EXHIBIT 99.1
Exhibit 99.1
EXECUTION COPY
X.X. XXXXXX ACCEPTANCE CORPORATION I
Depositor
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
Master Servicer and Securities Administrator
and
WACHOVIA BANK, NATIONAL ASSOCIATION
Trustee
---------------------------
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2003
---------------------------
X.X. XXXXXX MORTGAGE TRUST 2003-A1
MORTGAGE PASS-THROUGH CERTIFICATES
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.............................................................................................1
Section 1.01 Definitions.....................................................................................1
Section 1.02 Calculations Respecting Mortgage Loans.........................................................32
ARTICLE II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES........................................................32
Section 2.01 Creation and Declaration of Trust Fund; Conveyance of Mortgage Loans...........................32
Section 2.02 Acceptance of Trust Fund by Trustee; Review of Documentation for Trust Fund....................35
Section 2.03 Representations and Warranties of the Depositor................................................36
Section 2.04 Representations and Warranties of the Depositor as to the Mortgage Loans.......................38
Section 2.05 Discovery of Breach; Repurchase or Substitution of Mortgage Loans..............................39
Section 2.06 Grant Clause...................................................................................41
ARTICLE III THE CERTIFICATES.....................................................................................42
Section 3.01 The Certificates...............................................................................42
Section 3.02 Registration...................................................................................43
Section 3.03 Transfer and Exchange of Certificates..........................................................44
Section 3.04 Cancellation of Certificates...................................................................47
Section 3.05 Replacement of Certificates....................................................................47
Section 3.06 Persons Deemed Owners..........................................................................48
Section 3.07 Temporary Certificates.........................................................................48
Section 3.08 Appointment of Paying Agent....................................................................48
Section 3.09 Book-Entry Certificates........................................................................49
ARTICLE IV ADMINISTRATION OF THE TRUST FUND......................................................................50
Section 4.01 Custodial Accounts; Distribution Account.......................................................50
Section 4.02 [Reserved].....................................................................................51
Section 4.03 [Reserved].....................................................................................51
Section 4.04 Reports to Trustee and Certificateholders......................................................51
ARTICLE V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES...............................................................54
Section 5.01 Distributions Generally........................................................................54
Section 5.02 Distributions from the Distribution Account....................................................54
Section 5.03 Allocation of Losses...........................................................................58
Section 5.04 Advances by Master Servicer....................................................................59
Section 5.05 Compensating Interest Payments.................................................................59
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ARTICLE VI CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT............................60
Section 6.01 Duties of Trustee and the Securities Administrator.............................................60
Section 6.02 Certain Matters Affecting the Trustee and the Securities Administrator.........................63
Section 6.03 Trustee and Securities Administrator Not Liable for Certificates...............................64
Section 6.04 Trustee and the Securities Administrator May Own Certificates..................................64
Section 6.05 Eligibility Requirements for Trustee...........................................................65
Section 6.06 Resignation and Removal of Trustee and the Securities Administrator............................65
Section 6.07 Successor Trustee and Successor Securities Administrator.......................................66
Section 6.08 Merger or Consolidation of Trustee or the Securities Administrator.............................67
Section 6.09 Appointment of Co-Trustee, Separate Trustee or Custodian.......................................67
Section 6.10 Authenticating Agents..........................................................................68
Section 6.11 Indemnification of the Trustee and the Securities Administrator................................69
Section 6.12 Fees and Expenses of Securities Administrator and the Trustee..................................70
Section 6.13 Collection of Monies...........................................................................70
Section 6.14 Events of Default; Trustee To Act; Appointment of Successor....................................70
Section 6.15 Additional Remedies of Trustee Upon Event of Default...........................................74
Section 6.16 Waiver of Defaults.............................................................................74
Section 6.17 Notification to Holders........................................................................74
Section 6.18 Directions by Certificateholders and Duties of Trustee During Event of Default.................75
Section 6.19 Action Upon Certain Failures of the Master Servicer and Upon Event of Default..................75
Section 6.20 Preparation of Tax Returns and Other Reports...................................................75
ARTICLE VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST FUND.........................................77
Section 7.01 Purchase of Mortgage Loans; Termination of Trust Fund Upon Purchase
or Liquidation of All Mortgage Loans...........................................................77
Section 7.02 Procedure Upon Redemption Termination of Trust Fund............................................77
Section 7.03 Additional Trust Fund Termination Requirements.................................................78
ARTICLE VIII RIGHTS OF CERTIFICATEHOLDERS........................................................................79
Section 8.01 Limitation on Rights of Holders................................................................79
Section 8.02 Access to List of Holders......................................................................80
Section 8.03 Acts of Holders of Certificates................................................................81
ARTICLE IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER.................................82
Section 9.01 Duties of the Master Servicer; Enforcement of Servicer's and Master Servicer's Obligations.....82
Section 9.02 Assumption of Master Servicing by Trustee......................................................83
Section 9.03 Representations and Warranties of the Master Servicer..........................................84
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Section 9.04 Compensation to the Master Servicer............................................................86
Section 9.05 Merger or Consolidation........................................................................86
Section 9.06 Resignation of Master Servicer.................................................................86
Section 9.07 Assignment or Delegation of Duties by the Master Servicer......................................87
Section 9.08 Limitation on Liability of the Master Servicer and Others......................................87
Section 9.09 Indemnification; Third-Party Claims............................................................88
ARTICLE X REMIC ADMINISTRATION...................................................................................88
Section 10.01 REMIC Administration...........................................................................88
Section 10.02 Prohibited Transactions and Activities.........................................................90
Section 10.03 Indemnification with Respect to Prohibited Transactions or Loss of REMIC Status................91
Section 10.04 REO Property...................................................................................91
Section 10.05 Fidelity.......................................................................................92
ARTICLE XI MISCELLANEOUS PROVISIONS..............................................................................92
Section 11.01 Binding Nature of Agreement; Assignment........................................................92
Section 11.02 Entire Agreement...............................................................................92
Section 11.03 Amendment......................................................................................92
Section 11.04 Voting Rights..................................................................................93
Section 11.05 Provision of Information.......................................................................94
Section 11.06 Governing Law..................................................................................94
Section 11.07 Notices........................................................................................94
Section 11.08 Severability of Provisions.....................................................................95
Section 11.09 Indulgences; No Waivers........................................................................95
Section 11.10 Headings Not To Affect Interpretation..........................................................95
Section 11.11 Benefits of Agreement..........................................................................95
Section 11.12 Special Notices to the Rating Agencies.........................................................95
Section 11.13 Conflicts......................................................................................97
Section 11.14 Counterparts...................................................................................97
Section 11.15 No Petitions...................................................................................97
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ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B Form of Residual Certificate Transfer Affidavit (Transferee)
Exhibit C Form of Residual Certificate Transfer Affidavit (Transferor)
Exhibit D [Reserved]
Exhibit E List of Purchase and Servicing Agreements
Exhibit F [Reserved]
Exhibit G List of Limited Purpose Surety Bonds
Exhibit H Form of Rule 144A Transfer Certificate
Exhibit I Form of Purchaser's Letter for Institutional Accredited Investors
Exhibit J Form of ERISA Transfer Affidavit
Exhibit K Form of Letter of Representations with the Depository Trust Company
Exhibit L [Reserved]
Exhibit M [Reserved]
Schedule A Mortgage Loan Schedule
iv
This POOLING AND SERVICING AGREEMENT, dated as of October 1, 2003 (the
"Agreement"), by and among X.X. XXXXXX ACCEPTANCE CORPORATION I, a Delaware
corporation, as depositor (the "Depositor"), WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, as trustee (the "Trustee"), and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, in its dual capacities as
master servicer (the "Master Servicer") and securities administrator (the
"Securities Administrator"), and acknowledged by X.X. XXXXXX MORTGAGE
ACQUISITION CORP., a Delaware corporation, as seller (the "Seller"), for
purposes of Section 2.05.
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from the Seller and at the
Closing Date is the owner of the Mortgage Loans and the other property being
conveyed by the Depositor to the Trustee hereunder for inclusion in the Trust
Fund. On the Closing Date, the Depositor will acquire the Certificates from
the Trustee as consideration for the Depositor's transfer to the Trust Fund of
the Mortgage Loans and the other property constituting the Trust Fund. The
Depositor has duly authorized the execution and delivery of this Agreement to
provide for the conveyance to the Trustee of the Mortgage Loans and the other
property constituting the Trust Fund. All covenants and agreements made by the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
herein, with respect to the Mortgage 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, the Trustee, the Master Servicer and the
Securities Administrator are entering into this Agreement, and the Trustee is
accepting the Trust Fund created hereby, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged.
As provided herein, the Trustee shall elect that the Trust Fund
(exclusive of the Additional Collateral) be treated for federal income tax
purposes as comprising three real estate mortgage investment conduits (each, a
"REMIC" or, in the alternative, the "Lower-Tier REMIC" and the "Upper-Tier
REMIC"). Each Certificate, other than the Class A-R Certificate, will
represent ownership of one or more regular interests in the Upper-Tier REMIC
for purposes of the REMIC Provisions. The Class A-R represents ownership of
the sole class of residual interest in each REMIC created hereunder. The
Upper-Tier REMIC will hold as assets the several classes of uncertificated
Middle-Tier REMIC Interests (other than the Class MT-R Interest). The Middle
-Tier REMIC will hold as assets the several classes of uncertificated Lower
Tier REMIC Interests (other than the Class LT-R Interest). The Lower-Tier
REMIC will hold as assets all property of the Trust Fund other than the
Additional Collateral. Each Middle -Tier REMIC Interest (other than the Class
MT-R Interest) is hereby designated as a regular interest in the Middle-Tier
REMIC. Each Lower-Tier REMIC Interest (other than the Class LT-R Interest) is
hereby designated as a regular interest in the Lower-Tier REMIC. The latest
possible maturity date of all REMIC regular interests created in this
Agreement shall be the Latest Possible Maturity Date.
v
The Lower-Tier REMIC (REMIC 1)
The Lower Tier REMIC Regular Interests will have the initial Class Principal
Amounts, pass-through rates and Corresponding Mortgage Pools as set forth in
the following table:
Initial Principal Corresponding
REMIC 1 Interests Amount Pass-Through Rate Mortgage Pool
A-1 (0.9% of SP Group 1) (1) (2) 1
B-1 (0.1% of SP Group 1) (1) (2) 1
C-1 (Excess of Group 1) (1) (2) 1
A-2 (0.9% of SP Group 2) (1) (2) 2
B-2 (0.1% of SP Group 2) (1) (2) 2
C-2 (Excess of Group 2) (1) (2) 2
A-3 (0.9% of SP Group 3) (1) (2) 3
B-3 (0.1% of SP Group 3) (1) (2) 3
C-3 (Excess of Group 3) (1) (2) 3
A-4 (0.9% of SP Group 4) (1) (2) 4
B-4 (0.1% of SP Group 4) (1) (2) 4
C-4 (Excess of Group 4) (1) (2) 4
R-1 (3) (3) N/A
---------------
(1) Each Class A Interest will have a principal balance initially equal to
0.9% of the Pool Subordinated Amount ("SP") of its corresponding Mortgage
Pool. Each Class B Interest will have a principal balance initially equal to
0.1% of the Pool Subordinated Amount of its corresponding Mortgage Pool. The
initial principal balance of each Class C Interest will equal the excess of
the initial aggregate principal balance of its corresponding Mortgage Pool
over the initial aggregate principal balances of the Class A and Class B
Interests corresponding to such Mortgage Pool.
(2) A Rate equal to the weighted average of the Net Mortgage Rates of the
Mortgage Loans of the corresponding Mortgage Pool.
(3) The Class R-1 Interest is the sole class of residual interest in REMIC 1.
It has no principal balance and pays no principal or interest.
On each Distribution Date, the Available Funds shall be distributed with
respect to the REMIC 1 Interests in the following manner:
(1) Interest. Interest is to be distributed with respect to each REMIC 1
Interest at the rate, or according to the formulas, described above;
(2) Principal if no Cross-Over Situation Exists. If no Cross-Over Situation
exists with respect to any Class of Interests, then Principal Amounts arising
with respect to each Mortgage Pool will be allocated: first to cause the
Mortgage Pool's corresponding Class A and Class B to equal, respectively, 0.9%
of the Pool Subordinated Amount ("SP") and 0.1% of the SP; and second to the
Mortgage Pool's corresponding Class C Interest;
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(3) Principal if a Cross-Over Situation Exists. If a Cross-Over Situation
exists with respect to the Class A and Class B Interests then:
(a) if the Calculation Rate in respect of the outstanding Class A and Class B
Interests is less than the Subordinate Net WAC, Principal Relocation Payments
will be made proportionately to the outstanding Class A Interests prior to any
other Principal Distributions from each such Mortgage Pool; and
(b) if the Calculation Rate in respect of the outstanding Class A and Class B
Interests is greater than the Subordinate Net WAC, Principal Relocation
Payments will be made proportionately to the outstanding Class B Interests
prior to any other Principal Distributions from each such Mortgage Pool.
In each case, Principal Relocation Payments will be made so as to cause the
Calculation Rate in respect of the outstanding Class A and Class B Interests
to equal the Subordinate Net WAC. With respect to each Mortgage Pool, if (and
to the extent that) the sum of (a) the principal payments comprising the
Principal Remittance Amount received during the Due Period and (b) the
Realized Losses, are insufficient to make the necessary reductions of
principal on the Class A and Class B Interests, then interest will be added to
the Mortgage Pool's other Interests that are not receiving Principal
Relocation Payments, in proportion to their principal balances.
(c) The outstanding aggregate Class A and Class B Interests for all Mortgage
Pools will not be reduced below 1 percent of the excess of (i) the aggregate
outstanding Class Principal Amounts of all Mortgage Pools as of the end of any
Due Period over (ii) the Senior Certificates for all Mortgage Pools as of the
related Distribution Date (after taking into account distributions of
principal on such Distribution Date).
If (and to the extent that) the limitation in paragraph (c) prevents the
distribution of principal to the Class A and Class B Interests of a Mortgage
Pool, and if the Mortgage Pool's Class C Interest has already been reduced to
zero, then the excess principal from that Mortgage Pool will be paid to the
Class C Interests of the other Mortgage Pool, the aggregate Class A and Class
B Interests of which are less than one percent of the Pool Subordinated
Amount. If the Mortgage Pool of the Class C Interest that receives such
payment has a weighted average Net Mortgage Rate below the weighted average
Net Mortgage Rate of the Mortgage Pool making the payment, then the payment
will be treated by the Lower-Tier REMIC as a Realized Loss. Conversely, if the
Mortgage Pool of the Class C Interest that receives such payment has a
weighted average Net Mortgage Rate above the weighted average Net Mortgage
Rate of the Mortgage Pool making the payment, then the payment will be treated
by the Lower-Tier REMIC as a reimbursement for prior Realized Losses.
vii
The Middle-Tier REMIC (REMIC 2)
The Middle-Tier REMIC Regular Interests will have the initial Class Principal
Amounts, pass-through rates and Corresponding Certificate Classes as set forth
in the following table:
Initial Principal Corresponding
REMIC 1 Interests Amount Pass-Through Rate Certificates
MT-1-A-1 (1) (2) 1-A-1
MT-1-AR (1) (2) 1-AR
MT-2-A-1 (1) (3) 2-A-1
MT-3-A-1 (1) (4) 3-A-1
MT-4-A-1 (1) (5) 4-A-1, 4-A-6
MT-4-A-2 (1) (5) 4-A-2, 4-A-6
MT-4-A-3 (1) (5) 4-A-3
MT-4-A-4 (1) (5) 4-A-4
MT-4-A-5 (1) (5) 4-A-5
MT-B-1 (1) (6) B-1
MT-B-2 (1) (6) B-2
MT-B-3 (1) (6) B-3
MT-B-4 (1) (6) B-4
MT-B-5 (1) (6) B-5
MT-B-6 (1) (6) B-6
R-2 (7) (7) N/A
---------------
(1) Each Middle-Tier REMIC Interest will have an initial principal balance
equal to the principal balance of its Corresponding Certificates (excluding
the Class 4-A-6 Certificates in the case of the Class MT-4-A-1 Interest and
Class MT-4-A-2 Interest, respectively.
(2) Pool 1 Net WAC.
(3) Pool 2 Net WAC.
(4) Pool 3 Net WAC.
(5) Pool 4 Net WAC.
(6) Subordinate Net WAC. For federal income tax purposes, the pass through
rate will be the Calculation Rate.
(7) The Class R-2 Interest is the sole class of residual interest in REMIC 2.
It has no principal balance and pays no principal or interest.
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The Certificates and the Upper-Tier REMIC
The following table sets forth (or describes) the Class designation,
Certificate Interest Rate, initial Class Principal Amount (or initial Class
Notional Amount) and minimum denomination for each Class of Certificates
comprising interests in the Trust Fund created hereunder.
Initial Class
Principal Amount or Minimum
Certificate Class Notional Denominations or
Class Designation Interest Rate Amount Percentage Interest
---------------------- ----------------- --------------------- ---------------------
Class 1-A-1 (1) $ 116,037,000 $ 25,000.00
Class 2-A-1 (2) $ 39,532,600 $ 25,000.00
Class 3-A-1 (3) $ 13,594,600 $ 25,000.00
Class 4-A-1 (4) $ 18,787,600 $ 25,000.00
Class 4-A-2 (5) $ 30,000,000 $ 25,000.00
Class 4-A-3 (6) $ 20,262,100 $ 25,000.00
Class 4-A-4 (6) $ 21,700,000 $ 25,000.00
Class 4-A-5 (6) $ 2,440,100 $ 25,000.00
Class 4-A-6 (7) (7) $ 25,000.00
Class A-R (1) $ 100 100%
Class B-1 (8) $ 3,505,700 $ 25,000.00
Class B-2 (8) $ 1,482,900 $ 25,000.00
Class B-3 (8) $ 943,700 $ 25,000.00
Class B-4 (8) $ 539,200 $ 100,000.00
Class B-5 (8) $ 404,400 $ 100,000.00
Class B-6 (8) $ 404,761 $ 100,000.00
---------------
(1) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) for the Class 1-A-1 and Class A-R
Certificates will equal the Pool 1 Net WAC.
(2) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) for the Class 2-A-1 Certificates will be the
Pool 2 Net WAC.
(3) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) for the Class 3-A-1 Certificates will be the
Pool 3 Net WAC.
(4) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) for the Class 4-A-1 Certificates will equal
the lesser of 1.825% and the Pool 4 Net WAC.
(5) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) for the Class 4-A-2 Certificates will equal
the lesser of 4.50% and the Pool 4 Net WAC.
(6) The Certificate Interest Rate with respect to any Distribution Date (and
the related Accrual Period) for the Class 4-A-3, Class 4-A-4 and Class
4-A-5 Certificates will be the Pool 4 Net WAC.
(7) The Class 4-A-6 Certificate will not have a principal balance, and will
have a notional balance equal to the principal balance of the Class 4-A-1
and Class 4-A-2 Certificates. The initial Class Notional Amount of the
Class 4-A-6 Certificates will be $48,787,600. The Certificate Interest
Rate with respect to any Distribution Date (and the related Accrual
Period) for the Class 4-A-6 Certificates will equal difference between
the Pool 4 Net WAC minus the weighted average rate of the Class 4-A-1 and
Class 4-A-2 Certificates.
ix
(8) The Certificate Interest Rates with respect to any Distribution Date (and
the related Accrual Period) for the Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 and Class B-6 Certificates will be equal to the
Subordinate Net WAC.
As of the Cut-off Date, the Mortgage Loans had an Aggregate Stated
Principal Balance of $269,634,762.
The foregoing REMIC structure is intended to cause all of the cash from
the Mortgage Loans to flow through to the Upper-Tier REMIC as cash flow on a
REMIC regular interest, without creating any shortfall--actual or potential
(other than for credit losses) to any REMIC regular interest. To the extent
that the structure is believed to diverge from such intention the Trustee will
resolve ambiguities to accomplish such result and will to the extent necessary
rectify any drafting errors or seek clarification to the structure without
Certificateholder approval (but with guidance of Counsel) to accomplish such
intention.
x
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
The following words and phrases, unless the context otherwise requires,
shall have the following meanings:
Accountant: A Person engaged in the practice of accounting who (except
when this Agreement provides that an Accountant must be Independent) may be
employed by or affiliated with the Depositor or an Affiliate of the Depositor.
Accrual Period: With respect to any Distribution Date and any Class of
Certificates, other than the Class 4-A-1 Certificates, the calendar month
preceding the month in which the Distribution Date occurs. With respect to any
Distribution Date and the Class 4-A-1 Certificates, the one month period
commencing on the 25th day of the month preceding the month in which such
Distribution Date occurs (other than the first Distribution Date, for which it
is the Closing Date) and ending on the 24th day of the month in which such
Distribution Date occurs. Interest shall accrue on all Classes of Certificates
and on all Lower-Tier Interests and Middle-Tier Interests on the basis of a
360-day year consisting of twelve 30-day months.
Acknowledgement: The Assignment, Assumption and Recognition Agreement,
dated October 1, 2003, assigning rights under the Purchase and Servicing
Agreement from the Seller to the Depositor and from the Depositor to the
Trustee, for the benefit of the Certificateholders.
Act: The Securities Act of 1933, as amended.
Additional Collateral: With respect to any Additional Collateral Mortgage
Loan, the marketable securities and other acceptable collateral pledged as
collateral pursuant to the related pledge agreements.
Additional Collateral Mortgage Loan: Each Mortgage Loan identified as
such in the Mortgage Loan Schedule.
Adjustment Date: As to any Mortgage Loan, the date on which the related
Mortgage Rate adjusts in accordance with the terms of the related Mortgage
Note.
Advance: With respect to a Mortgage Loan, the payments required to be
made by the Master Servicer or the Servicer with respect to any Distribution
Date pursuant to this Agreement or the Purchase and Servicing Agreement, as
applicable, the amount of any such payment being equal to the aggregate of the
payments of principal and interest (net of the Servicing Fee, in the case of
the Servicer, or the Master Servicing Fee and the Servicing Fee, in the case
of the Master Servicer, and net of any net income in the case of any REO
Property) on the Mortgage Loans that were due on the related Due Date and not
received as of the close of business on the related
1
Determination Date, less the aggregate amount of any such delinquent payments
that the Master Servicer or the Servicer have determined would constitute
Nonrecoverable Advances if advanced.
Adverse REMIC Event: Either (i) loss of status as a REMIC, within the
meaning of Section 860D of the Code, for any group of assets identified as a
REMIC in the Preliminary Statement to this Agreement, or (ii) imposition of
any tax, including the tax imposed under Section 860F(a)(1) on prohibited
transactions, and the tax imposed under Section 860G(d) on certain
contributions to a REMIC, on any REMIC created hereunder to the extent such
tax would be payable from assets held as part of the Trust Fund.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Aggregate Expense Rate: With respect to any Mortgage Loan, the sum of the
Master Servicing Fee Rate and the Servicing Fee Rate.
Aggregate Senior Percentage: As to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate of the Class
Principal Amounts of the Class 1-A-1, Class 2-A-1, Class 3-A-1, Class 4-A-1,
Class 4-A-2, Class 4-A-3, Class 4-A-4, Class 4-A-5 and Class A-R Certificates
and the denominator of which is the Aggregate Stated Principal Balance for
such date, but in no event greater than 100%.
Aggregate Subordinate Percentage: As to any Distribution Date, the
difference between 100% and the Aggregate Senior Percentage for such
Distribution Date, but in no event less than zero.
Aggregate Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances for all Mortgage Loans (and when
such term is used with respect to a particular Mortgage Pool, the aggregate of
the Stated Principal Balances of the Mortgage Loans in such Mortgage Pool)
which were outstanding on the Due Date in the month preceding the month of
such Distribution Date.
Aggregate Voting Interests: The aggregate of the Voting Interests of all
the Certificates under this Agreement.
Agreement: This Pooling and Servicing Agreement and all amendments and
supplements hereto.
Allocable Share: With respect to each Class of Subordinated Certificates
and any Distribution Date, the percentage equivalent of a fraction, the
numerator of which is the Class Principal Amount of such Class and the
denominator of which is the aggregate of the Class Principal Amounts of each
Class of Subordinate Certificates.
2
Applicable Credit Support Percentage: As to any Class of Subordinate
Certificates and any Distribution Date, the sum of the related Class
Subordination Percentage of such Class and of all Classes of Subordinate
Certificates that rank lower in priority than such Class.
Apportioned Principal Balance: As to any Distribution and each Class of
Subordinate Certificates, the Class Principal Amount thereof multiplied by a
fraction, the numerator of which is the applicable Pool Subordinate Amount
(i.e., the Pool 1 Subordinate Amount, the Pool 2 Subordinate Amount, the Pool
3 Subordinate Amount or the Pool 4 Subordinate Amount, as the case may
require), and the denominator of which is the sum of the Pool Subordinate
Amounts, in each case, on such date.
Appraised Value: With respect to any Mortgage Loan, the Appraised Value
of the related Mortgaged Property shall be: (i) with respect to a Mortgage
Loan other than a Refinancing Mortgage Loan, the lesser of (a) the value of
the Mortgaged Property based upon the appraisal made at the time of the
origination of such Mortgage Loan and (b) the sales price of the Mortgaged
Property at the time of the origination of such Mortgage Loan; and (ii) with
respect to a Refinancing Mortgage Loan, the value of the Mortgaged Property
based upon the appraisal made at the time of the origination of such
Refinancing Mortgage Loan.
Assignment: The Assignment dated as of October 1, 2003 between the Seller
and the Custodian, pursuant to which the Seller assigns to the Trustee all of
its right, title and interest under the Custodial Agreement to the extent
relating to certain specified mortgage loans.
Assignment of Mortgage: An assignment of the Mortgage, notice of transfer
or equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect the
sale of the Mortgage to the Trustee, which assignment, notice of transfer or
equivalent instrument may be in the form of one or more blanket assignments
covering the Mortgage Loans secured by Mortgaged Properties located in the
same jurisdiction, if permitted by law; provided, however, that the Trustee
shall not be responsible for determining whether any such assignment is in
recordable form.
Assignment of Proprietary Lease: With respect to a Cooperative Mortgage
Loan, an assignment of the Proprietary Lease sufficient under the laws of the
jurisdiction wherein the related Cooperative Unit is located to reflect the
assignment of such Proprietary Lease.
Assignment of Recognition Agreement: With respect to a Cooperative
Mortgage Loan, an assignment of the Recognition Agreement sufficient under the
laws of the jurisdiction wherein the related Cooperative Unit is located to
reflect the assignment of such Recognition Agreement.
Authenticating Agent: Any authenticating agent appointed by the Trustee
pursuant to Section 6.10 until any successor authenticating agent for the
Certificates is named, and thereafter "Authenticating Agent" shall mean any
such successor. The Authenticating Agent shall be Xxxxx Fargo Bank Minnesota,
National Association for so long as it is acting as Securities Administrator
under this Agreement.
Authorized Officer: Any Person who may execute an Officer's Certificate
on behalf of the Depositor.
3
Available Distribution Amount: With respect to any Distribution Date and
each Mortgage Pool, the total amount of all cash received by the Master
Servicer on the Mortgage Loans in such Mortgage Pool from the Servicer or
otherwise through the Distribution Account Deposit Date for deposit into the
Distribution Account in respect of such Distribution Date, including (1) all
scheduled installments of interest (net of the Servicing Fees and Master
Servicing Fees) and principal collected on the related Mortgage Loans and due
during the Due Period related to such Distribution Date, together with any
Advances in respect thereof, (2) all Insurance Proceeds, Liquidation Proceeds
and the proceeds of any Additional Collateral from the related Mortgage Loans,
in each case for such Distribution Date, (3) all partial or full Principal
Prepayments, together with any accrued interest thereon, identified as having
been received from the related Mortgage Loans during the related Prepayment
Period, (4) any amounts paid by the Master Servicer and/or received from the
Servicer in respect of Prepayment Interest Shortfalls with respect to the
related Mortgage Loans; and (5) the aggregate Purchase Price of all Defective
Mortgage Loans in such Mortgage Pool purchased from the Trust Fund during the
related Prepayment Period, minus:
(A) all related fees, charges and other amounts payable or
reimbursable to the Master Servicer, the Securities Administrator,
the Custodian or the Trustee under this Agreement or to the Servicer
under the Purchase and Servicing Agreement;
(B) in the case of (2), (3), (4) and (5) above, any related
unreimbursed expenses incurred by the Servicer in connection with a
liquidation or foreclosure and any unreimbursed Advances or
Servicing Advances due to the Master Servicer or the Servicer;
(C) any related unreimbursed Nonrecoverable Advances due to the
Master Servicer or the Servicer; and
(D) in the case of (1) through (4) above, any related amounts
collected which are determined to be attributable to a subsequent
Due Period or Prepayment Period.
Bankruptcy: As to any Person, the making of an assignment for the benefit
of creditors, the filing of a voluntary petition in bankruptcy, adjudication
as a bankrupt or insolvent, the entry of an order for relief in a bankruptcy
or insolvency proceeding, the seeking of reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief, or
seeking, consenting to or acquiescing in the appointment of a trustee,
receiver or liquidator, dissolution, or termination, as the case may be, of
such Person pursuant to the provisions of either the Bankruptcy Code or any
other similar state laws.
Bankruptcy Code: The United States Bankruptcy Code of 1986, as amended.
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient Valuation
or Debt Service Reduction; provided, however, that a Bankruptcy Loss shall not
be deemed a Bankruptcy Loss hereunder so long as the Servicer has notified the
Master Servicer in writing that the
4
Servicer is diligently pursuing any remedies that may exist in connection with
the related Mortgage Loan and either (A) the related Mortgage Loan is not in
default with regard to payments due thereunder or (B) delinquent payments of
principal and interest under the related Mortgage Loan and any related escrow
payments in respect of such Mortgage Loan are being advanced on a current
basis by the Master Servicer or Servicer, in either case without giving effect
to any Debt Service Reduction or Deficient Valuation, as reported by the
Servicer to the Master Servicer.
Bankruptcy Loss Coverage Amount: As of any date of determination, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses allocated
to the Certificates since the Cut-off Date and (ii) any permissible reductions
in the Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating
Agency to the Trustee to the effect that any such reduction will not result in
a downgrading of the then current ratings assigned to the Classes of
Certificates rated by it.
Benefit Plan Opinion: An Opinion of Counsel satisfactory to the Trustee
and Certificate Registrar to the effect that any proposed transfer will not
(i) constitute or result in a nonexempt prohibited transaction under Title I
of ERISA or Section 4975 of the Code or (ii) subject the Certificate
Registrar, the Trustee, the Depositor, the Master Servicer or the Securities
Administrator to any obligation in addition to those undertaken by them in
this Agreement, which opinion may not be an expense of the Trust Fund or any
of the above parties.
Book-Entry Certificates: Beneficial interests in Certificates designated
as "Book-Entry Certificates" in this Agreement, ownership and transfers of
which shall be evidenced or made through book entries by a Clearing Agency as
described in Section 3.09; provided, that after the occurrence of a Book-Entry
Termination whereupon book-entry registration and transfer are no longer
permitted and Definitive Certificates are to be issued to Certificate Owners,
such Book-Entry Certificates shall no longer be "Book-Entry Certificates." As
of the Closing Date, the following Classes of Certificates constitute
Book-Entry Certificates: Class 1-A-1, Class 2-A-1, Class 3-A-1, Class 4-A-1,
Class 4-A-2, Class 4-A-3, Class 4-A-4, Class 4-A-5, Class 4-A-6, Class B-1,
Class B-2 and Class B-3.
Book-Entry Termination: The occurrence of any of the following events:
(i) the Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Book Entry Certificates, and the
Depositor is unable to locate a qualified successor; or (ii) the Depositor at
its option advises the Trustee and the Certificate Registrar in writing that
it elects to terminate the book-entry system through the Clearing Agency.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on which banking institutions in New York, New York or, if other than New
York, the city in which the Corporate Trust Office of the Trustee is located,
or the States of Maryland or Minnesota, are authorized or obligated by law or
executive order to be closed.
Calculation Rate: For each Distribution Date, in the case of the Class A
and Class B Interests, the product of (i) 10 and (ii) the weighted average
rate of the outstanding Class A and Class B Interests, treating each Class A
Interest as capped at zero or reduced by a fixed percentage of 100% of the
interest accruing on such Class.
5
Certificate: Any one of the certificates signed by the Trustee, or the
Securities Administrator on the Trustee's behalf, and authenticated by the
Securities Administrator as Authenticating Agent in substantially the forms
attached hereto as Exhibit A.
Certificate Group: Each of the Group 1 Certificates, the Group 2
Certificates, the Group 3 Certificates and the Group 4 Certificates.
Certificate Interest Rate: With respect to each Class of Certificates and
any Distribution Date, the applicable per annum rate described in the
Preliminary Statement hereto.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the owner of such Book-Entry Certificate, as reflected on the books of
the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly or as an indirect participant, in accordance
with the rules of such Clearing Agency).
Certificate Principal Amount: With respect to any Certificate (other than
a Notional Certificate), at the time of determination, the maximum specified
dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the initial principal amount set forth
on the face of such Certificate, less (i) the amount of all principal
distributions previously made with respect to such Certificate; (ii) all
Realized Losses allocated to such Certificate; and (iii) in the case of a
Subordinate Certificate, any Subordinate Certificate Writedown Amount
allocated to such Certificates. For purposes of Article V hereof, unless
specifically provided to the contrary, Certificate Principal Amounts shall be
determined as of the close of business of the immediately preceding
Distribution Date, after giving effect to all distributions made on such date.
Notional Certificates are issued without Certificate Principal Amounts.
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 3.02. Xxxxx Fargo National
Bank Minnesota, National Association will act as Certificate Registrar for so
long as it is the Securities Administrator under this Agreement.
Certificateholder: The meaning provided in the definition of "Holder."
Civil Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended, and any similar state laws.
Class: Collectively, Certificates bearing the same class designation. In
the case of the Middle-Tier REMIC, the term "Class" refers to all Middle-Tier
Interests having the same alphanumeric designation. In the case of the
Lower-Tier REMIC, the term "Class" refers to all Lower-Tier Interests having
the same alphanumeric designation.
