EXHIBIT 99.1
------------
6
EXECUTION COPY
XXXXXX XXXXXXX CAPITAL I INC.
Depositor
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Master Servicer and Securities Administrator
and
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee
---------------------------
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2005
---------------------------
XXXXXX XXXXXXX MORTGAGE LOAN TRUST 2005-9AR
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-9AR
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................................3
Section 1.01 Definitions................................................3
ARTICLE II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES...................44
Section 2.01 Creation and Declaration of Trust Fund; Conveyance
of Mortgage Loans.........................................44
Section 2.02 Acceptance of Trust Fund by Trustee; Review of
Documentation for Trust Fund..............................47
Section 2.03 Representations and Warranties of the Depositor...........48
Section 2.04 Representations and Warranties of the Depositor and
the Seller as to the Mortgage Loans.......................50
Section 2.05 Representations and Warranties of the Seller;
Discovery of Breach; Repurchase or Substitution of
Mortgage Loans............................................50
Section 2.06 Grant Clause..............................................55
ARTICLE III THE CERTIFICATES................................................56
Section 3.01 The Certificates..........................................56
Section 3.02 Registration..............................................57
Section 3.03 Transfer and Exchange of Certificates.....................57
Section 3.04 Cancellation of Certificates..............................61
Section 3.05 Replacement of Certificates...............................61
Section 3.06 Persons Deemed Owners.....................................61
Section 3.07 Temporary Certificates....................................61
Section 3.08 Appointment of Paying Agent...............................62
Section 3.09 Book-Entry Certificates...................................62
ARTICLE IV ADMINISTRATION OF THE TRUST FUND.................................64
Section 4.01 Custodial Accounts; Distribution Account..................64
Section 4.02 Permitted Withdrawals from the Custodial Accounts and the
Distribution Account......................................65
Section 4.03 [Reserved]................................................66
Section 4.04 [Reserved]................................................66
Section 4.05 Reports to Trustee and Certificateholders.................66
ARTICLE V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES..........................69
Section 5.01 Distributions Generally...................................69
Section 5.02 Priorities of Distribution................................69
Section 5.03 [Reserved]................................................76
Section 5.04 Allocation of Losses......................................76
i
Section 5.05 Advances by the Master Servicer...........................79
Section 5.06 Compensating Interest Payments............................79
Section 5.07 [Reserved]................................................79
Section 5.08 Cross-Collateralization; Adjustments to Available Funds...79
Section 5.09 Determination of Pass-Through Rates for LIBOR
Certificates............................................80
Section 5.10 Reserve Fund..............................................82
Section 5.11 The Corridor Contracts....................................83
ARTICLE VI CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR;
EVENTS OF DEFAULT...........................................................85
Section 6.01 Duties of Trustee and the Securities Administrator........85
Section 6.02 Certain Matters Affecting the Trustee and the Securities
Administrator.............................................88
Section 6.03 Trustee and Securities Administrator Not Liable for
Certificates..............................................89
Section 6.04 Trustee and the Securities Administrator May Own
Certificates..............................................90
Section 6.05 Eligibility Requirements for Trustee......................90
Section 6.06 Resignation and Removal of Trustee and the
Securities Administrator. 90
Section 6.07 Successor Trustee and Successor Securities Administrator..93
Section 6.08 Merger or Consolidation of Trustee or the Securities
Administrator............................................94
Section 6.09 Appointment of Co-Trustee, Separate Trustee or Custodian..94
Section 6.10 Authenticating Agents.....................................96
Section 6.11 Indemnification of the Trustee and the Securities
Administrator.............................................97
Section 6.12 Fees and Expenses of the Securities Administrator,
the Trustee and the Custodians............................97
Section 6.13 Collection of Monies......................................98
Section 6.14 Events of Default; Trustee To Act; Appointment of
Successor.................................................98
Section 6.15 Additional Remedies of Trustee Upon Event of Default.....102
Section 6.16 Waiver of Defaults.......................................103
Section 6.17 Notification to Holders..................................103
Section 6.18 Directions by Certificateholders and Duties of Trustee
During Event of Default..................................103
Section 6.19 Action Upon Certain Failures of the Master Servicer
and Upon Event of Default................................104
Section 6.20 Preparation of Tax Returns and Other Reports.............104
ARTICLE VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST FUND...106
Section 7.01 Purchase of Mortgage Loans; Termination of Trust Fund
Upon Purchase or Liquidation of All Mortgage Loans.......106
Section 7.02 Procedure Upon Redemption of Trust Fund..................107
Section 7.03 Additional Trust Fund Termination Requirements...........109
ARTICLE VIII RIGHTS OF CERTIFICATEHOLDERS..................................110
Section 8.01 Limitation on Rights of Holders..........................110
Section 8.02 Access to List of Holders................................111
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Section 8.03 Acts of Holders of Certificates..........................111
ARTICLE IX ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY
THE MASTER SERVICER........................................................112
Section 9.01 Duties of the Master Servicer; Enforcement of
Servicers' and Master Servicer's Obligations.............112
Section 9.02 Assumption of Master Servicing by Trustee................114
Section 9.03 Representations and Warranties of the Master Servicer....115
Section 9.04 Compensation to the Master Servicer......................117
Section 9.05 Merger or Consolidation..................................117
Section 9.06 Resignation of Master Servicer and Securities
Administrator............................................118
Section 9.07 Assignment or Delegation of Duties by the Master
Servicer and Securities Administrator....................118
Section 9.08 Limitation on Liability of the Master Servicer
and Others...............................................119
Section 9.09 Indemnification; Third-Party Claims......................119
Section 9.10 Eligibility Requirements for Securities Administrator....120
ARTICLE X REMIC ADMINISTRATION.............................................121
Section 10.01 REMIC Administration.....................................121
Section 10.02 Prohibited Transactions and Activities...................123
Section 10.03 Indemnification with Respect to Prohibited Transactions
or Loss of REMIC Status..................................123
Section 10.04 REO Property.............................................124
Section 10.05 Fidelity.................................................125
ARTICLE XI MISCELLANEOUS PROVISIONS........................................125
Section 11.01 Binding Nature of Agreement; Assignment..................125
Section 11.02 Entire Agreement.........................................125
Section 11.03 Amendment................................................125
Section 11.04 Voting Rights............................................126
Section 11.05 Provision of Information.................................126
Section 11.06 Governing Law............................................127
Section 11.07 Notices..................................................127
Section 11.08 Severability of Provisions...............................127
Section 11.09 Indulgences; No Waivers..................................128
Section 11.10 Headings Not To Affect Interpretation....................128
Section 11.11 Benefits of Agreement....................................128
Section 11.12 Special Notices to the Rating Agencies...................128
Section 11.13 Conflicts................................................129
Section 11.14 Counterparts.............................................129
Section 11.15 No Petitions.............................................129
Section 11.16 Indemnification by Trust.................................129
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ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B Form of Residual Certificate Transfer Affidavit (Transferee)
Exhibit C Form of Residual Certificate Transfer Affidavit (Transferor)
Exhibit D [Reserved]
Exhibit E List of Purchase and Servicing Agreements
Exhibit F List of Custodial Agreements
Exhibit G Assignment and Notice of Transfer with respect to each
Additional Collateral Mortgage Loan
Exhibit H Form of Rule 144A Transfer Certificate
Exhibit I Form of Purchaser's Letter for Institutional Accredited Investors
Exhibit J Form of ERISA Transfer Affidavit
Exhibit K Form of Letter of Representations with the Depository Trust
Company
Exhibit L Form of Custodian Certification
Exhibit M [Reserved]
Schedule A Mortgage Loan Schedule
Schedule B Principal Balances Schedule
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This POOLING AND SERVICING AGREEMENT, dated as of November 1, 2005 (the
"Agreement"), by and among XXXXXX XXXXXXX CAPITAL I INC., a Delaware
corporation, as depositor (the "Depositor"), DEUTSCHE BANK NATIONAL TRUST
COMPANY, a national banking association, as trustee (the "Trustee"), XXXXX FARGO
BANK, NATIONAL ASSOCIATION, in its separate capacities as master servicer (the
"Master Servicer"), as securities administrator (the "Securities Administrator")
and, in its capacity as Securities Administrator, as auction administrator (the
"Auction Administrator") and acknowledged by XXXXXX XXXXXXX MORTGAGE CAPITAL
INC., a New York corporation, as seller (the "Seller"), for purposes of Section
2.05.
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed
to the Trustee in return for the Certificates. As provided herein, the Trustee
will make multiple elections to treat segregated pools of assets subject to this
Agreement for federal income tax purposes (other than the rights of the Class C
Certificates in respect of any Auction Excess Proceeds, Corridor Contracts and
the assets held in the Reserve Fund) as the following four separate real estate
mortgage investment conduits (each, a "REMIC"): REMIC 1A, REMIC 1B, REMIC 2 and
the Master REMIC. REMIC 1A will consist of Loan Group 1, excluding any rights of
the Class C Certificates in respect of any Auction Excess Proceeds, any rights
of the Trust Fund in respect of the Corridor Contract Agreements and the Reserve
Fund. REMIC 1B will consist of Loan Group 2, Loan Group 3, Loan Group 4 and Loan
Group 5, excluding any rights of the Class C Certificates in respect of any
Auction Excess Proceeds. REMIC 1A and REMIC 1B will issue uncertificated REMIC
regular interests (collectively, the "REMIC 1 Regular Interests"). The REMIC 1
Regular Interests will represent the "regular interests" in each of REMIC 1A and
REMIC 1B. The Class R-1A Interest will represent the single Class of "residual
interest" in REMIC 1A and the Class R-1B Interest will represent the single
Class of "residual interest" in REMIC 1B. The rights of the Class C Certificates
in respect of any Auction Excess Proceeds will be treated as a grantor trust for
federal income tax purposes.
The Trustee will hold the REMIC 1 Regular Interests for the benefit
of REMIC 2. REMIC 2 will consist of the REMIC 1 Interests and will be evidenced
by the REMIC 2 Interests, which (other than the Class R-2 Interests) will
constitute the regular interests in REMIC 2 (the "REMIC 2 Regular Interests")
and the Class R-2 Interest, which will represent the single Class of "residual
interest" in REMIC 2. The Trustee will hold the REMIC 2 Regular Interests for
the benefit of the Master REMIC. The Master REMIC will consist of REMIC 2
Interests and will be evidenced by the Certificates, which (other than the Class
C and Class A-R Certificates) will constitute the regular interests in the
Master REMIC (the "Regular Certificates") and the Class R-3 Interest, which will
represent the single Class of "residual interest" in the Master REMIC. The Class
A-R Certificates will represent the beneficial ownership of each of the Class
R-1A, Class R-1B, Class R-2 and Class R-3 Interests. The "latest possible
maturity date" for federal income tax purposes of all regular and residual
interests created hereunder will be the Latest Possible Maturity Date.
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REMIC 1A
The REMIC 1A Interests, each of which (except for the Class R-1A
Interests) is hereby designated as a REMIC regular interest for federal income
tax purposes, will have the principal balances, pass-through rates and
Corresponding Loan Groups as set forth in the following table:
Subsidiary REMIC 1A Pass-Through Corresponding
Interests Initial Balance Rate Certificate
-------------------------- ---------------------- ---------------------- ---------------------------
1A-1-A (1) (2) 1-A
1A-1-B-1 (1) (2) 1-B-1
1A-1-B-2 (1) (2) 1-B-2
1A-1-B-3 (1) (2) 1-B-3
1A-1-B-4 (1) (2) 1-B-4
1A-1-B-5 (1) (2) 1-B-5
1A-1-B-6 (1) (2) 1-B-6
Class 1A-P1 $50 (3) N/A
R-1A $0 N/A (4) N/A
---------------
(1) The Class 1A-1-A, Class 1A-1-B-1, Class 1A-1-B-2, Class 1A-1-B-3, Class
1A-B-4, Class 1A-B-5 and Class 1A-B-6 Interests will have the same
principal balance on the Closing Date as their Corresponding
Certificates. On each Distribution Date, any distributions of scheduled
principal and prepayments and Realized Losses will be allocated to the
REMIC 1A Interests in the same manner as they are allocated to their
Corresponding Certificates.
(2) The Group 1 Net WAC.
(3) The Class SR-P1 Interest will not be entitled to any interest, but will
be entitled to 100% of any prepayment premiums paid on the Group 1
Mortgage Loans.
(4) The Class R-1A Interest is the sole class of residual interest in REMIC
1A and will not be entitled to distributions of principal or interest.
REMIC 1B
The REMIC 1B Interests, each of which (except for the Class R-1B
Interests) is hereby designated as a REMIC regular interest for federal income
tax purposes, will have the principal balances, pass-through rates and
Corresponding Loan Groups as set forth in the following table:
A-2 (0.9% of Subordinated Portion
Group 2).... . (1) (2) 2
B-2 (0.1% of Subordinated Portion
Group 2).... (1) (2) 2
C-2 (Excess of Group 2) (1) (2) 2
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A-3 (0.9% of Subordinated Portion
Group 3).... . (1) (2) 3
B-3 (0.1% of Subordinated Portion
Group 3).... (1) (2) 3
C-3 (Excess of Group 3) (1) (2) 3
Class 1B-P2 $50 (3) N/A
R-1B $0 N/A (4) N/A
---------------
(1) Each Class A Interest will have a principal balance initially equal to
0.9% of the Subordinated Portion of its Corresponding Loan Group. Each
Class B Interest will have a principal balance initially equal to 0.1% of
the Subordinated Portion of its Corresponding Loan Group. The initial
principal balance of each Class C Interest will equal the excess of the
principal balance of its Corresponding Loan Group over the initial
aggregate principal balances of the Class A and Class B Interests
corresponding to such Loan Group.
(2) The Weighted Average Net Mortgage Rate in respect of the Corresponding
Loan Group.
(3) (3) The Class SR-P2 Interest will not be entitled to any interest, but
will be entitled to 100% of any prepayment premiums paid on the Group 2
and Group 3 Mortgage Loans.
(4) The Class R-1B Interest is the sole class of residual interest in REMIC 1B
and will not be entitled to distributions of principal or interest.
On any Distribution Date:
(1) If no Cross-Over Situation exists with respect to any Class of
Interests, then Principal Reductions arising with respect to each Loan Group
will be allocated first to cause the Loan Group's corresponding Class A and
Class B Interests to equal, respectively, 0.9% and 0.1% of the Subordinated
Portion as of such Distribution Date, and second to the Loan Group's
corresponding Class C Interest;
(2) If a Cross-Over Situation exists then:
(a) if the Calculation Rate in respect of the outstanding Class A and and
Class B Interests is less than the Pass Through Rate in respect of the Aggregate
Group II Subordinate Certificates, Principal Relocation Payments will be made
proportionately to the outstanding Class A Interests prior to any other
Principal Distributions from each such Loan Group; and
(b) if the Calculation Rate in respect of the outstanding Class A and
Class B Interests is greater than the Pass Through Rate in respect of the
Aggregate Group II Subordinate Certificates, Principal Relocation Payments will
be made proportionately to the outstanding Class B Interests prior to any other
Principal Distributions from each such Loan Group.
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 Pass Through Rate in respect of the Aggregate Group II Subordinate
Certificates. With respect to each Loan Group,
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 Loan Group'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 will not be
reduced below 1 percent of the excess of (i) the aggregate outstanding Principal
Balances of the Mortgage Loans in Loan Group 2, 3, 4 and 5 as of the end of any
Due Period over (ii) the Certificate Balance of the related Senior Certificates
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 any of the Class A and Class B Interests, and if
the Loan Group's Class C Interest has already been reduced to zero, then the
excess principal from that Loan Group will be paid to the Class C Interests of
any other Loan Group whose aggregate corresponding Class A and Class B Interests
are less than one percent of their corresponding Subordinated Portion. If any
Loan Group corresponding to a Class C Interest that receives such payment has a
Weighted Average Net Mortgage Rate below the Weighted Average Net Mortgage Rate
of the Loan Group making such payment, then the payment will be treated by REMIC
1B as a Realized Loss. Conversely, if the Loan Group of the Class C Interest or
Interests that receive such payment has a Weighted Average Net Mortgage Rate
above the Weighted Average Net Mortgage Rate of the Loan Group making the
payment, then the payment will be treated by REMIC 1B as a reimbursement for
prior Realized Losses.
REMIC 2
The REMIC 2 Interests, each of which (except for the Class R-2
Interests) is hereby designated as a REMIC regular interest for federal income
tax purposes, will have the principal balances, pass-through rates and
corresponding Certificate as set forth in the following table:
=========================================================================================
Pass-Through
Rate Corresponding
Class Designation Class Principal Balance (per annum) Certificate
-----------------------------------------------------------------------------------------
Class 2-1-A (1) (2) Class 1-A
-----------------------------------------------------------------------------------------
Class 2-2-A (1) (3) Class 2-A
-----------------------------------------------------------------------------------------
Class 2-3-A-1 (1) (4) Class 3-A-1
-----------------------------------------------------------------------------------------
Class 2-3-A-2 (1) (4) Class 3-A-2
-----------------------------------------------------------------------------------------
Class 2-$100 (1) (5) Class A-R
-----------------------------------------------------------------------------------------
Class 2-1-B-1 (1) (2) Class 1-B-1
-----------------------------------------------------------------------------------------
Class 2-1-B-2 (1) (2) Class 1-B-2
-----------------------------------------------------------------------------------------
Class 2-1-B-3 (1) (2) Class 1-B-3
-----------------------------------------------------------------------------------------
Class 2-1-B-4 (1) (2) Class 1-B-4
-----------------------------------------------------------------------------------------
Class 2-1-B-5 (1) (2) Class 1-B-5
-----------------------------------------------------------------------------------------
Class 2-1-B-6 (1) (2) Class 1-B-6
-----------------------------------------------------------------------------------------
viii
-----------------------------------------------------------------------------------------
Class 2-B-1 (1) (6) Class B-1
-----------------------------------------------------------------------------------------
Class 2-B-2 (1) (6) Class B-2
-----------------------------------------------------------------------------------------
Class 2-B-3 (1) (6) Class B-3
-----------------------------------------------------------------------------------------
Class 2-B-4 (1) (6) Class B-4
-----------------------------------------------------------------------------------------
Class 2-B-5 (1) (6) Class B-5
-----------------------------------------------------------------------------------------
Class 2-B-6 (1) (6) Class B-6
-----------------------------------------------------------------------------------------
Class 2-P-1 (1) (7) Class P-1
-----------------------------------------------------------------------------------------
Class 2-P-2 (1) (7) Class P-2
-----------------------------------------------------------------------------------------
Class R-2 N/A(8) N/A(8) N/A
=========================================================================================
------------------------------------------
(1) The Class 2-1-A, Class 2-1-B-1, Class 2-1-B-2, Class 2-1-B-3, Class
2-1-B-4, Class 2-1-B-5, Class 2-1-B-6, Class 2-2-A, Class 2-3-A, Class
2-$100, Class 2-B-1, Class 2-B-2, Class 2-B-3, Class 2-B-4, Class 2-B-5,
Class 2-B-6 Interests will have the same principal balance on the Closing
Date as their Corresponding Certificates. On each Distribution Date, any
distributions of scheduled principal and prepayments and Realized Losses
will be allocated to the REMIC 2 Interests in the same manner as they are
allocated (in the aggregate) to their Corresponding Certificates.
(2) For each Distribution Date, the Group 1 Net WAC for such Distribution
Date.
(3) For each Distribution Date, the Group 2 Net WAC for such Distribution
Date.
(4) For each Distribution Date, the Group 3 Net WAC for such Distribution
Date.
(5) For each Distribution Date, the Class A-R Pass-Through Rate for such
Distribution Date.
(6) For each Distribution Date, the Calculation Rate for such Distribution
Date.
(7) The Class 2-P-1 and Class 2-P-2 Interests will not be entitled to any
interest, but will be entitled to 100% of any prepayment premiums paid on
the Group 1 Mortgage Loans and the Aggregate Group II Mortgage Loans,
respectively.
(8) The Class R-2 Interest is the sole class of residual interest in REMIC 2
and will not be entitled to distributions of principal or interest.
The Master REMIC
The following table sets forth characteristics of the Master REMIC
Certificates, together with the minimum denominations and integral multiples in
excess thereof in which such Classes shall be issuable (except that one
Certificate of each Class of Certificates may be issued in a different amount
and, in addition, one Residual Certificate representing the Tax Matters Person
Certificate may be issued in a different amount):
============================================================================================================
Class Designation Initial Class Principal Pass-Through Minimum Integral
Multiples in
Rate Excess of
Balance (per annum) Denomination Minimum
============================================================================================================
ix
============================================================================================================
Class 1-A $354,843,000.00 (1) $25,000.00 $1,000.00
------------------------------------------------------------------------------------------------------------
Class 1-X (2) (3) $100,000.00(4) $1,000.00(4)
------------------------------------------------------------------------------------------------------------
Class 2-A $168,417,000.00 (5) $25,000.00 $1,000.00
------------------------------------------------------------------------------------------------------------
Class 3-A-1 $41,818,000.00 (6) $25,000.00 $1,000.00
------------------------------------------------------------------------------------------------------------
Class 3-A-2 $3,514,000.00 (6) $25,000.00 $1,000.00
------------------------------------------------------------------------------------------------------------
Class A-R (19) $100.00 (5) (7) (7)
------------------------------------------------------------------------------------------------------------
Class 1-B-1 $6,929,000.00 (8) $25,000.00 $1,000.00
------------------------------------------------------------------------------------------------------------
Class 1-B-2 $5,056,000.00 (9) $25,000.00 $1,000.00
------------------------------------------------------------------------------------------------------------
Class 1-B-3 $2,808,000.00 (10) $25,000.00 $1,000.00
------------------------------------------------------------------------------------------------------------
Class 1-B-4 $2,060,000.00 (10) $100,000.00 $1,000.00
------------------------------------------------------------------------------------------------------------
Class 1-B-5 $1,685,000.00 (10) $100,000.00 $1,000.00
------------------------------------------------------------------------------------------------------------
Class 1-B-6 $1,124,428.77 (10) $100,000.00 $1,000.00
------------------------------------------------------------------------------------------------------------
Class B-1 $6,024,000.00 (11) $25,000.00 $1,000.00
------------------------------------------------------------------------------------------------------------
Class B-2 $4,287,000.00 (11) $25,000.00 $1,000.00
------------------------------------------------------------------------------------------------------------
Class B-3 $2,549,000.00 (11) $25,000.00 $1,000.00
------------------------------------------------------------------------------------------------------------
Class B-4 $2,432,000.00 (11) $100,000.00 $1,000.00
------------------------------------------------------------------------------------------------------------
Class B-5 $1,622,000.00 (11) $100,000.00 $1,000.00
------------------------------------------------------------------------------------------------------------
Class B-6 $1,043,611.66 (11) $100,000.00 $1,000.00
------------------------------------------------------------------------------------------------------------
Class P-1 $100.00 (12), (13) $100.00 N/A
------------------------------------------------------------------------------------------------------------
Class P-2 $100.00 (12), (13) $100.00 N/A
------------------------------------------------------------------------------------------------------------
Class C $100.00 (14) $100.00 N/A
============================================================================================================
------------------------------------------
(1) The Pass-Through Rate for the Class 1-A Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum rate
equal to one-month LIBOR + 0.29%, subject to a maximum Pass-Through Rate of
the lesser of (i) 11.50% per annum and (ii) the Group 1 Net WAC for such
Distribution Date. The Pass-Through Rate for the Class 1-A Certificates for
the Interest Accrual Period related to the first Distribution Date will be a
per annum rate of 4.484%.
(2) The Class 1-X Certificates will be Notional Amount Certificates, will have
no Class Principal Balance and will bear interest on its Notional Amount
(initially, $366,828,000).
(3) The Pass-Through Rate for the Class 1-X Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum rate
equal to the excess, if any, of (i) the Group 1 Net WAC over (ii) the
weighted average of the Pass-Through Rates for the Class 1-A, Class 1-B-1 and
Class 1-B-2 Certificates for the Interest Accrual Period related to that
Distribution Date. The Pass-Through Rate for the Class 1-X Certificates for
the Interest Accrual Period related to the first Distribution Date will be a
per annum rate of 0.954%.
(4) Minimum denomination is based on the Notional Amount of such Class.
(5) The Pass-Through Rate for the Class 2-A and Class A-R Certificates for any
Distribution Date will be a per annum rate equal to the Weighted Average Net
Mortgage Rate on the Group 2 Mortgage Loans. The Pass-Through Rate for the
Class 2-A and Class A-R Certificates for the Interest Accrual Period related
to the first Distribution Date will be a per annum rate of 5.953%.
(6) The Pass-Through Rate for the Class 3-A-1 and Class 3-A-2 Certificates for
any Distribution Date will be a per annum rate equal to the Weighted Average
Net Mortgage Rate on the Group 3 Mortgage
x
Loans. The Pass-Through Rate for the Class 3-A-1 and Class 3-A-2 Certificates
for the Interest Accrual Period related to the first Distribution Date will
be a per annum rate of 5.602%.
(7) The Class A-R Certificate shall be issued as two separate certificates, one
with an initial Certificate Balance of $99.99 and the Tax Matters Person
Certificate with an initial Certificate Balance of $0.01.
(8) The Pass-Through Rate for the Class 1-B-1 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum rate
equal to one-month LIBOR + 0.48%, subject to a maximum Pass-Through Rate of
the lesser of (i) 11.50% per annum and (ii) the Group 1 Net WAC for such
Distribution Date. The Pass-Through Rate for the Class 1-B-1 Certificates for
the Interest Accrual Period related to the first Distribution Date will be a
per annum rate of 4.674%.
(9) The Pass-Through Rate for the Class 1-B-2 Certificates for the Interest
Accrual Period related to any Distribution Date will be a per annum rate
equal to one-month LIBOR + 0.67%, subject to a maximum Pass-Through Rate of
the lesser of (i) 11.50% per annum and (ii) the Group 1 Net WAC for such
Distribution Date. The Pass-Through Rate for the Class 1-B-2 Certificates for
the Interest Accrual Period related to the first Distribution Date will be a
per annum rate of 4.864%.
(10) The Pass-Through Rate for the Class 1-B-3, Class 1-B-4, Class 1-B-5 and
Class 1-B-6 Certificates for any Distribution Date will be a per annum rate
equal to the Group 1 Net WAC. The Pass-Through Rate for the Class 1-B-3,
Class 1-B-4, Class 1-B-5 and Class 1-B-6 Certificates for the Interest
Accrual Period related to the first Distribution Date will be a per annum
rate of 5.447%.
(11) The Pass-Through Rate for each Class of Aggregate Group II Subordinated
Certificates for any Distribution Date will be a per annum rate equal to the
sum of: (1) the Weighted Average Net Mortgage Rate on the Group 2 Mortgage
Loans multiplied by the excess of the aggregate Stated Principal Balance of
the Group 2 Mortgage Loans as of the Due Date in the month preceding the
month of that Distribution Date (after giving effect to prepayments received
in the Prepayment Period related to such prior Due Date) over the aggregate
of the Class Principal Balances of the Group 2 Senior Certificates
immediately prior to that Distribution Date and (2) the Weighted Average Net
Mortgage Rate on the Group 3 Mortgage Loans multiplied by the excess of the
aggregate Stated Principal Balance of the Group 3 Mortgage Loans as of the
Due Date in the month preceding the month of that Distribution Date (after
giving effect to prepayments received in the Prepayment Period related to
such prior Due Date) over the aggregate of the Class Principal Balances of
the Group 3 Senior Certificates immediately prior to that Distribution Date.
The Pass-Through Rate for each Class of Aggregate Group II Subordinated
Certificates for the Interest Accrual Period related to the first
Distribution Date will be a per annum rate of 5.878%.
(12) The Class P-1 and Class P-2 Certificates will not be entitled to any
interest, but will be entitled to 100% of any prepayment premiums paid on the
Group 1 Mortgage Loans and the Aggregate Group II Mortgage Loans,
respectively. For the federal income tax purposes, the Class P-1 and Class
P-2 Certificates will be entitled to 100% of the Class MP Regular Interest
cash flow.
(13) The Class P-1 Certificates will receive all payments in respect of
prepayment penalties on all of the Mortgage Loans in Loan Group 1 and are not
entitled to receive any distributions of interest. The Class P-2 Certificates
will receive all payments in respect of prepayment penalties on all of the
Mortgage Loans in Loan Group 2 and Loan Group 3 and are not entitled to
receive any distributions of interest.
(14) The Class C Certificates will not be entitled to payments of interest but
will be entitled to receive any Auction Excess Proceeds in connection with
any Successful Auction conducted pursuant to the
xi
terms hereof. The Class C Certificates will be issued as a single certificate
with an initial Certificate Balance of $100.00. The Class C Certificates will
be treated as an interest in a grantor trust for federal income tax purposes
and not as a regular interest in the Master REMIC for federal income tax
purposes.
The foregoing provisions in the Preliminary Statement are intended to
cause net interest and principal collections in respect of the Mortgage Loans to
be distributed from each Subsidiary REMIC to the Master REMIC and from the
Master REMIC to each Class of Certificates. The Preliminary Statement will be
interpreted and applied consistently with such intent.
For any purpose for which the Pass-Through Rates is calculated, the
interest rate on the Mortgage Loans shall be appropriately adjusted to account
for the difference between the monthly day count convention of the Mortgage
Loans and the monthly day count convention of the regular interests issued by
each of the REMICs. For purposes of calculating the Pass-Through Rates for each
of the interests issued by each REMIC created hereunder (other than the Master
REMIC) such rates shall be adjusted to equal a monthly day count convention
based on a 30 day month for each Due Period and a 360-day year so that the
Mortgage Loans and all regular interests will be using the same monthly day
count convention.
xii
Set forth below are designations of Classes or Components of Certificates and
other defined terms to the categories used herein:
Accretion Directed Certificates........ None.
Accretion Directed Components......... None.
Accrual Certificates.................. None.
Accrual Components.................... None.
Aggregate Certificate Group........... Each of the Group 1 Certificates and
Aggregate Group II Certificates.
Group 1 Certificates.................. Group 1 Senior Certificates and Group
1 Subordinated Certificates.
Group 1 Senior
Certificates.......................... Class 1-A and Class 1-X Certificates.
Group 1 Subordinated
Certificates.......................... Class 1-B-1, Class 1-B-2, Class 1-B-3,
Class 1-B-4, Class 1-B-5 and Class
1-B-6 Certificates.
Group 2 Senior Certificates........... Group 2 Senior Certificates and the
portions of the Aggregate Group II
Subordinated Certificates related to
Loan Group 2.
Group 2 Senior Certificates........... Class 2-A and Class A-R Certificates.
Group 3 Senior Certificates........... Group 3 Senior Certificates and the
portions of the Aggregate Group II
Subordinated Certificates related to
Loan Group 3.
Group 3 Senior Certificates........... Class 3-A Certificates.
Aggregate Group II Certificates....... Aggregate Group II Senior Certificates
and Aggregate Group II Subordinated
Certificates.
Aggregate Group II Senior
Certificates.......................... Group 2 Senior Certificates and Group
3 Senior Certificates.
Aggregate Group II Subordinated
Certificates................. Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5 and Class B-6
Certificates.
Book-Entry Certificates............... All Classes of Certificates other than
the Definitive Certificates.
Combined Certificates................. None.
Component Certificates................ None.
Components............................ For purposes of calculating
distributions of principal and/or
interest, the Component Certificates,
if any, will be comprised of
1
multiple payment components having the
designations, Initial Component
Balances or Notional Amounts, as
applicable, and Pass-Through Rates set
forth below:
Designation Initial
Component
Principal Pass-Through
Designation Balance Rate
----------- ------- ----
N/A N/A N/A
Delay Certificates.................... All interest-bearing Classes of
Certificates other than the Non-Delay
Certificates, if any.
ERISA-Restricted Certificates......... The Residual Certificates and Private
Certificates; and any Certificate of a
Class that ceases to satisfy the
applicable rating requirement under
the Underwriter's Exemption.
Floating Rate Certificates............ Class 1-A-1, Class 1-B-1 and Class
1-B-2 Certificates.
Inverse Floating Rate Certificates.... None.
LIBOR Certificates.................... Floating Rate Certificates and Inverse
Floating Rate Certificates.
Non-Delay Certificates................ The LIBOR Certificates.
Notional Amount Certificates.......... Class 1-X Certificates.
Notional Amount Components............ None.
Offered Certificates.................. All Classes of Certificates other than
the Private Certificates.
Definitive Certificates............... Private Certificates and the Residual
Certificates.
Planned Principal Classes............. None.
Principal Only Certificates........... None.
Private Certificates.................. Class P-1, Class P-2, Class C, Class
1-B-4, Class B-4, Class 1-B-5, Class
B-5, Class 1-B-6 and Class B-6
Certificates.
Rating Agencies....................... S&P and Xxxxx'x.
Regular Certificates.................. All Classes of Certificates, other
than the Residual Certificates.
Residual Certificates................. Class A-R Certificates.
Scheduled Principal Classes........... None.
Senior Certificate Group.............. The Group 1 Senior Certificates, the
Group 2 Senior Certificates and the
Group 3 Senior Certificates, as
applicable.
2
Senior Certificates................... Class1-A, Class 1-X, Class 2-A, Class
3-A-1, Class 3-A-2 and Class A-R
Certificates.
Subordinated Certificate Group........ Group 1 Subordinated Certificates and
Aggregate Group II Subordinated
Certificates.
Subordinated Certificates............. Class 1-B-1, Class B-1, Class 1-B-2,
Class B-2, Class 1-B-3, Class B-3,
Class 1-B-4, Class B-4, Class 1-B-5,
Class B-5, Class 1-B-6 and Class B-6
Certificates.
Targeted Principal Classes............ None.
Underwriter........................... Xxxxxx Xxxxxxx & Co. Incorporated.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions herein
relating solely to such designations shall be of no force or effect, and any
calculations herein incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined terms
and provisions herein relating to statistical rating agencies not designated
above as Rating Agencies shall be of no force or effect.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
The following words and phrases, unless the context otherwise requires,
shall have the following meanings:
Accountant: A Person engaged in the practice of accounting who (except
when this Agreement provides that an Accountant must be Independent) may be
employed by or affiliated with the Depositor or an Affiliate of the Depositor.
Acknowledgements: The Assignment, Assumption and Recognition Agreements,
each dated as of November 1, 2005, assigning rights under the Purchase and
Servicing Agreements from the Seller to the Depositor and from the Depositor to
the Trustee, for the benefit of the Certificateholders.
Accretion Directed Certificates: As specified in the Preliminary
Statement.
Accretion Direction Rule: Not applicable.
Accrual Amount: With respect to any Class of Accrual Certificates or any
Accrual Component and any Distribution Date, the amount allocable to interest
on such Class of Accrual Certificates or Accrual Component with respect to
such Distribution Date pursuant to Section 5.02(a)(1)(iii), 5.02(a)(2)(iii) or
5.02(a)(3)(iii), as applicable.
Accrual Certificates: As specified in the Preliminary Statement.
3
Accrual Components: As specified in the Preliminary Statement.
Accrual Termination Date: Not applicable.
Act: The Securities Act of 1933, as amended.
Additional Collateral: With respect to any Additional Collateral Mortgage
Loan, the marketable securities and other acceptable collateral pledged as
collateral pursuant to the related pledge agreements.
Additional Collateral Mortgage Loan: Each Mortgage Loan identified as
such in the Mortgage Loan Schedule.
Adjustment Date: A date specified in each Mortgage Note as a date on
which the Mortgage Rate on the related Mortgage Loan will be adjusted.
Advance: With respect to a Mortgage Loan, the payments required to be made
by the Master Servicer or the applicable Servicer with respect to any
Distribution Date pursuant to this Agreement or the applicable Purchase and
Servicing Agreement, as applicable, the amount of any such payment being equal
to the aggregate of the payments of principal and interest (net of the
applicable Servicing Fee and net of any net income in the case of any REO
Property) on the Mortgage Loans that were due on the related Due Date and not
received as of the close of business on the related Determination Date, less the
aggregate amount of any such delinquent payments that the Master Servicer or the
applicable Servicer has determined would constitute Nonrecoverable Advances if
advanced.
Adverse REMIC Event: Either (i) loss of status as a REMIC, within the
meaning of Section 860D of the Code, for any group of assets identified as a
REMIC in the Preliminary Statement to this Agreement, or (ii) imposition of any
tax, including the tax imposed under Section 860F(a)(1) on prohibited
transactions, and the tax imposed under Section 860G(d) on certain contributions
to a REMIC, on any REMIC created hereunder to the extent such tax would be
payable from assets held as part of the Trust Fund.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct 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 Certificate Group: The Group 1 Certificates or Aggregate Group
II Certificates as the context requires.
Aggregate Expense Rate: With respect to any Mortgage Loan, the applicable
Servicing Fee Rate and, with respect to any LPMI Mortgage Loan, the interest
premium charged by the mortgagee to obtain or maintain any Primary Insurance
Policy.
Aggregate Group II Certificates: As specified in the Preliminary
Statement.
4
Aggregate Group II Senior Certificates: As specified in the Preliminary
Statement.
Aggregate Group II Subordinated Certificates: As specified in the
Preliminary Statement.
Aggregate Group II Weighted Average Rate: For the Interest Accrual Period
related to each Distribution Date, a per annum rate equal to the sum of the
following for each of Loan Group 2 and Loan Group 3: the product of (x) the
Weighted Average Net Mortgage Rate of the Mortgage Loans in the related Loan
Group and (y) a fraction, the numerator of which is the related Subordinated
Portion immediately prior to that Distribution Date, and the denominator of
which is the aggregate Class Principal Balance of the Aggregate Group II
Subordinated Certificates, in each case immediately prior to that Distribution
Date.
Aggregate Loan Group: Loan Group 1 or Aggregate Loan Group II, as the
context requires.
Aggregate Loan Group II: Collectively, Loan Group 2 and Loan Group 3.
Aggregate Planned Balance: With respect to any group of Planned Principal
Classes or Components and any Distribution Date, the amount set forth for such
group for such Distribution Date in Schedule B hereto.
Aggregate Subordinated Percentage: As to any Distribution Date and each
Aggregate Loan Group, the fraction, expressed as a percentage, the numerator of
which is equal to the aggregate Class Principal Balance of the Subordinated
Certificates in the related Aggregate Certificate Group immediately prior to
such Distribution Date and the denominator of which is the aggregate Stated
Principal Balance of all the Mortgage Loans as of the Due Date in the month
preceding the month of such Distribution Date.
Aggregate Targeted Balance: With respect to any group of Targeted
Principal Classes or Components and any Distribution Date, the amount set forth
for such group for such Distribution Date in Schedule B hereto.
Aggregate Voting Interests: The aggregate of the Voting Interests of all
the Certificates under this Agreement.
Agreement: This Pooling and Servicing Agreement and all amendments or
supplements hereto.
Allocable Share: As to any Distribution Date, any Mortgage Loan in a Loan
Group and any Class or Component of Certificates related to that Loan Group, the
ratio that the amount calculated with respect to such Distribution Date (A) with
respect to the Senior Certificates of the related Senior Certificate Group and
the Group I Subordinated Certificates, pursuant to clause (i) of the definition
of Class Optimal Interest Distribution Amount (without giving effect to any
reduction of such amount pursuant to Section 5.02(d)) and (B) with respect to
the Aggregate Group II Subordinated Certificates after a Senior Termination
Date, pursuant to the definition of Assumed Interest Amount pursuant to clause
(i) of the definition of Class Optimal Interest Distribution Amount (without
giving effect to any reduction of such amount pursuant to
5
Section 5.02(d)) bears to the amount calculated with respect to such
Distribution Date for each Class of Certificates pursuant to clause (i) of the
definition of Class Optimal Interest Distribution Amount (without giving effect
to any reduction of such amount pursuant to Section 5.02(d)) or the definition
of Assumed Interest Amount for such Loan Group and Class, as applicable).
Amount Held for Future Distribution: As to any Distribution Date and
Mortgage Loans in a Loan Group, the aggregate amount held in the Custodial
Accounts at the close of business on the related Determination Date on account
of (i) Principal Prepayments received after the related Prepayment Period and
Liquidation Proceeds and Subsequent Recoveries received in the month of such
Distribution Date relating to such Loan Group and (ii) all Scheduled Payments
due after the related Due Date relating to such Loan Group.
Applicable Credit Support Percentage: As defined in Section 5.02(e).
Appraised Value: With respect to any Mortgage Loan, the Appraised Value of
the related Mortgaged Property shall be: (i) with respect to a Mortgage Loan
other than a Refinancing Mortgage Loan, the lesser of (a) the value of the
Mortgaged Property based upon the appraisal made at the time of the origination
of such Mortgage Loan and (b) the sales price of the Mortgaged Property at the
time of the origination of such Mortgage Loan; and (ii) with respect to a
Refinancing Mortgage Loan, the value of the Mortgaged Property based upon the
appraisal made at the time of the origination of such Refinancing Mortgage Loan.
Assignment of Mortgage: An assignment of the Mortgage, notice of transfer
or equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect the
sale of the Mortgage to the Trustee, which assignment, notice of transfer or
equivalent instrument may be in the form of one or more blanket assignments
covering the Mortgage Loans secured by Mortgaged Properties located in the same
jurisdiction, if permitted by law; provided, however, that the Trustee shall not
be responsible for determining whether any such assignment is in recordable form
or sufficient under the laws of the applicable jurisdiction to reflect the sale
of the Mortgage to the Trustee.
Assignment of Proprietary Lease: With respect to a Cooperative Loan, an
assignment of the Proprietary Lease sufficient under the laws of the
jurisdiction wherein the related Cooperative Unit is located to reflect the
assignment of such Proprietary Lease; provided, however, that the Trustee shall
not be responsible for determining whether such assignment is sufficient to
reflect the assignment of the Proprietary Lease.
Assignment of Recognition Agreement: With respect to a Cooperative Loan,
an assignment of the Recognition Agreement sufficient under the laws of the
jurisdiction wherein the related Cooperative Unit is located to reflect the
assignment of such Recognition Agreement; provided, however, that the Trustee
shall not be responsible for determining whether such assignment is sufficient
to reflect the assignment of the Recognition Agreement.
Assumed Interest Amount: With respect to any Distribution Date and Class
of Subordinated Certificates, one month's interest accrued during the related
Interest Accrual Period at the Pass-Through Rate for such Class on the
applicable Subordinated Portion immediately prior to that Distribution Date.
6
Auction: As defined in Section 7.01(b).
Auction Administrator: The Securities Administrator, or any successor in
interest, or if any successor Auction Administrator shall be appointed as herein
provided, then such successor Auction Administrator.
Auction Date: As defined in Section 7.01(b).
Auction Excess Proceeds: With respect to an Auction Sale, the excess of
the Mortgage Loan Auction Price paid by the Auction Purchaser over the Minimum
Bid Price.
