Exhibit 4.1
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CWABS, INC.,
Depositor
COUNTRYWIDE HOME LOANS, INC.,
Seller
COUNTRYWIDE HOME LOANS SERVICING LP,
Master Servicer
THE BANK OF NEW YORK,
Trustee
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
---------------------,
Co-Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2004
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ASSET BACKED CERTIFICATES, SERIES 2004-S1
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS............................................................................................4
Section 1.01 Defined Terms...................................................................................4
Section 1.02 Certain Interpretive Provisions................................................................36
ARTICLE II. CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES.........................................37
Section 2.01 Conveyance of Mortgage Loans...................................................................37
Section 2.02 Acceptance by Trustee of the Mortgage Loans....................................................41
Section 2.03 Representations, Warranties and Covenants of the Master Servicer and the Seller................43
Section 2.04 Representations and Warranties of the Depositor................................................54
Section 2.05 Delivery of Opinion of Counsel in Connection with Substitutions and Repurchases................56
Section 2.06 Authentication and Delivery of Certificates....................................................57
Section 2.07 Covenants of the Master Servicer...............................................................57
Section 2.08 Seller Loss Coverage Obligation................................................................57
ARTICLE III. ADMINISTRATION AND SERVICING OF MORTGAGE LOANS......................................................58
Section 3.01 Master Servicer to Service Mortgage Loans......................................................58
Section 3.02 Subservicing; Enforcement of the Obligations of Master Servicer................................59
Section 3.03 Rights of the Depositor, the Seller, the Certificateholders and the Trustee in Respect
of the Master Servicer.......................................................................60
Section 3.04 Trustee to Act as Master Servicer..............................................................61
Section 3.05 Collection of Mortgage Loan Payments; Certificate Account; Distribution Account; Seller
Shortfall Interest Requirement...............................................................61
Section 3.06 Collection of Taxes, Assessments and Similar Items; Escrow Accounts............................65
Section 3.07 Access to Certain Documentation and Information Regarding the Mortgage Loans...................65
Section 3.08 Permitted Withdrawals from the Certificate Account, Distribution Account, the Carryover
Reserve Fund and the Principal Reserve Fund..................................................65
Section 3.09 The Loan Insurance Policy......................................................................68
Section 3.10 Maintenance of Hazard Insurance................................................................69
Section 3.11 Enforcement of Due-On-Sale Clauses; Assumption Agreements......................................69
Section 3.12 Realization Upon Defaulted Mortgage Loans; Determination of Excess Proceeds and Realized
Losses; Repurchase of Certain Mortgage Loans.................................................71
Section 3.13 Trustee to Cooperate; Release of Mortgage Files................................................74
Section 3.14 Documents, Records and Funds in Possession of Master Servicer to be Held for the Trustee.......75
Section 3.15 Servicing Compensation.........................................................................76
Section 3.16 Access to Certain Documentation................................................................76
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Section 3.17 Annual Statement as to Compliance..............................................................76
Section 3.18 Annual Independent Public Accountants' Servicing Statement; Financial Statements...............77
Section 3.19 The Corridor Contract..........................................................................77
Section 3.20 Prepayment Charges.............................................................................78
ARTICLE IV. DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER....................................................79
Section 4.01 Advances.......................................................................................79
Section 4.02 Reduction of Servicing Compensation in Connection with Prepayment Interest Shortfalls..........81
Section 4.03 [Reserved].....................................................................................81
Section 4.04 Distributions..................................................................................81
Section 4.05 Monthly Statements to Certificateholders.......................................................85
Section 4.06 [Reserved].....................................................................................88
Section 4.07 [Reserved].....................................................................................88
Section 4.08 [Reserved].....................................................................................88
Section 4.09 Carryover Reserve Fund.........................................................................88
ARTICLE V. THE CERTIFICATES......................................................................................90
Section 5.01 The Certificates...............................................................................90
Section 5.02 Certificate Register; Registration of Transfer and Exchange of Certificates....................90
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates..............................................94
Section 5.04 Persons Deemed Owners..........................................................................95
Section 5.05 Access to List of Certificateholders' Names and Addresses......................................95
Section 5.06 Book-Entry Certificates........................................................................95
Section 5.07 Notices to Depository..........................................................................96
Section 5.08 Definitive Certificates........................................................................96
Section 5.09 Maintenance of Office or Agency................................................................97
ARTICLE VI. THE DEPOSITOR, THE MASTER SERVICER AND THE SELLER....................................................98
Section 6.01 Respective Liabilities of the Depositor, the Master Servicer and the Seller....................98
Section 6.02 Merger or Consolidation of the Depositor, the Master Servicer or the Seller....................98
Section 6.03 Limitation on Liability of the Depositor, the Seller, the Master Servicer and Others...........98
Section 6.04 Limitation on Resignation of Master Servicer...................................................99
Section 6.05 Errors and Omissions Insurance; Fidelity Bonds.................................................99