Class Notional Amount: With respect to any Class of Notional
Certificates, the applicable class notional amount calculated as provided in
the Preliminary Statement hereto.
Class Principal Amount: With respect to each Class of Certificates (other
than a Notional Certificate), the aggregate of the Certificate Principal
Amounts of all Certificates of such Class at the date of determination. With
respect to any Lower-Tier or Middle-Tier Interest, the initial
6
Class Principal Amount as shown or described in the table set forth in the
Preliminary Statement for the issuing REMIC, as reduced by principal
distributed with respect to such Lower-Tier or Middle-Tier Interest and
Realized Losses allocated to such Lower-Tier or Middle-Tier Interest at the
date of determination.
Class Subordination Percentage: With respect to each Class of Subordinate
Certificates, for each Distribution Date, the percentage obtained by dividing
the Class Principal Amount of such Class immediately prior to such
Distribution Date by the sum of the Class Principal Amounts of all Classes of
Certificates immediately prior to such Distribution Date.
Class A-R Certificate: The Class A-R Certificate executed by the Trustee,
and authenticated and delivered by the Authenticating Agent, substantially in
the form annexed hereto as Exhibit A, and evidencing the ownership of the
residual interest in the Upper-Tier REMIC.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. As
of the Closing Date, the Clearing Agency shall be The Depository Trust
Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
Closing Date: October 30, 2003.
Code: The Internal Revenue Code of 1986, as amended, and as it may be
further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Compensating Interest Payment: As to any Distribution Date, the lesser of
(1) the Master Servicing Fee for such date and (2) any Prepayment Interest
Shortfall for such date, to the extent required by Section 5.05.
Consent: A document executed by the Cooperative Corporation (i)
consenting to the sale of the Cooperative Unit to the Mortgagor and (ii)
certifying that all maintenance charges relating to the Cooperative Unit have
been paid.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements
constituting the Cooperative Property and which governs the Cooperative
Property, which Cooperative Corporation must qualify as a Cooperative Housing
Corporation under Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Cooperative Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, that includes the allocation of individual dwelling
units to the holders of the shares of the Cooperative Corporation.
7
Cooperative Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: With respect to any Cooperative Mortgage Loan, a
specific unit in a Cooperative Property.
Corporate Trust Office: With respect to the Trustee, the principal
corporate trust office of the Trustee located at 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000-0000 Attention: Structured Finance Trust
Services, X.X. Xxxxxx Mortgage Trust 2003-A1, or at such other address as the
Trustee may designate from time to time by notice to the Certificateholders,
the Depositor, the Master Servicer and the Securities Administrator or the
principal corporate trust office of any successor Trustee. With respect to the
Certificate Registrar and presentment of Certificates for registration of
transfer, exchange or final payment, Xxxxx Fargo Bank Minnesota, National
Association, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Corporate Trust, X.X. Xxxxxx Mortgage Trust 2003-A1.
Corresponding Certificates: With respect to each Middle-Tier Interest,
the Certificates so designated in the Preliminary Statement.
Credit Support Depletion Date: The first Distribution Date, if any, on
which the aggregate Certificate Principal Amount of the Subordinate
Certificates have been reduced to zero.
Cross-Over Situation: For any Distribution Date and for any Mortgage Pool
(after taking into account principal distributions on such Distribution Date)
a Cross-Over Situation exists with respect to the Class A and Class B
Interests of the Mortgage Pool if such Interests in the aggregate are less
than 1% of the Subordinated Portion of the Mortgage Pool.
Current Interest: With respect to each Class of Certificates and any
Distribution Date, the aggregate amount of interest accrued at the applicable
Certificate Interest Rate during the related Accrual Period on the Class
Principal Amount (or Class Notional Amount) of such Class immediately prior to
such Distribution Date.
Custodial Account: The custodial account (other than an Escrow Account)
established and maintained by the Servicer pursuant to the Purchasing and
Servicing Agreement.
Custodian: A Person who is at anytime appointed by the Trustee and the
Depositor as a custodian of the Mortgage Documents and the Trustee Mortgage
Files. The initial Custodian is JPMorgan Chase Bank.
Custodial Agreement: The Custodial Agreement dated as of April 1, 2003,
by and between the Seller, Cendant Mortgage Corporation and Xxxxxx'x Gate
Residential Mortgage Trust (formerly known as Cendant Residential Mortgage
Trust), as sellers, and JPMorgan Chase Bank, as Custodian, as modified by the
Assignment.
Cut-off Date: October 1, 2003.
Cut-off Date Balance: With respect to the Mortgage Loans in the Trust
Fund on the Closing Date, the Aggregate Stated Principal Balance as of the
Cut-off Date.
8
Debt Service Reduction: With respect to any Mortgage Loan, a reduction by
a court of competent jurisdiction in a proceeding under the Bankruptcy Code in
the Scheduled Payment for such Mortgage Loan which became final and
non-appealable, except such a reduction resulting from a Deficient Valuation
or any reduction that results in a permanent forgiveness of principal.
Defective Mortgage Loan: The meaning specified in Section 2.05.
Deficient Valuation: With respect to any Mortgage Loan, a valuation of
the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding indebtedness under the Mortgage Loan, or
any reduction in the amount of principal to be paid in connection with any
Scheduled Payment that results in a permanent forgiveness of principal, which
valuation or reduction results from an order of such court which is final and
non-appealable in a proceeding under the Bankruptcy Code.
Definitive Certificate: A Certificate of any Class issued in definitive,
fully registered, certificated form.
Deleted Mortgage Loan: As defined in the Purchase and Servicing
Agreement.
Delinquent: Any Mortgage Loan with respect to which the Scheduled Payment
due on a Due Date is not received.
Depositor: X.X. Xxxxxx Acceptance Corporation I, a Delaware corporation
having its principal place of business in New York, or its successors in
interest.
Determination Date: With respect to each Distribution Date, the 18th day
of the month in which such Distribution Date occurs, or, if such 18th day is
not a Business Day, the next succeeding Business Day.
Disqualified Organization: A "disqualified organization" as defined in
Section 860E(e)(5) of the Code.
Distribution Account: The separate Eligible Account created and
maintained by the Securities Administrator, on behalf of the Trustee, pursuant
to Section 4.01. Funds in the Distribution Account (exclusive of any earnings
on investments made with funds deposited in the Distribution Account) shall be
held in trust for the Trustee and the Certificateholders for the uses and
purposes set forth in this Agreement.
Distribution Account Deposit Date: The 18th day of each calendar month
after the initial issuance of the Certificates or, if such 18th day is not a
Business Day, the immediately preceding Business Day, commencing in November
2003.
Distribution Date: The 25th day of each month or, if such 25th day is not
a Business Day, the next succeeding Business Day, commencing in November 2003.
Due Date: With respect to any Mortgage Loan, the date on which a
Scheduled Payment is due under the related Mortgage Note as indicated in the
Purchase and Servicing Agreement.
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Due Period: As to any Distribution Date, the period beginning on the
second day of the month preceding the month of such Distribution Date, and
ending on the first day of the month of such Distribution Date.
Effective Loan-to-Value Ratio: A fraction, expressed as a percentage, the
numerator of which is the original Stated Principal Balance of the Mortgage
Loan, less the amount of Additional Collateral required to secure such
Mortgage Loan at the time of origination, if any, and the denominator of which
is the Appraised Value of the related Mortgage Property at such date.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a
depository institution or trust company that is the principal subsidiary of a
holding company, the debt obligations of such holding company) have the
highest short-term ratings of each Rating Agency at the time any amounts are
held on deposit therein, or (ii) an account or accounts in a depository
institution or trust company in which such accounts are insured by the FDIC or
the SAIF (to the limits established by the FDIC or the SAIF) and the uninsured
deposits in which accounts are otherwise secured such that, as evidenced by an
Opinion of Counsel delivered to the Trustee and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such account or a
perfected first priority security interest against any collateral (which shall
be limited to Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the depository institution or
trust company in which such account is maintained, or (iii) a trust account or
accounts maintained with the trust department of a federal or state chartered
depository institution or trust company, acting in its fiduciary capacity or
(iv) any other account acceptable to each Rating Agency, as evidenced by a
signed writing delivered by each Rating Agency. Eligible Accounts may bear
interest, and may include, if otherwise qualified under this definition,
accounts maintained with the Trustee, the Paying Agent, the Securities
Administrator or the Master Servicer.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: The Class A-R, Class LT-R, Class B-4, Class
B-5 or Class B-6 Certificates, and any Certificate that does not satisfy the
applicable rating requirement under the Underwriter's Exemption.
Escrow Account: As defined in Article I of the Purchase and Servicing
Agreement.
Estoppel Letter: A document executed by the Cooperative Corporation
certifying, with respect to a Cooperative Unit, (i) the appurtenant
Proprietary Lease will be in full force and effect as of the date of issuance
thereof, (ii) the related stock certificate was registered in the Mortgagor's
name and the Cooperative Corporation has not been notified of any lien upon,
pledge of, levy of execution on or disposition of such stock certificate, and
(iii) the Mortgagor is
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not in default under the appurtenant Proprietary Lease and all charges due the
Cooperative Corporation have been paid.
Event of Default: Any one of the conditions or circumstances enumerated
in Section 6.14.
Excess Loss: The amount of any (i) Fraud Loss realized after the Fraud
Loss Coverage Termination Date, (ii) Special Hazard Loss realized after the
Special Hazard Coverage Termination Date or (iii) Bankruptcy Loss realized
after the Bankruptcy Coverage Termination Date.
Xxxxxx Xxx: The entity formerly known as the Federal National Mortgage
Association, a federally chartered and privately owned corporation organized
and existing under the Federal National Mortgage Association Charter Act, or
any successor thereto.
FDIC: The Federal Deposit Insurance Corporation or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Fitch Ratings: Fitch, Inc., or any successor in interest.
Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred, as reported by the Servicer to the Master Servicer.
Fraud Loss Coverage Amount: As of the Closing Date, $8,089,043 subject to
reduction from time to time, by the amount of Fraud Losses allocated to the
Certificates. In addition, on each anniversary of the Cut-off Date, the Fraud
Loss Coverage Amount will be reduced as follows: (a) on the first, second,
third and fourth anniversaries of the Cut-off Date, to an amount equal to the
lesser of (i) 2%, 1%, 1% and 1% of the then current Aggregate Stated Principal
Balance on such anniversary and (ii) the excess of the Fraud Loss Coverage
Amount as of the preceding anniversary of the Cut-off Date over the cumulative
amount of Fraud Losses allocated to the Certificates since such preceding
anniversary; and (b) on the fifth anniversary of the Cut-off Date, to zero.
Fraud Loss Coverage Termination Date: The point in time at which the
Fraud Loss Coverage Amount is reduced to zero.
Global Securities: The global certificates representing the Book-Entry
Certificates.
Group 1: All of the Group 1 Certificates.
Group 1 Certificate: Any Class 1-A-1 and Class A-R Certificate.
Group 2: All of the Group 2 Certificates.
Group 2 Certificate: Any Class 2-A-1 Certificate.
11
Group 3: All of the Group 3 Certificates.
Group 3 Certificate: Any Class 3-A-1 Certificate.
Group 4: All of the Group 4 Certificates.
Group 4 Certificate: Any Class 4-A-1, Class 4-A-2, Class 4-A-3, Class
4-A-4, Class 4-A-5 and Class 4-A-6 Certificate.
Holder or Certificateholder: The registered owner of any Certificate as
recorded on the books of the Certificate Registrar except that, solely for the
purposes of taking any action or giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor, the
Trustee, the Master Servicer, the Securities Administrator and any Servicer,
or any Affiliate thereof shall be deemed not to be outstanding in determining
whether the requisite percentage necessary to effect any such consent has been
obtained, except that, in determining whether the Trustee shall be protected
in relying upon any such consent, only Certificates which a Responsible
Officer of the Trustee knows to be so owned shall be disregarded. The Trustee
may request and conclusively rely on certifications by the Depositor, the
Master Servicer, the Securities Administrator or any Servicer in determining
whether any Certificates are registered to an Affiliate of the Depositor, the
Master Servicer, the Securities Administrator or any Servicer.
HUD: The United States Department of Housing and Urban Development, or
any successor thereto.
Independent: When used with respect to any Accountants, a Person who is
"independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any other
Person, a Person who (a) is in fact independent of another specified Person
and any Affiliate of such other Person, (b) does not have any material direct
financial interest in such other Person or any Affiliate of such other Person,
and (c) is not connected with such other Person or any Affiliate of such other
Person as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions.
Index: As to each Mortgage Loan, the index from time to time in effect
for adjustment of the Mortgage Rate as set forth as such on the related
Mortgage Note.
Initial Bankruptcy Coverage Amount: $100,000.
Initial Optional Purchase Date: The first Distribution Date following the
date on which the Aggregate Stated Principal Balance is equal to or less than
5.00% of the Aggregate Stated Principal Balance as of the Cut-off Date.
Insurance Policy: With respect to any Mortgage Loan, any insurance
policy, including all names and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by any Insurance Policy (excluding
proceeds required to be applied to the restoration and repair of the related
Mortgaged Property or released to the
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Mortgagor), in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses and the proceeds from any Limited
Purpose Surety Bond.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Distribution Amount: For each Class of Certificates, on any
Distribution Date, the Current Interest for such Class, as reduced by (i) such
Class's share of Net Prepayment Interest Shortfalls and (ii) the related
Class' allocable share of (A) after the Special Hazard Coverage Termination
Date, with respect to each Mortgage Loan in the related Mortgage Pool (or
after the Credit Support Depletion Date, any Mortgage Loan) that became a
Special Hazard Mortgage Loan during the calendar month preceding the month of
such Distribution Date, the excess of one month's interest at the related Net
Mortgage Rate on the Stated Principal Balance of such Mortgage Loan as of the
Due Date in such month over the amount of Liquidation Proceeds applied as
interest on such Mortgage Loan with respect to such month, (B) after the
Bankruptcy Coverage Termination Date, with respect to each Mortgage Loan in
the related Mortgage Pool (or after the Credit Support Depletion Date, any
Mortgage Loan) that became subject to a Bankruptcy Loss during the calendar
month preceding the month of such Distribution Date, the interest portion of
the related Debt Service Reduction or Deficient Valuation, (C) each Relief Act
Shortfall for the Mortgage Loans in the related Mortgage Pool (or after the
Credit Support Depletion Date, any Mortgage Loan) incurred during the calendar
month preceding the month of such Distribution Date and (D) after the Fraud
Loss Coverage Termination Date, with respect to each Mortgage Loan in the
related Mortgage Pool (or after the Credit Support Depletion Date, any
Mortgage Loan) that became a Fraud Loan during the calendar month preceding
the month of such Distribution Date, the excess of one month's interest at the
related Net Mortgage Rate on the Stated Principal Balance of such Mortgage
Loan as of the Due Date in such month over the amount of Liquidation Proceeds
applied as interest on such Mortgage Loan with respect to such month. Any such
shortfalls and reductions shall be allocated among all Classes of Senior
Certificates (or in the case of the shortfalls and reductions set forth in
clause (ii) of the preceding sentence and prior to the Credit Support
Depletion Date, among all Classes of Senior Certificates of the Related
Certificate Group) proportionately on the basis of the Interest Distribution
Amount otherwise payable thereon and among the Subordinate Certificates on the
basis of their Apportioned Principal Balances before taking into account any
of the foregoing reductions.
Interest-Only Certificates: The Class 4-A-6 Certificates.
Interest Shortfall: As to any Class of Certificates and any Distribution
Date, (i) the amount by which the Interest Distribution Amount for such Class
on such Distribution Date and all prior Distribution Dates exceeds (ii)
amounts distributed in respect thereof to such Class on prior Distribution
Dates.
Interest Transfer Amount: For any Distribution Date and for any
Undercollateralized Group, an amount equal to one month's interest on the
applicable Principal Transfer Amount at the weighted average Certificate
Interest Rate of the applicable Undercollateralized Group, plus any interest
accrued on such Undercollateralized Group remaining unpaid from prior
Distribution Dates.
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Intervening Assignments: The original intervening assignments of the
Mortgage, notices of transfer or equivalent instrument.
Latest Possible Maturity Date: The Distribution Date occurring in
September 2033.
LIBOR: Not applicable.
LIBOR Business Day: Any day on which banks in London, England and The
City of New York are open and conducting transactions in foreign currency and
exchange.
LIBOR Certificate: Not applicable.
LIBOR Determination Date: Not applicable.
Limited Purpose Surety Bond: Any Limited Purpose Surety Bond listed in
Exhibit G.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in
the calendar month preceding the month of such Distribution Date and as to
which the Servicer has certified (in accordance with the Purchase and
Servicing Agreement) that it has received all amounts it expects to receive in
connection with the liquidation of such Mortgage Loan including the final
disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of defaulted Mortgage
Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property.
Loan-To-Value Ratio: With respect to any Mortgage Loan and as to any date
of determination, the fraction (expressed as a percentage) the numerator of
which is the principal balance of the related Mortgage Loan at such date of
determination and the denominator of which is the Appraised Value of the
related Mortgaged Property.
Lower-Tier Interest: Any one of the interests in the Lower-Tier REMIC as
described in the Preliminary Statement.
Lower-Tier REMIC: As described in the Preliminary Statement.
Margin: As to each Mortgage Loan, the percentage amount set forth on the
related Mortgage Note added to the Index in calculating the Mortgage Rate
thereon.
Master Servicer: Xxxxx Fargo Bank Minnesota, National Association, a
national banking association organized under the laws of the United States in
its capacity as Master Servicer and any Person succeeding as Master Servicer
hereunder or any successor in interest, or if any successor master servicer
shall be appointed as herein provided, then such successor master servicer.
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Master Servicing Fee: With respect to any Distribution Date, an amount
equal to the product of one-twelfth of the Master Servicing Fee Rate and the
Stated Principal Balance of each Mortgage Loan as of the first day of the
related Due Period.
Master Servicing Fee Rate: 0.0075% per annum.
Maximum Rate: As to any Mortgage Loan, the maximum rate set forth on the
related Mortgage Note at which interest can accrue on such Mortgage Loan.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor to Mortgage Electronic Registration Systems, Inc.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS(R)System.
MERS(R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
Middle-Tier REMIC: As described in the Preliminary Statement.
Middle-Tier Interest: Any one of the interests in the Middle-Tier REMIC
as described in the Preliminary Statement.
MIN: The mortgage identification number for any MERS Mortgage Loan.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Moody's: Xxxxx'x Investors Service, Inc., or any successor in interest.
Mortgage: A mortgage, deed of trust or other instrument encumbering a fee
simple interest in real property securing a Mortgage Note, together with
improvements thereto.
Mortgage Documents: With respect to each Mortgage Loan, the mortgage
documents required to be delivered to the Custodian pursuant to the Custodial
Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage conveyed, transferred, sold,
assigned to or deposited with the Trustee pursuant to Section 2.01 (including
any Replacement Loan and REO Property), including without limitation, each
Mortgage Loan listed on the Mortgage Loan Schedule, as amended from time to
time.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A, which
shall identify each Mortgage Loan, as such schedule may be amended by the
Depositor or the Servicer from time to time to reflect the addition of
Replacement Mortgage Loans to, or the deletion of Deleted Mortgage Loans from,
the Trust Fund. Such schedule shall, among other things (i) designate the
Servicer servicing such Mortgage Loan and the Servicing Fee Rate; (ii)
identify
15
the designated Mortgage Pool in which such Mortgage Loan is included; and
(iii) separately identify Additional Collateral Mortgage Loans.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Pool: Each of Pool 1, Pool 2, Pool 3 and Pool 4.
Mortgaged Property: The underlying property, including any Additional
Collateral, securing a Mortgage Loan which, with respect to a Cooperative
Loan, is the related Cooperative Shares and Property Lease.
Mortgage Rate: As to any Mortgage Loan, the annual rate of interest borne
by the related Mortgage Notes.
Mortgagor: The obligor on a Mortgage Note.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage Loan or
any other disposition of related Mortgaged Property, the related Liquidation
Proceeds net of Advances, Servicer Advances, Servicing Fees and/or Master
Servicing Fees and any other accrued and unpaid servicing fees received and
retained in connection with the liquidation of such Mortgage Loan or Mortgaged
Property.
Net Mortgage Rate: With respect to any Mortgage Loan and any Distribution
Date, the related Mortgage Rate as of the Due Date in the month preceding the
month of such Distribution Date reduced by the Aggregate Expense Rate for such
Mortgage Loan.
Net Prepayment Interest Shortfall: With respect to any Mortgage Loan and
any Distribution Date, the amount by which any Prepayment Interest Shortfall
for such date exceeds the amount payable by the Master Servicer and/or the
Servicer in respect of such shortfall.
Net WAC: As to any Distribution Date, the weighted average of the Net
Mortgage Rates of the Mortgage Loans as of the Due Date of the month preceding
the month of such Distribution Date, weighted on the basis of their
outstanding Stated Principal Balances (after giving effect to the Scheduled
Payments due on or before such Due Date and Principal Prepayments received
prior to such Due Date) at such time.
Net WAC Shortfall: Not applicable.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Non-U.S. Person: Any person other than a "United States person" within
the meaning of Section 7701(a)(30) of the Code.
Nonrecoverable Advance: Any portion of an Advance or Servicer Advance
previously made or proposed to be made by the Master Servicer and/or the
Servicer (as certified in an
16
Officer's Certificate of the Servicer), which in the good faith judgment of
such party, shall not be ultimately recoverable by such party from the related
Mortgagor, related Liquidation Proceeds or otherwise.
Notional Amount: With respect to any Notional Certificate and any
Distribution Date, such Certificate's Percentage Interest of the Class
Notional Amount of such Class of Certificates for such Distribution Date.
Notional Certificate: Any Class 4-A-6 Certificate.
Offering Document: The Prospectus.
Officer's Certificate: A certificate signed by two Authorized Officers of
the Depositor or the Chairman of the Board, any Vice Chairman, the President,
any Vice President or any Assistant Vice President of the Master Servicer or
the Securities Administrator, and in each case delivered to the Trustee.
Officer's Certificate of the Servicer: A certificate (i) signed by the
Chairman of the Board, the Vice Chairman of the Board, the President, a
Managing Director, a Vice President (however denominated), an Assistant Vice
President, the Treasurer, the Secretary, or one of the Assistant Treasurers or
Assistant Secretaries of the Servicer, or (ii) if provided for herein, signed
by a Servicing Officer, as the case may be, and delivered to the Trustee or
the Master Servicer, as required hereby.
Opinion of Counsel: A written opinion of counsel, reasonably acceptable
in form and substance to the Trustee, the Securities Administrator or the
Master Servicer, as required hereby, and who may be in-house or outside
counsel to the Depositor, the Master Servicer, the Securities Administrator or
the Trustee but which must be Independent outside counsel with respect to any
such opinion of counsel concerning the transfer of any Residual Certificate or
concerning certain matters with respect to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or the taxation, or the federal
income tax status, of each REMIC.
Original Applicable Credit Support Percentage: With respect to each Class
of Subordinate Certificates, the corresponding percentage set forth opposite
its Class designation: Class B-1 - 2.70%; Class B-2 - 1.40%; Class B-3 -
0.85%; Class B-4 - 0.50%; Class B-5 - 0.30%; and Class B-6 - 0.15%.
Original Subordinate Principal Amount: The aggregate of the initial Class
Principal Amounts of the Classes of Subordinated Certificates.
Originator: Cendant Mortgage Corporation.
Overcollateralized Group: On any Distribution Date, any Certificate Group
which is not an Undercollateralized Group.
Paying Agent: Any paying agent appointed pursuant to Section 3.08. The
initial Paying Agent shall be Xxxxx Fargo Bank Minnesota, National
Association, for so long as it is acting as Securities Administrator under
this Agreement.
17
Percentage Interest: With respect to any Certificate, its percentage
interest in the undivided beneficial ownership interest in the Trust Fund
evidenced by all Certificates of the same Class as such Certificate. With
respect to any Certificate other than a Notional Certificate or the Class A-R
and Class LT-R Certificates, the Percentage Interest evidenced thereby shall
equal the initial Certificate Principal Amount thereof divided by the initial
Class Principal Amount of all Certificates of the same Class. With respect to
each of the Class A-R and Class LT-R Certificates, the Percentage Interest
evidenced thereby shall be as specified on the face thereof, or otherwise, be
equal to 100%. With respect to any Notional Certificate, the Percentage
Interest evidenced thereby shall equal its initial Notional Amount as set
forth on the face thereof divided by the initial Class Notional Amount of such
Class.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof,
provided that such obligations are backed by the full faith and
credit of the United States;
(ii) general obligations of or obligations guaranteed by any
state of the United States or the District of Columbia receiving the
highest long-term debt rating of each Rating Agency, or such lower
rating as shall not result in the downgrading or withdrawal of the
ratings then assigned to the Certificates by the Rating Agencies, as
evidenced by a signed writing delivered by each Rating Agency;
(iii) commercial or finance company paper which is then
receiving the highest commercial or finance company paper rating of
each Rating Agency rating such paper, or such lower rating as shall
not result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as evidenced by
a signed writing delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or
bankers' acceptances issued by any depository institution or trust
company incorporated under the laws of the United States or of any
state thereof and subject to supervision and examination by federal
and/or state banking authorities, provided that the commercial paper
and/or long-term unsecured debt obligations of such depository
institution or trust company (or in the case of the principal
depository institution in a holding company system, the commercial
paper or long-term unsecured debt obligations of such holding
company, but only if Xxxxx'x is not the applicable Rating Agency) are
then rated one of the two highest long-term and the highest
short-term ratings of each Rating Agency for such securities, or such
lower ratings as shall not result in the downgrading or withdrawal of
the ratings then assigned to the Certificates by the Rating Agencies,
as evidenced by a signed writing delivered by each Rating Agency;
(v) demand or time deposits or certificates of deposit
issued by any bank or trust company or savings institution to the
extent that such deposits are fully insured by the FDIC;
18
(vi) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation acceptable to the Rating
Agencies at the time of the issuance of such agreements, as evidenced
by a signed writing delivered by each Rating Agency;
(vii) repurchase obligations with respect to any security
described in clauses (i) and (ii) above, in either case entered into
with a depository institution or trust company (acting as principal)
described in clause (iv) above;
(viii) securities (other than stripped bonds, stripped
coupons or instruments sold at a purchase price in excess of 115% of
the face amount thereof) bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States or any state thereof which, at the time of such investment,
have one of the two highest ratings of each Rating Agency (except if
the Rating Agency is Moody's, such rating shall be the highest
commercial paper rating of Moody's for any such series), or such
lower rating as shall not result in the downgrading or withdrawal of
the ratings then assigned to the Certificates by the Rating Agencies,
as evidenced by a signed writing delivered by each Rating Agency;
(ix) interests in any money market fund which at the date of
acquisition of the interests in such fund and throughout the time
such interests are held in such fund has the highest applicable
rating by each Rating Agency rating such fund or such lower rating as
shall not result in a change in the rating then assigned to the
Certificates by each Rating Agency, as evidenced by a signed writing
delivered by each Rating Agency, including funds for which the
Trustee, the Master Servicer, the Securities Administrator or any of
its Affiliates is investment manager or adviser;
(x) short-term investment funds sponsored by any trust
company or national banking association incorporated under the laws
of the United States or any state thereof which on the date of
acquisition has been rated by each applicable Rating Agency in their
respective highest applicable rating category or such lower rating as
shall not result in a change in the rating then specified stated
maturity and bearing interest or sold at a discount acceptable to
each Rating Agency as shall not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by the
Rating Agencies, as evidenced by a signed writing delivered by each
Rating Agency; and
(xi) such other investments having a specified stated
maturity and bearing interest or sold at a discount acceptable to the
Rating Agencies as shall not result in the downgrading or withdrawal
of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating
Agency;
provided, that no such instrument shall be a Permitted Investment if (i) such
instrument evidences the right to receive interest only payments with respect
to the obligations underlying such instrument or (ii) such instrument would
require the Depositor to register as an investment company under the
Investment Company Act of 1940, as amended.
19
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
Plan Asset Regulations: The Department of Labor regulations set forth in
29 C.F.R. 2510.3-101.
Pool 1: The aggregate of Mortgage Loans identified on the Mortgage Loan
Schedule as being included in Pool 1.
Pool 1 Mortgage Loans: Any Mortgage Loan in Pool 1.
Pool 1 Net WAC: With respect to any Distribution Date, the weighted
average of the Net Mortgage Rates of the Pool 1 Mortgage Loans as of the first
day of the calendar month immediately preceding the calendar month of such
Distribution Date, weighted on the basis of their Stated Principal Balances.
Pool 1 Subordinate Amount: For any Distribution Date, the excess of the
Aggregate Stated Principal Balance of the Pool 1 Mortgage Loans over the sum
of the Class Principal Amounts of the Class 1-A-1 and Class A-R Certificates
immediately before such Distribution Date.
Pool 2: The aggregate of Mortgage Loans identified on the Mortgage Loan
Schedule as being included in Pool 2.
Pool 2 Mortgage Loans: Any Mortgage Loan in Pool 2.
Pool 2 Net WAC: With respect to any Distribution Date, the weighted
average of the Net Mortgage Rates of the Pool 2 Mortgage Loans as of the first
day of the calendar month immediately preceding the calendar month of such
Distribution Date, weighted on the basis of their Stated Principal Balances.
Pool 2 Subordinate Amount: For any Distribution Date, the excess of the
Aggregate Stated Principal Balance of the Pool 2 Mortgage Loans over the Class
Principal Amount of the Class 2-A-1 Certificates immediately before such
Distribution Date.
Pool 3: The aggregate of Mortgage Loans identified on the Mortgage Loan
Schedule as being included in Pool 3.
Pool 3 Mortgage Loans: Any Mortgage Loan in Pool 3.
Pool 3 Net WAC: With respect to any Distribution Date, the weighted
average of the Net Mortgage Rates of the Pool 3 Mortgage Loans as of the first
day of the calendar month immediately preceding the calendar month of such
Distribution Date, weighted on the basis of their Stated Principal Balances.
20
Pool 3 Subordinate Amount: For any Distribution Date, the excess of the
Aggregate Stated Principal Balance of the Pool 3 Mortgage Loans over the Class
Principal Amount of the Class 3-A-1 Certificates immediately before such
Distribution Date.
Pool 4: The aggregate of Mortgage Loans identified on the Mortgage Loan
Schedule as being included in Pool 4.
Pool 4 Mortgage Loans: Any Mortgage Loan in Pool 4.
Pool 4 Net WAC: With respect to any Distribution Date, the weighted
average of the Net Mortgage Rates of the Pool 4 Mortgage Loans as of the first
day of the calendar month immediately preceding the calendar month of such
Distribution Date, weighted on the basis of their Stated Principal Balances.
Pool 4 Subordinate Amount: For any Distribution Date, the excess of the
Aggregate Stated Principal Balance of the Pool 4 Mortgage Loans over the sum
of the Class Principal Amounts of the Class 4-A-1, Class 4-A-2, Class 4-A-3,
Class 4-A-4 and Class 4-A-5 Certificates immediately before such Distribution
Date.
Pool Percentage: With respect to each Mortgage Pool and any Distribution
Date, a fraction, expressed as a percentage, the numerator of which is the
Aggregate Stated Principal Balance of such Mortgage Pool, and the denominator
of which is the Aggregate Stated Principal Balance as of such Due Date.
Pool Subordinate Amount: Any of the Pool 1, Pool 2, Pool 3 or Pool 4
Subordinate Amounts.
Prepayment Interest Shortfall: With respect to any full or partial
Principal Prepayment of a Mortgage Loan, the excess, if any, of (i) one full
month's interest at the applicable Mortgage Rate on the Stated Principal
Balance of such Mortgage Loan immediately prior to such Principal Prepayment
over (ii) the amount of interest actually received with respect to such
Mortgage Loan in connection with such Principal Prepayment.
Prepayment Period: With respect to each Distribution Date, the calendar
month immediately preceding the month in which the Distribution Date occurs.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan.
Principal Distribution Amount: With respect to any Mortgage Pool and any
Distribution Date, the sum of (a) each Scheduled Payment of principal
collected or advanced on the related Mortgage Loans (before taking into
account any Deficient Valuations or Debt Service Reductions) and due during
the related Due Period, (b) that portion of the Purchase Price representing
principal of any Mortgage Loans in such Mortgage Pool purchased in accordance
with Section 2.05 hereof and received during the related Prepayment Period,
(c) the principal portion of any related Substitution Amount received during
the related Prepayment Period, (d) the principal portion of all Insurance
Proceeds received during the related Prepayment Period with respect to
Mortgage Loans in such Mortgage Pool that are not yet Liquidated Mortgage
21
Loans, (e) the principal portion of all Net Liquidation Proceeds received
during the related Prepayment Period with respect to Liquidated Mortgage Loans
in such Mortgage Pool, (f) the principal portion of the proceeds of any
Additional Collateral with respect to the Mortgage Loans in such Mortgage
Pool, (g) the principal portion of all partial and full principal prepayments
of Mortgage Loans in such Mortgage Pool applied by the Servicer during the
related Prepayment Period and (h) on the Distribution Date on which the Trust
Fund is to be terminated pursuant to Article X hereof, that portion of the
Redemption Price in respect of principal for such Mortgage Pool.
Principal Prepayment: Any Mortgagor payment of principal or other
recovery of principal on a Mortgage Loan that is recognized as having been
received or recovered in advance of its scheduled Due Date and applied to
reduce the principal balance of the Mortgage Loan in accordance with the terms
of the Mortgage Note or the Purchase and Servicing Agreement.
Principal Prepayment In Full: Any Principal Prepayment of the entire
principal balance of the Mortgage Loans.
Principal Relocation Payment: A payment from any Mortgage Pool to REMIC 1
Regular Interests other than those of their Corresponding Mortgage Pool as
provided in the Preliminary Statement. Principal Relocation Payments shall be
made of principal allocations comprising the Principal Remittance Amount from
a Mortgage Pool.