Auction Purchaser: As defined in Section 7.01(b). For the avoidance of
doubt, the Auction Purchaser cannot be the Seller or an Affiliate of the Seller.
Auction Sale: As defined in Section 7.01(b).
Authenticating Agent: Any authenticating agent appointed pursuant to
Section 6.10 until any successor authenticating agent for the Certificates is
named, and thereafter "Authenticating Agent" shall mean any such successor. The
initial Authenticating Agent shall be the Securities Administrator under this
Agreement.
Authorized Officer: Any Person who may execute an Officer's Certificate
on behalf of the Depositor.
Available Funds: As to any Distribution Date and the Mortgage Loans in a
Loan Group, the sum, for that Loan Group, of (a) the aggregate amount held in
the Custodial Accounts at the close of business on the related Determination
Date, including any Subsequent Recoveries, in respect of such Mortgage Loans net
of the Amount Held for Future Distribution and net of amounts permitted to be
withdrawn from the Custodial Accounts pursuant to Section 4.02(a) in respect of
such Mortgage Loans and amounts permitted to be withdrawn from the Distribution
Account pursuant to clauses (i)-(v) inclusive of Section 4.02(b) in respect of
such Mortgage Loans, (b) the amount of all related Advances made by the
Servicers and the Master Servicer and all Compensating Interest Payments or
payments made in respect of Prepayment Interest Shortfalls paid by the Servicers
and the Master Servicer, (c) in connection with Defective Mortgage Loans in such
Loan Group, as applicable, the aggregate of the Purchase Prices and Substitution
Adjustment Amounts deposited on the related Distribution Account Deposit Date
and (d) in the case of a Loan Group in Aggregate Loan Group II, the Transfer
Payment Received plus interest thereon as provided in Section 5.08 for such Loan
Group less, in the case of a Loan Group in Aggregate Loan Group II, the Transfer
Payment Made plus interest thereon as provided in Section 5.08 for such Loan
Group; provided, however, that, with respect to Aggregate Loan Group II after a
Senior Termination Date, Available Funds with respect to the Loan Group relating
to the remaining Senior Certificate Group in Aggregate Certificate Group II
shall include the Available Funds from the other Loan Group in Aggregate Loan
Group II and on any Distribution Date thereafter, Available Funds shall be
calculated based upon all the Mortgage Loans in Aggregate Loan Group II, as
opposed to the Mortgage Loans in the related Loan Group, minus (e) all related
fees, charges and other amounts payable or reimbursable to the Master Servicer,
the Securities Administrator, the applicable Custodian or the Trustee under this
Agreement or the applicable Custodial Agreement, to the Servicers under the
Purchase and
7
Servicing Agreements, or, if any amounts are not specifically related to the
Mortgage Loans in that Loan Group or the related Certificate Group, then the
applicable Loan Group Percentage for such Loan Group for such Distribution Date
of such amounts. The Holders of the Class P-1 and Class P-2 Certificates will be
entitled to all Prepayment Penalties received on the Group 1 Mortgage Loans or
the Aggregate Group II Mortgage Loans, as applicable, and such amounts will not
be available for distribution to the Holders of any other Class of Certificates.
Bankruptcy: As to any Person, the making of an assignment for the benefit
of creditors, the filing of a voluntary petition in bankruptcy, adjudication as
a bankrupt or insolvent, the entry of an order for relief in a bankruptcy or
insolvency proceeding, the seeking of reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief, or seeking, consenting
to or acquiescing in the appointment of a trustee, receiver or liquidator,
dissolution, or termination, as the case may be, of such Person pursuant to the
provisions of either the Bankruptcy Code or any other similar state laws.
Bankruptcy Code: The United States Bankruptcy Code of 1986, as amended.
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient Valuation
or Debt Service Reduction reported to the Master Servicer by the related
Servicer; provided, however, that a Bankruptcy Loss shall not be deemed a
Bankruptcy Loss hereunder so long as the related Servicer has notified the
Master Servicer in writing that the related Servicer is diligently pursuing any
remedies that may exist in connection with the related Mortgage Loan and either
(A) the related Mortgage Loan is not in default with regard to payments due
thereunder or (B) delinquent payments of principal and interest under the
related Mortgage Loan and any related escrow payments in respect of such
Mortgage Loan are being advanced on a current basis by the Master Servicer or
the related Servicer, in either case without giving effect to any Debt Service
Reduction or Deficient Valuation, as reported by the related Servicer to the
Master Servicer.
Bankruptcy Loss Coverage Amount: As of any date of determination, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses allocated to
the Certificates since the Cut-off Date and (ii) any permissible reductions in
the Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating
Agency to the Trustee and the Securities Administrator to the effect that any
such reduction will not result in a downgrading of the then current ratings
assigned to the Classes of Certificates rated by it.
Book-Entry Certificates: Beneficial interests in Certificates designated
as "Book-Entry Certificates" in this Agreement, ownership and transfers of which
shall be evidenced or made through book entries by a Clearing Agency as
described in Section 3.09; provided, that after the occurrence of a Book-Entry
Termination whereupon book-entry registration and transfer are no longer
permitted and Definitive Certificates are to be issued to Certificate Owners,
such Book-Entry Certificates shall no longer be "Book-Entry Certificates." The
Classes of Certificates that constitute "Book-Entry Certificates" as of the
Closing Date are set forth in the Preliminary Statement.
8
Book-Entry Termination: The date on which the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Book Entry Certificates, and the Depositor is unable to locate a qualified
successor.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on which banking institutions in New York, New York or, if other than New York,
the city in which the Corporate Trust Office of the Trustee is located, or the
States of Maryland or Minnesota, are authorized or obligated by law or executive
order to be closed.
Calculation Rate: For each Distribution Date: (a) 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.
Certificate: Any one of the certificates signed by the Trustee, or the
Securities Administrator on the Trustee's behalf, and authenticated by the
Securities Administrator as Authenticating Agent in substantially the forms
attached hereto as Exhibit A.
Certificate Balance: With respect to any Certificate at any date, the
maximum dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the principal balance or notional amount,
as applicable, as of the Closing Date (A) plus any Subsequent Recoveries added
to the Certificate Balance of such Certificate pursuant to Section 5.02, (B)
minus the sum of (i) all distributions of principal previously made with respect
thereto and (ii) all Realized Losses allocated thereto and, in the case of any
Subordinated Certificates, all other reductions in Certificate Balance
previously allocated thereto pursuant to Section 5.04 and (C) in the case of any
Class of Accrual Certificates, increased by the Accrual Amount added to the
Class Principal Balance of such Class prior to such date.
Certificate Group: As specified in the Preliminary Statement.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the owner of such Book-Entry Certificate, as reflected on the books of
the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly or as an indirect participant, in accordance with
the rules of such Clearing Agency).
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 3.02. The initial Certificate
Registrar is the Securities Administrator under this Agreement.
Certificateholder: The meaning provided in the definition of "Holder."
Class: All Certificates bearing the same Class designation as set forth
in the Preliminary Statement.
Class 1-A Corridor Contract: The ISDA Master Agreement (including the
Schedule thereto and the transaction evidenced by the related Confirmation by
and between the Securities Administrator on behalf of the Trustee and the
Corridor Contract Counterparty), for the benefit of the Class 1-A Certificates.
9
Class 1-A Corridor Contract Payment: On each Distribution Date prior to
the related Corridor Contract Termination Date, the amount required to be paid
by the Corridor Contract Counterparty on behalf of Class 1-A Certificates the
under the Class 1-A Corridor Contract on that Distribution Date.
Class 1-B-1 Corridor Contract: The ISDA Master Agreement (including the
Schedule thereto and the transaction evidenced by the related Confirmation by
and between the Securities Administrator on behalf of the Trustee and the
Corridor Contract Counterparty), for the benefit of the Class 1-B-1
Certificates.
Class 1-B-1 Corridor Contract Payment: On each Distribution Date prior to
the related Corridor Contract Termination Date, the amount required to be paid
by the Corridor Contract Counterparty under the Class 1-B-1 Corridor Contract on
that Distribution Date.
Class 1-B-2 Corridor Contract: The ISDA Master Agreement (including the
Schedule thereto and the transaction evidenced by the related Confirmation by
and between the Securities Administrator on behalf of the Trustee and the
Corridor Contract Counterparty), for the benefit of the Class 1-B-2
Certificates.
Class 1-B-2 Corridor Contract Payment: On each Distribution Date prior to
the related Corridor Contract Termination Date, the amount required to be paid
by the Corridor Contract Counterparty under the Class 1-B-2 Corridor Contract on
that Distribution Date.
Class 1-X Required Reserve Fund Deposit: For any Distribution Date an
amount equal to the lesser of (i) the Current Interest for the Class 1-X
Certificates for such Distribution Date and (ii) the amount required to bring
the balance on deposit in the Reserve Fund up to an amount equal to the sum of
(a) the aggregate Net WAC Shortfalls for the Class 1-A Certificates for such
Distribution Date remaining unpaid after application of payments under the
Corridor Contract and (b) $8,500. For any Distribution Date, the Securities
Administrator will deposit into the Reserve Fund any Required Reserve Fund
Deposit for such date.
Class Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the definition of Class
Optimal Interest Distribution Amount for such Class exceeds the amount of
interest actually distributed on such Class on such Distribution Date pursuant
to such clause (i).
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest bearing Class or, with respect to any interest
bearing Component, the sum of (i) one month's interest accrued during the
related Interest Accrual Period at the Pass-Through Rate for such Class on the
related Class Principal Balance, Component Balance, Notional Amount or Component
Notional Amount, as applicable, immediately prior to such Distribution Date,
subject to reduction as provided in Section 5.02(d) and (ii) any Class Unpaid
Interest Amounts for such Class or Component.
Class Principal Balance: With respect to any Class and as to any date of
determination, the aggregate of the Certificate Balances of all Certificates of
such Class as of such date.
10
Class Subordination Percentage: With respect to any Distribution Date and
each Class of Group 1 Subordinated Certificates, the quotient (expressed as a
percentage) of (a) the Class Principal Balance of such Class of Group 1
Subordinated Certificates immediately prior to such Distribution Date, divided
by (b) the aggregate of the Class Principal Balances of all Classes of Group 1
Certificates (other than the related Notional Amount Certificates) immediately
prior to such Distribution Date. With respect to any Distribution Date and each
Class of Aggregate Group II Subordinated Certificates, the quotient (expressed
as a percentage) of (a) the Class Principal Balance of such Class of Aggregate
Group II Subordinated Certificates immediately prior to such Distribution Date,
divided by (b) the aggregate of the Class Principal Balances of all Classes of
Aggregate Group II Certificates (other than the related Notional Amount
Certificates) immediately prior to such Distribution Date.
Class Unpaid Interest Amounts: As to any Distribution Date and Class of
interest bearing Certificates, the amount by which the aggregate Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the amount
distributed on such Class on prior Distribution Dates pursuant to clause (ii) of
the definition of Class Optimal Interest Distribution Amount.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. As
of the Closing Date, the Clearing Agency shall be The Depository Trust Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
Closing Date: November 30, 2005.
Code: The Internal Revenue Code of 1986, as amended, and as it may be
further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Compensating Interest Payment: As to any Distribution Date, an amount
equal to the lesser of (i) the Prepayment Interest Shortfall on the Mortgage
Loans serviced by such Servicer with respect to such Distribution Date and (ii)
the portion of the applicable Servicing Fee that the related Servicer is
required to remit to the Trust as compensation therefor in accordance with the
terms of the related Purchase and Servicing Agreement.
Component: As specified in the Preliminary Statement.
Component Balance: With respect to any Component and any Distribution
Date, the Initial Component Balance thereof on the Closing Date, (A) plus any
Subsequent Recoveries added to the Component Balance of such Component pursuant
to Section 5.02, (B) minus the sum of all amounts applied in reduction of the
principal balance of such Component and Realized Losses allocated thereto on
previous Distribution Dates.
Component Certificates: As specified in the Preliminary Statement.
Component Notional Amount: Not applicable.
11
Confirmation: With respect to each Corridor Contract, the related
Confirmation dated November 30, 2005, evidencing the transaction between the
Counterparty and the Securities Administrator on behalf of the Trust Fund.
Consent: A document executed by the Cooperative Corporation (i) consenting
to the sale of the Cooperative Unit to the Mortgagor and (ii) certifying that
all maintenance charges relating to the Cooperative Unit have been paid.
Cooperative Corporation: The entity that holds title (fee or an acceptable
leasehold estate) to the real property and improvements constituting the
Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: A Mortgage Loan secured by Cooperative Shares and a
Proprietary Lease, if any.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, that includes the allocation of individual dwelling
units to the holders of the shares of the Cooperative Corporation.
Cooperative Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: With respect to any Cooperative Loan, a specific unit
in a Cooperative Property.
Corporate Trust Office: With respect to the Trustee, the designated office
of the Trustee in the State of California at which at any particular time its
corporate trust business with respect to this Agreement is administered, which
office at the date of the execution of this Agreement is located at 0000 Xxxx
Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000, Attn: Trust
Administration-MS0509, and which is the address to which notices to and
correspondence with the Trustee should be directed, or at such other address as
the Trustee may designate from time to time by notice to the Certificateholders,
the Depositor, the Master Servicer and the Securities Administrator or the
principal corporate trust office of any successor Trustee. With respect to the
Certificate Registrar and presentment of Certificates for registration of
transfer, exchange or final payment, Xxxxx Fargo Bank, National Association,
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention:
Corporate Trust, Xxxxxx Xxxxxxx Mortgage Loan Trust 2005-9AR, and for all other
purposes, X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000 (or for overnight deliveries,
0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000), Attention: Corporate Trust,
Xxxxxx Xxxxxxx Mortgage Loan Trust 2005-9AR.
Corridor Contract Counterparty: Xxxxxx Xxxxxxx Capital Services Inc.
Corridor Contract Termination Date: With respect to each Corridor Contract
the related Distribution Date set forth on the notional balance schedule
therein, after any required payment is made.
Corridor Contracts: Collectively, the Class 1-A Corridor Contract, the
Class 1-B-1 Corridor Contract and the Class 1-B-2 Corridor Contract.
12
Cross-Over Situation: For any Distribution Date and for each Loan Group
(after taking into account principal distributions on such Distribution Date)
with respect to the Class A and Class B Interests, the Class A and Class B
Interests corresponding to any Loan Group are in the aggregate less than 1% of
the Subordinated Portion of the Loan Group to which they correspond.
Current Interest: For any Distribution Date and any Class of Certificates,
the interest accrued during the related Interest Accrual Period at the
Pass-Through Rate for such Class of Certificates on the related Class Principal
Balance immediately prior to such Distribution Date.
Custodial Account: Each custodial account (other than an Escrow Account)
established and maintained by a Servicer pursuant to a Purchase and Servicing
Agreement.
Custodial Agreement: The Custodial Agreements, listed in Exhibit F hereof,
as each such agreement may be amended or supplemented from time to time as
permitted hereunder.
Custodial Certification: As defined in Section 2.01.
Custodian: A Person who is at anytime appointed by the Depositor as a
custodian of the Mortgage Documents and the Trustee Mortgage Files. The initial
Custodians are JPMorgan Chase Bank, National Association, LaSalle Bank, National
Association and Deutsche Bank National Trust Company. "Custodian" shall refer to
each Custodian or all Custodians, as the context requires.
Cut-off Date: November 1, 2005.
Cut-off Date Pool Principal Balance: $606,212,138.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction by
a court of competent jurisdiction in a proceeding under the Bankruptcy Code in
the Scheduled Payment for such Mortgage Loan which became final and
non-appealable, except such a reduction resulting from a Deficient Valuation or
any reduction that results in a permanent forgiveness of principal.
Deceased Holder: Not applicable.
Defective Mortgage Loan: The meaning specified in Section 2.05(a).
Deficient Valuation: With respect to any Mortgage Loan, a valuation of the
related Mortgaged Property by a court of competent jurisdiction in an amount
less than the then outstanding indebtedness under the Mortgage Loan, or any
reduction in the amount of principal to be paid in connection with any Scheduled
Payment that results in a permanent forgiveness of principal, which valuation or
reduction results from an order of such court which is final and non-appealable
in a proceeding under the Bankruptcy Code.
13
Definitive Certificate: A Certificate of any Class issued in definitive,
fully registered, certificated form. As of the Closing Date the Classes of
Certificates being issued as "Definitive Certificates" are set forth in the
Preliminary Statement.
Delay Certificates: As specified in the Preliminary Statement.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased, or replaced
or to be replaced with a Replacement Mortgage Loan.
Delinquent: Any Mortgage Loan with respect to which the Scheduled
Payment due on a Due Date is not received.
Depositor: Xxxxxx Xxxxxxx Capital I Inc., a Delaware corporation having
its principal place of business in New York, or its successors in interest.
Determination Date: With respect to each Servicer, the "Determination
Date" set forth in the related Purchase and Servicing Agreement.
Disqualified Organization: A "disqualified organization" as defined in
Section 860E(e)(5) of the Code.
Distribution Account: The separate Eligible Account created and maintained
by the Securities Administrator, on behalf of the Trustee, pursuant to Section
4.01. Funds in the Distribution Account (exclusive of any earnings on
investments made with funds deposited in the Distribution Account) shall be held
in trust for the Trustee and the Certificateholders for the uses and purposes
set forth in this Agreement.
Distribution Account Deposit Date: With respect to each Servicer, not
later than 1:00 p.m., New York time, on 18th day of each calendar month after
the initial issuance of the Certificates or, if such 18th day is not a Business
Day, the either immediately preceding or immediately following Business Day, as
set forth in the related Acknowledgement, commencing in December 2005.
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 December 2005.
Due Date: With respect to any Mortgage Loan, the date on which a Scheduled
Payment is due under the related Mortgage Note as indicated in the applicable
Purchase and Servicing Agreement.
Due Period: As to any Distribution Date, the period beginning on the
second day of the month preceding the month of such Distribution Date, and
ending on the first day of the month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest short-
14
term ratings of each Rating Agency at the time any amounts are held on deposit
therein, or (ii) an account or accounts in a depository institution or trust
company in which such accounts are insured by the FDIC or the SAIF (to the
limits established by the FDIC or the SAIF) and the uninsured deposits in which
accounts are otherwise secured such that, as evidenced by an Opinion of Counsel
delivered to the Trustee and to each Rating Agency, the Certificateholders have
a claim with respect to the funds in such account or a perfected first priority
security interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a trust account or accounts maintained with
the trust department of a federal or state chartered depository institution or
trust company, acting in its fiduciary capacity or (iv) any other account
acceptable to each Rating Agency, as evidenced by a signed writing delivered by
each Rating Agency. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with the Trustee,
the Paying Agent, the Securities Administrator or the Master Servicer.
Eligible Institution: An institution having the highest short-term debt
rating, and one of the two highest long-term debt ratings of the Rating Agencies
or the approval of the Rating Agencies.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary Statement.
Escrow Account: With respect to each Mortgage Loan, as defined in Article
I of the related Purchase and Servicing Agreement.
Estoppel Letter: A document executed by the Cooperative Corporation
certifying, with respect to a Cooperative Unit, (i) the appurtenant Proprietary
Lease will be in full force and effect as of the date of issuance thereof, (ii)
the related stock certificate was registered in the Mortgagor's name and the
Cooperative Corporation has not been notified of any lien upon, pledge of, levy
of execution on or disposition of such stock certificate, and (iii) the
Mortgagor is not in default under the appurtenant Proprietary Lease and all
charges due the Cooperative Corporation have been paid.
Event of Default: Any one of the conditions or circumstances enumerated
in Section 6.14.
Excess Loss: With respect to the Group 1 Certificates and the Aggregate
Group II Certificates, the amount of any (i) Fraud Loss on a Mortgage Loan in
any Loan Group in the related Aggregate Loan Group realized after the related
Fraud Loss Coverage Termination Date, (ii) Special Hazard Loss on a Mortgage
Loan in any Loan Group in the related Aggregate Loan Group realized after the
related Special Hazard Coverage Termination Date or (iii) Bankruptcy Loss on a
Mortgage Loan in any Loan Group in the related Aggregate Loan Group realized
after the related Bankruptcy Coverage Termination Date.
15
Xxxxxx Xxx: The entity formerly known as the Federal National Mortgage
Association, a federally chartered and privately owned corporation organized and
existing under the Federal National Mortgage Association Charter Act, or any
successor thereto.
FDIC: The Federal Deposit Insurance Corporation or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Custodial Certification: As defined in Section 2.02.
Fiscal Agent: Not applicable.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated as
a Rating Agency in the Preliminary Statement, for purposes of Section 11.07
the address for notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Surveillance Group,
or such other address as Fitch may hereafter furnish to the Depositor, the
Trustee and the Master Servicer.
FNBN Mortgage Loan: Each Mortgage Loan originated by First National Bank
of Nevada and listed on the Mortgage Loan Schedule.
FNBN Purchase Agreement: The Mortgage Loan Purchase Agreement listed in
Exhibit E hereto between the Seller and First National Bank of Nevada.
Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred, as reported by the related Servicer to the Master Servicer.
Fraud Loss Coverage Amount: As of the Closing Date, (x) $11,235,163, with
respect to the Group 1 Certificates and (y) $6,951,201, with respect to the
Aggregate Group II Certificates, in each case, subject to reduction from time to
time, by the amount of Fraud Losses allocated to the Certificates. The
respective Fraud Loss Coverage Amounts for the Group 1 Mortgage Loans and the
Aggregate Group II Mortgage Loans will be reduced, from time to time, by the
amount of Fraud Losses allocated to the related Certificates. In addition,
respective Fraud Loss Coverage Amounts for the Group 1 Mortgage Loans and the
Aggregate Group II Mortgage Loans will be reduced on the fifth anniversary of
the Cut-off Date, to zero and on the first, second, third and fourth
anniversaries of the Cut-off Date, to an amount equal to the lesser of (x) 2%,
in the case of the first anniversary, and 1%, in the case of the second, third
and fourth anniversaries, of the then current aggregate Stated Principal Balance
of the Group 1 Mortgage Loans or the Aggregate Group II Mortgage Loans, as
applicable, and (y) the excess of the respective Fraud Loss Coverage Amount as
of the preceding anniversary of the Cut-off Date over the cumulative amount of
Fraud Losses allocated to the related Certificate Group since the preceding
anniversary.
Fraud Loss Coverage Termination Date: With respect to each Aggregate
Certificate Group the point in time at which the related Fraud Loss Coverage
Amount is reduced to zero.
16
Fraud Losses: Realized Losses on Mortgage Loans as to which a loss is
sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a loss
by reason of the denial of coverage under any related Primary Mortgage Insurance
Policy because of such fraud, dishonesty or misrepresentation.
Global Securities: The global certificates representing the Book-Entry
Certificates.
GMAC Serviced Mortgage Loan: Each Mortgage Loan serviced by GMAC Mortgage
Corporation and listed on the Mortgage Loan Schedule.
GMAC Servicing Agreement: The Servicing Agreement listed in Exhibit E
hereto between the Seller and GMAC Mortgage Corporation.
GreenPoint Serviced Mortgage Loan: Each Mortgage Loan originated and
serviced by GreenPoint Mortgage Funding, Inc. and listed on the Mortgage Loan
Schedule.
GreenPoint Purchase and Servicing Agreement: The Mortgage Loan Sale
Servicing Agreement listed in Exhibit E hereto between the Seller and GreenPoint
Mortgage Funding, Inc.
Group 1 Certificates: As specified in the Preliminary Statement.
Group 1 Mortgage Loans: The Mortgage Loans in Loan Group 1.
Group 1 Senior Certificates: As specified in the Preliminary Statement.
Group 1 Subordinated Certificates: As specified in the Preliminary
Statement.
Group 1 Net WAC: For the LIBOR Certificates and any Distribution Date, a
per annum rate equal to the Weighted Average Net Mortgage Rate of the Group 1
Mortgage Loans as of the first day of the month preceding the month in which
such Distribution Date occurs.
Group 2 Senior Certificates: As specified in the Preliminary Statement.
Group 2 Mortgage Loans: The Mortgage Loans in Loan Group 2.
Group 2 Senior Certificates: As specified in the Preliminary Statement.
Group 3 Senior Certificates: As specified in the Preliminary Statement.
Group 3 Mortgage Loans: The Mortgage Loans in Loan Group 3.
Holder: The registered owner of any Certificate as recorded on the books
of the Certificate Registrar except that, solely for the purposes of taking any
action or giving any consent pursuant to this Agreement, any Certificate
registered in the name of the Depositor, the Trustee, the Master Servicer, the
Securities Administrator and any Servicer, or any Affiliate thereof shall be
deemed not to be outstanding in determining whether the requisite percentage
necessary to effect any such consent has been obtained, except that, in
determining whether the Trustee or the Securities Administrator shall be
protected in relying upon any such consent, only Certificates that a Responsible
Officer of the Trustee or the Securities Administrator,
17
respectively, knows to be so owned shall be disregarded. The Trustee or the
Securities Administrator may request and conclusively rely on certifications by
the Depositor, the Master Servicer, the Securities Administrator or any Servicer
in determining whether any Certificates are registered to an Affiliate of the
Depositor, the Master Servicer, the Securities Administrator or any Servicer.
HSBC Serviced Mortgage Loan: Each Mortgage Loan serviced by HSBC Mortgage
Corporation (USA) and listed on the Mortgage Loan Schedule.
HSBC Servicing Agreement: The Servicing Agreement listed in Exhibit E
hereto between the Seller and HSBC Mortgage Corporation (USA).
HUD: The United States Department of Housing and Urban Development, or
any successor thereto.
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: With respect to each Aggregate
Certificate Group, $150,000.
Initial Component Balance: As specified in the Preliminary Statement.
Initial Custodial Certification: As defined in Section 2.02.
Initial Optional Purchase Date: With respect to the Group 1 Mortgage
Loans, the first Distribution Date following the date on which the aggregate
Stated Principal Balance of the Group 1 Mortgage Loans is equal to or less than
10% of the aggregate Stated Principal Balance thereof as of the Cut-off Date.
With respect to the Aggregate Group II Mortgage Loans, the first Distribution
Date following the date on which the aggregate Stated Principal Balance of the
Aggregate Group II Mortgage Loans is equal to or less than 1% of the aggregate
Stated Principal Balance thereof as of the Cut-off Date.
Insurance Policy: With respect to any Mortgage Loan, any insurance policy,
including all names and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by any Insurance Policy (excluding
proceeds required to be applied to the restoration and repair of the related
Mortgaged Property or released to the
18
Mortgagor), in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses and the proceeds from any Limited
Purpose Surety Bond.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay Certificates,
its corresponding Subsidiary REMIC Regular Interest and any Distribution Date,
the calendar month prior to the month of such Distribution Date. With respect to
any Class of Non-Delay Certificates, its corresponding Subsidiary REMIC Regular
Interest and any Distribution Date, the one month period commencing on the 25th
day of the month preceding the month in which such Distribution Date occurs and
ending on the 24th day of the month in which such Distribution Date occurs.
Interest Determination Date: With respect to any Interest Accrual Period
for any Class of LIBOR Certificates, the second Business Day prior to the first
day of such Interest Accrual Period.
Last Scheduled Distribution Date: The Distribution Date in December
2035.
Latest Possible Maturity Date: The Distribution Date occurring in
December 2035.
LIBOR: The London interbank offered rate for one-month United States
dollar deposits calculated in the manner described in Section 5.09.
LIBOR Business Day: Any day on which banks in London, England and The
City of New York are open and conducting transactions in foreign currency and
exchange.
LIBOR Certificates: As specified in the Preliminary Statement.
Limited Purpose Surety Bond: Collectively, Ambac Assurance Corporation
Surety Bond No. AB0039BE and any other Limited Purpose Surety Bond securing an
Additional Collateral Mortgage Loan.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
related Servicer has certified (in accordance with its Purchase and Servicing
Agreement) that it has received all amounts it expects to receive in connection
with the liquidation of such Mortgage Loan including the final disposition of an
REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of defaulted Mortgage Loans,
whether through trustee's sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of a Mortgaged
Property and any other proceeds received in connection with an REO Property.
Living Holders: Not applicable.
19
Loan Group: Any of Loan Group 1, Loan Group 2 and Loan Group 3, as
applicable.
Loan Group 1: All Mortgage Loans identified as Group 1 Mortgage Loans on
the Mortgage Loan Schedule.
Loan Group 2: All Mortgage Loans identified as Group 2 Mortgage Loans on
the Mortgage Loan Schedule.
Loan Group 3: All Mortgage Loans identified as Group 3 Mortgage Loans on
the Mortgage Loan Schedule.
Loan Group Percentage: As to any Loan Group and any Distribution Date, the
fraction, expressed as a percentage, the numerator of which is the aggregate
Stated Principal Balance of all of the Mortgage Loans in that Loan Group as of
the related Due Date, and the denominator of which is the aggregate Stated
Principal Balance of all of the Mortgage Loans as of that Due Date.
Loan Group Principal Balance: As to any Distribution Date and Loan Group,
the aggregate Stated Principal Balance of the Mortgage Loans in that Loan Group
outstanding on the Due Date in the month preceding the month of the Distribution
Date (after giving effect to prepayments received in the Prepayment Period
related to such prior Due Date).
Loan-To-Value Ratio: With respect to any Mortgage Loan and as to any date
of determination, the fraction (expressed as a percentage) the numerator of
which is the principal balance of the related Mortgage Loan at such date of
determination and the denominator of which is the Appraised Value of the related
Mortgaged Property.
LPMI Mortgage Loan: Certain Mortgage Loans as to which the lender (rather
than the borrower) acquires the Primary Mortgage Insurance Policy and charges
the related borrower an interest premium.
Master REMIC: As described in the Preliminary Statement.
Master Servicer: Xxxxx Fargo Bank, National Association, a national
banking association organized under the laws of the United States in its
capacity as Master Servicer and any Person succeeding as Master Servicer
hereunder or any successor in interest, or if any successor master servicer
shall be appointed as herein provided, then such successor master servicer.
Master Servicer Compensation: With respect to any Master Servicer that is
a successor to Xxxxx Fargo Bank, National Association as Master Servicer, the
portion of the earnings on the funds on deposit in the Distribution Account
payable on each Distribution Date pursuant to Section 4.02(b)(ii) hereof agreed
to by and between such successor Master Servicer and the successor securities
administrator; provided, that the sum of such Master Servicer Compensation and
the Securities Administrator Compensation payable on each Distribution Date
shall not exceed the total earnings on funds in the Distribution Account payable
pursuant to Section 4.02(b)(ii) hereof earned since the prior Distribution Date.
Memorandum: The private placement memorandum dated November 30, 2005,
relating to the Private Certificates.
20
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 REMIC: As specified in the Preliminary Statement.
Middle REMIC Interest: As specified in the Preliminary Statement.
Middle REMIC Regular Interest: As specified in the Preliminary
Statement.
MIN: The mortgage identification number for any MERS Mortgage Loan.
MILA Mortgage Loan: Each Mortgage Loan originated by MILA, Inc. and
listed on the Mortgage Loan Schedule.
MILA Purchase Agreement: The Mortgage Loan Purchase Agreement listed in
Exhibit E hereto between the Seller and MILA, Inc.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto. If
Xxxxx'x is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 11.07 the address for notices to Moody's shall be Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Pass-Through Monitoring, or such other address as Moody's may
hereafter furnish to the Depositor or the Master Servicer.
Mortgage: A mortgage, deed of trust or other instrument encumbering a fee
simple interest in real property securing a Mortgage Note, together with
improvements thereto.
Mortgage Documents: With respect to each Mortgage Loan, the mortgage
documents required to be delivered to the Custodian pursuant to each Custodial
Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage conveyed, transferred, sold, assigned
to or deposited with the Trustee pursuant to Section 2.01 (including any REO
Property), including without limitation, each Mortgage Loan listed on the
Mortgage Loan Schedule, as amended from time to time.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A, which
shall identify each Mortgage Loan, as such schedule may be amended by the
Depositor or a Servicer from time to time to reflect the addition of Replacement
Mortgage Loans to, or the deletion of Deleted Mortgage Loans from, the Trust
Fund. Such schedule shall, among other things
21
(i) designate the Servicer servicing such Mortgage Loan and the applicable
Servicing Fee Rate; (ii) identify the designated Loan Group in which such
Mortgage Loan is included, (iii) identify any LPMI Mortgage Loan and designate
the rate at which the premium for such insurance is calculated and (iv)
separately identify the Additional Collateral Mortgage Loans, if any.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Rate: As to any Mortgage Loan, the annual rate of interest borne
by the related Mortgage Notes.
Mortgaged Property: The underlying property, including any Additional
Collateral, securing a Mortgage Loan which, with respect to a Cooperative Loan,
is the related Cooperative Shares and Proprietary Lease.
MortgageIT Mortgage Loan: Each Mortgage Loan originated by MortgageIT,
Inc. and listed on the Mortgage Loan Schedule.
MortgageIT Purchase Agreement: The Mortgage Loan Purchase Agreement listed
in Exhibit E hereto between the Seller and MortgageIT, Inc.
Mortgagor: The obligor on a Mortgage Note.
MSMCI Mortgage Loan: A Mortgage Loan sold by the Seller to the Depositor
pursuant to the MSMCI Purchase Agreement.
MSMCI Purchase Agreement: The Mortgage Loan Purchase Agreement listed in
Exhibit E hereto between the Seller and the Depositor.
National City Purchase and Servicing Agreement: The Amended and Restated
Master Seller's Warranties and Servicing Agreement listed in Exhibit E hereto
between the Seller and National City Mortgage Co.
National City Serviced Mortgage Loan: Each Mortgage Loan originated and
serviced by National City Mortgage Co. and listed on the Mortgage Loan
Schedule.
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 any other
accrued and unpaid servicing fees received and retained in connection with the
liquidation of such Mortgage Loan or Mortgaged Property.
Net Mortgage Rate: With respect to any Mortgage Loan and any Distribution
Date, the related Mortgage Rate as of the Due Date in the month preceding the
month of such Distribution Date reduced by the Aggregate Expense Rate for such
Mortgage Loan.
Net Prepayment Interest Shortfalls: As to any Distribution Date and Loan
Group, the amount by which the aggregate of Prepayment Interest Shortfalls for
such Loan Group exceeds the Compensating Interest Payments for such Loan Group
and that Distribution Date.
22
Net WAC Shortfall: With respect to any Class of LIBOR Certificates and any
Distribution Date on which the Pass-Through Rate for that Class of Certificates
is limited to the Group 1 Net WAC, an amount equal to the sum of (i) the excess
of (x) the amount of interest such Class of Certificates would have been
entitled to receive on such Distribution Date if the Group 1 Net WAC had not
been applicable to such Class on such Distribution Date, subject to a maximum
rate of 11.50% per annum over (y) the amount of interest accrued on such
Distribution Date at the Group 1 Net WAC plus (ii) the related Net WAC Shortfall
for the previous Distribution Date not previously distributed together with
interest thereon at a rate equal to the related Pass-Through Rate for such Class
of Certificates for the most recently ended Interest Accrual Period.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-Delay Certificates: As specified in the Preliminary Statement.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Non-U.S. Person: Any person other than a "United States person" within the
meaning of Section 7701(a)(30) of the Code.
Nonrecoverable Advance: Any portion of an Advance or Servicer Advance
previously made or proposed to be made by the Master Servicer and/or a Servicer
(as certified in an Officer's Certificate of such Servicer), which in the good
faith judgment of such party, shall not be ultimately recoverable by such party
from the related Mortgagor, related Liquidation Proceeds or otherwise.
Notional Amount: With respect to the Class 1-X Certificates and any
Distribution Date an amount equal to the aggregate Class Principal Balance of
the LIBOR Certificates immediately prior to the Distribution Date. The initial
Notional Amount of the Class 1-X Certificates will be $366,828,000.
Notional Amount Certificates: As specified in the Preliminary Statement.
Offered Certificates: As specified in the Preliminary Statement.
Offering Document: The Prospectus or the Memorandum, as applicable.
Officer's Certificate: A certificate signed by two Authorized Officers of
the Depositor or the Chairman of the Board, any Vice Chairman, the President,
any Vice President or any Assistant Vice President of the Master Servicer or the
Securities Administrator, and in each case delivered to the Trustee or the
Securities Administrator, as applicable.
Officer's Certificate of a Servicer: A certificate (i) signed by the
Chairman of the Board, the Vice Chairman of the Board, the President, a Managing
Director, a Vice President (however denominated), an Assistant Vice President,
the Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of a Servicer, or (ii) if provided for herein, signed by a Servicing
Officer, as the case may be, and delivered to the Trustee, the Securities
Administrator or the Master Servicer, as required hereby.
23
Opinion of Counsel: A written opinion of counsel, reasonably acceptable in
form and substance to the Trustee, the Securities Administrator or the Master
Servicer, as required hereby, and who may be in-house or outside counsel to the
Depositor, the Master Servicer, the Securities Administrator or the Trustee but
which must be Independent outside counsel with respect to any such opinion of
counsel concerning the transfer of any Residual Certificate or concerning
certain matters with respect to ERISA, or the taxation, or the federal income
tax status, of each REMIC.
Original Applicable Credit Support Percentage: With respect to each of the
following Classes of Subordinated Certificates in an Aggregate Certificate
Group, the corresponding percentage described below, as of the Closing Date:
24
Group 1
Subordinated Certificates
------------------------------------------------------------
Class 1-B-1.............. 5.25%
Class 1-B-2.............. 3.40%
Class 1-B-3.............. 2.05%
Class 1-B-4.............. 1.30%
Class 1-B-5.............. 0.75%
Class 1-B-6.............. 0.30%
Aggregate Group II
Subordinated Certificates
------------------------------------------------------------
Class B-1................ 7.75%
Class B-2................ 5.15%
Class B-3................ 3.30%
Class B-4................ 2.20%
Class B-5................ 1.15%
Class B-6................ 0.45%
Original Subordinate Principal Balance: For the Group 1 Certificates and
the Group 1 Mortgage Loans, the aggregate Class Principal Balance of the Group 1
Subordinated Certificates as of the Closing Date. For the Aggregate Group II
Certificates and any related Loan Group, on or prior to a related Senior
Termination Date, the Subordinated Portion for that Loan Group, in each case as
of the Cut-off Date or, if such date is after a related Senior Termination Date,
the aggregate Class Principal Balance of the Aggregate Group II Subordinated
Certificates as of the Closing Date.
Originator: Any one of First National Bank of Nevada, GreenPoint
Mortgage Funding, Inc., HSBC Mortgation Corporation (USA), MILA, Inc.,
MortgageIT, Inc., National City Mortgage Co., Quicken Loans, Inc. or Wachovia
Mortgage Corporation as applicable.
Overcollateralized Group: As defined in Section 5.08 hereof.
Pass-Through Rate: For any interest bearing Class of Certificates or
Component, the per annum rate set forth or calculated in the manner described in
the Preliminary Statement.
Paying Agent: Any paying agent appointed pursuant to Section 3.08. The
initial Paying Agent shall be the Securities Administrator under this Agreement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the initial principal balance or notional
amount, as applicable, of such Certificate by the aggregate of the Class
Principal Balance or Notional Amount, as applicable, of all Certificates of the
same Class.
25
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof, provided
that such obligations are backed by the full faith and credit of the
United States;
(ii) general obligations of or obligations guaranteed by any state
of the United States or the District of Columbia receiving the highest
long-term debt rating of each Rating Agency, or such lower rating as shall
not result in the downgrading or withdrawal of the ratings then assigned
to the Certificates by the Rating Agencies, as evidenced by a signed
writing delivered by each Rating Agency;
(iii) commercial or finance company paper which is then receiving
the highest commercial or finance company paper rating of each Rating
Agency rating such paper, or such lower rating as shall not result in the
downgrading or withdrawal of the ratings then assigned to the Certificates
by the Rating Agencies, as evidenced by a signed writing delivered by each
Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States or of any state thereof
and subject to supervision and examination by federal and/or state banking
authorities, provided that the commercial paper and/or long-term unsecured
debt obligations of such depository institution or trust company (or in
the case of the principal depository institution in a holding company
system, the commercial paper or long-term unsecured debt obligations of
such holding company, but only if Xxxxx'x is not the applicable Rating
Agency) are then rated one of the two highest long-term and the highest
short-term ratings of each Rating Agency for such securities, or such
lower ratings as shall not result in the downgrading or withdrawal of the
ratings then assigned to the Certificates by the Rating Agencies, as
evidenced by a signed writing delivered by each Rating Agency;
(v) demand or time deposits or certificates of deposit issued by any
bank or trust company or savings institution to the extent that such
deposits are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation acceptable to the Rating Agencies
at the time of the issuance of such agreements, as evidenced by a signed
writing delivered by each Rating Agency;
(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
26
ratings of each Rating Agency (except if the Rating Agency is Moody's,
such rating shall be the highest commercial paper rating of Moody's for
any such series), or such lower rating as shall not result in the
downgrading or withdrawal of the ratings then assigned to the Certificates
by the Rating Agencies, as evidenced by a signed writing delivered by each
Rating Agency;
(ix) interests in any money market fund which at the date of
acquisition of the interests in such fund and throughout the time such
interests are held in such fund has the highest applicable rating by each
Rating Agency rating such fund or such lower rating as shall not result in
a change in the rating then assigned to the Certificates by each Rating
Agency, as evidenced by a signed writing delivered by each Rating Agency,
including funds for which the Trustee, the Master Servicer, the Securities
Administrator or any of its Affiliates is investment manager or adviser;
(x) short-term investment funds sponsored by any trust company or
national banking association incorporated under the laws of the United
States or any state thereof which on the date of acquisition has been
rated by each applicable Rating Agency in their respective highest
applicable rating category or such lower rating as shall not result in a
change in the rating then specified stated maturity and bearing interest
or sold at a discount acceptable to each Rating Agency as shall not result
in the downgrading or withdrawal of the ratings then assigned to the
Certificates by the Rating Agencies, as evidenced by a signed writing
delivered by each Rating Agency; and
(xi) such other investments having a specified stated maturity and
bearing interest or sold at a discount acceptable to the Rating Agencies
as shall not result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency;
provided, that no such instrument shall be a Permitted Investment if (i) such
instrument evidences the right to receive interest only payments with respect to
the obligations underlying such instrument or (ii) such instrument would require
the Depositor to register as an investment company under the Investment Company
Act of 1940, as amended.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Plan: Any employee benefit plan or other plan or arrangement subject to
Section 406 of ERISA or Section 4975 of the Code, including individual
retirement accounts and annuities, Xxxxx plans and collective investment funds
and separate accounts in which such plans, accounts or arrangements are
invested.
Plan Asset Regulations: The Department of Labor regulations set forth in
29 C.F.R.
ss.2510.3-101.
Planned Balance: With respect to any group of Planned Principal Classes
or Components in the aggregate and any Distribution Date appearing in Schedule
B hereto, the Aggregate Planned Balance for such group and Distribution Date.
