... 11,710.64
October 25, 2032................. 10,431.76
November 25, 2032................ 9,193.46
December 25, 2032................ 7,994.70
January 25, 2033................. 6,834.48
February 25, 2033................ 5,711.83
March 25, 2033................... 4,625.80
April 25, 2033................... 3,575.44
May 25, 2033..................... 2,559.85
June 25, 2033.................... 1,578.13
July 25, 2033.................... 629.42
August 25, 2033 and thereafter... 0.00
M-8
EXHIBIT N
---------
[RESERVED]
N-1
EXHIBIT O
---------
[Reserved]
O-1
EXHIBIT P
---------
[RESERVED]
P-1
EXHIBIT Q
---------
BLOOMBERG DATA
Loan Number
Property Type
Owner Occupied
Loan Purpose
Loan Type
Current Interest Rate
Original Balance
Current Balance
First Payment Date
Maturity Date
Current PNI
Servicing Fee
Loan Term
Foreclosure/REO
Loan to Value Ratio
State Code
Interest Paid to Date
Zip Code
PIF Data
Amortized Remaining Term
Q-1
EXHIBIT R
FORM OF SPECIAL SERVICING AGREEMENT
This SPECIAL SERVICING AGREEMENT (the "Agreement") is made and entered
into as of ____________ 1, 20__, between _______________, as seller and master
servicer (the "Company"), _______________, as holder of the Class B Certificates
identified on Schedule I (the "Class B Holder") and _______________, [an
affiliate of the Class B Holder,] as special servicer (the "Special Servicer").
PRELIMINARY STATEMENT
WHEREAS, the Class B Holder is the holder of at least 75% of each the
classes of Mortgage Pass-Through Certificates (each a "Class B Certificate") of
the series of issuances (each a "Series") issued by the Company identified on
Schedule I attached hereto (such Schedule I, as may be modified or amended to
reflect (i) the purchase from time to time by the Class B Holder of interests in
any class of Class B Certificates of a Series such that the Class B Holder owns
not less than 75% of the then outstanding Certificate Principal Balance of such
Class B Certificates and (ii) the sale from time to time of the Class B Holder
of interests in any class of Class B Certificates of a Series such that the
Class B Holder owns less than 75% of the then outstanding Certificate Principal
Balance of such Class B Certificates, the "Schedule I").
WHEREAS, each of the Class B Certificates was issued by the Company
pursuant to the Pooling and Servicing Agreement or Agreements (each a "Pooling
and Servicing Agreement") identified on Schedule I and evidences an ownership
interest in a pool of Mortgage Loans.
WHEREAS, the Company is the Master Servicer of the Mortgage Loans
related to each Series and the Mortgage Loans are serviced in accordance with
the applicable Pooling and Servicing Agreement [and the Company's [Servicer
Guide] (the "Servicer Guide")].
WHEREAS, in connection with the purchase by Class B Holder of a Series
of Class B Certificates (whether owned by the Class B Holder on the date hereof
or purchased by the Class B Holder at any time in the future), the Class B
Holder and the Company have agreed that (i) the Class B Holder, if it owns 75%
of the most subordinate outstanding class of Class B Certificates of a Series
(calculated by dividing the then outstanding Certificate Principal Balance of
such Class B Certificates by the then outstanding Certificate Principal Balance
of all certificates of the same class) may elect to have certain Mortgage Loans
with respect to the related Series that become 90 or more days delinquent (each
such Mortgage Loan, a "Delinquent Mortgage Loan") serviced by the Special
Servicer (each such Delinquent Mortgage Loan, a "Specially Serviced Mortgage
Loan"), and (ii) with respect to Delinquent Mortgage Loans other than Specially
Serviced Mortgage Loans, the Company will provide to the Class B Holder such
information as is generated [pursuant to the terms of the Servicer Guide] by the
Company or a subservicer with respect to such Delinquent Loan.
R-1
NOW THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, the Company, the Class B Holder and the Special Servicer
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions Incorporated by Reference.
Capitalized terms used but not otherwise defined in this Agreement
shall have the respective meaning ascribed thereto as set forth in the related
Pooling and Servicing Agreement [or the Servicer Guide, as the context may
require].
ARTICLE II
DESIGNATION OF SPECIALLY SERVICED MORTGAGE LOANS AND SPECIAL
SERVICING PROCEDURES
Section 2.01 [Approval of _______________ as an Approved Servicer under
the Servicer Guide.
The Company hereby approves _______________ as an approved servicer for
all purposes under the terms of the Servicer Guide.]
Section 2.02 Specially Serviced Mortgage Loans.
To the extent and for so long as the Class B Certificates of a Series
are outstanding and the Class B Holder owns at least 75% of the most subordinate
outstanding class of the Class B Certificates of such Series (calculated by
dividing the then outstanding Certificate Principal Balance of such Class B
Certificates by the then outstanding Certificate Principal Balance of all
certificates of the same class), Delinquent Mortgage Loans of the related Series
may, at the option of the Class B Holder, be designated in writing by the Class
B Holder as Specially Serviced Mortgage Loans and transferred to the Special
Servicer for servicing. The Special Servicer shall service the Specially
Serviced Mortgage Loans in accordance with the terms of the related Pooling and
Servicing Agreement [and the Servicer Guide].
Following the designation of a Delinquent Mortgage Loan as a Specially
Serviced Loan, the Company shall transfer servicing of such Delinquent Mortgage
Loan to the Special Servicer substantially in the manner set forth herein and in
Schedule II hereto. [The parties hereto agree that any fees resulting from the
transfer of the servicing of a Delinquent Mortgage Loan from the Company or a
subservicer to the Special Servicer (or any successor thereto) shall be the
obligation of the Company.]
R-2
As of the Effective Date (as defined below) of each Specially Serviced
Mortgage Loan, the Special Servicer shall succeed to and undertake all rights,
duties and obligations of the prior servicer (including, without limitation, the
making of advances, any right to purchase such Specially Serviced Mortgage Loan
at the purchase price set forth in the related Pooling and Servicing Agreement
and the right to receive the servicing fee with respect to such Specially
Serviced Mortgage Loan) pursuant to and in accordance with the terms of the
related Pooling and Servicing Agreement [and the terms and conditions of the
Servicer Guide].
With respect to each Specially Serviced Mortgage Loan, the effective
date (the "Effective Date") shall be the first day of the month immediately
following the month of designation of such Specially Serviced Mortgage Loan as
such, provided that such written designation is received by the Company on or
prior to the 15th calendar day of such month.
Once a Delinquent Mortgage Loan becomes a Specially Serviced Mortgage
Loan, such Delinquent Mortgage Loan shall remain a Specially Serviced Mortgage
Loan, and shall continue to be serviced by the Special Servicer, until the
earlier of the liquidation or other disposition of such Specially Serviced
Mortgage Loan or the termination of this Agreement, regardless of delinquency
status, whether the related Mortgaged Property becomes an REO Property or
otherwise; provided, however, that if the Company exercises its right as Master
Servicer to purchase all of the Mortgage Loans in a Trust Fund pursuant to an
optional termination provision under the related Pooling and Servicing
Agreement, the servicing of any related Specially Serviced Mortgage Loans with
respect to which foreclosure proceedings have not been commenced shall be
transferred promptly by the Special Servicer in accordance with written
instructions from the Company.