Principal Transfer Amount: For any Distribution Date and for any
Undercollateralized Group, the excess, if any, of the aggregate Class
Principal Amount of such Undercollateralized Group immediately prior to such
Distribution Date, over the Aggregate Stated Principal Balance of the related
Mortgage Pool immediately prior to such Distribution Date.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Proprietary Lease: With respect to any Cooperative Property, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Cooperative Shares.
Prospectus: The prospectus supplement dated October 27, 2003, together
with the accompanying prospectus dated October 27, 2003, relating to the
Certificates.
Purchase and Servicing Agreement: The mortgage loan purchase and
servicing agreement, listed in Exhibit E hereto, as such agreement may be
amended or supplemented from time to time as permitted hereunder.
Purchase Price: With respect to any Mortgage Loan required or permitted
to be purchased by the Seller or Depositor pursuant to this Agreement, or by
the Originator or Servicer pursuant to the Purchase and Servicing Agreement,
an amount equal to the sum of (i) 100% of the unpaid principal balance of the
Mortgage Loan on the date of such purchase and (ii) accrued interest thereon
at the applicable Net Mortgage Rate from the date through which interest was
last paid by the Mortgagor to the Due Date in the month in which the Purchase
Price is to be distributed to Certificateholders, or such other amount as may
be specified in the Purchase and Servicing Agreement.
22
Rapid Prepayment Conditions: As to any Distribution Date, if (1) the
Aggregate Subordinate Percentage on such date is less than 200% of the
Aggregate Subordinate Percentage on the Closing Date; or (2) the outstanding
Stated Principal Balance of the Mortgage Loans in any Mortgage Pool Delinquent
60 days or more (including Mortgage Loans in REO and foreclosure) (averaged
over the preceding six-month period), as a percentage of such Mortgage Pool's
Pool Subordinate Amount, is greater than or equal to 50%.
Rating Agency: Each of Xxxxx'x, S&P and Fitch Ratings.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation,
plus (ii) interest at the Net Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders
up to the Due Date in the month in which Liquidation Proceeds are required to
be distributed on the Stated Principal Balance of such Liquidated Mortgage
Loan from time to time, minus (iii) the Liquidation Proceeds and the proceeds
of any Additional Collateral, if any, received during the month in which such
liquidation occurred, to the extent applied as recoveries of interest at the
Net Mortgage Rate and to principal of the Liquidated Mortgage Loan. With
respect to each Mortgage Loan which has become the subject of a Deficient
Valuation, if the principal amount due under the related Mortgage Note has
been reduced, the difference between the principal balance of the Mortgage
Loan outstanding immediately prior to such Deficient Valuation and the
principal balance of the Mortgage Loan as reduced by the Deficient Valuation.
Recognition Agreement: An agreement among a Cooperative Corporation, a
lender and a Mortgagor with respect to a Cooperative Mortgage Loan whereby
such parties (i) acknowledge that such lender may make, or intends to make,
such Cooperative Mortgage Loan, and (ii) make certain agreements with respect
to such Cooperative Mortgage Loan.
Record Date: As to any Distribution Date (i) with respect to the Class
4-A-1 Certificates, the last Business Day preceding such Distribution Date (or
the Closing Date, in the case of the first Distribution Date) unless such
Certificates shall no longer be Book-Entry Certificates, in which case the
Record Date shall be the last Business Day of the month preceding the month of
such Distribution Date and (ii) in the case of all other Certificates
(including the Class 4-A-1 Certificates that are subsequently reissued as
Definitive Certificates), the last Business Day of the month preceding the
month of each Distribution Date.
Redemption Date: Any Distribution Date on which Certificates may be
redeemed.
Redemption Price: With respect to any Class of Certificates to be
redeemed, an amount equal to 100% of the related Class Principal Amount of the
Certificates to be so redeemed, together with interest on such amount at the
applicable Certificate Interest Rate through the related Accrual Period (as
increased by any Interest Shortfalls), and including, in the case of the
Redemption Price payable in connection with the redemption and retirement of
all of the Certificates, the payment of all amounts (including, without
limitation, all previously unreimbursed Advances and Servicing Advances and
accrued and unpaid Servicing Fees) payable or reimbursable to the Trustee, the
Master Servicer and the Servicer pursuant to this
23
Agreement and the Purchase and Servicing Agreement, or to the Custodian under
the Custodial Agreement (to the extent such amounts are not paid to the
Custodian by the Seller).
Refinancing Mortgage Loan: Any Mortgage Loan originated in connection
with the refinancing of an existing mortgage loan.
Regular Certificates: Each Class of Certificates other than the Class A-R
Certificates.
Related Certificate Group: The Certificate Group related to a particular
Mortgage Pool as indicated by the same numerical designation (i.e., Group 1
Certificates are related to Pool 1, Group 2 Certificates are related to Pool
2, Group 3 Certificates are related to Pool 3 and Group 4 Certificates are
related to Pool 4).
Relief Act Shortfalls: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Civil Relief Act, the amount, if any, by which (i)
interest collectible on such Mortgage Loan for the most recently ended
calendar month is less than (ii) interest accrued thereon for such month
pursuant to the Mortgage Note.
REMIC: Each pool of assets in the Trust Fund designated as a REMIC as
described in the Preliminary Statement.
REMIC Provisions: The provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at sections 860A
through 860G of the Code, and related provisions, and regulations, including
proposed regulations and rulings, and administrative pronouncements
promulgated thereunder, as the foregoing may be in effect from time to time.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan or otherwise treated as having been acquired pursuant to the
REMIC Provisions.
Replacement Mortgage Loan: A mortgage loan substituted by the Seller for
a Deleted Mortgage Loan which must, on the date of such substitution, as
confirmed in a request for release, substantially in the form attached to the
Custodial Agreement, (i) have a Stated Principal Balance, after deduction of
the principal portion of the Scheduled Payment due in the month of
substitution, not in excess of, and not more than 10% less than, the Stated
Principal Balance of the Deleted Mortgage Loan; (ii) have a Maximum Rate not
less than (and not more than two percentage points greater than) the Maximum
Rate of the Deleted Mortgage Loan; (iii) have a gross margin not less than
that of the Deleted Mortgage Loan; (iv) have a Loan-to-Value Ratio no higher
than that of the Deleted Mortgage Loan; (v) have a remaining term to maturity
no greater than (and not more than one year less than that of) the Deleted
Mortgage Loan; (vi) have the same Adjustment Date as that of the Deleted
Mortgage Loan; (vii) have a Minimum Rate not less than that of the Deleted
Mortgage Loan; (viii) not permit conversion of the related Mortgage Rate to a
permanent fixed Mortgage Rate; (ix) have the same Index as that of the Deleted
Mortgage Loan; (x) comply with each representation and warranty set forth in
Article III of the Purchase and Servicing Agreement; and (xii) shall be
accompanied by an Opinion of Counsel
24
that such Replacement Mortgage Loan would not adversely affect the REMIC
status of any REMIC created hereunder or would not otherwise be prohibited by
this Pooling and Servicing Agreement.
Residual Certificate: The Class A-R Certificates.
Responsible Officer: With respect to the Trustee, any officer in the
corporate trust department or similar group of the Trustee with direct
responsibility for the administration of this Agreement and also, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of his or her knowledge of and familiarity with the
particular subject.
Restricted Certificate: Any Class B-4, Class B-5 or Class B-6
Certificate.
Restricted Global Security: As defined in Section 3.01(c).
S&P: Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., or any successor in interest.
SAIF: The Saving's Association Insurance Fund, or any successor thereto.
Schedule of Exceptions: As defined in the Custodial Agreement.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified in the Purchase and Servicing Agreement,
shall give effect to any related Debt Service Reduction and any Deficient
Valuation that affects the amount of the monthly payment due on such Mortgage
Loan.
Securities Administrator: Xxxxx Fargo Bank Minnesota, National
Association, not in its individual capacity but solely as Securities
Administrator, or any successor in interest, or if any successor Securities
Administrator shall be appointed as herein provided, then such successor
Securities Administrator.
Seller: X.X. Xxxxxx Mortgage Acquisition Corp., a Delaware corporation.
Senior Certificate: Any one of the Class 1-A-1, Class 2-A-1, Class 3-A-1,
Class 4-A-1, Class 4-A-2, Class 4-A-3, Class 4-A-4, Class 4-A-5, Class 4-A-6
or Class A-R Certificates.
Senior Percentage: With respect to each Distribution Date and each
Mortgage Pool, the percentage equivalent of a fraction, the numerator of which
is the aggregate Class Principal Amount of the Class or Classes of Senior
Certificates of the Related Certificate Group immediately prior to such
Distribution Date, and the denominator of which is the Aggregate Stated
Principal Balance of the related Mortgage Pool for such Distribution Date;
provided, however, that on any Distribution Date after the third Senior
Termination Date, the Senior Percentage of the remaining Senior Certificates
is the percentage equivalent of a fraction, the numerator of which is the
aggregate of the Class Principal Amounts of the remaining Classes of
25
Senior Certificates immediately prior to such date, and the denominator of
which is the aggregate Class Principal Amount of all Classes of Certificates
immediately prior to such date.
Senior Prepayment Percentage: With respect to any Distribution Date and
each Mortgage Pool, during the period beginning on the first Distribution Date
and ending on the Distribution Date in November 2010, 100%. Except as provided
herein, the Senior Prepayment Percentage for each Mortgage Pool and any
Distribution Date occurring on or after November 2010 shall be as follows: (i)
from November 2010 through October 2011, the Senior Percentage plus 70% of the
Subordinate Percentage for that Distribution Date; (ii) from November 2011
through October 2012, the Senior Percentage plus 60% of the Subordinate
Percentage for that Distribution Date; (iii) from November 2012 through
October 2013, the Senior Percentage plus 40% of the Subordinate Percentage for
that Distribution Date; (iv) from November 2013 through October 2014, the
Senior Percentage plus 20% of the Subordinate Percentage for that Distribution
Date; and (v) from and after November 2014, the related Senior Percentage for
that Distribution Date; provided, however, that there shall be no reduction in
the Senior Prepayment Percentage unless both Step Down Conditions are
satisfied; and provided, further, that if on any such Distribution Date the
Senior Percentage exceeds the initial Senior Percentage, the Senior Prepayment
Percentage for all Mortgage Pools for that Distribution Date shall again equal
100%.
Notwithstanding the above, if on any Distribution Date the Two Times Test
is satisfied, (a) on or prior to the Distribution Date in October 2006, the
Senior Prepayment Percentage with respect to any Mortgage Pool shall equal the
related Senior Percentage plus 50% of an amount equal to 100% minus the
related Senior Percentage and (b) on or after the Distribution Date. in
November 2006, the Senior Prepayment Percentage with respect to any Mortgage
Pool shall equal the related Senior Percentage. In addition, if on any
Distribution Date the allocation to the Senior Certificates then entitled to
distributions of principal of full and partial principal prepayments and other
amounts in the percentage required above would reduce the sum of the Class
Principal Amounts of those Certificates to below zero, the related Senior
Prepayment Percentage for such Distribution Date shall be limited to the
percentage necessary to reduce that Class Principal Amount to zero.
Senior Principal Distribution Amount: With respect to each Mortgage Pool
and any Distribution Date, the sum of:
(1) the related Senior Percentage of all amounts described in clause
(a) of the definition of "Principal Distribution Amount" for that
Distribution Date;
(2) with respect to each Mortgage Loan which became a Liquidated
Mortgage Loan during the related Prepayment Period, the lesser of
(x) the related Senior Percentage of the Stated Principal
Balance of that Mortgage Loan and
(y) the related Senior Prepayment Percentage of the Net
Liquidation Proceeds allocable to principal received with respect to
that Mortgage Loan.
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(3) the related Senior Prepayment Percentage of the amounts
described in clauses (b), (c), (d) and (g) of the definition of
"Principal Distribution Amount" for that Mortgage Pool;
(4) any amounts described in clauses (1) through (3) above that
remain unpaid with respect to the related Certificate Group from prior
Distribution Dates;
provided, however, that on any Distribution Date after the third Senior
Termination Date, the Senior Principal Distribution Amount for the remaining
Certificate Group will be calculated pursuant to the above formula based on
all Mortgage Loans rather than the Mortgage Loans in the related Mortgage Pool
only.
Senior Termination Date: For each Certificate Group, the Distribution
Date when the aggregate of the Class Principal Balances of that Certificate
Group has been reduced to zero.
Servicer: The Servicer under the Purchase and Servicing Agreement.
Servicer Advance: A "Servicing Advance" as defined in the Purchase and
Servicing Agreement.
Servicing Fee: As to any Distribution Date and each Mortgage Loan, an
amount equal to the product of (a) one-twelfth of the Servicing Fee Rate and
(b) the Stated Principal Balance of such Mortgage Loan as of the first day of
the related Due Period.
Servicing Fee Rate: With respect to each Mortgage Loan and any
Distribution Date, the rate specified in the Purchase and Servicing Agreement.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished
to the Master Servicer by the Servicer on the Closing Date pursuant to the
Purchase and Servicing Agreement, as such list may from time to time be
amended.
Special Hazard Coverage Termination Date: The point in time at which the
Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss: Any Realized Loss suffered by a Mortgaged Property
on account of direct physical loss, as reported by the Servicer to the Master
Servicer, but not including (i) any loss of a type covered by a hazard
insurance policy or a flood insurance policy required to be maintained with
respect to such Mortgaged Property to the extent of the amount of such loss
covered thereby, or (ii) any loss caused by or resulting from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of the
Trustee, the Master Servicer or any of their agents or employees (without
regard to any portion of the loss not covered by any errors and omissions
policy);
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(c) errors in design, faulty workmanship or faulty materials, unless
the collapse of the property or a part thereof ensues and then only for
the ensuing loss;
(d) nuclear or chemical reaction or nuclear radiation or radioactive
or chemical contamination, all whether controlled or uncontrolled, and
whether such loss be direct or indirect, proximate or remote or be in
whole or in part caused by, contributed to or aggravated by a peril
covered by the definition of the term "Special Hazard Loss;"
(e) hostile or warlike action in time of peace and war, including
action in hindering, combating or defending against an actual, impending
or expected attack:
1. by any government or sovereign power, de jure or de facto,
or by any authority maintaining or using military, naval or air
forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or
forces;
(f) any weapon of war employing nuclear fission, fusion or other
radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or
defending against such an occurrence, seizure or destruction under
quarantine or customs regulations, confiscation by order of any
government or public authority or risks of contraband or illegal
transportation or trade.
Special Hazard Loss Coverage Amount: With respect to the first
Distribution Date, $4,000,000. With respect to any Distribution Date after the
first Distribution Date, the lesser of (a) the greatest of (i) 1% of the
aggregate of the principal balances of the Mortgage Loans, (ii) twice the
principal balance of the largest Mortgage Loan and (iii) the aggregate of the
principal balances of all Mortgage Loans secured by Mortgaged Properties
located in the single California postal zip code area having the highest
aggregate principal balance of any such zip code area and (b) the Special
Hazard Loss Coverage Amount as of the Closing Date less the amount, if any, of
Special Hazard Losses allocated to the Certificates since the Closing Date.
All principal balances for the purpose of this definition will be calculated
as of the first day of the calendar month preceding the month of such
Distribution Date after giving effect to Scheduled Payments on the Mortgage
Loans then due, whether or not paid.
Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which a
Special Hazard Loss has occurred.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date as
specified in the amortization schedule at the time relating thereto (before
any adjustment to such amortization schedule by reason of any moratorium or
similar waiver or grace period) after giving effect to any previous partial
Principal
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Prepayments and Liquidation Proceeds allocable to principal (other than with
respect to any Liquidated Mortgage Loan) and to the payment of principal due
on such Due Date and irrespective of any delinquency in payment by the related
Mortgagor.
Step Down Conditions: As of the first Distribution Date as to which any
decrease in any Senior Prepayment Percentage applies, (i) the outstanding
Stated Principal Balance of all Mortgage Loans 60 days or more Delinquent
(including Mortgage Loans in REO and foreclosure) (averaged over the preceding
six month period), as a percentage of the aggregate of the Class Principal
Amounts of the Classes of Subordinate Certificates on such Distribution Date,
does not equal or exceed 50% and (ii) cumulative Realized Losses with respect
to the Mortgage Loans do not exceed (a) with respect to each Distribution Date
from November 2010 through October 2011, 30% of the Original Subordinate
Principal Amount, (b) with respect to each Distribution Date from November
2011 through October 2012, 35% of the Original Subordinate Principal Amount,
(c) with respect to each Distribution Date from November 2012 through October
2013, 40% of the Original Subordinate Principal Amount, (d) with respect to
each Distribution Date from November 2013 through October 2014, 45% of the
Original Subordinate Principal Amount and (e) with respect to each
Distribution Date from and after November 2014, 50% of the Original
Subordinate Principal Amount.
Sub-account: Not applicable.
Subordinate Certificate: Any of the Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 or Class B-6 Certificates.
Subordinate Certificate Writedown Amount: The amount described in Section
5.03(d).
Subordinate Class Percentage: As to any Distribution Date and any Class
of Subordinate Certificates, a fraction, expressed as a percentage, the
numerator of which is the Class Principal Amount of such Class on such date,
and the denominator of which is the aggregate Class Principal Amount of all
Classes of Subordinate Certificates on such date.
Subordinate Net WAC: For any Distribution Date, the weighted average of
the Pool 1 Net WAC, the Pool 2 Net WAC, the Pool 3 Net WAC and the Pool 4 Net
WAC, in each case weighted on the basis of the relative Pool Subordinate
Amounts for Pool 1, Pool 2, Pool 3 and Pool 4, respectively, immediately prior
to such Distribution Date. For federal income tax purposes, Subordinate Net
WAC will equal the Calculation Rate following the allocation of Principal
Amounts or Principal Relocation Payments for such Distribution Date as
provided in the Preliminary Statement.
Subordinate Percentage: With respect to each Mortgage Pool and any
Distribution Date, the difference between 100% and the related Senior
Percentage for such Mortgage Pool for such Distribution Date; provided,
however, that on any Distribution Date after the third Senior Termination Date
has occurred, the Subordinate Percentage will represent the entire interest of
the Subordinate Certificates in the Mortgage Loans and will be equal to the
difference between the 100% and the Senior Percentage related to the Mortgage
Loans in the aggregate for such Distribution Date.
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Subordinate Prepayment Percentage: With respect to any Distribution Date
and for each Mortgage Pool, the difference between 100% and the related Senior
Prepayment Percentage for such Mortgage Pool for that Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and each Mortgage Pool, an amount equal to the sum of:
(1) the related Subordinate Percentage of all amounts described in
clause (a) of the definition of "Principal Distribution Amount" for that
Distribution Date;
(2) with respect to each Mortgage Loan in the related Mortgage Pool
that became a Liquidated Mortgage Loan during the related Prepayment
Period the amount of the Net Liquidation Proceeds allocated to principal
received with respect thereto remaining after application thereof
pursuant to clause (2) of the definition of "Senior Principal
Distribution Amount" for that Distribution Date, up to the Subordinate
Percentage of the Stated Principal Balance of such Mortgage Loan;
(3) the related Subordinate Prepayment Percentage of all amounts
described in clauses (b), (c), (d) and (g) of the definition of
"Principal Distribution Amount" for that Mortgage Pool and that
Distribution Date; and
(4) any amounts described in clauses (1) through (3) for any
previous Distribution Date that remain unpaid;
minus the sum of:
(A) any Principal Transfer Amount paid from the Available
Distribution Amount of the Related Certificate Group to an
Undercollateralized Group; and
(B) the amount of principal distributions made to the Senior
Certificates pursuant to Section 5.02(h).
provided, however, that on any Distribution Date after the third Senior
Termination Date, the Subordinate Principal Distribution Amount will not be
calculated with respect to a Mortgage Pool, but instead will equal the amount
calculated as above based on a Subordinate Percentage or Subordinate
Prepayment Percentage, as applicable, for the Subordinate Certificates for
such Distribution Date with respect to all of the Mortgage Loans.
Substitution Amount: As defined in the second paragraph of Section
2.05(c).
Tax Matters Person: The "tax matters person" as specified in the REMIC
Provisions which shall initially be the Holder of the Class LT-R Certificate.
Trust Fund: The corpus of the trust created pursuant to this Agreement,
consisting of the Mortgage Loans and all interest and principal received
thereon on or after the Cut-off Date (other than Scheduled Payments due on or
prior to the Cut-off Date), the Depositor's rights assigned to the Trustee
under the Purchase and Servicing Agreement, as modified by the
Acknowledgement, the Insurance Policies relating to the Mortgage Loans, all
cash, instruments or property held or
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required to be held in the Custodial Accounts, the Distribution Account,
property that secured a Mortgage Loan, the pledge, control and guaranty
agreements and Limited Purpose Surety Bond relating to the Additional
Collateral Mortgage Loans.
Trustee: Wachovia Bank, National Association, a national banking
association, organized under the laws of the United States and any Person
succeeding the Trustee hereunder, or if any successor trustee or any
co-trustee shall be appointed as herein provided, then such successor trustee
and such co-trustee, as the case may be.
Trustee Mortgage Files: With respect to each Mortgage Loan, the Mortgage
Documents to be retained in the custody and possession of the Trustee or
Custodian on behalf of the Trustee.
Two Times Test: As to any Distribution Date, (i) the Aggregate
Subordinate Percentage is at least two times the Aggregate Subordinate
Percentage as of the Closing Date; (ii) the aggregate of the Stated Principal
Balances of all Mortgage Loans Delinquent 60 days or more (including Mortgage
Loans in REO and foreclosure) (averaged over the preceding six-month period),
as a percentage of the aggregate of the Class Principal Amount of the
Subordinate Certificates on such Distribution Date, does not equal or exceed
50%; and (iii) on or prior to the Distribution Date in October 2006,
cumulative Realized Losses with respect to the Mortgage Loans do not exceed
20% of the Original Subordinate Principal Amount, and thereafter, cumulative
Realized Losses with respect to the Mortgage Loans do not exceed 30% of the
Original Subordinate Principal Amount.
UCC: The Uniform Commercial Code as enacted in the relevant jurisdiction.
Undercollateralized Group: With respect to any Distribution Date, any
Certificate Group, with respect to which the aggregate Class Principal Amount
of such Certificate Group is greater than the aggregate Stated Principal
Balance of the Mortgage Loans in the related Mortgage Pool immediately prior
to such Distribution Date.
Underwriter: X.X. Xxxxxx Securities Inc.
Underwriter's Exemption: The prohibited transaction exemption granted to
the Underwriter, or its affiliate, and most recently amended and restated by
PTE 2002-19 or any substantially similar administrative exemption granted by
the U.S. Department of Labor to the Underwriter.
Underwriting Agreement: The Underwriting Agreement, dated October 27,
2003, among the Seller, the Depositor and the Underwriter.
Uniform Commercial Code: The Uniform Commercial Code as in effect in any
applicable jurisdiction from time to time.
Upper-Tier REMIC: As described in the Preliminary Statement.
Voting Interests: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement,
95.00% of all Voting Interests shall be allocated to each Class of the
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Class 1-A-1, Class 2-A-1, Class 3-A-1, Class 4-A-1, Class 4-A-2, Class 4-A-3,
Class 4-A-4, Class 4-A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5 and Class B-6 Certificates. Voting Interests shall be allocated among such
Certificates based on the product of (i) 95% and (ii) the fraction, expressed
as a percentage, the numerator of which is the aggregate Class Principal
Amounts for each Class then outstanding and the denominator of which is the
Aggregate Stated Principal Balance outstanding. At all times during the term
of this Agreement, 5.00% of all Voting Interests shall be allocated to the
Class 4-A-6 and Class A-R Certificates, while they remain outstanding in
proportion to their relative Class Principal Amounts or Class Notional
Amounts, as applicable. Voting Interests shall be allocated among the
Certificates within each such Class in proportion to their Certificate
Principal Amounts or Percentage Interests.
Section 1.02 Calculations Respecting Mortgage Loans.
Calculations required to be made pursuant to this Agreement with respect
to any Mortgage Loan in the Trust Fund shall be made based upon current
information as to the terms of the Mortgage Loans and reports of payments
received from the Mortgagor on such Mortgage Loans and payments to be made to
the Securities Administrator as supplied to the Securities Administrator by
the Master Servicer. The Securities Administrator shall not be required to
recompute, verify or recalculate the information supplied to it by the Master
Servicer or the Servicer.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01 Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans.
(a) Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby transfer, assign, set over, deposit with and otherwise
convey to the Trustee, without recourse, subject to Sections 2.02 and 2.05, in
trust, all the right, title and interest of the Depositor in and to the Trust
Fund. Such conveyance includes, without limitation, (i) the Mortgage Loans,
including the right to all payments of principal and interest received on or
with respect to the Mortgage Loans on and after the Cut-off Date (other than
Scheduled Payments due on or before such date), and all such payments due
after such date but received prior to such date and intended by the related
Mortgagors to be applied after such date; (ii) all of the Depositor's right,
title and interest in and to all amounts from time to time credited to and the
proceeds of the Distribution Account, any Custodial Accounts or any Escrow
Account established with respect to the Mortgage Loans; (iii) all of the
rights of the Depositor as assignee of the Seller with respect to the Seller's
rights under the Purchase and Servicing Agreement pursuant to the
Acknowledgement; (iv) all of the Depositor's right, title or interest in REO
Property and the proceeds thereof; (v) all of the Depositor's rights under any
Insurance Policies related to the Mortgage Loans; and (vi) the Depositor's
security interest in any collateral pledged to secure the Mortgage Loans,
including the Mortgaged Properties and any Additional Collateral relating to
the Additional Collateral Mortgage Loans, including, but not limited to, the
pledge, control and guaranty agreements and the Limited Purpose Surety Bond to
have and to hold, in trust; and the
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Trustee declares that, subject to the review provided for in Section 2.02, it
has received and shall hold the Trust Fund, as trustee, in trust, for the
benefit and use of the Holders of the Certificates and for the purposes and
subject to the terms and conditions set forth in this Agreement, and,
concurrently with such receipt, has caused to be executed, authenticated and
delivered to or upon the order of the Depositor, in exchange for the Trust
Fund, Certificates in the authorized denominations evidencing the entire
ownership of the Trust Fund.
The foregoing sale, transfer, assignment, set-over, deposit and
conveyance does not and is not intended to result in the creation or
assumption by the Trustee of any obligation of the Depositor, the Seller or
any other Person in connection with the Mortgage Loans or any other agreement
or instrument relating thereto except as specifically set forth therein.
In connection with such transfer and assignment of the Mortgage Loans,
the Depositor does hereby deliver to, and deposit with, or cause to be
delivered to and deposited with, the Custodian acting on the Trustee's behalf,
the following documents or instruments with respect to each Mortgage Loan
(each, a "Trustee Mortgage File") so transferred and assigned:
(i) with respect to each Mortgage Loan, the original Mortgage Note
endorsed without recourse in proper form to the order of the Trustee, or
in blank (in each case, with all necessary intervening endorsements, as
applicable);
(ii) with respect to each Mortgage Loan (other than a Cooperative
Loan) that is not a MERS Mortgage Loan, the original Mortgage with
evidence of recording thereon and in the case of the each MERS Mortgage
Loan, the original Mortgage, noting the presence of the MIN of the
Mortgage Loans and either language indicating that the Mortgage Loan is a
MOM Loan if the Mortgage Loan is a MOM Loan or if the Mortgage Loan was
not a MOM Loan at origination, the original Mortgage and the assignment
thereof to MERS, with evidence of recording indicated thereon;
(iii) with respect to each Mortgage Loan (other than a Cooperative
Loan) that is not a MERS Mortgage Loan, the Assignment of Mortgage in
form and substance acceptable for recording in the relevant jurisdiction,
such assignment being either (A) in blank, without recourse, or (B)
endorsed to "Wachovia Bank, National Association, as Trustee of X.X.
Xxxxxx Mortgage Trust 2003-A1, Mortgage Pass-Through Certificates,
without recourse";
(iv) with respect to each Mortgage Loan (other than a Cooperative
Loan) that is not a MERS Mortgage Loan, the originals of all intervening
assignments of the Mortgage, if any, with evidence of recording thereon,
or if the original intervening assignment has not yet been returned from
the recording office, a copy of such assignment certified by the
applicable Seller to be a true copy of the original of the assignment
which has been sent for recording in the appropriate jurisdiction in
which the Mortgaged Property is located;
(v) with respect to each Mortgage Loan (other than a Cooperative
Loan), the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
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(vi) with respect to each Mortgage Loan (other than a Cooperative
Loan), the original policy of title insurance (or a true copy thereof)
with respect to any such Mortgage Loan, or, if such policy has not yet
been delivered by the insurer, the title commitment or title binder to
issue same;
(vii) with respect to each Mortgage Loan (other than a Cooperative
Loan), to the extent applicable, the original power of attorney and
guaranty agreement with respect to such Mortgage Loan;
(viii) the original or certified copy of the certificates evidencing
ownership of the Cooperative Shares issued by the Cooperative Corporation
and related assignment of such certificates or an assignment of such
Cooperative Shares, in blank, executed by the Mortgagor with such
signature guaranteed;
(ix) with respect to each Mortgage Loan which constitutes a
Cooperative Mortgage Loan:
(a) the original of any security agreement or similar document executed
in connection with the Cooperative Mortgage Loan;
(b) the original Recognition Agreement and the original Assignment of
Recognition Agreement;
(c) UCC-1 financing statements with recording information thereon from
the appropriate governmental recording offices if necessary to perfect the
security interest of the Cooperative Mortgage Loan under the Uniform
Commercial Code in the jurisdiction in which the Cooperative Property is
located, accompanied by UCC-3 financing statements executed in blank for
recordation of the change in the secured party thereunder;
(d) an Estoppel Letter and/or Consent;
(e) a search for (i) federal tax liens, mechanics' liens, lis pendens,
judgments of record or otherwise against (x) the Cooperative Corporation and
(y) the seller of the Cooperative Unit, (ii) filings of financing statements
and (iii) the deed of the cooperative project into the Cooperative
Corporation;
(f) the guaranty of the Mortgage Note and Cooperative Loan, if any; and
(g) the original Proprietary Lease and the Assignment of Proprietary
Lease executed by the Mortgagor in blank or if the Proprietary Lease has been
assigned by the Mortgagor to the Seller, then the Seller must execute an
assignment of the Assignment of Proprietary Lease in blank.
(x) if applicable, with respect to each Additional Collateral
Mortgage Loan, the related pledge agreement, the UCC financing statement,
if applicable, and such other document related thereto as may be required
under the Custodial Agreement;
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(xi) any other document or instruments required to be delivered
under the Custodial Agreement.
In addition, in connection with the assignment of any MERS Mortgage Loan,
it is understood that the Originator will cause the MERS(R) System to indicate
that such Mortgage Loans have been assigned by the Originator to the Trustee
in accordance with this Agreement for the benefit of the Certificateholders by
including (or deleting, in the case of Mortgage Loans which are repurchased in
accordance with this Agreement) in such computer files the information
required by the MERS(R) System to identify the series of Certificates issued
in connection with such Mortgage Loans. It is further understood that the
Originator will not, and the Master Servicer hereby agrees that it will not,
alter the information referenced in this paragraph with respect to any
Mortgage Loan during the term of this Agreement unless and until such Mortgage
Loan is repurchased in accordance with the terms of this Agreement.
(b) [Reserved].
(c) In instances where a title insurance policy is required to be
delivered to the Trustee or the applicable Custodian on behalf of the Trustee
and is not so delivered, the Depositor will provide a copy of such title
insurance policy to the Trustee, or to the Custodian on behalf of the Trustee,
as promptly as practicable after the execution and delivery hereof, but in any
case within 180 days of the Closing Date.
(d) For Mortgage Loans (if any) that have been prepaid in full after the
Cut-off Date and prior to the Closing Date, the Depositor, in lieu of
delivering the above documents, herewith delivers to the Trustee, or to the
Custodian on behalf of the Trustee, an Officer's Certificate which shall
include a statement to the effect that all amounts received in connection with
such prepayment that are required to be deposited in the Distribution Account
pursuant to Section 4.01 have been so deposited. All original documents that
are not delivered to the Trustee or the Custodian on behalf of the Trustee
shall be held by the Master Servicer or the Servicer in trust for the benefit
of the Trustee and the Certificateholders.
Section 2.02 Acceptance of Trust Fund by Trustee; Review of Documentation
for Trust Fund.
(a) The Trustee, by execution and delivery hereof, acknowledges receipt
by it or by the Custodian on its behalf of the Trustee Mortgage Files
pertaining to the Mortgage Loans listed on the Mortgage Loan Schedule, subject
to review thereof by the Custodian on behalf of the Trustee in accordance with
the Custodial Agreement (a form of which is attached hereto as Exhibit D). The
Custodian on behalf of the Trustee will execute and deliver to the Trustee and
the Depositor an initial certification to the effect that, as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid
in full or any Mortgage Loan specifically identified in the certification as
not covered by such certification), on the Closing Date (or any other date as
may be required under the Custodial Agreement), (i) the documents set forth in
clauses (i), (ii), (viii), (x) and (xi) of Section 2.01(a) hereof (and such
other document as may be required under the Custodial Agreement) are in its
possession, (ii) such documents have been reviewed by it and appear regular on
their face and relate to such Mortgage Loan, (iii) based on its examination of
the Mortgage Note, the information set forth on the related Mortgage
35
Loan Schedule respecting such Mortgage Loan is correct, and (iv) the Mortgage
Note has been endorsed as provided in the Custodial Agreement.
(b) Within two Business Days after the delivery to the Custodian of the
documents set forth in clauses (i), (iv), (v), (vii), (ix) and (xi), which
shall be delivered within 120 days after the Closing Date (the "Followup
Delivery Date") pursuant to the Custodial Agreement, the Custodian shall, on
behalf of the Trustee, ascertain that the original Assignment and Notice of
Transfer with respect to each Additional Collateral Mortgage Loan is in its
possession, and shall deliver an intermediate certification to the Trustee and
the Depositor to the effect that, as to each Additional Collateral Mortgage
Loan listed in the related Mortgage Loan Schedule (other than any Additional
Collateral Mortgage Loan paid in full or any Additional Collateral Mortgage
Loan specifically identified in such certification as not covered by such
certification), the Assignment and Notice of Transfer is in its possession.