ARTICLE VII. DEFAULT; TERMINATION OF MASTER SERVICER............................................................101
Section 7.01 Events of Default.............................................................................101
Section 7.02 Trustee to Act; Appointment of Successor......................................................102
Section 7.03 Notification to Certificateholders............................................................104
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ARTICLE VIII. CONCERNING THE TRUSTEE AND THE CO-TRUSTEE.........................................................105
Section 8.01 Duties of Trustee.............................................................................105
Section 8.02 Certain Matters Affecting the Trustee.........................................................106
Section 8.03 Trustee Not Liable for Mortgage Loans.........................................................107
Section 8.04 Trustee May Own Certificates..................................................................107
Section 8.05 Master Servicer to Pay Trustee's Fees and Expenses............................................108
Section 8.06 Eligibility Requirements for Trustee..........................................................108
Section 8.07 Resignation and Removal of Trustee............................................................109
Section 8.08 Successor Trustee.............................................................................109
Section 8.09 Merger or Consolidation of Trustee............................................................110
Section 8.10 Appointment of Co-Trustee or Separate Trustee.................................................110
Section 8.11 Tax Matters...................................................................................111
Section 8.12 Co-Trustee....................................................................................114
Section 8.13 Access to Records of the Trustee and the Co-Trustee...........................................118
Section 8.14 Suits for Enforcement.........................................................................118
ARTICLE IX. TERMINATION.........................................................................................119
Section 9.01 Termination upon Liquidation or Repurchase of all Mortgage Loans..............................119
Section 9.02 Final Distribution on the Certificates........................................................119
Section 9.03 Additional Termination Requirements...........................................................121
ARTICLE X. MISCELLANEOUS PROVISIONS.............................................................................122
Section 10.01 Amendment...................................................................................122
Section 10.02 Recordation of Agreement; Counterparts......................................................123
Section 10.03 Governing Law...............................................................................123
Section 10.04 Intention of Parties........................................................................124
Section 10.05 Notices.....................................................................................124
Section 10.06 Severability of Provisions..................................................................125
Section 10.07 Assignment..................................................................................125
Section 10.08 Limitation on Rights of Certificateholders..................................................126
Section 10.09 Inspection and Audit Rights.................................................................126
Section 10.10 Certificates Nonassessable and Fully Paid...................................................127
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EXHIBIT A Forms of Certificates
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-3 Certificate
EXHIBIT A-4 Form of Class A-IO Certificate
EXHIBIT A-5 Form of Class M-1 Certificate
EXHIBIT A-6 Form of Class M-2 Certificate
EXHIBIT A-7 Form of Class M-3 Certificate
EXHIBIT A-8 Form of Class P Certificate
EXHIBIT B [Reserved]
EXHIBIT C [Reserved]
EXHIBIT D Form of Class A-R Certificate
EXHIBIT E Form of Tax Matters Person Certificate (Class A-R)
EXHIBIT F Mortgage Loan Schedules
EXHIBIT F-1 List of Mortgage Loans
EXHIBIT F-2 Mortgage Loans for which All or a Portion
of a Related Mortgage File is not
Delivered to the Trustee on or
prior to the Closing Date
EXHIBIT G Forms of Certification of Trustee
EXHIBIT G-1 Form of Initial Certification of Trustee
EXHIBIT G-2 Form of Interim Certification of Trustee
EXHIBIT G-3 Form of Delay Delivery Certification
EXHIBIT H Form of Final Certification of Trustee
EXHIBIT I Transfer Affidavit for Class A-R Certificates
EXHIBIT J-1 Form of Transferor Certificate for Class A-R Certificates
EXHIBIT J-2 Form of Transferor Certificate for Private Certificates
EXHIBIT K Form of Investment Letter (Non-Rule 144A)
EXHIBIT L Form of Rule 144A Letter
EXHIBIT M Form of Request for Document Release
EXHIBIT N Form of Request for File Release
EXHIBIT O Copy of Depository Agreement
EXHIBIT P Form of Mortgage Note and Mortgage
EXHIBIT Q Form of Corridor Contract
EXHIBIT R Form of Corridor Contract Assignment Agreement
EXHIBIT S [Reserved]
EXHIBIT T Form of Officer's Certificate with respect to Prepayments
SCHEDULE I Prepayment Charge Schedule and Prepayment Charge Summary
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POOLING AND SERVICING AGREEMENT, dated as of December 1, 2004, by
and among CWABS, INC., a Delaware corporation, as depositor (the "Depositor"),
COUNTRYWIDE HOME LOANS, INC., a New York corporation, as seller (the
"Seller"), COUNTRYWIDE HOME LOANS SERVICING LP, a Texas limited partnership,
as master servicer (the "Master Servicer"), THE BANK OF NEW YORK, a New York
banking corporation, as trustee (the "Trustee"), and XXXXX FARGO BANK,
NATIONAL ASSOCIATION, a national banking association, as co-trustee (the
"Co-Trustee").
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 elect that the Trust Fund (except for the Corridor Contract, the
Carryover Reserve Fund and the Principal Reserve Fund) be treated for federal
income tax purposes as comprising two real estate mortgage investment conduits
(each a "REMIC" or, in the alternative, the "Lower Tier REMIC" and the "Master
REMIC," respectively). The Lower Tier REMIC will hold as assets all property
of the Trust Fund (other than the Corridor Contract, the Carryover Reserve
Fund and the Principal Reserve Fund) and will be evidenced by (i) the Lower
Tier REMIC Regular Interests, which will be uncertificated and will represent
the "REMIC regular interests" in the Lower Tier REMIC, and (ii) the Class
LT-A-R Interest, which will represent the "REMIC residual interest" in the
Lower Tier REMIC. The Master REMIC will hold as assets the Lower Tier REMIC
Regular Interests and will be evidenced by the Certificates, each of which
(other than the Class A-R Certificate) will represent ownership of one or more
"REMIC regular interests" in the Master REMIC. The Class A-R Certificate will
represent ownership of the sole class of "REMIC residual interest" in each of
the Lower Tier REMIC and the Master REMIC. The latest possible maturity date
of all REMIC regular interests created herein shall be the Latest Possible
Maturity Date.