With respect to any other Planned
27
Principal Class or Component and any Distribution Date appearing in Schedule B
hereto, the applicable amount appearing opposite such Distribution Date for such
Class or Component.
Planned Principal Classes: As specified in the Preliminary Statement.
Prepayment Interest Shortfall: With respect to each Mortgage Loan, the
amount of the shortfall in interest payable on such Mortgage Loan that occurs as
a result of the prepayment by the related Mortgagor of such Mortgage Loan
calculated in accordance with formula set forth in the related Purchase and
Servicing Agreement.
Prepayment Penalty: As to a Mortgage Loan, any penalty payable by a
Mortgagor in connection with certain partial prepayments and all prepayments in
full made within the related Prepayment Penalty Period, the Prepayment Penalties
with respect to each applicable Mortgage Loan so held by the Trust Fund being
identified in the Prepayment Penalty Schedule.
Prepayment Penalty Period: As to any Mortgage Loan, the period of time
during which a Prepayment Penalty may be imposed.
Prepayment Penalty Schedule: As of any date, the list of Prepayment
Penalties included in the Trust Fund on that date (including the Prepayment
Penalty summary attached thereto). The Prepayment Penalty Schedule shall set
forth the following information with respect to each Prepayment Penalty:
o the Mortgage Loan account number;
o a code indicating the type of Prepayment Penalty;
o the state of origination in which the related Mortgage Property is
located;
o the first date on which a monthly payment is or was due under the
related Mortgage Note;
o the term of the Prepayment Penalty;
o the original principal amount of the related Mortgage Loan; and
o the Cut-off Date Principal Balance of the related Mortgage Loan.
The Prepayment Penalty Schedule shall be amended from time to time by the
Seller in accordance with this Agreement.
Prepayment Period: With respect to any Mortgage Loan and any Distribution
Date, the calendar month preceding that Distribution Date.
Prepayment Shift Percentage: Not applicable.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan.
28
Principal Amount: As to any Distribution Date and Loan Group, the sum of
(a) the principal portion of each Scheduled Payment (without giving effect,
prior to the Bankruptcy Coverage Termination Date, to any reductions thereof
caused by any Debt Service Reductions or Deficient Valuations) due on each
Mortgage Loan in the related Loan Group on the related Due Date, (b) the Stated
Principal Balance of each Mortgage Loan in the related Loan Group that was
repurchased by the Seller or an Originator or purchased by the Master Servicer
pursuant to this Agreement as of such Distribution Date, (c) the Substitution
Adjustment Amount in connection with any Deleted Mortgage Loan in such Loan
Group received with respect to such Distribution Date, (d) any Insurance
Proceeds or Liquidation Proceeds allocable to recoveries of principal of
Mortgage Loans in the related Loan Group that are not yet Liquidated Mortgage
Loans received during the calendar month preceding the month of such
Distribution Date, (e) with respect to each Mortgage Loan in a Loan Group that
became a Liquidated Mortgage Loan during the calendar month preceding the month
of such Distribution Date, the amount of the Liquidation Proceeds allocable to
principal and, if such Liquidated Mortgage Loan is an Additional Collateral
Mortgage Loan, the proceeds of any Additional Collateral from the related
Additional Collateral Mortgage Loan, in each case received during the calendar
month preceding the month of such Distribution Date with respect to such
Mortgage Loan, (f) all Principal Prepayments for such Loan Group received during
the related Prepayment Period, (g) any Subsequent Recoveries for such Loan Group
received during the calendar month preceding the month of such Distribution Date
and (h) in the case of a Loan Group in Aggregate Loan Group II, any Transfer
Payments Received for such Loan Group and Distribution Date less, in the case of
a Loan Group in Aggregate Loan Group II, any Transfer Payments Made for such
Loan Group and Distribution Date.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a Mortgagor
of the entire principal balance of a Mortgage Loan.
Principal Reductions: For each Loan Group, the sum of the Principal Amount
and any Realized Losses.
Principal Relocation Payment: A payment from any Loan Group to a
Subsidiary REMIC Regular Interest other than a Regular Interest corresponding to
that Loan Group as provided in the Preliminary Statement. Principal Relocation
Payments shall be made of principal allocations comprising the Principal Amount
from a Loan Group and shall include a proportionate allocation of Realized
Losses from the Mortgage Loans of such Loan Group.
Priority Amount: Not applicable.
Priority Percentage: Not applicable.
Private Certificate: As specified in the Preliminary Statement.
29
Pro Rata Share: As to any Distribution Date, the Subordinated Principal
Distribution Amount for an Aggregate Loan Group and any related Class of
Subordinated Certificates, the portion of the related Subordinated Principal
Distribution Amount allocable to such Class, equal to the product of the related
Subordinated Principal Distribution Amount on such Distribution Date and a
fraction, the numerator of which is the related Class Principal Balance thereof
and the denominator of which is the aggregate of the Class Principal Balances of
the Group 1 Subordinated Certificates or Aggregate Group II Subordinated
Certificates, as applicable.
Pro Rata Subordinated Percentage: As to any Distribution Date and Loan
Group, 100% minus the related Senior Percentage for such Distribution Date.
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Proprietary Lease: With respect to any Cooperative Property, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Cooperative Shares.
Prospectus: The prospectus supplement dated November 28, 2005, together
with the accompanying prospectus dated July 27, 2005, relating to the
Certificates.
Purchase and Servicing Agreements: Collectively, the mortgage loan
purchase and servicing agreements, each as amended by the related
Acknowledgement, listed in Exhibit E hereto, as each such agreement may be
amended or supplemented from time to time as permitted hereunder.
Purchase Date: As defined in Section 7.01(c).
Purchase Price: With respect to any Mortgage Loan required or permitted to
be purchased by the Seller or Depositor pursuant to this Agreement, or by the
related Originator or Servicer pursuant to the related Purchase and Servicing
Agreement, an amount equal to the sum of (i) 100% of the unpaid principal
balance of the Mortgage Loan on the date of such purchase and (ii) accrued
interest thereon at the applicable Net Mortgage Rate from the date through which
interest was last paid by the Mortgagor to the Due Date in the month in which
the Purchase Price is to be distributed to Certificateholders, or such other
amount as may be specified in the related Purchase and Servicing Agreement and
(iii) costs and damages incurred by the Trust Fund in connection with a
repurchase pursuant to Section 2.05 hereof that arises out of a violation of any
predatory or abusive lending law with respect to the related Mortgage Loan.
Quicken Mortgage Loan: Each Mortgage Loan originated by Quicken Loans,
Inc. and listed on the Mortgage Loan Schedule.
Quicken Purchase Agreement: The Mortgage Loan Purchase Agreement listed
in Exhibit E hereto between the Seller and Quicken Loans, Inc.
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any such organization or a successor is no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating
organization, or other comparable Person, as is designated by the Depositor,
notice of which designation shall be given to the Trustee. References herein to
30
a given rating category of a Rating Agency shall mean such rating category
without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the related
Mortgage Loan) as of the date of such liquidation, equal to (i) the Stated
Principal Balance of the Liquidated Mortgage Loan as of the date of such
liquidation, plus (ii) interest at the Net Mortgage Rate from the Due Date as to
which interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the Due Date in the month in which Liquidation Proceeds
are required to be distributed on the Stated Principal Balance of such
Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation
Proceeds, if any, received during the month in which such liquidation occurred,
to the extent applied as recoveries of interest at the Net Mortgage Rate and to
principal of the Liquidated Mortgage Loan. With respect to each Mortgage Loan
which has become the subject of a Deficient Valuation, if the principal amount
due under the related Mortgage Note has been reduced, the difference between the
principal balance of the Mortgage Loan outstanding immediately prior to such
Deficient Valuation and the principal balance of the Mortgage Loan as reduced by
the Deficient Valuation. With respect to each Mortgage Loan which has become the
subject of a Debt Service Reduction and any Distribution Date, the amount, if
any, by which the principal portion of the related Scheduled Payment has been
reduced.
To the extent the Master Servicer or a Servicer receives Subsequent
Recoveries with respect to any Mortgage Loan, the amount of the Realized Loss
with respect to that Mortgage Loan will be reduced by such Subsequent
Recoveries.
Recognition Agreement: An agreement among a Cooperative Corporation, a
lender and a Mortgagor with respect to a Cooperative Loan whereby such parties
(i) acknowledge that such lender may make, or intends to make, such Cooperative
Loan, and (ii) make certain agreements with respect to such Cooperative Loan.
Record Date: As to any Distribution Date (i) with respect to the Non-Delay
Certificates, the last Business Day preceding such Distribution Date (or the
Closing Date, in the case of the first Distribution Date) unless such
Certificates shall no longer be Book-Entry Certificates, in which case the
Record Date shall be the last Business Day of the month preceding the month of
such Distribution Date and (ii) in the case of the Delay Certificates (including
the Non-Delay Certificates that are subsequently reissued as Definitive
Certificates), the last Business Day of the month preceding the month of each
Distribution Date.
Redemption Price: With respect to any Class of Certificates to be
redeemed, an amount equal to 100% of the related Class Principal Balance of the
Certificates to be so redeemed, together with interest on such amount at the
applicable Pass-Through Rate through the related Accrual Period (as increased by
any Class Unpaid Interest Amounts), and including, in the case of the Redemption
Price payable in connection with the redemption and retirement of all of the
Certificates, the payment of all amounts (including, without limitation, all
previously unreimbursed Advances and Servicer Advances and accrued and unpaid
Servicing Fees) payable or reimbursable to the Trustee, the Securities
Administrator, the Master Servicer and the Servicers pursuant to this Agreement
and the Purchase and Servicing Agreements, or to the
31
Custodian under the Custodian Agreements (to the extent such amounts are not
paid to the Custodian by the Seller).
Refinancing Mortgage Loan: Any Mortgage Loan originated in connection with
the refinancing of an existing mortgage loan.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act: The Servicemembers Civil Relief Act (formerly known as the
Soldiers' and Sailors' Civil Relief Act of 1940), as amended, and any similar
state laws.
Relief Act Shortfalls: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month is
less than (ii) interest accrued thereon for such month pursuant to the Mortgage
Note.
REMIC: Each pool of assets in the Trust Fund designated as a REMIC as
described in the Preliminary Statement.
REMIC Provisions: The provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of the Code, and related provisions, and regulations, including proposed
regulations and rulings, and administrative pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan or otherwise treated as having been acquired pursuant to the REMIC
Provisions.
Replacement Mortgage Loan: A mortgage loan substituted by an Originator or
the Seller for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in a request for release, substantially in the form
attached to the related Custodial Agreement, (i) have a Stated Principal
Balance, after deduction of all Scheduled Payments due in the month of
substitution, not in excess of the Stated Principal Balance of the Deleted
Mortgage Loan, (ii) have a Mortgage Rate not less than (and not more than two
percentage points greater than) the mortgage rate of the Deleted Mortgage Loan,
(iii) have a Loan-to-Value Ratio equal to or less than that of the Deleted
Mortgage Loan, (iv) have a remaining term to maturity not greater than (and not
more than one year less than) that of the Deleted Mortgage Loan, (v) is
otherwise acceptable to the Seller, (vi) have the same adjustment date as that
of the Deleted Mortgage Loan, (vii) have a minimum Mortgage Rate not less than
that of the Deleted Mortgage Loan, (viii) have the same Index as that of the
Deleted Mortgage Loan, (ix) comply with all of the representations and
warranties set forth in the related underlying servicing agreement, as modified
by any related assignment thereof, and (x) shall be accompanied by an Opinion of
Counsel that such Replacement Mortgage Loan would not adversely affect the REMIC
status of any REMIC created hereunder or would not otherwise be prohibited by
this Pooling and Servicing Agreement.
32
Required Reserve Fund Deposit: The Class 1-X Required Reserve Fund
Deposit.
Reserve Fund: A fund created as part of the Trust Fund pursuant to
Section 5.10 of this Agreement but which is not an asset of any of the REMICs.
Residual Certificate: The Class A-R Certificates.
Responsible Officer: With respect to the Trustee, any officer in the
corporate trust department or similar group of the Trustee with direct
responsibility for the administration of this Agreement and also, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject. With respect to the Master Servicer, any officer in its master
servicing operations with direct responsibility for the Administration of this
Agreement. With respect to the Securities Administrator, any officer in the
corporate trust department or similar group of the Securities Administrator with
direct responsibility for the administration of this Agreement and also, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his or her knowledge of and familiarity with the
particular subject.
Restricted Classes: As defined in Section 5.02(e).
Restricted Global Security: As defined in Section 3.01(c).
SAIF: The Saving's Association Insurance Fund, or any successor thereto.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc. If
S&P is designated as a Rating Agency in the Preliminary Statement, for purposes
of Section 11.07 the address for notices to S&P shall be Standard & Poor's, 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Surveillance
Monitoring, or such other address as S&P may hereafter furnish to the Depositor
and the Master Servicer.
Scheduled Balances: Not applicable.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due on
any Due Date allocable to principal and/or interest on such Mortgage Loan which,
unless otherwise specified in the related Purchase and Servicing Agreement,
shall give effect to any related Debt Service Reduction and any Deficient
Valuation that affects the amount of the monthly payment due on such Mortgage
Loan.
Scheduled Principal Classes: As specified in the Preliminary Statement.
Scheduled Principal Distribution Amount: Not applicable.
Securities Administrator: Xxxxx Fargo Bank, National Association, not in
its individual capacity but solely as Securities Administrator, or any successor
in interest, or if any successor Securities Administrator shall be appointed as
herein provided, then such successor Securities Administrator.
33
Securities Administrator Compensation: With respect to any Securities
Administrator that is a successor to Xxxxx Fargo Bank, National Association as
Securities Administrator, the portion of the earnings on the funds on deposit in
the Distribution Account payable on each Distribution Date pursuant to Section
4.02(b)(ii) hereof agreed to by and between such Securities Administrator and
the successor Master Servicer; provided, that (x) such Securities Administrator
Compensation payable on each Distribution Date shall equal at least one day's
earnings accrued since the prior Distribution Date and (y) the sum of such
Securities Administrator Compensation and the Master Servicer Compensation
payable on each Distribution Date shall not exceed the total earnings on the
funds on deposit in the Distribution Account payable on each Distribution Date
pursuant to Section 4.02(b)(ii) hereof earned since the prior Distribution Date.
Seller: Xxxxxx Xxxxxxx Mortgage Capital Inc., a New York corporation.
Senior Certificate Group: As specified in the Preliminary Statement.
Senior Certificates: As specified in the Preliminary Statement.
Senior Credit Support Depletion Date: With respect to the Group 1 Senior
Certificates and the Aggregate Group II Senior Certificates, as applicable, the
date on which the aggregate Class Principal Balance of the Group 1 Subordinated
Certificates or Aggregate Group II Subordinated Certificates, respectively, have
been reduced to zero.
Senior Percentage: As to any Senior Certificate Group and Distribution
Date, the percentage equivalent of a fraction the numerator of which is the
aggregate Class Principal Balance of each Class of Senior Certificates of such
Senior Certificate Group (other than the related Notional Amount Certificates)
immediately prior to such Distribution Date, and the denominator of which is the
aggregate Stated Principal Balance of each Mortgage Loan in the related Loan
Group as of the Due Date occurring in the month prior to the month of such
Distribution Date (after giving effect to prepayments received in the Prepayment
Period related to such prior Due Date); provided, however, that, with respect to
the Aggregate Group II Senior Certificates, on any Distribution Date after a
related Senior Termination Date, the Senior Percentage for the Senior
Certificates of the related remaining Senior Certificate Group in Aggregate
Certificate Group II is the percentage equivalent of a fraction, the numerator
of which is the aggregate of the Class Principal Balances of each such Class of
Senior Certificates (other than the related Notional Amount Certificates) of
such remaining Senior Certificate Group immediately prior to such Distribution
Date, and the denominator of which is the aggregate of the Class Principal
Balances of all Classes of Aggregate Group II Certificates (other than the
related Notional Amount Certificates) immediately prior to such Distribution
Date. In no event will any Senior Percentage be greater than 100%.
Senior Prepayment Percentage: As to the Group 1 Senior Certificates and
any Distribution Date during the seven years beginning on the first Distribution
Date, 100%. The Senior Prepayment Percentage for any Distribution Date occurring
on or after the seventh anniversary of the first Distribution Date will, except
as provided herein, be as follows: for any Distribution Date in the first year
thereafter, the related Senior Percentage plus 70% of the related Subordinated
Percentage for such Distribution Date; for any Distribution Date in the
34
second year thereafter, the related Senior Percentage plus 60% of the related
Subordinated Percentage for such Distribution Date; for any Distribution Date in
the third year thereafter, the related Senior Percentage plus 40% of the related
Subordinated Percentage for such Distribution Date; for any Distribution Date in
the fourth year thereafter, the related Senior Percentage plus 20% of the
related Subordinated Percentage for such Distribution Date; and for any
Distribution Date thereafter, the related Senior Percentage for such
Distribution Date (unless on any Distribution Date the related Senior Percentage
exceeds the Senior Percentage of such Senior Certificate Group as of the Closing
Date, in which case the Senior Prepayment Percentage for such Distribution Date
will once again equal 100%). Notwithstanding the foregoing, no decrease in any
Senior Prepayment Percentage related to Loan Group 1 will occur unless (i) both
of the Senior Step Down Conditions are satisfied with respect to Loan Group 1
and (ii) if the Two Times Test is satisfied on a Distribution Date, (a) on or
before the Distribution Date in November 2008, the related Senior Prepayment
Percentage for Loan Group 1 will equal the related Senior Percentage plus 50% of
the Pro Rata Subordinated Percentage and (b) after the Distribution Date in
November 2008, the related Senior Prepayment Percentage for Loan Group 1 will
equal the related Senior Percentage.
As to the Aggregate Group II Senior Certificates and any Distribution Date
during the seven years beginning on the first Distribution Date, 100%. The
related Senior Prepayment Percentage for any Distribution Date occurring on or
after the seventh anniversary of the first Distribution Date will, except as
provided in this Agreement, be as follows: for any Distribution Date in the
first year thereafter, the related Senior Percentage plus 70% of the related
Subordinated Percentage for such Distribution Date; for any Distribution Date in
the second year thereafter, the related Senior Percentage plus 60% of the
related Subordinated Percentage for such Distribution Date; for any Distribution
Date in the third year thereafter, the related Senior Percentage plus 40% of the
related Subordinated Percentage for such Distribution Date; for any Distribution
Date in the fourth year thereafter, the related Senior Percentage plus 20% of
the related Subordinated Percentage for such Distribution Date; and for any
Distribution Date thereafter, the related Senior Percentage for such
Distribution Date (unless on any Distribution Date the related Senior Percentage
exceeds the Senior Percentage of such Senior Certificate Group as of the Closing
Date, in which case the related Senior Prepayment Percentage for such
Distribution Date will once again equal 100%). Notwithstanding the foregoing, no
decrease in any Senior Prepayment Percentage related to Aggregate Loan Group II
will occur unless both of the Senior Step Down Conditions are satisfied with
respect to each Loan Group in Aggregate Loan Group II. Notwithstanding the
foregoing, if the Two Times Test is satisfied with respect to the Aggregate
Group II Certificates on a Distribution Date (x) on or before the Distribution
Date in November 2008, the related Senior Prepayment Percentage for each Loan
Group in Aggregate Loan Group II will equal the related Senior Percentage for
that Distribution Date plus 50% of the amount equal to the related Pro Rata
Subordinated Percentage and (y) after the Distribution Date in November 2008,
the related Senior Prepayment Percentage for each Loan Group in Aggregate Loan
Group II will equal the related Senior Percentage.
Senior Principal Distribution Amount: As to any Distribution Date and
Senior Certificate Group, the sum of (i) the sum, not less than zero, of the
related Senior Percentage of all amounts described in clauses (a) through (d) of
the definition of Principal Amount with respect to the related Loan Group for
such Distribution Date, (ii) with respect to any Mortgage Loan in the related
Loan Group that became a Liquidated Mortgage Loan during the calendar month
35
preceding the month of such Distribution Date, the lesser of (x) the related
Senior Percentage of the Stated Principal Balance of such Mortgage Loan and (y)
either (A) the related Senior Prepayment Percentage of the amount of the
Liquidation Proceeds allocable to principal received on the Mortgage Loan, or
(B) if an Excess Loss was sustained with respect to such Liquidated Mortgage
Loan during such prior calendar month, the related Senior Percentage, of the
amount of the Liquidation Proceeds allocable to principal received with respect
to such Mortgage Loan, and (iii) the sum of (x) the related Senior Prepayment
Percentage of the amounts described in clause (f) of the definition of Principal
Amount with respect to the related Loan Group for such Distribution Date plus
(y) the related Senior Prepayment Percentage of any Subsequent Recoveries
described in clause (g) of the definition of Principal Amount for such
Distribution Date; provided, however, that if a Bankruptcy Loss that is an
Excess Loss is sustained on a Mortgage Loan in the related Loan Group that is
not a Liquidated Mortgage Loan, the Senior Principal Distribution Amount will be
reduced on the related Distribution Date by the related Senior Percentage of the
principal portion of such Bankruptcy Loss; provided further, however, on any
Distribution Date after the related Senior Termination Date, in the case of the
Aggregate Group II Certificates, the Senior Principal Distribution Amount for
the remaining Senior Certificate Group in Aggregate Certificate Group II will be
calculated pursuant to the above formula based on all the Mortgage Loans in
Aggregate Loan Group II, as opposed to only the Mortgage Loans in the related
Loan Group and, if such Distribution Date is after a related Senior Termination
Date, shall be reduced by the amount of the principal distribution made pursuant
to (a) if the Group 1 Senior Certificates are reduced to zero on such date,
Section 5.02(a)(1)(iv)(y), (b) if the Group 2 Senior Certificates are reduced to
zero on such date, Section 5.02(a)(2)(iv)(y), or (c) if the Group 3 Senior
Certificates are reduced to zero on such date, Section 5.02(a)(3)(iv)(y).
Senior Step Down Conditions: With respect to Loan Group 1: (i) the
outstanding principal balance of all Mortgage Loans in Loan Group 1 delinquent
60 days or more (including any related Mortgage Loans in foreclosure, REO
Property and Mortgage Loans the mortgagors of which are in bankruptcy) (averaged
over the preceding six month period), as a percentage of the aggregate Class
Principal Balance of the Group 1 Subordinated Certificates, does not equal or
exceed 50%, and (ii) cumulative Realized Losses on the Mortgage Loans in Loan
Group 1 do not exceed: (a) commencing with the Distribution Date on the seventh
anniversary of the first Distribution Date, 30% of the Original Subordinate
Principal Balance, (b) commencing with the Distribution Date on the eighth
anniversary of the first Distribution Date, 35% of the Original Subordinate
Principal Balance, (c) commencing with the Distribution Date on the ninth
anniversary of the first Distribution Date, 40% of the Original Subordinate
Principal Balance, (d) commencing with the Distribution Date on the tenth
anniversary of the first Distribution Date, 45% of the Original Subordinate
Principal Balance, and (e) commencing with the Distribution Date on the eleventh
anniversary of the first Distribution Date, 50% of the Original Subordinate
Principal Balance.
With respect to each Loan Group in Aggregate Loan Group II: (i) the
outstanding principal balance of all Mortgage Loans in a Loan Group in Aggregate
Loan Group II delinquent 60 days or more (including any related Mortgage Loans
in foreclosure, REO Property and Mortgage Loans the Mortgagors of which are in
bankruptcy) (averaged over the preceding six month period), as a percentage of
(a) if such date is on or prior to a related Senior Termination Date, the
Subordinated Percentage for such Loan Group of the aggregate Stated Principal
36
Balances of the Mortgage Loans in that Loan Group, or (b) if such date is after
a related Senior Termination Date, the aggregate Class Principal Balance of the
Group 1 Subordinated Certificates for such Distribution Date does not equal or
exceed 50%, and (ii) cumulative Realized Losses on all the Mortgage Loans in
Aggregate Loan Group II do not exceed: (a) commencing with the Distribution Date
on the seventh anniversary of the first Distribution Date, 30% of the related
Original Subordinate Principal Balance, (b) commencing with the Distribution
Date on the eighth anniversary of the first Distribution Date, 35% of the
related Original Subordinate Principal Balance, (c) commencing with the
Distribution Date on the ninth anniversary of the first Distribution Date, 40%
of the related Original Subordinate Principal Balance, (d) commencing with the
Distribution Date on the tenth anniversary of the first Distribution Date, 45%
of the related Original Subordinate Principal Balance and (e) commencing with
the Distribution Date on the eleventh anniversary of the first Distribution
Date, 50% of the related Original Subordinate Principal Balance.
Senior Termination Date: For each Senior Certificate Group, the
Distribution Date on which the aggregate Class Principal Balance of the Senior
Certificates in that Senior Certificate Group has been reduced to zero.
Servicer: Each Servicer under a Purchase and Servicing Agreement, and its
respective successors and assigns. As of the Closing Date, the Servicers of the
Mortgage Loans shall be GMAC Mortgage Corporation, GreenPoint Mortgage Funding,
Inc., HSBC Mortgage Corporation (USA), National City Mortgage Co., Wachovia
Mortgage Corporation and Xxxxx Fargo Bank, National Association.
Servicer Advance: A "Servicer Advance" or "Servicing Advance" as defined
in the applicable Purchase and Servicing Agreement.
Servicing Fee: As to any Distribution Date and each Mortgage Loan, an
amount equal to the product of (a) one-twelfth of the related Servicing Fee Rate
and (b) the Stated Principal Balance of such Mortgage Loan as of the first day
of the related Due Period.
Servicing Fee Rate: With respect to each Mortgage Loan and any
Distribution Date, the per annum rate specified in the related Purchase and
Servicing Agreement.
Servicing Officer: Any officer of the related Servicer involved in, or
responsible for, the administration and servicing of the related Mortgage Loans
whose name and facsimile signature appear on a list of servicing officers
furnished to the Master Servicer by the related Servicer on the Closing Date
pursuant to the related Purchase and Servicing Agreement, as such list may from
time to time be amended.
Shift Percentage: Not applicable.
Special Hazard Coverage Termination Date: With respect to each Aggregate
Certificate Group the point in time at which the related Special Hazard Loss
Coverage Amount is reduced to zero.
Special Hazard Loss: Any Realized Loss suffered by a Mortgaged Property on
account of direct physical loss, as reported by the related Servicer to the
Master Servicer, but not
37
including (i) any loss of a type covered by a hazard insurance policy or a flood
insurance policy required to be maintained with respect to such Mortgaged
Property to the extent of the amount of such loss covered thereby, or (ii) any
loss caused by or resulting from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of the
Trustee, the Master Servicer or any of their agents or employees (without
regard to any portion of the loss not covered by any errors and omissions
policy);
(c) errors in design, faulty workmanship or faulty materials, unless
the collapse of the property or a part thereof ensues and then only for
the ensuing loss;
(d) nuclear or chemical reaction or nuclear radiation or radioactive
or chemical contamination, all whether controlled or uncontrolled, and
whether such loss be direct or indirect, proximate or remote or be in
whole or in part caused by, contributed to or aggravated by a peril
covered by the definition of the term "Special Hazard Loss;"
(e) hostile or warlike action in time of peace and war, including
action in hindering, combating or defending against an actual, impending
or expected attack:
1. by any government or sovereign power, de jure or de facto,
or by any authority maintaining or using military, naval or air
forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or
forces;
(f) any weapon of war employing nuclear fission, fusion or other
radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or
defending against such an occurrence, seizure or destruction under
quarantine or customs regulations, confiscation by order of 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 and (a) the Group 1 Certificates, $3,745,054, and (b) the
Aggregate Group II Certificates, $3,580,000. 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 in the
applicable Aggregate Loan Group, (ii) twice the principal balance of the largest
Mortgage Loan in the applicable Aggregate Loan Group and (iii) the aggregate of
the principal balances of all Mortgage Loans in the applicable Aggregate Loan
Group secured by Mortgaged Properties located in the single California postal
zip code area having the highest aggregate principal balance of any such zip
code area and (b) the related Special Hazard Loss Coverage Amount as of the
Closing Date less the amount, if any, of Special Hazard Losses allocated to the
Certificates in the related Aggregate Certificate Group since the Closing Date.
All principal balances for the
38
purpose of this definition will be calculated as of the first day of the
calendar month preceding the month of such Distribution Date after giving effect
to Scheduled Payments on the Mortgage Loans then due, whether or not paid.
Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which a
Special Hazard Loss has occurred.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the unpaid
principal balance of such Mortgage Loan as of such Due Date as specified in the
amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to any previous partial Principal Prepayments
and Liquidation Proceeds allocable to principal (other than with respect to any
Liquidated Mortgage Loan) and to the payment of principal due on such Due Date
and irrespective of any delinquency in payment by the related Mortgagor.
Subordinated Certificates: As specified in the Preliminary Statement.
Subordinated Percentage: As to any Distribution Date on or prior to a
related Senior Termination Date, in the case of the Aggregate Group II
Certificates, and the portion of the Aggregate Group II Subordinated
Certificates relating to Loan Group 2 and Loan Group 3, 100% minus the Senior
Percentage for the Senior Certificate Group relating to such Loan Group for such
Distribution Date. As to the entire interest of (x) the Group 1 Subordinated
Certificates in Group 1 and any Distribution Date and (y) the Aggregate Group II
Subordinated Certificates in Aggregate Group II and any Distribution Date after
a related Senior Termination Date and, 100% minus the Senior Percentage for the
Group 1 Senior Certificates and Aggregate Group II Senior Certificates,
respectively, for such Distribution Date.
Subordinated Portion: For any Distribution Date, an amount equal to the
aggregate Stated Principal Balance of the Mortgage Loans in the related Loan
Group in Aggregate Loan Group II as of the end of the Prepayment Period related
to the immediately preceding Distribution Date, minus the aggregate Class
Principal Balance of the Senior Certificates in the related Senior Certificate
Group in Aggregate Certificate Group II immediately prior to such Distribution
Date.
Subordinated Prepayment Percentage: As to any Distribution Date and Loan
Group, 100% minus the related Senior Prepayment Percentage for such Distribution
Date.
Subordinated Principal Distribution Amount: With respect to any
Distribution Date and the Group 1 Subordinated Certificates, the sum of the
following amounts for Loan Group 1: an amount equal to the sum of (i) the
Subordinated Percentage for Loan Group 1 of all amounts described in clauses (a)
through (d) of the definition of "Principal Amount" for Loan Group 1 and that
Distribution Date, (ii) with respect to each Mortgage Loan in Loan Group 1 that
became a Liquidated Mortgage Loan during the calendar month preceding the month
of such Distribution Date, the amount of the Liquidation Proceeds allocated to
principal received with respect thereto remaining after application thereof
pursuant to clause (ii) of the definition of "Senior Principal Distribution
Amount", up to the Subordinated Percentage for Loan Group 1 of the Stated
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Principal Balance of that Mortgage Loan, and (iii) the sum of the Subordinated
Prepayment Percentage for Loan Group 1 of all amounts described in clause (f) of
the definition of "Principal Amount" for Loan Group 1 and Distribution Date, and
(iv) the Subordinated Prepayment Percentage of any Subsequent Recoveries
described in clause (g) of the definition of Principal Amount for such
Distribution Date.
With respect to any Distribution Date and the Aggregate Group II
Subordinated Certificates, the sum of the following amounts for each Loan Group
in Aggregate Loan Group II, an amount equal to the excess of (A) the sum of (i)
the Subordinated Percentage for such Loan Group of all amounts described in
clauses (a) through (d) of the definition of "Principal Amount" for that Loan
Group and that Distribution Date, (ii) with respect to each Mortgage Loan in
that Loan Group that became a Liquidated Mortgage Loan during the calendar month
preceding the month of such Distribution Date, the amount of the Liquidation
Proceeds allocated to principal received with respect thereto remaining after
application thereof pursuant to clause (ii) of the definition of "Senior
Principal Distribution Amount", up to the Subordinated Percentage for such Loan
Group of the Stated Principal Balance of that Mortgage Loan, and (iii) the sum
of the Subordinated Prepayment Percentage for that Loan Group of all amounts
described in clause (f) of the definition of "Principal Amount" for such Loan
Group and Distribution Date," and (iv) the Subordinated Prepayment Percentage of
any Subsequent Recoveries described in clause (g) of the definition of Principal
Amount for such Distribution Date over (B) any Transfer Payments Made for such
Loan Group; provided, however, that on any Distribution Date after the related
Senior Termination Date, the Subordinated Principal Distribution Amount will not
be calculated by Loan Group but will equal the amount calculated pursuant to the
formula set forth above based on the applicable Subordinated Percentage and
Subordinated Prepayment Percentage for the Aggregate Group II Subordinated
Certificates for such Distribution Date with respect to all of the Mortgage
Loans in Aggregate Loan Group II as opposed to the Mortgage Loans only in the
related Loan Group.
Subsequent Recoveries: As to any Distribution Date, with respect to a
Liquidated Mortgage Loan that resulted in a Realized Loss in a prior calendar
month, amounts received by the Securities Administrator from the related
Servicer (net of any related expenses permitted to be reimbursed pursuant to
Section 4.02) specifically related to such Liquidated Mortgage Loan.
Subsidiary REMIC 1: As specified in the Preliminary Statement.
Subsidiary REMIC 1 Interest: As specified in the Preliminary Statement.
Subsidiary REMIC 1 Regular Interest: As specified in the Preliminary
Statement.
Subsidiary REMIC 2: As specified in the Preliminary Statement.
Subsidiary REMIC 2 Interest: As specified in the Preliminary Statement.
Subsidiary REMIC 2 Regular Interest: As specified in the Preliminary
Statement.
Substitution Adjustment Amount: As defined in the second paragraph of
Section 2.05(b).
40
Targeted Balance: With respect to any group of Targeted Principal Classes
or Components in the aggregate and any Distribution Date appearing in Schedule B
hereto, the Aggregate Targeted Balance for such group and Distribution Date.
With respect to any other Targeted Principal Class or Component and any
Distribution Date appearing in Schedule B hereto, the applicable amount
appearing opposite such Distribution Date for such Class or Component.
Tax Matters Person: The person designated as "tax matters person" in the
manner provided under Treasury regulation ss. 1.860F-4(d) and temporary Treasury
regulation ss.301.6231(a)(7)1T. Initially, the Tax Matters Person shall be the
Securities Administrator.
Tax Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.01.
Transfer Payment: Either or both of a Transfer Payment Made or a
Transfer Payment Received.
Transfer Payment Made: As defined in Section 5.08.
Transfer Payment Received: As defined in Section 5.08.
Trust Fund: The corpus of the trust created pursuant to this Agreement
consisting of (i) the Mortgage Loans and all interest and principal received on
or with respect thereto after the Cut-off Date (other than Scheduled Payments
due on or prior to the Cut-off Date) to the extent not applied in computing the
Cut-off Date Principal Balance thereof; (ii) all cash, instruments or property
held or required to be held in the Custodial Accounts and the Distribution
Account and all amounts deposited therein pursuant to the applicable provisions
of this Agreement; (iii) property that secured a Mortgage Loan and has been
acquired by foreclosure, deed-in-lieu of foreclosure or otherwise; (iv) the
Depositor's rights assigned to the Trustee under the Purchase and Servicing
Agreements, as modified by the Acknowledgements and the Custodial Agreements;
(v) the pledge, control and guaranty agreements and the Limited Purpose Surety
Bond relating to the Additional Collateral Mortgage Loans; (vi) the Corridor
Contracts and the amounts on deposit in the Reserve Fund; (vii) all insurance
policies related to the Mortgage Loans and any insurance proceeds; and (viii)
all proceeds of the conversion, voluntary or involuntary, of any of the
foregoing.
Trustee: Deutsche Bank National Trust Company, a national banking
association, organized under the laws of the United States and any Person
succeeding the Trustee hereunder, or if any successor trustee or any co-trustee
shall be appointed as herein provided, then such successor trustee and such
co-trustee, as the case may be.
Trustee Mortgage Files: With respect to each Mortgage Loan, the Mortgage
Documents to be retained in the custody and possession of the Trustee or
Custodian on behalf of the Trustee.
Two Times Test: As to any Distribution Date and the Group 1 Subordinated
Certificates, if (i) the Aggregate Subordinated Percentage for the Group 1
Subordinated Certificates is at least 200% of the related Aggregate Subordinated
Percentage as of the Closing Date, (ii) the outstanding aggregate Stated
Principal Balance of all Mortgage Loans in Loan Group 1
41
delinquent 60 days or more (averaged over the preceding six month period), as a
percentage of the aggregate Class Principal Balance of the Group 1 Subordinated
Certificates, does not equal or exceed 50% and (ii) the cumulative Realized
Losses on all the Mortgage Loans in Loan Group 1 do not exceed (x) with respect
to any Distribution Date on or prior to November 2008, 20% of the related
Original Subordinate Principal Balance or (y) with respect to any Distribution
Date after November 2008, 30% of the related Original Subordinate Principal
Balance.
As to any Distribution Date and the Aggregate Group II Subordinated
Certificates, if (i) the Aggregate Subordinated Percentage for the Aggregate
Group II Subordinated Certificates is at least 200% of the related Aggregate
Subordinated Percentage as of the Closing Date, (ii) the outstanding aggregate
Stated Principal Balance of all Mortgage Loans in Aggregate Loan Group II
delinquent 60 days or more (averaged over the preceding six month period), as a
percentage of the aggregate Class Principal Balance of the Aggregate Group II
Subordinated Certificates, does not equal or exceed 50% and (ii) the cumulative
Realized Losses on all the Mortgage Loans in Aggregate Loan Group II do not
exceed (x) with respect to any Distribution Date on or prior to November 2008,
20% of the related Original Subordinate Principal Balance or (y) with respect to
any Distribution Date after November 2008, 30% of the related Original
Subordinate Principal Balance.
UCC: The Uniform Commercial Code as enacted in the relevant jurisdiction.
Undercollateralized Group: As defined in Section 5.08 hereof.
Underwriter's Exemption: Prohibited Transaction Exemption 2002-41, 67
Fed. Reg. 54487 (2002), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of Labor.
Underwriter: As specified in the Preliminary Statement.
Unscheduled Principal Distribution Amount: Not applicable.
Uniform Commercial Code: The Uniform Commercial Code as in effect in any
applicable jurisdiction from time to time.
Voting Interests: The portion of the voting rights of all the Certificates
that is allocated to any Certificate for purposes of the voting provisions of
this Agreement. At all times during the term of this Agreement, 1.00% of all
Voting Interests shall be allocated to each Class of Notional Amount
Certificates and the Class A-R Certificates. Voting Interests shall be allocated
among all other Classes of Certificates pro rata based on Class Principal
Balances for each Class then outstanding. Voting Interests shall be allocated
among the Certificates within each such Class in proportion to their Certificate
Balances or Percentage Interests.
Wachovia Serviced Mortgage Loan: Each Mortgage Loan originated and
serviced by Wachovia Mortgage Corporation and listed on the Mortgage Loan
Schedule.
Wachovia Purchase and Servicing Agreement: The Seller's Purchase,
Warranties and Servicing Agreement listed in Exhibit E hereto between the
Seller and Wachovia Mortgage Corporation.
42
Weighted Average Net Mortgage Rate: As to any Distribution Date and Loan
Group, the average of the Net Mortgage Rate of each Mortgage Loan in that Loan
Group, weighted on the basis of its Stated Principal Balance as of the end of
the Prepayment Period related to the immediately preceding Distribution Date
WF Purchase and Servicing Agreement: The Seller's Warranties and Servicing
Agreement listed in Exhibit E hereto between the Seller and Xxxxx Fargo Bank,
N.A., as originator.
WF Serviced Mortgage Loan: Each Mortgage Loan serviced by Xxxxx Fargo
Bank, N.A. and listed on the Mortgage Loan Schedule.
43
ARTICLE II
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01 Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans.
(a) Concurrently with the execution and delivery of this Agreement, the
Depositor does hereby transfer, assign, set over, deposit with and otherwise
convey to the Trustee, without recourse, subject to Sections 2.02 and 2.05, in
trust, all the right, title and interest of the Depositor in and to the Trust
Fund. Such conveyance includes, without limitation, (i) the Mortgage Loans,
including the right to all payments of principal and interest received on or
with respect to the Mortgage Loans on and after the Cut-off Date (other than
Scheduled Payments due on or before such date), and all such payments due after
such date but received prior to such date and intended by the related Mortgagors
to be applied after such date; (ii) all of the Depositor's right, title and
interest in and to all amounts from time to time credited to and the proceeds of
the Distribution Account, any Custodial Accounts or any Escrow Account
established with respect to the Mortgage Loans; (iii) all of the rights and
obligations of the Depositor as assignee of the Seller with respect to the
Seller's rights and obligations under the Purchase and Servicing Agreements
pursuant to the Acknowledgements; (iv) all of the Depositor's right, title or
interest in REO Property and the proceeds thereof; (v) all of the Depositor's
rights under any Insurance Policies related to the Mortgage Loans; (vi) $300
(which amount has been delivered by the Depositor to the Securities
Administrator to be held in the Distribution Account until distributed to the
Holders of the Class P-1, Class P-2 and Class C Certificates pursuant to Section
5.02(a)); and (vii) if applicable, the Depositor's security interest in any
collateral pledged to secure the Mortgage Loans, including the Mortgaged
Properties and any Additional Collateral relating to the Additional Collateral
Mortgage Loans, including, but not limited to, the pledge, control and guaranty
agreements and the Limited Purpose Surety Bond, to have and to hold, in trust;
and the Trustee declares that, subject to the review provided for in Section
2.02, it has received and shall hold the Trust Fund, as trustee, in trust, for
the benefit and use of the Holders of the Certificates and for the purposes and
subject to the terms and conditions set forth in this Agreement, and,
concurrently with such receipt, has caused to be executed, authenticated and
delivered to or upon the order of the Depositor, in exchange for the Trust Fund,
Certificates in the authorized denominations evidencing the entire ownership of
the Trust Fund.
The foregoing sale, transfer, assignment, set-over, deposit and conveyance
does not and is not intended to result in the creation or assumption by the
Trustee of any obligation of the Depositor, the Seller or any other Person in
connection with the Mortgage Loans or any other agreement or instrument relating
thereto except as specifically set forth therein.