(c) Within 30 days after the Followup Delivery Date, the Custodian on
behalf of the Trustee shall, for the benefit of Holders of the Certificates,
review each Trustee Mortgage File and deliver a final certification, with any
applicable exceptions noted thereon, to the Trustee and the Depositor to the
effect that (i) all documents required to be delivered under the Custodial
Agreement are in its possession, (ii) such documents have been reviewed by it
and appear regular on their face and relate to such Mortgage Loan, and (iii)
each Mortgage Note has been endorsed as required under the Custodial
Agreement.
(d) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee, any Custodian or the
Certificateholders of any unsatisfied duty, claim or other liability on any
Mortgage Loan or to any Mortgagor.
(e) Each of the parties hereto acknowledges that the Custodian shall
perform the applicable review of the Mortgage Loans and deliver the respective
certifications as provided herein and in the Custodial Agreement.
(f) Upon execution of this Agreement, the Depositor hereby delivers to
the Trustee and the Trustee acknowledges receipt of the Acknowledgement,
together with the Purchase and Servicing Agreement.
Section 2.03 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for the
benefit of the Certificateholders, and to the Master Servicer and the
Securities Administrator as of the Closing Date or such other date as is
specified, that:
(i) the Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence
and has full corporate power and authority to own its property, to carry
on its business as presently conducted, to enter into and perform its
obligations under this Agreement, and to create the trust pursuant
hereto;
(ii) the execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part
of the Depositor; neither the
36
execution and delivery of this Agreement, nor the consummation of the
transactions herein contemplated, nor compliance with the provisions
hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties or the certificate of incorporation or bylaws of the
Depositor;
(iii) the execution, delivery and performance by the Depositor of
this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except
such as has been obtained, given, effected or taken prior to the date
hereof;
(iv) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, the Master Servicer and the Securities Administrator,
constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms except as such enforceability may
be subject to (A) applicable bankruptcy and insolvency laws and other
similar laws affecting the enforcement of the rights of creditors
generally and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened or likely to be asserted against
or affecting the Depositor, before or by any court, administrative
agency, arbitrator or governmental body (A) with respect to any of the
transactions contemplated by this Agreement or (B) with respect to any
other matter which in the judgment of the Depositor will be determined
adversely to the Depositor and will if determined adversely to the
Depositor materially and adversely affect it or its business, assets,
operations or condition, financial or otherwise, or adversely affect its
ability to perform its obligations under this Agreement;
(vi) immediately prior to the transfer and assignment of the
Mortgage Loans to the Trustee, the Depositor was the sole owner of record
and holder of each Mortgage Loan, and the Depositor had good and
marketable title thereto, and had full right to transfer and sell each
Mortgage Loan to the Trustee free and clear, subject only to (1) liens of
current real property taxes and assessments not yet due and payable and,
if the related Mortgaged Property is a condominium unit, any lien for
common charges permitted by statute, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of recording of such Mortgage acceptable to mortgage
lending institutions in the area in which the related Mortgaged Property
is located and specifically referred to in the lender's title insurance
policy or attorney's opinion of title and abstract of title delivered to
the originator of such Mortgage Loan, and (3) such other matters to which
like properties are commonly subject which do not, individually or in the
aggregate, materially interfere with the benefits of the security
intended to be provided by the Mortgage, of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest,
and had full right
37
and authority, subject to no interest or participation of, or agreement
with, any other party, to sell and assign each Mortgage Loan pursuant to
this Agreement;
(vii) This Agreement creates a valid and continuing security
interest (as defined in the applicable Uniform Commercial Code (the
"UCC"), in the Mortgage Loans in favor of the Trustee, which security
interest is prior to all other liens, and is enforceable as such against
creditors of and purchasers from the Depositor;
(viii) The Mortgage Loans constitute "instruments" within the
meaning of the applicable UCC;
(ix) Other than the security interest granted to the Trustee
pursuant to this Agreement, the Depositor has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the
Mortgage Loans. The Depositor has not authorized the filing of and is not
aware of any financing statement against the Depositor that includes a
description of the collateral covering the Mortgage Loans other than a
financing statement relating to the security interest granted to the
Trustee hereunder or that has been terminated. The Depositor is not aware
of any judgment or tax lien filings against the Depositor;
(x) None of the Mortgage Loans have any marks or notations
indicating that such Mortgage Loans have been pledged, assigned or
otherwise conveyed to any Person other than the Trustee; and
(xi) The Depositor has received all consents and approvals required
by the terms of the Mortgage Loans to convey the Mortgage Loans hereunder
to the Trustee.
The foregoing representations made in this Section 2.03 shall survive the
termination of this Agreement and shall not be waived by any party hereto
Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with respect
to the Mortgage Loans or each Mortgage Loan, as the case may be, as of the
date hereof or such other date set forth herein that as of the Closing Date:
(a) Immediately prior to the transfer and assignment contemplated herein,
the Depositor was the sole owner and holder of the Mortgage Loans. The
Mortgage Loans were not assigned or pledged by the Depositor and the Depositor
had good and marketable title thereto, and the Depositor had full right to
transfer and sell the Mortgage Loans to the Trustee free and clear of any
encumbrance, participation interest, lien, equity, pledge, claim or security
interest and had full right and authority subject to no interest or
participation in, or agreement with any other party to sell or otherwise
transfer the Mortgage Loans.
(b) As of the Closing Date, the Depositor has transferred all right,
title and interest in the Mortgage Loans to the Trustee on behalf of the
Trust.
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(c) As of the Closing Date, the Depositor has not transferred the
Mortgage Loans to the Trustee on behalf of the Trust with any intent to
hinder, delay or defraud an of its creditors.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the respective Mortgage
Files to the Trustee or the Custodian and shall inure to the benefit of the
Trustee, notwithstanding any restrictive or qualified endorsement or
assignment.
Section 2.05 Discovery of Breach; Repurchase or Substitution of Mortgage
Loans.
(a) The Seller hereby restates, as of the Closing Date, the
representations and warranties contained in clauses (4), (20), (21), (25),
(31) and (57) of Section 3.03 of the Purchase and Servicing Agreement with
respect to each of the Mortgage Loans to and for the benefit of the Depositor,
the Trustee and the Trust Fund. In addition, the Seller hereby represents and
warrants that, as of the Closing Date, each Mortgage Loan at origination
complied in all material respects with applicable local, state and federal
laws, including, but not limited to, applicable predatory and abusive lending
laws. The Seller agrees to comply with the provisions of this Section 2.05 in
respect of a breach of any of such representations and warranties.
(b) Upon discovery by the Depositor, the Seller or the Originator or
receipt of written notice of any materially defective document in, or,
following the date of delivery to the Trustee of the Custodian's final
certification as required under the Custodial Agreement, that a document is
missing from, a Trustee Mortgage File, or discovery by the Trustee, the
Depositor, the Seller or the Originator of the breach by the Originator or
Seller of any representation or warranty under the Purchase and Servicing
Agreement, as modified by the Acknowledgement, in the case of the Originator,
or under this Agreement, in the case of the Seller, in respect of any Mortgage
Loan which materially adversely affects the value of that Mortgage Loan or the
interest therein of the Certificateholders (a "Defective Mortgage Loan") (each
of the Depositor, Seller and Originator hereby agreeing to give written notice
thereof to the Trustee and the other of such parties), the Trustee, or its
designee, shall promptly notify the Depositor and the Seller or Originator, as
applicable, in writing of such defective or missing document or breach and
request that the Seller or Originator deliver such missing document or cure or
cause the cure of such defect or breach within, unless otherwise specified in
the Purchase and Servicing Agreement, 60 days from the date that the Seller or
Originator discovered or was notified of such missing document, defect or
breach, and if the Seller or Originator, as applicable, does not deliver such
missing document or cure such defect or breach in all material respects during
such period, the Trustee shall enforce the obligations of the Originator under
the Purchase and Servicing Agreement, as modified by the Acknowledgement, or
the Seller under this Agreement, as applicable, and cause the Originator or
the Seller, as the case may be, to repurchase that Mortgage Loan from the
Trust Fund at the Purchase Price on or prior to the Determination Date
following the expiration of such 60-day period (subject to Section 2.05(b)
below); provided, however, that, in connection with any such breach that could
not reasonably have been cured within such 60-day period (unless permitted a
greater period of time to cure under the Purchase and Servicing Agreement),
subject to Section 2.05(c) below, if the Originator or the Seller, as
applicable, shall have commenced to cure such breach within such 60-day
period, the Originator or the Seller shall be permitted to proceed thereafter
diligently and expeditiously to cure the same within such additional time as
is reasonably determined by the Trustee to cure such breach. To the extent
that any costs and damages are incurred by the Trust
39
Fund as a result of any violation of any applicable federal, state, or local
predatory or abusive lending law arising from or in connection with the
origination of any Mortgage Loan repurchased by the Originator or the Seller,
such costs and damages shall be included in the Purchase Price of such
repurchased Mortgage Loan and shall be borne by the Seller. The Purchase Price
for the repurchased Mortgage Loan shall be deposited in the related
Distribution Account, and the Trustee, or its designee, upon receipt of
written certification from the Securities Administrator of such deposit, shall
release or cause the Custodian to release to the Originator or the Seller, as
applicable, the related Trustee Mortgage File and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse,
representation or warranties, as either party shall furnish to it and as shall
be necessary to vest in such party any Mortgage Loan released pursuant hereto
and the Trustee, or its designee, shall have no further responsibility with
regard to such Trustee Mortgage File (it being understood that the Trustee
shall have no responsibility for determining the sufficiency of such
assignment for its intended purpose). If pursuant to the foregoing provisions
the Originator or the Seller repurchases a Mortgage Loan that is a MERS
Mortgage Loan, the Servicer shall cause MERS to designate on the MERS(R)
System the Originator or the Seller, as applicable, as the beneficial holder
of such Mortgage Loan.
In lieu of repurchasing any such Mortgage Loan as provided above, either
party may cause such Mortgage Loan to be removed from the Trust Fund (in which
case it shall become a Deleted Mortgage Loan) and substitute one or more
Replacement Mortgage Loans in the manner and subject to the limitations set
forth in Section 2.05(b) below. It is understood and agreed that the
obligation of the Originator and the Seller to cure or to repurchase (or to
substitute for) any Mortgage Loan as to which a document is missing, a
material defect in a constituent document exists or as to which such a breach
has occurred and is continuing shall constitute the sole remedy against the
such party respecting such omission, defect or breach available to the Trustee
on behalf of the Certificateholders.
(c) Any substitution of Replacement Mortgage Loans for Deleted Mortgage
Loans made pursuant to Section 2.05(b) above must be effected prior to the
last Business Day that is within two years after the Closing Date. As to any
Deleted Mortgage Loan for which the Originator or Seller substitutes a
Replacement Mortgage Loan or Loans, such substitution shall be effected by
delivering to the Custodian, on behalf of the Trustee, for such Replacement
Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the
Trustee, and such other documents and agreements, with all necessary
endorsements thereon, together with an Officers' Certificate stating that each
such Replacement Mortgage Loan satisfies the definition thereof and specifying
the Substitution Amount (as described below), if any, in connection with such
substitution. Monthly Payments due with respect to Replacement Mortgage Loans
in the month of substitution shall not be included as part of the Trust Fund
and shall be retained by the Originator or the Seller, as applicable. For the
month of substitution, distributions to the Certificateholders shall reflect
the collections and recoveries in respect of such Deleted Mortgage in the Due
Period preceding the month of substitution and the Originator or the Seller,
as applicable, shall thereafter be entitled to retain all amounts subsequently
received in respect of such Deleted Mortgage Loan. Upon such substitution,
such Replacement Mortgage Loan shall constitute part of the Trust Fund and
shall be subject in all respects to the terms of this Agreement and the
Purchase and Servicing Agreement, as modified by the Acknowledgement,
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including all representations and warranties thereof included in the Purchase
and Servicing Agreements, as modified by the Acknowledgement, in each case as
of the date of substitution.
For any month in which the Originator or Seller substitutes one or more
Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the
Servicer shall determine the excess (each, a "Substitution Amount"), if any,
by which the aggregate Purchase Price of all such Deleted Mortgage Loans
exceeds the aggregate Stated Principal Balance of the Replacement Mortgage
Loans replacing such Deleted Mortgage Loans, together with one month's
interest on such excess amount at the applicable Net Mortgage Rate. On the
date of such substitution, the Originator or Seller, as applicable, shall
deliver or cause to be delivered to the Servicer for deposit in the Custodial
Account an amount equal to the related Substitution Amount, if any, and the
Custodian, on behalf of the Trustee, upon receipt of the related Replacement
Mortgage Loan or Loans and certification by the Servicer of such deposit,
shall release to the Originator or the Seller, as applicable, the related
Trustee Mortgage File or Files and shall execute and deliver such instruments
of transfer or assignment, in each case without recourse, as the Originator or
Seller shall deliver to it and as shall be necessary to vest therein any
Deleted Mortgage Loan released pursuant hereto.
In addition, the Originator or the Seller, as applicable, shall obtain at
its own expense and deliver to the Trustee and the Securities Administrator an
Opinion of Counsel to the effect that such substitution (either specifically
or as a class of transactions) shall not cause an Adverse REMIC Event. If such
Opinion of Counsel can not be delivered, then such substitution may only be
effected at such time as the required Opinion of Counsel can be given.
(d) Upon discovery by the Originator, the Depositor or the Trustee that
any Mortgage Loan does not constitute a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code, the party discovering such fact
shall within two Business Days give written notice thereof to the other
parties. In connection therewith, the applicable party shall repurchase or,
subject to the limitations set forth in Section 2.05(b), substitute one or
more Replacement Mortgage Loans for the affected Mortgage Loan within 90 days
of the earlier of discovery or receipt of such notice with respect to such
affected Mortgage Loan. Any such repurchase or substitution shall be made in
the same manner as set forth in Section 2.05(a) above. The Trustee shall
re-convey to the Originator the Mortgage Loan to be released pursuant hereto
in the same manner, and on the same terms and conditions, as it would a
Mortgage Loan repurchased for breach of a representation or warranty.
Section 2.06 Grant Clause.
(a) It is intended that the conveyance of the Depositor's right, title
and interest in and to property constituting the Trust Fund pursuant to this
Agreement shall constitute, and shall be construed as, a sale of such property
and not a grant of a security interest to secure a loan. However, if such
conveyance is deemed to be in respect of a loan, it is intended that: (1) the
rights and obligations of the parties shall be established pursuant to the
terms of this Agreement; (2) the Depositor hereby grants to the Trustee for
the benefit of the Holders of the Certificates a first priority security
interest in all of the Depositor's right, title and interest in, to and under,
whether now owned or hereafter acquired, the Trust Fund and all proceeds of
any and all property constituting the Trust Fund to secure payment of the
Certificates; and (3) this
41
Agreement shall constitute a security agreement under applicable law. If such
conveyance is deemed to be in respect of a loan and the trust created by this
Agreement terminates prior to the satisfaction of the claims of any Person
holding any Certificate, the security interest created hereby shall continue
in full force and effect and the Trustee shall be deemed to be the collateral
agent for the benefit of such Person, and all proceeds shall be distributed as
herein provided.
(b) The Depositor shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans and
the other property described above, such security interest would be deemed to
be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement. The
Depositor will, at its own expense, make all initial filings on or about the
Closing Date and shall forward a copy of such filing or filings to the
Trustee. Without limiting the generality of the foregoing, the Depositor shall
prepare and forward for filing, or shall cause to be forwarded for filing, at
the expense of the Depositor, all filings necessary to maintain the
effectiveness of any original filings necessary under the relevant UCC to
perfect the Trustee's security interest in or lien on the Mortgage Loans,
including without limitation (x) continuation statements, and (y) such other
statements as may be occasioned by (1) any change of name of the Originator,
the Depositor or the Trustee, (2) any change of location of the place of
business or the chief executive office of the Seller or the Depositor, (3) any
transfer of any interest of the Originator or the Depositor in any Mortgage
Loan or (4) any change under the relevant UCC or other applicable laws.
Neither of the Originator nor the Depositor shall organize under the law of
any jurisdiction other than the State under which each is organized as of the
Closing Date (whether changing its jurisdiction of organization or organizing
under an additional jurisdiction) without giving 30 days prior written notice
of such action to its immediate and intermediate transferee, including the
Trustee. Before effecting such change, the Originator or the Depositor
proposing to change its jurisdiction of organization shall prepare and file in
the appropriate filing office any financing statements or other statements
necessary to continue the perfection of the interests of its immediate and
mediate transferees, including the Trustee, in the Mortgage Loans. In
connection with the transactions contemplated by this Agreement, each of the
Originator and the Depositor authorizes its immediate or mediate transferee to
file in any filing office any initial financing statements, any amendments to
financing statements, any continuation statements, or any other statements or
filings described in this paragraph (b).
ARTICLE III
THE CERTIFICATES
Section 3.01 The Certificates.
(a) The Certificates shall be issuable in registered form only and shall
be securities governed by Article 8 of the New York Uniform Commercial Code.
The Book-Entry Certificates will be evidenced by one or more certificates,
beneficial ownership of which will be held in the dollar denominations in
Certificate Principal Amount, or Notional Amount, as applicable, or in the
Percentage Interests, specified herein. Each Class of Book-Entry Certificates
will be issued in the minimum denominations in Certificate Principal Amount
(or Notional Amount) specified in the Preliminary Statement hereto and in
integral multiples of $1
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in excess thereof. Each Class of Non-Book-Entry Certificates other than the
Residual Certificates shall be issued in definitive, fully registered form in
the minimum denominations in Certificate Principal Amount specified in the
Preliminary Statement hereto and in integral multiples of $1 in excess
thereof. The Residual Certificates shall be issued as single Certificates and
maintained in definitive, fully registered form in a denomination equal to
100% of the Percentage Interest of each such Class. The Class 4-A-6
Certificates shall be issued as single Certificates in a denomination equal to
100% of the Percentage Interest of each such Class.
(b) The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer of the Trustee or of the
Securities Administrator on its behalf. Each Certificate shall, on original
issue, be authenticated by the Authenticating Agent upon the order of the
Depositor upon receipt by the Trustee of the Trustee Mortgage Files described
in Section 2.01. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Authenticating Agent, by
manual signature, and such certification upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been
duly authenticated and delivered hereunder. All Certificates shall be dated
the date of their authentication. At any time and from time to time after the
execution and delivery of this Agreement, the Depositor may deliver
Certificates executed by the Trustee to the Authenticating Agent for
authentication and the Authenticating Agent shall authenticate and deliver
such Certificates as in this Agreement provided and not otherwise.
(c) The Class B-4, Class B-5, Class B-6 and Class A-R Certificates
offered and sold in reliance on the exemption from registration under Rule
144A under the Act shall be issued initially in definitive, fully registered
form without interest coupons with the applicable legends set forth in Exhibit
A added to the forms of such Certificates (each, a "Restricted Global
Security").
Section 3.02 Registration.
The Securities Administrator is hereby appointed, and the Securities
Administrator hereby accepts its appointment as, initial Certificate Registrar
in respect of the Certificates and shall maintain books for the registration
and for the transfer of Certificates (the "Certificate Register"). The Trustee
may appoint a bank or trust company to act as successor Certificate Registrar.
A registration book shall be maintained for the Certificates collectively. The
Certificate Registrar may resign or be discharged or removed and a new
successor may be appointed in accordance with the procedures and requirements
set forth in Sections 6.06 and 6.07 hereof with respect to the resignation,
discharge or removal of the Securities Administrator and the appointment of a
successor Securities Administrator. The Certificate Registrar may appoint, by
a written instrument delivered to the Holders and the Master Servicer, any
bank or trust company to act as co-registrar under such conditions as the
Certificate Registrar may prescribe; provided, however, that the Certificate
Registrar shall not be relieved of any of its duties or responsibilities
hereunder by reason of such appointment.
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Section 3.03 Transfer and Exchange of Certificates.
(a) A Certificate (other than Book-Entry Certificates which shall be
subject to Section 3.09 hereof) may be transferred by the Holder thereof only
upon presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, the Trustee shall
execute, and the Authenticating Agent shall authenticate and deliver to the
transferee, one or more new Certificates of the same Class and evidencing, in
the aggregate, the same aggregate Certificate Principal Amount (or Notional
Amount) as the Certificate being transferred. No service charge shall be made
to a Certificateholder for any registration of transfer of Certificates, but
the Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any
registration of transfer of Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any number
of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same Certificate Principal Amount (or
Notional Amount) as the Certificate surrendered, upon surrender of the
Certificate to be exchanged at the office of the Certificate Registrar duly
endorsed or accompanied by a written instrument of transfer duly executed by
such Holder or his duly authorized attorney in such form as is satisfactory to
the Certificate Registrar. Certificates delivered upon any such exchange will
evidence the same obligations, and will be entitled to the same rights and
privileges, as the Certificates surrendered. No service charge shall be made
to a Certificateholder for any exchange of Certificates, but the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute, and the Authenticating Agent shall authenticate, date
and deliver the Certificates which the Certificateholder making the exchange
is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate
acknowledges the restrictions on the transfer of such Certificate set forth
thereon and agrees that it will transfer such a Certificate only as provided
herein.
The following restrictions shall apply with respect to the transfer and
registration of transfer of a Restricted Certificate to a transferee that
takes delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is (x) to the Depositor
or an affiliate (as defined in Rule 405 under the 0000 Xxx) of the
Depositor or (y) being made to a "qualified institutional buyer" (a
"QIB") as defined in Rule 144A under the Securities Act of 1933, as
amended (the "Act") by a transferor that has provided the Certificate
Registrar with a certificate in the form of Exhibit H hereto; and
(ii) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is being made to an
"accredited investor" under
44
Rule 501(a)(1), (2), (3) or (7) under the Act, or to any Person all of
the equity owners in which are such accredited investors, by a transferor
who furnishes to the Certificate Registrar a letter of the transferee
substantially in the form of Exhibit I hereto.
(d) No transfer of an ERISA-Restricted Certificate in the form of a
Definitive Certificate shall be made to any Person or shall be effective
unless the Certificate Registrar, on behalf of the Trustee, has received (A) a
certificate substantially in the form of Exhibit J hereto (or Exhibit B, in
the case of a Residual Certificate) from such transferee or (B) an Opinion of
Counsel satisfactory to the Certificate Registrar to the effect that the
purchase and holding of such a Certificate will not constitute or result in
any nonexempt prohibited transactions under Title I of ERISA or Section 4975
of the Code and will not subject the Certificate Registrar, the Trustee, the
Master Servicer, the Depositor or the Securities Administrator to any
obligation in addition to those undertaken in the Agreement; provided,
however, that the Certificate Registrar will not require such certificate or
opinion in the event that, as a result of a change of law or otherwise,
counsel satisfactory to the Certificate Registrar has rendered an opinion to
the effect that the purchase and holding of an ERISA-Restricted Certificate by
a Plan or a Person that is purchasing or holding such a Certificate with the
assets of a Plan will not constitute or result in a prohibited transaction
under Title I of ERISA or Section 4975 of the Code and will not subject the
Certificate Registrar, the Trustee, the Master Servicer, the Depositor or the
Securities Administrator to any obligation in addition to those undertaken in
this Agreement. Each Transferee of an ERISA-Restricted Certificate that is a
Book-Entry Certificate shall be deemed to have made the representations set
forth in Exhibit J. The preparation and delivery of the certificate and
opinions referred to above shall not be an expense of the Trust Fund, the
Certificate Registrar, the Trustee, the Master Servicer, the Depositor or the
Securities Administrator.
Notwithstanding the foregoing, no opinion or certificate shall be
required for the initial issuance of the ERISA-Restricted Certificates to the
Underwriter. The Certificate Registrar shall have no obligation to monitor
transfers of Book-Entry Certificates that are ERISA-Restricted Certificates
and shall have no liability for transfers of such Certificates in violation of
the transfer restrictions. The Certificate Registrar shall be under no
liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
3.03(d) and none of the Securities Administrator, the Trustee or the Paying
Agent shall have any liability for making any payments due on such Certificate
to the Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the transfer was registered
by the Certificate Registrar in accordance with the foregoing requirements.
The Securities Administrator, on behalf of the Trustee, shall be entitled, but
not obligated, to recover from any Holder of any ERISA-Restricted Certificate
that was in fact a Plan or a Person acting on behalf of a Plan any payments
made on such ERISA-Restricted Certificate at and after either such time. Any
such payments so recovered by the Securities Administrator, on behalf of the
Trustee, shall be paid and delivered by the Securities Administrator, on
behalf of the Trustee, to the last preceding Holder of such Certificate that
is not such a Plan or Person acting on behalf of a Plan.
(e) As a condition of the registration of transfer or exchange of any
Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge
45
imposed in connection therewith; provided, however, that the Certificate
Registrar shall have no obligation to require such payment or to determine
whether or not any such tax or charge may be applicable. No service charge
shall be made to the Certificateholder for any registration, transfer or
exchange of a Certificate.
(f) Notwithstanding anything to the contrary contained herein, no
Residual Certificate may be owned, pledged or transferred, directly or
indirectly, by or to (i) a Disqualified Organization or (ii) an individual,
corporation or partnership or other person unless such person is (A) not a
Non-U.S. Person or (B) is a Non-U.S. Person that holds a Residual Certificate
in connection with the conduct of a trade or business within the United States
and has furnished the transferor and the Certificate Registrar with an
effective Internal Revenue Service Form W-8ECI or successor form at the time
and in the manner required by the Code (any such person who is not covered by
clause (A) or (B) above is referred to herein as a "Non-permitted Foreign
Holder").
Prior to and as a condition of the registration of any transfer, sale or
other disposition of a Residual Certificate, the proposed transferee shall
deliver to the Trustee and the Certificate Registrar an affidavit in
substantially the form attached hereto as Exhibit B representing and
warranting, among other things, that such transferee is neither a Disqualified
Organization, an agent or nominee acting on behalf of a Disqualified
Organization, nor a Non-permitted Foreign Holder (any such transferee, a
"Permitted Transferee"), and the proposed transferor shall deliver to the
Trustee and the Certificate Registrar an affidavit in substantially the form
attached hereto as Exhibit C. In addition, the Trustee or the Certificate
Registrar may (but shall have no obligation to) require, prior to and as a
condition of any such transfer, the delivery by the proposed transferee of an
Opinion of Counsel, addressed to the Trustee and the Certificate Registrar,
that such proposed transferee or, if the proposed transferee is an agent or
nominee, the proposed beneficial owner, is not a Disqualified Organization,
agent or nominee thereof, or a Non-permitted Foreign Holder. Notwithstanding
the registration in the Certificate Register of any transfer, sale, or other
disposition of a Residual Certificate to a Disqualified Organization, an agent
or nominee thereof, or Non-permitted Foreign Holder, such registration shall
be deemed to be of no legal force or effect whatsoever and such Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder shall
not be deemed to be a Certificateholder for any purpose hereunder, including,
but not limited to, the receipt of distributions on such Residual Certificate.
The Depositor, the Certificate Registrar and the Trustee shall be under no
liability to any Person for any registration or transfer of a Residual
Certificate to a Disqualified Organization, agent or nominee thereof or
Non-permitted Foreign Holder or for the Paying Agent making any payments due
on such Residual Certificate to the Holder thereof or for taking any other
action with respect to such Holder under the provisions of the Agreement, so
long as the transfer was effected in accordance with this Section 3.03(f),
unless the Certificate Registrar shall have actual knowledge at the time of
such transfer or the time of such payment or other action that the transferee
is a Disqualified Organization, or an agent or nominee thereof, or
Non-permitted Foreign Holder. The Certificate Registrar shall be entitled to
recover from any Holder of a Residual Certificate that was a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder at the
time it became a Holder or any subsequent time it became a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder, all
payments made on such Residual Certificate at and after either such times (and
all costs and expenses, including but not limited to attorneys' fees, incurred
in connection therewith). Any
46
payment (not including any such costs and expenses) so recovered by the
Certificate Registrar shall be paid and delivered to the last preceding Holder
of such Residual Certificate.
If any purported transferee shall become a registered Holder of a
Residual Certificate in violation of the provisions of this Section 3.03(f),
then upon receipt of written notice to the Trustee that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 3.03(f), the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of such registration of
transfer of such Residual Certificate. The Depositor, the Certificate
Registrar and the Trustee shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 3.03(f), or for the Paying Agent making any payment
due on such Certificate to the registered Holder thereof or for taking any
other action with respect to such Holder under the provisions of this
Agreement so long as the transfer was registered upon receipt of the affidavit
described in the preceding paragraph of this Section 3.03(f).
(g) Each Holder or Certificate Owner of a Restricted Certificate,
ERISA-Restricted Certificate or Residual Certificate, or an interest therein,
by such Holder's or Owner's acceptance thereof, shall be deemed for all
purposes to have consented to the provisions of this section.
Section 3.04 Cancellation of Certificates.
Any Certificate surrendered for registration of transfer or exchange
shall be cancelled and retained in accordance with normal retention policies
with respect to cancelled certificates maintained by the Trustee or the
Certificate Registrar.
Section 3.05 Replacement of Certificates.
If (i) any Certificate is mutilated and is surrendered to the Trustee or
the Certificate Registrar or (ii) the Trustee or the Certificate Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustee and the Certificate
Registrar such security or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the Depositor, the Trustee
or the Certificate Registrar that such destroyed, lost or stolen Certificate
has been acquired by a protected purchaser, the Trustee shall execute and the
Authenticating Agent shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and Certificate Principal Amount. Upon the issuance
of any new Certificate under this Section 3.05, the Trustee, the Depositor or
the Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee, the
Depositor or the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section 3.05 shall constitute complete and
indefeasible evidence of ownership in the applicable Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
If after the delivery of such new Certificate, a protected purchaser of
the original Certificate in lieu of which such new Certificate was issued
presents for payment such original
47
Certificate, the Depositor, the Certificate Registrar and the Trustee or any
agent shall be entitled to recover such new Certificate from the Person to
whom it was delivered or any Person taking therefrom, except a protected
purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expenses incurred
by the Depositor, the Certificate Registrar, the Trustee or any agent in
connection therewith.
Section 3.06 Persons Deemed Owners.
Subject to the provisions of Section 3.09 with respect to Book-Entry
Certificates, the Depositor, the Master Servicer, the Trustee, the Certificate
Registrar, the Paying Agent and any agent of any of them shall treat the
Person in whose name any Certificate is registered upon the books of the
Certificate Registrar as the owner of such Certificate for the purpose of
receiving distributions pursuant to Sections 5.01 and 5.02 and for all other
purposes whatsoever, and neither the Depositor, the Master Servicer, the
Trustee, the Certificate Registrar, the Paying Agent nor any agent of any of
them shall be affected by notice to the contrary.
Section 3.07 Temporary Certificates.
(a) Pending the preparation of definitive Certificates, upon the order of
the Depositor, the Trustee shall execute and the Authenticating Agent shall
authenticate and deliver temporary Certificates that are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Certificates in lieu of which they are issued and with such variations as the
authorized officers executing such Certificates may determine, as evidenced by
their execution of such Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Certificate Registrar without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Certificates, the Trustee shall execute and the Authenticating Agent
shall authenticate and deliver in exchange therefor a like aggregate
Certificate Principal Amount of definitive Certificates of the same Class in
the authorized denominations. Until so exchanged, the temporary Certificates
shall in all respects be entitled to the same benefits under this Agreement as
definitive Certificates of the same Class.
Section 3.08 Appointment of Paying Agent.
The Trustee may appoint a Paying Agent (which may be the Trustee) for the
purpose of making distributions to the Certificateholders hereunder. The
Trustee hereby appoints the Securities Administrator as the initial Paying
Agent. The Trustee shall cause any Paying Agent, other than the Securities
Administrator, to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee that such Paying Agent will
hold all sums held by it for the payment to the Certificateholders in an
Eligible Account (which shall be the Distribution Account) in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be
paid to the Certificateholders. All funds remitted by the Trustee to any such
Paying Agent for the purpose of making distributions shall be paid to the
Certificateholders on
48
each Distribution Date and any amounts not so paid shall be returned on such
Distribution Date to the Trustee. If the Paying Agent is not the Trustee or
the Securities Administrator, the Trustee shall cause to be remitted to the
Paying Agent on or before the Business Day prior to each Distribution Date, by
wire transfer in immediately available funds, the funds to be distributed on
such Distribution Date. Any Paying Agent shall be either a bank or trust
company or otherwise authorized under law to exercise corporate trust powers.
Section 3.09 Book-Entry Certificates.
(a) Each Class of Book-Entry Certificates, upon original issuance, shall
be issued in the form of one or more typewritten Certificates representing the
Book-Entry Certificates. The Book-Entry Certificates shall initially be
registered on the Certificate Register in the name of the nominee of the
Clearing Agency, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the Book-Entry
Certificates, except as provided in Section 3.09(c). Unless Definitive
Certificates have been issued to Certificate Owners of Book-Entry Certificates
pursuant to Section 3.09(c):
(i) the provisions of this Section 3.09 shall be in full force and
effect;
(ii) the Certificate Registrar, the Paying Agent and the Trustee
shall deal with the Clearing Agency for all purposes (including the
making of distributions on the Book-Entry Certificates) as the authorized
representatives of the Certificate Owners and the Clearing Agency and
shall be responsible for crediting the amount of such distributions to
the accounts of such Persons entitled thereto, in accordance with the
Clearing Agency's normal procedures;
(iii) to the extent that the provisions of this Section 3.09
conflict with any other provisions of this Agreement, the provisions of
this Section 3.09 shall control; and
(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and the Clearing Agency Participants and
shall be limited to those established by law and agreements between such
Certificate Owners and the Clearing Agency and/or the Clearing Agency
Participants. Unless and until Definitive Certificates are issued
pursuant to Section 3.09(c), the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit distributions of principal of and interest on the Book-Entry
Certificates to such Clearing Agency Participants.
(b) Whenever notice or other communication to the Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to Certificate Owners pursuant to Section 3.09(c), the
Securities Administrator shall give all such notices and communications
specified herein to be given to Holders of the Book-Entry Certificates to the
Clearing Agency.