If the Class B Holder (i) transfers such percentage interest in any
Class B Certificates of a Series such that the Class B Holder owns less than 75%
of the then outstanding Certificate Principal Balance of such class, or (ii)
purchases such percentage interest in any Class B Certificates of a Series such
that the Class B Holder owns 75% or more of the then outstanding Certificate
Principal Balance of such class, the Class B Holder shall promptly notify the
Company and the Special Servicer in writing of any such transfer or acquisition.
Upon receipt of written notice from the Class B Holder, the Company or the Class
B Holder shall revise Schedule I hereto to reflect any such transfer or
acquisition and shall forward promptly a copy of such revised schedule to the
Company or the Class B Holder, as applicable, and the Special Servicer. With
respect to the purchase of at least 75% of the Class B Certificates of any
Series by the Class B Holder after the date hereof, this Agreement shall be
effective as of the date such written notice of acquisition is received by the
Company.
If and to the extent the Company is permitted to purchase Delinquent
Mortgage Loans under the related Pooling and Servicing Agreement, the Class B
Holder may direct the Company to purchase any Specially Serviced Mortgage Loan
and to promptly resell such Mortgage Loan to the Class B Holder at the price and
on the terms set forth in such Pooling and Servicing Agreement. In the event the
Class B Holder directs the Company to purchase a Specially Serviced Mortgage
Loan as permitted under this Section, the Company shall promptly take all action
necessary under the
R-3
terms of the related Pooling and Servicing Agreement in order to accomplish such
purchase (i.e. provide notification to the Trustee and/or Custodian) and to
resell such Specially Serviced Mortgage Loan to the Class B Holder. The Class B
Holder, and not the Company, shall be required to remit the purchase price for
such Specially Serviced Mortgage Loan to the related Trustee. The Company will
inform the Trustee in writing of the purchase of such Specially Serviced
Mortgage Loan by the Class B Holder and further shall promptly take all actions
necessary or desirable to effect the conveyance of such Mortgage Loan and the
related servicing rights to the Class B Holder or its designee, time being of
the essence.
Notwithstanding any provision herein to the contrary, the Special
Servicer shall (i) in no event be obligated to effect any cure or remedy in
connection with a deficiency in the documentation for any Specially Serviced
Mortgage Loan to the extent such deficiency existed at the time such Mortgage
Loan became a Specially Serviced Mortgage Loan or (ii) have any responsibility
for any obligations, duties, or liabilities of the Company with respect to the
servicing of a Specially Serviced Mortgage Loan that arose prior to the related
Effective Date for such Specially Serviced Mortgage Loan, other than those which
would customarily be assumed after the Effective Date.
Section 2.03 Termination of Special Servicer for Default.
The Company shall have the right, immediately upon written notice, to
terminate the Special Servicer's right and obligation to subservice all of the
Specially Serviced Mortgage Loans hereunder in the event (each such event, an
"Event of Default") of:
(i) any failure by the Special Servicer to remit to the Company for
distribution to the Certificateholders of a Series any payment (including
without limitation, any failure to make any required Advance) required to be
made under the terms of this Agreement or the related Pooling and Servicing
Agreement which continues unremedied for a period of one day after the date upon
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Special Servicer by the Company; or
(ii) any failure on the part of the Special Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of the Special Sub-Servicer contained in this Agreement (including any
breach of the Special Servicer's representations and warranties contained in
Section 4.03 hereof, which materially and adversely affects the interests of the
Certificateholders of a Series) which continues unremedied for a period of 30
days after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Special Servicer by the Company; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction in an involuntary case under any present or future federal
or state bankruptcy, insolvency or similar law or the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of
R-4
its affairs, shall have been entered against the Special Servicer and such
decree or order shall have remained in force undischarged or unstayed for a
period of 60 consecutive days; or
(iv) the Special Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Special Servicer or of or relating to all or substantially all of its
property; or
(v) the Special Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of or
otherwise voluntarily commence a case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar statute, make an
assignment for the benefit of its creditors, or voluntarily suspend payment of
its obligations.
If an Event of Default shall occur, then, and in each and every such
case, upon receipt of written notice from the Company, the Special Servicer
shall immediately remit to the Company all amounts in the Collection Accounts
and the Escrow Accounts and all rights of the Special Servicer to service the
Specially Serviced Mortgage Loans shall terminate. Following the receipt of
written notice from the Company as provided above, all authority and power of
the Special Sub-Servicer to subservice all the Specially Serviced Mortgage Loans
shall pass to and be vested in the Company pursuant to and under this Section
2.03, and the Special Servicer shall do all things necessary to effect a
transfer of the servicing rights back to the Company. In this regard, the
Company is hereby authorized and empowered to execute and deliver, on behalf of
the Special Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the affected
Specially Serviced Mortgage Loans and related documents, or otherwise. The
Special Servicer agrees to cooperate with the Company in implementing the
termination of the Special Servicer's responsibilities and rights hereunder,
including, without limitation, the transfer to the Company or its appointed
agent for administration by it of all amounts in the possession of the Special
Servicer or thereafter be received with respect to the Specially Serviced
Mortgage Loans and the transfer of the] servicing rights back to the Company.
Section 2.04 Appointment of Successor Special Servicer.
The Class B Holder shall have the right, upon 90 days prior written
notice to the Company and the Special Servicer appoint a successor special
servicer having the characteristics set forth in clauses (i), (ii) and (iii)
below, and which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Special Servicer under this
Agreement simultaneously with the termination of the Special Servicer's
responsibilities, duties and liabilities under this Agreement. In the event that
the Special Servicer's duties, responsibilities and liabilities under this
Agreement should be terminated pursuant to the foregoing, the Special Servicer
shall discharge such duties and responsibilities during the period from the date
it acquires knowledge of such termination until the effective date thereof with
the same degree of diligence and prudence which it is obligated
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to exercise under this Agreement, and shall take no action whatsoever that might
impair or prejudice the rights or financial condition of its successor. The
removal of the Special Servicer shall not become effective until a successor
shall be appointed pursuant to this Section and shall in no event relieve the
Special Servicer of the representations and warranties made pursuant to Section
4.03 and the remedies available to the Class B Holder and/or the Company under
Sections 4.04 and 5.01, it being understood and agreed that the provisions of
such Sections 4.04 and 5.01 shall be applicable to the Special Servicer
notwithstanding any such termination of it, or the termination of this
Agreement.