The following table specifies the class designation, interest rate, and
principal amount for each class of Lower Tier REMIC Interest:
(Continued on next page)
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Lower Tier REMIC Interests
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----------------------- --------------------- ---------------------- ---------------------------------------------
Lower Tier Initial Class
REMIC Class Principal Class Interest
Designation Balance Rate Corresponding Class of Certificates
----------- ------- ---- -----------------------------------
----------------------- --------------------- ---------------------- ---------------------------------------------
LT-A-1 $203,183,000 (1) Class A-1
(2) Class A-IO
----------------------- --------------------- ---------------------- ---------------------------------------------
LT-A-2 $96,843,000 (1) Class A-2
(2) Class A-IO
----------------------- --------------------- ---------------------- ---------------------------------------------
LT-A-3 $73,474,000 (1) Class A-3
(2) Class A-IO
----------------------- --------------------- ---------------------- ---------------------------------------------
LT-$100 (2) $100 (1) Class A-R
Class A-IO
----------------------- --------------------- ---------------------- ---------------------------------------------
LT-M-1(2) $23,863,000 (1) Class M-1
Class A-IO
----------------------- --------------------- ---------------------- ---------------------------------------------
LT-M-2(2) $13,488,000 (1) Class M-2
A-IO
----------------------- --------------------- ---------------------- ---------------------------------------------
LT-M-3(2) $4,149,000 (1) Class M-3
A-IO
----------------------- --------------------- ---------------------- ---------------------------------------------
LT-A-R (3) (3) Class A-R
----------------------- --------------------- ---------------------- ---------------------------------------------
(1) The interest rate with respect to any Distribution Date (and the related
Accrual Period) for these Lower Tier REMIC Interests is a per annum rate
equal to the Net Rate Cap.
(2) The Class A-IO Certificates are entitled to receive on each Distribution
Date a specified portion of the interest payable on each Lower Tier REMIC
Interest (other than the LT-A-R Interest). Specifically, for each Accrual
Period, the Class A-IO Certificates are entitled to interest accruals on
each Lower Tier REMIC Interest in excess of the interest paid on such
Lower Tier REMIC Interest's corresponding, non-IO Certificate.
(3) The LT-A-R Interest will be the sole class of residual interest in the
Lower Tier REMIC. It does not have an interest rate or a principal
balance.
On each Distribution Date, the Trustee shall allocate the losses on, and
distribute the interest and principal on the Mortgage Loans to the Lower Tier
REMIC Interests in the same manner that such items are allocated to or
distributed among the Corresponding Classes of Certificates.
The following table sets forth characteristics of the Certificates in
the Master REMIC, each of which Certificates, except for the Class A-R
Certificates, is hereby designated as a "regular interest" in the Master
REMIC.
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Original Certificate
Class Principal Balance Pass-Through Rate
-------------------- ------------------------------- ------------------------
A-1 $ 203,183,000 (1)
A-2 $ 96,843,000 (1)
A-3 $ 73,474,000 (1)
A-IO (2) (1)
A-R $ 100(3) (1)
M-1 $ 23,863,000 (1)
M-2 $ 13,488,000 (1)
M-3 $ 4,149,000 (1)
P $ 100 (4)
(1) The Certificates will accrue interest at the related Pass-Through Rates
identified in this Agreement.
(2) Notional balance equal to the Class A-IO Notional Balance. No principal
will be paid on the Class A-IO Certificates.
(3) The Class A-R Certificate will represent the sole class of residual
interest in the Master REMIC.
(4) For each Distribution Date the Class P Certificates are entitled to all
Prepayment Charges distributed with respect to the P Interests.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Seller, the Trustee and the Co-Trustee
agree as follows:
The foregoing REMIC structure is intended to cause all of the cash from
the Mortgage Loans to flow through to the Master REMIC as cash flow on a REMIC
regular interest, without creating any shortfall -- actual or potential (other
than for credit losses) -- to any REMIC regular interest.
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ARTICLE I.
DEFINITIONS
Section 1.01 Defined Terms.
In addition to those defined terms defined in Section 1.02, whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Accrual Period: With respect to the Class A-1 Certificates and any
Distribution Date, the period commencing on the immediately preceding
Distribution Date (or, in the case of the first Distribution Date, the Closing
Date) and ending on the day immediately preceding such Distribution Date. With
respect to each Class of Certificates other than the Class A-1 Certificates,
the calendar month immediately preceding such Distribution Date. All
calculations of interest on the Class A-1 Certificates will be made on the
basis of the actual number of days elapsed in the related Accrual Period and
on a 360 day year. All calculations of interest on each Class of Certificates
other than the Class A-1 Certificates will be made on the basis of a 360-day
year consisting of twelve 30-day months.
Adjusted Net Mortgage Rate: As to each Mortgage Loan, the Mortgage
Rate less the Expense Fee Rate.
Advance: The aggregate of the advances required to be made by the
Master Servicer with respect to any Distribution Date pursuant to Section
4.01, the amount of any such advances being equal to the aggregate of payments
of principal and interest (net of the Servicing Fees) on the Mortgage Loans
that were due on the related Due Date and not received by the Master Servicer
as of the close of business on the related Determination Date including an
amount equivalent to interest on each Mortgage Loan as to which the related
Mortgaged Property is an REO Property; provided, however, that with respect to
each REO Property that has not been liquidated, the net monthly rental income
(if any) from such REO Property deposited in the Certificate Account for such
Distribution Date pursuant to Section 3.12 may be used to offset such advance
for the related REO Property.
Aggregate Class A Certificate Principal Balance: As to any date of
determination, the sum of (i) the Class A-1 Certificate Principal Balance,
(ii) the Class A-2 Certificate Principal Balance and (iii) the Class A-3
Certificate Principal Balance.
Agreement: This Pooling and Servicing Agreement and any and all
amendments or supplements hereto made in accordance with the terms herein.
Amount Held for Future Distribution: As to any Distribution Date,
the aggregate amount held in the Certificate Account at the close of business
on the immediately preceding Determination Date on account of (i) all
Scheduled Payments or portions thereof received in respect of the Mortgage
Loans due after the related Due Date, (ii) Principal Prepayments received in
respect of such Mortgage Loans after the last day of the related Prepayment
Period and (iii) Liquidation Proceeds and Subsequent Recoveries received in
respect of such Mortgage Loans after the last day of the related Due Period.