(c) If (i) (A) the Clearing Agency or the Depositor advises the Paying
Agent in writing that the Clearing Agency is no longer willing or able to
discharge properly its responsibilities with respect to the Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor
satisfactory to the Depositor and the Paying Agent, (ii) the
49
Depositor, at its option, advises the Paying Agent in writing that it elects
to terminate the book-entry system through the Clearing Agency or (iii) after
the occurrence of an Event of Default, Certificate Owners representing
beneficial interests aggregating not less than 50% of the Class Principal
Amount of a Class of Book-Entry Certificates advise the Paying Agent and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Certificate Registrar shall notify the Clearing Agency to
effect notification to all Certificate Owners, through the Clearing Agency, of
the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of the Book-Entry Certificates by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency for
registration, the Certificate Registrar shall issue the Definitive
Certificates. Neither the Depositor, the Certificate Registrar nor the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Clearing Agency shall be
deemed to be imposed upon and performed by the Certificate Registrar, to the
extent applicable, with respect to such Definitive Certificates and the
Certificate Registrar shall recognize the holders of the Definitive
Certificates as Certificateholders hereunder. Notwithstanding the foregoing,
the Certificate Registrar, upon the instruction of the Depositor, shall have
the right to issue Definitive Certificates on the Closing Date in connection
with credit enhancement programs.
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01 Custodial Accounts; Distribution Account.
(a) On or prior to the Closing Date, the Master Servicer shall have
caused the Servicer to establish and maintain one or more Custodial Accounts,
as provided in the Purchase and Servicing Agreement, into which all Scheduled
Payments and unscheduled payments with respect to the Mortgage Loans, net of
any deductions or reimbursements permitted under the Purchase and Servicing
Agreement, shall be deposited. On each Distribution Account Deposit Date, the
Servicer shall remit to the Securities Administrator for deposit into the
Distribution Account, all amounts so required to be deposited into such
account in accordance with the terms of the Purchase and Servicing Agreement.
(b) The Securities Administrator, as Paying Agent for the Trustee, shall
establish and maintain an Eligible Account entitled "Distribution Account of
Wachovia Bank, National Association, as Trustee for the benefit of X.X. Xxxxxx
Mortgage Trust 2003-A1, Holders of Mortgage Pass-Through Certificates." The
Securities Administrator shall, promptly upon receipt from the Servicer on
each Distribution Account Deposit Date, deposit into the Distribution Account
and retain on deposit until the related Distribution Date the following
amounts:
(i) the aggregate of collections with respect to the Mortgage Loans
remitted by the Servicer from the Custodial Account in accordance with
the Purchase and Servicing Agreement;
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(ii) any amounts required to be deposited by the Master Servicer
with respect to the Mortgage Loans for the related Due Period pursuant to
this Agreement, including the amount of any Advances or Compensation
Interest Payments with respect to the Mortgage Loans not paid by the
Servicer; and
(iii) any other amounts so required to be deposited in the
Distribution Account in the related Due Period pursuant to this
Agreement.
(c) In the event the Master Servicer or the Servicer has remitted in
error to the Distribution Account any amount not required to be remitted in
accordance with the definition of Available Distribution Amount, it may at any
time direct the Securities Administrator to withdraw such amount from the
Distribution Account for repayment to the Master Servicer or Servicer, as
applicable, by delivery of an Officer's Certificate to the Securities
Administrator and the Trustee which describes the amount deposited in error.
(d) On each Distribution Date and Redemption Date, the Securities
Administrator, as Paying Agent, shall withdraw from funds available in the
Distribution Account and distribute the Available Distribution Amount to the
Certificateholders and any other parties entitled thereto in the amounts and
priorities set forth in Section 5.02. The Securities Administrator may from
time to time withdraw from the Distribution Account and pay the Master
Servicer, the Trustee, the Securities Administrator or the Servicer any
amounts permitted to be paid or reimbursed to such Person from funds in the
Distribution Account pursuant to the clauses (A) through (D) of the definition
of Available Distribution Amount.
(e) Funds in the Distribution Account may be invested in Permitted
Investments selected by and at the written direction of the Securities
Administrator, which shall mature not later than one Business Day prior to the
Distribution Date (except that if such Permitted Investment is an obligation
of the Securities Administrator, then such Permitted Investment shall mature
not later than such applicable Distribution Date) and any such Permitted
Investment shall not be sold or disposed of prior to its maturity. All such
Permitted Investments shall be made in the name of the Trustee (in its
capacity as such) or its nominee. All income and gain realized from any
Permitted Investment shall be for the benefit of the Securities Administrator,
as additional compensation for its duties hereunder, and shall be subject to
its withdrawal or order from time to time, and shall not be part of the Trust
Fund. The amount of any losses incurred in respect of any such investments
shall be deposited in such Distribution Account by the Securities
Administrator out of its own funds, without any right of reimbursement
therefor, immediately as realized.
Section 4.02 [Reserved].
Section 4.03 [Reserved].
Section 4.04 Reports to Trustee and Certificateholders.
On each Distribution Date, the Securities Administrator shall have
prepared and shall make available to the Trustee, the Depositor and each
Certificateholder a written report setting forth the following information (on
the basis of Mortgage Loan level information obtained from the Master Servicer
and the Servicer):
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(a) the amount of the distributions, separately identified, with respect
to each Class of Certificates;
(b) the amount of the distributions set forth in the clause (a) allocable
to principal, separately identifying the aggregate amount of any Principal
Prepayments or other unscheduled recoveries of principal included in that
amount;
(c) the amount of the distributions set forth in the clause (a) allocable
to interest and how it was calculated;
(d) the amount of any unpaid Interest Shortfall and the related accrued
interest thereon, with respect to each Class of Certificates;
(e) the Class Principal Amount of each Class of Certificates after giving
effect to the distribution of principal on that Distribution Date;
(f) the Aggregate Stated Principal Balance of the Mortgage Loans in each
Mortgage Pool at the end of the related Prepayment Period and the applicable
Net WAC of the Mortgage Loans in each Mortgage Pool at the beginning of the
related Due Period;
(g) the Senior Percentage and the Subordinate Percentage for each
Mortgage Pool for the following Distribution Date;
(h) the Senior Prepayment Percentage and Subordinate Prepayment
Percentage for each Mortgage Pool for the following Distribution Date;
(i) in the aggregate and with respect to each Mortgage Pool, the amount
of the Master Servicing Fee and the Servicing Fee paid to or retained by the
Master Servicer and by the Servicer, respectively;
(j) in the aggregate and with respect to each Mortgage Pool, the amount
of Advances for the related Due Period;
(k) in the aggregate and with respect to each Mortgage Pool, the number
and Stated Principal Balance of the Mortgage Loans that were (A) Delinquent
(exclusive of Mortgage Loans in foreclosure) (1) 30 to 59 days, (2) 60 to 89
days and (3) 90 or more days, (B) in foreclosure and Delinquent (1) 30 to 59
days, (2) 60 to 89 days and (3) 90 or more days and (C) in bankruptcy as of
the close of business on the last day of the calendar month preceding that
Distribution Date;
(l) in the aggregate and with respect to each Mortgage Pool, for any
Mortgage Loan as to which the related Mortgaged Property was an REO Property
during the preceding calendar month, the principal balance of that Mortgage
Loan as of the close of business on the last day of the related Due Period;
(m) in the aggregate and with respect to each Mortgage Pool, the amount
of Realized Losses incurred during the preceding calendar month;
52
(n) in the aggregate and with respect to each Mortgage Pool, the
cumulative amount of Realized Losses incurred since the Closing Date;
(o) the Realized Losses, if any, allocated to each Class of Certificates
on that Distribution Date;
(p) the Special Hazard Loss Coverage Amount, the Fraud Loss Coverage
Amount and the Bankruptcy Loss Coverage Amount, in each case as of the related
Determination Date;
(q) the Certificate Interest Rate for each Class of Certificates for that
Distribution Date; and
(r) the amount of any Principal Transfer Amounts or Interest Transfer
Amounts paid to an Undercollateralized Group or Principal Transfers between
Groups in the event of Rapid Prepayment Conditions.
The Securities Administrator shall make such reports available each month
via the Master Servicer's website at xxxx://xxx.xxxxxxx.xxx. Assistance in
using the website may be obtained by calling the Master Servicer's customer
service desk at (000) 000-0000. Certificateholders and other parties that are
unable to use the website are entitled to have a paper copy mailed to them via
first class mail by contacting the Securities Administrator and indicating
such. In preparing or furnishing the foregoing information to the Trustee, the
Securities Administrator shall be entitled to rely conclusively on the
accuracy of the information or data regarding the Mortgage Loans and the
related REO Properties that has been provided to the Securities Administrator
by the Master Servicer and the Servicer, and the Securities Administrator
shall not be obligated to verify, recompute, reconcile or recalculate any such
information or data.
Upon the reasonable advance written request of any Certificateholder that
is a savings and loan, bank or insurance company, which request, if received
by the Trustee or any agent thereof, shall be promptly forwarded to the
Securities Administrator, the Securities Administrator shall provide, or cause
to be provided, (or, to the extent that such information or documentation is
not required to be provided by the Servicer under the Purchase and Servicing
Agreement, shall use reasonable efforts to obtain such information and
documentation from the Servicer, and provide) to such Certificateholders such
reports and access to information and documentation regarding the Mortgage
Loans as such Certificateholders may reasonably deem necessary to comply with
applicable regulations of the Office of Thrift Supervision or its successor or
other regulatory authorities with respect to an investment in the
Certificates; provided, however, that the Securities Administrator shall be
entitled to be reimbursed by such Certificateholders for the Securities
Administrator's actual expenses incurred in providing such reports and access.
53
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01 Distributions Generally.
(a) Subject to Section 7.01 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee or the Paying Agent shall
make distributions in accordance with this Article V. Such distributions shall
be made by check mailed to each Certificateholder's address as it appears on
the Certificate Register of the Certificate Registrar or, upon written request
made to the Securities Administrator at least five Business Days prior to the
related Record Date by any Certificateholder owning an aggregate initial
Certificate Principal Amount of at least $1,000,000, or in the case of a Class
of Interest-Only Certificates or Residual Certificate, a Percentage Interest
of not less than 100%, by wire transfer in immediately available funds to an
account specified in the request and at the expense of such Certificateholder;
provided, however, that the final distribution in respect of any Certificate
shall be made only upon presentation and surrender of such Certificate at the
Certificate Registrar's Corporate Trust Office; provided, further, that the
foregoing provisions shall not apply to any Class of Certificates as long as
such Certificate remains a Book-Entry Certificate in which case all payments
made shall be made through the Clearing Agency and its Clearing Agency
Participants. Wire transfers will be made at the expense of the Holder
requesting such wire transfer by deducting a wire transfer fee from the
related distribution. Notwithstanding such final payment of principal of any
of the Certificates, each Residual Certificate will remain outstanding until
the termination of each REMIC and the payment in full of all other amounts due
with respect to the Residual Certificates and at such time such final payment
in retirement of any Residual Certificate will be made only upon presentation
and surrender of such Certificate at the Certificate Registrar's Corporate
Trust Office. If any payment required to be made on the Certificates is to be
made on a day that is not a Business Day, then such payment will be made on
the next succeeding Business Day.
(b) All distributions or allocations made with respect to the
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in
proportion to their respective initial Class Principal Amounts or initial
Class Notional Amounts (or Percentage Interests).
Section 5.02 Distributions from the Distribution Account.
(a) Subject to Sections 5.02(h) and (i), on each Distribution Date, the
Available Distribution Amount for the related Mortgage Pool (in the case of
the Senior Certificates) and the Mortgage Pools in the aggregate (in the case
of the Subordinate Certificates) shall be withdrawn by the Securities
Administrator from funds on deposit in the Distribution Account allocated
among the classes of Senior Certificates and Subordinate Certificates in the
following order of priority:
(i) Concurrently, from the related Available Distribution Amount, to
the payment of the Interest Distribution Amount and any Interest
Shortfalls for each Class of Senior Certificates;
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(ii) Concurrently, to the Senior Certificates from the Available
Distribution Amount remaining in the related Mortgage Pool after
application of amounts pursuant to clause (i) above, as follows:
(a) sequentially to the Class A-R and Class 1-A-1
Certificates, in that order, the Senior Principal
Distribution Amount for Pool 1, until their respective
Class Principal Amounts have been reduced to zero;
(b) to the Class 2-A-1 Certificates, the Senior Principal
Distribution Amount for Pool 2, until the Class Principal
Amount of such Class has been reduced to zero;
(c) to the Class 3-A-1 Certificates, the Senior Principal
Distribution Amount for Pool 3, until the Class Principal
Amount of such Class has been reduced to zero; and
(d) to the Class 4-A-1, Class 4-A-2, Class 4-A-3, Class 4-A-4
and Class 4-A-5 Certificates, the Senior Principal
Distribution Amount for Pool 4, in the following order of
priority:
(A) to the Class 4-A-1 Certificates, until Class Principal
Amount of such Class has been reduced to zero;
(B) concurrently, to the Class 4-A-2 and Class 4-A-3
Certificates, pro rata, until the respective Class
Principal Amounts of such Classes have been reduced to
zero; and
(C) concurrently, to the Class 4-A-4 and Class 4-A-5
Certificates, pro rata, until the respective Class
Principal Amounts of such Classes have been reduced to
zero;
(iii) To the Subordinate Certificates, as follows:
(A) to the Class B-1 Certificates, the Interest Distribution
Amount and any Interest Shortfalls, in each case, for such Class and
date;
(B) to the Class B-1 Certificates, such Class' Subordinate
Class Percentage of the Subordinate Principal Distribution Amount
for each Mortgage Pool, until its Class Principal Amount has been
reduced to zero;
(C) to the Class B-2 Certificates, the Interest Distribution
Amount and any Interest Shortfalls, in each case, for such Class and
date;
(D) to the Class B-2 Certificates, such Class' Subordinate
Class Percentage of the Subordinate Principal Distribution Amount
for each Mortgage Pool, until its Class Principal Amount has been
reduced to zero;
55
(E) to the Class B-3 Certificates, the Interest Distribution
Amount and any Interest Shortfalls, in each case, for such Class and
date;
(F) to the Class B-3 Certificates, such Class' Subordinate
Class Percentage of the Subordinate Principal Distribution Amount
for each Mortgage Pool, until its Class Principal Amount has been
reduced to zero;
(G) to the Class B-4 Certificates, the Interest Distribution
Amount and any Interest Shortfalls, in each case, for such Class and
date;
(H) to the Class B-4 Certificates, such Class' Subordinate
Class Percentage of the Subordinate Principal Distribution Amount
for each Mortgage Pool, until its Class Principal Amount has been
reduced to zero;
(I) to the Class B-5 Certificates, the Interest Distribution
Amount and any Interest Shortfalls, in each case, for such Class and
date;
(J) to the Class B-5 Certificates, such Class' Subordinate
Class Percentage of the Subordinate Principal Distribution Amount
for each Mortgage Pool, until its Class Principal Amount has been
reduced to zero;
(K) to the Class B-6 Certificates, the Interest Distribution
Amount and any Interest Shortfalls, in each case, for such Class and
date; and
(L) to the Class B-6 Certificates, such Class' Subordinate
Class Percentage of the Subordinate Principal Distribution Amount
for each Mortgage Pool, until its Class Principal Amount has been
reduced to zero;
(iv) To the Class A-R Certificates, any remaining amount of the
Available Distribution Amount from the Mortgage Pools.
(b) On each Distribution Date on and after the Credit Support Depletion
Date, the Available Distribution Amount for each Mortgage Pool shall be
combined and distributed to the remaining Classes of Certificates, on a pro
rata basis, first, to pay the Interest Distribution Amount and any accrued but
unpaid Interest Shortfalls; second, in reduction of the Certificate Principal
Amounts of the Certificates, pro rata (on the basis of their Class Principal
Amounts), until such Certificate Principal Amounts have been reduced to zero;
and third, to the Class A-R Certificate, any remaining Available Distribution
Amount from such Mortgage Pool.
(c) Notwithstanding the priority and allocation set forth in Section
5.02(a)(iii) above, if with respect to any Class of Subordinate Certificates
on any Distribution Date the sum of the related Class Subordination
Percentages of such Class and of all other Classes of Subordinate Certificates
which have a higher numerical Class designation than such Class is less than
the Original Applicable Credit Support Percentage for such Class, no
distribution of Principal Prepayments shall be made to any such Classes and
the amount of such Principal Prepayment otherwise distributable to such
Classes shall be distributed to any Classes of Subordinate Certificates having
lower numerical Class designations than such Class, pro rata, based on the
56
Class Principal Amounts of the respective Classes immediately prior to such
Distribution Date and shall be distributed in the sequential order provided in
Section 5.02(a)(iii) above.
(d) Amounts distributed to the Residual Certificates pursuant to
subparagraph (a)(v) of this Section 5.02 on any Distribution Date shall be
allocated among the REMIC residual interests represented thereby such that
each such interest is allocated the excess of funds available to the related
REMIC over required distributions to the regular interests in such REMIC on
such Distribution Date.
(e) For purposes of distributions provided in paragraph (a), each
Mortgage Pool shall "relate" to the Senior Class or Classes of the applicable
Related Certificate Group.
(f) [Reserved].
(g) For purposes of distributions of interest in paragraph (a) such
distributions to a Class of Certificates on any Distribution Date shall be
made first, in respect of Current Interest; and second, in respect of Interest
Shortfalls.
(h) Notwithstanding the priority of distributions set forth in paragraph
(a) above, if on any Distribution Date prior to the Credit Support Depletion
Date (1) either one of the Rapid Prepayment Conditions is satisfied on such
date and (2) the Certificate Principal Amount of the Senior Certificates
relating to one of the Mortgage Pools have been reduced to zero, then that
portion of the Available Distribution Amount for each Mortgage Pool described
in Section 5.02(a)(ii) that represents principal collections on the Mortgage
Loans shall be applied as an additional distribution to the remaining Classes
of Senior Certificates in reduction of, and in proportion to, the Class
Principal Amounts thereof; provided, however, that any such amounts
distributable to the Group 4 Certificates shall be distributed in accordance
with the priorities set forth in Section 5.02(a)(ii)(d).
(i) If, on any Distribution Date, any Certificate Group would constitute
an Undercollateralized Group and any other Certificate Group constitutes an
Overcollateralized Group, then notwithstanding Section 5.02(a)(ii), the
Available Distribution Amount for a Overcollateralized Group, to the extent
remaining following distributions of interest and principal to the related
Senior Certificates of that Certificate Group, shall be distributed up to the
sum of the Interest Transfer Amount and the Principal Transfer Amount for the
Undercollateralized Group to the Senior Certificates related to the
Undercollateralized Group in payment of accrued but unpaid interest, if any,
and then to such Senior Certificates as principal, in the same order and
priority as such Certificates would receive other distributions of principal.
If more than one Undercollateralized Group exists on any Distribution
Date, the sum of the Interest Transfer Amounts and the Principal Transfer
Amounts shall be allocated among such Undercollateralized Groups, pro rata, on
the basis of the amount by which the aggregate Class Principal Amount of the
related Senior Certificates immediately prior to such Distribution Date
exceeds the aggregate Stated Principal Balance of the Mortgage Loans in that
Undercollateralized Group. If more than one Overcollateralized Group exists on
any Distribution Date, reductions in the Available Distribution Amount for
such Overcollateralized Groups to make the payments required to be made
pursuant to this Section 5.02(i) on such Distribution
57
Date shall be made pro rata, on the basis of the Class Principal Amount of the
related Senior Certificates.
Section 5.03 Allocation of Losses.
(a) On or prior to each Distribution Date, the Master Servicer shall
aggregate the information provided by the Servicer with respect to the total
amount of Realized Losses, including Excess Losses, experienced on the
Mortgage Loans for the related Distribution Date.
(b) On each Distribution Date, the principal portion of Realized Losses
(other than Excess Losses) shall be allocated as follows:
first, to the Classes of Subordinate Certificates in reverse order
of their respective numerical Class designations (beginning with the
Class of Subordinate Certificates with the highest numerical Class
designation) until the Class Principal Amount of each such Class is
reduced to zero; and
second, to each Class of Senior Certificates (other than the
Notional Amount Certificates) relating to the Mortgage Pool which
sustained such loss (allocated among the related Senior Classes on a pro
rata basis), in each case, until the Class Principal Amount of each Class
of Senior Certificates is reduced to zero; provided that any Realized
Losses (other than Excess Losses) in Pool 4 otherwise allocable to the
Class 4-A-4 Certificates shall be allocated to the Class 4-A-5
Certificates, until its Class Principal Amount is reduced to zero;
(c) On each Distribution Date, any Excess Losses on the Mortgage Loans in
a Mortgage Pool shall be allocated to the Classes of Senior Certificates of
the related Certificate Group (other than the Notional Amount Certificates)
and the Subordinate Certificates then outstanding, pro rata, on the basis of,
with respect to such Senior Certificates, their respective Class Principal
Amounts and, with respect to each Class of Subordinate Certificates, the
applicable Apportioned Principal Balance for each such Class relating to the
Mortgage Pool in which such Realized Losses occurs; provided, however, on any
Distribution Date after the third Senior Termination Date for a Certificate
Group, such Excess Losses on the Mortgage Loans in the related Mortgage Pool
will be allocated to the Senior Certificates and Subordinate Certificates on
the basis of their respective Class Principal Amounts; and provided, further,
that after the Credit Support Depletion Date, such Excess Losses shall be
allocated pro rata to all Senior Certificates (other than the Notional Amount
Certificates) regardless of Certificate Group on the basis of their respective
Class Principal Amounts immediately prior to the related Distribution Date,
until the respective Class Principal Amounts of each such Class are reduced to
zero.
(d) On each Distribution Date, the Class Principal Amount of the Class of
Subordinate Certificates then outstanding with the highest numerical Class
designation shall be reduced on each Distribution Date by the amount, if any,
by which the aggregate of the Class Principal Amounts of all outstanding
Classes of Certificates (after giving effect to the distribution of principal
on such Distribution Date) exceeds the Aggregate Stated Principal
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Balance for the following Distribution Date (such amount for any Distribution
Date, the "Subordinate Certificate Write-down Amount").
(e) Any allocation of a loss pursuant to this section to a Class of
Certificates shall be achieved by reducing the Class Principal Amount thereof
by the amount of such loss.
(f) In the event that there is a recovery of an amount in respect of
principal of a Mortgage Loan, which amount had previously been allocated as a
Realized Loss to one or more Classes of Certificates, each outstanding Class
to which any portion of such Realized Loss had previously been allocated shall
be entitled to receive, on the Distribution Date in the month following the
month in which such recovery is received, its pro rata share (based on the
amount of Realized Losses previously allocated thereto) of such recovery, up
to the amount of the portion of such Realized Loss previously allocated to
such Class. Any such recovery allocated to a Class of Certificates shall not
further reduce the Certificate Principal Amount of such Certificate. Any such
amounts not otherwise allocated to any Class of Certificates pursuant to this
subsection shall be treated as Principal Prepayments for purposes of this
Agreement.
Section 5.04 Advances by Master Servicer.
If the Servicer fails to remit any Advance required to be made under the
Purchase and Servicing Agreement, the Master Servicer shall itself make, or
shall cause the successor Servicer to make, such Advance. If the Master
Servicer determines that an Advance is required, it shall on the Business Day
preceding the related Distribution Date immediately following such
Determination Date remit to the Securities Administrator from its own funds
(or funds advanced by the Servicer) for deposit in the Distribution Account
immediately available funds in an amount equal to such Advance. The Master
Servicer and the Servicer shall be entitled to be reimbursed for all Advances
made by it. Notwithstanding anything to the contrary herein, in the event the
Master Servicer determines in its reasonable judgment that an Advance is
non-recoverable, the Master Servicer shall be under no obligation to make such
Advance. If the Master Servicer determines that an Advance is non-recoverable,
it shall, on or prior to the related Distribution Date, deliver an Officer's
Certificate to the Trustee to such effect.
Section 5.05 Compensating Interest Payments.
The amount of the aggregate Master Servicing Fees payable to the Master
Servicer in respect of any Distribution Date shall be reduced (but not below
zero) by the amount of any Compensating Interest Payment for such Distribution
Date, but only to the extent that Prepayment Interest Shortfalls relating to
such Distribution Date are required to be paid by the Servicer pursuant to the
Purchase and Servicing Agreement, as amended by the Acknowledgement, but not
actually paid by the Servicer. Such amount shall not be treated as an Advance
and shall not be reimbursable to the Master Servicer.
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ARTICLE VI
CONCERNING THE TRUSTEE AND
THE SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT
Section 6.01 Duties of Trustee and the Securities Administrator.
(a) The Trustee, except during the continuance of an Event of Default,
and the Securities Administrator undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. Any permissive
right of the Trustee or the Securities Administrator provided for in this
Agreement shall not be construed as a duty of the Trustee or the Securities
Administrator. If an Event of Default has occurred and has not otherwise been
cured or waived, the Trustee or the Securities Administrator shall exercise
such of the rights and powers vested in it by this Agreement and use the same
degree of care and skill in their exercise as a prudent Person would exercise
or use under the circumstances in the conduct of such Person's own affairs,
unless the Trustee is acting as master servicer, in which case it shall use
the same degree of care and skill as a master servicer hereunder.
(b) Each of the Trustee and the Securities Administrator, upon receipt of
all resolutions, certificates, statements, opinions, reports, documents,
orders or other instruments furnished to the Trustee or the Securities
Administrator which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they are
in the form required by this Agreement; provided, however, that neither the
Trustee nor the Securities Administrator shall be responsible for the accuracy
or content of any such resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Master Servicer or the
Servicer to the Trustee or the Securities Administrator pursuant to this
Agreement, and shall not be required to recalculate or verify any numerical
information furnished to the Trustee or the Securities Administrator pursuant
to this Agreement. Subject to the immediately preceding sentence, if any such
resolution, certificate, statement, opinion, report, document, order or other
instrument is found not to conform to the form required by this Agreement in a
material manner the Securities Administrator shall take such action as it
deems appropriate to cause the instrument to be corrected, and if the
instrument is not corrected to the Securities Administrator 's satisfaction,
the Securities Administrator will provide notice thereof to the
Certificateholders and will, at the expense of the Trust Fund, which expense
shall be reasonable given the scope and nature of the required action, take
such further action as directed by the Certificateholders.
(c) Neither the Trustee nor the Securities Administrator shall have any
liability arising out of or in connection with this Agreement, except for its
negligence or willful misconduct. Notwithstanding anything in this Agreement
to the contrary, neither the Trustee nor the Securities Administrator shall be
liable for special, indirect or consequential losses or damages of any kind
whatsoever (including, but not limited to, lost profits). No provision of this
Agreement shall be construed to relieve the Trustee or the Securities
Administrator from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided, however, that:
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(i) the Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates as provided in
Section 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Holders of the Certificates and this Agreement;
(iii) For all purposes under this Agreement, the Securities
Administrator shall not be deemed to have notice of any Event of Default
(other than resulting from a failure by the Master Servicer (i) to remit
funds (or to make Advances) or (ii) to furnish information to the
Securities Administrator when required to do so) unless a Responsible
Officer of the Securities Administrator has actual knowledge thereof or
unless written notice of any event which is in fact such a default is
received by the Securities Administrator at the address provided in
Section 11.07, and such notice references the Holders of the Certificates
and this Agreement;
(iv) No provision of this Agreement shall require the Trustee or the
Securities Administrator to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it; and none of the provisions contained in this Agreement
shall in any event require the Trustee or the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer under this Agreement;
(v) Neither the Trustee nor the Securities Administrator shall be
responsible for any act or omission of the Master Servicer, the
Depositor, the Seller, the Servicer or any Custodian.
(d) The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided,
however, that the Trustee shall promptly remit to the Master Servicer upon
receipt any such complaint, claim, demand, notice or other document (i) which
is delivered to the Corporate Trust Office of the Trustee, (ii) of which a
Responsible Officer has actual knowledge, and (iii) which contains information
sufficient to permit the Trustee to make a determination that the real
property to which such document relates is a Mortgaged Property.
(e) Neither the Trustee nor the Securities Administrator shall be
personally liable with respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with the direction of the
Certificateholders of any Class holding Certificates which evidence, as to
such Class, Percentage Interests aggregating not less than 25% as to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or the Securities
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Administrator or exercising any trust or power conferred upon the Trustee or
the Securities Administrator, as applicable, under this Agreement.
(f) Neither the Trustee nor the Securities Administrator shall be
required to perform services under this Agreement, or to expend or risk its
own funds or otherwise incur financial liability for the performance of any of
its duties hereunder or the exercise of any of its rights or powers if there
is reasonable ground for believing that the timely payment of its fees and
expenses or the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee or the
Securities Administrator, as applicable, to perform, or be responsible for the
manner of performance of, any of the obligations of the Master Servicer or the
Servicer under this Agreement or the Purchase and Servicing Agreement except
during such time, if any, as the Trustee shall be the successor to, and be
vested with the rights, duties, powers and privileges of, the Master Servicer
in accordance with the terms of this Agreement.
(g) The Trustee shall not be held liable by reason of any insufficiency
in the Distribution Account resulting from any investment loss on any
Permitted Investment included therein (except to the extent that the Trustee
is the obligor and has defaulted thereon).
(h) Except as otherwise provided herein, neither the Trustee nor the
Securities Administrator shall have any duty (A) to see to any recording,
filing, or depositing of this Agreement or any agreement referred to herein or
any financing statement or continuation statement evidencing a security
interest, or to see to the maintenance of any such recording or filing or
depositing or to any rerecording, refiling or redepositing of any thereof, (B)
to see to any insurance, (C) to see to the payment or discharge of any tax,
assessment, or other governmental charge or any lien or encumbrance of any
kind owing with respect to, assessed or levied against, any part of the Trust
Fund other than from funds available in the Distribution Account, or (D) to
confirm or verify the contents of any reports or certificates of the Master
Servicer or the Servicer delivered to the Trustee or the Securities
Administrator pursuant to this Agreement believed by the Trustee or the
Securities Administrator, as applicable, to be genuine and to have been signed
or presented by the proper party or parties.
(i) Neither the Securities Administrator nor the Trustee shall be liable
in its individual capacity for an error of judgment made in good faith by a
Responsible Officer or other officers of the Trustee or the Securities
Administrator, as applicable, unless it shall be proved that the Trustee or
the Securities Administrator, as applicable, was negligent in ascertaining the
pertinent facts.
(j) Notwithstanding anything in this Agreement to the contrary, neither
the Securities Administrator nor the Trustee shall be liable for special,
indirect or consequential losses or damages of any kind whatsoever (including,
but not limited to, lost profits), even if the Trustee or the Securities
Administrator, as applicable, has been advised of the likelihood of such loss
or damage and regardless of the form of action.
(k) Neither the Securities Administrator nor the Trustee shall be
responsible for the acts or omissions of the other, it being understood that
this Agreement shall not be construed to render them agents of one another, or
of the Servicer.
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Section 6.02 Certain Matters Affecting the Trustee and the Securities
Administrator.
Except as otherwise provided in Section 6.01:
(i) Each of the Trustee and the Securities Administrator may
request, and may rely and shall be protected in acting or refraining from
acting upon any resolution, Officer's Certificate, certificate of
auditors or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) Each of the Trustee and the Securities Administrator may
consult with counsel and any advice of its counsel or Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator shall be
personally liable for any action taken, suffered or omitted by it in good
faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(iv) Unless an Event of Default shall have occurred and be
continuing, neither the Trustee nor the Securities Administrator shall be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document
(provided the same appears regular on its face), unless requested in
writing to do so by the Holders of at least a majority in Class Principal
Amount (or Percentage Interest) of each Class of Certificates; provided,
however, that, if the payment within a reasonable time to the Trustee or
the Securities Administrator, as applicable, of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee or the Securities
Administrator, as applicable, not reasonably assured to the Trustee or
the Securities Administrator by the security afforded to it by the terms
of this Agreement, the Trustee or the Securities Administrator, as
applicable, may require reasonable indemnity against such expense or
liability or payment of such estimated expenses from the
Certificateholders as a condition to proceeding. The reasonable expense
thereof shall be paid by the party requesting such investigation and if
not reimbursed by the requesting party shall be reimbursed to the Trustee
by the Trust Fund;
(v) Each of the Trustee and the Securities Administrator may execute
any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, custodians or attorneys, which
agents, custodians or attorneys shall have any and all of the rights,
powers, duties and obligations of the Trustee and the Securities
Administrator conferred on them by such appointment, provided that each
of the Trustee and the Securities Administrator shall continue to be
responsible for its duties and obligations hereunder to the extent
provided herein, and provided further that neither the Trustee nor the
Securities Administrator shall be responsible for any misconduct or
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negligence on the part of any such agent or attorney appointed with due
care by the Trustee or the Securities Administrator, as applicable;
(vi) Neither the Trustee nor the Securities Administrator shall be
under any obligation to exercise any of the trusts or powers vested in it
by this Agreement or to institute, conduct or defend any litigation
hereunder or in relation hereto, in each case at the request, order or
direction of any of the Certificateholders pursuant to the provisions of
this Agreement, unless such Certificateholders shall have offered to the
Trustee or the Securities Administrator, as applicable, reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby;
(vii) The right of the Trustee and the Securities Administrator to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and neither the Trustee nor the Securities
Administrator shall be answerable for other than its negligence or
willful misconduct in the performance of such act; and
(viii) Neither the Trustee nor the Securities Administrator shall be
required to give any bond or surety in respect of the execution of the
Trust Fund created hereby or the powers granted hereunder.
Section 6.03 Trustee and Securities Administrator Not Liable for
Certificates.