Any successor special servicer shall (i) [be an institution having a
net worth of not less than $1,000,000][meet the eligibility requirements of an
approved servicer under the Company's Servicer Guide], (ii) the appointment of
such successor servicer will not result in the downgrading in any rating by any
applicable rating agency of any security issued in connection with the
applicable Pooling and Servicing Agreements, and (iii) have and keep in full
effect its existence, rights and franchises as a corporation (or such other
corporate form), and shall obtain its qualification to do business as a foreign
corporation (or such other corporate form) 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 Specially Serviced Mortgage Loans
and to perform its duties under this Agreement. Any successor appointed as
provided herein shall execute, acknowledge and deliver to the Class B Holder and
the Company an instrument accepting such appointment, wherein the successor
shall make the representations and warranties set forth in Section 4.03,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Special Servicer,
with like effect as if originally named as a party to this Agreement.
Within 30 days of the appointment of a successor special servicer by
the Class B Holder, the Special Servicer shall prepare, execute and deliver to
the successor entity any and all documents and other instruments, place in such
successor's possession all servicing files related to the Specially Serviced
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 [, including
but not limited to the transfer and endorsement of the related Mortgage Notes
and other documents, and the Class B Holder shall do or cause to be done the
preparation and recordation of Assignments of Mortgage and Deeds at the Class B
Holder's sole expense].
The Special Servicer shall cooperate with the Class B Holder and such
successor in effecting the termination of the Special Servicer's
responsibilities and rights hereunder and the transfer of servicing
responsibilities to the successor special servicer, including without
limitation, the transfer to such successor of all amounts received by it with
respect to the Specially Serviced Mortgage Loans. Further, the Special Servicer
shall execute and deliver such instruments and do such other things as may
reasonably be required to more fully and definitively vest in the successor all
such rights, powers, duties, responsibilities, obligations and liabilities of
the Special Servicer.
ARTICLE III
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DELINQUENT MORTGAGE LOANS OTHER THAN SPECIALLY SERVICED
MORTGAGE LOANS
Section 3.01 Reporting of Delinquent Mortgage Loans.
(a) To the extent and for so long as the Class B Certificates of a
Series are outstanding and any interest in such Class B Certificates is held by
the Class B Holder, the Company, as Master Servicer of the Mortgage Loans
related to each Series, hereby agrees to provide to the Class B Holder the
following notices and reports:
Within three (3) Business Days after each Distribution Date (or
included in or with the monthly statements to Certificateholders pursuant to the
related Pooling and Servicing Agreement), the Company shall provide to the Class
B Holder a report, in tape format, containing the following information:
(1) With respect to each Series, the number and aggregate Principal
Balance of the Mortgage Loans delinquent one, two and three months or more,
together with the Principal Balance of each Mortgage Loan delinquent, one, two
and three months or more;
(2) With respect to each Series, the (i) number and aggregate Principal
Balance of Mortgage Loans with respect to which foreclosure proceedings have
been initiated, and (ii) the number and aggregate book value of Mortgaged
Properties acquired through foreclosure, deed in lieu of foreclosure or other
exercise of rights respecting the Trustee's security interest in the Mortgage
Loans, and with respect to each Mortgage Loan, the (i) Principal Balance of each
such Mortgage Loan with respect to which foreclosure proceedings have been
initiated, and (ii) the book value of each Mortgaged Property acquired through
foreclosure, deed in lieu of foreclosure or other exercise of rights respecting
the Trustee's security interest in the related Mortgage Loan; and
(3) With respect to each Series, the amount of Realized Losses
allocable to the Certificates on the related Distribution Date and the
cumulative amount of Realized Losses allocated to such Certificates since the
Cut-off Date, and with respect to each Mortgage Loan, the amount of Realized
Losses attributable to such Mortgage Loan on the related Distribution Date and
the cumulative amount of Realized Losses attributable to such Mortgage Loan
since the Cut-off Date.
In addition, the Company, as Master Servicer of the Mortgage Loans,
shall send, or shall cause the related servicer to send, to the Class B Holder
all other written reports, documentation, instruments, certificates and
correspondences provided by a servicer under the terms of the Servicer Guide
with respect to any Mortgage Loan that becomes sixty (60) days or more
delinquent.
(b) If requested by the Class B Holder, the Company shall make its
servicing personnel available to respond to reasonable inquiries, by phone or in
writing by facsimile, electronic, or overnight mail transmission, in connection
with any Mortgage Loan identified in any report or
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document provided pursuant to clause (a) above; provided, that the Company shall
only be required to provide information that is reasonably accessible to its
servicing personnel (or its subservicers).
(c) In addition to the information described above, the Company shall
provide to the Class B Holder such information as the Class B Holder may
reasonably request; provided, however, that the Mortgage Loans are Delinquent
Mortgage Loans or the Mortgaged Property has been foreclosed upon. The Class B
Holder will reimburse the Company for any reasonable out-of-pocket expenses
incurred by it in providing such information.
Section 3.02 Servicing of Delinquent Mortgage Loans.
(a) Prior to the Commencement of Foreclosure of any Mortgage Loan, the
Company shall provide, or cause the related servicer to provide, the Class B
Holder with a notice (sent by telecopier) of such proposed and imminent
foreclosure, stating the loan number and the aggregate amount due under the
Mortgage Note.
For purposes of this Agreement, "Commencement of Foreclosure" shall
mean the first official action required under local law in order to commence
foreclosure proceedings or to schedule a trustee's sale under a deed of trust,
including (i) in the case of a mortgage, any filing or service of process
necessary to commence an action to foreclosure, or (ii) in the case of a deed of
trust, posting, the publishing, filing or delivery of a notice of sale, but not
including in either case (x) any notice of default, notice of intent to
foreclose or sell or any other action prerequisite to the actions specified in
(i) or (ii) above, (y) the acceptance of a deed-in-lieu of foreclosure (whether
in connection with a sale of the related property or otherwise) or (z)
initiation and completion of a short pay-off.
(b) In connection with any Delinquent Mortgage Loan with respect to
which a notice under clause (a) above has been delivered to the Class B Holder,
the Class B Holder shall provide the Company with written direction as to the
action to be taken with respect to such Delinquent Mortgage Loan, including,
without limitation, to proceed with foreclosure, to accept a deed-in-lieu of
foreclosure, to consent to a pre-foreclosure sale of Mortgaged Property at a
loss, or, if permitted under the terms of the related Pooling and Servicing
Agreement, to purchase Delinquent Mortgage Loans. Such written direction must be
received by the Company within two (2) Business Days of transmission of the
notice provided by the Company under clause (a) above. Such two (2) Business Day
period shall be extended for no longer than an additional three (3) Business
Days after the receipt of additional information requested if the Class B Holder
requests additional information related to such Delinquent Mortgage Loan;
provided, however that the Class B Holder will have at least one Business Day to
provide written direction after receipt of any requested additional information.
Any such additional information shall be provided only to the extent it is
obtainable by the Company from existing reports, certificates or statements or
otherwise be reasonably accessible to its servicing personnel (or subservicing
personnel). The Company shall as promptly as practicable carry out, or cause the
relevant servicer to carry out, the instruction of the Class B Holder in the
manner prescribed in such written direction. The Class B Holder agrees that it
has no right to negotiate directly with the Mortgagor during such period.