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Applied Realized Loss Amount: With respect to any Distribution Date
on or after the date on which the Seller Loss Coverage Amount has been reduced
to zero, the sum of the Realized Losses with respect to the Mortgage Loans
which are to be applied in reduction of the Certificate Principal Balance of
the Subordinate Certificates pursuant to this Agreement, which shall equal the
amount, if any, by which, Certificate Principal Balance of all Certificates,
other than the Class P Certificates (after all distributions of principal on
such Distribution Date), exceeds the sum of the Stated Principal Balances of
the Mortgage Loans for such Distribution Date.
Appraised Value: The appraised value of the Mortgaged Property based
upon the appraisal made for the Seller by a fee appraiser at the time of the
origination of the related Mortgage Loan, or the sales price of the Mortgaged
Property at the time of such origination, whichever is less, or with respect
to any Mortgage Loan originated in connection with a refinancing, the
appraised value of the Mortgaged Property based upon the appraisal made at the
time of such refinancing.
Bankruptcy Code: Title 11 of the United States Code.
Book-Entry Certificates: Any of the Certificates that shall be
registered in the name of the Depository or its nominee, the ownership of
which is reflected on the books of the Depository or on the books of a person
maintaining an account with the Depository (directly, as a "Depository
Participant", or indirectly, as an indirect participant in accordance with the
rules of the Depository and as described in Section 5.06). As of the Closing
Date, each Class of Regular Certificates, other than the Class P Certificates,
constitutes a Class of Book-Entry Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii)
a day on which banking institutions in the City of New York, New York, the
States of California, Maryland or Minnesota or the city in which the Corporate
Trust Office of the Trustee is located are authorized or obligated by law or
executive order to be closed.
Carryover Reserve Fund: The separate Eligible Account created and
initially maintained by the Trustee pursuant to Section 4.09 in the name of
the Trustee for the benefit of the Certificateholders and designated "The Bank
of New York in trust for registered holders of CWABS, Inc., Asset-Backed
Certificates, Series 2004-S1". Funds in the Carryover Reserve Fund shall be
held in trust for the Certificateholders for the uses and purposes set forth
in this Agreement.
Certificate: Any one of the certificates of any Class executed and
authenticated by the Trustee in substantially the forms attached hereto as
Exhibits A-1 through A-8, Exhibit D and Exhibit E.
Certificate Account: The separate Eligible Account created and
initially maintained by the Master Servicer pursuant to Section 3.05(b) with a
depository institution in the name of the Master Servicer for the benefit of
the Trustee on behalf of the Certificateholders and designated "Countrywide
Home Loans, Inc. in trust for registered holders of CWABS, Inc., Asset-Backed
Certificates, Series 2004-S1". Funds in the Certificate Account shall be held
in trust for the Certificateholders for the uses and purposes set forth in
this Agreement.
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Certificate Account Deposit: An amount equal to the aggregate of all
amounts in respect of (i) principal of the Mortgage Loans due on or after the
Cut-off Date and received by the Master Servicer before the Closing Date and
not applied in computing the Cut-off Date Principal Balance thereof and (ii)
interest on the Mortgage Loans due after the Cut-off Date and received by the
Master Servicer before the Closing Date.
Certificate Owner: With respect to a Book-Entry Certificate, the
person that is the beneficial owner of such Book-Entry Certificate.
Certificate Principal Balance: As to any Certificate (other than any
Class A-IO Certificates) and as of any Distribution Date, the Initial
Certificate Principal Balance of such Certificate (A) less the sum of (i) all
amounts distributed with respect to such Certificate in reduction of the
Certificate Principal Balance thereof on previous Distribution Dates pursuant
to Section 4.04, and (ii) with respect to any Subordinate Certificates, any
Applied Realized Loss Amounts allocated to such Subordinate Certificate on
previous Distribution Dates pursuant to Section 4.04, and (B) increased by,
with respect to the Subordinate Certificates, any Subsequent Recoveries
allocated to such Subordinate Certificate pursuant to Section 4.04 on such
Distribution Date. References herein to the Certificate Principal Balance of a
Class of Certificates shall mean the Certificate Principal Balances of all
Certificates in such Class. The Class A-IO Certificates shall have no
Certificate Principal Balance, and any reference to the Certificate Principal
Balance of the Certificates shall not include the Class A-IO Notional Amount.
Certificate Register: The register maintained pursuant to Section
5.02 hereof.
Certificateholder or Holder: The person in whose name a Certificate
is registered in the Certificate Register (initially, Cede & Co., as nominee
for the Depository, in the case of any Class of Book-Entry Certificates),
except that solely for the purpose of giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Depositor or any
affiliate of the Depositor shall be deemed not to be Outstanding and the
Voting Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Voting Interests necessary to
effect such consent has been obtained; provided that if any such Person
(including the Depositor) owns 100% of the Voting Interests evidenced by a
Class of Certificates, such Certificates shall be deemed to be Outstanding for
purposes of any provision hereof (other than the second sentence of Section
10.01 hereof) that requires the consent of the Holders of Certificates of a
particular Class as a condition to the taking of any action hereunder. The
Trustee is entitled to rely conclusively on a certification of the Depositor
or any affiliate of the Depositor in determining which Certificates are
registered in the name of an affiliate of the Depositor.
Class: All Certificates bearing the same Class designation as set
forth in Section 5.01 hereof.
Class A Certificates: The Class A-1 Certificates, Class A-2
Certificates and Class A-3 Certificates.