The Trustee and the Securities Administrator make no representations as
to the validity or sufficiency of this Agreement or of the Certificates (other
than, in the case of the Securities Administrator, the certificate of
authentication on the Certificates) or of any Mortgage Loan, or related
document save that the Trustee and the Securities Administrator represent
that, assuming due execution and delivery by the other parties hereto, this
Agreement has been duly authorized, executed and delivered by it and
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms except that such enforceability may be subject to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally, and (B) general
principles of equity regardless of whether such enforcement is considered in a
proceeding in equity or at law. The Trustee and the Securities Administrator
shall not be accountable for the use or application by the Depositor of funds
paid to the Depositor in consideration of the assignment of the Mortgage Loans
to the Trust Fund by the Depositor or for the use or application of any funds
deposited into the Distribution Account or any other fund or account
maintained with respect to the Certificates. The Trustee and the Securities
Administrator 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. Except as
otherwise provided herein, the Trustee and the Securities Administrator 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.
Section 6.04 Trustee and the Securities Administrator May Own
Certificates.
The Trustee and the Securities Administrator and any Affiliate or agent
of either of them in its individual or any other capacity may become the owner
or pledgee of Certificates and may
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transact banking and trust business with the other parties hereto and their
Affiliates with the same rights it would have if it were not Trustee,
Securities Administrator or such agent.
Section 6.05 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be (i) an institution insured by
the FDIC, (ii) a corporation or national banking association, organized and
doing business under the laws of any State or the United States of America,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority and (iii) not an
Affiliate of the Master Servicer or the Servicer. If such corporation or
national banking association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then, for the purposes of this Section, the combined
capital and surplus of such corporation or national banking association shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified
in Section 6.06.
Section 6.06 Resignation and Removal of Trustee and the Securities
Administrator.
(a) Each of the Trustee and the Securities Administrator may at any time
resign and be discharged from the trust hereby created by giving written
notice thereof to the Trustee or the Securities Administrator, as applicable,
the Depositor and the Master Servicer. Upon receiving such notice of
resignation, the Depositor will promptly appoint a successor trustee or a
successor securities administrator, as applicable, by written instrument, one
copy of which instrument shall be delivered to the resigning Trustee or
resigning Securities Administrator, as applicable, one copy to the successor
trustee or successor securities administrator, as applicable, and one copy to
the Master Servicer. If no successor trustee or successor securities
administrator shall have been so appointed and shall have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee or resigning Securities Administrator, as applicable, may petition any
court of competent jurisdiction for the appointment of a successor trustee or
successor securities administrator, as applicable.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.05 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee or the Securities
Administrator shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Trustee or the Securities
Administrator of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or the Securities Administrator or of
either of their property or affairs for the purpose of rehabilitation,
conservation or liquidation, (iii) a tax is imposed or threatened with respect
to the Trust Fund by any state in which the Trustee or the Trust Fund held by
the Trustee is located, or (iv) the continued use of the Trustee or Securities
Administrator would result in a downgrading of the rating by any Rating Agency
of any Class of Certificates with a rating, then the Depositor shall remove
the Trustee or the Securities Administrator, as applicable, and the Depositor
shall appoint a successor trustee or successor securities administrator, as
applicable, acceptable to the Master Servicer by written instrument, one copy
of which instrument shall be delivered to the
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Trustee or Securities Administrator so removed, one copy each to the successor
trustee or successor securities Administrator, as applicable, and one copy to
the Master Servicer.
(c) The Holders of more than 50% of the Class Principal Amount (or
Percentage Interest) of each Class of Certificates may at any time upon 30
days' written notice to the Trustee or the Securities Administrator, as
applicable, and to the Depositor remove the Trustee or the Securities
Administrator, as applicable, by such written instrument, signed by such
Holders or their attorney-in-fact duly authorized, one copy of which
instrument shall be delivered to the Depositor, one copy to the Trustee or
Securities Administrator, as applicable and one copy to the Master Servicer;
the Depositor shall thereupon appoint a successor trustee or successor
securities administrator, as applicable, in accordance with this Section.
(d) Any resignation or removal of the Trustee or the Securities
Administrator, as applicable, and appointment of a successor trustee or
successor securities administrator pursuant to any of the provisions of this
Section shall become effective upon acceptance of appointment by the successor
trustee or the successor securities administrator, as applicable, as provided
in Section 6.07.
Section 6.07 Successor Trustee and Successor Securities Administrator.
(a) Any successor trustee or successor securities administrator appointed
as provided in Section 6.06 shall execute, acknowledge and deliver to the
Depositor and to its predecessor trustee or predecessor securities
administrator, as applicable, an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
or predecessor securities administrator, as applicable, shall become effective
and such successor trustee or successor securities administrator, as
applicable, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as trustee or securities
administrator, as applicable, herein. The predecessor trustee or predecessor
securities administrator, as applicable, shall deliver to the successor
trustee (or assign to the Trustee its interest under the Custodial Agreement,
to the extent permitted thereunder) or successor securities administrator, as
applicable, all Trustee Mortgage Files and documents and statements related to
each Trustee Mortgage File held by it hereunder, and shall duly assign,
transfer, deliver and pay over to the successor trustee the entire Trust Fund,
together with all necessary instruments of transfer and assignment or other
documents properly executed necessary to effect such transfer and such of the
records or copies thereof maintained by the predecessor trustee in the
administration hereof as may be requested by the successor trustee and shall
thereupon be discharged from all duties and responsibilities under this
Agreement. In addition, the Depositor and the predecessor trustee or
predecessor securities administrator, as applicable, shall execute and deliver
such other instruments and do such other things as may reasonably be required
to more fully and certainly vest and confirm in the successor trustee or
successor securities administrator, as applicable, all such rights, powers,
duties and obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such appointment such successor trustee shall be
eligible under the provisions of Section 6.05.
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(c) Upon acceptance of appointment by a successor trustee or successor
securities administrator, as applicable, as provided in this Section, the
predecessor trustee or predecessor securities administrator, as applicable,
shall mail notice of the succession of such trustee or securities
administrator, as applicable, hereunder to all Holders of Certificates at
their addresses as shown in the Certificate Register and to any Rating Agency.
Section 6.08 Merger or Consolidation of Trustee or the Securities
Administrator.
Any Person into which the Trustee or Securities Administrator may be
merged or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Trustee or Securities
Administrator shall be a party, or any Persons succeeding to the business of
the Trustee or Securities Administrator, shall be the successor to the Trustee
or Securities Administrator hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, provided that, in the case of the
Trustee, such Person shall be eligible under the provisions of Section 6.05.
Section 6.09 Appointment of Co-Trustee, Separate Trustee or Custodian.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or the Certificateholders evidencing more than 50% of
the Class Principal Amount (or Percentage Interest) of every Class of
Certificates shall have the power from time to time to appoint one or more
Persons, approved by the Trustee, to act either as co-trustees jointly with
the Trustee, or as separate trustees, or as custodians, for the purpose of
holding title to, foreclosing or otherwise taking action with respect to any
Mortgage Loan outside the state where the Trustee has its principal place of
business where such separate trustee or co-trustee is necessary or advisable
(or the Trustee has been advised by the Master Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state
in which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in any
state in which a property securing a Mortgage Loan is located or in any state
in which any portion of the Trust Fund is located. The separate Trustees,
co-trustees, or custodians so appointed shall be trustees or custodians for
the benefit of all the Certificateholders and shall have such powers, rights
and remedies as shall be specified in the instrument of appointment; provided,
however, that no such appointment shall, or shall be deemed to, constitute the
appointee an agent of the Trustee. The obligation of the Master Servicer to
make Advances pursuant to Section 5.04 hereof shall not be affected or
assigned by the appointment of a co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or performed by the
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Trustee and such separate trustee, co-trustee, or custodian jointly,
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations, including the holding of
title to the Trust Fund or any portion thereof in any such jurisdiction,
shall be exercised and performed by such separate trustee, co-trustee, or
custodian;
(iii) no trustee or custodian hereunder shall be personally liable
by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee may at any time, by an instrument in writing
executed by it, with the concurrence of the Depositor, accept the
resignation of or remove any separate trustee, co-trustee or custodian,
so appointed by it or them, if such resignation or removal does not
violate the other terms of this Agreement.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision
of this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed
with the Trustee and a copy given to the Master Servicer.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.05 hereunder and no notice to the Certificateholders of the appointment
shall be required under Section 6.07 hereof.
(f) The Trustee agrees to instruct the co-trustees, if any, to the extent
necessary to fulfill the Trustee's obligations hereunder.
(g) The Trust shall pay the reasonable compensation of the co-trustees
(which compensation shall not reduce any compensation payable to the Trustee
under such Section).
Section 6.10 Authenticating Agents.
(a) The Trustee may appoint one or more Authenticating Agents which shall
be authorized to act on behalf of the Trustee in authenticating Certificates.
The Trustee hereby
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appoints the Securities Administrator as initial Authenticating Agent, and the
Securities Administrator accepts such appointment. Wherever reference is made
in this Agreement to the authentication of Certificates by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an Authenticating Agent and
a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America or
of any state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision
or examination by federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any Person succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at least 30
days' advance written notice of resignation to the Trustee and the Depositor.
The Trustee may at any time terminate the agency of any Authenticating Agent
by giving written notice of termination to such Authenticating Agent and the
Depositor. Upon receiving a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.10, the Trustee may appoint a
successor authenticating agent, shall give written notice of such appointment
to the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor authenticating agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No successor authenticating agent
shall be appointed unless eligible under the provisions of this Section 6.10.
No Authenticating Agent shall have responsibility or liability for any action
taken by it as such at the direction of the Trustee.
Section 6.11 Indemnification of the Trustee and the Securities
Administrator.
The Trustee and the Securities Administrator and their respective
directors, officers, employees and agents shall be entitled to indemnification
from the Depositor and the Trust Fund (provided that the Trust Fund's
indemnification under this Section 6.11 is limited by Section 4.01(d) for any
loss, liability or expense (including, without limitation, reasonable
attorneys' fees and disbursements (and, in the case of the Trustee, in
connection with the Custodial Agreement, including the reasonable compensation
and the expenses and disbursements of its agents or counsel), incurred without
negligence or willful misconduct on their part, arising out of, or in
connection with, the acceptance or administration of the trusts created
hereunder or in connection with the performance of their duties hereunder
including the costs and expenses of defending themselves against any claim in
connection with the exercise or performance of any of their powers or duties
hereunder, provided that:
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(i) with respect to any such claim, the Trustee or the Securities
Administrator, as applicable, shall have given the Depositor written
notice thereof promptly after the Trustee, the Securities Administrator,
as applicable, shall have knowledge thereof;
(ii) while maintaining control over its own defense, the Trustee or
the Securities Administrator, as applicable, shall cooperate and consult
fully with the Depositor in preparing such defense; and
(iii) notwithstanding anything to the contrary in this Section 6.11,
the Trust Fund shall not be liable for settlement of any such claim by
the Trustee or the Securities Administrator, as applicable, entered into
without the prior consent of the Depositor, which consent shall not be
unreasonably withheld.
The provisions of this Section 6.11 shall survive any termination of this
Agreement and the resignation or removal of the Trustee or the Securities
Administrator, as applicable, and shall be construed to include, but not be
limited to any loss, liability or expense under any environmental law.
Section 6.12 Fees and Expenses of Securities Administrator and the
Trustee.
(a) Compensation for the services of the Securities Administrator
hereunder shall be paid by the Master Servicer. The Securities Administrator
shall be entitled to all disbursements and advancements incurred or made by
the Securities Administrator in accordance with this Agreement (including fees
and expenses of its counsel and all persons not regularly in its employment),
except any such expenses arising from its negligence, bad faith or willful
misconduct.
(b) As compensation for its services hereunder, the Trustee shall be
entitled to receive a Trustee fee (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) which
shall be paid by the Master Servicer pursuant to a separate agreement between
the Trustee and the Master Servicer. Any expenses incurred by the Trustee
shall be reimbursed in accordance with Section 6.11.
Section 6.13 Collection of Monies.
Except as otherwise expressly provided in this Agreement, the Trustee may
demand payment or delivery of, and shall receive and collect, all money and
other property payable to or receivable by the Trustee pursuant to this
Agreement. The Trustee shall hold all such money and property received by it
as part of the Trust Fund and shall distribute it as provided in this
Agreement.
Section 6.14 Events of Default; Trustee To Act; Appointment of Successor.
(a) The occurrence of any one or more of the following events shall
constitute an "Event of Default":
(i) Any failure by the Master Servicer to furnish the Securities
Administrator the Mortgage Loan data sufficient to prepare the reports
described in Section 4.04 which
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continues unremedied for a period of one Business Day after the date upon
which written notice of such failure shall have been given to such Master
Servicer by the Trustee or the Securities Administrator or to such Master
Servicer, the Securities Administrator and the Trustee by the Holders of
not less than 25% of the Class Principal Amount of each Class of
Certificates affected thereby; or
(ii) Any failure on the part of the Master Servicer duly to observe
or perform in any material respect any other of the covenants or
agreements (other than those referred to in (viii) and (ix) below) on the
part of the Master Servicer contained in this Agreement 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 Master Servicer by the Trustee or the Securities Administrator, or
to the Master Servicer, the Securities Administrator and the Trustee by
the Holders of more than 50% of the Aggregate Voting Interests of the
Certificates; or
(iii) A decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer, and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days or any Rating
Agency reduces or withdraws or threatens to reduce or withdraw the rating
of the Certificates because of the financial condition or loan servicing
capability of such Master Servicer; or
(iv) The Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities, voluntary liquidation or
similar proceedings of or relating to the Master Servicer or of or
relating to all or substantially all of its property; or
(v) The Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors or voluntarily suspend
payment of its obligations; or
(vi) The Master Servicer shall be dissolved, or shall dispose of all
or substantially all of its assets, or consolidate with or merge into
another entity or shall permit another entity to consolidate or merge
into it, such that the resulting entity does not meet the criteria for a
successor servicer as specified in Section 9.05 hereof; or
(vii) If a representation or warranty set forth in Section 9.03
hereof shall prove to be incorrect as of the time made in any respect
that materially and adversely affects the interests of the
Certificateholders, and the circumstance or condition in respect of which
such representation or warranty was incorrect shall not have been
eliminated or cured within 30 days after the date on which written notice
of such incorrect representation or warranty shall have been given to the
Master Servicer by the Trustee or the Securities Administrator, or to the
Master Servicer, the Securities Administrator and the Trustee by the
Holders of more than 50% of the Aggregate Voting Interests of the
Certificates; or
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(viii) A sale or pledge of any of the rights of the Master Servicer
hereunder or an assignment of this Agreement by the Master Servicer or a
delegation of the rights or duties of the Master Servicer hereunder shall
have occurred in any manner not otherwise permitted hereunder and without
the prior written consent of the Trustee and Certificateholders holding
more than 50% of the Aggregate Voting Interests of the Certificates; or
(ix) After receipt of notice from the Trustee, any failure of the
Master Servicer to make any Advances required to be made hereunder.
If an Event of Default described in clauses (i) through (ix) of this
Section shall occur, then, in each and every case, subject to applicable law,
so long as any such Event of Default shall not have been remedied within any
period of time prescribed by this Section, the Trustee, by notice in writing
to the Master Servicer may, and shall, if so directed by Certificateholders
evidencing more than 50% of the Class Principal Amount of each Class of
Certificates, terminate all of the rights and obligations of the Master
Servicer hereunder and in and to the Mortgage Loans and the proceeds thereof.
On or after the receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer, and only in its capacity as Master
Servicer under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in the Trustee; and the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of the
defaulting Master Servicer as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents or otherwise. The defaulting Master
Servicer agrees to cooperate with the Trustee and the Securities Administrator
in effecting the termination of the defaulting Master Servicer's
responsibilities and rights hereunder as Master Servicer including, without
limitation, notifying the Servicer of the assignment of the master servicing
function and providing the Trustee or its designee all documents and records
in electronic or other form reasonably requested by it to enable the Trustee
or its designee to assume the defaulting Master Servicer's functions hereunder
and the transfer to the Trustee for administration by it of all amounts which
shall at the time be or should have been deposited by the defaulting Master
Servicer in the Distribution Account and any other account or fund maintained
with respect to the Certificates or thereafter received with respect to the
Mortgage Loans. The Master Servicer being terminated shall bear all costs of a
master servicing transfer, including but not limited to those of the Trustee
or Securities Administrator reasonably allocable to legal fees and expenses,
accounting and financial consulting fees and expenses, and costs of amending
the Agreement, if necessary.
Notwithstanding the termination of its activities as Master Servicer,
each terminated Master Servicer shall continue to be entitled to reimbursement
under this Agreement to the extent such reimbursement relates to the period
prior to such Master Servicer's termination.
If any Event of Default shall occur, the Trustee, upon becoming aware of
the occurrence thereof, shall promptly notify the Securities Administrator and
each Rating Agency of the nature and extent of such Event of Default. The
Trustee or the Securities Administrator shall immediately give written notice
to the Master Servicer upon the Master Servicer's failure to make Advances as
required under this Agreement.
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(b) On and after the time the Master Servicer receives a notice of
termination from the Trustee pursuant to Section 6.14(a) or the Trustee
receives the resignation of the Master Servicer evidenced by an Opinion of
Counsel pursuant to Section 9.06, the Trustee, unless another master servicer
shall have been appointed, shall be the successor in all respects to the
Master Servicer in its capacity as such under this Agreement and the
transactions set forth or provided for herein and shall have all the rights
and powers and be subject to all the responsibilities, duties and liabilities
relating thereto and arising thereafter placed on the Master Servicer
hereunder, including the obligation to make Advances; provided, however, that
any failure to perform such duties or responsibilities caused by the Master
Servicer's failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In addition, the Trustee
shall have no responsibility for any act or omission of the Master Servicer
prior to the issuance of any notice of termination. The Trustee shall have no
liability relating to the representations and warranties of the Master
Servicer set forth in Section 9.03. In the Trustee's capacity as such
successor, the Trustee shall have the same limitations on liability herein
granted to the Master Servicer. As compensation therefor, the Trustee shall be
entitled to receive all compensation payable to the Master Servicer under this
Agreement, including the Master Servicing Fee.
(c) Notwithstanding the above, the Trustee may, if it shall be unwilling
to continue to so act, or shall, if it is unable to so act, petition a court
of competent jurisdiction to appoint, or appoint on its own behalf any
established housing and home finance institution servicer, master servicer,
servicing or mortgage servicing institution having a net worth of not less
than $15,000,000 and meeting such other standards for a successor master
servicer as are set forth in this Agreement, as the successor to such Master
Servicer in the assumption of all of the responsibilities, duties or
liabilities of a master servicer, like the Master Servicer. Any entity
designated by the Trustee as a successor master servicer may be an Affiliate
of the Trustee; provided, however, that, unless such Affiliate meets the net
worth requirements and other standards set forth herein for a successor master
servicer, the Trustee, in its individual capacity shall agree, at the time of
such designation, to be and remain liable to the Trust Fund for such
Affiliate's actions and omissions in performing its duties hereunder. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that
no such compensation shall be in excess of that permitted to the Master
Servicer hereunder. The Trustee and such successor shall take such actions,
consistent with this Agreement, as shall be necessary to effectuate any such
succession and may make other arrangements with respect to the servicing to be
conducted hereunder which are not inconsistent herewith. The Master Servicer
shall cooperate with the Trustee and any successor master servicer in
effecting the termination of the Master Servicer's responsibilities and rights
hereunder including, without limitation, notifying Mortgagors of the
assignment of the master servicing functions and providing the Trustee and
successor master servicer, as applicable, all documents and records in
electronic or other form reasonably requested by it to enable it to assume the
Master Servicer's functions hereunder and the transfer to the Trustee or such
successor master servicer, as applicable, all amounts which shall at the time
be or should have been deposited by the Master Servicer in the Distribution
Account and any other account or fund maintained with respect to the
Certificates or thereafter be received with respect to the Mortgage Loans.
Neither the Trustee nor any other successor master servicer shall be deemed to
be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion
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thereof caused by (i) the failure of the Master Servicer to deliver, or any
delay in delivering, cash, documents or records to it, (ii) the failure of the
Master Servicer to cooperate as required by this Agreement, (iii) the failure
of the Master Servicer to deliver the Mortgage Loan data to the Trustee as
required by this Agreement or (iv) restrictions imposed by any regulatory
authority having jurisdiction over the Master Servicer. No successor master
servicer shall be deemed to be in default hereunder by reason of any failure
to make, or any delay in making, any distribution hereunder or any portion
thereof caused by (i) the failure of the Trustee to deliver, or any delay in
delivering cash, documents or records to it related to such distribution, or
(ii) the failure of Trustee to cooperate as required by this Agreement.
Section 6.15 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 6.14, shall have the right, in its own name and as
trustee of the Trust Fund, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no
remedy provided for by this Agreement shall be exclusive of any other remedy,
and each and every remedy shall be cumulative and in addition to any other
remedy, and no delay or omission to exercise any right or remedy shall impair
any such right or remedy or shall be deemed to be a waiver of any Event of
Default.
Section 6.16 Waiver of Defaults.
More than 50% of the Aggregate Voting Interests of the Certificateholders
may waive any default or Event of Default by the Master Servicer in the
performance of its obligations hereunder, except that a default in the making
of any required deposit to the Distribution Account that would result in a
failure of the Trustee or Securities Administrator to make any required
payment of principal of or interest on the Certificates may only be waived
with the consent of 100% of the affected Certificateholders. Upon any such
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 6.17 Notification to Holders.
Upon termination of the Master Servicer or appointment of a successor to
the Master Servicer, in each case as provided herein, the Trustee shall
promptly mail notice thereof by first class mail to the Securities
Administrator and the Certificateholders at their respective addresses
appearing on the Certificate Register. The Trustee shall also, within 45 days
after the occurrence of any Event of Default known to the Trustee, give
written notice thereof to the Securities Administrator and the
Certificateholders, unless such Event of Default shall have been cured or
waived prior to the issuance of such notice and within such 45-day period.
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Section 6.18 Directions by Certificateholders and Duties of Trustee
During Event of Default.
Subject to the provisions of Section 8.01 hereof, during the continuance
of any Event of Default, Holders of Certificates evidencing not less than 25%
of the Class Principal Amount (or Percentage Interest) of each Class of
Certificates affected thereby may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; provided, however, that the Trustee shall be under no obligation to
pursue any such remedy, or to exercise any of the trusts or powers vested in
it by this Agreement (including, without limitation, (i) the conducting or
defending of any administrative action or litigation hereunder or in relation
hereto and (ii) the terminating of the Master Servicer or any successor master
servicer from its rights and duties as master servicer hereunder) at the
request, order or direction of any of the Certificateholders, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the cost, expenses and liabilities which may be incurred
therein or thereby; and, provided further, that, subject to the provisions of
Section 8.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee, in accordance with an Opinion of Counsel, determines
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith determines that the action or proceeding so directed
would involve it in personal liability for which it is not indemnified to its
satisfaction or be unjustly prejudicial to the non-assenting
Certificateholders.
Section 6.19 Action Upon Certain Failures of the Master Servicer and Upon
Event of Default.
In the event that the Trustee shall have actual knowledge of any action
or inaction of the Master Servicer that would become an Event of Default upon
the Master Servicer's failure to remedy the same after notice, the Trustee
shall give notice thereof to the Master Servicer.
Section 6.20 Preparation of Tax Returns and Other Reports.
(a) The Securities Administrator shall prepare or cause to be prepared on
behalf of the Trust Fund, based upon information calculated in accordance with
this Agreement pursuant to instructions given by the Depositor, and the
Securities Administrator shall file federal tax returns, all in accordance
with Article X hereof. If the Trustee notifies the Securities Administrator in
writing that a state tax return or other return is required, then, at the sole
expense of the Trust Fund, the Securities Administrator shall prepare and file
such state income tax returns and such other returns as may be required by
applicable law relating to the Trust Fund, and, if required by state law,
shall file any other documents to the extent required by applicable state tax
law (to the extent such documents are in the Securities Administrator's
possession). The Securities Administrator shall forward copies to the
Depositor of all such returns and Form 1099 supplemental tax information and
such other information within the control of the Securities Administrator as
the Depositor may reasonably request in writing, and shall forward to each
Certificateholder such forms and furnish such information within the control
of the Securities Administrator as are required by the Code and the REMIC
Provisions to be furnished to them, and will prepare and forward to
Certificateholders Form 1099 (supplemental tax information) (or otherwise
furnish information within the control of the
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Securities Administrator) to the extent required by applicable law. The Master
Servicer will indemnify the Securities Administrator and the Trustee for any
liability of or assessment against the Securities Administrator or the
Trustee, as applicable, resulting from any error in any of such tax or
information returns directly resulting from errors in the information provided
by such Master Servicer.
(b) The Securities Administrator shall prepare and file with the Internal
Revenue Service ("IRS"), on behalf of the Trust Fund and each REMIC created
hereunder, an application for an employer identification number on IRS Form
SS-4 or by any other acceptable method. The Securities Administrator shall
also file a Form 8811 as required. The Securities Administrator, upon receipt
from the IRS of the Notice of Taxpayer Identification Number Assigned, shall
upon request promptly forward a copy of such notice to the Trustee and the
Depositor. The Securities Administrator shall furnish any other information
that is required by the Code and regulations thereunder to be made available
to the Certificateholders. The Master Servicer shall cause the Servicer to
provide the Securities Administrator with such information as is necessary for
the Securities Administrator to prepare such reports.
(c) Within 15 days after each Distribution Date, the Securities
Administrator shall, on behalf of the Trust and in accordance with industry
standards, file with the Securities and Exchange Commission (the "Commission")
via the Electronic Data Gathering and Retrieval System (XXXXX), a Form 8-K
with a copy of the report to the Certificateholders for such Distribution Date
as an exhibit thereto. Prior to Xxxxx 00, 0000 (xxx, if applicable, prior to
March 30 of each year), the Securities Administrator shall, on behalf of the
Trust and in accordance with industry standards, file with the Commission via
XXXXX a Form 10-K with respect to the Trust Fund. In addition, the Securities
Administrator will cause its senior officer in charge of securitization to
execute the certification (the "Form 10-K Certification") required pursuant to
Rule 13a-14 under the Securities Exchange Act of 1934, as amended, and to file
the same with the Commission prior to Xxxxx 00, 0000 (xxx, if applicable,
prior to March 30 of each year). To the extent any information or exhibits
required to be included in the Form 10-K are not timely received by the
Securities Administrator prior to March 30, the Securities Administrator
shall, on behalf of the Trust, file one or more amended Form 10-Ks to include
such missing information or exhibits promptly after receipt thereof by the
Securities Administrator. Promptly following the first date legally
permissible under applicable regulations and interpretations of the
Commission, the Securities Administrator shall, on behalf of the Trust and in
accordance with industry standards, file with the Commission via XXXXX a Form
15 Suspension Notification with respect to the Trust Fund, if applicable. Each
of the Master Servicer and the Trustee agree to furnish to the Securities
Administrator promptly, from time to time upon request, such further
information, reports and financial statements within its control related to
this Agreement and the Mortgage Loans as the Securities Administrator
reasonably deems appropriate to prepare and file all necessary reports with
the Commission. The Securities Administrator shall have no responsibility to
file any items with the Commission other than those specified in this section.
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ARTICLE VII
PURCHASE OF MORTGAGE LOANS AND
TERMINATION OF THE TRUST FUND
Section 7.01 Purchase of Mortgage Loans; Termination of Trust Fund Upon
Purchase or Liquidation of All Mortgage Loans.
(a) The respective obligations and responsibilities of the Trustee, the
Securities Administrator and the Master Servicer created hereby (other than
the obligation of the Securities Administrator to make payments to the
Certificateholders as set forth in Section 7.02), shall terminate on the
earliest of (i) the final payment or other liquidation of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property, (ii)
the sale of the property held by the Trust Fund in accordance with Section
7.01(c) and (iii) the Latest Possible Maturity Date; provided, however, that
in no event shall the Trust Fund created hereby continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Xxxxxx
X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof. Any termination of the Trust Fund shall be
carried out in such a manner so that the termination of each REMIC included
therein shall qualify as a "qualified liquidation" under the REMIC Provisions.
(b) [Reserved].
(c) On any Distribution Date occurring on or after the Initial Optional
Purchase Date, the Depositor has the option to cause the Trust Fund to adopt a
plan of complete liquidation pursuant to Sections 7.02 and 7.03 hereof to sell
all of its property. If the Depositor elects to exercise such option, it shall
no later than 30 days prior to the Distribution Date selected for purchase of
the assets of the Trust Fund (the "Purchase Date") deliver written notice to
the Trustee and the Securities Administrator and either (a) deposit in the
Distribution Account the Redemption Price or (b) state in such notice that the
Redemption Price shall be deposited in the Distribution Account not later than
10:00 a.m., New York City time, on the applicable Purchase Date. Upon exercise
of such option, the property of the Trust Fund shall be sold to the Depositor
at a price equal to the Redemption Price.
(d) The Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee and the Custodian shall be reimbursed from the
Redemption Price for any Advances, Servicer Advances, accrued and unpaid
Servicing Fees and Master Servicing Fees or other amounts with respect to the
Mortgage Loans that are reimbursable to such parties under this Agreement, the
Purchase and Servicing Agreement or the Custodial Agreement.
Section 7.02 Procedure Upon Redemption Termination of Trust Fund.
(a) Notice of any redemption termination pursuant to the provisions of
Section 7.01, specifying the Distribution Date upon which the final
distribution shall be made or the Redemption Date of the Certificates, shall
be given promptly by the Trustee by first class mail to Certificateholders
mailed in the case of a redemption of the Certificates, no later than (i) the
first day of the month in which the Distribution Date selected for redemption
of the Certificates shall
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occur or (ii) upon (x) the sale of all of the property of the Trust Fund by
the Trustee or in the case of a sale of assets of the Trust Fund, or (y) upon
the final payment or other liquidation of the last Mortgage Loan or REO
Property in the Trust Fund. Such notice shall specify (A) the Redemption Date,
Distribution Date upon which final distribution on the Certificates of all
amounts required to be distributed to Certificateholders pursuant to Section
5.02 will be made upon presentation and surrender of the Certificates at the
Certificate Registrar's Corporate Trust Office, and (B) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distribution
being made only upon presentation and surrender of the Certificates at the
office or agency of the Trustee therein specified. The Trustee shall give such
notice to the Securities Administrator, the Master Servicer and the
Certificate Registrar at the time such notice is given to Holders of the
Certificates. Upon any such termination, the duties of the Certificate
Registrar with respect to the Certificates shall terminate and the Trustee
shall terminate or request the Securities Administrator to terminate, the
Distribution Account and any other account or fund maintained with respect to
the Certificates, subject to the Securities Administrator's obligation
hereunder to hold all amounts payable to Certificateholders in trust without
interest pending such payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to
contact the remaining Certificateholders concerning surrender of such
Certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Securities
Administrator shall deliver any remaining funds being held by it to the
Depositor and the Depositor shall, subject to applicable state law relating to
escheatment, hold all amounts distributable to such Holders for the benefit of
such Holders. No interest shall accrue on any amount held by the Trustee and
not distributed to a Certificateholder due to such Certificateholder's failure
to surrender its Certificate(s) for payment of the final distribution thereon
in accordance with this Section.
(c) Any reasonable expenses incurred by the Trustee in connection with
any redemption or termination or liquidation of the Trust Fund shall be
reimbursed from proceeds received from the liquidation of the Trust Fund.
Section 7.03 Additional Trust Fund Termination Requirements.
(a) Any termination of the Trust Fund shall be effected in accordance
with the following additional requirements, unless the Depositor, exercising
its option to purchase all of the Mortgage Loans pursuant to Section 7.01(c),
delivers to the Trustee, an Opinion of Counsel (at the Depositor's expense),
addressed to the Trustee to the effect that the failure of the Trust Fund to
comply with the requirements of this Section 7.03 will not result in an
Adverse REMIC Event:
(i) Within 89 days prior to the time of the making of the final
payment on the Certificates, upon notification by the Depositor that it
intends to exercise its option to
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cause the termination of the Trust Fund, the Trustee shall adopt a plan
of complete liquidation of the Trust Fund on behalf of each REMIC,
meeting the requirements of a qualified liquidation under the REMIC
Provisions;
(ii) Any sale of the assets of the Trust Fund pursuant to Section
7.01 shall be a sale for cash and shall occur at or after the time of
adoption of such a plan of complete liquidation and prior to the time of
making of the final payment on the Certificates;
(iii) On the date specified for final payment of the Certificates,
the Securities Administrator shall make final distributions of principal
and interest on the Certificates in accordance with Section 5.02 and,
after payment of, or provision for any outstanding expenses, distribute
or credit, or cause to be distributed or credited, to the Holders of the
Residual Certificates all cash on hand after such final payment (other
than cash retained to meet claims), and the Trust Fund (and each REMIC)
shall terminate at that time; and
(iv) In no event may the final payment on the Certificates or the
final distribution or credit to the Holders of the Residual Certificates
be made after the 89th day from the date on which the plan of complete
liquidation is adopted.
(b) By its acceptance of a Residual Certificate, each Holder thereof
hereby agrees to accept the plan of complete liquidation adopted by the
Trustee under this Section and to take such other action in connection
therewith as may be reasonably requested by the Trustee, the Securities
Administrator or the Servicer.
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01 Limitation on Rights of Holders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or this Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of
this Trust Fund, nor otherwise affect the rights, obligations and liabilities
of the parties hereto or any of them. Except as otherwise expressly provided
herein, no Certificateholder, solely by virtue of its status as a
Certificateholder, shall have any right to vote or in any manner otherwise
control the Master Servicer or the operation and management of the Trust Fund,
or the obligations of the parties hereto, nor shall anything herein set forth,
or contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members of
an association, nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of Certificates
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evidencing not less than 25% of the Class Principal Amount or Class Notional
Amount (or Percentage Interest) of Certificates of each Class affected thereby
shall have made written request upon the Trustee to institute such action,
suit or proceeding in its own name as Trustee hereunder and shall have offered
to the Trustee such reasonable indemnity as it may require against the cost,
expenses and liabilities to be incurred therein or thereby, and the Trustee,
for sixty days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit
or proceeding and no direction inconsistent with such written request has been
given such Trustee during such sixty-day period by such Certificateholders; it
being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder, the Securities
Administrator and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the
provisions of this Section, each and every Certificateholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 8.02 Access to List of Holders.
(a) If the Trustee is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee,
within fifteen days after receipt by the Certificate Registrar of a request by
the Trustee in writing, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Certificateholders of each Class as
of the most recent Record Date.