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In the event the Class B Holder fails to provide any written direction
as provided above, the Company may take any such action as would be consistent
with customary servicing practices of prudent mortgage loan servicers and the
Company's normal policies and practice.
(c) With respect to any Delinquent Mortgage Loan for which the Company
has not provided a notice as contemplated in clause (a) above, the Class B
Holder may, at any time, provide the Company with written direction as to the
action to be taken with respect to such Delinquent Mortgage Loan, including,
without limitation, to commence foreclosure proceedings, to accept a
deed-in-lieu of foreclosure, to consent to a sale of Mortgaged Property at a
loss, or, if permitted under the terms of the related Pooling and Servicing
Agreement, to purchase Delinquent Mortgage Loans. To the extent such action is
not inconsistent with the terms of the related Pooling and Servicing Agreement
or the Company's duties thereunder as master servicer, the Company shall as
promptly as practicable carry out, or cause the relevant servicer to carry out,
the instruction of the Class B Holder in the manner prescribed in such written
direction.
(d) Any foreclosure of a Delinquent Mortgage Loan that has been
initiated in accordance with clauses (b) or (c) above may be discontinued if (i)
the Mortgage Loan has been brought current or if a refinancing or prepayment
occurs with respect to the Mortgage Loan (including by means of a short payoff
approved by the Class B Holder), (ii) the Company has agreed to the terms of a
forbearance agreement with the Mortgagor and such forbearance agreement has been
approved by the Class B Holder, or (iii) if and to the extent permitted under
the related Pooling and Servicing Agreement, Class B Holder directs the Company
to purchase such Delinquent Mortgage Loan at the price and on the terms set
forth in the related Pooling and Servicing Agreement.
(e) In the event the Class B Holder directs the Company to purchase a
Delinquent Mortgage Loan as permitted under Sections 2.02 and 3.02 (b), (c) and
(d), the Class B Holder may direct the Company to purchase any Delinquent
Mortgage Loan and to promptly resell such Mortgage Loan to the Class B Holder at
the price and on the terms set forth in the applicable Pooling and Servicing
Agreement. In the event the Class B Holder directs the Company to purchase a
Delinquent Mortgage Loan as permitted under this Section, the Company shall
promptly take all action necessary under the terms of the related Pooling and
Servicing Agreement in order to accomplish such purchase (i.e. provide
notification to the Trustee and/or Custodian) and to resell such Delinquent
Mortgage Loan to the Class B Holder. The Class B Holder, and not the Company,
shall be required to remit the purchase price for such Delinquent Mortgage Loan
to the related Trustee. The Company will inform the Trustee in writing of the
purchase of such Delinquent Mortgage Loan by the Class B Holder and further
shall promptly take all actions necessary or desirable to effect the conveyance
of such Mortgage Loan and the related servicing rights to the Class B Holder or
its designee, time being of the essence. [The parties hereto agree that, in
connection with a purchase of a Delinquent Mortgage Loan as provided above, any
fees resulting from the transfer of the servicing of such purchased Delinquent
Mortgage Loan from the Company or a subservicer to a servicer designated by the
Class B Holder shall be the obligation of the Company.]
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Section 3.03 Review of the Company's Procedures.
The Company and the Class B Holder hereby agree that the Class B Holder
shall have the right, at its own expense and during normal business hours, to
review any and all of the books, records, or other information of the Company
which may be relevant to the Company's direct collection, loss mitigation
foreclosure and REO management procedures currently in place in order to confirm
that the procedures used by the Company and its subservicers are in accordance
with the customary servicing practices of prudent mortgage loan servicers. In
order to discuss such books, records or other information, the Company shall
make personnel available who are knowledgeable about such matters.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Organizational and Other Related Warranties of the Class B
Holder. The Class B Holder hereby makes the following representations and
warranties to the Company and the Special Servicer:
(i) Organization and Good Standing. The Class B Holder is an entity
duly organized, validly existing, and in good standing under the laws of its
state of incorporation or formation or the laws of the United States.
(ii) No Violation. Neither the execution and delivery by the Class B
Holder of this Agreement, nor the consummation by the Class B Holder of the
transactions contemplated hereby, nor the performance of and compliance by the
Class B Holder with the provisions of this Agreement, will conflict with or
result in a breach or violation of, or constitute a default (or an event which,
with notice or the lapse of time, or both, would constitute a default) under,
the organizational documents (its articles of incorporation or charter or
by-laws) of the Class B Holder, or any of the provisions of any law, rule,
regulation, judgment, decree, demand, or order (of any federal, state, or local
governmental or regulatory authority or court) binding on the Class B Holder, or
any of its respective properties, or any of the provisions of any indenture,
mortgage, contract, instrument, or other document to which the Class B Holder is
a party or by which it is bound, or result in the creation or imposition of any
lien, charge, or encumbrance upon any of their respective properties pursuant to
the terms of any indenture, mortgage, contract, instrument, or other document.
The Class B Holder is not otherwise in violation of any law, rule, regulation,
judgment, decree, demand, or order (of any federal, state or local governmental
or regulatory authority or court), which violation, in the Class B Holder's,
good faith and reasonable judgment, is likely to affect materially and adversely
its ability to perform its obligations hereunder.
(iii) Authorization and Enforceability. The execution and delivery by
the Class B Holder of this Agreement, the consummation of the transactions
contemplated hereby, and the performance and compliance by the Class B Holder
with the terms hereof are within the powers of the Class B
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Holder, and have been duly authorized by all necessary action on the part of the
Class B Holder. All organizational resolutions and consents necessary for the
Class B Holder to enter into and consummate all transactions contemplated hereby
have been obtained. This Agreement has been duly executed and delivered by the
Class B Holder and constitutes the legal, valid and binding obligation of the
Class B Holder, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium, and other similar
laws affecting creditors' rights generally, and to general principles of equity,
regardless of whether such enforcement is considered in a proceeding in equity
or at law. The Class B Holder has not failed to obtain any consent, approval,
authorization, or order of, or failed to cause any registration or qualification
with, any court or regulatory authority or other governmental body having
jurisdiction over it, which consent, approval, authorization, order,
registration, or qualification is required for, and the absence of which would
materially adversely affect, the legal and valid execution, delivery, and
performance of this Agreement by the Class B Holder.
(iv) No Litigation or Adverse Conditions. No litigation is pending or,
to the best of the Class B Holder's knowledge, threatened against it, which, if
determined adversely to the Class B Holder would prohibit the Class B Holder
from entering into this Agreement or, in the good faith and reasonable judgment
of the Class B Holder, is likely to materially and adversely affect either the
ability of the Class B Holder to perform its obligations hereunder.