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Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (A) Aggregate Class A Certificate Principal
Balance immediately prior to such Distribution Date over (B) 80.00% of the
Stated Principal Balances of the Mortgage Loans for such Distribution Date.
Class A-1 Certificate: Any Certificate designated as a "Class A-1
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to distributions as set forth herein.
Class A-1 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class A-1
Certificates.
Class A-1 Current Interest: For any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-1 Pass-Through Rate
on the Class A-1 Certificate Principal Balance immediately prior to such
Distribution Date, plus any amount previously distributed with respect to
interest for such Class that is recovered as a voidable preference by a
trustee in bankruptcy.
Class A-1 Interest Carry Forward Amount: For any Distribution Date,
the excess of (a) the Class A-1 Current Interest with respect to prior
Distribution Dates over (b) the amount actually distributed to the Class A-1
Certificates with respect to interest on such prior Distribution Dates.
Class A-1 Interest Carryover Amount: For any Distribution Date, the
sum of (A) the excess of (i) the amount of interest the Class A-1 Certificates
would otherwise be entitled to receive on such Distribution Date without
giving effect to any limitation on the related Pass-Through Rate as a result
of the Net Rate Cap, over (ii) the amount of interest payable on the Class A-1
Certificates at the Net Rate Cap for such Distribution Date and (B) the Class
A-1 Interest Carryover Amount for all previous Distribution Dates not
previously paid pursuant to Section 4.04, together with interest thereon at
the Class A-1 Pass-Through Rate (without giving effect to the Net Rate Cap).
Class A-1 Margin: For any Distribution Date on or before the
Optional Termination Date, 0.22% per annum. For any Distribution Date after
the Optional Termination Date, 0.44% per annum.
Class A-1 Pass-Through Rate: For the first Distribution Date, 2.640%
per annum. and any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR plus the Class A-1 Margin and (ii) the Net Rate Cap for such
Distribution Date.
Class A-2 Certificate: Any Certificate designated as a "Class A-2
Certificate" on the face thereof, in the form of Exhibit A-2 hereto,
representing the right to distributions as set forth herein.
Class A-2 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class A-2
Certificates.
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Class A-2 Current Interest: For any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-2 Pass-Through Rate
on the Class A-2 Certificate Principal Balance immediately prior to such
Distribution Date, plus any amount previously distributed with respect to
interest for such Class that is recovered as a voidable preference by a
trustee in bankruptcy.
Class A-2 Fixed Rate: For any Distribution Date on or prior to the
Optional Termination Date, 3.872% per annum, and for any Distribution Date
after the Optional Termination Date, 4.372% per annum.
Class A-2 Interest Carry Forward Amount: For any Distribution Date,
the excess of (a) the Class A-2 Current Interest with respect to prior
Distribution Dates over (b) the amount actually distributed to the Class A-2
Certificates with respect to interest on such prior Distribution Dates.
Class A-2 Interest Carryover Amount: For any Distribution Date, the
sum of (A) the excess of (i) the amount of interest the Class A-2 Certificates
would otherwise be entitled to receive on such Distribution Date without
giving effect to any limitation on the related Pass-Through Rate as a result
of the Net Rate Cap, over (ii) the amount of interest payable on the Class A-2
Certificates at the Net Rate Cap for such Distribution Date and (B) the Class
A-2 Interest Carryover Amount for all previous Distribution Dates not
previously paid pursuant to Section 4.04, together with interest thereon at
the Class A-2 Pass-Through Rate (without giving effect to the Net Rate Cap).
Class A-2 Pass-Through Rate: For any Distribution Date, the lesser
of (i) the Class A-2 Fixed Rate and (ii) the Net Rate Cap for such
Distribution Date.
Class A-3 Certificate: Any Certificate designated as a "Class A-3
Certificate" on the face thereof, in the form of Exhibit A-3 hereto,
representing the right to distributions as set forth herein.
Class A-3 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class A-3
Certificates.
Class A-3 Current Interest: For any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-3 Pass-Through Rate
on the Class A-3 Certificate Principal Balance immediately prior to such
Distribution Date, plus any amount previously distributed with respect to
interest for such Class that is recovered as a voidable preference by a
trustee in bankruptcy.
Class A-3 Fixed Rate: For any Distribution Date on or prior to the
Optional Termination Date, 4.615% per annum, and for any Distribution Date
after the Optional Termination Date, 5.115% per annum.
Class A-3 Interest Carry Forward Amount: For any Distribution Date,
the excess of (a) the Class A-3 Current Interest with respect to prior
Distribution Dates over (b) the amount actually distributed to the Class A-3
Certificates with respect to interest on such prior Distribution Dates.
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Class A-3 Interest Carryover Amount: For any Distribution Date, the
sum of (A) the excess of (i) the amount of interest the Class A-3 Certificates
would otherwise be entitled to receive on such Distribution Date without
giving effect to any limitation on the related Pass-Through Rate as a result
of the Net Rate Cap, over (ii) the amount of interest payable on the Class A-3
Certificates at the Net Rate Cap for such Distribution Date and (B) the Class
A-3 Interest Carryover Amount for all previous Distribution Dates not
previously paid pursuant to Section 4.04, together with interest thereon at
the Class A-3 Pass-Through Rate (without giving effect to the Net Rate Cap).
Class A-3 Pass-Through Rate: For any Distribution Date, the lesser
of (i) the Class A-3 Fixed Rate and (ii) the Net Rate Cap for such
Distribution Date.
Class A-IO Certificate: Any Certificate designated as a "Class A-IO
Certificate" on the face thereof, in the form of Exhibit A-4 hereto.
Class A-IO Current Interest: For any Distribution Date, the interest
accrued during the related Accrual Period at the Class A-IO Pass-Through Rate
on the Class A-IO Notional Amount immediately prior to such Distribution Date
plus any amount previously distributed with respect to interest for such Class
that is recovered as a voidable preference by a trustee in bankruptcy.