(b) If three or more Holders or Certificate Owners (hereinafter referred
to as "Applicants") apply in writing to the Trustee, and such application
states that the Applicants desire to communicate with other Holders with
respect to their rights under this Agreement or under the Certificates and is
accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt
of such application, afford such Applicants reasonable access during the
normal business hours of the Trustee to the most recent list of
Certificateholders held by the Trustee or shall, as an alternative, send, at
the Applicants' expense, the written communication proffered by the Applicants
to all Certificateholders at their addresses as they appear in the Certificate
Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing
Agency, by receiving and holding a Certificate, agrees with the Depositor, the
Master Servicer, the Securities Administrator, the Certificate Registrar and
the Trustee that neither the Depositor, the Master Servicer, the Securities
Administrator, the Certificate Registrar nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Certificateholders hereunder, regardless of the
source from which such information was derived.
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Section 8.03 Acts of Holders of Certificates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders or Certificate Owners, if the Holder is a Clearing Agency, may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and
the Securities Administrator and, where expressly required herein, to the
Master Servicer. Such instrument or instruments (as the action embodies
therein and evidenced thereby) are herein sometimes referred to as an "Act" of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agents shall be sufficient
for any purpose of this Agreement and conclusive in favor of the Trustee, the
Securities Administrator and the Master Servicer, if made in the manner
provided in this Section. Each of the Trustee, the Securities Administrator
and the Master Servicer shall promptly notify the others of receipt of any
such instrument by it, and shall promptly forward a copy of such instrument to
the others.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments or deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership,
such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the individual executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates shall
be overdue and notwithstanding any notation of ownership or other writing
thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and neither the Trustee, the Securities Administrator,
the Master Servicer, nor the Depositor shall be affected by any notice to the
contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every
future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by
the Trustee or the Master Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
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ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of Servicer's and
Master Servicer's Obligations.
(a) The Master Servicer, on behalf of the Trustee, the Depositor and the
Certificateholders shall monitor the performance of the Servicer under the
Purchase and Servicing Agreement, and shall use its reasonable good faith
efforts to cause the Servicer duly and punctually to perform all of its duties
and obligations thereunder. Upon the occurrence of a default of which an
Authorized Officer of the Master Servicer has actual knowledge under the
Purchase and Servicing Agreement, the Master Servicer shall promptly notify
the Trustee thereof, and shall specify in such notice the action, if any, the
Master Servicer is taking in respect of such default. So long as any such
default shall be continuing, the Master Servicer may, and shall if it
determines such action to be in the best interests of Certificateholders, (i)
terminate all of the rights and powers of the Servicer pursuant to the
applicable provisions of the Purchase and Servicing Agreement; (ii) exercise
any rights it may have to enforce the Purchase and Servicing Agreement against
the Servicer; and/or (iii) waive any such default under the Purchase and
Servicing Agreement or take any other action with respect to such default as
is permitted thereunder. Notwithstanding any provision of this Agreement or
the Purchase and Servicing Agreement to the contrary, the Master Servicer
shall have no duty or obligation to supervise, monitor or oversee the
activities of, or to enforce the obligations of, the Servicer under the
Purchase and Servicing Agreement with respect to any Additional Collateral or
any Limited Purpose Surety Bond relating thereto, including, without
limitation, the collection of any amounts owing to the Trust Fund in respect
thereof (unless and until the Master Servicer shall have assumed the
obligations of the Servicer as successor servicer under the Purchase and
Servicing Agreement pursuant to this Section 9.01, in which case, as successor
servicer, it shall be bound to serve and administer the Additional Collateral
and any related Limited Purpose Surety Bond in accordance with the provisions
of the Purchase and Servicing Agreement).
(b) Upon any termination by the Master Servicer of the Servicer's rights
and powers pursuant to the Purchase and Servicing Agreement, the rights and
powers of the Servicer with respect to the Mortgage Loans shall vest in the
Master Servicer and the Master Servicer shall be the successor in all respects
to the Servicer in its capacity as Servicer with respect to such Mortgage
Loans under the Purchase and Servicing Agreement, unless or until the Master
Servicer shall have appointed, with the consent of the Trustee and the Rating
Agencies, such consent not to be unreasonably withheld, and in accordance with
the applicable provisions of the Purchase and Servicing Agreement, a new
Xxxxxx Xxx- or FHLMC-approved Person to serve as successor to the Servicer;
provided, however, that it is understood and agreed by the parties hereto that
there will be a period of transition (not to exceed 90 days) before the actual
servicing functions can be fully transferred to a successor servicer
(including the Master Servicer). With such consent, the Master Servicer may
elect to continue to serve as successor servicer under the Purchase and
Servicing Agreement. Upon appointment of a successor servicer, as authorized
under this Section 9.01(b), unless the successor servicer shall have assumed
the obligations of the terminated Servicer under the Purchase and Servicing
Agreement, the Trustee and such
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successor servicer shall enter into a servicing agreement in a form
substantially similar to the Purchase and Servicing Agreement. In connection
with any such appointment, the Master Servicer may make such arrangements for
the compensation of such successor servicer as it and such successor servicer
shall agree, but in no event shall such compensation of any successor servicer
(including the Master Servicer) be in excess of that payable to the Servicer
under the Purchase and Servicing Agreement.
The Master Servicer shall pay the costs of such enforcement (including
the termination of the Servicer, the appointment of a successor servicer or
the transfer and assumption of the servicing by the Master Servicer) at its
own expense and shall be reimbursed therefor initially (i) by the terminated
Servicer, (ii) from a general recovery resulting from such enforcement only to
the extent, if any, that such recovery exceeds all amounts due in respect of
the related Mortgage Loans, (iii) from a specific recovery of costs, expenses
or attorney's fees against the party against whom such enforcement is
directed, or (iv) to the extent that such amounts described in (i)-(iii) above
are insufficient to reimburse the Master Servicer for such costs of
enforcement, from the Trust Fund, as provided in Section 9.04.
If the Master Servicer assumes the servicing with respect to any of the
Mortgage Loans, it will not assume liability for the representations and
warranties of the Servicer it replaces or for the errors or omissions of the
Servicer.
(c) Upon any termination of the Servicer's rights and powers pursuant to
the Purchase and Servicing Agreement, the Master Servicer shall promptly
notify the Trustee and the Rating Agencies, specifying in such notice that the
Master Servicer or any successor servicer, as the case may be, has succeeded
the Servicer under the Purchase and Servicing Agreement, which notice shall
also specify the name and address of any such successor servicer.
(d) Neither the Depositor nor the Trustee shall consent to the assignment
by the Servicer of the Servicer's rights and obligations under the Purchase
and Servicing Agreement without the prior written consent of the Master
Servicer, which consent shall not be unreasonably withheld.
Section 9.02 Assumption of Master Servicing by Trustee.
(a) In the event the Master Servicer shall for any reason no longer be
the Master Servicer (including by reason of any Event of Default under this
Agreement), the Trustee shall thereupon assume all of the rights and
obligations of such Master Servicer hereunder and under each Purchase and
Servicing Agreement entered into with respect to the Mortgage Loans or shall
appoint a Xxxxxx-Xxx or FHLMC-approved server as successor with servicer
acceptable to the Depositor and the Rating Agencies. The Trustee, its designee
or any successor master servicer appointed by the Trustee shall be deemed to
have assumed all of the Master Servicer's interest herein and therein to the
same extent as if such Purchase and Servicing Agreement had been assigned to
the assuming party, except that the Master Servicer shall not thereby be
relieved of any liability or obligations of the Master Servicer under such
Purchase and Servicing Agreement accruing prior to its replacement as Master
Servicer, and shall be liable to the Trustee, and hereby agrees to indemnify
and hold harmless the Trustee from and against all costs, damages, expenses
and liabilities (including reasonable attorneys' fees) incurred by the Trustee
as a result
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of such liability or obligations of the Master Servicer and in connection with
the Trustee's assumption (but not its performance, except to the extent that
costs or liability of the Trustee are created or increased as a result of
negligent or wrongful acts or omissions of the Master Servicer prior to its
replacement as Master Servicer) of the Master Servicer's obligations, duties
or responsibilities thereunder.
(b) The Master Servicer that has been terminated shall, upon request of
the Trustee but at the expense of such Master Servicer, deliver to the
assuming party all documents and records relating to the Purchase and
Servicing Agreement, this Agreement and the related Mortgage Loans and an
accounting of amounts collected and held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of the Purchase and
Servicing Agreement and this Agreement to the assuming party.
Section 9.03 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the Depositor,
the Securities Administrator and the Trustee, for the benefit of the
Certificateholders, as of the Closing Date that:
(i) it is validly existing and in good standing under the laws of
the United States of America as a national banking association, and as
Master Servicer has full power and authority to transact any and all
business contemplated by this Agreement and to execute, deliver and
comply with its obligations under the terms of this Agreement, the
execution, delivery and performance of which have been duly authorized by
all necessary corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws,
(B) violate any law or regulation or any administrative decree or order
to which it is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it is
bound or to which any of its assets are subject, which violation, default
or breach would materially and adversely affect the Master Servicer's
ability to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
in general, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any order
or decree of any court or any order or regulation of any federal, state,
municipal or governmental
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agency to the extent that any such default would materially and adversely
affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any agreement
or instrument or subject to any charter provision, bylaw or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that may materially and adversely affect its ability as
Master Servicer to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations
under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement;
(vii) the Master Servicer, or an affiliate thereof the primary
business of which is the servicing of conventional residential mortgage
loans, is a Xxxxxx Mae- or FHLMC-approved seller/servicer;
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master
Servicer with this Agreement or the consummation of the transactions
contemplated by this Agreement, except for such consents, approvals,
authorizations and orders (if any) as have been obtained; and
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer.
(b) It is understood and agreed that the representations and warranties
set forth in this Section shall survive the execution and delivery of this
Agreement. The Master Servicer shall indemnify the Depositor, the Securities
Administrator and the Trustee and hold them harmless against any loss,
damages, penalties, fines, forfeitures, legal fees and related costs,
judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a material
breach of the Master Servicer's representations and warranties contained in
Section 9.03(a). It is understood and agreed that the enforcement of the
obligation of the Master Servicer set forth in this Section to indemnify the
Depositor, the Securities Administrator and the Trustee as provided in this
Section constitutes the sole remedy (other than as set forth in Section 6.14)
of the Depositor, the Securities Administrator and the Trustee, respecting a
breach of the foregoing representations and warranties. Such indemnification
shall survive any termination of the Master Servicer as Master Servicer
hereunder, and any termination of this Agreement.
Any cause of action against the Master Servicer relating to or arising
out of the breach of any representations and warranties made in this Section
shall accrue upon discovery of such breach by either the Depositor, the Master
Servicer or the Trustee or notice thereof by any one of such parties to the
other parties.
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Section 9.04 Compensation to the Master Servicer.
The Master Servicer shall be entitled to be paid by the Trust Fund, and
either retain or withdraw from the Distribution Account, (i) its Master
Servicing Fee with respect to each Distribution Date, (ii) amounts necessary
to reimburse itself for any previously unreimbursed Advances, Servicer
Advances and Nonrecoverable Advances in accordance with the definition of
"Available Distribution Amount" and (iii) amounts representing assumption
fees, late payment charges or other ancillary income not included in the
definition of "Available Distribution Amount" and which are not required to be
remitted by the Servicer to the Securities Administrator or deposited by the
Securities Administrator into the Distribution Account. The Master Servicer
shall be required to pay all expenses incurred by it in connection with its
activities hereunder and shall not be entitled to reimbursement therefor
except as provided in this Agreement.
In addition, the Master Servicer shall be entitled to reimbursement from
the Distribution Account for all reasonable expenses, disbursements and
advances incurred or made by the Master Servicer in connection with the
performance of its duties hereunder and under the Purchase and Servicing
Agreement, as modified by the Acknowledgement (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), to
the extent not otherwise reimbursed pursuant to this Agreement, except any
such expense, disbursement or advance as may be attributable to its willful
misfeasance, bad faith or negligence.
Section 9.05 Merger or Consolidation.
Any Person into which the Master Servicer may be merged or consolidated,
or any Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor to
the Master Servicer hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding; provided, however, that the successor or
resulting Person to the Master Servicer shall be a Person that shall be
qualified and approved to service mortgage loans for Xxxxxx Xxx or FHLMC and
shall have a net worth of not less than $15,000,000.
Section 9.06 Resignation of Master Servicer.
Except as otherwise provided in Sections 9.05 and 9.07 hereof, the Master
Servicer shall not resign from the obligations and duties hereby imposed on it
unless the Master Servicer's duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with
any other activities carried on by it and cannot be cured. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Trustee. No such resignation shall become effective until the
Trustee shall have assumed, or a successor master servicer shall have been
appointed by the Trustee and until such successor shall have assumed, the
Master Servicer's responsibilities and obligations under this Agreement.
Notice of such resignation shall be given promptly by the Master Servicer and
the Depositor to the Trustee.
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If, at any time, the Master Servicer resigns under this Section 9.06, or
transfers or assigns its rights and obligations under Section 9.07, or is
removed as Master Servicer pursuant to Section 6.14, then at such time as
Xxxxx Fargo Bank Minnesota, National Association also shall resign (and shall
be entitled to resign) as Securities Administrator, Paying Agent,
Authenticating Agent and Certificate Registrar under this Agreement. In such
event, the obligations of each such party shall be assumed by the Trustee or
such successor master servicer appointed by the Trustee (subject to the
provisions of Section 9.02(a)).
Section 9.07 Assignment or Delegation of Duties by the Master Servicer.
Except as expressly provided herein, the Master Servicer shall not assign
or transfer any of its rights, benefits or privileges hereunder to any other
Person, or delegate to or subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed
by the Master Servicer hereunder; provided, however, that the Master Servicer
shall have the right with the prior written consent of the Trustee and the
Depositor (which consent shall not be unreasonably withheld), and upon
delivery to the Trustee and the Depositor of a letter from each Rating Agency
to the effect that such action shall not result in a downgrading of the
Certificates, to delegate or assign to or subcontract with or authorize or
appoint any qualified Person to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Master Servicer hereunder.
Notice of such permitted assignment shall be given promptly by the Master
Servicer to the Depositor and the Trustee. If, pursuant to any provision
hereof, the duties of the Master Servicer are transferred to a successor
master servicer, the entire amount of the Master Servicing Fees and other
compensation payable to the Master Servicer pursuant hereto shall thereafter
be payable to such successor master servicer. Such successor Master Servicer
shall also pay the fees of the Trustee and the Securities Administrator, as
provided herein.
Section 9.08 Limitation on Liability of the Master Servicer and Others.
Neither the Master Servicer nor any of the directors, officers, employees
or agents of the Master Servicer shall be under any liability to the Trustee
or the Certificateholders for any action taken or for refraining from the
taking of any action in good faith pursuant to this Agreement, or for errors
in judgment; provided, however, that this provision shall not protect the
Master Servicer or any such person against any liability that would otherwise
be imposed by reason of willful misfeasance, bad faith or negligence in its
performance of its duties or by reason of reckless disregard for its
obligations and duties under this Agreement. The Master Servicer and any
director, officer, employee or agent of the Master Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted
by any Person respecting any matters arising hereunder. The Master Servicer
shall be under no obligation to appear in, prosecute or defend any legal
action that is not incidental to its duties to master service the Mortgage
Loans in accordance with this Agreement and that in its opinion may involve it
in any expenses or liability; provided, however, that the Master Servicer may
in its sole discretion undertake any such action that it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund and the
Master Servicer shall be entitled to be reimbursed therefor out of the
Distribution Account.
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The Master Servicer shall not be liable for any acts or omissions of the
Servicer except to the extent that damages or expenses are incurred as a
result of such act or omissions and such damages and expenses would not have
been incurred but for the negligence, willful misfeasance, bad faith or
recklessness of the Master Servicer in supervising, monitoring and overseeing
the obligations of the Servicer in this Agreement and the Purchase and
Servicing Agreement.
Section 9.09 Indemnification; Third-Party Claims.
The Master Servicer agrees to indemnify the Depositor, the Securities
Administrator and the Trustee, and hold them harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the
Depositor, the Securities Administrator or the Trustee may sustain as a result
of the Master Servicer's willful misfeasance, bad faith or negligence in the
performance of its duties hereunder or by reason of its reckless disregard for
its obligations and duties under this Agreement and the Purchase and Servicing
Agreement. The Depositor, the Securities Administrator and the Trustee shall
immediately notify the Master Servicer if a claim is made by a third party
with respect to this Agreement or the Mortgage Loans entitling the Depositor,
the Securities Administrator or the Trustee to indemnification under this
Section 9.09, whereupon the Master Servicer shall assume the defense of any
such claim and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against it or them in respect of such claim.
ARTICLE X
REMIC ADMINISTRATION
Section 10.01 REMIC Administration.
(a) REMIC elections as set forth in the Preliminary Statement shall be
made on Forms 1066 or other appropriate federal tax or information return for
the taxable year ending on the last day of the calendar year in which the
Certificates are issued. The regular interests and residual interest in each
REMIC shall be as designated in the Preliminary Statement.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 86OG(a)(9) of the Code. The latest
possible maturity date for purposes of Treasury Regulation 1.86OG-1(a)(4) will
be the Latest Possible Maturity Date.
(c) The Securities Administrator shall represent the Trust Fund in any
administrative or judicial proceeding relating to an examination or audit by
any governmental taxing authority with respect thereto. The Securities
Administrator shall pay any and all tax related expenses (not including taxes)
of each REMIC, including but not limited to any professional fees or expenses
related to audits or any administrative or judicial proceedings with respect
to such REMIC that involve the Internal Revenue Service or state tax
authorities, but only to the extent that (i) such expenses are ordinary or
routine expenses, including expenses of a routine audit but not expenses of
litigation (except as described in (ii)); or (ii) such expenses or liabilities
(including taxes and penalties) are attributable to the negligence or willful
misconduct of the Securities Administrator in fulfilling its duties hereunder
(including its duties as tax return preparer). The Securities
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Administrator shall be entitled to reimbursement of expenses to the extent
provided in clause (i) above from the Distribution Account, provided, however,
the Securities Administrator shall not be entitled to reimbursement for
expenses incurred in connection with the preparation of tax returns and other
reports as required by Section 6.20 and this Section.
(d) The Securities Administrator shall prepare, and the Trustee shall
sign and file, as instructed by the Securities Administrator, all of each
REMIC's federal and appropriate state tax and information returns as such
REMIC's direct representative. The expenses of preparing and filing such
returns shall be borne by the Securities Administrator. In preparing such
returns, the Securities Administrator shall, with respect to the Lower-Tier
REMIC: (i) treat the accrual period for interests in the Lower-Tier REMIC and
the Middle-Tier REMIC as the calendar month; (ii) account for distributions
made from the Lower-Tier REMIC and the Middle-Tier REMIC as made on the first
day of each succeeding calendar month; (iii) account for income under the
all-OID method at the Net WAC; (iv) use the aggregation method provided in
Treasury Regulation section 1.1275-2(c); and (v) account for income and
expenses related to the Lower-Tier REMIC and the Middle-Tier REMIC in the
manner resulting in the lowest amount of excess inclusion income possible
accruing to the Holder of the residual interest in the Lower-Tier REMIC and
the Middle-Tier REMIC.
(e) The Securities Administrator or its designee shall perform on behalf
of each REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions, or other
compliance guidance issued by the Internal Revenue Service or any state or
local taxing authority. Among its other duties, if required by the Code, the
REMIC Provisions, or other such guidance, the Securities Administrator shall
provide, upon receipt of additional reasonable compensation, (i) to the
Treasury or other governmental authority such information as is necessary for
the application of any tax relating to the transfer of a Residual Certificate
to any disqualified person or organization pursuant to Treasury Regulation
1.860E-2(a)(5) and any person designated in Section 860E(e)(3) of the Code and
(ii) to the Certificateholders and the Trustee such information or reports as
are required by the Code or REMIC Provisions.
(f) To the extent within their control, the Trustee, the Securities
Administrator, the Master Servicer and the Holders of Certificates shall take
any action or cause any REMIC to take any action necessary to maintain the
status of any REMIC as a REMIC under the REMIC Provisions and shall assist
each other as necessary to create or maintain such status. Neither the
Trustee, the Securities Administrator, the Master Servicer nor the Holder of
any Residual Certificate shall knowingly take any action, cause any REMIC to
take any action or fail to take (or fail to cause to be taken) any action
that, under the REMIC Provisions, if taken or not taken, as the case may be,
could result in an Adverse REMIC Event unless the Trustee, the Securities
Administrator and the Master Servicer have received an Opinion of Counsel (at
the expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such status or result in the imposition
of such a tax. In addition, prior to taking any action with respect to any
REMIC or the assets therein, or causing any REMIC to take any action, which is
not expressly permitted under the terms of this Agreement, any Holder of a
Residual Certificate will consult with the Trustee, the Securities
Administrator, the Master Servicer or their respective designees, in writing,
with respect to whether such action could cause an Adverse REMIC Event to
occur with respect to any REMIC, and no such Person shall take any such
89
action or cause any REMIC to take any such action as to which the Trustee, the
Securities Administrator or the Master Servicer has advised it in writing that
an Adverse REMIC Event could occur; provided, however, that if no Adverse
REMIC Event would occur but such action could result in the imposition of
additional taxes on the Residual Certificateholders, no such Person shall take
any such action, or cause any REMIC to take any such action without the
written consent of the Residual Certificateholders.
(g) Each Holder of a Residual Certificate shall pay when due any and all
taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such taxes are not paid by a Residual
Certificateholder, the Trustee or the Paying Agent shall pay any remaining
REMIC taxes out of current or future amounts otherwise distributable to the
Holder of the Residual Certificate in any such REMIC or, if no such amounts
are available, out of other amounts held in the Distribution Account, and
shall reduce amounts otherwise payable to holders of regular interests in any
such REMIC, as the case may be.
(h) The Securities Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and
on an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement.
(j) Neither the Securities Administrator nor the Master Servicer shall
enter into any arrangement by which any REMIC will receive a fee or other
compensation for services.
(k) [Reserved].
(l) The Class A-R Holder shall act as "tax matters person" with respect
to each REMIC created hereunder and the Securities Administrator shall act as
agent for the Class A-R Holder in such roles, unless and until another party
is so designated by the Class A-R Holder.
Section 10.02 Prohibited Transactions and Activities.
Neither the Depositor, the Master Servicer nor the Trustee shall sell,
dispose of, or substitute for any of the Mortgage Loans, except in a
disposition pursuant to (i) the foreclosure of a Mortgage Loan, (ii) the
bankruptcy of the Trust Fund, (iii) the termination of each REMIC pursuant to
Article VII of this Agreement, (iv) a substitution pursuant to Article II of
this Agreement or (v) a repurchase of Mortgage Loans pursuant to Article II of
this Agreement, nor acquire any assets for any REMIC, nor sell or dispose of
any investments in the Distribution Account for gain, nor accept any
contributions to any REMIC after the Closing Date, unless it has received an
Opinion of Counsel (at the expense of the party causing such sale,
disposition, substitution or acceptance) that such disposition, acquisition,
substitution, or acceptance will not result in an Adverse REMIC Event, (b)
affect the distribution of interest or principal on the Certificates or (c)
result in the encumbrance of the assets transferred or assigned to the Trust
Fund (except pursuant to the provisions of this Agreement).
90
Section 10.03 Indemnification with Respect to Prohibited Transactions or
Loss of REMIC Status.
Upon the occurrence of an Adverse REMIC Event due to the negligent
performance by the Securities Administrator of its duties and obligations set
forth herein, the Securities Administrator shall indemnify the
Certificateholders of the related Residual Certificate against any and all
losses, claims, damages, liabilities or expenses ("Losses") resulting from
such negligence; provided, however, that the Securities Administrator shall
not be liable for any such Losses attributable to the action or inaction of
the Depositor, the Trustee or the Holder of the Residual Certificate, nor for
any such Losses resulting from misinformation provided by any of the foregoing
parties on which the Securities Administrator has relied. Notwithstanding the
foregoing, however, in no event shall the Securities Administrator have any
liability (1) for any action or omission that is taken in accordance with and
in compliance with the express terms of, or which is expressly permitted by
the terms of, this Agreement or under the Purchase and Servicing Agreement or
under the Acknowledgement, (2) for any Losses other than arising out of
malfeasance, willful misconduct or negligent performance by the Service
Administrator of its duties and obligations set forth herein, and (3) for any
special or consequential damages to Certificateholders of the related Residual
Certificate (in addition to payment of principal and interest on the
Certificates).
Section 10.04 REO Property.
(a) Notwithstanding any other provision of this Agreement, the Master
Servicer, acting on behalf of the Trustee hereunder, shall not, except to the
extent provided in the Purchase and Servicing Agreement, knowingly permit the
Servicer to, rent, lease, or otherwise earn income on behalf of any REMIC with
respect to any REO Property which might cause an Adverse REMIC Event unless
the Servicer has provided to the Trustee an Opinion of Counsel concluding
that, under the REMIC Provisions, such action would not adversely affect the
status of any REMIC as a REMIC and any income generated for any REMIC by the
REO Property would not result in an Adverse REMIC Event.
(b) The Depositor shall cause the Servicer (to the extent provided in the
Purchase and Servicing Agreement) to make reasonable efforts to sell any REO
Property for its fair market value. In any event, however, the Depositor
shall, or shall cause the Servicer (to the extent provided in the Purchase and
Servicing Agreement) to, dispose of any REO Property within three years of its
acquisition by the Trust Fund unless the Depositor or the Servicer (on behalf
of the Trust Fund) has received a grant of extension from the Internal Revenue
Service to the effect that, under the REMIC Provisions and any relevant
proposed legislation and under applicable state law, the REMIC may hold REO
Property for a longer period without causing an Adverse REMIC Event. If such
an extension has been received, then the Depositor, acting on behalf of the
Trustee hereunder, shall, or shall cause the Servicer to, continue to attempt
to sell the REO Property for its fair market value for such period longer than
three years as such extension permits (the "Extended Period"). If such an
extension has not been received and the Depositor or the Servicer, acting on
behalf of the Trust Fund hereunder, is unable to sell the REO Property within
33 months after its acquisition by the Trust Fund or if such an extension, has
been received and the Depositor or the Servicer is unable to sell the REO
Property within the period ending three months before the close of the
Extended Period, the Depositor shall cause the
91
Servicer, before the end of the three year period or the Extended Period, as
applicable, to (i) purchase such REO Property at a price equal to the REO
Property's fair market value or (ii) auction the REO Property to the highest
bidder (which may be the Servicer) in an auction reasonably designed to
produce a fair price prior to the expiration of the three-year period or the
Extended Period, as the case may be.
Section 10.05 Fidelity.
The Master Servicer, at its expense, shall maintain in effect a blanket
fidelity bond and an errors and omissions insurance policy, affording coverage
with respect to all directors, officers, employees and other Persons actin on
such Master Servicer's behalf, and covering errors and omissions in the
performance of the Master Servicer's obligations hereunder. The errors and
omissions insurance policy and the fidelity bond shall be in such form and
amount generally acceptable for entities serving as master servicers and
trustees.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Binding Nature of Agreement; Assignment.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 11.02 Entire Agreement.
This Agreement contains the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent
with any of the terms hereof.
Section 11.03 Amendment.
(a) This Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Securities Administrator, and the Trustee, without notice
to or the consent of any of the Holders, (i) to cure any ambiguity or mistake,
(ii) to cause the provisions herein to conform to or be consistent with or in
furtherance of the statements made with respect to the Certificates, the Trust
Fund or this Agreement in any Offering Document, or to correct or supplement
any provision herein which may be inconsistent with any other provisions
herein or with the provisions of any Purchase and Servicing Agreement, (iii)
to make any other provisions with respect to matters or questions arising
under this Agreement or (iv) to add, delete, or amend any provisions to the
extent necessary or desirable to comply with any requirements imposed by the
Code and the REMIC Provisions. No such amendment effected pursuant to the
preceding sentence shall, as evidenced by an Opinion of Counsel, result in an
Adverse REMIC Event, nor shall such amendment effected pursuant to clause
(iii) of such sentence adversely affect in any material respect the interests
of any Holder. Prior to entering into any amendment without the
92
consent of Holders pursuant to this paragraph, the Trustee shall be provided
with an Opinion of Counsel (at the expense of the party requesting such
amendment) to the effect that such amendment is permitted under this Section.
Any such amendment shall be deemed not to adversely affect in any material
respect any Holder, if the Trustee receives written confirmation from each
Rating Agency that such amendment will not cause such Rating Agency to reduce
the then current rating assigned to the Certificates.
(b) This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Securities Administrator and the Trustee,
with the consent of the Holders of not less than 66-2/3% of the Class
Principal Amount (or Percentage Interest) of each Class of Certificates
affected thereby for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Holders; provided, however, that no
such amendment shall be made unless the Trustee receives an Opinion of
Counsel, at the expense of the party requesting the change, that such change
will not cause an Adverse REMIC Event; and provided further, that no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
payments received on Mortgage Loans which are required to be distributed on
any Certificate, without the consent of the Holder of such Certificate or (ii)
reduce the aforesaid percentages of Class Principal Amount or Class Notional
Amount (or Percentage Interest) of Certificates of each Class, the Holders of
which are required to consent to any such amendment without the consent of the
Holders of 100% of the Class Principal Amount or Class Notional Amount (or
Percentage Interest) of each Class of Certificates affected thereby. For
purposes of this paragraph, references to "Holder" or "Holders" shall be
deemed to include, in the case of any Class of Book-Entry Certificates, the
related Certificate Owners.
(c) Promptly after the execution of any such amendment, the Trustee shall
furnish written notification of the substance of such amendment to each
Holder, the Depositor and the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under this
Section 11.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations
as the Trustee may prescribe.
(e) Notwithstanding anything to the contrary in the Purchase and
Servicing Agreement, the Trustee shall not consent to any amendment of the
Purchase and Servicing Agreement except pursuant to the standards provided in
this Section with respect to amendment of this Agreement. With respect to any
amendment that relates to the servicing of the Mortgage Loans or the Servicer,
the Trustee shall not consent to any such amendment without the prior written
consent of the Master Servicer.
Section 11.04 Voting Rights.
Except to the extent that the consent of all affected Certificateholders
is required pursuant to this Agreement, with respect to any provision of this
Agreement requiring the consent of Certificateholders representing specified
percentages of aggregate outstanding Certificate
93
Principal Amount or Class Notional Amount (or Percentage Interest),
Certificates owned by the Depositor, the Master Servicer, the Securities
Administrator, the Trustee, the Servicer or any Affiliates thereof are not to
be counted so long as such Certificates are owned by the Depositor, the Master
Servicer, the Securities Administrator, the Trustee, the Servicer or any
Affiliate thereof.
Section 11.05 Provision of Information.
(a) For so long as any of the Certificates of any Class are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act, each of the
Depositor, the Master Servicer and the Trustee agree to cooperate with each
other to provide to any Certificateholders and to any prospective purchaser of
Certificates designated by such holder, upon the request of such holder or
prospective purchaser, any information required to be provided to such holder
or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee,
the Master Servicer or the Securities Administrator in providing such
information shall be reimbursed by the Depositor.
(b) The Securities Administrator shall provide to any person to whom a
Prospectus was delivered, upon the request of such person specifying the
document or documents requested, a copy (excluding exhibits) of any report on
Form 8-K or Form 10-K filed with the Securities and Exchange Commission
pursuant to Section 6.20(b). Any reasonable out-of-pocket expenses incurred by
the Securities Administrator in providing copies of such documents shall be
reimbursed by the Depositor.
(c) On each Distribution Date, the Securities Administrator shall deliver
or cause to be delivered by first class mail or make available on its website
to the Depositor, Attention: Contract Finance, a copy of the report delivered
to Certificateholders pursuant to Section 4.02.
Section 11.06 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 11.07 Notices.
All requests, demands, notices, authorizations, directions, consents,
waivers and communications hereunder shall be in writing and shall be deemed
to have been duly given when received by (a) in the case of the Depositor, X.X
Xxxxxx Acceptance Corporation I, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
telecopy number: (000) 000-0000, Attention: X.X. Xxxxxx Mortgage Trust
2003-A1, (b) in the case of the Seller, X.X. Xxxxxx Mortgage Acquisition
Corp., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (212)
834-3850, Attention: X.X. Xxxxxx Mortgage Trust 2003-A1, (c) in the case of
the Master Servicer or the Securities Administrator, Xxxxx Fargo Bank
Minnesota, National Association, X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000 (or,
for overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000),
telecopy number (000) 000-0000, Attention: X.X. Xxxxxx Mortgage Trust
94
2003-A1, and (d) with respect to the Trustee or the Certificate Registrar, its
respective Corporate Trust Office, or as to each party such other address as
may hereafter be furnished by such party to the other parties in writing. All
demands, notices and communications to a party hereunder shall be in writing
and shall be deemed to have been duly given when delivered to such party at
the relevant address, facsimile number or electronic mail address set forth
above or at such other address, facsimile number or electronic mail address as
such party may designate from time to time by written notice in accordance
with this Section 11.07.
Section 11.08 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.09 Indulgences; No Waivers.
Neither the failure nor any delay on the part of a party to exercise any
right, remedy, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege preclude any other or further exercise of the same or of
any other right, remedy, power or privilege, nor shall any waiver of any
right, remedy, power or privilege with respect to any occurrence be construed
as a waiver of such right, remedy, power or privilege with respect to any
other occurrence. No waiver shall be effective unless it is in writing and is
signed by the party asserted to have granted such waiver.
Section 11.10 Headings Not To Affect Interpretation.
The headings contained in this Agreement are for convenience of reference
only, and they shall not be used in the interpretation hereof.
Section 11.11 Benefits of Agreement.
Nothing in this Agreement or in the Certificates, express or implied,
shall give to any Person, other than the parties to this Agreement and their
successors hereunder and the Holders of the Certificates, any benefit or any
legal or equitable right, power, remedy or claim under this Agreement, except
to the extent specified in Section 11.15.
Section 11.12 Special Notices to the Rating Agencies.