Section 4.02 Organizational and Other Related Warranties of the
Company. The Company hereby makes the following representations and warranties
to the Class B Holder and the Special Servicer:
(i) Organization and Good Standing. The Company is an entity duly
organized, validly existing, and in good standing under the laws of its state of
incorporation or formation or the laws of the United States, and is in
compliance with the laws of each state in which any property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan and to
perform its obligations hereunder and the Pooling and Servicing Agreement.
(ii) No Violation. Neither the execution and delivery by Company of
this Agreement, nor the consummation by it of the transactions contemplated
hereby, nor the performance of and compliance by the Company with the provisions
hereof or of the Pooling and Servicing Agreement, will conflict with or result
in a breach or violation of, or constitute a default (or an event which, with
notice or the lapse of time, or both, would constitute a default) under, the
organizational documents (its articles of incorporation or charter or by-laws)
of the Company, or any of the provisions of any law, rule, regulation, judgment,
decree, demand, or order (of any federal, state, or local governmental or
regulatory authority or court) binding on the Company, or any of its properties,
or any of the provisions of any indenture, mortgage, contract, instrument, or
other document (including, without limitation, any Pooling and Servicing
Agreement) to which the Company is a party or by which it is bound, or result in
the creation or imposition of any lien, charge, or encumbrance upon any of their
respective properties pursuant to the terms of any indenture, mortgage,
contract, instrument, or other document. The Company is not otherwise in
violation of any law, rule, regulation, judgment, decree,
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demand, or order (of any federal, state or local governmental or regulatory
authority or court), which violation, in the Company's good faith and reasonable
judgment, is likely to affect materially and adversely either its ability to
perform its obligations hereunder or under the Pooling and Servicing Agreements,
or the financial condition of the Company.
(iii) Authorization and Enforceability. The execution and delivery by
the Company of this Agreement, the consummation of the transactions contemplated
hereby, and the performance and compliance by the Company with the terms hereof
and of the Pooling and Servicing Agreements are within the powers of the
Company, and have been duly authorized by all necessary action on the part of
the Company. All organizational resolutions and consents necessary for the
Company to enter into and consummate all transactions contemplated hereby have
been obtained. This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, and other similar laws
affecting creditors' rights generally, and to general principles of equity,
regardless of whether such enforcement is considered in a proceeding in equity
or at law. The Company has not failed to obtain any consent, approval,
authorization, or order of, or failed to cause any registration or qualification
with, any court or regulatory authority or other governmental body having
jurisdiction over the Company, which consent, approval, authorization, order,
registration, or qualification is required for, and the absence of which would
materially adversely affect, the legal and valid execution, delivery, and
performance of this Agreement by the Company.
(iv) Approvals and Permits. The Company possesses such certificates,
authorizations, licenses, and permits issued by the appropriate state, federal,
and foreign regulatory agencies or bodies necessary to conduct the business now
operated by it, and the Company has not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization, or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling, or finding, would materially and adversely affect
the conduct of the business, operations, financial condition, or income of the
Company.
(v) No Litigation or Adverse Conditions. No litigation is pending or,
to the best of the Company's knowledge, threatened against it, which, if
determined adversely to the Company would prohibit the Company from entering
into this Agreement or, in the good faith and reasonable judgment of the
Company, is likely to materially and adversely affect either its ability to
perform its obligations hereunder or under the Pooling and Servicing Agreements
or the financial condition of the Company. The Company has no knowledge of any
recent adverse financial condition or event with respect to itself that, in its
good faith and reasonable judgment, is likely to materially and adversely affect
its ability to perform its obligations hereunder or under the Pooling and
Servicing Agreements.
(vi) Fidelity Bond: Errors and Omission Insurance. Each officer,
director, employee, consultant and advisor of the Company with responsibilities
concerning the servicing and administration of the Mortgage Loans is covered by
errors and omissions insurance and fidelity bond
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insurance in the amounts and with the coverage required under the related
Pooling and Servicing Agreement for it to maintain. Neither the Company nor any
of its officers, directors, employees, consultants, or advisors involved in the
servicing or administration of the Mortgage Loans has been refused such coverage
or insurance.
Section 4.03 Organizational and Other Related Warranties of the Special
Servicer. The Special Servicer hereby makes the following representations and
warranties to the Company and the Class B Holder:
(i) Organization and Good Standing. The Special Servicer is an entity
duly organized, validly existing, and in good standing under the laws of its
state of incorporation or formation or the laws of the United States, and is in
compliance with the laws of each state in which any property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan and to
perform its obligations hereunder.
(ii) No Violation. Neither the execution and delivery by Special
Servicer of this Agreement, nor the consummation by it of the transactions
contemplated hereby, nor the performance of and compliance by the Special
Servicer with the provisions hereof , will conflict with or result in a breach
or violation of, or constitute a default (or an event which, with notice or the
lapse of time, or both, would constitute a default) under, the organizational
documents (its articles of incorporation or charter or by-laws) of the Special
Servicer, or any of the provisions of any law, rule, regulation, judgment,
decree, demand, or order (of any federal, state, or local governmental or
regulatory authority or court) binding on the Special Servicer, or any of its
properties, or any of the provisions of any indenture, mortgage, contract,
instrument, or other document to which the Special Servicer is a party or by
which it is bound, or result in the creation or imposition of any lien, charge,
or encumbrance upon any of their respective properties pursuant to the terms of
any indenture, mortgage, contract, instrument, or other document. The Special
Servicer is not otherwise in violation of any law, rule, regulation, judgment,
decree, demand, or order (of any federal, state or local governmental or
regulatory authority or court), which violation, in the Special Servicer's good
faith and reasonable judgment, is likely to affect materially and adversely
either its ability to perform its obligations hereunder, or the financial
condition of the Special Servicer.
(iii) Authorization and Enforceability. The execution and delivery by
the Special Servicer of this Agreement, the consummation of the transactions
contemplated hereby, and the performance and compliance by the Special Servicer
with the terms hereof are within the powers of the Special Servicer, and have
been duly authorized by all necessary action on the part of the Special
Servicer. All organizational resolutions and consents necessary for the Special
Servicer to enter into and consummate all transactions contemplated hereby have
been obtained. This Agreement has been duly executed and delivered by the
Special Servicer and constitutes the legal, valid and binding obligation of the
Special Servicer, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium, and other
similar laws affecting creditors' rights generally, and to general principles of
equity, regardless of whether such enforcement is considered in a proceeding in
equity or at law. The Special Servicer has not failed
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to obtain any consent, approval, authorization, or order of, or failed to cause
any registration or qualification with, any court or regulatory authority or
other governmental body having jurisdiction over the Special Servicer, which
consent, approval, authorization, order, registration, or qualification is
required for, and the absence of which would materially adversely affect, the
legal and valid execution, delivery, and performance of this Agreement by the
Special Servicer.
(iv) Approvals and Permits. The Special Servicer possesses such
certificates, authorizations, licenses, and permits issued by the appropriate
state, federal, and foreign regulatory agencies or bodies necessary to conduct
the business now operated by it, and its has not received any notice of
proceedings relating to the revocation or modification of any such certificate,
authorization, or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling, or finding, would materially and adversely affect
the conduct of the business, operations, financial condition, or income of the
Special Servicer.