In connection with such transfer and assignment of the Mortgage Loans, the
Custodian acting on the Trustee's behalf will continue to hold the documents or
instruments listed below with respect to each Mortgage Loan (each, a "Trustee
Mortgage File") so transferred and assigned:
44
(i) with respect to each Mortgage Loan, the original Mortgage Note
endorsed without recourse in proper form to the order of the Trustee, or in
blank (in each case, with all necessary intervening endorsements, as
applicable);
(ii) with respect to each Mortgage Loan (other than a Cooperative Loan)
that is not a MERS Mortgage Loan, the original Mortgage with evidence of
recording thereon, or if the original Mortgage has not yet been returned from
the recording office, a copy of such Mortgage certified by the applicable
Originator, title company, escrow agent or closing attorney to be a true copy of
the original of the Mortgage which has been sent for recording in the
appropriate jurisdiction in which the Mortgaged Property is located, and in the
case of the each MERS Mortgage Loan, the original Mortgage, noting the presence
of the MIN of the Mortgage Loans and either language indicating that the
Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan or if the
Mortgage Loan was not a MOM Loan at origination, the original Mortgage and the
assignment thereof to MERS, with evidence of recording indicated thereon;
(iii) with respect to each Mortgage Loan (other than a Cooperative Loan)
that is not a MERS Mortgage Loan, the Assignment of Mortgage in form and
substance acceptable for recording in the relevant jurisdiction, such assignment
being either (A) in blank, without recourse, or (B) endorsed to "Deutsche Bank
National Trust Company, as Trustee of Xxxxxx Xxxxxxx Mortgage Loan Trust
2005-9AR, Mortgage Pass-Through Certificates, without recourse";
(iv) with respect to each Mortgage Loan (other than a Cooperative Loan)
that is not a MERS Mortgage Loan, the originals of all intervening assignments
of the Mortgage, if any, with evidence of recording thereon, or if the original
intervening assignment has not yet been returned from the recording office, a
copy of such assignment certified by the applicable Originator, title company,
escrow agent or closing attorney to be a true copy of the original of the
assignment which has been sent for recording in the appropriate jurisdiction in
which the Mortgaged Property is located;
(v) with respect to each Mortgage Loan (other than a Cooperative Loan),
the originals of all assumption, modification, consolidation or extension
agreements, if any, with evidence of recording thereon;
(vi) if any, with respect to each Mortgage Loan (other than a Cooperative
Loan), the original policy of title insurance (or a true copy thereof) with
respect to any such Mortgage Loan, or, if such policy has not yet been delivered
by the insurer, the title commitment or title binder to issue same;
(vii) if any, with respect to each Mortgage Loan (other than a Cooperative
Loan), the original power of attorney and guaranty agreement with respect to
such Mortgage Loan;
(viii) [reserved];
(ix) with respect to each Mortgage Loan which constitutes a Cooperative
Loan:
(a) the original of any security agreement or similar document executed in
connection with the Cooperative Loan;
45
(b) the original Recognition Agreement and the original Assignment of
Recognition Agreement;
(c) UCC-1 financing statements with recording information thereon from the
appropriate governmental recording offices if necessary to perfect the security
interest of the Cooperative Loan under the Uniform Commercial Code in the
jurisdiction in which the Cooperative Property is located, accompanied by UCC-3
financing statements executed in blank for recordation of the change in the
secured party thereunder;
(d) an Estoppel Letter and/or Consent;
(e) a search for (i) federal tax liens, mechanics' liens, lis pendens,
judgments of record or otherwise against (x) the Cooperative Corporation and (y)
the seller of the Cooperative Unit, (ii) filings of financing statements and
(iii) the deed of the cooperative project into the Cooperative Corporation;
(f) the guaranty of the Mortgage Note and Cooperative Loan, if any;
(g) the original Proprietary Lease and the Assignment of Proprietary Lease
executed by the Mortgagor in blank or if the Proprietary Lease has been assigned
by the Mortgagor to the Seller, then the Seller must execute an assignment of
the Assignment of Proprietary Lease in blank; and
(h) if any, the original or certified copy of the certificates evidencing
ownership of the Cooperative Shares issued by the Cooperative Corporation and
related assignment of such certificates or an assignment of such Cooperative
Shares, in blank, executed by the Mortgagor with such signature guaranteed;
(x) [reserved]; and
(xi) any other document or instruments required to be delivered under the
related Custodial Agreement.
In addition, in connection with the assignment of any MERS Mortgage Loan,
it is understood that the related Originator will cause the MERS(R) System to
indicate that such Mortgage Loans have been assigned by the related Originator
to the Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer files
the information required by the MERS(R) System to identify the series of
Certificates issued in connection with such Mortgage Loans. It is further
understood that the related Originator will not, and the Master Servicer hereby
agrees that it will not alter the information referenced in this paragraph with
respect to any Mortgage Loan during the term of this Agreement unless and until
such Mortgage Loan is repurchased in accordance with the terms of this
Agreement.
(b) As soon as is practicable after the Closing Date, the Depositor shall
cause the Servicer of any Additional Collateral Mortgage Loan to deliver to the
applicable Custodian the Assignment and Notice of Transfer with respect to each
Additional Collateral Mortgage Loan as
46
well as the assignments of any rights with respect to each Additional Collateral
Mortgage Loan under any Limited Purpose Surety Bond.
(c) In instances where a title insurance policy is required to be
delivered to the applicable Custodian on behalf of the Trustee and is not so
delivered, the Depositor will provide a copy of such title insurance policy to
the applicable Custodian on behalf of the Trustee, as promptly as practicable
after the execution and delivery hereof, but in any case within 180 days of the
Closing Date.
(d) For Mortgage Loans (if any) that have been prepaid in full after the
Cut-off Date and prior to the Closing Date, the Depositor, in lieu of delivering
the above documents, herewith delivers such amount to the Securities
Administrator, and delivers to the Securities Administrator, the Trustee, and
the applicable Custodian, an Officer's Certificate which shall include a
statement to the effect that all amounts received in connection with such
prepayment that are required to be deposited in the Distribution Account
pursuant to Section 4.01 have been so deposited. All original documents that are
not delivered to the applicable Custodian on behalf of the Trustee shall be held
by the Master Servicer or the related Servicer in trust for the benefit of the
Trustee and the Certificateholders.
(e) Neither the Depositor nor the Trust will acquire or hold any Mortgage
Loan that would violate the representations made by the Seller set forth in
clauses (iv) through (ix) of Section 2.05(b) hereof.
Section 2.02 Acceptance of Trust Fund by Trustee; Review of
Documentation for Trust Fund.
(a) The Trustee, by execution and delivery hereof, acknowledges receipt by
it of notice from each of the Custodians that each holds the documents
identified in the Initial Custodian Certification in the form annexed hereto as
Exhibit L-1 (the "Initial Custodian Certification") pertaining to the Mortgage
Loans listed on the Mortgage Loan Schedule.
(b) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee, any Custodian or the
Certificateholders of any unsatisfied duty, claim or other liability on any
Mortgage Loan or to any Mortgagor.
(c) Each of the parties hereto acknowledges that (i) the Custodian has
delivered to the Depositor, the Master Servicer and the Trustee, the Initial
Custodian Certification, in the form annexed hereto as Exhibit L-1, stating that
it has performed the applicable review of the Mortgage Loans as required herein
and in the Custodial Agreements on the Closing Date and (ii) thereafter, if
applicable, the Custodian shall perform the applicable review of the Mortgage
Loans and deliver the further certifications (including but not limited to the
Final Custodian Certification) as provided herein and in the applicable
Custodial Agreements.
With respect to the MSMCI Mortgage Loans only, not later than 180 days
after the Closing Date, the Trustee shall cause the related Custodian to the
extent required by the related Custodial Agreement to deliver to the Depositor,
the Master Servicer and the Trustee a Final Custodian Certification in the form
annexed hereto as Exhibit L-2 (the "Final Custodian Certification"), with any
applicable exceptions noted thereon. To the extent that a Custodian
47
must deliver a Final Certification under the related Custodial Agreement, the
Trustee shall cause that Custodian to make available, upon request of any
Certificateholder, a copy of any exceptions noted on the related Initial
Custodian Certification or the related Final Custodian Certification.
(d) Upon execution of this Agreement, the Depositor hereby delivers to the
Trustee (with a copy to the Securities Administrator) and the Trustee
acknowledges receipt of the Acknowledgements, together with the related Purchase
and Servicing Agreements.
Section 2.03 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for the
benefit of the Certificateholders, and to the Master Servicer and the Securities
Administrator as of the Closing Date or such other date as is specified, that:
(i) the Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence
and has full corporate power and authority to own its property, to carry
on its business as presently conducted, to enter into and perform its
obligations under this Agreement, and to create the trust pursuant hereto;
(ii) the execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of
the Depositor; neither the execution and delivery of this Agreement, nor
the consummation of the transactions herein contemplated, nor compliance
with the provisions hereof, will conflict with or result in a breach of,
or constitute a default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the
Depositor or its properties or the certificate of incorporation or bylaws
of the Depositor;
(iii) the execution, delivery and performance by the Depositor of
this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice to,
the registration with, or the taking of any other action in respect of,
any state, federal or other governmental authority or agency, except such
as has been obtained, given, effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, the Master Servicer and the Securities Administrator, constitutes
a valid and binding obligation of the Depositor enforceable against it in
accordance with its terms except as such enforceability may be subject to
(A) applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors generally and (B)
general principles of equity regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(v) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened or likely to be asserted against or
affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the
transactions contemplated by this Agreement or (B) with respect to
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any other matter which in the judgment of the Depositor will be determined
adversely to the Depositor and will if determined adversely to the
Depositor materially and adversely affect it or its business, assets,
operations or condition, financial or otherwise, or adversely affect its
ability to perform its obligations under this Agreement;
(vi) immediately prior to the transfer and assignment of the
Mortgage Loans to the Trustee, the Depositor was the sole owner of record
and holder of each Mortgage Loan, and the Depositor had good and
marketable title thereto, and had full right to transfer and sell each
Mortgage Loan to the Trustee free and clear, subject only to (1) liens of
current real property taxes and assessments not yet due and payable and,
if the related Mortgaged Property is a condominium unit, any lien for
common charges permitted by statute, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of recording of such Mortgage acceptable to mortgage
lending institutions in the area in which the related Mortgaged Property
is located and specifically referred to in the lender's title insurance
policy or attorney's opinion of title and abstract of title delivered to
the originator of such Mortgage Loan, and (3) such other matters to which
like properties are commonly subject which do not, individually or in the
aggregate, materially interfere with the benefits of the security intended
to be provided by the Mortgage, of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest, and had full
right and authority, subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Mortgage Loan
pursuant to this Agreement;
(vii) This Agreement creates a valid and continuing security
interest (as defined in the applicable Uniform Commercial Code (the
"UCC"), in the Mortgage Loans in favor of the Trustee, which security
interest is prior to all other liens, and is enforceable as such against
creditors of and purchasers from the Depositor;
(viii) The Mortgage Loans constitute "instruments" within the
meaning of the applicable UCC;
(ix) Other than the security interest granted to the Trustee
pursuant to this Agreement, the Depositor has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Mortgage
Loans. The Depositor has not authorized the filing of and is not aware of
any financing statement against the Depositor that includes a description
of the collateral covering the Mortgage Loans other than a financing
statement relating to the security interest granted to the Trustee
hereunder or that has been terminated. The Depositor is not aware of any
judgment or tax lien filings against the Depositor;
(x) None of the Mortgage Loans have any marks or notations
indicating that such Mortgage Loans have been pledged, assigned or
otherwise conveyed to any Person other than the Trustee; and
(xi) The Depositor has received all consents and approvals required
by the terms of the Mortgage Loans to convey the Mortgage Loans hereunder
to the Trustee.
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The foregoing representations made in this Section 2.03 shall survive the
termination of this Agreement and shall not be waived by any party hereto.
Section 2.04 Representations and Warranties of the Depositor and
the Seller as to the Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with respect
to the Mortgage Loans or each Mortgage Loan, as the case may be, as of the date
hereof or such other date set forth herein that as of the Closing Date:
(a) Immediately prior to the transfer and assignment contemplated herein,
the Depositor was the sole owner and holder of the Mortgage Loans. The Mortgage
Loans were not assigned or pledged by the Depositor and the Depositor had good
and marketable title thereto, and the Depositor had full right to transfer and
sell the Mortgage Loans to the Trustee free and clear of any encumbrance,
participation interest, lien, equity, pledge, claim or security interest and had
full right and authority subject to no interest or participation in, or
agreement with any other party to sell or otherwise transfer the Mortgage Loans.
(b) As of the Closing Date, the Depositor has transferred all right, title
and interest in the Mortgage Loans to the Trustee on behalf of the Trust.
(c) As of the Closing Date, the Depositor has not transferred the Mortgage
Loans to the Trustee on behalf of the Trust with any intent to hinder, delay or
defraud an of its creditors.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the respective Mortgage
Files to the Trustee or the Custodian and shall inure to the benefit of the
Trustee, notwithstanding any restrictive or qualified endorsement or assignment.
Section 2.05 Representations and Warranties of the Seller;
Discovery of Breach; Repurchase or Substitution of
Mortgage Loans.
(a) With respect to the MSMCI Mortgage Loans the Seller hereby makes the
representations and warranties contained in Section 3.01 of the MSMCI Purchase
Agreement to and for the benefit of the Depositor, the Trustee and the Trust
Fund.
The Seller hereby represents and warrants that no Mortgage Loan contains a
provision whereby the related mortgagor is permitted to convert the Mortgage
Rate from an adjustable rate to a fixed rate.
With respect to the FNBN Mortgage Loans the Seller hereby makes the
representations and warranties contained in Section 9.02 of the FNBN Purchase
Agreement (other than the representation contained in Section 9.02(b) of the
FNBN Purchase Agreement) to and for the benefit of the Depositor, the Trustee
and the Trust Fund. With respect to the FNBN Mortgage Loans the Seller hereby
represents and warrants to and for the benefit of the Depositor, the Trustee and
the Trust Fund that all payments due on or prior to the Cut-off Date for each
FNBN Mortgage Loan have been made as of the Closing Date, such FNBN Mortgage
Loan is not delinquent thirty (30) days or more in payment and has not been
dishonored; there are no
50
material defaults under the terms of such FNBN Mortgage Loan; the Seller has not
advanced funds, or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the Mortgaged Property subject to the
Mortgage, directly or indirectly, for the payment of any amount required by any
FNBN Mortgage Loan; as to each FNBN Mortgage Loan, there has been no more than
one thirty (30) day delinquency during the immediately preceding thirty-day
period. The Seller agrees to comply with the provisions of this Section 2.05 in
respect of a breach of any of such representations and warranties.
With respect to the Quicken Mortgage Loans, the Seller hereby makes the
representations and warranties contained in Section 9.02 of the Quicken Purchase
Agreement (other than the representation contained in Section 9.02(b) of the
Quicken Purchase Agreement) to and for the benefit of the Depositor, the Trustee
and the Trust Fund. With respect to the Quicken Mortgage Loans the Seller hereby
represents and warrants to and for the benefit of the Depositor, the Trustee and
the Trust Fund that all payments due on or prior to the Cut-off Date for each
Quicken Mortgage Loan have been made as of the Closing Date, such Quicken
Mortgage Loan is not delinquent thirty (30) days or more in payment and has not
been dishonored; there are no material defaults under the terms of such Quicken
Mortgage Loan; the Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds from a party other than the owner of the
Mortgaged Property subject to the Mortgage, directly or indirectly, for the
payment of any amount required by any Quicken Mortgage Loan; as to each Quicken
Mortgage Loan, there has been no more than one thirty (30) day delinquency
during the immediately preceding thirty-day period. The Seller agrees to comply
with the provisions of this Section 2.05 in respect of a breach of any of such
representations and warranties.
With respect to the Wachovia Serviced Mortgage Loans the Seller hereby
makes the representations and warranties contained in Section 3.02 of the
Wachovia Purchase Agreement (other than the representation contained in Section
3.02(d) of the Wachovia Purchase Agreement) to and for the benefit of the
Depositor, the Trustee and the Trust Fund. With respect to the Wachovia Serviced
Mortgage Loans the Seller hereby represents and warrants to and for the benefit
of the Depositor, the Trustee and the Trust Fund that all payments due on or
prior to the Cut-off Date for each Wachovia Serviced Mortgage Loan have been
made as of the Closing Date, such Wachovia Serviced Mortgage Loan is not
delinquent thirty (30) days or more in payment and has not been dishonored;
there are no material defaults under the terms of such Wachovia Serviced
Mortgage Loan; the Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds from a party other than the owner of the
Mortgaged Property subject to the Mortgage, directly or indirectly, for the
payment of any amount required by any Wachovia Serviced Mortgage Loan; as to
each Wachovia Serviced Mortgage Loan, there has been no more than one thirty
(30) day delinquency during the immediately preceding thirty-day period. The
Seller agrees to comply with the provisions of this Section 2.05 in respect of a
breach of any of such representations and warranties.
With respect to the WF Serviced Mortgage Loans originated by WF Servicer,
the Seller hereby makes the representations and warranties contained in Section
3.02 of the WF Purchase and Servicing Agreement, other than 3.02(b) with respect
to each of the WF Serviced Mortgage Loans originated by WF Servicer to and for
the benefit of the Depositor, the Trustee and the Trust Fund. The Seller agrees
to comply with the provisions of Section 3.03 of the WF Purchase and Servicing
Agreement in respect of a breach of any of such representations and warranties.
In
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addition, with respect to the WF Serviced Mortgage Loans originated by WF
Servicer, the Seller hereby represents and warrants that (i) each such Mortgage
Loan is a "qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code and (ii) there has been no more than one thirty (30) day delinquency on
such Mortgage Loan during the immediately preceding thirty-day period.
The Seller agrees to comply with the provisions of this Section 2.05 in
respect of a breach of any of such representations and warranties.
The Seller hereby represents and warrants to the Trustee with respect to
the Mortgage Loans as of the date hereof or such other date set forth herein
that as of the Closing Date:
(i) Each Mortgage Loan at origination complied in all material
respects with applicable predatory and abusive lending laws and
consummation of the transactions contemplated by this Agreement will not
involve the violation of any such laws.
(ii) All of the Mortgage Loans were originated in compliance with
all applicable laws, including, but not limited to, all applicable
anti-predatory and abusive lending laws.
(iii) None of the Mortgage Loans is covered by the Home Ownership
and Equity Protection Act of 1994 ("HOEPA").
(iv) None of the Mortgage Loans is a "high cost" loan as defined by
applicable predatory and abusive lending laws.
(v) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable, and with respect to the foregoing, the terms "High Cost Loan"
and "Covered Loan" have the meaning assigned to them in the then current
version of Standard & Poor's LEVELS(R), which is now Version 5.6c Glossary
Revised, Appendix E which is attached hereto as Exhibit Q (the "Glossary")
where (x) a "High Cost Loan" is each loan identified in the column
"Category under applicable anti-predatory lending law" of the table
entitled "Standard & Poor's High Cost Loan Categorization" in the Glossary
as each such loan is defined in the applicable anti-predatory lending law
of the State or jurisdiction specified in such table and (y) a "Covered
Loan" is each loan identified in the column "Category under applicable
anti-predatory lending law" of the table entitled "Standard & Poor's High
Covered Loan Categorization" in the Glossary as each such loan is defined
in the applicable anti-predatory lending law of the State or jurisdiction
specified in such table.
(vi) No Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is governed by the Georgia Fair Lending Act.
Upon discovery by the Depositor, the Seller or the related Originator or
receipt of written notice of any materially defective document in, or, following
the date of delivery to the Trustee of the Custodian's certifications as
required under the related Custodial Agreements, that a document is missing
from, a Trustee Mortgage File, or discovery by the Trustee, the Depositor, the
Seller or the related Originator of the breach by such Originator or Seller of
any representation or warranty under the related Purchase and Servicing
Agreement, as modified by
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the Acknowledgement, in the case of the Originator, or under this Agreement, in
the case of the Seller, in respect of any Mortgage Loan which materially
adversely affects the value of that Mortgage Loan or the interest therein of the
Certificateholders (a "Defective Mortgage Loan") (each of the Depositor, the
Seller and the related Originator hereby agreeing to give written notice thereof
to the Trustee and the other of such parties), the Trustee, or its designee,
shall promptly notify the Depositor and the Seller or the related Originator, as
applicable, in writing of such nonconforming or missing document or breach and
request that the Seller or related Originator deliver such missing document or
cure or cause the cure of such defect or breach within a period of time
specified in the related Purchase and Servicing Agreement, and if the Seller or
related Originator, as applicable, does not deliver such missing document or
cure such defect or breach in all material respects during such period, the
Trustee, shall enforce the obligations of the related Originator under the
related Purchase and Servicing Agreement, as modified by the Acknowledgement, or
the Seller under this Agreement, as applicable, and cause the related Originator
or the Seller, as the case may be, to repurchase that Mortgage Loan from the
Trust Fund at the Purchase Price on or prior to the Determination Date following
the expiration of such specified period (subject to Section 2.05(c) below);
provided, however, that, in connection with any such breach that could not
reasonably have been cured within such specified period (unless permitted a
greater period of time to cure under the related Purchase and Servicing
Agreement), subject to Section 2.05(c) below, if the related Originator or the
Seller, as applicable, shall have commenced to cure such breach within such
specified period, the related Originator or the Seller shall be permitted to
proceed thereafter diligently and expeditiously to cure the same within such
additional time as is reasonably necessary to cure such breach. To the extent
that the amount by which the Purchase Price (as defined in this Agreement)
exceeds the repurchase price payable by the related Originator under the related
Purchase and Servicing Agreement, including any costs and damages are incurred
by the Trust Fund as a result of any violation of any applicable federal, state,
or local predatory or abusive lending law arising from or in connection with the
origination of any Mortgage Loan repurchased by the related Originator or the
Seller, the payment of such excess shall be borne by the Seller. With respect to
a breach of a representation or warranty of a MILA Mortgage Loan by the related
Originator under the related Purchase and Servicing Agreement, if that
Originator fails to cure the breach or repurchase the affected Mortgage Loan
within the time period required by that Purchase and Servicing Agreement, the
Seller hereby agrees to honor that Originator's cure obligations. The Purchase
Price for the repurchased Mortgage Loan shall be deposited in the related
Distribution Account, and the Trustee, or its designee, upon receipt of written
certification from the Securities Administrator of such deposit, shall release
or cause the Custodian to release to the related Originator or the Seller, as
applicable, the related Trustee Mortgage File and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse,
representation or warranties, as either party shall furnish to it and as shall
be necessary to vest in such party any Mortgage Loan released pursuant hereto
and the Trustee, or its designee, shall have no further responsibility with
regard to such Trustee Mortgage File (it being understood that the Trustee shall
have no responsibility for determining the sufficiency of such assignment for
its intended purpose). If pursuant to the foregoing provisions the related
Originator or the Seller repurchases a Mortgage Loan that is a MERS Mortgage
Loan, the related Servicer shall cause MERS to designate on the MERS(R) System
the related Originator or the Seller, as applicable, as the beneficial holder of
such Mortgage Loan.
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In lieu of repurchasing any such Mortgage Loan as provided above, either
party may cause such Mortgage Loan to be removed from the Trust Fund (in which
case it shall become a Deleted Mortgage Loan) and substitute one or more
Replacement Mortgage Loans in the manner and subject to the limitations set
forth in Section 2.05(b) below. It is understood and agreed that the obligations
of the Originators and the Seller to cure or to repurchase (or to substitute
for) any related Mortgage Loan as to which a document is missing, a material
defect in a constituent document exists or as to which such a breach has
occurred and is continuing shall constitute the sole remedy against the such
party respecting such omission, defect or breach available to the Trustee on
behalf of the Certificateholders.
(b) Any substitution of Replacement Mortgage Loans for Deleted Mortgage
Loans made pursuant to Section 2.05(a) above must be effected prior to the last
Business Day that is within two years after the Closing Date. As to any Deleted
Mortgage Loan for which the related Originator or the Seller substitutes a
Replacement Mortgage Loan or Loans, such substitution shall be effected by
delivering to the Custodian, on behalf of the Trustee, for such Replacement
Mortgage Loan or Loans, the Mortgage Note, the Mortgage, any related assignment
thereof and the Acknowledgement to the Trustee, and such other documents and
agreements, with all necessary endorsements thereon, together with an Officers'
Certificate stating that each such Replacement Mortgage Loan satisfies the
definition thereof and specifying the Substitution Adjustment Amount (as
described below), if any, in connection with such substitution. Monthly Payments
due with respect to Replacement Mortgage Loans in the month of substitution
shall not be included as part of the Trust Fund and shall be retained by the
related Originator or the Seller, as applicable. For the month of substitution,
distributions to the Certificateholders shall reflect the collections and
recoveries in respect of such Deleted Mortgage in the Due Period preceding the
month of substitution and the related Originator or the Seller, as applicable,
shall thereafter be entitled to retain all amounts subsequently received in
respect of such Deleted Mortgage Loan. Upon such substitution, such Replacement
Mortgage Loan shall constitute part of the Trust Fund and shall be subject in
all respects to the terms of this Agreement and the related Purchase and
Servicing Agreement, as modified by the related Acknowledgement, including all
representations and warranties thereof included in such Purchase and Servicing
Agreement, as modified by the Acknowledgement, in each case as of the date of
substitution.
For any month in which an Originator or the Seller substitutes one or more
Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the related
Servicer shall determine the excess (each, a "Substitution Adjustment Amount"),
if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans
exceeds the aggregate Stated Principal Balance of the Replacement Mortgage Loans
replacing such Deleted Mortgage Loans, together with one month's interest on
such excess amount at the applicable Net Mortgage Rate. On the date of such
substitution, the related Originator or Seller, as applicable, shall deliver or
cause to be delivered to the related Servicer for deposit in the related
Custodial Account an amount equal to the related Substitution Adjustment Amount,
if any, and the Custodian, on behalf of the Trustee, upon receipt of the related
Replacement Mortgage Loan or Loans and certification by such Servicer of such
deposit, shall release to the related Originator or the Seller, as applicable,
the related Trustee Mortgage File or Files and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as the
related Originator or Seller shall deliver to it and as shall be necessary to
vest therein any Deleted Mortgage Loan released pursuant hereto.
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In addition, the related Originator or the Seller, as applicable, shall
obtain at its own expense and deliver to the Trustee and the Securities
Administrator an Opinion of Counsel to the effect that such substitution (either
specifically or as a class of transactions) shall not cause an Adverse REMIC
Event. If such Opinion of Counsel cannot be delivered, then such substitution
may only be effected at such time as the required Opinion of Counsel can be
given.
(c) Upon discovery by the related Originator, the Seller, the Depositor or
the Trustee that any Mortgage Loan does not constitute a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code, the party discovering such
fact shall within two Business Days give written notice thereof to the other
parties. In connection therewith, the applicable party shall repurchase or,
subject to the limitations set forth in Section 2.05(b), substitute one or more
Replacement Mortgage Loans for the affected Mortgage Loan within 90 days of the
earlier of discovery or receipt of such notice with respect to such affected
Mortgage Loan. Any such repurchase or substitution shall be made in the same
manner as set forth in Section 2.05(a) above and/or in accordance with this
Section 2.05(c). The Trustee shall re-convey to the related Originator or the
Seller, as applicable, the Mortgage Loan to be released pursuant hereto in the
same manner, and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty.
Section 2.06 Grant Clause.
(a) It is intended that the conveyance of the Depositor's right, title and
interest in and to property constituting the Trust Fund pursuant to this
Agreement shall constitute, and shall be construed as, a sale of such property
and not a grant of a security interest to secure a loan. However, if such
conveyance is deemed to be in respect of a loan, it is intended that: (1) the
rights and obligations of the parties shall be established pursuant to the terms
of this Agreement; (2) the Depositor hereby grants to the Trustee for the
benefit of the Holders of the Certificates a first priority security interest in
all of the Depositor's right, title and interest in, to and under, whether now
owned or hereafter acquired, the Trust Fund and all proceeds of any and all
property constituting the Trust Fund to secure payment of the Certificates; and
(3) this Agreement shall constitute a security agreement under applicable law.
If such conveyance is deemed to be in respect of a loan and the trust created by
this Agreement terminates prior to the satisfaction of the claims of any Person
holding any Certificate, the security interest created hereby shall continue in
full force and effect and the Trustee shall be deemed to be the collateral agent
for the benefit of such Person, and all proceeds shall be distributed as herein
provided.
(b) The Depositor shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans and
the other property described above, such security interest would be deemed to be
a perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement. The Depositor will, at
its own expense, make all initial filings on or about the Closing Date and shall
forward a copy of such filing or filings to the Trustee. Without limiting the
generality of the foregoing, the Depositor shall prepare and forward for filing,
or shall cause to be forwarded for filing, at the expense of the Depositor, all
filings necessary to maintain the effectiveness of any original filings
necessary under the relevant UCC to perfect the Trustee's security interest in
or lien on the Mortgage Loans, including without limitation (x) continuation
statements, and (y) such other
55
statements as may be occasioned by (1) any change of name of an Originator, the
Depositor or the Trustee, (2) any change of location of the place of business or
the chief executive office of the Seller or the Depositor, (3) any transfer of
any interest of an Originator or the Depositor in any Mortgage Loan or (4) any
change under the relevant UCC or other applicable laws. Neither the Originators
nor the Depositor shall organize under the law of any jurisdiction other than
the State under which each is organized as of the Closing Date (whether changing
its jurisdiction of organization or organizing under an additional jurisdiction)
without giving 30 days prior written notice of such action to its immediate and
intermediate transferee, including the Trustee. Before effecting such change,
any Originator or the Depositor proposing to change its jurisdiction of
organization shall prepare and file in the appropriate filing office any
financing statements or other statements necessary to continue the perfection of
the interests of its immediate and intermediate transferees, including the
Trustee, in the Mortgage Loans. In connection with the transactions contemplated
by this Agreement, each of the Originators and the Depositor authorizes its
immediate or intermediate transferee (but not the Trustee) to file in any filing
office any initial financing statements, any amendments to financing statements,
any continuation statements, or any other statements or filings described in
this paragraph (b).
ARTICLE III
THE CERTIFICATES
Section 3.01 The Certificates.
(a) The Certificates shall be issuable in registered form only and shall
be securities governed by Article 8 of the New York Uniform Commercial Code. The
Book-Entry Certificates will be evidenced by one or more certificates,
beneficial ownership of which will be held in the dollar denominations in
Certificate Balance, or Notional Amount, as applicable, or in the Percentage
Interests, specified herein. Each Class of Certificates will be issued in the
minimum denominations and integral multiples thereof of the initial Certificate
Balance (or Notional Amount) specified in the Preliminary Statement hereto.
(b) The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer of the Trustee or of the
Securities Administrator on the Trustee's behalf. Each Certificate shall, on
original issue, be authenticated by the Authenticating Agent upon the order of
the Depositor upon receipt by the Trustee of the Trustee Mortgage Files
described in Section 2.01. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Authenticating Agent, by
manual signature, and such certification upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates executed
by or on behalf of the Trustee to the Authenticating Agent for authentication
and the Authenticating Agent shall authenticate and deliver such Certificates as
in this Agreement provided and not otherwise.
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(c) The Class C, Class 1-B-4, Class B-4, Class 1-B-5, Class B-5, Class
1-B-6, Class B-6, Class P-1, Class P-2 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.
Section 3.03 Transfer and Exchange of Certificates.
(a) A Certificate (other than Book-Entry Certificates which shall be
subject to Section 3.09 hereof) may be transferred by the Holder thereof only
upon presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall be
satisfactory to the Certificate Registrar. Upon the transfer of any Certificate
in accordance with the preceding sentence, the Securities Administrator on
behalf of the Trustee shall execute, and the Authenticating Agent shall
authenticate and deliver to the transferee, one or more new Certificates of the
same Class and evidencing, in the aggregate, the same aggregate Certificate
Balance (or Notional Amount) as the Certificate being transferred. No service
charge shall be made to a Certificateholder for any registration of transfer of
Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any registration of transfer of Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any number of
new Certificates of the same Class, in authorized denominations, representing in
the aggregate the same Certificate Balance (or Notional Amount) as the
Certificate surrendered, upon surrender of the Certificate to be exchanged at
the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
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payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Securities Administrator on
behalf of the Trustee shall execute, and the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate acknowledges
the restrictions on the transfer of such Certificate set forth thereon and
agrees that it will transfer such a Certificate only as provided herein.
The following restrictions shall apply with respect to the transfer and
registration of transfer of a Restricted Certificate to a transferee that takes
delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is (x) to the Depositor
or an affiliate (as defined in Rule 405 under the 0000 Xxx) of the
Depositor or (y) being made to a "qualified institutional buyer" (a "QIB")
as defined in Rule 144A under the Securities Act of 1933, as amended (the
"Act") by a transferor that has provided the Certificate Registrar with a
certificate in the form of Exhibit H hereto; and
(ii) The Certificate Registrar shall register the transfer of a
Restricted Certificate if the requested transfer is being made to an
"accredited investor" under Rule 501(a)(1), (2), (3) or (7) under the Act,
or to any Person all of the equity owners in which are such accredited
investors, by a transferor who furnishes to the Certificate Registrar a
letter of the transferee substantially in the form of Exhibit I hereto.
(d) No transfer of an ERISA-Restricted Certificate in the form of a
Definitive Certificate shall be made to any Person or shall be effective unless
the Certificate Registrar, on behalf of the Trustee, has received (A) a
certificate substantially in the form of Exhibit J hereto (or Exhibit B, in the
case of a Residual Certificate) from such transferee or (B) an Opinion of
Counsel satisfactory to the Certificate Registrar and the Securities
Administrator to the effect that the purchase and holding of such a Certificate
will not constitute or result in any nonexempt prohibited transactions under
Title I of ERISA or Section 4975 of the Code and will not subject the
Certificate Registrar, the Trustee, the Master Servicer, the Depositor or the
Securities Administrator to any obligation in addition to those undertaken in
the Agreement; provided, however, that the Certificate Registrar will not
require such certificate or opinion in the event that, as a result of a change
of law or otherwise, counsel satisfactory to the Certificate Registrar has
rendered an opinion to the effect that the purchase and holding of an
ERISA-Restricted Certificate by a Plan or a Person that is purchasing or holding
such a Certificate with the assets of a Plan will not constitute or result in a
prohibited transaction under Title I of ERISA or Section 4975 of the Code and
will not subject the Certificate Registrar, the Trustee, the Master Servicer,
the Depositor or the Securities Administrator to any obligation in addition to
those undertaken in this Agreement. Each Transferee of an ERISA-Restricted
Certificate that is a Book-Entry Certificate shall be deemed to have made the
appropriate representation set forth in paragraph 2 and the representation set
forth in paragraph 3 of Exhibit J. The preparation and
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delivery of the certificate and opinions referred to above shall not be an
expense of the Trust Fund, the Certificate Registrar, the Trustee, the Master
Servicer, the Depositor or the Securities Administrator.
Notwithstanding the foregoing, no opinion or certificate shall be required
for the initial issuance of the ERISA-Restricted Certificates to the
Underwriter. The Certificate Registrar shall have no obligation to monitor
transfers of Book-Entry Certificates that are ERISA-Restricted Certificates and
shall have no liability for transfers of such Certificates in violation of the
transfer restrictions. The Certificate Registrar shall be under no liability to
any Person for any registration of transfer of any ERISA-Restricted Certificate
that is in fact not permitted by this Section 3.03(d) and neither the Securities
Administrator nor the Paying Agent shall have any liability for making any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the transfer was registered by the Certificate Registrar in accordance
with the foregoing requirements. The Securities Administrator, on behalf of the
Trustee, shall be entitled, but not obligated, to recover from any Holder of any
ERISA-Restricted Certificate that was in fact a Plan or a Person acting on
behalf of a Plan any payments made on such ERISA-Restricted Certificate at and
after such time. Any such payments so recovered by the Securities Administrator,
on behalf of the Trustee, shall be paid and delivered by the Securities
Administrator, on behalf of the Trustee, to the last preceding Holder of such
Certificate that is not such a Plan or Person acting on behalf of a Plan.
(e) As a condition of the registration of transfer or exchange of any
Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith; provided, however, that the Certificate Registrar shall have no
obligation to require such payment or to determine whether or not any such tax
or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of a Certificate.
(f) Notwithstanding anything to the contrary contained herein, no Residual
Certificate may be owned, pledged or transferred, directly or indirectly, by or
to (i) a Disqualified Organization or (ii) an individual, corporation or
partnership or other person unless such person (A) is not a Non-U.S. Person or
(B) is a Non-U.S. Person that holds a Residual Certificate in connection with
the conduct of a trade or business within the United States and has furnished
the transferor and the Certificate Registrar with an effective Internal Revenue
Service Form W-8ECI or successor form at the time and in the manner required by
the Code (any such person who is not covered by clause (A) or (B) above is
referred to herein as a "Non-permitted Foreign Holder").
Prior to and as a condition of the registration of any transfer, sale or
other disposition of a Residual Certificate, the proposed transferee shall
deliver to the Certificate Registrar an affidavit in substantially the form
attached hereto as Exhibit B representing and warranting, among other things,
that such transferee is neither a Disqualified Organization, an agent or nominee
acting on behalf of a Disqualified Organization, nor a Non-permitted Foreign
Holder (any such transferee, a "Permitted Transferee"), and the proposed
transferor shall deliver to the Trustee and the Certificate Registrar an
affidavit in substantially the form attached hereto as Exhibit C. In
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addition, the Trustee or the Certificate Registrar may (but shall have no
obligation to) require, prior to and as a condition of any such transfer, the
delivery by the proposed transferee of an Opinion of Counsel, addressed to the
Trustee and the Certificate Registrar, that such proposed transferee or, if the
proposed transferee is an agent or nominee, the proposed beneficial owner, is
not a Disqualified Organization, agent or nominee thereof, or a Non-permitted
Foreign Holder. Notwithstanding the registration in the Certificate Register of
any transfer, sale, or other disposition of a Residual Certificate to a
Disqualified Organization, an agent or nominee thereof, or Non-permitted Foreign
Holder, such registration shall be deemed to be of no legal force or effect
whatsoever and such Disqualified Organization, agent or nominee thereof, or
Non-permitted Foreign Holder shall not be deemed to be a Certificateholder for
any purpose hereunder, including, but not limited to, the receipt of
distributions on such Residual Certificate. The Depositor and the Certificate
Registrar shall be under no liability to any Person for any registration or
transfer of a Residual Certificate to a Disqualified Organization, agent or
nominee thereof or Non-permitted Foreign Holder or for the Paying Agent making
any payments due on such Residual Certificate to the Holder thereof or for
taking any other action with respect to such Holder under the provisions of the
Agreement, so long as the transfer was effected in accordance with this Section
3.03(f), unless the Certificate Registrar shall have actual knowledge at the
time of such transfer or the time of such payment or other action that the
transferee is a Disqualified Organization, or an agent or nominee thereof, or
Non-permitted Foreign Holder. The Certificate Registrar shall be entitled to
recover from any Holder of a Residual Certificate that was a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder at the
time it became a Holder or any subsequent time it became a Disqualified
Organization, agent or nominee thereof, or Non-permitted Foreign Holder, all
payments made on such Residual Certificate at and after either such times (and
all costs and expenses, including but not limited to attorneys' fees, incurred
in connection therewith). Any payment (not including any such costs and
expenses) so recovered by the Certificate Registrar shall be paid and delivered
to the last preceding Holder of such Residual Certificate.
If any purported transferee shall become a registered Holder of a Residual
Certificate in violation of the provisions of this Section 3.03(f), then upon
receipt of written notice to the Trustee or the Certificate Registrar that the
registration of transfer of such Residual Certificate was not in fact permitted
by this Section 3.03(f), the last preceding Permitted Transferee shall be
restored to all rights as Holder thereof retroactive to the date of such
registration of transfer of such Residual Certificate. The Depositor, the
Certificate Registrar and the Trustee shall be under no liability to any Person
for any registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 3.03(f), or for the Paying Agent making any payment
due on such Certificate to the registered Holder thereof or for taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the transfer was registered upon receipt of the affidavit described in
the preceding paragraph of this Section 3.03(f).
(g) Each Holder or Certificate Owner of a Restricted Certificate,
ERISA-Restricted Certificate or Residual Certificate, or an interest therein, by
such Holder's or Owner's acceptance thereof, shall be deemed for all purposes to
have consented to the provisions of this section.
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Section 3.04 Cancellation of Certificates.
Any Certificate surrendered for registration of transfer or exchange shall
be cancelled and retained in accordance with normal retention policies with
respect to cancelled certificates maintained by the Certificate Registrar.
Section 3.05 Replacement of Certificates.
If (i) any Certificate is mutilated and is surrendered to the Trustee or
the Certificate Registrar or (ii) the Certificate Registrar receives evidence to
its satisfaction of the destruction, loss or theft of any Certificate, and there
is delivered to the Trustee and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Depositor, the Trustee or the Certificate Registrar
that such destroyed, lost or stolen Certificate has been acquired by a protected
purchaser, the Securities Administrator on behalf of the Trustee shall execute
and the Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and Certificate Balance. Upon the issuance of any new
Certificate under this Section 3.05, the Trustee, the Depositor or the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee, the Depositor or
the Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section 3.05 shall constitute complete and indefeasible
evidence of ownership in the applicable Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
If after the delivery of such new Certificate, a protected purchaser of
the original Certificate in lieu of which such new Certificate was issued
presents for payment such original Certificate, the Depositor, the Certificate
Registrar and the Trustee or any agent shall be entitled to recover such new
Certificate from the Person to whom it was delivered or any Person taking
therefrom, except a protected purchaser, and shall be entitled to recover upon
the security or indemnity provided therefor to the extent of any loss, damage,
cost or expenses incurred by the Depositor, the Certificate Registrar, the
Trustee or any agent in connection therewith.
Section 3.06 Persons Deemed Owners.
Subject to the provisions of Section 3.09 with respect to Book-Entry
Certificates, the Depositor, the Master Servicer, the Securities Administrator,
the Trustee, the Certificate Registrar, the Paying Agent and any agent of any of
them shall treat the Person in whose name any Certificate is registered upon the
books of the Certificate Registrar as the owner of such Certificate for the
purpose of receiving distributions pursuant to Sections 5.01 and 5.02 and for
all other purposes whatsoever, and neither the Depositor, the Master Servicer,
the Securities Administrator, the Trustee, the Certificate Registrar, the Paying
Agent nor any agent of any of them shall be affected by notice to the contrary.
Section 3.07 Temporary Certificates.
(a) Pending the preparation of definitive Certificates, upon the order of
the Depositor, the Securities Administrator on behalf of the Trustee shall
execute and the Authenticating Agent
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shall authenticate and deliver temporary Certificates that are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Certificates in lieu
of which they are issued and with such variations as the authorized officers
executing such Certificates may determine, as evidenced by their execution of
such Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Certificate Registrar without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Securities Administrator on behalf of the Trustee shall
execute and the Authenticating Agent shall authenticate and deliver in exchange
therefor a like aggregate Certificate Balance of definitive Certificates of the
same Class in the authorized denominations. Until so exchanged, the temporary
Certificates shall in all respects be entitled to the same benefits under this
Agreement as definitive Certificates of the same Class.
Section 3.08 Appointment of Paying Agent.