(a) The Depositor shall give prompt notice to the Rating Agencies of the
occurrence of any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 11.03;
(ii) any Assignment by the Master Servicer of its rights hereunder
or delegation of its duties hereunder;
95
(iii) the occurrence of any Event of Default described in Section
6.14;
(iv) any notice of termination given to the Master Servicer pursuant
to Section 6.14 and any resignation of the Master Servicer hereunder;
(v) the appointment of any successor to any Master Servicer pursuant
to Section 6.14;
(vi) the making of a final payment pursuant to Section 7.02; and
(vii) any termination of the rights and obligations of the Servicer
under the Purchase and Servicing Agreement.
(b) All notices to the Rating Agencies provided for this Section shall be
in writing and sent by first class mail, telecopy or overnight courier, as
follows:
If to Moody's, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgages
If to S&P, to:
Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgages
If to Fitch Ratings, to:
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgages
(c) The Securities Administrator shall provide or make available to the
Rating Agencies reports prepared pursuant to Section 4.02. In addition, the
Securities Administrator shall, at the expense of the Trust Fund, make
available to each Rating Agency such information as such Rating Agency may
reasonably request regarding the Certificates or the Trust Fund, to the extent
that such information is reasonably available to the Securities Administrator.
(d) The Depositor hereby represents to S&P that, to the Depositor's
knowledge, the information provided to such Rating Agency, including the loan
level detail, is true and correct according to such Rating Agency's
requirements.
96
Section 11.13 Conflicts.
To the extent that the terms of this Agreement conflict with the terms of
the Purchase and Servicing Agreement, the Purchase and Servicing Agreement
shall govern.
Section 11.14 Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, and all of which together shall constitute
one and the same instrument.
Section 11.15 No Petitions.
The Trustee and the Master Servicer (not in its individual corporate
capacity, but solely as Master Servicer hereunder), by entering into this
Agreement, hereby covenant and agree that they shall not at any time institute
against the Depositor, or join in any institution against the Depositor of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to this
Agreement or any of the documents entered into by the Depositor in connection
with the transactions contemplated by this Agreement.
97
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers hereunto duly authorized as of the
day and year first above written.
X.X XXXXXX ACCEPTANCE CORPORATION I,
as Depositor
By:
---------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Master Servicer
By:
--------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Securities Administrator
By:
--------------------------------
Name:
Title:
Solely for purposes of Section 2.05
accepted and agreed to by:
X.X. XXXXXX MORTGAGE ACQUISITION CORP.
By:
------------------------------
Name:
Title:
EXHIBIT A
FORMS OF CERTIFICATES
A-1
EXHIBIT A-I
[FORM OF SENIOR CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN 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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").]
A-2
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Principal
Amount of this Certificate
("Denomination") : $
Initial Certificate Principal
Amount of all Certificates
of this Class : $
CUSIP :
Interest Rate :
Maturity Date :
X.X. Xxxxxx Mortgage Trust 200__-__
Mortgage Pass-Through Certificates
Class [ ]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional adjustable rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties.
X.X. Xxxxxx Acceptance Corporation I, as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Amount at any time may be
less than the Certificate Principal Amount as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer, the Securities Administrator
or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by
any governmental agency or instrumentality.
This certifies that ______________is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate
Principal Amount of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by X.X. Xxxxxx Acceptance
Corporation I (the
A-3
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, Xxxxx Fargo Bank Minnesota, National Association, in its dual
capacities as master servicer (the "Master Servicer") and as securities
administrator (the "Securities Administrator") and Wachovia Bank, National
Association, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Securities Administrator.
* * *
A-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ______________, 20__
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Securities Administrator, on behalf of the Trustee
By
---------------------
Countersigned:
By
------------------------------
Authorized Signatory of
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Securities Administrator, on behalf of the Trustee
A-5
EXHIBIT A-II
[FORM OF NOTIONAL AMOUNT CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN 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.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").]
THIS CERTIFICATE HAS NO CERTIFICATE PRINCIPAL AMOUNT AND IS NOT ENTITLED TO
ANY DISTRIBUTION IN RESPECT OF PRINCIPAL.
[UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA QUALIFYING
UNDERWRITING, NEITHER THIS CERTIFIATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE CERTIFICATE REGISTRAR EITHER
A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN
MADE TO THE CERTIFICATE REGISTRAR BY THE TRANSFEREE'S ACCEPTANCE OF A
CERTIFICATE OF THIS CLASS AND BY A BENEFICIAL OWNER'S ACCEPTANCE OF ITS
INTEREST IN A CERTIFICATE OF THIS CLASS. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN, UNTIL THIS CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA
QUALIFYING UNDERWRITING, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE
OPINION OF COUNSEL SATISFACTORY TO THE CERTIFICATE REGISTRAR AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT.]
A-6
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Notional Amount
of this Certificate
("Denomination") : $
Initial Notional Amount
of all Certificates
of this Class : $
CUSIP :
Interest Rate :
Maturity Date :
X.X. XXXXXX MORTGAGE TRUST 20__-__
Mortgage Pass-Through Certificates
Class [ ]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a
Trust Fund consisting primarily of a pool of conventional adjustable
rate mortgage loans (the "Mortgage Loans") secured by first liens on
one- to four-family residential properties.
X.X. Xxxxxx Acceptance Corporation I, as Depositor
The Notional Amount of this certificate at any time may be less than the
Notional Amount as set forth herein. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Master Servicer, the Securities Administrator or the Trustee referred to below
or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that _____________is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Notional Amount of
all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by X.X. Xxxxxx Acceptance Corporation I (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, Xxxxx Fargo Bank Minnesota,
A-7
National Association, in its dual capacities as master servicer (the "Master
Servicer") and as Securities Administrator (the "Securities Administrator")
and Wachovia Bank, National Association, as trustee (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
[Until this certificate has been the subject of an ERISA-Qualifying
Underwriting, no transfer of a Certificate of this Class shall be made unless
the Certificate Registrar shall have received either (i) a representation
letter from the transferee of such Certificate, acceptable to and in form and
substance satisfactory to the Certificate Registrar, to the effect that such
transferee is not an employee benefit plan subject to Section 406 of ERISA or
a plan subject to Section 4975 of the Code, nor a person acting on behalf of
or investing plan assets of any such plan, which representation letter shall
not be an expense of the Trust Fund, the Certificate Registrar, the Trustee,
the Master Servicer, the Depositor or the Securities Administrator, or (ii) in
the case of any such Certificate presented for registration in the name of an
employee benefit plan subject to ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Certificate Registrar to the effect that the
purchase or holding of such Certificate will not result in a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code,
and will not subject the Certificate Registrar, the Trustee, the Master
Servicer, the Depositor or the Securities Administrator to any obligation in
addition to those undertaken in the Agreement, which Opinion of Counsel shall
not be an expense of the Trust Fund, the Certificate Registrar, the Trustee,
the Master Servicer, the Depositor or the Securities Administrator. [Such
representation shall be deemed to have been made to the Certificate Registrar
by the Transferee's acceptance of a Certificate of this Class and by a
beneficial owner's acceptance of its interest in a Certificate of this Class.]
Notwithstanding anything else to the contrary herein, until such certificate
has been the subject of an ERISA-Qualifying Underwriting, any purported
transfer of a Certificate of this Class to or on behalf of an employee benefit
plan subject to ERISA or to the Code without the opinion of counsel
satisfactory to the Trustee as described above shall be void and of no
effect.]
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Securities Administrator.
* * *
A-8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ______________, 20__
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Securities Administrator, on behalf of the Trustee
By ______________________
Countersigned:
By
-------------------------------
Authorized Signatory of
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Securities Administrator, on behalf of the Trustee
A-9
EXHIBIT A-III
[FORM OF RESIDUAL CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE CERTIFICATE REGISTRAR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR
A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON INVESTING ON BEHALF OF
OR WITH PLAN ASSETS OF SUCH A PLAN, OR THAT SUCH TRANSFEREE IS AN INSURANCE
COMPANY WHICH IS PURCHASING CERTIFICATES WITH FUNDS CONTAINED IN AN "INSURANCE
COMPANY GENERAL ACCOUNTS" AS SUCH TERM IS DEFINED IN SECTION V(e) of
prohibited transaction class exemption 95-60 ("ptce 95-60"), and the purchase
and holding of such certificates are covered under section i and iii of ptce
95-60 OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF
COUNSEL SATISFACTORY TO THE CERTIFICATE REGISTRAR AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.
A-10
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Principal
Amount of this Certificate
("Denomination") : $
Initial Certificate Principal
Amount of all Certificates
of this Class : $
CUSIP :
Maturity Date :
X.X. XXXXXX MORTGAGE TRUST 20__-__
Mortgage Pass-Through Certificates
Class A-R
evidencing the distributions allocable to the Class A-R Certificates with
respect to a Trust Fund consisting primarily of a pool of conventional
adjustable rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
X.X. Xxxxxx Acceptance Corporation I, as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Amount at any time may be
less than the Certificate Principal Amount as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer, the Securities Administrator
or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by
any governmental agency or instrumentality.
This certifies that ________________ is the registered owner of the
Percentage Interest (obtained by dividing the Denomination of this Certificate
by the aggregate Initial Certificate Principal Amount of all Certificates of
the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust Fund consisting of the Mortgage Loans deposited by
X.X. Xxxxxx Acceptance Corporation I (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, Xxxxx Fargo Bank
Minnesota, National Association, in its
A-11
dual capacities as master servicer (the "Master Servicer") and as securities
administrator (the "Securities Administrator") and Wachovia Bank, National
Association, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class A-R
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee in New York, New York.
No transfer of a Class A-R Certificate shall be made unless the
Certificate Registrar, on behalf of the Trustee, shall have received either
(i) a representation letter from the transferee of such Certificate,
acceptable to and in form and substance satisfactory to the Certificate
Registrar, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code,
nor a person acting on behalf of or investing plan assets of any such plan,
which representation letter shall not be an expense of the Trust Fund, the
Certificate Registrar, the Trustee, the Master Servicer, the Depositor or the
Securities Administrator, (ii) or that such Transferee is an insurance company
which is purchasing such Certificates with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that purchase
and holding of such Certificates are covered under Sections I and III of PTCE
95-60 or (iii) an Opinion of Counsel satisfactory to the Certificate Registrar
to the effect that the purchase or holding of such Class A-R Certificate will
not result in a non-exempt prohibited transaction under Section 406 of ERISA
or Section 4975 of the Code and will not subject the Certificate Registrar,
the Trustee, the Master Servicer, the Depositor or the Securities
Administrator to any obligation in addition to those undertaken in this
Agreement, which Opinion of Counsel shall not be an expense of the Trust Fund,
the Certificate Registrar, the Trustee, the Master Servicer, the Depositor or
the Securities Administrator . Notwithstanding anything else to the contrary
herein, any purported transfer of a Class A-R Certificate to or on behalf of
an employee benefit plan subject to ERISA or to the Code without the opinion
of counsel satisfactory to the Securities Administrator as described above
shall be void and of no effect.
Each Holder of this Class A-R Certificate will be deemed to have agreed
to be bound by the restrictions of the Agreement, including but not limited to
the restrictions that (i) each person holding or acquiring any Ownership
Interest in this Class A-R Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Class A-R Certificate may be transferred without
delivery to the Certificate Registrar of (a) a transfer affidavit of the
proposed transferee and (b) a transfer certificate of the transferor, each of
such documents to be in the form described in the Agreement, (iii) each person
holding or acquiring any Ownership Interest in this Class A-R Certificate must
agree to require a transfer affidavit and to deliver a transfer certificate to
the Certificate Registrar as required pursuant to the Agreement, (iv) each
person holding or acquiring an Ownership Interest in this Class A-R
Certificate must agree not to transfer an Ownership Interest in this Class A-R
Certificate if it has actual knowledge that the proposed transferee is not a
Permitted Transferee and (v) any attempted or purported transfer of any
A-12
Ownership Interest in this Class A-R Certificate in violation of such
restrictions will be absolutely null and void and will vest no rights in the
purported transferee.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Securities Administrator.
* * *
A-13
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: _____________, 20__
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Securities Administrator, on behalf of the Trustee
By ______________________
Countersigned:
By
----------------------------
Authorized Signatory of
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Securities Administrator, on behalf of the Trustee
A-14
EXHIBIT A-IV
[FORM OF SUBORDINATE CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN 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.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES
AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS
THE TRANSFEREE DELIVERS TO THE CERTIFICATE REGISTRAR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR
IF SUCH CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING,
A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PERSON INVESTING ON BEHALF OF
OR WITH PLAN ASSETS OF SUCH A PLAN, OR THAT SUCH TRANSFEREE IS AN INSURANCE
COMPANY WHICH IS PURCHASING CERTIFICATES WITH FUNDS CONTAINED IN AN "INSURANCE
COMPANY GENERAL ACCOUNTS" AS SUCH TERM IS DEFINED IN SECTION V(e) of
Prohibited Transaction Class Exemption 95-60 ("ptce 95-60"), and the purchase
and holding of such certificates are covered under section i and iii of ptce
95-60 OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE OPINION OF
COUNSEL SATISFACTORY TO THE certificate registrar AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.]
A-15
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Principal
Amount of this Certificate
("Denomination") : $
Initial Certificate Principal
Amount of all Certificates
of this Class : $
CUSIP :
Interest Rate :
Maturity Date :
X.X. XXXXXX MORTGAGE TRUST 20__-__
Mortgage Pass-Through Certificates
Class [ ]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional adjustable rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to
four-family residential properties.
X.X. Xxxxxx Acceptance Corporation I, as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Principal Amount at any time may be
less than the Certificate Principal Amount as set forth herein. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer, the Securities Administrator
or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by
any governmental agency or instrumentality.
This certifies that ___________________is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate
Principal Amount of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by X.X. Xxxxxx Acceptance
Corporation I (the
A-16
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, Xxxxx Fargo Bank Minnesota, National Association, in its dual
capacities as master servicer (the "Master Servicer") and as securities
administrator (the "Securities Administrator") and Wachovia Bank, National
Association, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
[No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the
Certificate Registrar in writing the facts surrounding the transfer. In the
event that such a transfer is to be made within three years from the date of
the initial issuance of Certificates pursuant hereto, there shall also be
delivered (except in the case of a transfer pursuant to Rule 144A of the
Securities Act) to the Certificate Registrar an Opinion of Counsel that such
transfer may be made pursuant to an exemption from the Securities Act and such
state securities laws, which Opinion of Counsel shall not be obtained at the
expense of the Trust Fund, the Certificate Registrar, the Trustee, the Master
Servicer, the Depositor or the Securities Administrator. The Holder hereof
desiring to effect such transfer shall, and does hereby agree to, indemnify
the Trustee, the Certificate Registrar and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.]
[No transfer of a Certificate of this Class shall be made unless the
Certificate Registrar, on behalf of the Trustee, shall have received either
(i) a representation letter from the transferee of such Certificate,
acceptable to and in form and substance satisfactory to the Certificate
Registrar, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code,
nor a person acting on behalf of or investing plan assets of any such plan,
which representation letter shall not be an expense of the Trust Fund, the
Certificate Registrar, the Trustee, the Master Servicer, the Depositor or the
Securities Administrator, (ii) if such certificate has been the subject of an
ERISA Qualifying Underwriting and the purchaser is an insurance company, a
representation that the purchaser is an insurance company which is purchasing
such Certificates with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of
such Certificates are covered under Sections I and III of PTCE 95-60, or (iii)
in the case of any such Certificate presented for registration in the name of
an employee benefit plan subject to ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any such
plan or any other person acting on behalf of any such plan, an Opinion of
Counsel satisfactory to the Certificate Registrar to the effect that the
purchase or holding of such Certificate will not result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code, will not
result in the assets of the Trust Fund being deemed to be "plan assets"
A-17
and subject to the prohibited transaction provisions of ERISA and the Code and
will not subject the Certificate Registrar, the Trustee, the Master Servicer,
the Depositor or the Securities Administrator to any obligation in addition to
those undertaken in the Agreement, which Opinion of Counsel shall not be an
expense of the Trust Fund, the Certificate Registrar, the Trustee, the Master
Servicer, the Depositor or the Securities Administrator. Notwithstanding
anything else to the contrary herein, any purported transfer of a Certificate
of this Class to or on behalf of an employee benefit plan subject to ERISA or
to the Code without the opinion of counsel satisfactory to the Certificate
Registrar as described above shall be void and of no effect.]
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Securities Administrator.
* * *
A-18
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: _______________, 20__
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Securities Administrator, on behalf of the Trustee
By ______________________
Countersigned:
By
----------------------------------
Authorized Signatory of
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Securities Administrator, on behalf of the Trustee
X-00
XXXXXXX X-X
[FORM OF REVERSE OF CERTIFICATE]
X.X. XXXXXX MORTGAGE TRUST 20__-__
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as X.X. Xxxxxx Mortgage Trust 20__-__, Mortgage Pass-Through
Certificates (herein collectively called the "Certificates"), and representing
a beneficial ownership interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such day is not a Business Day, the next
Business Day thereafter (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name
this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to
each Distribution Date is the last Business Day preceding such Distribution
Date or the Closing Date in the case of the First Distribution Date, unless
the Certificates of this Class shall no longer be Book-Entry Certificates, in
which case it shall be the last Business Day of the month next preceding the
month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Certificate Registrar's
Corporate Trust Office or such other location specified in the notice to
Certificateholders of such final distribution.
A-20
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Securities
Administrator and the Trustee with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. 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 therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations 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 office of the Certificate Registrar, accompanied by a written instrument
of transfer in form satisfactory to the Certificate Registrar duly executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but 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 Master Servicer, the Securities Administrator, the
Certificate Registrar and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the Aggregate Stated Principal Balance
is equal to or less than 5% of the Aggregate Stated Principal Balance as of
the Cut-off Date, the Depositor will have the option, subject to the
limitations set forth in the Agreement, to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect
of the Mortgage Loans at a purchase price determined as provided in the
Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement.
A-21
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
--------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
------------------------------------------------------------------------------
Dated:
---------------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to,
----------------------------------------------
------------------------------------------------------------------------------
-----------------------------------------------------------------------------,
for the account of
-----------------------------------------------------------,
account number
-------------------, or, if mailed by check, to -------------.
Applicable statements should be mailed to
-----------------------------------,
------------------------------------------------------------------------------
-----------------------------------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or ----------------------------------------------,
as its agent.
A-22
STATE OF )
) ss.:
COUNTY OF )
On the _____day of ___________________, 20__ before me, a notary public in and
for said State, personally appeared _____________________________________,
known to me who, being by me duly sworn, did depose and say that he executed
the foregoing instrument.
-----------------------------------------
Notary Public
[Notarial Seal]
A-23
EXHIBIT B
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn, deposes and
says:
1. That he [she] is [title of officer] ________________________ of
[name of Purchaser] _________________________________________ (the
"Purchaser"), a _______________________ [description of type of
entity] duly organized and existing under the laws of the [State of
__________] [United States], on behalf of which he [she] makes this
affidavit.
2. That the Purchaser's Taxpayer Identification Number is [ ].
3. That the Purchaser is not a "disqualified organization" within the
meaning of Section 860E(e)(5) of the Internal Revenue Code of 1986,
as amended (the "Code") and will not be a "disqualified
organization" as of [date of transfer], and that the Purchaser is
not acquiring a Residual Certificate (as defined in the Agreement)
for the account of, or as agent (including a broker, nominee, or
other middleman) for, any person or entity from which it has not
received an affidavit substantially in the form of this affidavit.
For these purposes, a "disqualified organization" means the United
States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or
instrumentality of any of the foregoing (other than an
instrumentality if all of its activities are subject to tax and a
majority of its board of directors is not selected by such
governmental entity), any cooperative organization furnishing
electric energy or providing telephone service to persons in rural
areas as described in Code Section 1381(a)(2)(C), any "electing
large partnership" within the meaning of Section 775 of the Code, or
any organization (other than a farmers' cooperative described in
Code Section 521) that is exempt from federal income tax unless such
organization is subject to the tax on unrelated business income
imposed by Code Section 511.
4. That the Purchaser either (x) is not, and on __________________
[date of transfer] will not be, an employee benefit plan or other
retirement arrangement subject to Section 406 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Code ("Code"), (collectively, a "Plan") or a
person acting on behalf of any such Plan or investing the assets of
any such Plan to acquire a Residual Certificate; (y) is an insurance
company that is purchasing the Certificate with funds contained in
an "insurance company general account" as defined in Section V(e) of
Prohibited Transaction Class Exemption ("PTCE") 95-60 and the
purchase and holding of the Certificate are covered under Section I
and III of PTCE 95-60; or (z) herewith delivers to the
B-1
Certificate Registrar an opinion of counsel (a "Benefit Plan
Opinion") satisfactory to the Certificate Registrar, and upon which
the Certificate Registrar, the Trustee, the Master Servicer, the
Depositor and Securities Administrator shall be entitled to rely, to
the effect that the purchase or holding of such Residual Certificate
by the Investor will not result in any non-exempt prohibited
transactions under Title I of ERISA or Section 4975 of the Code and
will not subject the Certificate Registrar, the Trustee, the
Depositor, the Master Servicer or the Securities Administrator to
any obligation in addition to those undertaken by such entities in
the Pooling and Servicing Agreement, which opinion of counsel shall
not be an expense of the Trust Fund or any of the above parties.
5. That the Purchaser hereby acknowledges that under the terms of the
Pooling and Servicing Agreement, dated as of October 1, 2003 (the
"Agreement"), by and among X.X. Xxxxxx Acceptance Corporation I, as
Depositor, Xxxxx Fargo Bank Minnesota, National Association, as
Master Servicer and as Securities Administrator, and Wachovia Bank,
National Association, as Trustee with respect to X.X. Xxxxxx
Mortgage Trust 2003-A1, Mortgage Pass-Through Certificates, no
transfer of the Residual Certificates shall be permitted to be made
to any person unless the Certificate Registrar and Trustee have
received a certificate from such transferee containing the
representations in paragraphs 3 and 4 hereof.
6. That the Purchaser does not hold REMIC residual securities as
nominee to facilitate the clearance and settlement of such
securities through electronic book-entry changes in accounts of
participating organizations (such entity, a "Book-Entry Nominee").
7. That the Purchaser does not have the intention to impede the
assessment or collection of any federal, state or local taxes
legally required to be paid with respect to such Residual
Certificate.
8. That the Purchaser will not transfer a Residual Certificate to any
person or entity (i) as to which the Purchaser has actual knowledge
that the requirements set forth in paragraph 3, paragraph 6 or
paragraph 10 hereof are not satisfied or that the Purchaser has
reason to believe does not satisfy the requirements set forth in
paragraph 7 hereof, and (ii) without obtaining from the prospective
Purchaser an affidavit substantially in this form and providing to
the Trustee and the Certificate Registrar a written statement
substantially in the form of Exhibit C to the Agreement.
9. That the Purchaser understands that, as the holder of a Residual
Certificate, the Purchaser may incur tax liabilities in excess of
any cash flows generated by the interest and that it intends to pay
taxes associated with holding such Residual Certificate as they
become due.
10. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a
Non-U.S. Person that holds a Residual Certificate in connection with
the conduct of a trade or business within the United States and has
furnished the transferor, the Trustee and the
B-2
Certificate Registrar with an effective Internal Revenue Service
Form W-8ECI (Certificate of Foreign Person's Claim for Exemption
From Withholding on Income Effectively Connected With the Conduct of
a Trade or Business in the United States) or successor form at the
time and in the manner required by the Code or (iii) is a Non-U.S.
Person that has delivered to the transferor, the Trustee and the
Certificate Registrar an opinion of a nationally recognized tax
counsel to the effect that the transfer of such Residual Certificate
to it is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of a
Residual Certificate will not be disregarded for federal income tax
purposes. "Non-U.S. Person" means an individual, corporation,
partnership or other person other than (i) a citizen or resident of
the United States; (ii) a corporation, partnership or other entity
created or organized in or under the laws of the United States or
any state thereof, including for this purpose, the District of
Columbia; (iii) an estate that is subject to U.S. federal income tax
regardless of the source of its income; (iv) a trust if a court
within the United States is able to exercise primary supervision
over the administration of the trust and one or more United States
trustees have authority to control all substantial decisions of the
trust; and, (v) to the extent provided in Treasury regulations,
certain trusts in existence on August 20, 1996 that are treated as
United States persons prior to such date and elect to continue to be
treated as United States persons.
11. The Purchaser will not cause income from the Residual Certificate to
be attributable to a foreign permanent establishment or fixed base
of the Purchaser or another U.S. taxpayer.
12. That the Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the
restrictions on transfer of any Residual Certificate to such a
"disqualified organization," an agent thereof, a Book-Entry Nominee,
or a person that does not satisfy the requirements of paragraph 7
and paragraph 10 hereof.
13. That the Purchaser consents to the designation of the Securities
Administrator to act as agent for the "tax matters person" of each
REMIC created by the Trust Fund pursuant to the Pooling and
Servicing Agreement.
B-3
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its [title of officer] this _____ day of __________ 20__.
---------------------------------
[name of Purchaser]
By:
-----------------------------------
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________ 20__.
NOTARY PUBLIC
--------------------------------------
COUNTY OF
----------------------------
STATE OF
-----------------------------
My commission expires the _____ day of __________ 20__.
B-4
EXHIBIT C
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
----------------------------
Date
Re: X.X. Xxxxxx Mortgage Trust 2003-A1
Mortgage Pass-Through Certificates
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no
actual knowledge that such affidavit is not true and has no reason to believe
that the information contained in paragraph 7 thereof is not true, and has no
reason to believe that the Transferee has the intention to impede the
assessment or collection of any federal, state or local taxes legally required
to be paid with respect to a Residual Certificate. In addition, the Transferor
has conducted a reasonable investigation at the time of the transfer and found
that the Transferee had historically paid its debts as they came due and found
no significant evidence to indicate that the Transferee will not continue to
pay its debts as they become due.
Very truly yours,
--------------------------------------
Name:
Title:
C-1
EXHIBIT D
[RESERVED]
D-1
EXHIBIT E
LIST OF PURCHASE AND SERVICING AGREEMENTS
Mortgage Loan Flow Purchase, Sale and Servicing Agreement among X.X.
Xxxxxx Mortgage Acquisition Corp., Cendant Mortgage Corporation
("Cendant") and Xxxxxx'x Gate Residential Mortgage Trust (formerly known
as Cendant Residential Mortgage Trust), as Sellers, and Cendant, as
Servicer, dated April 29, 2003, as modified by the Acknowledgement.
E-1
EXHIBIT F
[RESERVED]
F-1
EXHIBIT G
LIST OF LIMITED PURPOSE SURETY BONDS
1. Ambac Assurance Corporation Surety Bond No. AB0039BE
G-1
EXHIBIT H
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: X.X. Xxxxxx Mortgage Trust 2003-A1,
Mortgage Pass-Through Certificates
Reference is hereby made to the Pooling and Servicing Agreement, dated as
of October 1, 2003 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Acceptance Corporation I, as Depositor, Xxxxx Fargo Bank Minnesota,
National Association, as Master Servicer and as Securities Administrator, and
Wachovia Bank, National Association, as Trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to $__________ initial Certificate Balance of Class
_____ Certificates which are held in the form of Definitive Certificates
registered in the name of ______________ (the "Transferor"). The Transferor
has requested a transfer of such Definitive Certificates for Definitive
Certificates of such Class registered in the name of [insert name of
transferee].
In connection with such request, and in respect of such Certificates, the
Transferor hereby certifies that such Certificates are being transferred in
accordance with (i) the transfer restrictions set forth in the Pooling and
Servicing Agreement and the Certificates and (ii) Rule 144A under the
Securities Act to a purchaser that the Transferor reasonably believes is a
"qualified institutional buyer" within the meaning of Rule 144A purchasing for
its own account or for the account of a "qualified institutional buyer," which
purchaser is aware that the sale to it is being made in reliance upon Rule
144A, in a transaction meeting the requirements of Rule 144A and in accordance
with any applicable securities laws of any state of the United States or any
other applicable jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Underwriter, the Certificate Registrar and the
Depositor.
---------------------------------
[Name of Transferor]
By:
------------------------------
Name:
Title:
Dated: ___________, ____
H-1
EXHIBIT I
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
Date
Dear Sirs:
In connection with our proposed purchase of $______________ principal
amount of X.X. Xxxxxx Mortgage Trust 2003-A1, Mortgage Pass-Through
Certificates (the "Privately Offered Certificates") of X.X. Xxxxxx Acceptance
Corporation I (the "Depositor"), we confirm that:
(1) We understand that the Privately Offered Certificates have not been,
and will not be, registered under the Securities Act of 1933, as
amended (the "Securities Act"), and may not be sold except as
permitted in the following sentence. We agree, on our own behalf and
on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Privately Offered Certificates
within two years of the later of the date of original issuance of the
Privately Offered Certificates or the last day on which such
Privately Offered Certificates are owned by the Depositor or any
affiliate of the Depositor we will do so only (A) to the Depositor,
(B) to "qualified institutional buyers" (within the meaning of Rule
144A under the Securities Act) in accordance with Rule 144A under the
Securities Act ("QIBs"), (C) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act, or (D) to
an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act
that is not a QIB (an "Institutional Accredited Investor") which,
prior to such transfer, delivers to the Certificate Registrar under
the Pooling and Servicing Agreement, dated as of October 1, 2003, by
and among X.X. Xxxxxx Acceptance Corporation I, as Depositor, Xxxxx
Fargo Bank Minnesota, National Association, as Master Servicer and as
Securities Administrator, and Wachovia Bank, National Association, as
Trustee, a signed letter in the form of this letter; and we further
agree, in the capacities stated above, to provide to any person
purchasing any of the Privately Offered Certificates from us a notice
advising such purchaser that resales of the Privately Offered
Certificates are restricted as stated herein.
(2) We understand that, in connection with any proposed resale of any
Privately Offered Certificates to an Institutional Accredited
Investor, we will be required to furnish to the Certificate Registrar
a certification from such transferee in the form hereof to confirm
that the proposed sale is being made pursuant to an exemption from,
or in a transaction not subject to, the registration requirements of
the Securities Act. We further understand that the Privately Offered
Certificates purchased by us will bear a legend to the foregoing
effect.
I-1
(3) We are acquiring the Privately Offered Certificates for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in
the Privately Offered Certificates, and we and any account for which
we are acting are each able to bear the economic risk of such
investment.
(4) We are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account or
for one or more accounts (each of which is an Institutional
Accredited Investor) as to each of which we exercise sole investment
discretion.
(5) We have received such information as we deem necessary in order to
make our investment decision.
(6) If we are acquiring ERISA-Restricted Certificates, we understand that
in accordance with ERISA, the Code and the Exemption, no Plan and no
person acting on behalf of such a Plan may acquire such Certificate
except in accordance with Section 3.03(d) of the Pooling and
Servicing Agreement.
Terms used in this letter which are not otherwise defined herein have
the respective meanings assigned thereto in the Pooling and Servicing
Agreement.
I-2
You and the Certificate Registrar are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
-------------------------------------
[Purchaser]
By:
----------------------------------
Name:
Title:
I-3
EXHIBIT J
FORM OF ERISA TRANSFER AFFIDAVIT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is the ______________________ of ______________ (the
"Investor"), a [corporation duly organized] and existing under the laws of
__________, on behalf of which he makes this affidavit.
2. The Investor either (x) is not, and on ___________ [date of transfer]
will not be, an employee benefit plan or other retirement arrangement subject
to Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), (collectively, a "Plan") or a person acting on behalf of
any such Plan or investing the assets of any such Plan; (y) if the Certificate
has been the subject of an ERISA-Qualifying Underwriting, is an insurance
company that is purchasing the Certificate with funds contained in an
"insurance company general account" as defined in Section V(e) of Prohibited
Transaction Class Exemption ("PTCE") 95-60 and the purchase and holding of the
Certificate are covered under Section I and III of PTCE 95-60; or (z) herewith
delivers to the Certificate Registrar an opinion of counsel (a "Benefit Plan
Opinion") satisfactory to the Certificate Registrar, and upon which the
Certificate Registrar, the Trustee, the Master Servicer, the Depositor and the
Securities Administrator shall be entitled to rely, to the effect that the
purchase or holding of such Certificate by the Investor will not constitute or
result in any non-exempt prohibited transactions under Title I of ERISA or
Section 4975 of the Code and will not subject the Certificate Registrar, the
Trustee, the Master Servicer, the Depositor or the Securities Administrator to
any obligation in addition to those undertaken by such entities in the Pooling
and Servicing Agreement, which opinion of counsel shall not be an expense of
the Trust Fund or the above parties.
3. The Investor hereby acknowledges that under the terms of the Pooling
and Servicing Agreement, dated as of October 1, 2003 (the "Agreement"), by and
among X.X. Xxxxxx Acceptance Corporation I, as Depositor, Xxxxx Fargo Bank
Minnesota, National Association, as Master Servicer and as Securities
Administrator, and Wachovia Bank, National Association, as Trustee, no
transfer of the ERISA-Restricted Certificates shall be permitted to be made to
any person unless the Certificate Registrar has received a certificate from
such transferee in the form hereof.
J-1
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to proper authority, by its duly authorized
officer, duly attested, this ____ day of _______________ 20___.
------------------------------------
[Investor]
By:
--------------------------------
Name:
Title:
ATTEST:
------------------------------------
STATE OF )
) ss.:
COUNTY OF )
Personally appeared before me the above-named ________________, known or
proved to me to be the same person who executed the foregoing instrument and
to be the ____________________ of the Investor, and acknowledged that he
executed the same as his free act and deed and the free act and deed of the
Investor.
Subscribed and sworn before me this _____ day of _________ 20___.
------------------------------------
NOTARY PUBLIC
My commission expires the
_____ day of __________ 20___.
J-2
EXHIBIT K
FORM OF LETTER OF REPRESENTATIONS
WITH THE DEPOSITORY TRUST COMPANY
K-1
EXHIBIT L
[RESERVED]
L-1
EXHIBIT M
[RESERVED]
M-1
SCHEDULE A
MORTGAGE LOAN SCHEDULE
S-1