(v) No Litigation or Adverse Conditions. No litigation is pending or,
to the best of the Special Servicer's knowledge, threatened against it, which,
if determined adversely to the Special Servicer would prohibit the Special
Servicer from entering into this Agreement or, in the good faith and reasonable
judgment of the Special Servicer, is likely to materially and adversely affect
either its ability to perform its obligations hereunder or the financial
condition of the Special Servicer. The Special Servicer has no knowledge of any
recent adverse financial condition or event with respect to itself that, in its
good faith and reasonable judgment, is likely to materially and adversely affect
its ability to perform its obligations hereunder.
(vi) Fidelity Bond, Errors and Omission Insurance. Each officer,
director, employee, consultant and advisor of the Special Servicer with
responsibilities concerning the servicing and administration of the Mortgage
Loans is covered by errors and omissions insurance and fidelity bond insurance
in the amounts and with the coverage required under the related Pooling and
Servicing Agreement to be maintained by the Company as master servicer. Neither
the Special Servicer nor any of its officers, directors, employees, consultants,
or advisors involved in the servicing or administration of the Mortgage Loans
has been refused such coverage or insurance.
(vii) Approved Seller/Servicer. The Special Servicer is approved as a
seller/servicer of single-family mortgage loans by the Department of Housing and
Urban Development.
Section 4.04 Remedies for Breach of Representation and Warranty.
Upon discovery by any of the Company, the Class B Holder or the Special
Servicer of a breach of any of the representations and warranties contained in
Article IV which materially and adversely affects the value of the Specially
Serviced Mortgage Loans or Delinquent Mortgage Loans, the party discovering such
breach shall give prompt written notice to the others.
Each of the parties hereto shall indemnify the others and hold each of
them harmless against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related
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costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach of
such party's representations and warranties contained in Article IV. It is
understood and agreed that the obligations to indemnify as provided in this
Section 4.04 constitute the sole remedies of each of the Company, Class B Holder
and Special Servicer respecting a breach of any other party's representations
and warranties.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 Indemnification.
Each of the Company, the Class B Holder and the Special Servicer (each
as such, an "Indemnifying Party") shall indemnify the other parties hereto (each
as such, an "Indemnified Party") 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
(individually and collectively, the "Claims") that such Indemnified Party may
sustain in any way related to the failure of the Indemnifying Party to perform
its duties in compliance with the terms of this Agreement; provided, that none
of the Company, the Class B Holder or the Special Servicer or any of the
directors, officers, employees or agents of the Depositor or the Servicer shall
be liable 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 Company, the Class B Holder
or the Special Servicer against any material breach of warranties,
representations or covenants made herein, or against any specific liability
imposed on such party pursuant hereto, or against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder.
Section 5.02 Amendment.
This Agreement may be amended from time to time by written agreement
signed by each of the parties hereto.
Section 5.03 Counterparts.
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 5.04 Governing Law.
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This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section 5.05 Notices.
All demands, notices and direction hereunder shall be in writing or by
telecopy and shall be deemed effective upon receipt to:
(i) in the case of the Company,
Company
Address:___________________
Attention:___________________
Telephone:___________________
Facsimile:___________________
or such other address as may hereafter be furnished to the Class B
Holder and the Special Servicer in writing.
(ii) in the case of the Class B Holder,
Address:___________________
Attention:___________________
Telephone:___________________
Facsimile:___________________
or such other address as may hereafter be furnished to the Company in
writing.
(iii) in the case of the Special Servicer,
Address:___________________
Attention:___________________
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Telephone:___________________
Facsimile:___________________
or such other address as may hereafter be furnished to the Company in
writing.
Section 5.06 Termination.
This Agreement shall terminate (i) at such time as the Principal
Balance of the Class B Certificates has been reduced to zero or (ii) if mutually
agreed to by the parties hereto.
Section 5.07 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be held invalid for any reason whatsoever, 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. If the invalidity of any part, provision, representation or warranty
of this Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate in good faith to
develop a structure the economic effect of which is nearly as possible the same
as the economic effect of this Agreement without regard to such invalidity.
Section 5.08 Successors and Assigns.
This Agreement may not be assigned by any party hereto without the
prior written consent of each of the other parties hereto. The provisions of
this Agreement shall be binding upon and inure to the benefit of the respective
successors and assigns of the parties hereto.
Section 5.09 Article and Section Headings.
The article and section headings herein are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
Section 5.10 Confidentiality.
The Class B Holder agrees that all information supplied by or on behalf
of the Company pursuant to Sections 2.02 or 3.01, including individual account
information, is the property of the Company and the Class B Holder agrees to use
such information only for the purposes contemplated by this Agreement and
otherwise hold such information confidential and not to disclose such
information, except to the extent such information is made publicly available by
or on behalf of the Company or the relevant Trustee.
R-17
Section 5.11 Publicly Registered Certificates.
The Class B Holder agrees, that without the prior written consent of
the Company, so long as Class B Holder is a party to this Agreement and a holder
of any Class B Certificates of a Series, it will not purchase, sell or trade any
publicly registered Certificates of the same Series.
Section 5.12 No Partnership.
Nothing herein shall be deemed or construed to create a partnership or
joint venture between the parties hereto and the services of the Company shall
be rendered as an independent contractor and not as an agent for the Company.
Section 5.13 Rights of the Class B Holder. Notwithstanding anything
herein to the contrary, it is agreed by the parties hereto that the rights of
the Class B Holder set forth under Article II and Section 3.02(e) of this
Agreement shall relate to, and be exercisable with respect to, the related
Mortgage Loans of any Series to the extent that and for so long as, the Class B
Holder owns at least 75% of the most subordinate outstanding class of Class B
Certificates of the related Series (calculated by dividing the then outstanding
Certificate Principal Balance of such Class B Certificates by the then
outstanding Certificate Principal Balance of all certificates of the same
class).
IN WITNESS WHEREOF, each of the parties hereto have caused its name to
be signed hereto by its respective officer thereunto duly authorized, all as of
the day and year first above written.
COMPANY
By: _____________________________
Name: ___________________________
Title: ____________________________
By: _____________________________
Name: ___________________________
Title: __________________________
By: _____________________________
R-18
Name: ___________________________
Title: ____________________________
R-19
SCHEDULE I
Describe each Series of Class B Certificates and the related Pooling
and Servicing Agreement
R-20
SCHEDULE II
SPECIAL SERVICING TRANSFER PROCEDURES
Any transfer of servicing with respect to a Specially Serviced Mortgage
Loan shall be effected substantially in accordance with the following example.
All dates set forth below are for illustrative purposes only. Capitalized terms
used in this Exhibit shall have the meanings ascribed thereto in the Agreement.
Timeline
Last Business Day of Month One
Mortgagor is 89 Days Delinquent.