The Trustee may appoint a Paying Agent (which may be the Trustee) for the
purpose of making distributions to the Certificateholders hereunder. The
Securities Administrator is hereby appointed as the initial Paying Agent. The
Trustee shall cause any Paying Agent, other than the Securities Administrator,
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee that such Paying Agent will hold all sums held by
it for the payment to the Certificateholders in an Eligible Account (which shall
be the Distribution Account) in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to the Certificateholders. All
funds remitted by the Securities Administrator to any such Paying Agent for the
purpose of making distributions shall be paid to the Certificateholders on each
Distribution Date and any amounts not so paid shall be returned on such
Distribution Date to the Securities Administrator. If the Paying Agent is not
the Trustee or the Securities Administrator, the Securities Administrator shall
cause to be remitted to the Paying Agent on or before the Business Day prior to
each Distribution Date, by wire transfer in immediately available funds, the
funds to be distributed on such Distribution Date. Any Paying Agent shall be
either a bank or trust company or otherwise authorized under law to exercise
corporate trust powers.
Section 3.09 Book-Entry Certificates.
(a) Each Class of Book-Entry Certificates, upon original issuance, shall
be issued in the form of one or more typewritten Certificates representing the
Book-Entry Certificates. The Book-Entry Certificates shall initially be
registered on the Certificate Register in the name of the nominee of the
Clearing Agency, and no Certificate Owner will receive a definitive certificate
representing such Certificate Owner's interest in the Book-Entry Certificates,
except as provided in Section 3.09(c). Unless Definitive Certificates have been
issued to Certificate Owners of Book-Entry Certificates pursuant to Section
3.09(c):
(i) the provisions of this Section 3.09 shall be in full force and
effect;
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(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
Certificate Registrar in writing that the Clearing Agency is no longer willing
or able to discharge properly its responsibilities with respect to the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor satisfactory to the Depositor and the Certificate Registrar or, (ii)
after the occurrence of an Event of Default, Certificate Owners representing
beneficial interests aggregating not less than 50% of the Class Principal
Balance of a Class of Book-Entry Certificates advise the Paying Agent and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Certificate Registrar shall notify the Clearing Agency to
effect notification to all Certificate Owners, through the Clearing Agency, of
the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of the Book-Entry Certificates by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency for
registration, the Certificate Registrar shall issue the Definitive Certificates.
Neither the Depositor, the Certificate Registrar nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates all references herein to obligations imposed upon or to
be performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Certificate Registrar, to the extent applicable, with respect
to such Definitive Certificates and the Certificate Registrar shall recognize
the holders of the Definitive Certificates as Certificateholders hereunder.
Notwithstanding the foregoing, the Certificate Registrar, upon the instruction
of the Depositor,
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shall have the right to issue Definitive Certificates on the Closing Date in
connection with credit enhancement programs.
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01 Custodial Accounts; Distribution Account.
(a) On or prior to the Closing Date, the Master Servicer shall have caused
each Servicer to establish and maintain one or more Custodial Accounts, as
provided in the related Purchase and Servicing Agreement, into which all
Scheduled Payments and unscheduled payments with respect to the related Mortgage
Loans, net of any deductions or reimbursements permitted under the related
Purchase and Servicing Agreement, shall be deposited. On each Distribution
Account Deposit Date, the Servicers shall remit to the Securities Administrator
for deposit into the Distribution Account, all amounts so required to be
deposited into such account in accordance with the terms of the related Purchase
and Servicing Agreements.
(b) The Securities Administrator, as Paying Agent for the Trustee, shall
establish and maintain an Eligible Account entitled "Distribution Account of
Deutsche Bank National Trust Company, as Trustee for the benefit of Xxxxxx
Xxxxxxx Mortgage Loan Trust 2005-9AR, Holders of Mortgage Pass-Through
Certificates." The Securities Administrator shall, promptly upon receipt from
the Servicers on each related Distribution Account Deposit Date, deposit into
the Distribution Account and retain on deposit until the related Distribution
Date the following amounts:
(i) the aggregate of collections with respect to the Mortgage Loans
remitted by the Servicers from the related Custodial Accounts in
accordance with the Purchase and Servicing Agreements;
(ii) any amounts required to be deposited by the Master Servicer
with respect to the Mortgage Loans for the related Due Period pursuant to
this Agreement, including the amount of any Advances or Compensating
Interest Payments with respect to the Mortgage Loans not paid by the
Servicers; and
(iii) any other amounts so required to be deposited in the
Distribution Account in the related Due Period pursuant to this Agreement.
(c) In the event the Master Servicer or a Servicer has remitted in error
to the Distribution Account any amount not required to be remitted in accordance
with the definition of Available Funds, it may at any time direct the Securities
Administrator to withdraw such amount from the Distribution Account for
repayment to the Master Servicer or Servicer, as applicable, by delivery of an
Officer's Certificate to the Securities Administrator and the Trustee which
describes the amount deposited in error.
(d) On each Distribution Date and Initial Optional Purchase Date, the
Securities Administrator, as Paying Agent, shall withdraw from funds available
in the Distribution Account and distribute the Available Funds to the
Certificateholders and any other parties entitled thereto
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in the amounts and priorities set forth in Section 5.02. The Securities
Administrator may from time to time withdraw from the Distribution Account and
pay the Master Servicer, the Trustee, the Custodians, the Securities
Administrator or any Servicer any amounts permitted to be paid or reimbursed to
such Person from funds in the Distribution Account pursuant to this Agreement,
any Purchase and Servicing Agreement or any Custodial Agreement.
(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 or any of its Affiliates, or is managed or advised
by the Securities Administrator or any Affiliate, then such Permitted Investment
shall mature not later than such applicable Distribution Date) and any such
Permitted Investment shall not be sold or disposed of prior to its maturity. All
such Permitted Investments shall be made in the name of the Trustee (in its
capacity as such) or its nominee. All income and gain realized from any
Permitted Investment of amounts on deposit in the Distribution Account shall be
for the benefit of the Securities Administrator, as additional compensation for
its duties hereunder, and shall be subject to its withdrawal or order from time
to time, and shall not be part of the Trust Fund; provided, however, that if
Xxxxx Fargo Bank, National Association is no longer the Master Servicer and the
Securities Administrator, any such income and gain shall be used to pay the
successor Master Servicer and the successor Securities Administrator, the Master
Servicer Compensation and the Securities Administrator Compensation,
respectively. The amount of any losses incurred in respect of any such
investments shall be deposited in such Distribution Account by the Securities
Administrator out of its own funds, without any right of reimbursement therefor,
immediately as realized.
Section 4.02 Permitted Withdrawals from the Custodial Accounts and
the Distribution Account.
(a) Each Servicer may from time to time make withdrawals from its
Custodial Account for the following purposes:
(i) to reimburse itself for unreimbursed Advances made by it, such
right of reimbursement pursuant to this subclause (i) being limited to
amounts received on the Mortgage Loan(s) in respect of which any such
Advance was made;
(ii) to reimburse itself for any Nonrecoverable Advance previously
made by it;
(iii) to reimburse itself for unreimbursed Servicer Advances, each
Servicer's right to reimbursement pursuant to this clause (a) with respect
to any Mortgage Loan being limited to amounts received on such Mortgage
Loan(s) which represent late recoveries of the payments for which such
advances were made pursuant to the related Purchase and Servicing
Agreement;
(iv) to reimburse itself for expenses incurred by it and
reimbursable pursuant to the related Purchase and Servicing Agreement; and
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(v) to withdraw any amount deposited in the Custodial Account and
not required to be deposited therein.
To the extent required by the related Purchase and Servicing Agreement
each Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from its
Custodial Account pursuant to such subclauses (i), (ii), (iii), (iv) and (v).
Prior to making any withdrawal from its Custodial Account pursuant to subclause
(ii), the related Servicer shall deliver to the Master Servicer an Officer's
Certificate of a Servicing Officer indicating the amount of any previous Advance
determined by the Servicer to be a Nonrecoverable Advance and identifying the
related Mortgage Loans(s), and their respective portions of such Nonrecoverable
Advance.
(b) The Securities Administrator shall withdraw funds from the
Distribution Account for distributions to Certificateholders in the manner
specified in this Agreement (and to withhold from the amounts so withdrawn, the
amount of any taxes that it is authorized to withhold pursuant to Section
10.01). In addition, the Securities Administrator may from time to time make
withdrawals from the Distribution Account for the following purposes:
(i) to pay all costs and expenses described in clause (e) of the
definition of "Available Funds" and in the sixth bullet of clause (1) of
the definition of "Available Distribution Amount";
(ii) (x) for so long as Xxxxx Fargo Bank, National Association is
the Master Servicer and the Securities Administrator, to pay to the Master
Servicer the investment earnings on the Distribution Account as its
compensation for the related Distribution Date and (y) thereafter,
concurrently, to the Master Servicer and the Securities Administrator, the
Master Servicer Compensation and the Securities Administrator
Compensation, respectively;
(iii) to withdraw and return to the Master Servicer any amount
deposited in the Distribution Account and not required to be deposited
therein; and
(iv) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 7.01 hereof.
(v) [Reserved].
Section 4.03 [Reserved].
Section 4.04 [Reserved].
Section 4.05 Reports to Trustee and Certificateholders.
On each Distribution Date, the Securities Administrator shall have
prepared and shall make available to the Trustee, the Depositor, the Rating
Agencies and each Certificateholder a written report setting forth the following
information (on the basis of Mortgage Loan level information obtained from the
Master Servicer and the Servicers):
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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 Class Interest Shortfall and the related
accrued interest thereon, with respect to each Class of Certificates;
(e) the Class Principal Balance of each Class of Certificates after giving
effect to the distribution of principal on that Distribution Date;
(f) the aggregate Stated Principal Balance of the Mortgage Loans in each
Loan Group and in each Aggregate Loan Group at the end of the related Prepayment
Period, and the applicable Weighted Average Net Mortgage Rate of each Loan
Group, each Aggregate Loan Group and the Mortgage Pool at the beginning of the
related Due Period;
(g) the Senior Percentage and the Subordinated Percentage for each Loan
Group and for each Aggregate Loan Group for the following Distribution Date;
(h) the Senior Prepayment Percentage and Subordinate Prepayment Percentage
for each Loan Group for the following Distribution Date;
(i) in the aggregate and with respect to each Loan Group, the amount of
the Servicing Fee paid to or retained by the Master Servicer and by each
Servicer, respectively, and in the aggregate with respect to each Loan Group;
(j) in the aggregate and with respect to each Loan Group, the amount of
Monthly Advances for the related Due Period;
(k) in the aggregate and with respect to each Loan Group, determined by
use of the MBA Method, 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 Loan Group, the total number
and principal balance of any REO properties as of the close of business on the
last day of the preceding Due Period;
(m) in the aggregate and with respect to each Loan Group, the amount of
Realized Losses incurred during the preceding calendar month;
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(n) in the aggregate and with respect to each Loan Group, the cumulative
amount of Realized Losses incurred since the Closing Date;
(o) the Realized Losses, if any, allocated to each Class of Certificates
on that Distribution Date;
(p) the Class Principal Balance of each Class of Certificates after giving
effect to the distribution of principal on the Distribution Date;
(q) the Special Hazard Loss Coverage Amount, the Fraud Loss Coverage
Amount and the Bankruptcy Loss Coverage Amount, in each case as of the related
Determination Date;
(r) the Pass-Through Rate for each Class of Certificates for that
Distribution Date;
(s) the amount of any Transfer Payment Received paid to an
Undercollateralized Group or Transfer Payment Made by an Overcollateralized
Group pursuant to Section 5.08 hereof; and the amount received by the Securities
Administrator pursuant to each Corridor Contract from the Corridor Contract
Counterparty with respect to that Distribution Date;
(t) the amount received by the Securities Administrator pursuant to each
Corridor Contract from the Corridor Contract Counterparty with respect to that
Distribution Date; and
(u) the total amount of Prepayment Penalties collected and due to the
Trust Fund, as reported by the Servicers.
The Securities Administrator shall make such reports available each month
via its website at xxxx://xxx.xxxxxxx.xxx. Assistance in using the website may
be obtained by calling the Securities Administrator's customer service desk at
(000) 000-0000. Certificateholders and other parties that are unable to use the
website are entitled to have a paper copy mailed to them via first class mail by
contacting the Securities Administrator and indicating such. In preparing or
furnishing the foregoing reports, the Securities Administrator shall be entitled
to rely conclusively on the accuracy of the information or data regarding the
Mortgage Loans and the related REO Properties that has been provided to the
Securities Administrator by the Master Servicer and the Servicers, and neither
the Trustee nor the Securities Administrator shall be obligated to verify,
recompute, reconcile or recalculate any such information or data.
Upon the reasonable advance written request of any Certificateholder that
is a savings and loan, bank or insurance company, which request, if received by
the Trustee or any agent thereof, shall be promptly forwarded to the Securities
Administrator, the Securities Administrator shall provide, or cause to be
provided, (or, to the extent that such information or documentation is not
required to be provided by a Servicer under the applicable Purchase and
Servicing Agreement, shall use reasonable efforts to obtain such information and
documentation from such Servicer, and provide) to such Certificateholders such
reports and access to information and documentation regarding the Mortgage Loans
as such Certificateholders may reasonably deem necessary to comply with
applicable regulations of the Office of Thrift Supervision or its successor or
other regulatory authorities with respect to an investment in the Certificates;
provided, however, that the Securities Administrator shall be entitled to be
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reimbursed by such Certificateholders for the Securities Administrator's actual
expenses incurred in providing such reports and access.
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01 Distributions Generally.
(a) Subject to Section 7.01 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator or the
Paying Agent shall make all distributions in accordance with this Article V.
Such distributions shall be made by check mailed to each Certificateholder's
address as it appears on the Certificate Register of the Certificate Registrar
or, upon written request made to the Securities Administrator at least five
Business Days prior to the related Record Date by any Certificateholder owning
an aggregate initial Certificate Balance of at least $1,000,000, or in the case
of a Class of Notional Amount Certificates or Residual Certificate, a Percentage
Interest of not less than 100%, by wire transfer in immediately available funds
to an account specified in the request and at the expense of such
Certificateholder; provided, however, that the final distribution in respect of
any Certificate shall be made only upon presentation and surrender of such
Certificate at the Certificate Registrar's Corporate Trust Office; provided,
further, that the foregoing provisions shall not apply to any Class of
Certificates as long as such Certificate remains a Book-Entry Certificate in
which case all payments made shall be made through the Clearing Agency and its
Clearing Agency Participants. Notwithstanding the reduction of the Class
Principal Balance of any Class of Certificates to zero, such Class will be
outstanding hereunder (solely for the purpose of receiving distributions and not
for any other purpose) until the termination of the respective obligations and
responsibilities of the Depositor, the Master Servicer, the Securities
Administrator and the Trustee hereunder in accordance with Article VII. Wire
transfers will be made at the expense of the Holder requesting such wire
transfer by deducting a wire transfer fee from the related distribution.
Notwithstanding such final payment of principal of any of the Certificates, each
Residual Certificate will remain outstanding until the termination of each REMIC
and the payment in full of all other amounts due with respect to the Residual
Certificates and at such time such final payment in retirement of any Residual
Certificate will be made only upon presentation and surrender of such
Certificate at the Certificate Registrar's Corporate Trust Office. If any
payment required to be made on the Certificates is to be made on a day that is
not a Business Day, then such payment will be made on the next succeeding
Business Day.
(b) All distributions or allocations made with respect to the
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in proportion
to their respective initial Class Principal Balances or initial Class Notional
Amounts (or Percentage Interests).
Section 5.02 Priorities of Distribution.
(a) (1) With respect to Available Funds for Loan Group 1, on each
Distribution Date, the Securities Administrator shall withdraw the Available
Funds from the funds available therefor in the Distribution Account and apply
such funds to distributions on the specified
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Classes of Group 1 Senior Certificates in the following order and priority and,
in each case, to the extent of Available Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 1 Senior
Certificates, an amount allocable to interest equal to the related Class
Optimal Interest Distribution Amount, any shortfall being allocated among
such Classes in proportion to the amount of the Class Optimal Interest
Distribution Amount that would have been distributed in the absence of
such shortfall; provided that prior to an Accrual Termination Date, the
related Accrual Amount shall be distributed as provided in Section
5.02(a)(1)(iii);
(iii) the Accrual Amount shall be distributed in accordance with the
Accretion Direction Rule;
(iv) to each Class of Group 1 Senior Certificates, concurrently as
follows:
(x) [Reserved]; and
(y) on each Distribution Date prior to the Senior Credit
Support Depletion Date the related Principal Amount up to the amount
of the Senior Principal Distribution Amount for Loan Group 1 for
such Distribution Date will be distributed to the Class 1-A
Certificates, until its Class Principal Balance is reduced to zero;
and
(v) [Reserved];
(2) With respect to the Available Funds for Loan Group 2 on each Distribution
Date, the Securities Administrator shall withdraw such Available Funds from the
funds available therefor in the Distribution Account and apply such funds to
distributions on the specified Classes of Group 2 Senior Certificates in the
following order and priority and, in each case, to the extent of such Available
Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 2 Senior
Certificates, an amount allocable to interest equal to the related Class
Optimal Interest Distribution Amount, any shortfall being allocated among
such Classes in proportion to the amount of the Class Optimal Interest
Distribution Amount, with respect to the Group 2 Senior Certificates that
would have been distributed in the absence of such shortfall; provided
that prior to an Accrual Termination Date, the related Accrual Amount
shall be distributed as provided in Section 5.02(a)(2)(iii);
(iii) [Reserved];
(iv) to each Class of Group 2 Senior Certificates, concurrently as
follows:
(x) [Reserved]; and
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(y) the related Principal Amount, up to the amount of the
Senior Principal Distribution Amount for Loan Group 2 for such
Distribution Date, will be distributed sequentially, to the Class
A-R and Class 2-A Certificates, in that order, until their
respective Class Principal Balances are reduced to zero;
(v) [Reserved];
(3) With respect to the Available Funds for Loan Group 3 on each Distribution
Date, the Securities Administrator shall withdraw such Available Funds from the
funds available therefor in the Distribution Account and apply such funds to
distributions on the specified Classes of Group 3 Senior Certificates in the
following order and priority and, in each case, to the extent of such Available
Funds remaining:
(i) [Reserved];
(ii) concurrently, to each interest-bearing Class of Group 3 Senior
Certificates, an amount allocable to interest equal to the related Class
Optimal Interest Distribution Amount, any shortfall being allocated among
such Classes in proportion to the amount of the Class Optimal Interest
Distribution Amount, with respect to the Group 3 Senior Certificates that
would have been distributed in the absence of such shortfall; provided
that prior to an Accrual Termination Date, the related Accrual Amount
shall be distributed as provided in Section 5.02(a)(3)(iii);
(iii) [Reserved];
(iv) to each Class of Group 3 Senior Certificates, concurrently as
follows:
(x) [Reserved]; and
(y) the related Principal Amount, up to the amount of the
Senior Principal Distribution Amount for Loan Group 3 for such
Distribution Date, will be distributed, concurrently, to the Class
3-A-1 and Class 3-A-2 Certificates, pro rata, until their respective
Class Principal Balances are reduced to zero; and
(v) [Reserved];
(4) On each Distribution Date, after making the distributions described in
Section 5.02(a)(2) and Section 5.02(a)(3), Available Funds from each Loan Group
in Aggregate Loan Group II after making the distributions described in Section
5.02(a)(2) and Section 5.02(a)(3), will be distributed to the Aggregate Group II
Senior Certificates to the extent provided in Section 5.08 hereof.
(5) I. On each Distribution Date, Available Funds from Loan Group 1 remaining
after making the distributions described in Section 5.02(a)(1) above will be
distributed to the Group 1 Subordinated Certificates, the Class P-1
Certificates, the Class C Certificates and the Class A-R Certificates in the
following order and priority and, in each case, to the extent of such funds
remaining:
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(A) to the Class 1-B-1 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(B) to the Class 1-B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(C) to the Class 1-B-2 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(D) to the Class 1-B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(E) to the Class 1-B-3 Certificates, an amount allocable to
interest equal to the amount of the Class Optimal Interest
Distribution Amount for such Class for such Distribution Date;
(F) to the Class 1-B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(G) to the Class 1-B-4 Certificates, an amount allocable to
interest equal to the amount of the Class Optimal Interest
Distribution Amount for such Class for such Distribution Date;
(H) to the Class 1-B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(I) to the Class 1-B-5 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(J) to the Class 1-B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(K) to the Class 1-B-6 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date; and
(L) to the Class 1-B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
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(M) on the first Distribution Date following an Auction of the
Group 1 Mortgage Loans pursuant to Section 7.01 hereof, to the Class
C Certificates, any Auction Excess Proceeds; and
(N) to the Class A-R Certificates, any remaining funds in the
Trust Fund; provided, that such amounts shall not include the $100
held in trust for the Class P-1 Certificates or the $100 held in
trust for the Class C Certificates.
II. On each Distribution Date, Available Funds from all of the Loan Groups in
Aggregate Loan Group II remaining after making the distributions described in
Section 5.02(a)(2), Section 5.02(a)(3) and Section 5.02(a)(4) above, will be
distributed to the Group II Subordinated Certificates, the Class P-2
Certificates and the Class A-R Certificates in the following order and priority
and, in each case, to the extent of such funds remaining:
(A) to the Class B-1 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(B) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(D) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(E) to the Class B-3 Certificates, an amount allocable to
interest equal to the amount of the Class Optimal Interest
Distribution Amount for such Class for such Distribution Date;
(F) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(G) to the Class B-4 Certificates, an amount allocable to
interest equal to the amount of the Class Optimal Interest
Distribution Amount for such Class for such Distribution Date;
(H) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
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(I) to the Class B-5 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date;
(J) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(K) to the Class B-6 Certificates, an amount allocable to
interest equal to the Class Optimal Interest Distribution Amount for
such Class for such Distribution Date; and
(L) to the Class B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
until the Class Principal Balance thereof is reduced to zero;
(M) [Reserved]; and
(N) to the Class A-R Certificates, any remaining funds in the
Trust Fund; provided, that such amounts shall not include the $100
held in trust for the Class P-2 Certificates.
On each Distribution Date, all amounts representing Prepayment Penalties
on the Group 1 Mortgage Loans received by the Securities Administrator with
respect to the related Prepayment Period will be distributed to the holders of
the Class P-1 Certificates. On each Distribution Date, all amounts representing
Prepayment Penalties on the Aggregate Group II Mortgage Loans received by the
Securities Administrator with respect to the related Prepayment Period will be
distributed to the holders of the Class P-2 Certificates. On the Distribution
Date in (x) January 2011 with respect to the Class P-1 Certificates and (y)
December 2010 with respect to the Class P-2 Certificates, the $100 held in
trust for each of the Class P-1 and Class P-2 Certificates will be distributed
to the holders of the Class P-1 and Class P-2 Certificates, respectively.
(b) On each Distribution Date with respect to each Class or Component of
Accrual Certificates, the Accrual Amount for such Class or Component for such
Distribution Date shall not (except as provided in the second to last sentence
in this paragraph) be distributed as interest with respect to such Class or
Component of Accrual Certificates, but shall instead be added to the related
Class Principal Balance of such Class on the related Distribution Date. With
respect to any Distribution Date on which principal payments on any Class or
Component of Accrual Certificates are distributed pursuant to Section
5.02(a)(1)(iv)(y), Section 5.02(a)(2)(iv)(y) and Section 5.02(a)(3)(iv)(y), as
applicable, the related Accrual Amount shall be deemed to have been added on
such Distribution Date to the related Class Principal Balance or Component
Balance (and included in the amount distributable on the related Class or
Classes or Component of Accretion Directed Certificates pursuant to Section
5.02(a)(1)(iii), Section 5.02(a)(2)(iii) and Section 5.02(a)(3)(iii), as
applicable, for such Distribution Date) and the related distribution thereon
shall be deemed to have been applied concurrently towards the reduction of all
or a portion of the amount so added and, to the extent of any excess, towards
the reduction of the Class Principal Balance or Component Balance of such Class
or Component of Accrual Certificates immediately prior to such Distribution
Date.
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(c) [reserved].
(d) On each Distribution Date, the amount referred to in clause (i) of the
definition of Class Optimal Interest Distribution Amount for each Class of
Certificates or Component thereof for such Distribution Date shall be reduced
for each Class or Component of Senior Certificates of a Senior Certificate
Group, each related Class of Subordinated Certificates by (i) the related Class'
pro rata share of the Net Prepayment Interest Shortfalls for the related Loan
Group based (x) with respect to a Class of Senior Certificates or Component
thereof, on the related Class Optimal Interest Distribution Amount for such
Distribution Date, and (y) (1) with respect to the Group 1 Subordinated
Certificates, the related Class Optimal Interest Distribution Amount for such
Distribution Date in the absence of such Net Prepayment Interest Shortfalls and
(2) with respect to the Group II Subordinated Certificates on and prior to a
related Senior Termination Date on the Assumed Interest Amount or after such
related Senior Termination Date, the related Class Optimal Interest Distribution
Amount for such Distribution Date in the absence of such Net Prepayment Interest
Shortfalls, and (ii) the related Class' Allocable Share of (A) after the related
Special Hazard Coverage Termination Date, with respect to each Mortgage Loan in
the related Loan Group (or after the related Senior Credit Support Depletion
Date, any Mortgage Loan in Loan Group 1 or any Mortgage Loan in Aggregate Loan
Group II, as applicable) that became a Special Hazard Mortgage Loan during the
calendar month preceding the month of such Distribution Date, the excess of one
month's interest at the related Adjusted Net Mortgage Rate on the Stated
Principal Balance of such Mortgage Loan as of the first day of the related Due
Period in such month over the amount of Liquidation Proceeds applied as interest
on such Mortgage Loan with respect to such month, (B) after the related
Bankruptcy Coverage Termination Date, with respect to each Mortgage Loan in the
related Loan Group (or after the related Senior Credit Support Depletion Date,
any Mortgage Loan in Loan Group 1 or any Mortgage Loan in Aggregate Loan Group
II, as applicable) that became subject to a Bankruptcy Loss during the calendar
month preceding the month of such Distribution Date, the interest portion of the
related Debt Service Reduction or Deficient Valuation, (C) each Relief Act
Reduction for the Mortgage Loans in the related Loan Group (or after the related
Senior Credit Support Depletion Date, any Mortgage Loan in Loan Group 1 or any
Mortgage Loan in Aggregate Loan Group II, as applicable) incurred during the
calendar month preceding the month of such Distribution Date and (D) after the
related Fraud Loss Coverage Termination Date, with respect to each Mortgage Loan
in the related Loan Group (or after the related Senior Credit Support Depletion
Date, any Mortgage Loan in Loan Group 1 or any Mortgage Loan in Aggregate Loan
Group II, as applicable) that became a Fraud Loan during the calendar month
preceding the month of such Distribution Date, the excess of one month's
interest at the related Adjusted Net Mortgage Rate on the Stated Principal
Balance of such Mortgage Loan as of the related Due Period in such month over
the amount of Liquidation Proceeds applied as interest on such Mortgage Loan
with respect to such month.
(e) Notwithstanding the priority and allocation contained in Section
5.02(a)(5)I., if, on any Distribution Date, with respect to any Class of Group 1
Subordinated Certificates, the sum of the related Class Subordination
Percentages of such Class and of all Classes of Group 1 Subordinated
Certificates which have a higher numerical Class designation than such Class
(the "Applicable Credit Support Percentage") is less than the Original
Applicable Credit Support Percentage for such Class, no distribution of
Principal Prepayments will be made to any such Classes (the "Restricted
Classes") and the amount of such Principal Prepayments otherwise
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distributable to the Restricted Classes shall be distributed to the outstanding
Classes of Group 1 Subordinated Certificates having lower numerical Class
designations than such Class, pro rata, based on their respective Class
Principal Balances immediately prior to such Distribution Date and shall be
distributed in the sequential order provided in Section 5.02(a)(5)I.
Notwithstanding anything in this Agreement to the contrary, the Class of Group 1
Subordinated Certificates then outstanding with the highest distribution
priority shall not be a Restricted Class.
(f) Notwithstanding the priority and allocation contained in Section
5.02(a)(5)II., if, on any Distribution Date, with respect to any Class of Group
II Subordinated Certificates, the Applicable Credit Support Percentage for a
Class of Group II Subordinated Certificates is less than the Original Applicable
Credit Support Percentage for such Class, no distribution of Principal
Prepayments will be made to any such Classes (the "Restricted Classes") and the
amount of such Principal Prepayments otherwise distributable to the Restricted
Classes shall be distributed to the outstanding Classes of Group II Subordinated
Certificates having lower numerical Class designations than such Class, pro
rata, based on their respective Class Principal Balances immediately prior to
such Distribution Date and shall be distributed in the sequential order provided
in Section 5.02(a)(5)II. Notwithstanding anything in this Agreement to the
contrary, the Class of Group II Subordinated Certificates then outstanding with
the highest distribution priority shall not be a Restricted Class.
(g) If Subsequent Recoveries have been received with respect to a
Liquidated Mortgage Loan in an Aggregate Loan Group, the amount of such
Subsequent Recoveries will be applied sequentially, in the order of payment
priority, to increase the Class Principal Balance or Component Principal Balance
of each Class of Certificates or Component thereof related to that Aggregate
Loan Group to which Realized Losses have been allocated, but in each case by not
more than the amount of Realized Losses previously allocated to that Class of
Certificates or Component pursuant to Section 5.02. Holders of such Certificates
will not be entitled to any payment in respect of the Class Optimal Interest
Distribution Amount on the amount of such increases for any Interest Accrual
Period preceding the Distribution Date on which such increase occurs. Any such
increases shall be applied pro rata to the Certificate Balance or Component
Balance of each Certificate of such Class or Component thereof.
Section 5.03 [Reserved].
Section 5.04 Allocation of Losses.
(a) On or prior to each Distribution Date, the Securities Administrator
shall aggregate the information provided by each Servicer with respect to the
total amount of Realized Losses, including Excess Losses, experienced on the
Mortgage Loans for the related Distribution Date.
(b) Realized Losses with respect to the Mortgage Loans in any Loan Group
on any Distribution Date shall be allocated as follows:
(i) [Reserved]; and
(ii) (A) any Realized Loss with respect to Loan Group 1 (other than
an Excess Loss) shall be allocated first to the Group 1 Subordinated
Certificates in reverse order of their respective numerical Class
designations (beginning with the Class of Group 1
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Subordinated Certificates then outstanding with the highest numerical
Class designation) until the respective Class Principal Balance of each
such Class is reduced to zero, and second to the Senior Certificates
(other than any Notional Amount Certificates, if applicable), pro rata on
the basis of their respective Class Principal Balances or, in the case of
any Class of Accrual Certificates or Accrual Component, on the basis of
the lesser of their Class Principal Balance or Component Balance, as
applicable, and their initial Class Principal Balance or Component
Balance, as applicable, in each case immediately prior to the related
Distribution Date until the respective Class Principal Balance of each
such Class is reduced to zero;
(B) any Excess Losses on the Mortgage Loans in Loan Group 1 shall be
allocated to the Classes of Certificates of the related Senior Certificate
Group (other than any Notional Amount Certificates) and the Group 1
Subordinated Certificates on the basis of their respective initial Class
Principal Balances or Component Balances, as applicable, or in the case of
any or in the case of any Class of Accrual Certificates or Accrual
Component, on the basis of the lesser of their respective Class Principal
Balance and their respective initial Class Principal Balance or their
respective Component Balance or their respective initial Component
Balance, as the case may be, in each case immediately prior to the related
Distribution Date;
(C) any Realized Loss with respect to any Loan Group in Aggregate
Loan Group II (other than an Excess Loss) shall be allocated first to the
Aggregate Group II Subordinated Certificates in reverse order of their
respective numerical Class designations (beginning with the Class of
Aggregate Group II Subordinated Certificates then outstanding with the
highest numerical Class designation) until the respective Class Principal
Balance of each such Class is reduced to zero, and second to the Senior
Certificates (other than any Notional Amount Certificates, if applicable),
pro rata on the basis of their respective Class Principal Balances or, in
the case of any Class of Accrual Certificates or Accrual Component, on the
basis of the lesser of their Class Principal Balance or Component Balance,
as applicable, and their initial Class Principal Balance or Component
Balance, as applicable, in each case immediately prior to the related
Distribution Date until the respective Class Principal Balance of each
such Class is reduced to zero; provided, that any Realized Losses on the
Group 3 Mortgage Loans that would otherwise be allocated to the Class
3-A-1 Certificates will instead be allocated to the Class 3-A-2
Certificates, until its Class Principal Balance is reduced to zero; and
(D) any Excess Losses on the Mortgage Loans in a Loan Group in
Aggregate Loan Group II shall be allocated to the Classes of Certificates
of the related Senior Certificate Group (other than any Notional Amount
Certificates) and the Aggregate Group II Subordinated Certificates then
outstanding, pro rata, on the basis of, with respect to such Senior
Certificates, their respective Class Principal Balances, or in the case of
any Class of Accrual Certificates or Accrual Component, on the basis of
the lesser of their respective Class Principal Balance and their
respective initial Class Principal Balance or their respective Component
Balance or their respective initial Component Balance, as the case may be,
in each case immediately prior to the related Distribution Date and, with
respect to each Class of Aggregate Group II Subordinated Certificates, the
applicable Subordinated Portion for each such Class relating to the Loan
Group in
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Aggregate Loan Group II in which such Excess Loss occurs; provided,
however, on any Distribution Date after a related Senior Termination Date
for a Senior Certificate Group in Aggregate Certificate Group II, (i) any
Bankruptcy Losses or Fraud Losses on the Mortgage Loans in the related
Loan Group shall be allocated pro rata to all Classes and Components of
Senior Certificates (other than any Notional Amount Certificates, if
applicable) in the related Senior Certificate Group on the basis of their
respective initial Class Principal Balances or Component Balances, as
applicable, or in the case of any or in the case of any Class of Accrual
Certificates or Accrual Component, on the basis of the lesser of their
respective Class Principal Balance and their respective initial Class
Principal Balance or their respective Component Balance or their
respective initial Component Balance, as the case may be, in each case
immediately prior to the related Distribution Date, and (ii) any Excess
Losses on the Mortgage Loans in the related Loan Group shall be allocated
pro rata to all Classes and Components of Senior Certificates (other than
any Notional Amount Certificates, if applicable) in the related Senior
Certificate Group on the basis of their respective initial Class Principal
Balances or Component Balances, as applicable, or in the case of any or in
the case of any Class of Accrual Certificates or Accrual Component, on the
basis of the lesser of their respective Class Principal Balance and their
respective initial Class Principal Balance or their respective Component
Balance or their respective initial Component Balance, as the case may be,
in each case immediately prior to the related Distribution Date;
(c) The Class Principal Balance of the Class of Group 1 Subordinated
Certificates and Aggregate Group II Subordinated Certificates, as applicable,
then outstanding with the highest numerical Class designation shall be reduced
on each Distribution Date by the amount, if any, by which the aggregate of the
Class Principal Balances of all outstanding Classes of Group 1 Certificates or
Aggregate Group II Certificates, as applicable (after giving effect to the
distribution of principal and the allocation of Realized Losses on such
Distribution Date), exceeds the aggregate Stated Principal Balance of the
Mortgage Loans in the related Aggregate Loan Group for the following
Distribution Date.
(d) Any Realized Loss allocated to a Class of Certificates or any
reduction in the Class Principal Balance of a Class of Certificates pursuant to
Section 5.04(b) above or Section 5.04(g) below shall be allocated among the
Certificates of such Class in proportion to their respective Certificate
Balances.
(e) Any allocation of Realized Losses to a Certificate or to any Component
or any reduction in the Certificate Balance of a Certificate, pursuant to
Section 5.04(b) above shall be accomplished by reducing the Certificate Balance
or Component Balance thereof, as applicable, immediately following the
distributions made on the related Distribution Date in accordance with the
definition of "Certificate Balance" or "Component Balance," as the case may be.
All Realized Losses or Excess Losses allocated to a Class of Component
Certificates will be allocated, pro rata, to the related Components.
(f) For the avoidance of doubt, no Realized Losses on the Mortgage Loans
in any Loan Group shall be allocated to the Class P-1, Class P-2 or Class C
Certificates.
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Section 5.05 Advances by the Master Servicer.
If any Servicer fails to remit any Advance required to be made under the
applicable Purchase and Servicing Agreement, the Master Servicer shall itself
make, or shall cause the successor Servicer to make, such Advance. If the Master
Servicer determines that an Advance is required, it shall on the Business Day
preceding the related Distribution Date immediately following such Determination
Date remit to the Securities Administrator from its own funds (or funds advanced
by the applicable Servicer) for deposit in the Distribution Account immediately
available funds in an amount equal to such Advance. The Master Servicer and each
Servicer shall be entitled to be reimbursed for all Advances made by it.
Notwithstanding anything to the contrary herein, in the event the Master
Servicer determines in its reasonable judgment that an Advance is
non-recoverable, the Master Servicer shall be under no obligation to make such
Advance. If the Master Servicer determines that an Advance is non-recoverable,
it shall, on or prior to the related Distribution Date, deliver an Officer's
Certificate to the Trustee and the Securities Administrator to such effect.
Section 5.06 Compensating Interest Payments.
The amount of compensation payable to the Securities Administrator in
respect of the Mortgage Loans and any Distribution Date shall be reduced (but
not below zero) by the amount of any aggregate Compensating Interest Payment
from the Servicers for such Distribution Date, but only to the extent that
Prepayment Interest Shortfalls relating to such Distribution Date are required
to be paid by the Servicers pursuant to the Purchase and Servicing Agreements,
as amended by the Acknowledgements, but are not actually paid by the Servicer.
Such amount shall not be treated as an Advance and shall not be reimbursable.
Section 5.07 [Reserved].
Section 5.08 Cross-Collateralization; Adjustments to Available Funds.
(a) With respect to the Aggregate Group II Certificates, on each
Distribution Date after the first related Senior Termination Date but prior to
the earlier of the Senior Credit Support Depletion Date and the Senior
Termination Date, the Securities Administrator shall distribute the principal
portion of Available Funds on the Aggregate Group II Mortgage Loans relating to
the Senior Certificates that will have been paid in full to the holders of the
Aggregate Group II Senior Certificates of the other Certificate Groups in
Aggregate Certificate Group II, pro rata, based on Class Principal Balances,
provided, however, that the Securities Administrator shall not make such
distribution on such Distribution Date if (a) the Aggregate Subordinated
Percentage for the Group II Subordinated Certificates for such Distribution Date
is greater than or equal to 200% of such Aggregate Subordinated Percentage as of
the Closing Date and (b) the average aggregate Stated Principal Balance of the
Aggregate Group II Mortgage Loans delinquent 60 days or more over the last six
months, as a percentage of the Class Principal Balance of the Aggregate Group II
Subordinated Certificates, is less than 50%.
(b) If on any Distribution Date the aggregate Class Principal Balance of
Senior Certificates in a Senior Certificate Group in Aggregate Certificate Group
II is greater than the aggregate Stated Principal Balance of the Mortgage Loans
in the related Loan Group (the
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"Undercollateralized Group(s)") at the end of the Prepayment Period related to
the immediately preceding Distribution Date, then the Securities Administrator
shall apply the Available Funds of the other Loan Group(s) in Aggregate Loan
Group II that is not undercollateralized (the "Overcollateralized Group"), as
follows:
(i) to add to the Available Funds of the Undercollateralized Group
an amount equal to the lesser of (a) one month's interest on the Transfer
Payment Received of the Undercollateralized Group at the Weighted Average
Mortgage Rate (minus the weighted average Expense Fee Rate) applicable to
the Undercollateralized Group and (b) Available Funds of the
Overcollateralized Group remaining after making distributions to the
Certificates of the Overcollateralized Group on such Distribution Date
pursuant to Section 5.02; and
(ii) to the Senior Certificates of each Undercollateralized Group in
Aggregate Certificate Group II, to the extent of the principal portion of
Available Funds of the Overcollateralized Group in Aggregate Certificate
Group II remaining after making distributions to the Senior Certificates
of the Overcollateralized Group on such Distribution Date pursuant to
Section 5.02, until the Class Principal Balance of the Senior Certificates
of such Undercollateralized Group in Aggregate Certificate Group II equals
the aggregate Stated Principal Balance of the Mortgage Loans in the
related Loan Group, any shortfall of such Available Funds to be allocated
among such Undercollateralized Group, pro rata, based upon the respective
Transfer Payments.
(c) The payment received by the Undercollateralized Group is referred to
as a "Transfer Payment Received." The payment made by the Overcollateralized
Group is referred to as a "Transfer Payment Made."
Section 5.09 Determination of Pass-Through Rates for LIBOR
Certificates.
(d) On each Interest Determination Date after the initial Interest
Determination Date and for so long as any LIBOR Certificates are outstanding,
the Securities Administrator will determine LIBOR on the basis of the British
Bankers' Association ("BBA") "Interest Settlement Rate" for one-month deposits
in U.S. dollars as found on Telerate page 3750 as of 11:00 a.m. London time on
each LIBOR Determination Date. "Telerate Page 3750" means the display page
currently so designated on the Moneyline Telerate Service (formerly the Dow
Xxxxx Markets) (or such other page as may replace that page on that service for
the purpose of displaying comparable rates or prices).
(e) If on any Interest Determination Date, LIBOR cannot be determined as
provided in paragraph (a) of this Section 5.09, the Securities Administrator
shall either (i) request each Reference Bank to inform the Securities
Administrator of the quotation offered by its principal London office for making
one-month United States dollar deposits in leading banks in the London interbank
market, as of 11:00 a.m. (London time) on such Interest Determination Date or
(ii) in lieu of making any such request, rely on such Reference Bank quotations
that appear at such time on the Reuters Screen LIBO Page (as defined in the
International Swap Dealers Association Inc. Code of Standard Wording,
Assumptions and Provisions for Swaps, 1986
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Edition), to the extent available. LIBOR for the next Interest Accrual Period
will be established by the Securities Administrator on each interest
Determination Date as follows:
(i) If on any Interest Determination Date two or more Reference
Banks provide such offered quotations, LIBOR for the next applicable
Interest Accrual Period shall be the arithmetic mean of such offered
quotations (rounding such arithmetic mean upwards if necessary to the
nearest whole multiple of 1/32%).
(ii) If on any Interest Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Interest Accrual Period shall be whichever is the higher of (i) LIBOR as
determined on the previous Interest Determination Date or (ii) the Reserve
Interest Rate. The "Reserve Interest Rate" shall be the rate per annum
which the Securities Administrator determines to be either (i) the
arithmetic mean (rounded upwards if necessary to the nearest whole
multiple of 1/32%) of the one-month United States dollar lending rates
that New York City banks selected by the Securities Administrator are
quoting, on the relevant Interest Determination Date, to the principal
London offices of at least two of the Reference Banks to which such
quotations are, in the opinion of the Securities Administrator, being so
made, or (ii) in the event that the Securities Administrator can determine
no such arithmetic mean, the lowest one-month United States dollar lending
rate which New York City banks selected by the Securities Administrator
are quoting on such Interest Determination Date to leading European banks.