Class A-IO Interest Carry Forward Amount: For any Distribution Date,
the excess of (a) the Class A-IO Current Interest with respect to prior
Distribution Dates over (b) the amount actually distributed to the Class A-IO
Certificates with respect to interest on such prior Distribution Dates.
Class A-IO Notional Amount: An amount equal to the Stated Principal
Balance of the Mortgage Loans.
Class A-IO Pass-Through Rate: With respect to any Distribution Date,
the excess of (i) the weighted average Adjusted Net Mortgage Rate of the
Mortgage Loans (weighted on the basis of the Stated Principal Balances
thereof) over (ii) the weighted average Pass-Through Rate of the Class A-1,
Class X-0, Xxxxx X-0, Class M-1, Class M-2 and Class M-3 Certificates
(weighted on the basis of the respective Certificate Principal Balances
thereof and adjusted, in the case of the Class A-1 Pass-Through Rate, to an
effective rate for the related Accrual Period reflecting the calculation of
interest on the basis of a 360-day year that consists of twelve 30-day
months). Solely for federal income tax purposes, the Class A-IO Pass-Through
Rate will be calculated by substituting for clause (ii) in the preceding
sentence, the weighted average of the pass-through rates of Lower Tier REMIC
Interests XX-X-0, XX-X-0X, XX-X-0X, XX-X-0, XX-X-0, XX-X-0, LT-M-1 and LT-M-2
with the pass-through rate in respect of each such Lower Tier REMIC Interest,
subject to a cap equal to the Pass-Through Rate in respect of its
Corresponding Master REMIC Class, as provided in the Preliminary Statement
herein.
Class A-R Certificate: Any one of the Class A-R Certificates
executed and authenticated by the Trustee in substantially the form set forth
in Exhibits D and E hereto.
Class A-R Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class A-R
Certificates.
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Class M-1 Certificate: Any Certificate designated as a "Class M-1
Certificate" on the face thereof, in the form of Exhibit A-5 hereto,
representing the right to distributions as set forth herein.
Class M-1 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class M-1
Certificates.
Class M-1 Current Interest: For any Distribution Date the interest
accrued during the related Accrual Period at the Class M-1 Pass-Through Rate
on the Class M-1 Certificate Principal Balance immediately prior to such
Distribution Date plus any amount previously distributed with respect to
interest for such Class that is recovered as a voidable preference by a
trustee in bankruptcy.
Class M-1 Fixed Rate: For any Distribution Date on or prior to the
Optional Termination Date, 4.752% per annum, and for any Distribution Date
after the Optional Termination Date, 5.252% per annum.
Class M-1 Interest Carry Forward Amount: For any Distribution Date,
the excess of (a) the Class M-1 Current Interest with respect to prior
Distribution Dates over (b) the amount actually distributed to the Class M-1
Certificates with respect to interest on such prior Distribution Dates.
Class M-1 Interest Carryover Amount: For any Distribution Date, the
sum of (A) the excess of (i) the amount of interest the Class M-1 Certificates
would otherwise be entitled to receive on such Distribution Date without
giving effect to any limitation on the related Pass-Through Rate as a result
of the Net Rate Cap, over (ii) the amount of interest payable on the Class M-1
Certificates at the Net Rate Cap for such Distribution Date and (B) the Class
M-1 Interest Carryover Amount for all previous Distribution Dates not
previously paid pursuant to Section 4.04, together with interest thereon at
the Class M-1 Pass-Through Rate (without giving effect to the Net Rate Cap).
Class M-1 Pass-Through Rate: For any Distribution Date, the lesser
of (i) the Class M-1 Fixed Rate and (ii) the Net Rate Cap for such
Distribution Date.
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the Aggregate Class A
Certificate Principal Balance immediately prior to such Distribution Date
(after taking into account the distribution of the Class A Principal
Distribution Amount for such Distribution Date) and (B) the Class M-1
Certificate Principal Balance immediately prior to such Distribution Date over
(ii) 91.50% of the Stated Principal Balances of the Mortgage Loans for such
Distribution Date; provided, however, that if the Class M-1 Certificates shall
be the only Class of Certificates outstanding on a Distribution Date, the
Class M-1 Principal Distribution Amount with respect to such Distribution
shall equal 100% of the Principal Distribution Amount for such Distribution
Date.
Class M-2 Certificate: Any Certificate designated as a "Class M-2
Certificate" on the face thereof, in the form of Exhibit A-6 hereto,
representing the right to distributions as set forth herein.
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Class M-2 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class M-2
Certificates.
Class M-2 Current Interest: For any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-2 Pass-Through Rate
on the Class M-2 Certificate Principal Balance immediately prior to such
Distribution Date, plus any amount previously distributed with respect to
interest for such Class that is recovered as a voidable preference by a
trustee in bankruptcy.
Class M-2 Fixed Rate: For any Distribution Date on or prior to the
Optional Termination Date, 5.084% per annum, and for any Distribution Date
after the Optional Termination Date, 5.584% per per annum.
Class M-2 Interest Carry Forward Amount: For any Distribution Date,
the excess of (a) the Class M-2 Current Interest with respect to prior
Distribution Dates over (b) the amount actually distributed to the Class M-2
Certificates with respect to interest on such prior Distribution Dates.
Class M-2 Interest Carryover Amount: For any Distribution Date, the
sum of (A) the excess of (i) the amount of interest the Class M-2 Certificates
would otherwise be entitled to receive on such Distribution Date without
giving effect to any limitation on the related Pass-Through Rate as a result
of the Net Rate Cap, over (ii) the amount of interest payable on the Class M-2
Certificates at the Net Rate Cap for such Distribution Date and (B) the Class
M-2 Interest Carryover Amount for all previous Distribution Dates not
previously paid pursuant to Section 4.04, together with interest thereon at
the Class M-2 Pass-Through Rate (without giving effect to the Net Rate Cap).