3rd Business Day of Month Two
The Company receives an electronic file from its Collections Department
on all 90+delinquent loans.
4th Business Day of Month Two
The Company sends the electronic file to Class B Holder/Special
Servicer of all 90+ delinquent loans with information designating those loans
where a forbearance plan or workout is in progress and those loans where there
is no plan in place. The Company and the Special Servicer have a discussion. The
loans to be transferred are determined by the Class B Holder/Special Servicer.
6th Business Day of Month Two
The Special Servicer informs the Company of the loans designated as
Specially Serviced Mortgage Loans. The Company and the Special Servicer
coordinate the transfer of servicing of the Specially Serviced Mortgage Loans.
The Company prepares and mails the mortgagor notification no later than the 13th
calendar day of the month. If a loan reinstates to a current or less than 90
days delinquent status before the mortgagor notification (i.e., the "goodbye
letter") is sent, such loan will be removed from the transfer, and the Company
will notify the Special Servicer thereof. The borrower will be instructed to
send the payment due on the effective date of transfer and any past due payments
to the Special Servicer.
7th Business Day of Month Two
R-21
Relevant Trustee receives monthly electronic data file from the
Company. The subject loan is included in the Company's report as an active loan
serviced by the Company. The Company reports scheduled P&I on the subject loan.
On or prior to 15th Calendar Day of Month Two
The Company sends a foreclosure referral letter to the Special
Servicer's foreclosure counsel with a corresponding foreclosure package.
18th Calendar Day (or Business day immediately preceding the 18th) of
Month Two
The Company makes its monthly remittance, including advancing scheduled
P&I payment due for current month for the subject loan.
Last business Day of Month Two
Month-end cut-off.
1st Business Day of Month Three
Effective Date.
On or Before 3rd Business Day of Month Three
In accordance with the Servicing Transfer Instructions:
Company sends Special Servicer final transfer data (e.g., trial
balance, loan files, current
and previous 2 years' history records (if applicable), all
default-related correspondence, and all collection, foreclosure and bankruptcy
files);
Company provides Special Servicer with detailed reimbursement request
relating to advances; and
Company sends Special Servicer a check or wire for the net escrow and
unapplied funds.
On or before the 6th Business Day of Month Three
In accordance with the Servicing Transfer Instructions, Special Service
reimburses Company for all outstanding advances, and the scheduled mortgage
payment due on the Effective Date.
___________________
R-22
Note:
1. If the loan has been transferred to Special Servicer and it cures,
Special Servicer continues to service the loan and report it to Company as
herein provided.
2. If the Class B Certificates of the related Series are reduced to
zero, Special Servicer will continue to service the mortgage loans until they
payoff or are liquidated. No other Delinquent Mortgage Loans of a Series will be
transferred to Special Servicer after the Class B Certificates of such Series
are reduced to zero.
R-23
Servicing Transfer Instructions
I. NOTIFICATION OF LOANS TO TRANSFER
A. Company will coordinate and provide a listing of all loans past 90
days delinquent. The list will be provided to Special Servicer for review and
discussion on the 4th Business day of each month.
B. Class B Holder and Special Servicer to agree upon the loans to be
transferred at month-end. The list must be provided via Facsimile or E-mail by
the 6th business day of the month to:
[COMPANY]
[Address and contact]
II. CONVERSION DATA
Dependent upon the volume of loans transferring each month, the loans
will be transferred effective the first of each month based on the prior
month-end cut off by one of the following mutually agreed upon conversion
methods.
A. Manual conversion
1. Company to provide a "master file data record" (COMPANY reference
for master file data record?) for each loan (accompanied by a listing of all
code definitions).
2. Company to provide a trial balance containing all the loans.
B. Electronic conversion
1. Information will be provided in a Microsoft Excel spreadsheet (or
such other mutually agreeable format) containing mutually agreed upon fields.
2. Company to provide a trial balance containing all the loans.
Preliminary information for either a manual or electronic conversion
will be provided within 3 business days of receipt of the List of Loans to
Transfer to provide time for Special Servicer to verify and load the
information, with the exception of the specific data that is determined at the
transfer date.
III. HOMEOWNER NOTIFICATION
R-24
A. Company will mail the mortgagor notification (good-bye letter)
fifteen days prior to the transfer date. Company will forward a copy of its
good-bye letter to Special Servicer c/o [Dept.] (fax number ___-___-____) for
approval prior to mailing.
B. Copies of Company's mortgagor notification letters will be provided
to Special Servicer.
C. Company to receive a sample of Special Servicer's mortgagor
notification (welcome letter) for approval prior to mailing.
IV. HAZARD/FLOOD INSURANCE
A. Company to prepare a change to the mortgagee clause as follows:
Address: ___________________
Attention: ___________________
Telephone: ___________________
Facsimile: ___________________
B. Copies of the mortgagee clause change requests will be provided to
Special Servicer.
C. Any unpaid policies, expiration notices, cancellation notices, loans
with expired policies will be properly identified, sorted and marked for special
handling.
D. Company to provide a list of loans under "force place coverage"
program. Force place hazard insurance policies with ASG will be canceled upon
transfer of the loans. WNC force place flood policy coverage will stay in place
after transfer until the expiration date.
V. FHA LOANS
A. Company to provide screen prints to include the following items on
FHA Loans with a monthly premium.
1. Loan number
2. FHA case number
3. Anniversary date
4. Annual premium
R-25
5. Monthly amount
6. Total MIP paid to date
7. Next month the premium is due
B. Company to provide screen prints to include the following items on
FHA loans that the full premium was paid up front.
1. Loan number
2. FHA case number
3. Insuring date
4. Amount of prepaid premium
C. Company to prepare HUD Form 92080 with Special Servicer's HUD
mortgagee number (72313) and forward to HUD electronically. Proof of submission
will be forwarded to Special Servicer.
VI. CONVENTIONAL LOANS
A. Individual loan PMI certificates will be retained in the Servicing
File
B. Company to prepare notifications to the PMI companies requesting a
change of servicer to Special Servicer. Copies will be forwarded to Special
Servicer.
C. Company to provide screen prints of all loans with PMI to include:
1. Loan number
2. PMI company
3. PMI certificate number
4. Next due date
5. Last amount paid
VII. REAL ESTATE TAXES
R-26
A. Company to forward individual loan tax records showing payee, due
dates, frequency of payment, next due date, last paid date and last paid amount.
B Company to provide copies of the notifications to the individual tax
authorities and the Tax Service requests for a change of servicer to Special
Servicer under the following contract numbers (Transamerica-2489 Pinnacle - 119)
C. All property taxes due and payable will be paid prior to the
transfer date.
D. All tax bills received after the transfer date will be forwarded to
Special Servicer for
payment.
E. Company to provide a listing of any loans with delinquent taxes
containing the pertinent information as of the transfer date.
VIII. OPTIONAL INSURANCE
A. Company to provide a list of loans with A&H, life insurance,
accidental death insurance, etc., which will include the following information.