(iii) (A) If on any Interest Determination Date the Securities
Administrator is required but is unable to determine the Reserve Interest
Rate in the manner provided in paragraph (b) above, LIBOR for the related
Classes of Certificates shall be LIBOR as determined on the preceding
applicable Interest Determination Date or (B) in the case of the first
Interest Determination Date, LIBOR shall be 4.19375%.
Until all of the LIBOR Certificates are paid in full, the Securities
Administrator will at all times retain at least four Reference Banks for the
purpose of determining LIBOR with respect to each Interest Determination Date.
The Securities Administrator initially shall designate the Reference Banks. Each
"Reference Bank" shall be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, shall not control, be
controlled by, or be under common control with, the Securities Administrator and
shall have an established place of business in London. If any such Reference
Bank should be unwilling or unable to act as such or if the Master Servicer
should terminate its appointment as Reference Bank, the Securities Administrator
shall promptly appoint or cause to be appointed another Reference Bank. The
Securities Administrator shall have no liability or responsibility to any Person
for (i) the selection of any Reference Bank for purposes of determining LIBOR or
(ii) any inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
(f) The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Securities Administrator on
each Interest Determination Date so long as the LIBOR Certificates are
outstanding on the basis of LIBOR
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and the respective formulae appearing in footnotes corresponding to the LIBOR
Certificates in the table relating to the Certificates in the Preliminary
Statement.
(g) In determining LIBOR, any Pass-Through Rate for the LIBOR
Certificates, any Interest Settlement Rate, or any Reserve Interest Rate, the
Securities Administrator may conclusively rely and shall be protected in relying
upon the offered quotations (whether written, oral or on the Dow Xxxxx Markets)
from the BBA designated banks, the Reference Banks or the New York City banks as
to LIBOR, the Interest Settlement Rate or the Reserve Interest Rate, as
appropriate, in effect from time to time. The Securities Administrator shall not
have any liability or responsibility to any Person for (i) the selection of New
York City banks for purposes of determining any Reserve Interest Rate or (ii)
its inability, following a good-faith reasonable effort, to obtain such
quotations from, the BBA designated banks, the Reference Banks or the New York
City banks or to determine such arithmetic mean, all as provided for in this
Section 5.09.
(h) The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Securities Administrator shall (in the absence of manifest
error) be final, conclusive and binding upon each Holder of a Certificate and
the Securities Administrator.
Section 5.10 Reserve Fund.
(a) On the Closing Date, the Securities Administrator shall establish and
maintain in the Trustee's name, in trust for the benefit of the holders of the
LIBOR Certificates and the Notional Amount Certificates, a Reserve Fund, into
which the Depositor shall, on such date, deposit, in the aggregate, $8,500. The
Reserve Fund shall be an Eligible Account, and funds on deposit therein shall be
held separate and apart from, and shall not be commingled with, any other
moneys, including, without limitation, other moneys of the Trustee held pursuant
to this Agreement. The Reserve Fund shall not be an asset of any REMIC
established hereby.
(b) On each Distribution Date, (i) Current Interest that would otherwise
be distributable with respect to the Class 1-X will be deposited into the
Reserve Fund, to the extent of the applicable Required Reserve Fund Deposit for
such Class.
(c) On any Distribution Date for which a Net WAC Shortfall exists with
respect to the Class 1-A, Class 1-B-1 or Class 1-B-2 Certificates remaining
unpaid after application of the amounts received in respect of the Class 1-A
Corridor Contract, the Class 1-B-1 Corridor Contract, or the Class 1-B-2
Corridor Contract, respectively, the Securities Administrator shall withdraw, to
the extent of available funds therein, from the Reserve Fund, the amount of such
Net WAC Shortfall for distribution on such Distribution Date pursuant to Section
5.10(d) hereof.
(d) On any Distribution Date for which a Net WAC Shortfall exists with
respect to the Class 1-A, Class 1-B-1 or Class 1-B-2 Certificates remaining
unpaid after application of the amounts received in respect of the Class 1-A
Corridor Contract, the Class 1-B-1 Corridor Contract, or the Class 1-B-2
Corridor Contract, respectively, pursuant to Section 5.11(c) hereof, the
Securities Administrator will withdraw the amounts on deposit in the Reserve
Fund and distribute them sequentially, to the holders of the Class 1-A, Class
1-B-1 and Class 1-B-2
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Certificates, in that order, in an amount up to their remaining respective
accrued and unpaid Net WAC Shortfalls.
(e) Funds in the Reserve Fund shall be invested in Permitted Investments
as directed in writing by the Class 1-X Certificateholder. Any earnings on
amounts in the Reserve Fund shall be for the benefit of the Class 1-X
Certificateholders. The Notional Amount Certificates shall evidence ownership of
the Reserve Fund for federal income tax purposes and the Holders thereof shall
direct the Securities Administrator, in writing, as to investment of amounts on
deposit therein. The applicable Notional Amount Certificateholder(s) shall be
liable for any losses incurred on such investments. In the absence of written
instructions from the Notional Amount Certificateholder to the Securities
Administrator as to investment of funds on deposit in the Reserve Fund, such
funds shall be invested in the Xxxxx Fargo Prime Investment Money Market Fund.
For all Federal income tax purposes, amounts transferred by the Master REMIC to
the Reserve Fund shall be treated as amounts distributed by the Master REMIC to
the Notional Amount Certificateholders.
(f) If, immediately after any Distribution Date, the amount on deposit in
the Reserve Fund exceeds the initial deposit therein, the Securities
Administrator will distribute such excess to the Holders of the Class 1-X
Certificates.
Upon termination of the Trust Fund any amounts remaining in the Reserve
Fund shall be distributed to Xxxxxx Xxxxxxx & Co. Incorporated.
Section 5.11 The Corridor Contracts.
(a) The Depositor hereby directs the Securities Administrator, solely in
its capacity as Securities Administrator hereunder and not in its individual
capacity, to execute and deliver each of the Corridor Contracts concurrently
with the execution and delivery of this Agreement. Except as may be directed in
writing by the Depositor or by a majority in interest of the Holders of a Class
of Certificates that have the benefit of a Corridor Contract, the Securities
Administrator shall have no duty or responsibility to enter into any other
interest rate cap contract or agreement upon the expiration or termination of
any of the Corridor Contracts. The Corridor Contracts will be assets of the
Trust Fund but will not be assets of any REMIC. The Securities Administrator
shall deposit any amounts received from the Corridor Contract Counterparty with
respect to the Corridor Contracts into the Reserve Fund.
(b) The Securities Administrator will prepare and deliver any notices
required to be delivered to the Corridor Contract Counterparty under any
Corridor Contract.
(c) The Securities Administrator, on behalf of the Trustee shall terminate
the Corridor Contract Counterparty upon the occurrence of an event of default
under any Corridor Contract of which a Responsible Officer of the Securities
Administrator has actual knowledge. Upon such a termination, the Corridor
Contract Counterparty may be required to pay an amount to the Securities
Administrator, on behalf of the Trustee, in respect of market quotations for the
replacement cost of the related Corridor Contract.
(d) On each Distribution Date, following the distribution of any amounts
in respect of interest pursuant to Section 5.02(a)(1)(iii), with respect to the
Group 1 Senior Certificates and
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Section 5.02(a)(5)I.(A), Section 5.02(a)(5)I.(C) and Section 5.02(a)(5)I.(E)
with respect to the Class 1-B-1, Class 1-B-2 and Class 1-B-3 Certificates,
respectively, the Securities Administrator shall distribute amounts on deposit
in the Reserve Fund from (a) the Class 1-A Corridor Contract, to the holders of
the Class 1-A-1 Certificates, (b) the Class 1-B-1 Corridor Contract, to the
holders of the Class 1-B-1 Certificates and (c) the Class 1-B-2 Corridor
Contract to the holders of the Class 1-B-2 Certificates, in each case to the
extent of any Net WAC Shortfalls allocated to such Classes of Certificates.
Amounts withdrawn from the Reserve Fund shall be distributed sequentially as
follows:
(i) from any Class 1-A Corridor Contract Payment on deposit in the
Reserve Fund with respect to that Distribution Date, an amount equal to
any unpaid remaining Net WAC Shortfall with respect to the Class 1-A
Certificates for that Distribution Date, to the holders of the Class 1-A
Certificates;
(ii) from any Class 1-B-1 Corridor Contract Payment on deposit in
the Reserve Fund with respect to that Distribution Date, an amount equal
to any unpaid remaining Net WAC Shortfall with respect to the Class 1-B-1
Certificates for that Distribution Date, to the Class 1-B-1 Certificates;
and
(iii) from any Class 1-B-2 Corridor Contract Payment on deposit in
the Reserve Fund with respect to that Distribution Date, an amount equal
to any unpaid remaining Net WAC Shortfall with respect to the Class 1-B-2
Certificates for that Distribution Date, to the Class 1-B-2 Certificates ;
To the extent that a Class of Group 1 Certificates receives interest in excess
of the Group 1 Net WAC, such interest shall be deemed to have been paid to the
Reserve Fund and then paid by the Reserve Fund to those Certificateholders. For
purposes of the Code, amounts deemed deposited in the Reserve Fund shall be
deemed to have first been distributed to the Class 1-X Certificates.
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ARTICLE VI
CONCERNING THE TRUSTEE AND
THE SECURITIES ADMINISTRATOR; EVENTS OF DEFAULT
Section 6.01 Duties of Trustee and the Securities Administrator.
(a) The Trustee, except during the continuance of an Event of Default, and
the Securities Administrator undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement. Any permissive right of
the Trustee or the Securities Administrator provided for in this Agreement shall
not be construed as a duty of the Trustee or the Securities Administrator. If an
Event of Default has occurred and has not otherwise been cured or waived, the
Trustee or the Securities Administrator shall exercise such of the rights and
powers vested in it by this Agreement and use the same degree of care and skill
in their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs, unless the Trustee is
acting as master servicer, in which case it shall use the same degree of care
and skill (in its capacity as successor Master Servicer) as a master servicer
hereunder.
(b) Each of the Trustee and the Securities Administrator, upon receipt of
all resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments furnished to the Trustee or the Securities Administrator
which are specifically required to be furnished pursuant to any provision of
this Agreement, shall examine them to determine whether they are in the form
required by this Agreement; provided, however, that neither the Trustee nor the
Securities Administrator shall be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Master Servicer or any Servicer to the Trustee
or the Securities Administrator pursuant to this Agreement, and shall not be
required to recalculate or verify any numerical information furnished to the
Trustee or the Securities Administrator pursuant to this Agreement. Subject to
the immediately preceding sentence, if any such resolution, certificate,
statement, opinion, report, document, order or other instrument is found not to
conform to the form required by this Agreement in a material manner the
Securities Administrator shall take such action as it deems appropriate to cause
the instrument to be corrected, and if the instrument is not corrected to the
Securities Administrator 's satisfaction, the Securities Administrator will
provide notice thereof to the Certificateholders and will, at the expense of the
Trust Fund, which expense shall be reasonable given the scope and nature of the
required action, take such further action as directed by the Certificateholders.
(c) Neither the Trustee nor the Securities Administrator shall have any
liability arising out of or in connection with this Agreement, except for its
negligence or willful misconduct. Notwithstanding anything in this Agreement to
the contrary, neither the Trustee nor the Securities Administrator shall be
liable for special, indirect or consequential losses or damages of any kind
whatsoever (including, but not limited to, lost profits). No provision of this
Agreement shall be construed to relieve the Trustee or the Securities
Administrator from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided, however, that:
85
(i) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates as provided in
Section 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default unless a Responsible Officer
of the Trustee has actual knowledge thereof or unless written notice of
any event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice references the
Holders of the Certificates and this Agreement;
(iii) For all purposes under this Agreement, the Securities
Administrator shall not be deemed to have notice of any Event of Default
(other than resulting from a failure by the Master Servicer (i) to remit
funds (or to make Advances) or (ii) to furnish information to the
Securities Administrator when required to do so) unless a Responsible
Officer of the Securities Administrator has actual knowledge thereof or
unless written notice of any event which is in fact such a default is
received by the Securities Administrator at the address provided in
Section 11.07, and such notice references the Holders of the Certificates
and this Agreement;
(iv) No provision of this Agreement shall require the Trustee or the
Securities Administrator to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
indemnity reasonably satisfactory to it against such risk or liability is
not reasonably assured to it; and none of the provisions contained in this
Agreement shall in any event require the Trustee or the Securities
Administrator to perform, or be responsible for the manner of performance
of, any of the obligations of the Master Servicer under this Agreement;
(v) Neither the Trustee nor the Securities Administrator shall be
responsible for any act or omission of the Master Servicer, the Depositor,
the Seller, any Servicer or any Custodian.
(d) The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided, however,
that the Trustee shall promptly remit to the Master Servicer, upon receipt any
such complaint, claim, demand, notice or other document (i) which is delivered
to the Corporate Trust Office of the Trustee, (ii) of which a Responsible
Officer has actual knowledge, and (iii) which contains information sufficient to
permit the Trustee to make a determination that the real property to which such
document relates is a Mortgaged Property related to a Mortgage Loan.
(e) Neither the Trustee nor the Securities Administrator shall be
personally liable with respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with the direction of the
Certificateholders of any Class holding Certificates which evidence, as to such
Class, Percentage Interests aggregating not less than 25% as to the time, method
and
86
place of conducting any proceeding for any remedy available to the Trustee or
the Securities Administrator or exercising any trust or power conferred upon the
Trustee or the Securities Administrator, as applicable, under this Agreement or
the Acknowledgements.
(f) Neither the Trustee nor the Securities Administrator shall be required
to perform services under this Agreement, or to expend or risk its own funds or
otherwise incur financial liability for the performance of any of its duties
hereunder or the exercise of any of its rights or powers if there is reasonable
ground for believing that the timely payment of its fees and expenses or the
repayment of such funds or indemnity reasonably satisfactory to it against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee or the
Securities Administrator, as applicable, to perform, or be responsible for the
manner of performance of, any of the obligations of the Master Servicer or any
Servicer under this Agreement or any Purchase and Servicing Agreement except
during such time, if any, as the Trustee shall be the successor to, and be
vested with the rights, duties, powers and privileges of, the Master Servicer in
accordance with the terms of this Agreement.
(g) The Trustee shall not be held liable by reason of any insufficiency in
the Distribution Account resulting from any investment loss on any Permitted
Investment included therein (except to the extent that the Trustee is the
obligor and has defaulted thereon).
(h) Neither the Trustee nor, except as otherwise provided herein, the
Securities Administrator shall have any duty (A) to see to any recording,
filing, or depositing of this Agreement or any agreement referred to herein or
any financing statement or continuation statement evidencing a security
interest, or to see to the maintenance of any such recording or filing or
depositing or to any rerecording, refiling or redepositing of any thereof, (B)
to see to any insurance, (C) to see to the payment or discharge of any tax,
assessment, or other governmental charge or any lien or encumbrance of any kind
owing with respect to, assessed or levied against, any part of the Trust Fund
other than from funds available in the Distribution Account, or (D) to confirm
or verify the contents of any reports or certificates of the Master Servicer or
any Servicer delivered to the Trustee or the Securities Administrator pursuant
to this Agreement believed by the Trustee or the Securities Administrator, as
applicable, to be genuine and to have been signed or presented by the proper
party or parties.
(i) Neither the Securities Administrator nor the Trustee shall be liable
in its individual capacity for an error of judgment made in good faith by a
Responsible Officer or other officers of the Trustee or the Securities
Administrator, as applicable, unless it shall be proved that the Trustee or the
Securities Administrator, as applicable, was negligent in ascertaining the
pertinent facts.
(j) Notwithstanding anything in this Agreement to the contrary, neither
the Securities Administrator nor the Trustee shall be liable for special,
indirect or consequential losses or damages of any kind whatsoever (including,
but not limited to, lost profits), even if the Trustee or the Securities
Administrator, as applicable, has been advised of the likelihood of such loss or
damage and regardless of the form of action.
87
(k) Neither the Securities Administrator nor the Trustee shall be
responsible for the acts or omissions of the other, it being understood that
this Agreement shall not be construed to render them agents of one another, or
of any Servicer.
Section 6.02 Certain Matters Affecting the Trustee and the
Securities Administrator.
Except as otherwise provided in Section 6.01:
(i) Each of the Trustee and the Securities Administrator may
request, and may rely and shall be protected in acting or refraining from
acting upon any resolution, Officer's Certificate, certificate of auditors
or any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) Each of the Trustee and the Securities Administrator may
consult with counsel and any advice of its counsel or Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator shall be
personally liable for any action taken, suffered or omitted by it in good
faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(iv) Unless an Event of Default shall have occurred and be
continuing, neither the Trustee nor the Securities Administrator shall be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by the Holders of at least a majority in
Class Principal Balance (or Percentage Interest) of each Class of
Certificates; provided, however, that, if the payment within a reasonable
time to the Trustee or the Securities Administrator, as applicable, of the
costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee or the Securities
Administrator, as applicable, not reasonably assured to the Trustee or the
Securities Administrator by the security afforded to it by the terms of
this Agreement, the Trustee or the Securities Administrator, as
applicable, may require indemnity reasonably satisfactory to it against
such expense or liability or payment of such estimated expenses from the
Certificateholders as a condition to proceeding. The reasonable expense
thereof shall be paid by the party requesting such investigation and if
not reimbursed by the requesting party shall be reimbursed to the Trustee
or the Securities Administrator, as applicable, by the Trust Fund;
(v) Each of the Trustee and the Securities Administrator may execute
any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, custodians or attorneys, which
agents, custodians or attorneys shall have any and all of the rights,
powers, duties and obligations of the Trustee and the Securities
88
Administrator conferred on them by such appointment, provided that each of
the Trustee and the Securities Administrator shall continue to be
responsible for its duties and obligations hereunder to the extent
provided herein, and provided further that neither the Trustee nor the
Securities Administrator shall be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due
care by the Trustee or the Securities Administrator, as applicable;
(vi) Neither the Trustee nor the Securities Administrator shall be
under any obligation to exercise any of the trusts or powers vested in it
by this Agreement or the Acknowledgements or to institute, conduct or
defend any litigation hereunder or in relation hereto, in each case at the
request, order or direction of any of the Certificateholders pursuant to
the provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee or the Securities Administrator, as
applicable, security or indemnity reasonably satisfactory to it against
the costs, expenses and liabilities which may be incurred therein or
thereby;
(vii) The right of the Trustee and the Securities Administrator to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and neither the Trustee nor the Securities
Administrator shall be answerable for other than its negligence or willful
misconduct in the performance of such act;
(viii) Neither the Trustee nor the Securities Administrator shall be
required to give any bond or surety in respect of the execution of the
Trust Fund created hereby or the powers granted hereunder; and
(ix) In order to comply with its duties under the U.S.A. Patriot
Act, the Trustee shall obtain and verify certain information and
documentation from the other parties to this Agreement, including, but not
limited to each such party's name, address and other identifying
information.
Section 6.03 Trustee and Securities Administrator Not Liable for
Certificates.
The Trustee and the Securities Administrator make no representations as to
the validity or sufficiency of this Agreement, any Purchase and Servicing
Agreement or Acknowledgement, any Corridor Contract or of the Certificates
(other than, in the case of the Securities Administrator, the certificate of
authentication on the Certificates) or of any Mortgage Loan, or related document
save that the Trustee and the Securities Administrator represent that, assuming
due execution and delivery by the other parties hereto, this Agreement has been
duly authorized, executed and delivered by it and constitutes its valid and
binding obligation, enforceable against it in accordance with its terms except
that such enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the rights
of creditors generally, and (B) general principles of equity regardless of
whether such enforcement is considered in a proceeding in equity or at law. The
Trustee and the Securities Administrator shall not be accountable for the use or
application by the Depositor of funds paid to the Depositor in consideration of
the assignment of the Mortgage Loans to the Trust Fund by the Depositor or for
the use or application of any funds deposited into the Distribution Account or
any other fund or account maintained with respect to the Certificates. The
Trustee and the
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Securities Administrator shall not be responsible for the legality or validity
of this Agreement or any other document or agreement described in this Section
6.03 or the validity, priority, perfection or sufficiency of the security for
the Certificates issued or intended to be issued hereunder. Neither the Trustee
nor, except as otherwise provided herein, the Securities Administrator shall
have any responsibility for filing any financing or continuation statement in
any public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to record this
Agreement.
Section 6.04 Trustee and the Securities Administrator May Own
Certificates.
The Trustee and the Securities Administrator and any Affiliate or agent of
either of them in its individual or any other capacity may become the owner or
pledgee of Certificates and may transact banking and trust business with the
other parties hereto and their Affiliates with the same rights it would have if
it were not Trustee, Securities Administrator or such agent.
Section 6.05 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be (i) an institution whose
accounts are insured by the FDIC, (ii) a corporation or national banking
association, organized and doing business under the laws of any State or the
United States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or state authority and (iii)
not an Affiliate of the Master Servicer or any Servicer. If such corporation or
national banking association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then, for the purposes of this Section, the combined capital and
surplus of such corporation or national banking association shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.06.
Section 6.06 Resignation and Removal of Trustee and the Securities
Administrator.
(a) The Trustee may at any time resign and be discharged from the trust
hereby created by giving written notice thereof to the Securities Administrator,
the Depositor and the Master Servicer. Upon receiving such notice of
resignation, the Depositor will promptly appoint a successor trustee, by written
instrument, one copy of which instrument shall be delivered to the resigning
Trustee, one copy to the successor trustee, one copy to the Securities
Administrator and one copy to the Master Servicer. If no successor trustee shall
have been so appointed and shall have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.05 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee of its property shall be appointed, or any public officer shall
take charge
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or control of the Trustee or of either of their property or affairs for the
purpose of rehabilitation, conservation or liquidation, (iii) a tax is imposed
or threatened with respect to the Trust Fund by any state in which the Trustee
or the Trust Fund held by the Trustee is located due to the location of the
Trustee, or (iv) the continued use of the Trustee would result in a downgrading
of the rating by any Rating Agency of any Class of Certificates with a rating,
then the Depositor shall remove the Trustee and the Depositor shall appoint a
successor trustee, acceptable to the Master Servicer by written instrument, one
copy of which instrument shall be delivered to the Trustee so removed, one copy
to the successor trustee, one copy to the Securities Administrator and one copy
to the Master Servicer.
(c) The Holders of more than 50% of the Class Principal Balance (or
Percentage Interest) of each Class of Certificates may at any time upon 30 days'
written notice to the Trustee and to the Depositor remove the Trustee by such
written instrument, signed by such Holders or their attorney-in-fact duly
authorized, one copy of which instrument shall be delivered to the Depositor,
one copy to the Trustee, one copy to the Securities Administrator and one copy
to the Master Servicer; the Depositor shall thereupon appoint a successor
trustee in accordance with this Section.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee, as provided
in Section 6.07. If no successor trustee shall have been so appointed and shall
have accepted appointment within 30 days after such notice of dismissal, the
Trustee who received such notice of dismissal may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(e) The Securities Administrator shall not resign except in accordance
with the provisions of Sections 9.06 and 9.07 hereof, to the same extent that
the Master Servicer is entitled to resign or assign or delegate, as applicable,
its duties hereunder.
(f) If at any time the Securities Administrator shall cease to be eligible
in accordance with the provisions of Section 9.10 hereof and shall fail to
resign after written request thereto by the Depositor, or if at any time the
Securities Administrator shall become incapable of acting, or shall be adjudged
as bankrupt or insolvent, or a receiver of the Securities Administrator or of
its property shall be appointed, or any public officer shall take charge or
control of the Securities Administrator or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or a tax is imposed with
respect to the Trust Fund by any state in which the Securities Administrator or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different Securities Administrator, then the Depositor or the
Trustee may remove the Securities Administrator and appoint a successor
securities administrator by written instrument, in triplicate, one copy of which
instrument shall be delivered to the Securities Administrator so removed, one
copy of which shall be delivered to the Master Servicer and one copy to the
successor securities administrator.
(g) If no successor securities administrator shall have been appointed and
shall have accepted appointment within 60 days after Xxxxx Fargo Bank, N.A., as
Securities Administrator, ceases to be the securities administrator pursuant to
this Section 6.06, then the Trustee (as successor Securities Administrator)
shall perform the duties of the Securities Administrator
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pursuant to this Agreement. The Trustee shall notify the Rating Agencies of any
change of the Securities Administrator. In such event, the Trustee shall assume
all of the rights and obligations of the Securities Administrator hereunder
arising thereafter except that the Trustee shall not be (i) liable for losses of
the predecessor Securities Administrator or any acts or omissions of the
predecessor Securities Administrator hereunder, (ii) deemed to have made any
representations and warranties of the Securities Administrator made herein and
(iii) subject to the same resignation limitations as set forth in Section 9.06
hereof; provided, however, that the Trustee (as successor securities
administrator) shall not resign until a successor securities administrator has
accepted appointment pursuant to Section 6.07 hereof. The Trustee shall not be
accountable, shall have no liability and makes no representation as to any acts
or omissions hereunder of the Securities Administrator until such time as the
Trustee may be required to act as successor Securities Administrator pursuant to
this Section 6.06 and thereupon only for the acts or omissions of the Trustee as
successor Securities Administrator. If the Trustee is unwilling, or unable, to
act as successor Securities Administrator, then, in such event, the Trustee may
appoint, or petition a court of competent jurisdiction to appoint a successor
Securities Administrator meeting the criteria set forth in Section 9.10 hereof.
Such successor Securities Administrator shall be entitled to the Securities
Administrator Compensation.
(h) The Trustee as successor securities administrator shall be entitled to
be reimbursed for all reasonable costs and expenses associated with the transfer
of the duties of the Securities Administrator by the predecessor Securities
Administrator, including, without limitation, any costs or expenses associated
with the complete transfer of all securities administrator data and the
completion, correction or manipulation of such securities administrator data as
may be required by the Trustee as successor securities administrator to correct
any errors or insufficiencies in such securities administrator data or otherwise
to enable the Trustee or successor securities administrator to perform the
duties of the Securities Administrator properly and effectively; provided,
however, that the predecessor Securities Administrator shall not be obligated to
make any such reimbursements if such Securities Administrator was terminated or
removed without cause or if such termination or removal was a result of the
imposition of any tax on the Trust Estate by any state in which the Securities
Administrator or the Trust Fund is located. If such costs are not paid by the
predecessor Securities Administrator, the Trustee shall pay such costs from the
Trust Fund.
(i) The Trustee, as successor Securities Administrator, as compensation
for its activities hereunder as successor Securities Administrator, shall be
entitled to retain or withdraw from the Distribution Account an amount equal to
the Securities Administrator Compensation.
(j) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Securities Administrator and appoint a
successor securities administrator by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered by the successor
Securities Administrator to the Trustee, one complete set to the Securities
Administrator so removed and one complete set to the successor so appointed.
Notice of any removal of the Securities Administrator shall be given to each
Rating Agency by the successor securities administrator.
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(k) Any resignation or removal of the Securities Administrator and
appointment of a successor securities administrator pursuant to any of the
provisions of this Section 6.06 or Section 9.06 shall become effective upon
acceptance by the successor securities administrator of appointment as provided
in Section 6.07 hereof.
(l) If the Securities Administrator and the Master Servicer are the same
Person, any removal of the Master Servicer pursuant to an Event of Default shall
also result in the removal of the Securities Administrator and require the
appointment of a successor pursuant to this Section and Section 6.07.
(m) The Securities Administrator shall cooperate with the Trustee and any
successor securities administrator in effecting the termination of the
Securities Administrator's responsibilities and rights hereunder, providing to
the Trustee and successor securities administrator all documents and records in
electronic or other form reasonably requested by it to enable it to assume the
Securities Administrator's functions hereunder and for the transfer to the
Trustee or successor Securities Administrator of all amounts in the Distribution
Account or any other account or fund maintained by the Securities Administrator
with respect to the Trust Fund. Neither the Trustee nor the Master Servicer, as
applicable, nor any other successor, as applicable, shall be deemed to be in
default hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by (i) the failure of the
predecessor Securities Administrator to deliver, or any delay in delivering,
cash, documents or records to it, (ii) the failure of the predecessor Securities
Administrator to cooperate as required by this Agreement, (iii) the failure of
the predecessor Securities Administrator to deliver the related Mortgage Loan
data as required by this Agreement or (iv) restrictions imposed by any
regulatory authority having jurisdiction over the predecessor Securities
Administrator. No successor securities administrator shall be deemed to be in
default hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by (i) the failure of the
Master Servicer to deliver, or any delay in delivering cash, documents or
records to it related to such distribution, or (ii) the failure of Trustee or
the Master Servicer to cooperate as required by this Agreement.
Section 6.07 Successor Trustee and Successor Securities
Administrator.
(a) Any successor trustee or successor securities administrator appointed
as provided in Section 6.06 shall execute, acknowledge and deliver to the
Depositor and to its predecessor trustee or predecessor securities
administrator, as applicable, an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
or predecessor securities administrator, as applicable, shall become effective
and such successor trustee or successor securities administrator, as applicable,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee or securities administrator, as
applicable, herein. The predecessor trustee or predecessor securities
administrator, as applicable, shall deliver to the successor trustee or
successor securities administrator, as applicable, all Trustee Mortgage Files
and documents and statements related to each Trustee Mortgage File held by it
hereunder, and shall duly assign, transfer, deliver and pay over to the
successor trustee the entire Trust Fund, together with all necessary instruments
of transfer and assignment or other documents properly executed necessary to
effect such transfer
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and such of the records or copies thereof maintained by the predecessor trustee
in the administration hereof as may be requested by the successor trustee and
shall thereupon be discharged from all duties and responsibilities under this
Agreement. In addition, the Depositor and the predecessor trustee or predecessor
securities administrator, as applicable, shall execute and deliver such other
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor trustee or successor securities
administrator, as applicable, all such rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided in this
Section unless at the time of such appointment such successor trustee shall be
eligible under the provisions of Section 6.05.
(c) Upon acceptance of appointment by a successor trustee or successor
securities administrator, as applicable, as provided in this Section, the Master
Servicer shall mail notice of the succession of such trustee or securities
administrator, as applicable, hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register and to any Rating Agency. The
costs of such mailing shall be borne by the Master Servicer.
(d) Any successor securities administrator shall also either serve as
auction administrator pursuant to Section 7.01(b) hereof or select an investment
bank to act as auction administrator at the expense of the Trust Fund.
Section 6.08 Merger or Consolidation of Trustee or the Securities
Administrator.
Any Person into which the Trustee or Securities Administrator may be
merged or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Trustee or Securities
Administrator shall be a party, or any Persons succeeding to the business of the
Trustee or Securities Administrator, shall be the successor to the Trustee or
Securities Administrator hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding, provided that, in the case of the Trustee, such
Person shall be eligible under the provisions of Section 6.05.
Section 6.09 Appointment of Co-Trustee, Separate Trustee or
Custodian.
(a) Notwithstanding any other provisions hereof, at any time, the Trustee,
the Depositor or the Certificateholders evidencing more than 50% of the Class
Principal Balance (or Percentage Interest) of every Class of Certificates shall
have the power from time to time to appoint one or more Persons, approved by the
Trustee, to act either as co-trustees jointly with the Trustee, or as separate
trustees, or as custodians, for the purpose of holding title to, foreclosing or
otherwise taking action with respect to any Mortgage Loan outside the state
where the Trustee has its principal place of business where such separate
trustee or co-trustee is necessary or advisable (or the Trustee has been advised
by the Master Servicer that such separate trustee or co-trustee is necessary or
advisable) under the laws of any state in which a property securing a Mortgage
Loan is located or for the purpose of otherwise conforming to any legal
requirement, restriction or condition in any state in which a property securing
a Mortgage Loan is located or in any state in which any portion of the Trust
Fund is located. The separate Trustees, co-trustees, or
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custodians so appointed shall be trustees or custodians for the benefit of all
the Certificateholders and shall have such powers, rights and remedies as shall
be specified in the instrument of appointment; provided, however, that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee. The obligation of the Master Servicer to make Advances pursuant to
Section 5.05 hereof shall not be affected or assigned by the appointment of a
co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or performed by the Trustee and such separate trustee, co-trustee, or
custodian jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed the
Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations, including the
holding of title to the Trust Fund or any portion thereof in any such
jurisdiction, shall be exercised and performed by such separate trustee,
co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable
by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee may at any time, by an instrument in writing
executed by it, with the concurrence of the Depositor, accept the
resignation of or remove any separate trustee, co-trustee or custodian, so
appointed by it or them, if such resignation or removal does not violate
the other terms of this Agreement.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee, co-trustee or custodian shall refer to this Agreement and the
conditions of this Article VI. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy given
to the Master Servicer.
(d) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by
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the Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.05 hereunder and no notice to the Certificateholders of the appointment shall
be required under Section 6.07 hereof.
(f) The Securities Administrator on behalf of the Trustee agrees to
instruct the co-trustees, if any, to the extent necessary to fulfill the
Trustee's obligations hereunder.
(g) The Trust shall pay the reasonable compensation of the co-trustees
(which compensation shall not reduce any compensation payable to the Trustee
under such Section).
Section 6.10 Authenticating Agents.
(a) The Trustee may appoint one or more Authenticating Agents which shall
be authorized to act on behalf of the Trustee in authenticating Certificates.
The Securities Administrator is hereby appointed as initial Authenticating
Agent, and the Securities Administrator accepts such appointment. Wherever
reference is made in this Agreement to the authentication of Certificates by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee by
an Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America or
of any state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision or
examination by federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which any Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at least 30
days' advance written notice of resignation to the Trustee and the Depositor.
The Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.10, the Trustee may appoint a
successor authenticating agent, shall give written notice of such appointment to
the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor authenticating agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No successor authenticating agent
shall be appointed unless eligible under the provisions of this Section 6.10. No
Authenticating Agent shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee.
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Section 6.11 Indemnification of the Trustee and the Securities
Administrator.
The Trustee and the Securities Administrator and their respective
directors, officers, employees and agents shall be entitled to indemnification
from the Trust Fund for any loss, liability or expense (including the reasonable
compensation and the expenses and disbursements of its agents or counsel),
incurred without negligence or willful misconduct on their part, arising out of,
or in connection with, the acceptance or administration of the trusts created
hereunder or under the Purchase and Servicing Agreements, the Acknowledgements,
the Custodial Agreements, or the Corridor Contracts or in connection with the
performance of their duties hereunder or thereunder including the costs and
expenses of defending themselves against any claim in connection with the
exercise or performance of any of their powers or duties hereunder or
thereunder, provided that:
(i) with respect to any such claim, the Trustee or the Securities
Administrator, as applicable, shall have given the Depositor written
notice thereof promptly after the Trustee, the Securities Administrator,
as applicable, shall have knowledge thereof;
(ii) while maintaining control over its own defense, the Trustee or
the Securities Administrator, as applicable, shall cooperate and consult
fully with the Depositor in preparing such defense; and
(iii) notwithstanding anything to the contrary in this Section 6.11,
the Trust Fund shall not be liable for settlement of any such claim by the
Trustee or the Securities Administrator, as applicable, entered into
without the prior consent of the Depositor, which consent shall not be
unreasonably withheld.
The provisions of this Section 6.11 shall survive any termination of this
Agreement and the resignation or removal of the Trustee or the Securities
Administrator or Custodian, as applicable, and shall be construed to include,
but not be limited to any loss, liability or expense under any environmental
law.
Section 6.12 Fees and Expenses of the Securities Administrator, the
Trustee and the Custodians.
(a) For so long as Xxxxx Fargo Bank, National Association is the Master
Servicer and the Securities Administrator, the Securities Administrator shall be
entitled to be paid by the Master Servicer reasonable compensation for the
Securities Administrator's services hereunder in an amount to be agreed upon
between the Master Servicer and the Securities Administrator. Should Xxxxx Fargo
Bank, National Association no longer be both the Master Servicer and the
Securities Administrator, the Securities Administrator shall be entitled to
receive the Securities Administrator Compensation payable pursuant to Section
4.02(b)(ii) hereof. The Securities Administrator shall be entitled to all
disbursements and advancements incurred or made by the Securities Administrator
in accordance with this Agreement (including fees and expenses of its counsel
and all persons not regularly in its employment), except any such expenses
arising from its negligence, bad faith or willful misconduct.
(b) As compensation for its services hereunder, the Trustee and each
Custodian shall each be entitled to receive a fee (which, in the case of the
Trustee, shall not be limited by any
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provision of law in regard to the compensation of a trustee of an express trust)
which shall be paid by the Master Servicer pursuant to a separate agreement
between the Trustee, the Custodians and the Master Servicer. Any expenses
incurred by the Trustee or the Custodians shall be reimbursed in accordance with
Section 6.11. Notwithstanding any provision in any Custodial Agreement to the
contrary, the parties hereto acknowledge and agree that (i) the Master Servicer
shall only be obligated to pay to each Custodian the fee agreed to by such
Custodian and the Master Servicer in the separate fee agreement referred to
above, and (ii) except as may be expressly set forth therein with respect to the
Master Servicer, in no event shall the Master Servicer have any responsibility
or liability for the payment of any other fees or any expenses or other amounts,
if any, that may be payable to a Custodian under the related Custodial
Agreement, all of which shall be payable in accordance with the terms and
conditions of such Custodial Agreement.
Section 6.13 Collection of Monies.
Except as otherwise expressly provided in this Agreement, the Securities
Administrator on behalf of the Trustee may demand payment or delivery of, and
shall receive and collect, all money and other property payable to or receivable
by the Securities Administrator on behalf of the Trustee pursuant to this
Agreement. The Securities Administrator on behalf of the Trustee shall hold all
such money and property received by it as part of the Trust Fund and shall
distribute it as provided in this Agreement.
Section 6.14 Events of Default; Trustee To Act; Appointment of
Successor.
(a) The occurrence of any one or more of the following events shall
constitute an "Event of Default" with respect to the Master Servicer:
(i) Any failure by the Master Servicer to furnish the Securities
Administrator the Mortgage Loan data on the Mortgage Loans sufficient to
prepare the reports described in Section 4.05 which continues unremedied
for a period of one Business Day after the date upon which written notice
of such failure shall have been given to the Master Servicer by the
Trustee or the Securities Administrator or to the Master Servicer, the
Securities Administrator and the Trustee by the Holders of not less than
25% of the Class Principal Balance of each Class of Certificates affected
thereby; or
(ii) Any failure on the part of the Master Servicer duly to observe
or perform in any material respect any other of the covenants or
agreements (other than those referred to in (vii) and (ix) below) on the
part of the Master Servicer contained in this Agreement which continues
unremedied for a period of 60 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the Master Servicer by the Trustee or the Securities Administrator, or
to the Master Servicer, the Securities Administrator and the Trustee by
the Holders of more than 50% of the Aggregate Voting Interests of the
Certificates; or
(iii) A decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar
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proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Master Servicer, and such decree or order
shall have remained in force undischarged or unstayed for a period of 60
days or any Rating Agency reduces or withdraws or threatens to reduce or
withdraw the rating of the Certificates because of the financial condition
or loan servicing capability of such Master Servicer; or
(iv) The Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities, voluntary liquidation or
similar proceedings of or relating to the Master Servicer or of or
relating to all or substantially all of its property; or
(v) The Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors or voluntarily suspend payment of its
obligations; or
(vi) The Master Servicer shall be dissolved, or shall dispose of all
or substantially all of its assets, or consolidate with or merge into
another entity or shall permit another entity to consolidate or merge into
it, such that the resulting entity does not meet the criteria for a
successor servicer as specified in Section 9.05 hereof; or
(vii) If a representation or warranty set forth in Section 9.03
hereof shall prove to be incorrect as of the time made in any respect that
materially and adversely affects the interests of the Certificateholders,
and the circumstance or condition in respect of which such representation
or warranty was incorrect shall not have been eliminated or cured within
90 days after the date on which written notice of such incorrect
representation or warranty shall have been given to the Master Servicer by
the Trustee or the Securities Administrator, or to the Master Servicer,
the Securities Administrator and the Trustee by the Holders of more than
50% of the Aggregate Voting Interests of the Certificates; or
(viii) A sale or pledge of any of the rights of the Master Servicer
hereunder or an assignment of this Agreement by the Master Servicer or a
delegation of the rights or duties of the Master Servicer hereunder shall
have occurred in any manner not otherwise permitted hereunder and without
the prior written consent of the Trustee and Certificateholders holding
more than 50% of the Aggregate Voting Interests of the Certificates; or
(ix) After receipt of notice from the Trustee or the Securities
Administrator, any failure of the Master Servicer to make any Advances
required to be made by it hereunder; or
(x) (a) Any failure by the Master Servicer to deposit in the
Distribution Account or remit to the Securities Administrator any payment
required to be made by the Master Servicer under the terms of this
Agreement (other than an Advance required pursuant to Section 5.05
hereof), which failure shall continue unremedied for three Business Days
after the date upon which written notice of such failure shall have been
given to the Master Servicer by the Securities Administrator, Trustee or
the Depositor or
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to the Master Servicer and the Trustee by the Holders of Certificates
having not less than 25% of the Voting Rights evidenced by the
Certificates or (b) any failure by the Master Servicer to deposit in the
Distribution Account or remit to the Securities Administrator any Advance
required to be made by the Master Servicer under Section 5.05 hereof,
which failure shall continue unremedied for one Business Day after the
date upon which written notice of such failure shall have been given to
the Master Servicer by the Securities Administrator, Trustee or the
Depositor or to the Master Servicer and the Trustee by the Holders of
Certificates having not less than 25% of the Voting Rights evidenced by
the Certificates; or
(xi) If the Master Servicer and the Securities Administrator are the
same Person, any removal of the Securities Administrator pursuant to
Section 6.06.
If an Event of Default described in clauses (i) through (xi) of this
Section shall occur with respect to the Master Servicer, then, in each and every
case, subject to applicable law, so long as any such Event of Default shall not
have been remedied within any period of time prescribed by this Section, the
Trustee, by notice in writing to the Master Servicer may, and, if so directed by
Certificateholders evidencing more than 50% of the Class Principal Balance of
each Class of Certificates, shall terminate all of the respective rights and
obligations of the Master Servicer hereunder and in and to the Mortgage Loans
and the proceeds thereof. Subject to Section 6.01(c)(ii), if an Event of Default
described in clause (x) of this Section shall occur with respect to the Master
Servicer, then, in each and every case, subject to applicable law, so long as
any such Event of Default shall not have been remedied within any period of time
prescribed by this Section, the Trustee shall by notice in writing to the Master
Servicer terminate all of the respective rights and obligations of the Master
Servicer hereunder and in and to the Mortgage Loans and the proceeds thereof. On
or after the receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer, and with respect to the Master
Servicer only in its capacity as Master Servicer under this Agreement, whether
with respect to the Mortgage Loans or otherwise, shall pass to and be vested in
the Trustee; and the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the defaulting Master Servicer as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the affected Mortgage Loans and related documents or otherwise.