Class M-2 Pass-Through Rate: For any Distribution Date, the lesser
of (i) the Class M-2 Fixed Rate and (ii) the Net Rate Cap for such
Distribution Date.
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the Aggregate Class A
Certificate Principal Balance immediately prior to such Distribution Date
(after taking into account the distribution of the Class A Principal
Distribution Amount for such Distribution Date), (B) the Class M-1 Certificate
Principal Balance immediately prior to such Distribution Date (after taking
into account the distribution of the Class M-1 Principal Distribution Amount
for such Distribution Date) and (C) the Class M-2 Certificate Principal
Balance immediately prior to such Distribution Date over (ii) 98.00% of the
Stated Principal Balances of the Mortgage Loans for such Distribution Date;
provided, however, that if the Class M-2 Certificates shall be the only Class
of Certificates outstanding on a Distribution Date, the Class M-2 Principal
Distribution Amount with respect to such Distribution shall equal 100% of the
Principal Distribution Amount for such Distribution Date.
Class M-3 Certificate: Any Certificate designated as a "Class M-3
Certificate" on the face thereof, in the form of Exhibit A-7 hereto,
representing the right to distributions as set forth herein.
Class M-3 Certificate Principal Balance: As of any date of
determination, the Certificate Principal Balance of the Class M-3
Certificates.
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Class M-3 Current Interest: For any Distribution Date, the interest
accrued during the related Accrual Period at the Class M-3 Pass-Through Rate
on the Class M-3 Certificate Principal Balance immediately prior to such
Distribution Date, plus any amount previously distributed with respect to
interest for such Class that is recovered as a voidable preference by a
trustee in bankruptcy.
Class M-3 Fixed Rate: For any Distribution Date on or prior to the
Optional Termination Date, 5.280% per annum, and for any Distribution Date
after the Optional Termination Date, 5.780% per per annum.
Class M-3 Interest Carry Forward Amount: For any Distribution Date,
the excess of (a) the Class M-3 Current Interest with respect to prior
Distribution Dates over (b) the amount actually distributed to the Class M-3
Certificates with respect to interest on such prior Distribution Dates.
Class M-3 Interest Carryover Amount: For any Distribution Date, the
sum of (A) the excess of (i) the amount of interest the Class M-3 Certificates
would otherwise be entitled to receive on such Distribution Date without
giving effect to any limitation on the related Pass-Through Rate as a result
of the Net Rate Cap, over (ii) the amount of interest payable on the Class M-3
Certificates at the Net Rate Cap for such Distribution Date and (B) the Class
M-3 Interest Carryover Amount for all previous Distribution Dates not
previously paid pursuant to Section 4.04, together with interest thereon at
the Class M-3 Pass-Through Rate (without giving effect to the Net Rate Cap).
Class M-3 Pass-Through Rate: For any Distribution Date, the lesser
of (i) the Class M-3 Fixed Rate and (ii) the Net Rate Cap for such
Distribution Date.
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the Aggregate Class A
Certificate Principal Balance immediately prior to such Distribution Date
(after taking into account the distribution of the Class A Principal
Distribution Amount for such Distribution Date), (B) the Class M-1 Certificate
Principal Balance immediately prior to such Distribution Date (after taking
into account the distribution of the Class M-1 Principal Distribution Amount
for such Distribution Date) and (C) the Class M-2 Certificate Principal
Balance immediately prior to such Distribution Date (after taking into account
the distribution of the Class M-2 Principal Distribution Amount for such
Distribution Date) and (D) the Class M-3 Certificate Principal Balance
immediately prior to such Distribution Date over (ii) 100.00% of the Stated
Principal Balances of the Mortgage Loans for such Distribution Date; provided,
however, that if the Class M-3 Certificates shall be the only Class of
Certificates outstanding on a Distribution Date, the Class M-3 Principal
Distribution Amount with respect to such Distribution shall equal 100% of the
Principal Distribution Amount for such Distribution Date.
Class P Certificate: Any Certificate designated as a "Class P
Certificate" on the face thereof, in the form of Exhibit A-8 hereto,
representing the right to distributions as set forth herein.
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Class P Principal Distribution Date: The first Distribution Date
that occurs after the end of the latest Prepayment Charge Period for all
Mortgage Loans that have a Prepayment Charge Period.
Closing Date: December 29, 2004.
Co-Trustee: Xxxxx Fargo Bank, National Association, a national
banking association, not in its individual capacity, but solely in its
capacity as co-trustee for the benefit of the Certificateholders under this
Agreement, and any successor thereto, and any corporation or national banking
association resulting from or surviving any consolidation or merger to which
it or its successors may be a party.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Combined Loan-to-Value Ratio: The fraction, expressed as a
percentage, the numerator of which is the sum of (x) the original principal
balance of the related Mortgage Loan and (y) the outstanding principal balance
at the date of origination of the Mortgage Loan of any senior mortgage loan,
and the denominator of which is the Appraised Value of the related Mortgaged
Property.
Compensating Interest: With respect to any Distribution Date, an
amount equal to the lesser of (x) one-half of the Servicing Fee for the
related Due Period and (y) the aggregate Prepayment Interest Shortfalls for
such Distribution Date.
Confirmation: The Confirmation with a trade date of December 16,
2004 evidencing a transaction between the Corridor Contract Counterparty and
the Seller relating to the Corridor Contract.