1. Loan number
2. Insurance company
3. Type of coverage
4. Amount of monthly premium
5. Last monthly premium paid
B. Company to provide copies of the master and/or individual policies
for the insurance
coverage.
C. Company to provide copies of the notification sent to the insurance
companies.
IX. INVESTOR REPORTS
A. Company to provide a copy of the final remittance report to the
investor including a trial balance as of cutoff date.
R-27
B. Company to provide ending loan scheduled balance at transfer date.
C. Company to provide a report detailing advanced delinquent net
interest monthly by due date.
D. Company to provide a report detailing advanced delinquent principal
monthly by due date.
X. OTHER
A. Company to provide hardcopies of the last 24 months history for each
loan accompanied by an explanation of transaction codes.
B. Company to provide copies of the last escrow analysis for each loan
with an explanation of analysis method (cushion, etc.).
C. Company to provide the loan servicing file in hardcopy or microfiche
format.
D. Company to provide the currently active collection records and
pertinent information on delinquent loans.
E. Net escrow and unapplied funds as of the transfer date will be sent
to Special Servicer via check or wire within three business days of the
transfer, accompanied by an explanation of
Unapplied Funds codes.
F. The advances (exclusive of escrow advances, which will be handled in
Section X (E) above) incurred by Company will be billed to Special Servicer
accompanied by appropriate documentation. Special Servicer to reimburse Company
via check or wire for all advances (exclusive of escrow advances, which will be
handled in Section X (E) above) on the subject loans within three business days
of receipt of billing.
G. Company to provide a listing containing the mortgagor name,
co-mortgagor name, property address and mailing address for preparation of
Special Servicer's Notification Letters.
H. Company to provide the following items, sorted and clearly marked
for special handling.
1. Active foreclosure and bankruptcy files should have the status shown
on the front of each file.
2. Insurance loss drafts should provide all documentation on the
current status.
R-28
3. Unprocessed payoff funds should be accompanied by a copy of the
payoff quotation.
4. Information should be furnished on any pending payoff or assumption.
5. Information on any incomplete partial releases should be provided.
I. Loan payments received after the cutoff will be endorsed to
__________ and forwarded by overnight service to the following address within
twenty-four hours, properly identified with Company's loan number.
[Address]
Returned Items received after the transfer date will be forwarded to
Special Servicer for reimbursement. Special Servicer to reimburse
Company within 10 business days of receipt.
J. Company to ship all loan files and documentation related to the
individual transfers by the 3rd business day after the cut-off. Any information,
such as preliminary trial balances, master file data records, delinquency
information, etc. will be furnished as early as possible prior to the transfer
date.
All shipments to be sent to:
[Address]
K. Company to furnish all required IRS reporting statements for the
current year up to the transfer date, both to the mortgagors and to the
appropriate government agencies. Special Servicer to furnish all required
year-end reporting commencing on the effective date of transfer through the
year-end.
R-29
EXHIBIT A to Schedule II
LOAN INFORMATION TO BE PROVIDED TO COMPANY
R-30
EXHIBIT S
---------
FORM OF FORM 10-K CERTIFICATE
I, [identify the certifying individual], certify that:
1. I have reviewed the annual report on Form 10-K for the fiscal year
[___], and all reports on Form 8-K containing distribution or servicing reports
filed in respect of periods included in the year covered by that annual report,
of the trust (the "Trust") created pursuant to the Pooling and Servicing
Agreement dated September 1, 2003 (the "P&S Agreement") among ABN AMRO Mortgage
Corporation (the "Depositor"), Washington Mutual Mortgage Securities Corp. (the
"Servicer") and [Name of Trustee] (the "Trustee");
2. Based on my knowledge, the information in these reports, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required to be
provided to the Trustee by the Servicer under the P&S Agreement for inclusion in
these reports is included in these reports;
4. I am responsible for reviewing the activities performed by the
Servicer under the P&S Agreement and based upon my knowledge and the annual
compliance review required under the P&S Agreement, and except as disclosed in
the reports, the Servicer has fulfilled its obligations under the P&S Agreement;
and
5. The reports disclose all significant deficiencies relating to the
Servicer's compliance with the minimum servicing standards based upon the report
provided by an independent public accountant, after conducting a review in
compliance with the Uniform Single Attestation Program for Mortgage Bankers as
set forth in the P&S Agreement, that is included in these reports.
Date:____________
_________________________________*
[Signature]
Name:
Title:
* - to be signed by the senior officer in charge of the servicing functions of
the Servicer.
S-1
EXHIBIT T
---------
FORM OF BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE
The undersigned, [U.S. Bank National Association, solely in its
capacity as trustee (the "Trustee")] [ABN AMRO Mortgage Corporation as depositor
(the "Depositor")] under that certain Pooling and Servicing Agreement dated as
of September 1, 2003 ( the "Agreement") among ABN AMRO Mortgage Corporation,
Washington Mutual Securities Corp. and U.S. Bank National Association, certifies
that,
1. At the specific request of the Servicer pursuant to Section
4.2(c) of the Agreement ("Servicer's Request"), the
[Depositor] [Trustee] has provided to the Servicer [describe
report or other information being provided] (the
"Information"), a copy of which Servicer's Request and
Information is attached hereto.
2. Subject to paragraph 3 below and based on the knowledge of the
officer of the [Depositor] [Trustee] signing this
certification, the Information provided by the [Depositor]
[Trustee] pursuant to the Servicer's Request, taken as a
whole, accurately sets forth the information in the
[Depositor's] [Trustee's] possession that has been
specifically requested by the Servicer and does not contain
any untrue statement of a material fact or omit to state a
material fact necessary to make the Information provided not a
misleading response to the Servicer's Request as of the last
day of the period covered by the annual report to be prepared
by the Servicer [for fiscal year ______] in accordance with
Section 4.2(c) of the Agreement.
3. In compiling the Information and making the foregoing
certifications, the [Depositor] [Trustee] has relied upon
information provided to the [Depositor] [Trustee] by the
Servicer, the [Depositor] [Trustee] and third parties, as
applicable. The [Depositor] [Trustee] shall have no
responsibility or liability for any inaccuracy in the
Information provided resulting from information so provided to
it by the Servicer, the [Depositor] [Trustee] or any other
third party, as applicable.
4. For purposes of this certificate, an officer shall mean any
officer of the [Depositor] [Trustee] with direct
responsibility for the administration of the Agreement [and
shall also mean, with respect to a particular corporate trust
matter,] any other officer to whom such matter is referred
because of his or her knowledge and familiarity with the
particular subject.
Capitalized terms used and not defined herein shall have the meanings
given such terms in the Agreement.
T-1
IN WITNESS THEREOF, I have duly executed this certificate as of
____________, 20___
[U.S. Bank National Association, as Trustee] [ABN AMRO Mortgage Corporation,
as Depositor]
By: _____________________________
Name: ___________________________
Title: __________________________
T-2