The defaulting Master Servicer agrees to cooperate with the Trustee and the
Securities Administrator in effecting the termination of the defaulting Master
Servicer's responsibilities and rights hereunder as Master Servicer which
includes, without limitation, notifying the Servicers of the assignment of the
master servicing function and providing the Trustee or its designee all
documents and records in electronic or other form reasonably requested by it to
enable the Trustee or its designee to assume the defaulting Master Servicer's
functions hereunder and the transfer to the Trustee for administration by it of
all amounts which shall at the time be or should have been deposited by the
defaulting Master Servicer in the Distribution Account, any related Custodial
Account and any other account or fund maintained with respect to the
Certificates or thereafter received with respect to the affected Mortgage Loans.
The Master Servicer being terminated shall bear all costs of the transfer of the
master servicing to the successor master servicer, including but not limited to
those of the Trustee or Securities Administrator reasonably allocable to
specific employees and overhead, legal fees and expenses, accounting and
financial consulting fees and
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expenses, and costs of amending the Agreement, if necessary. If such costs are
not paid by the terminated Master Servicer, the Trustee shall pay such costs
from the Trust Fund.
Notwithstanding the termination of its activities as Master Servicer, any
terminated Master Servicer shall continue to be entitled to reimbursement under
this Agreement to the extent such reimbursement relates to the period prior to
such Master Servicer's termination.
If any Event of Default shall occur, the Trustee, upon a Responsible
Officer of the Trustee becoming aware of the occurrence thereof, shall promptly
notify the Securities Administrator and each Rating Agency of the nature and
extent of such Event of Default. The Securities Administrator shall immediately
give written notice to the Master Servicer upon the failure of the Master
Servicer to make Advances as required under this Agreement with a copy to the
Trustee.
(i) On and after the time the Master Servicer receives a notice of
termination from the Trustee or the Securities Administrator, as applicable,
pursuant to Section 6.14(a) or the Trustee or the Securities Administrator, as
applicable, receives the resignation of the Master Servicer evidenced by an
Opinion of Counsel pursuant to Section 9.06, the Trustee, unless another master
servicer shall have been appointed, shall be the successor in all respects to
the Master Servicer, in its capacity as such under this Agreement and the
transactions set forth or provided for herein and shall have all the rights and
powers and be subject to all the responsibilities, duties and liabilities
relating thereto and arising thereafter placed on the Master Servicer,
hereunder, including the obligation to make Advances; provided, however, that
any failure to perform such duties or responsibilities caused by the failure of
the Master Servicer to provide information required by this Agreement shall not
be considered a default by the Trustee or the Securities Administrator, as
applicable, hereunder. In addition, neither the Trustee nor the Securities
Administrator, as applicable, shall have any responsibility for any act or
omission of the Master Servicer prior to the issuance of any notice of
termination. The Trustee shall have no liability relating to the representations
and warranties of the Master Servicer set forth in Section 9.03. In the capacity
as such successor, the Trustee shall have the same limitations on liability
herein granted to the Master Servicer. As compensation for being the successor
master servicer, the Trustee shall be entitled to receive all compensation
payable to the Master Servicer under this Agreement. Any successor to the Master
Servicer hereunder also may assume the obligations of the Securities
Administrator hereunder as successor in such capacity shall be entitled to the
compensation payable to the Securities Administrator pursuant to Section 4.02
hereof from and after the date of such assumption.
(j) Notwithstanding the above, the Trustee may, if it shall be unwilling
to continue to so act, or shall, if it is unable to so act, petition a court of
competent jurisdiction to appoint, or appoint on its own behalf any established
housing and home finance institution servicer, master servicer, servicing or
mortgage servicing institution having a net worth of not less than $15,000,000
and meeting such other standards for a successor master servicer, as are set
forth in this Agreement, as the successor to such Master Servicer in the
assumption of all of the respective responsibilities, duties or liabilities of a
master servicer, like the Master Servicer. Any entity designated by the Trustee,
may be an Affiliate of the Trustee; provided, however, that, unless such
Affiliate meets the net worth requirements and other standards set forth herein
for a successor master servicer, the Trustee, in its individual capacity shall
agree, at the time of such
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designation, to be and remain liable to the Trust Fund for such Affiliate's
actions and omissions in performing its duties hereunder. In connection with
such appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on the Mortgage Loans as it and
such successor shall agree; provided, however, that no such compensation shall
be in excess of that permitted to the Master Servicer hereunder. The Trustee and
such successor shall take such actions, consistent with this Agreement, as shall
be necessary to effectuate any such succession and may make other arrangements
with respect to the master servicing to be conducted hereunder which are not
inconsistent herewith. The Master Servicer shall cooperate with the Trustee and
any successor master servicer in effecting the termination of the Master
Servicer's responsibilities and rights hereunder including, without limitation,
notifying the Servicers of the assignment of the master servicing functions and
providing the Trustee and successor master servicer all documents and records in
electronic or other form reasonably requested by it to enable it to assume the
Master Servicer's functions hereunder and the transfer to the Trustee or such
successor all amounts which shall at the time be or should have been deposited
by the Master Servicer in the Distribution Account, any Custodial Account, or
any other account or fund maintained with respect to the Certificates or
thereafter be received with respect to the Mortgage Loans. Neither the Trustee
nor the Securities Administrator, as applicable, nor any other successor, as
applicable, shall be deemed to be in default hereunder by reason of any failure
to make, or any delay in making, any distribution hereunder or any portion
thereof caused by (i) the failure of the Master Servicer to deliver, or any
delay in delivering, cash, documents or records to it, (ii) the failure of the
Master Servicer to cooperate as required by this Agreement, (iii) the failure of
the Master Servicer to deliver the related Mortgage Loan data as required by
this Agreement or (iv) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer. No successor master servicer shall be
deemed to be in default hereunder by reason of any failure to make, or any delay
in making, any distribution hereunder or any portion thereof caused by (i) the
failure of the Securities Administrator to deliver, or any delay in delivering
cash, documents or records to it related to such distribution, or (ii) the
failure of Trustee or the Securities Administrator to cooperate as required by
this Agreement.
Section 6.15 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 6.14, shall have the right, in its own name and as trustee
of the Trust Fund, to take all actions now or hereafter existing at law, in
equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
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Section 6.16 Waiver of Defaults.
More than 50% of the Aggregate Voting Interests of the Certificateholders
may waive any default or Event of Default by the Master Servicer in the
performance of its obligations hereunder, except that a default in the making of
any required deposit to the Distribution Account that would result in a failure
of the Securities Administrator or the Paying Agent to make any required payment
of principal of or interest on the Certificates may only be waived with the
consent of 100% of the affected Certificateholders. Upon any such waiver of a
past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so waived.
Section 6.17 Notification to Holders.
Upon termination of the Master Servicer or appointment of a successor to
the Master Servicer, in each case as provided herein, the Trustee shall promptly
mail notice thereof by first class mail to the Securities Administrator and the
Certificateholders at their respective addresses appearing on the Certificate
Register. The Trustee shall also, within 45 days after the occurrence of any
Event of Default known to the Trustee, give written notice thereof to the
Securities Administrator and the Certificateholders, unless such Event of
Default shall have been cured or waived prior to the issuance of such notice and
within such 45-day period.
Section 6.18 Directions by Certificateholders and Duties of Trustee
During Event of Default.
Subject to the provisions of Section 8.01 hereof, during the continuance
of any Event of Default, Holders of Certificates evidencing not less than 25% of
the Class Principal Balance (or Percentage Interest) of each Class of
Certificates affected thereby may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Agreement; provided,
however, that the Trustee shall be under no obligation to pursue any such
remedy, or to exercise any of the trusts or powers vested in it by this
Agreement (including, without limitation, (i) the conducting or defending of any
administrative action or litigation hereunder or in relation hereto and (ii) the
terminating of the Master Servicer or any successor master servicer from its
rights and duties as master servicer hereunder) at the request, order or
direction of any of the Certificateholders, unless such Certificateholders shall
have offered to the Trustee security or indemnity reasonably satisfactory to it
against the cost, expenses and liabilities which may be incurred therein or
thereby; and, provided further, that, subject to the provisions of Section 8.01,
the Trustee shall have the right to decline to follow any such direction if the
Trustee, in accordance with an Opinion of Counsel, determines that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good faith
determines that the action or proceeding so directed would involve it in
personal liability for which it is not indemnified to its satisfaction.
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Section 6.19 Action Upon Certain Failures of the Master Servicer
and Upon Event of Default.
In the event that a Responsible Officer of the Trustee shall have actual
knowledge or written notice of any action or inaction of the Master Servicer
that would become an Event of Default upon the Master Servicer's failure to
remedy the same after notice, the Trustee shall give notice thereof to the
Master Servicer.
Section 6.20 Preparation of Tax Returns and Other Reports.
(a) The Securities Administrator shall prepare or cause to be prepared on
behalf of the Trust Fund, based upon information calculated in accordance with
this Agreement pursuant to instructions given by the Depositor, and the
Securities Administrator shall file federal tax returns, all in accordance with
Article X hereof. If the Securities Administrator is notified in writing that a
state tax return or other return is required, then, at the sole expense of the
Trust Fund, the Securities Administrator shall prepare and file such state
income tax returns and such other returns as may be required by applicable law
relating to the Trust Fund, and, if required by state law, shall file any other
documents to the extent required by applicable state tax law (to the extent such
documents are in the Securities Administrator's possession). The Securities
Administrator shall forward copies to the Depositor of all such returns and Form
1099 supplemental tax information and such other information within the control
of the Securities Administrator as the Depositor may reasonably request in
writing, and shall forward to each Certificateholder such forms and furnish such
information within the control of the Securities Administrator as are required
by the Code and the REMIC Provisions to be furnished to them, and will prepare
and forward to Certificateholders Form 1099 (supplemental tax information) (or
otherwise furnish information within the control of the Securities
Administrator) to the extent required by applicable law. The Master Servicer
will indemnify the Securities Administrator and the Trustee for any liability of
or assessment against the Securities Administrator or the Trustee, as
applicable, resulting from any error in any of such tax or information returns
directly resulting from errors in the information provided by such Master
Servicer except to the extent that such information was provided in reasonable
reliance upon information from any Servicer.
(b) The Securities Administrator shall prepare and file with the Internal
Revenue Service ("IRS"), on behalf of the Trust Fund and each REMIC created
hereunder, an application for an employer identification number on IRS Form SS-4
or by any other acceptable method. The Securities Administrator shall also file
a Form 8811 as required. The Securities Administrator, upon receipt from the IRS
of the Notice of Taxpayer Identification Number Assigned, shall upon request
promptly forward a copy of such notice to the Trustee and the Depositor. The
Securities Administrator shall furnish any other information that is required by
the Code and regulations thereunder to be made available to the
Certificateholders. The Master Servicer agrees that it shall cause each Servicer
to, provide the Securities Administrator with such information related to the
Mortgage Loans in the possession of such Servicer, as may reasonably be required
for the Securities Administrator to prepare such reports.
(c) Within 15 days after each Distribution Date, the Securities
Administrator shall, on behalf of the Trust and in accordance with industry
standards, file with the Securities and Exchange Commission (the "Commission")
via the Electronic Data Gathering, Analysis and Retrieval
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System (XXXXX), a Form 8-K (or any comparable form containing the same or
comparable information or other information mutually agreed upon) with a copy of
the report to the Certificateholders for such Distribution Date as an exhibit
thereto. Prior to Xxxxx 00, 0000 (xxx, if applicable, prior to March 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 Master Servicer will cause
an officer in charge of master servicing to execute the certification (the "Form
10-K Certification") required pursuant to Rule 13a-14 under the Securities
Exchange Act of 1934, as amended, and to file the same with the Commission prior
to Xxxxx 00, 0000 (xxx, if applicable, prior to March 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. The
Master Servicer agrees to furnish to the Securities Administrator promptly, from
time to time upon request, such further information, reports and financial
statements within its control related to this Agreement and the Mortgage Loans
as the Securities Administrator reasonably deems appropriate to prepare and file
all necessary reports with the Commission. The Securities Administrator shall
have no responsibility to file any items with the Commission other than those
specified in this section.
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ARTICLE VII
PURCHASE OF MORTGAGE LOANS AND
TERMINATION OF THE TRUST FUND
Section 7.01 Purchase of Mortgage Loans; Termination of Trust Fund
Upon Purchase or Liquidation of All Mortgage Loans.
(a) The respective obligations and responsibilities of the Trustee, the
Securities Administrator and the Master Servicer created hereby (other than the
obligation of the Securities Administrator to make payments to the
Certificateholders as set forth in Section 7.02), shall terminate on the
earliest of (i) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all REO Property, (ii) the
sale or auction of the property held by the Trust Fund in accordance with both
(x) Section 7.01(b) or 7.01(c)(ii) and (y) and Section 7.01(c)(iii) and (iii)
the Latest Possible Maturity Date; provided, however, that in no event shall the
Trust Fund created hereby continue beyond the expiration of 21 years from the
death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. James's, living on the date
hereof. Any termination of the Trust Fund shall be carried out in such a manner
so that the termination of each REMIC included therein shall qualify as a
"qualified liquidation" under the REMIC Provisions.
(b) On the Initial Optional Termination date related to the Group 1
Mortgage Loans, the, Auction Administrator shall, or shall retain an investment
bank to, solicit bids for the Group 1 Assets from at least three institutions
that are regular purchasers and/or sellers in the secondary market of
residential whole mortgage loans similar to the Mortgage Loans. If the Auction
Administrator receives at least three bids for the Group 1 Assets, and one of
such bids is equal to or greater than the Minimum Auction Price, the Auction
Administrator shall sell (such sale, an "Auction") the related Trust Collateral
to the highest bidder (the "Auction Purchaser") at the price offered by the
Auction Purchaser (the "Mortgage Loan Auction Price"). If the Auction
Administrator receives less than three bids, or does not receive any bid that is
at least equal to the Minimum Auction Price, the Auction Administrator shall, on
each six-month anniversary of the initial Optional Termination Date for the
Group 1 Mortgage Loans, repeat these auction procedures until the Auction
Administrator receives a bid that is at least equal to the Minimum Auction
Price, at which time the Auction Administrator shall sell the Group 1 Assets to
the Auction Purchaser at that Mortgage Loan Auction Price; provided, however,
that the Auction Administrator shall not be required to repeat these auction
procedures on any Distribution Date for any six-month anniversary of the initial
Optional Termination Date unless the Auction Administrator reasonably believes
that there is a reasonable likelihood of receiving a bid of at least the Minimum
Auction Price. The Auction Administrator shall give notice to the Rating
Agencies and each Servicer that is servicing any of the Group 1 Mortgage Loans
of the sale of the related Group 1 Assets pursuant to this Section 7.01(b) (an
"Auction Sale") and of the Auction Date.
(c) In the event that the Master Servicer chooses to exercise its optional
termination rights it shall do so in accordance with the following:
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(i) Optional Termination Related to the Group 1 Mortgage Loans. On
any Distribution Date occurring after the Initial Optional Purchase Date
related to the Group 1 Mortgage Loans, the Master Servicer has the option
to cause the Trust Fund to adopt a plan of complete liquidation of the
Group 1 Mortgage Loans pursuant to Sections 7.02 and 7.03 hereof to sell
all of the property related thereto. If the Master Servicer elects to
exercise such option, it shall no later than 30 days prior to the
Distribution Date selected for purchase of the Group 1 Mortgage Loans and
all other assets of the Trust Fund related to the Group 1 Certificates
(with respect to the Group 1 Mortgage Loans, the "Purchase Date") deliver
written notice to the Trustee and the Securities Administrator and either
(a) deposit in the Distribution Account the related Redemption Price or
(b) state in such notice that the Redemption Price shall be deposited in
the Distribution Account not later than 10:00 a.m., New York City time, on
the applicable Purchase Date. Upon exercise of such option, the property
of the Trust Fund related to the Group 1 Mortgage Loans shall be sold to
the Master Servicer at a price equal to the related Redemption Price.
(ii) Optional Termination Related to the Aggregate Group II Mortgage
Loans. On any Distribution Date occurring on or after the Initial Optional
Purchase Date related to the Aggregate Group II Mortgage Loans, the Master
Servicer has the option to cause the Trust Fund to adopt a plan of
complete liquidation of the Aggregate Group II Mortgage Loans pursuant to
Sections 7.02 and 7.03 hereof to sell all of the property related thereto.
If the Master Servicer elects to exercise such option, it shall no later
than 30 days prior to the Distribution Date selected for purchase of the
Aggregate Group II Mortgage Loans and all other assets of the Trust Fund
related to the Aggregate Group II Certificates (with respect to the
Aggregate Group II Mortgage Loans, the "Purchase Date") deliver written
notice to the Trustee and the Securities Administrator and either (a)
deposit in the Distribution Account the related Redemption Price or (b)
state in such notice that the Redemption Price shall be deposited in the
Distribution Account not later than 10:00 a.m., New York City time, on the
applicable Purchase Date. Upon exercise of such option, the property of
the Trust Fund related to the Aggregate Group II Mortgage Loans shall be
sold to the Master Servicer at a price equal to the related Redemption
Price.
(d) The Depositor, the Master Servicer, each Servicer, the Securities
Administrator, the Trustee and the Custodian shall be reimbursed from the
related Redemption Price for any Advances, Servicer Advances, accrued and unpaid
Servicing Fees or other amounts with respect to the Mortgage Loans and any
related assets being purchased pursuant to Section 7.01(b) or 7.01(c) above that
are reimbursable to such parties (and such other amounts which, if not related
to the Mortgage Loans and other assets of the Trust Fund not being purchased,
that are then due and owing to any such Person) under this Agreement and the
related Purchase and Servicing Agreement or the related Custodial Agreement.
Section 7.02 Procedure Upon Redemption of Trust Fund.
(a) Notice of any termination pursuant to the provisions of Section 7.01,
specifying the Distribution Date upon which the final distribution shall be made
or the purchase of the Trust's assets related to the Group 1 Certificates or the
Aggregate Group II Certificates, as applicable, will occur, shall be given
promptly by the Securities Administrator by first class mail
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to the related Certificateholders mailed in the case of a redemption of the
related Certificates, no later than (i) the first day of the month in which the
Distribution Date selected for redemption of such Certificates shall occur or
(ii) upon (x) the sale of all of the property of the Trust Fund by the
Securities Administrator or in the case of a sale of assets of the Trust Fund,
or (y) upon the final payment or other liquidation of the last Mortgage Loan or
REO Property in the Trust Fund. Such notice shall specify (A) the Initial
Optional Purchase Date, Distribution Date upon which final distribution on the
related Certificates of all amounts required to be distributed to
Certificateholders pursuant to Section 5.02 will be made upon presentation and
surrender of the Certificates at the Certificate Registrar's Corporate Trust
Office, and (B) that the Record Date otherwise applicable to such Distribution
Date is not applicable, distribution being made only upon presentation and
surrender of the Certificates at the office or agency of the Securities
Administrator therein specified. The Securities Administrator shall give such
notice to the Trustee, the Master Servicer and the Certificate Registrar at the
time such notice is given to Holders of the Certificates. Upon any such
termination, the duties of the Certificate Registrar with respect to the
affected Certificates shall terminate and, in the event that such termination is
the second termination pursuant to Section 7.01, the Securities Administrator
shall terminate the Distribution Account and any other account or fund
maintained with respect to the Certificates, subject to the Securities
Administrator's obligation hereunder to hold all amounts payable to
Certificateholders in trust without interest pending such payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Securities Administrator shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice any Certificates shall not
have been surrendered for cancellation, the Securities Administrator may take
appropriate steps to contact the remaining Certificateholders concerning
surrender of such Certificates, and the cost thereof shall be paid out of the
amounts distributable to such Holders. If within two years after the second
notice any Certificates shall not have been surrendered for cancellation, the
Securities Administrator shall deliver any remaining funds being held by it to
the Holder of the Class A-R Certificates and the Holder of the Class A-R
Certificates shall, subject to applicable state law relating to escheatment,
hold all amounts distributable to such Holders for the benefit of such Holders.
No interest shall accrue on any amount held by the Securities Administrator and
not distributed to a Certificateholder due to such Certificateholder's failure
to surrender its Certificate(s) for payment of the final distribution thereon in
accordance with this Section. The foregoing provisions are intended to
distribute to each Class of Certificates any accrued and unpaid interest and/or
principal to which they are entitled based on their Pass-Through Rates and Class
Certificate Balances or Notional Amounts set forth in the Preliminary Statement
upon liquidation of the Trust Fund.
(c) Any reasonable expenses incurred by the Securities Administrator in
connection with any purchase or termination or liquidation of the portion of the
Trust Fund related to the Group 1 Certificates or the Aggregate Group II
Certificates, as applicable, shall be reimbursed from proceeds received from the
liquidation of the Trust Fund.
(d) Any purchase of the Group 1 Assets by the related Auction Purchaser
shall be made on an Auction Date by receipt of the Auction Administrator of the
related Mortgage Loan
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Auction Price from the Auction Purchaser, and deposit of the such Mortgage Loan
Auction Price into the Distribution Account by the Auction Administrator before
the Distribution Date on which such purchase is effected. Upon deposit of such
purchase price into the Distribution Account, the Trustee and the Securities
Administrator, shall, upon request and at the expense of the Auction Purchaser,
execute and deliver all such instruments of transfer or assignment, in each case
without recourse, as shall be reasonably requested by the Auction Purchaser to
vest title in the Auction Purchaser in the Group 1 Assets so purchased and shall
transfer or deliver to the Auction Purchaser the purchased Group 1 Assets.
Section 7.03 Additional Trust Fund Termination Requirements.
(a) On the termination of the Trust Fund under Section 7.01 (a), upon an
Auction Sale pursuant to Section 7.01(b) or upon the exercise of the right to
purchase all of the Group 1 Mortgage Loans or the Aggregate Group II Mortgage
Loans, as applicable, pursuant to Section 7.01(c), the Securities Administrator,
on behalf of the Trustee, shall comply with requirements of this Section 7.03
with respect to each Lower Tier REMIC relating to the assets to be sold (the
"Affected REMIC") and with respect to the Certificates corresponding to the
Affected REMIC (the "Corresponding Certificates"), unless the party having the
right to purchase the assets of the Affected REMIC (the "Purchaser") delivers to
the Trustee and the Securities Administrator, an Opinion of Counsel (at the
Master Servicer's expense), addressed to the Trustee and the Securities
Administrator to the effect that the failure of the Securities Administrator 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 making the final payment on
the Corresponding Certificates, (and upon notification by (1) the Auction
Administrator in the case of a purchase under Section 7.01(b) or (2) the
Master Servicer in the case of a purchase under Section 7.01(c)(i) or
Section 7.01(c)(ii), as applicable) the Securities Administrator on behalf
of the Trustee shall adopt on behalf of the Affected REMIC, a plan of
complete liquidation, meeting the requirements of a qualified liquidation
under the REMIC Provisions;
(ii) Any sale of the assets of the Affected REMIC shall be for cash
and shall occur at or after the time the plan of complete liquidation is
adopted and prior to the time the final payments on the Corresponding
Certificates are made;
(iii) On the date specified for final payment of the Corresponding
Certificates, the Securities Administrator shall make final distributions
of principal and interest on the Corresponding Certificates in accordance
with Section 5.02 and, after payment of, or provision for any outstanding
expenses, distribute or credit, or cause to be distributed or credited, to
the Holders of the Residual Certificates all cash on hand after such final
payment (other than cash retained to meet claims), and the portion of the
Trust Fund (and the Affected REMIC) shall terminate at that time; and
(iv) In no event may the final payment on the Corresponding
Certificates or the final distribution or credit to the Holders of the
Residual Certificates be made after the 89th day from the date on which
the plan of complete liquidation is adopted.
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(b) By its acceptance of a Residual Certificate, each Holder thereof
hereby agrees to accept the plan of complete liquidation adopted by the
Securities Administrator on behalf of the Trustee under this Section and to take
such other action in connection therewith as may be reasonably requested by the
Trustee, the Securities Administrator or any Servicer.
ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01 Limitation on Rights of Holders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or this Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of this
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them. Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Master Servicer or
the operation and management of the Trust Fund, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Certificates, be construed so as to constitute the Certificateholders
from time to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of Certificates evidencing not less than 25% of the Class
Principal Amount or Class Notional Amount (or Percentage Interest) of
Certificates of each Class affected thereby shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding and no direction inconsistent
with such written request has been given such Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder, the Securities Administrator and the Trustee, that no one or
more Holders of Certificates shall have any right in any manner whatever by
virtue or by availing of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section, each and every Certificateholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
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Section 8.02 Access to List of Holders.
(a) If the Trustee is not acting as Certificate Registrar, the Certificate
Registrar will furnish or cause to be furnished to the Trustee, within fifteen
days after receipt by the Certificate Registrar of a request by the Trustee in
writing, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Certificateholders of each Class as of the most
recent Record Date.
(b) If three or more Holders or Certificate Owners (hereinafter referred
to as "Applicants") apply in writing to the Certificate Registrar, and such
application states that the Applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such Applicants propose to
transmit, then the Certificate Registrar shall, within five Business Days after
the receipt of such application, afford such Applicants reasonable access during
the normal business hours of the Certificate Registrar to the most recent list
of Certificateholders held by the Certificate Registrar or shall, as an
alternative, send, at the Applicants' expense, the written communication
proffered by the Applicants to all Certificateholders at their addresses as they
appear in the Certificate Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing Agency,
by receiving and holding a Certificate, agrees with the Depositor, the Master
Servicer, the Securities Administrator, the Certificate Registrar and the
Trustee that none of the Depositor, the Master Servicer, the Securities
Administrator, the Certificate Registrar nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
Section 8.03 Acts of Holders of Certificates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by Holders or
Certificate Owners, if the Holder is a Clearing Agency, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and the Securities
Administrator and, where expressly required herein, to the Master Servicer. Such
instrument or instruments (as the action embodies therein and evidenced thereby)
are herein sometimes referred to as an "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agents shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee, the Securities Administrator
and the Master Servicer, if made in the manner provided in this Section. Each of
the Trustee, the Securities Administrator and the Master Servicer shall promptly
notify the others of receipt of any such instrument by it, and shall promptly
forward a copy of such instrument to the others.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any
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notary public or other officer authorized by law to take acknowledgments or
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by an
officer of a corporation or a member of a partnership on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the individual executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such Certificates shall
be overdue and notwithstanding any notation of ownership or other writing
thereon made by anyone other than the Trustee) shall be proved by the
Certificate Register, and none of the Trustee, the Securities Administrator, the
Master Servicer or the Depositor shall be affected by any notice to the
contrary.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Certificate shall bind every future Holder
of the same Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the Trustee or the
Master Servicer in reliance thereon, whether or not notation of such action is
made upon such Certificate.
ARTICLE IX
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of
Servicers' and Master Servicer's Obligations.
(a) The Master Servicer, on behalf of the Trustee, the Depositor and the
Certificateholders shall monitor the performance of the Servicers under the
Purchase and Servicing Agreements, and shall use its reasonable good faith
efforts to cause the Servicers duly and punctually to perform all of their
respective duties and obligations thereunder. Upon the occurrence of a default
of which a Responsible Officer of the Master Servicer has actual knowledge under
a Purchase and Servicing Agreement, the Master Servicer shall promptly notify
the Trustee thereof, and shall specify in such notice the action, if any, the
Master Servicer is taking in respect of such default. So long as any such
default shall be continuing, the Master Servicer may, and shall if it determines
such action to be in the best interests of Certificateholders, (i) terminate all
of the rights and powers of such Servicer pursuant to the applicable provisions
of the related Purchase and Servicing Agreement; (ii) exercise any rights it may
have to enforce the related Purchase and Servicing Agreement against such
Servicer; and/or (iii) waive any such default under the related Purchase and
Servicing Agreement or take any other action with respect to such default as is
permitted thereunder. Notwithstanding anything to the contrary in this
Agreement, with respect to any Additional Collateral Mortgage Loan, the Master
Servicer will have no duty or obligation to supervise, monitor or oversee the
activities of the related Servicer under any Purchase and Servicing Agreement
with respect to any Additional Collateral or under any agreement relating to the
pledge of, or the perfection of a pledge or
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security interest in, any Additional Collateral except upon the occurrence of
the following events (i) in the case of a final liquidation of any Mortgaged
Property secured by Additional Collateral, the Master Servicer shall enforce the
obligation of the Servicer under the related Servicing Agreement to liquidate
such Additional Collateral as required by such Servicing Agreement, and (ii) if
the Master Servicer assumes the obligations of such Servicer as successor
Servicer under the related Servicing Agreement pursuant to this Section 9.01, as
successor Servicer, it shall be bound to service and administer the Additional
Collateral in accordance with the provisions of such Servicing Agreement.
(b) Upon any termination by the Master Servicer of a Servicer's rights and
powers pursuant to its Purchase and Servicing Agreement, the rights and powers
of such Servicer with respect to the related Mortgage Loans shall vest in the
Master Servicer and the Master Servicer shall be the successor in all respects
to such Servicer in its capacity as Servicer with respect to such Mortgage Loans
under the related Purchase and Servicing Agreement, unless or until the Master
Servicer shall have appointed (and the Trustee shall have acknowledged), with
the consent of the Rating Agencies and in accordance with the applicable
provisions of the related Purchase and Servicing Agreement, a new Xxxxxx Xxx- or
FHLMC-approved Person to serve as successor to the Servicer; provided, however,
that it is understood and agreed by the parties hereto that there will be a
period of transition (not to exceed 90 days) before the actual servicing
functions can be fully transferred to a successor servicer (including the Master
Servicer). With such letter from the Rating Agencies, the Master Servicer may
elect to continue to serve as successor servicer under the Purchase and
Servicing Agreement. Upon appointment of a successor servicer, as authorized
under this Section 9.01(b), unless the successor servicer shall have assumed the
obligations of the terminated Servicer under such Purchase and Servicing
Agreement, the Master Servicer and such successor servicer shall enter into a
servicing agreement in a form substantially similar to the affected Purchase and
Servicing Agreement, and the Trustee shall acknowledge such servicing agreement.
In connection with any such appointment, the Master Servicer may make such
arrangements for the compensation of such successor servicer as it and such
successor servicer shall agree, but in no event shall such compensation of any
successor servicer (including the Master Servicer) be in excess of that payable
to the Servicer under the affected Purchase and Servicing Agreement.
The Master Servicer shall pay the costs of such enforcement (including the
termination of a Servicer, the appointment of a successor servicer or the
transfer and assumption of the servicing by the Master Servicer) at its own
expense and shall be reimbursed therefor initially (i) by the terminated
Servicer, (ii) from a general recovery resulting from such enforcement only to
the extent, if any, that such recovery exceeds all amounts due in respect of the
related Mortgage Loans, (iii) from a specific recovery of costs, expenses or
attorney's fees against the party against whom such enforcement is directed, or
(iv) to the extent that such amounts described in (i)-(iii) above are
insufficient to reimburse the Master Servicer for such costs of enforcement,
from the Trust Fund, as provided in Section 9.04.
If the Master Servicer assumes the servicing with respect to any of the
Mortgage Loans, it will not assume liability for the representations and
warranties of any Servicer it replaces or for the errors or omissions of such
Servicer.
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If the Seller is the owner of the servicing rights and the Seller chooses to
terminate that Servicer with or without cause and sell those servicing rights to
a successor servicer, then the Depositor shall (i) cause the Seller to give
reasonable prior written notice to the Master Servicer, and (ii) obtain a letter
from the Rating Agencies indicating that the appointment of the proposed
successor servicer will not result in a downgrade or withdrawal of the rating of
any of the Certificates, and a New Xxxxxx Xxx- or FHLMC-approved Person
reasonably acceptable to the Master Servicer shall be chosen by the Seller and
appointed as successor servicer with the acknowledgment of the Master Servicer
and the Trustee; provided, however, that the Seller shall not be required to get
a no-downgrade letter from the Rating Agencies if: (i) the Rating Agencies
received prior written notice of the transfer of the servicing rights and the
name of the successor Servicer, (ii) such successor Servicer has a servicing
rating in the highest category of Fitch or Xxxxx'x to the extent that Fitch or
Xxxxx'x, respectively, is a Rating Agency, and such successor Servicer has a
servicer evaluation ranking in one of the two highest categories of S&P to the
extent that S&P is a Rating Agency, and (iii) such successor Servicer shall
service the related Mortgage Loans under either the Purchase and Servicing
Agreement together with the related Assignment Agreement under which such
Mortgage Loans are currently being serviced or under another Servicing Agreement
together with a related Assignment Agreement that have already been reviewed and
approved by the Rating Agencies. The Depositor shall cause the costs of such
transfer including any costs of such transfer (including any costs of the Master
Sservicer) to be borne by the Seller.
(c) Upon any termination of a Servicer's rights and powers pursuant to its
Purchase and Servicing Agreement, the Master Servicer shall promptly notify the
Trustee and the Rating Agencies, specifying in such notice that the Master
Servicer or any successor servicer, as the case may be, has succeeded such
Servicer under the related Purchase and Servicing Agreement, or under any other
servicing agreement reasonably satisfactory to the Master Servicer and the
Rating Agencies, which notice shall also specify the name and address of any
such successor servicer.
(d) The Depositor shall not consent to the assignment by any Servicer of
such Servicer's rights and obligations under the related Purchase and Servicing
Agreement without the prior written consent of the Master Servicer, which
consent shall not be unreasonably withheld.
(e) The Trustee shall execute and deliver, at the written request of the
Master Servicer or any Servicer, and furnish to the Master Servicer and any
Servicer, at the expense of the requesting party, a power of attorney in the
standard form provided by the Trustee to take title to the Mortgaged Properties
after foreclosure in the name of and on behalf of the Trustee and for the
purposes described herein to the extent necessary or desirable to enable the
Master Servicer or any Servicer to perform its respective duties. The Trustee
shall not be liable for the actions of the Master Servicer or any Servicer under
such powers of attorney.
Section 9.02 Assumption of Master Servicing by Trustee.
(a) In the event the Master Servicer shall for any reason no longer be the
Master Servicer (including by reason of any Event of Default by the Master
Servicer under this Agreement), the Trustee shall thereupon assume all of the
rights and obligations of such Master
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Servicer hereunder and under each Purchase and Servicing Agreement entered into
with respect to the Mortgage Loans or shall appoint or petition a court to
appoint a Xxxxxx-Xxx or FHLMC-approved servicer as successor servicer that is
acceptable to the Depositor and the Rating Agencies. The Trustee, as successor
master servicer, its designee or any successor master servicer appointed by the
Trustee shall be deemed to have assumed all of the Master Servicer's interest
herein and therein to the same extent as if such Purchase and Servicing
Agreements had been assigned to the assuming party, except that the Master
Servicer shall not thereby be relieved of any liability or obligations of the
Master Servicer under such Purchase and Servicing Agreement accruing prior to
its replacement as Master Servicer, and shall be liable to the Trustee, and
hereby agrees to indemnify and hold harmless the Trustee from and against all
costs, damages, expenses and liabilities (including reasonable attorneys' fees)
incurred by the Trustee as a result of such liability or obligations of the
Master Servicer and in connection with the Trustee's assumption (but not its
performance, except to the extent that costs or liability of the Trustee are
created or increased as a result of negligent or wrongful acts or omissions of
the Master Servicer prior to its replacement as Master Servicer) of the Master
Servicer's obligations, duties or responsibilities thereunder.
(b) The Master Servicer that has been terminated shall, upon request of
the Trustee but at the expense of such Master Servicer, deliver to the assuming
party all documents and records relating to each Purchase and Servicing
Agreement, this Agreement and the related Mortgage Loans and an accounting of
amounts collected and held by it and otherwise use its best efforts to effect
the orderly and efficient transfer of each Purchase and Servicing Agreement and
this Agreement to the assuming party.
Section 9.03 Representations and Warranties of the Master Servicer.
The Master Servicer hereby represents and warrants to the Depositor, the
Securities Administrator and the Trustee, for the benefit of the
Certificateholders, as of the Closing Date that:
(i) it is validly existing and in good standing under the laws of
the United States of America as a national banking association, and as
Master Servicer has full power and authority to transact any and all
business contemplated by this Agreement and to execute, deliver and comply
with its obligations under the terms of this Agreement, the execution,
delivery and performance of which have been duly authorized by all
necessary corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws,
(B) violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it is bound
or to which any of its assets are subject, which violation, default or
breach would materially and adversely affect the Master Servicer's ability
to perform its obligations under this Agreement;
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(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights in general, and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any order
or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency to the extent that any such default would
materially and adversely affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any agreement
or instrument or subject to any charter provision, bylaw or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that may materially and adversely affect its ability as
Master Servicer to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations
under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement;
(vii) the Master Servicer, or an affiliate thereof the primary
business of which is the servicing of conventional residential mortgage
loans, is a Xxxxxx Mae- or FHLMC-approved seller/servicer;
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master Servicer
with this Agreement or the consummation of the transactions contemplated
by this Agreement, except for such consents, approvals, authorizations and
orders (if any) as have been obtained; and
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer.
It is understood and agreed that the representations and warranties set
forth in this Section shall survive the execution and delivery of this
Agreement. The Master Servicer shall indemnify the Depositor, the Securities
Administrator and the Trustee and hold them harmless against any loss, damages,
penalties, fines, forfeitures, legal fees and related costs, judgments, and
other costs and expenses resulting from any claim, demand, defense or assertion
based on or grounded upon, or resulting from, a material breach of the Master
Servicer's representations and warranties contained in this Section 9.03. It is
understood and agreed that the enforcement of the obligation of the Master
Servicer set forth in this Section to indemnify the Depositor, the Securities
Administrator and the Trustee as provided in this Section constitutes the sole
remedy (other than
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as set forth in Section 6.14) of the Depositor, the Securities Administrator and
the Trustee, respecting a breach of the foregoing representations and
warranties. Such indemnification shall survive any termination of the Master
Servicer as Master Servicer hereunder, the resignation or removal of the Trustee
and any termination of this Agreement.
Any cause of action against the Master Servicer relating to or arising out
of the breach of any representations and warranties made in this Section shall
accrue upon discovery of such breach by either the Depositor, the Master
Servicer or the Trustee or notice thereof by any one of such parties to the
other parties.
Section 9.04 Compensation to the Master Servicer.
The Master Servicer shall be compensated for its duties hereunder
pursuant to Section 4.02(b) hereof. The Master Servicer shall be entitled to be
paid, and either retain or withdraw from the Distribution Account (i) amounts
necessary to reimburse itself for any previously unreimbursed Advances, Servicer
Advances and Nonrecoverable Advances with respect to the Mortgage Loans in
accordance with the definition of "Available Funds" and (ii) amounts
representing assumption fees, late payment charges or other ancillary income not
included in the definition of "Available Funds" and which are not required to be
remitted by the Servicers to the Securities Administrator or deposited by the
Securities Administrator into the Distribution Account. 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 Agreements, as
modified by the Acknowledgements (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), to the extent not
otherwise reimbursed pursuant to this Agreement, except any such expense,
disbursement or advance as may be attributable to its willful misfeasance, bad
faith or negligence.
The Master Servicer and any director, officer, employee or agent of the
Master Servicer shall be indemnified by the Trust and held harmless thereby
against any loss, liability or expense (including reasonable legal fees and
disbursements of counsel) incurred on their part that may be sustained in
connection with, arising out of, or related to, any claim or legal action
(including any pending or threatened claim or legal action) relating to this
Agreement, the Purchase and Servicing Agreements or the Certificates, other than
any loss, liability or expense resulting from the Master Servicer's failure to
perform its duties hereunder or thereunder or incurred by reason of the Master
Servicer's negligence, willful misfeasance or bad faith.
Section 9.05 Merger or Consolidation.
Any Person into which the Master Servicer may be merged or consolidated,
or any Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master
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Servicer shall be the successor to the Master Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided,
however, that the successor or resulting Person to the Master Servicer shall be
a Person that shall be qualified and approved to service mortgage loans for
Xxxxxx Xxx or FHLMC and shall have a net worth of not less than $15,000,000.
Section 9.06 Resignation of Master Servicer and Securities
Administrator.
Except as otherwise provided in Sections 9.05, 9.07 and 9.10 hereof,
neither the Master Servicer nor the Securities Administrator shall resign from
the obligations and duties hereby imposed on it unless the duties of the Master
Servicer or the Securities Administrator, as applicable, hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it and cannot be cured.
Any such determination permitting the resignation of the Master Servicer or the
Securities Administrator shall be evidenced by an Opinion of Counsel that shall
be Independent to such effect delivered to the Trustee. No resignation of the
Master Servicer or the Securities Administrator shall become effective until the
Trustee shall have assumed, or a successor master servicer or successor
securities administrator, as applicable, shall have been appointed pursuant to
Section 6.07 or 9.02, as applicable, and until such successor shall have
assumed, such Master Servicer's or Securities Administrator's responsibilities
and obligations under this Agreement. Notice of any such resignation shall be
given promptly by the Master Servicer or the Securities Administrator, as
applicable, to the Depositor and the Trustee.
If, at any time, the Master Servicer resigns under this Section 9.06, or
transfers or assigns its rights and obligations under Section 9.07, or is
removed as Master Servicer pursuant to Section 6.14, then at such time Xxxxx
Fargo Bank, National Association (or any successor thereto) also shall resign or
be removed, as applicable, as Securities Administrator, Auction Administrator,
Paying Agent, Authenticating Agent and Certificate Registrar under this
Agreement. In such event, the obligations of the Master Servicer and the
Securities Administrator shall be assumed by the Trustee as successor or by such
other successor master servicer and/or securities administrator, as applicable,
appointed by the Trustee (subject to the provisions of Sections 6.07 and
9.02(a)).
Section 9.07 Assignment or Delegation of Duties by the Master
Servicer and Securities Administrator.
Except as expressly provided herein, neither the Master Servicer nor the
Securities Administrator shall assign or transfer any of their respective
rights, benefits or privileges hereunder to any other Person, or delegate to or
subcontract with, or authorize or appoint any other Person to perform any of the
respective duties, covenants or obligations to be performed by the Master
Servicer or Securities Administrator, as applicable, hereunder; provided,
however, that the Master Servicer and the Securities Administrator shall each
have the right with the prior written consent of the Trustee and the Depositor
(which consent shall not be unreasonably withheld), and upon delivery to the
Trustee and the Depositor of a letter from each Rating Agency to the effect that
such action shall not result in a downgrading of the Certificates, to delegate
or assign to or subcontract with or authorize or appoint any qualified Person to
perform and carry out any of the respective duties, covenants or obligations to
be performed and carried
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out by the Master Servicer or the Securities Administrator, as applicable,
hereunder. Notice of such permitted assignment shall be given promptly by the
Master Servicer or the Securities Administrator, as applicable, to the Depositor
and the Trustee. If, pursuant to any provision hereof, the respective duties of
the Master Servicer or the Securities Administrator are transferred to a
successor master servicer or successor securities administrator, as applicable,
the entire amount of the compensation payable to the Master Servicer or
Securities Administrator pursuant hereto shall thereafter be payable to such
successor master servicer or successor securities administrator. Such successor
Master Servicer shall also pay the fees of the Trustee, as provided herein.
Section 9.08 Limitation on Liability of the Master Servicer and
Others.
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
Trustee or the Certificateholders for any action taken or for refraining from
the taking of any action in good faith pursuant to this Agreement, or for errors
in judgment; provided, however, that this provision shall not protect the Master
Servicer or any such person against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in its
performance of its duties or by reason of reckless disregard for its obligations
and duties under this Agreement. The Master Servicer and any director, officer,
employee or agent of the Master Servicer may rely in good faith on any document
of any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. The Master Servicer shall be under no obligation
to appear in, prosecute or defend any legal action that is not incidental to its
duties to master service the Mortgage Loans in accordance with this Agreement
and that in its opinion may involve it in any expenses or liability; provided,
however, that the Master Servicer may in its sole discretion undertake any such
action that it may deem necessary or desirable in respect to this Agreement and
the rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund and the Master Servicer shall be entitled to be
reimbursed therefor out of the Distribution Account.
The Master Servicer shall not be liable for any acts or omissions of the
Servicers except to the extent that damages or expenses are incurred as a result
of such act or omissions and such damages and expenses would not have been
incurred but for the negligence, willful misfeasance, bad faith or recklessness
of the Master Servicer in supervising, monitoring and overseeing the obligations
of the Servicers in this Agreement and the Purchase and Servicing Agreements.
Section 9.09 Indemnification; Third-Party Claims.
The Master Servicer agrees to indemnify the Depositor, the
Securities Administrator and the Trustee, and hold them harmless against any and
all claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the Depositor,
the Securities Administrator or the Trustee may sustain as a result of the
Master Servicer's willful misfeasance, bad faith or negligence in the
performance of its duties hereunder or by reason of its reckless disregard for
its obligations and duties under this Agreement, the Acknowledgements and the
related Purchase and Servicing Agreements. The Depositor, the Securities
Administrator and the Trustee shall immediately notify the Master
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Servicer if a claim is made by a third party with respect to this Agreement or
the Mortgage Loans entitling the Depositor, the Securities Administrator or the
Trustee to indemnification under this Section 9.09(a), whereupon the Master
Servicer shall assume the defense of any such claim and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim.
Section 9.10 Eligibility Requirements for Securities Administrator.
The Securities Administrator hereunder shall at all times be a
corporation or association organized and doing business under the laws the
United States of America or any state thereof, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, subject to supervision or examination by federal or state
authority and with a credit rating of at least investment grade or at least
"A/F1" by Fitch if Fitch is a Rating Agency. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 9.10 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 9.10, the Securities
Administrator shall resign immediately in the manner and with the effect
specified in Section 6.06 hereof. The entity serving as Securities Administrator
may have normal banking and trust relationships with the Depositor, the Seller,
the Master Servicer, any Custodian or the Trustee and their respective
affiliates.
The Securities Administrator (i) may not be an Originator, Master
Servicer, Servicer, the Depositor or an affiliate of the Depositor unless the
Securities Administrator is in an institutional trust department, (ii) must be
authorized to exercise corporate trust powers under the laws of its jurisdiction
of organization, and (iii) must be rated at least "A/F1" by Fitch, if Fitch is a
Rating Agency, or the equivalent rating by S&P or Xxxxx'x (or such rating
acceptable to Fitch pursuant to a written confirmation). If at any time the
Securities Administrator shall cease to be eligible in accordance with the
provisions of this Section 9.10, the Securities Administrator shall resign in
the manner and with the effect specified in Section 6.06 hereof. If no successor
Securities Administrator shall have been appointed and shall have accepted
appointment within 60 days after the Securities Administrator ceases to be the
Securities Administrator pursuant to this Section 9.10, then the Trustee shall
become the successor Securities Administrator in accordance with Article VI
hereof and in such capacity shall perform the duties of the Securities
Administrator pursuant to this Agreement. The Trustee shall notify the Rating
Agencies of any change of Securities Administrator.
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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 860G(a)(9) of the Code. The latest possible
maturity date for purposes of Treasury Regulation 1.860G-1(a)(4) will be the
Latest Possible Maturity Date.
(c) The Securities Administrator shall represent the Trust Fund in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority with respect thereto. The Securities Administrator
shall pay any and all tax related expenses (not including taxes) of each REMIC,
including but not limited to any professional fees or expenses related to audits
or any administrative or judicial proceedings with respect to such REMIC that
involve the Internal Revenue Service or state tax authorities, but only to the
extent that (i) such expenses are ordinary or routine expenses, including
expenses of a routine audit but not expenses of litigation (except as described
in (ii)); or (ii) such expenses or liabilities (including taxes and penalties)
are attributable to the negligence or willful misconduct of the Securities
Administrator in fulfilling its duties hereunder (including its duties as tax
return preparer). The Securities Administrator shall be entitled to
reimbursement of expenses to the extent provided in clause (i) above from the
Distribution Account, provided, however, the Securities Administrator shall not
be entitled to reimbursement for expenses incurred in connection with the
preparation of tax returns and other reports as required by Section 6.20 and
this Section.
(d) The Securities Administrator shall prepare, the Trustee shall sign and
the Securities Administrator shall file all of each REMIC's federal and
appropriate state tax and information returns as such REMIC's direct
representative. The expenses of preparing and filing such returns shall be borne
by the Securities Administrator. In preparing such returns, the Securities
Administrator shall, with respect to each REMIC other than the Master REMIC: (i)
treat the accrual period for interests in such REMIC as the calendar month; (ii)
account for distributions made from each REMIC other than the Master REMIC as
made on the first day of each succeeding calendar month; (iii) account for
income under the all-OID method at the weighted average of the Net Mortgage
Rates; (iv) use the aggregation method provided in Treasury Regulation section
1.1275-2(c); and (v) account for income and expenses related to each REMIC other
than the Master REMIC in the manner resulting in the lowest amount of excess
inclusion income possible accruing to the Holder of the residual interest in
each such REMIC.
(e) The Securities Administrator or its designee shall perform on behalf
of each REMIC all reporting and other tax compliance duties that are the
responsibility of such REMIC under the Code, the REMIC Provisions, or other
compliance guidance issued by the Internal
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Revenue Service or any state or local taxing authority. Among its other duties,
if required by the Code, the REMIC Provisions, or other such guidance, the
Securities Administrator shall provide, upon receipt of additional reasonable
compensation, (i) to the Treasury or other governmental authority such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any disqualified person or organization
pursuant to Treasury Regulation 1.860E-2(a)(5) and any person designated in
Section 860E(e)(3) of the Code and (ii) to the Certificateholders and the
Trustee such information or reports as are required by the Code or REMIC
Provisions.
(f) To the extent within their control, the Trustee, the Securities
Administrator, the Master Servicer and the Holders of Certificates shall take
any action or cause any REMIC to take any action necessary to maintain the
status of any REMIC as a REMIC under the REMIC Provisions and shall assist each
other as necessary to create or maintain such status. None of the Trustee, the
Securities Administrator, the Master Servicer, nor the Holder of any Residual
Certificate shall knowingly take any action, cause any REMIC to take any action
or fail to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could result in an
Adverse REMIC Event unless the Trustee, the Securities Administrator and the
Master Servicer have received an Opinion of Counsel (at the expense of the party
seeking to take such action) to the effect that the contemplated action will not
endanger such status or result in the imposition of such a tax. In addition,
prior to taking any action with respect to any REMIC or the assets therein, or
causing any REMIC to take any action, which is not expressly permitted under the
terms of this Agreement, any Holder of a Residual Certificate will consult with
the Trustee, the Securities Administrator, the Master Servicer or their
respective designees, in writing, with respect to whether such action could
cause an Adverse REMIC Event to occur with respect to any REMIC, and no such
Person shall take any such action or cause any REMIC to take any such action as
to which the Trustee, the Securities Administrator or the Master Servicer has
advised it in writing that an Adverse REMIC Event could occur; provided,
however, that if no Adverse REMIC Event would occur but such action could result
in the imposition of additional taxes on the Residual Certificateholders, no
such Person shall take any such action, or cause any REMIC to take any such
action without the written consent of the Residual Certificateholders.
(g) Each Holder of a Residual Certificate shall pay when due any and all
taxes imposed on the related REMIC by federal or state governmental authorities.
To the extent that such taxes are not paid by a Residual Certificateholder, the
Paying Agent shall pay any remaining REMIC taxes out of current or future
amounts otherwise distributable to the Holder of the Residual Certificate in any
such REMIC or, if no such amounts are available, (A) out of other amounts held
in the Distribution Account, and shall reduce amounts otherwise payable to
holders of regular interests in any such REMIC or (B) to the extent that any
such taxes are imposed on the REMIC as a result of the breach of any
representation, warranty or covenant of the Master Servicer, the Securities
Administrator or any Servicer, then the Master Servicer, the Securities
Administrator, or that Servicer, as applicable, shall pay when due any and all
such taxes.
(h) The Securities Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC on a calendar year and on
an accrual basis.
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(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).
The Master Servicer with respect to the Mortgage Loans shall not consent
to any modification of any such Mortgage Loan for which the consent of the
Master Servicer is required under the applicable Purchase and Servicing
Agreement under which such Mortgage Loan is serviced, that would (i) increase
the interest rate in respect of such Mortgage, defer for a period in excess of
six months or forgive the payment of any principal or interest, reduce the
outstanding principal amount (except for actual payments of principal), increase
the Servicing Fee on such Mortgage Loan or extend the final maturity date on
such Mortgage Loan, or (ii) result in a substitution or release of collateral or
in the provision of additional collateral for the Mortgage Loan, unless the
applicable Mortgage Loan is in default or default is reasonably foreseeable in
respect of such Mortgage Loan, or the Master Servicer has received an Opinion of
Counsel (at the expense of the party requesting consent for such modification)
that such modification will not result in an Adverse REMIC Event.
Section 10.03 Indemnification with Respect to Prohibited
Transactions or Loss of REMIC Status.
Upon the occurrence of an Adverse REMIC Event due to the negligent
performance by the Securities Administrator of its duties and obligations set
forth herein, the Securities Administrator shall indemnify the
Certificateholders of the related Residual Certificate against any and all
losses, claims, damages, liabilities or expenses ("Losses") resulting from such
negligence; provided, however, that the Securities Administrator shall not be
liable for any such
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Losses attributable to the action or inaction of the Depositor, the Trustee or
the Holder of the Residual Certificate, nor for any such Losses resulting from
misinformation provided by any of the foregoing parties on which the Securities
Administrator has relied. Notwithstanding the foregoing, however, in no event
shall the Securities Administrator have any liability (1) for any action or
omission that is taken in accordance with and in compliance with the express
terms of, or which is expressly permitted by the terms of, this Agreement or
under any Purchase and Servicing Agreements or under any Acknowledgement, (2)
for any Losses other than arising out of malfeasance, willful misconduct or
negligent performance by the Service Administrator of its duties and obligations
set forth herein, and (3) for any special or consequential damages to
Certificateholders of the related Residual Certificate (in addition to payment
of principal and interest on the Certificates).
Section 10.04 REO Property.
(a) Notwithstanding any other provision of this Agreement, the Master
Servicer, acting on behalf of the Trustee hereunder, shall not, except to the
extent provided in the applicable Purchase and Servicing Agreement, knowingly
permit any Servicer to, rent, lease, or otherwise earn income on behalf of any
REMIC with respect to any REO Property which might cause an Adverse REMIC Event
unless the applicable Servicer has provided to the Trustee and the Securities
Administrator an Opinion of Counsel concluding that, under the REMIC Provisions,
such action would not adversely affect the status of any REMIC as a REMIC and
any income generated for any REMIC by the REO Property would not result in an
Adverse REMIC Event.
(b) The Depositor shall cause the applicable Servicer (to the extent
provided in its Purchase and Servicing Agreement) to make reasonable efforts to
sell any REO Property for its fair market value. In any event, however, the
Depositor shall, or shall cause the applicable Servicer (to the extent provided
in its Purchase and Servicing Agreement) to, dispose of any REO Property within
three years of its acquisition by the Trust Fund unless the Depositor or the
applicable Servicer (on behalf of the Trust Fund) has received a grant of
extension from the Internal Revenue Service to the effect that, under the REMIC
Provisions and any relevant proposed legislation and under applicable state law,
the REMIC may hold REO Property for a longer period without causing an Adverse
REMIC Event. If such an extension has been received, then the Depositor, acting
on behalf of the Trustee hereunder, shall, or shall cause the applicable
Servicer to, continue to attempt to sell the REO Property for its fair market
value for such period longer than three years as such extension permits (the
"Extended Period"). If such an extension has not been received and the Depositor
or the applicable Servicer, acting on behalf of the Trust Fund hereunder, is
unable to sell the REO Property within 33 months after its acquisition by the
Trust Fund or if such an extension, has been received and the Depositor or the
applicable Servicer is unable to sell the REO Property within the period ending
three months before the close of the Extended Period, the Depositor shall cause
the applicable Servicer, before the end of the three year period or the Extended
Period, as applicable, to (i) purchase such REO Property at a price equal to the
REO Property's fair market value or (ii) auction the REO Property to the highest
bidder (which may be the applicable Servicer) in an auction reasonably designed
to produce a fair price prior to the expiration of the three-year period or the
Extended Period, as the case may be.
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Section 10.05 Fidelity.
The Master Servicer, at its expense, shall maintain in effect a blanket
fidelity bond and an errors and omissions insurance policy, affording coverage
with respect to all directors, officers, employees and other Persons acting on
such Master Servicer's behalf, and covering errors and omissions in the
performance of the Master Servicer's obligations hereunder. The errors and
omissions insurance policy and the fidelity bond shall be in such form and
amount generally acceptable for entities serving as master servicers and
trustees.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Binding Nature of Agreement; Assignment.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 11.02 Entire Agreement.
This Agreement contains the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof.
Section 11.03 Amendment.
(a) This Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Securities Administrator, and the Trustee, without notice
to or the consent of any of the Holders, (i) to cure any ambiguity or mistake,
(ii) to cause the provisions herein to conform to or be consistent with or in
furtherance of the statements made with respect to the Certificates, the Trust
Fund or this Agreement in any Offering Document, or to correct or supplement any
provision herein which may be inconsistent with any other provisions herein or
with the provisions of any Purchase and Servicing Agreement, (iii) to make any
other provisions with respect to matters or questions arising under this
Agreement or (iv) to add, delete, or amend any provisions to the extent
necessary or desirable to comply with any requirements imposed by the Code and
the REMIC Provisions. No such amendment effected pursuant to the preceding
sentence shall, as evidenced by an Opinion of Counsel, result in an Adverse
REMIC Event, nor shall such amendment effected pursuant to clause (iii) of such
sentence adversely affect in any material respect the interests of any Holder.
Prior to entering into any amendment without the consent of Holders pursuant to
this paragraph, the Trustee shall be provided with an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such
amendment is permitted under this Section. Any such amendment shall be deemed
not to adversely affect in any material respect any Holder, if the Trustee
receives written confirmation from each Rating Agency that such amendment will
not cause such Rating Agency to reduce the then current rating assigned to the
Certificates.
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(b) This Agreement may also be amended from time to time by the Depositor,
the Master Servicer, the Securities Administrator and the Trustee, with the
consent of the Holders of not less than 66-2/3% of the Class Principal Balance
(or Percentage Interest) of each Class of Certificates affected thereby for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Holders; provided, however, that no such amendment shall be made unless the
Trustee receives an Opinion of Counsel, at the expense of the party requesting
the change, that such change will not cause an Adverse REMIC Event; and provided
further, that no such amendment may (i) reduce in any manner the amount of, or
delay the timing of, payments received on Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the Holder of such
Certificate or (ii) reduce the aforesaid percentages of Class Principal Balance
or Class Notional Amount (or Percentage Interest) of Certificates of each Class,
the Holders of which are required to consent to any such amendment without the
consent of the Holders of 100% of the Class Principal Balance or Class Notional
Amount (or Percentage Interest) of each Class of Certificates affected thereby.
For purposes of this paragraph, references to "Holder" or "Holders" shall be
deemed to include, in the case of any Class of Book-Entry Certificates, the
related Certificate Owners.
(c) Promptly after the execution of any such amendment, the Securities
Administrator shall furnish written notification of the substance of such
amendment to each Holder, the Depositor and the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under this
Section 11.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations as
the Trustee may prescribe.
Section 11.04 Voting Rights.
Except to the extent that the consent of all affected Certificateholders
is required pursuant to this Agreement, with respect to any provision of this
Agreement requiring the consent of Certificateholders representing specified
percentages of aggregate outstanding Certificate Balance or Class Notional
Amount (or Percentage Interest), Certificates owned by the Depositor, the Master
Servicer, the Securities Administrator, the Trustee, any Servicer or any
Affiliates thereof are not to be counted so long as such Certificates are owned
by the Depositor, the Master Servicer, the Securities Administrator, the
Trustee, any Servicer or any Affiliate thereof.
Section 11.05 Provision of Information.
(a) For so long as any of the Certificates of any Class are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act, each of the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
(upon instruction from the Depositor) agree to cooperate with each other to
provide to any Certificateholders and to any prospective purchaser of
Certificates designated by such holder, upon the request of such holder or
prospective purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket
126
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.
Section 11.06 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES APPLIED IN NEW YORK (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
Section 11.07 Notices.
All requests, demands, notices, authorizations, directions, consents,
waivers and communications hereunder shall be in writing and shall be deemed to
have been duly given when received by (a) in the case of the Depositor, Xxxxxx
Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, telephone
number (000) 000-0000, Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2005-9AR,
(b) in the case of the Seller, Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxxx Mortgage
Loan Trust 2005-9AR, (c) in the case of the Master Servicer or the Securities
Administrator, Xxxxx Fargo Bank, National Association, X.X. Xxx 00, Xxxxxxxx,
Xxxxxxxx 00000 (or, for overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000), telecopy number (000) 000-0000, Attention: Xxxxxx Xxxxxxx
Mortgage Loan Trust 2005-9AR, (d) with respect to the Trustee or the Certificate
Registrar, its respective Corporate Trust Office and (e) in the case of the
Rating Agencies, the address specified therefor in the definition corresponding
to the name of such Rating Agency, or as to each party such other address as may
hereafter be furnished by such party to the other parties in writing. All
demands, notices and communications to a party hereunder shall be in writing and
shall be deemed to have been duly given when delivered to such party at the
relevant address, facsimile number or electronic mail address set forth above or
at such other address, facsimile number or electronic mail address as such party
may designate from time to time by written notice in accordance with this
Section 11.07.
Section 11.08 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms
127
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;
(iii) the occurrence of any Event of Default described in Section
6.14;
(iv) any notice of termination given to the Master Servicer pursuant
to Section 6.14 and any resignation of the Master Servicer hereunder;
(v) the appointment of any successor to any Master Servicer pursuant
to Section 6.14;
(vi) the making of a final payment pursuant to Section 7.02; and
(vii) any termination of the rights and obligations of any Servicer
under the applicable Purchase and Servicing Agreement.
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(b) All notices to the Rating Agencies provided for this Section shall be
in writing and sent by first class mail, telecopy or overnight courier, to the
address specified therefor in the definition corresponding to the name of such
Rating Agency.
(c) The Securities Administrator shall provide or make available to the
Rating Agencies reports prepared pursuant to Section 4.05. In addition, the
Securities Administrator shall, at the expense of the Trust Fund, make available
to each Rating Agency such information as such Rating Agency may reasonably
request regarding the Certificates or the Trust Fund, to the extent that such
information is reasonably available to the Securities Administrator.
(d) The Depositor hereby represents to S&P that, to the Depositor's
knowledge, the information provided to such Rating Agency, including the loan
level detail, is true and correct according to such Rating Agency's
requirements.
Section 11.13 Conflicts.
To the extent that the terms of this Agreement conflict with the terms of
any Purchase and Servicing Agreement, the related Purchase and Servicing
Agreement shall govern.
Section 11.14 Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, and all of which together shall constitute
one and the same instrument.
Section 11.15 No Petitions.
The Trustee and the Master Servicer (not in its individual corporate
capacity, but solely as Master Servicer hereunder), by entering into this
Agreement, hereby covenant and agree that they shall not at any time institute
against the Depositor, or join in any institution against the Depositor of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to this Agreement or any
of the documents entered into by the Depositor in connection with the
transactions contemplated by this Agreement, except that the Trustee shall not
be prohibited from filing a proof of claim in any such proceeding.
Section 11.16 Indemnification by Trust.
Pursuant to the Purchase and Servicing Agreements, each of the Originators
and Servicers shall be indemnified by the Trust to the extent specified in the
related Purchase and Servicing Agreement.
Pursuant to the Custodial Agreements, each of the Custodians shall be
indemnified by the Trust to the extent specified in the related Custodial
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers hereunto duly authorized as of the
day and year first above written.
XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor
By: /s/ Xxxxxxx Xxx
--------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Associate
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Securities Administrator
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
Solely for purposes of Section 2.05 accepted and agreed to by:
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: /s/ Xxxxxxx Xxx
---------------------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
EXHIBIT A
FORMS OF CERTIFICATES
A-1
EXHIBIT B
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn, deposes and
says:
1. That he [she] is [title of officer] ________________________ of
[name of Purchaser] _________________________________________ (the
"Purchaser"), a _______________________ [description of type of
entity] duly organized and existing under the laws of the [State
of __________] [United States], on behalf of which he [she] makes
this affidavit.
2. That the Purchaser's Taxpayer Identification Number is [ ].
3. That the Purchaser is not a "disqualified organization" within the
meaning of Section 860E(e)(5) of the Internal Revenue Code of
1986, as amended (the "Code") and will not be a "disqualified
organization" as of [date of transfer], and that the Purchaser is
not acquiring a Residual Certificate (as defined in the Agreement)
for the account of, or as agent (including a broker, nominee, or
other middleman) for, any person or entity from which it has not
received an affidavit substantially in the form of this affidavit.
For these purposes, a "disqualified organization" means the United
States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or
instrumentality of any of the foregoing (other than an
instrumentality if all of its activities are subject to tax and a
majority of its board of directors is not selected by such
governmental entity), any cooperative organization furnishing
electric energy or providing telephone service to persons in rural
areas as described in Code Section 1381(a)(2)(C), any "electing
large partnership" within the meaning of Section 775 of the Code,
or any organization (other than a farmers' cooperative described
in Code Section 521) that is exempt from federal income tax unless
such organization is subject to the tax on unrelated business
income imposed by Code Section 511.
4. That the Purchaser either (x) is not, and on __________________
[date of transfer] will not be, an employee benefit plan or other
arrangement subject to Section 406 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975
of the Code ("Code"), (collectively, a "Plan") or a person acting
on behalf of any such Plan or investing the assets of any such
Plan to acquire a Residual Certificate; (y) is an insurance
company that is purchasing the Certificate with funds contained in
an "insurance company general account" as defined in Section V(e)
of Prohibited Transaction Class Exemption ("PTCE") 95-60 and the
purchase and holding of the Certificate satisfy the requirements
for exemptive relief under Sections I and III of XXXX
X-0
95-60; or (z) herewith delivers to the Certificate Registrar an
opinion of counsel satisfactory to the Certificate Registrar and
the Securities Administrator and upon which the Certificate
Registrar, the Trustee, the Master Servicer, the Depositor and
Securities Administrator shall be entitled to rely, to the effect
that the purchase or holding of such Residual Certificate by the
Investor will not result in any non-exempt prohibited transactions
under Title I of ERISA or Section 4975 of the Code and will not
subject the Certificate Registrar, the Trustee, the Depositor, the
Master Servicer or the Securities Administrator to any obligation
in addition to those undertaken by such entities in the Pooling
and Servicing Agreement, which opinion of counsel shall not be an
expense of the Trust Fund or any of the above parties.
5. That the Purchaser that under the terms of the Pooling and
Servicing Agreement, dated as of November 1, 2005 (the
"Agreement"), by and among Xxxxxx Xxxxxxx Capital I Inc., as
Depositor, Xxxxx Fargo Bank, National Association, as Master
Servicer, as Securities Administrator and, in its capacity as
Securities Administrator, as Auction Administrator, and Deutsche
Bank National Trust Company, as Trustee with respect to Xxxxxx
Xxxxxxx Mortgage Loan Trust 2005-9AR, Mortgage Pass-Through
Certificates, no transfer of the Residual Certificates shall be
permitted to be made to any person unless the Certificate
Registrar has received a certificate from such transferee
containing the representations in paragraphs 3 and 4 hereof.
6. That the Purchaser does not hold REMIC residual securities as
nominee to facilitate the clearance and settlement of such
securities through electronic book-entry changes in accounts of
participating organizations (such entity, a "Book-Entry Nominee").
7. That the Purchaser does not have the intention to impede the
assessment or collection of any federal, state or local taxes
legally required to be paid with respect to such Residual
Certificate.
8. That the Purchaser will not transfer a Residual Certificate to any
person or entity (i) as to which the Purchaser has actual
knowledge that the requirements set forth in paragraph 3,
paragraph 6 or paragraph 10 hereof are not satisfied or that the
Purchaser has reason to believe does not satisfy the requirements
set forth in paragraph 7 hereof, and (ii) without obtaining from
the prospective Purchaser an affidavit substantially in this form
and providing to the Certificate Registrar a written statement
substantially in the form of Exhibit C to the Agreement.
9. That the Purchaser understands that, as the holder of a Residual
Certificate, the Purchaser may incur tax liabilities in excess of
any cash flows generated by the interest and that it intends to
pay taxes associated with holding such Residual Certificate as
they become due.
10. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a
Non-U.S. Person that holds a Residual Certificate in connection
with the conduct of a trade or business
B-2
within the United States and has furnished the transferor the
Certificate Registrar with an effective Internal Revenue Service
Form W-8ECI (Certificate of Foreign Person's Claim for Exemption
From Withholding on Income Effectively Connected With the Conduct
of a Trade or Business in the United States) or successor form at
the time and in the manner required by the Code or (iii) is a
Non-U.S. Person that has delivered to the transferor, the Trustee
and the Certificate Registrar an opinion of a nationally
recognized tax counsel to the effect that the transfer of such
Residual Certificate to it is in accordance with the requirements
of the Code and the regulations promulgated thereunder and that
such transfer of a Residual Certificate will not be disregarded
for federal income tax purposes. "Non-U.S. Person" means an
individual, corporation, partnership or other person other than
(i) a citizen or resident of the United States; (ii) a
corporation, partnership or other entity created or organized in
or under the laws of the United States or any state thereof,
including for this purpose, the District of Columbia; (iii) an
estate that is subject to U.S. federal income tax regardless of
the source of its income; (iv) a trust if a court within the
United States is able to exercise primary supervision over the
administration of the trust and one or more United States trustees
have authority to control all substantial decisions of the trust;
and, (v) to the extent provided in Treasury regulations, certain
trusts in existence on August 20, 1996 that are treated as United
States persons prior to such date and elect to continue to be
treated as United States persons.
11. The Purchaser will not cause income from the Residual Certificate
to be attributable to a foreign permanent establishment or fixed
base of the Purchaser or another U.S. taxpayer.
12. That the Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the
restrictions on transfer of any Residual Certificate to such a
"disqualified organization," an agent thereof, a Book-Entry
Nominee, or a person that does not satisfy the requirements of
paragraph 7 and paragraph 10 hereof.
13. That the Purchaser consents to the designation of the Securities
Administrator to act as agent for the "tax matters person" of each
REMIC created by the Trust Fund pursuant to the Pooling and
Servicing Agreement.
B-3
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its [title of officer] this _____ day of __________ 20__.
---------------------------------
[name of Purchaser]
By:
--------------------------------
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________ 20__.
NOTARY PUBLIC
------------------------------
COUNTY OF
--------------------
STATE OF
---------------------
My commission expires the _____ day of __________ 20__.
B-4
EXHIBIT C
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
----------------------------
Date
Re: Xxxxxx Xxxxxxx Mortgage Loan Trust 2005-9AR
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
1. Second Amended and Restated Master Mortgage Loan Purchase Agreement, dated as
of February 1, 2004 between Xxxxxx Xxxxxxx Credit Corporation, as seller, and
Xxxxxx Xxxxxxx Mortgage Capital Inc., as purchaser;
2. First Amended and Restated Servicing Agreement dated as of June 10, 2004
between GMAC Mortgage Corporation, as servicer, and Xxxxxx Xxxxxxx Mortgage
Capital Inc.;
3. Master Mortgage Loan Purchase and Warranties Agreement, dated as of January
20, 2005 between First National Bank of Nevada, as seller, and Xxxxxx Xxxxxxx
Mortgage Capital Inc.,
as purchaser;
4. Mortgage Loan Purchase and Warranties Agreement, dated as of March 15, 2005
between GreenPoint Mortgage Funding, Inc., as seller, and Xxxxxx Xxxxxxx
Mortgage Capital Inc., as
purchaser;
5. Mortgage Loan Sale and Servicing Agreement, dated as of August 1, 2005
between HSBC Mortgage Corporation (USA), as seller and Xxxxxx Xxxxxxx Mortgage
Capital Inc., as purchaser;
6. Mortgage Loan Purchase And Warranties Agreement, dated as of February 1,
2005, between MILA, Inc., as seller, and Xxxxxx Xxxxxxx Mortgage Capital Inc.,
as purchaser.
7. Amended and Restated Mortgage Loan Purchase And Warranties Agreement, dated
as of May 1, 2005, between MortgageIT, Inc., as seller, and Xxxxxx Xxxxxxx
Mortgage Capital Inc.;
8. Amended and Restated Master Seller's Warranties and Servicing Agreement,
dated as of February 5, 2004 between National City Mortgage Co., as seller and
servicer, and Xxxxxx Xxxxxxx Mortgage Capital Inc.;
9. Mortgage Loan Purchase and Warranties Servicing Agreement, dated as of
February 1, 2004 between Quicken Loans, Inc., as seller and Xxxxxx Xxxxxxx
Mortgage Capital Inc., as purchaser.
10. Seller's Purchase, Warranties and Servicing Agreement dated as of September
1, 2004 between Wachovia Mortgage Corporation, as seller and servicer and Xxxxxx
Xxxxxxx Mortgage Capital Inc., as Purchaser;
11. Seller's Purchase, Warranties and Interim Servicing Agreement dated as of
February 28, 2005 between Wachovia Mortgage Corporation, as seller and servicer
and Xxxxxx Xxxxxxx Mortgage Capital Inc., as purchaser;
12. Certain Seller's Waranties and Servicing Agreement, dated as of (i) May 1,
2005, (ii) July 1, 2005, (iii) August 1, 2005 and (iv) September 1, 2005 each
between Xxxxx Fargo Bank,
E-1
National Association, as seller and servicer, and Xxxxxx Xxxxxxx Mortgage
Capital Inc., as purchaser.
B-2
EXHIBIT F
1. Custodial Agreement, dated as of November 1, 2005, between, as seller, First
National Bank of Nevada, as seller, MILA, Inc., as seller, MortgageIT, Inc., as
seller, Wachovia Mortgage Corporation, as seller, Xxxxxx Xxxxxxx Mortgage
Capital Inc., as purchaser, Deutsche Bank National Trust Company, as trustee,
Xxxxx Fargo Bank, National Association, as securities administrator and master
servicer and LaSalle Bank, National Association, as custodian; and
2. Custodial Agreement, dated as of November 1, 2005, between Xxxxxx Xxxxxxx
Credit Corporation, as seller and servicer, GreenPoint Mortgage Funding, Inc.,
as seller and servicer, HSBC Mortgage Corporation (USA) , as seller and
servicer, National City Mortgage Co., as seller and servicer, Wachovia Mortgage
Corporation, as seller and servicer, Xxxxx Fargo Bank, National Association, as
seller and servicer, Xxxxxx Xxxxxxx Mortgage Capital Inc., as purchaser,
Deutsche Bank National Trust Company, as trustee, Xxxxx Fargo Bank, National
Association, as securities administrator and master servicer and JPMorgan Chase
Bank, as custodian.
F-1
EXHIBIT G
ASSIGNMENT AND NOTICE OF TRANSFER WITH RESPECT TO ADDITIONAL COLLATERAL
MORTGAGE LOANS
G-1
EXHIBIT H
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Xxxxxx Xxxxxxx Mortgage Loan Trust 2005-9AR,
Mortgage Pass-Through Certificates
Reference is hereby made to the Pooling and Servicing Agreement, dated as
of November 1, 2005 (the "Pooling and Servicing Agreement"), by and among Xxxxxx
Xxxxxxx Capital I Inc., as Depositor, Xxxxx Fargo Bank, National Association, as
Master Servicer, as Securities Administrator and, in its capacity as Securities
Administrator, as Auction Administrator, Deutsche Bank National Trust Company,
as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
This letter relates to $__________ initial Certificate Balance of Class
_____ Certificates which are held in the form of Definitive Certificates
registered in the name of ______________ (the "Transferor"). The Transferor has
requested a transfer of such Definitive Certificates for Definitive Certificates
of such Class registered in the name of [insert name of transferee].
In connection with such request, and in respect of such Certificates, the
Transferor hereby certifies that such Certificates are being transferred in
accordance with (i) the transfer restrictions set forth in the Pooling and
Servicing Agreement and the Certificates and (ii) Rule 144A under the Securities
Act to a purchaser that the Transferor reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A purchasing for its own
account or for the account of a "qualified institutional buyer," which purchaser
is aware that the sale to it is being made in reliance upon Rule 144A, in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
applicable jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Underwriter, the Certificate Registrar and the
Depositor.
------------------------------------------
[Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated: ___________, ____
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 Xxxxxx Xxxxxxx Mortgage Loan Trust 2005-9AR, Mortgage Pass-Through
Certificates (the "Privately Offered Certificates") of Xxxxxx Xxxxxxx Capital I
Inc. (the "Depositor"), we confirm that:
(1) We understand that the Privately Offered Certificates have not been, and
will not be, registered under the Securities Act of 1933, as amended (the
"Securities Act"), and may not be sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any
accounts for which we are acting as hereinafter stated, that if we should
sell any Privately Offered Certificates within two years of the later of
the date of original issuance of the Privately Offered Certificates or the
last day on which such Privately Offered Certificates are owned by the
Depositor or any affiliate of the Depositor we will do so only (A) to the
Depositor, (B) to "qualified institutional buyers" (within the meaning of
Rule 144A under the Securities Act) in accordance with Rule 144A under the
Securities Act ("QIBs"), (C) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act, or (D) to an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act that is not a QIB (an
"Institutional Accredited Investor") which, prior to such transfer,
delivers to the Certificate Registrar under the Pooling and Servicing
Agreement, dated as of November 1, 2005 (the "Pooling and Servicing
Agreement"), by and among Xxxxxx Xxxxxxx Capital I Inc., as Depositor,
Xxxxx Fargo Bank, National Association, as Master Servicer, as Securities
Administrator and, in its capacity as Securities Administrator, as Auction
Administrator and Deutsche Bank National Trust Company, as Trustee, a
signed letter in the form of this letter; and we further agree, in the
capacities stated above, to provide to any person purchasing any of the
Privately Offered Certificates from us a notice advising such purchaser
that resales of the Privately Offered Certificates are restricted as
stated herein.
(2) We understand that, in connection with any proposed resale of any
Privately Offered Certificates to an Institutional Accredited Investor, we
will be required to furnish to the Certificate Registrar a certification
from such transferee in the form hereof to confirm that the proposed sale
is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act. We
further understand that the Privately Offered Certificates purchased by us
will bear a legend to the foregoing effect.
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 plan or arrangement subject to
Section 406 of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code"), (collectively, a "Plan") or a person acting on behalf of any such Plan
or investing the assets of any such Plan; (y) if the Certificate has been the
subject of an ERISA-Qualifying Underwriting, is an insurance company that is
purchasing the Certificate with funds contained in an "insurance company general
account" as defined in Section V(e) of Prohibited Transaction Class Exemption
("PTCE") 95-60 and the purchase and holding of the Certificate satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60; or (z)
herewith delivers to the Certificate Registrar an opinion of counsel
satisfactory to the Certificate Registrar and the Securities Administrator and
upon which the Certificate Registrar, the Trustee, the Master Servicer, the
Depositor and the Securities Administrator shall be entitled to rely, to the
effect that the purchase and holding of such Certificate by the Investor will
not constitute or result in any non-exempt prohibited transactions under Title I
of ERISA or Section 4975 of the Code and will not subject the Certificate
Registrar, the Trustee, the Master Servicer, the Depositor or the Securities
Administrator to any obligation in addition to those undertaken by such entities
in the Pooling and Servicing Agreement, which opinion of counsel shall not be an
expense of the Trust Fund or the above parties.
3. The Investor hereby acknowledges that under the terms of the Pooling
and Servicing Agreement, dated as of November 1, 2005 (the "Pooling and
Servicing Agreement"), by and among Xxxxxx Xxxxxxx Capital I Inc., as Depositor,
Xxxxx Fargo Bank, National Association, as Master Servicer, as Securities
Administrator and, in its capacity as Securities Administrator, as Auction
Administrator and Deutsche Bank National Trust Company, as Trustee, no transfer
of the ERISA-Restricted Certificates shall be permitted to be made to any person
unless the Certificate Registrar has received a certificate from such transferee
in the form hereof.
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
[On File with Securities Administrator]
K-1
EXHIBIT L-1
FORM OF INITIAL CUSTODIAN CERTIFICATION
November 30, 2005
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Deutsche Bank National Trust Company, as Trustee
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Trust Administration - MS0509
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Xxxxxx Xxxxxxx Mortgage Loan Trust
2005-9AR, Mortgage Pass-Through Certificates, Series 2005-9AR
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of the
Pooling and Servicing Agreement, the undersigned, as Custodian, hereby certifies
that, except for the exceptions noted on the schedule attached hereto, (a) all
documents required to be delivered to the Custodian pursuant to Sections
2.01(a)(i) through (iv) and (ix)(b), (c) (solely to the extent of the UCC-1),
(g) and (h), and if delivered to it, the documents identified in Section
2.01(a)(v) through (vii) and (ix)(c) (solely to the extent of the UCC-3) and (f)
of the Pooling and Servicing Agreement are in its possession, (b) such documents
have been reviewed by it and have not been mutilated, damaged, defaced, torn or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(c) based on its review and examination and only as to the foregoing documents,
such documents appear regular on their face and related to such Mortgage Loan
and (d) each Mortgage Note has been endorsed and each assignment of Mortgage has
been delivered as provided in Section 2.01 of the Pooling and Servicing
Agreement. The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically mentioned above.
The Custodian makes no representations as to: (i) the validity, legality,
sufficiency, enforceability or genuineness of any of the documents delivered in
accordance with Section 2.01 of the Pooling and Servicing Agreement or any of
the Mortgage Loans identified in the Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
The Custodian acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans.
L-1-1
Capitalized terms used herein without definition shall have the meaning assigned
to them in the Pooling and Servicing Agreement.
[DEUTSCHE BANK NATIONAL TRUST COMPANY, as Custodian]
[JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as
Custodian]
[LASALLE BANK, NATIONAL ASSOCIATION,]
as Custodian
By: _______________________
Authorized Representative
X-0-0
XXXXXXX X-0
FORM OF FINAL CUSTODIAN CERTIFICATION
November 30, 2005
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Deutsche Bank National Trust Company, as Trustee
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Trust Administration - MS0509
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Xxxxxx Xxxxxxx Mortgage Loan Trust
2005-9AR, Mortgage Pass-Through Certificates, Series 2005-9AR
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of the
Pooling and Servicing Agreement, the undersigned, as Custodian, hereby certifies
that, except for the exceptions noted on the schedule attached hereto, (a) all
documents required to be delivered to the Custodian pursuant to Sections
2.01(a)(i) through (iv) and (ix)(b), (c) (solely to the extent of the UCC-1),
(g) and (h), and if delivered to it, the documents identified in Section
2.01(a)(v) through (vii) and (ix)(c) (solely to the extent of the UCC-3) and (f)
of the Pooling and Servicing Agreement are in its possession, (b) such documents
have been reviewed by it and have not been mutilated, damaged, defaced, torn or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(c) based on its examination and only as to the foregoing documents, these
documents with respect to each Mortgage Loan accurately reflect the information
contained in the Mortgage Note and Mortgage and (d) each Mortgage Note has been
endorsed and each assignment of Mortgage has been delivered as provided in
Section 2.01 of the Pooling and Servicing Agreement. The Custodian has made no
independent examination of any documents contained in each Mortgage File beyond
the review specifically mentioned above. The Custodian makes no representations
as to: (i) the validity, legality, sufficiency, enforceability or genuineness of
any of the documents delivered in accordance with Section 2.01 of the Pooling
and Servicing Agreement or any of the Mortgage Loans identified in the Mortgage
Loan Schedule, or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
The Custodian acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans.
L-2-1
Capitalized terms used herein without definition shall have the meaning assigned
to them in the Pooling and Servicing Agreement.
[DEUTSCHE BANK NATIONAL TRUST COMPANY,]
as Custodian
[JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,]
as Custodian
[LASALLE BANK, NATIONAL ASSOCIATION]
as Custodian
By: _______________________
Authorized Representative
L-2-2
EXHIBIT M
REQUEST FOR RELEASE OF DOCUMENTS
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Xxxxxx Xxxxxxx Mortgage Loan Trust
2005-9AR, Mortgage Pass-Through Certificates, Series 2005-9AR
In connection with the administration of the Mortgage Loans held by you as
Master Servicer pursuant to the above-captioned Pooling and Servicing Agreement,
we request the release, and hereby acknowledge receipt, of the Mortgage File for
the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
__________ 1. Mortgage Paid in Full
__________ 2. Foreclosure
__________ 3. Substitution
__________ 4. Other Liquidation (Repurchases, etc.)
__________ 5. Nonliquidation
Reason: ______________________
Address to which Master Servicer should
Deliver the Mortgage File:
---------------------------------------------
---------------------------------------------
---------------------------------------------
By:_______________________________________
(authorized signer)
Issuer:_____________________________________
Address: ___________________________________
L-1
-----------------------------------
Date: ______________________________________
Master Servicer
---------------
Xxxxx Fargo Bank, National Association
Please acknowledge the execution of the above request by your signature and date
below:
------------------------------------
Signature
---------------------
Date
Documents returned to Master Servicer:
------------------------------------
Signature
---------------------
Date
M-1
SCHEDULE A
MORTGAGE LOAN SCHEDULE
[On File with the Trustee and the Securities Administrator]
L-1
SCHEDULE B
PRINCIPAL BALANCES SCHEDULE
[Not Applicable]
S-1