Corporate Trust Office: The designated office of the Trustee in the
State of New York where at any particular time its corporate trust business
with respect to this Agreement shall be administered, which office at the date
of the execution of this Agreement is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (Attention: Corporate Trust MBS Administration), telephone:
(000) 000-0000, facsimile: (000) 000-0000.
Corridor Contract: The interest rate corridor transaction evidenced
by the related Confirmation (as assigned to the Trustee pursuant to the
Corridor Contract Assignment Agreement), a form of which is attached hereto as
Exhibit Q.
Corridor Contract Assignment Agreement: The assignment agreement
dated as of the Closing Date among the Seller, the Trustee and the Corridor
Contract Counterparty, the form of which is attached hereto as Exhibit R.
Corridor Contract Counterparty: Bear Xxxxxxx Financial Products Inc.
and its successors.
Corridor Contract Termination Date: With respect to the Corridor
Contract, the Distribution Date in August 2006.
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Cumulative Loss Trigger Event: With respect to any Distribution Date
on or after the Stepdown Date, the occurrence of (a) the aggregate amount of
Realized Losses on the Mortgage Loans from (and including) the Cut-off Date to
(and including) the last day of the related Due Period reduced by the
aggregate amount of any Subsequent Recoveries received through the last day of
that Due Period exceeding (b) the applicable percentage, for such Distribution
Date, of the aggregate Cut-Off Date Principal Balance of the Mortgage Loans,
as set forth below:
Distribution Date Percentage
----------------- ----------
January 2008--December 2008.......... 3.25% with respect to January 2008,
plus an additional 1/12th of 1.50%
for each month thereafter
January 2009--December 2009.......... 4.75% with respect to January 2009,
plus an additional 1/12th of 0.75%
for each month thereafter
January 2010--December 2010.......... 5.50% with respect to January 2010,
plus an additional 1/12th of 0.25%
for each month thereafter
January 2011 and thereafter.......... 5.75%
Current Interest: With respect to (i) the Class A-1 Certificates,
the Class A-1 Current Interest, (ii) the Class A-2 Certificates, the Class A-2
Current Interest, (iii) the Class A-3 Certificates, the Class A-3 Current
Interest, (iv) the Class A-IO Certificates, the Class A-IO Current Interest,
(v) the Class A-R Certificates, the Class A-R Current Interest, (vii) the
Class M-1 Certificates, the Class M-1 Current Interest, (viii) the Class M-2
Certificates, the Class M-2 Current Interest and (ix) the Class M-3
Certificates, the Class M-3 Current Interest.
Cut-off Date: In the case of any Mortgage Loan, the later of (x)
December 1, 2004 and (y) the date of origination of such Mortgage Loan. When
used with respect to any Mortgage Loans, "the Cut-off Date" shall mean the
related Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the Cut-off Date
after application of all payments of principal due on or prior to the Cut-off
Date, whether or not received, and all Principal Prepayments received on or
prior to the Cut-off Date, but without giving effect to any installments of
principal received in respect of Due Dates after 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 that became
final and non-appealable, except such a reduction resulting from a Deficient
Valuation or any other reduction that results in a permanent forgiveness of
principal.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property in an amount
less than the then outstanding
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indebtedness under such 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 that is final and non-appealable in a proceeding
under the Bankruptcy Code.
Definitive Certificates: As defined in Section 5.06.
Delay Delivery Mortgage Loans: The Mortgage Loans identified on the
schedule of Mortgage Loans hereto set forth on Exhibit F-2 hereof for which
all or a portion of a related Mortgage File is not delivered to the Trustee on
or prior to the Closing Date. The Depositor shall deliver (or cause delivery
of) the Mortgage Files to the Trustee: (A) with respect to at least 50% of the
Mortgage Loans, not later than the Closing Date, (B) with respect to at least
an additional 40% of the Mortgage Loans, not later than 20 days after the
Closing Date, and (C) with respect to the remaining 10% of the Mortgage Loans,
not later than 30 days after the Closing Date. To the extent that Countrywide
Home Loans, Inc. shall be in possession of any Mortgage Files with respect to
any Delay Delivery Loan, until delivery to of such Mortgage File to the
Trustee as provided in Section 2.01, Countrywide Home Loans, Inc. shall hold
such files as agent and in trust for the Trustee.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced by
a Replacement Mortgage Loan.
Delinquency Trigger Event: With respect to any Distribution Date on
or after the Stepdown Date, the occurrence of (a) the Rolling Sixty-Day
Delinquency Rate for such Distribution Date being equal to or greater than (b)
the product of 40.00% and the Senior Enhancement Percentage for such
Distribution Date.
Delinquent: A Mortgage Loan is "delinquent" if any payment due
thereon is not made pursuant to the terms of such Mortgage Loan by the close
of business on the day such payment is scheduled to be due. A Mortgage Loan is
"30 days delinquent" if such payment has not been received by the close of
business on the corresponding day of the month immediately succeeding the
month in which such payment was due, or, if there is no such corresponding day
(e.g., as when a 30-day month follows a 31-day month in which a payment was
due on the 31st day of such month), then on the last day of such immediately
succeeding month. Similarly for "60 days delinquent," "90 days delinquent" and
so on.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate"
or the "Initial Notional Amount of this Certificate" or, if neither of the
foregoing, the Percentage Interest appearing on the face thereof.
Depositor: CWABS, Inc., a Delaware corporation, or its successor in
interest.
Depository: The initial Depository shall be The Depository Trust
Company ("DTC"), the nominee of which is Cede & Co., or any other organization
registered as a "clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository shall initially be the
registered Holder of the Book-Entry Certificates. The
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Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New York.
Depository Agreement: With respect to the Book-Entry Certificates,
the agreement among the Depositor, the Trustee and the initial Depository,
dated as of the Closing Date, substantially in the form of Exhibit O.
Depository Participant: A broker, dealer, bank or other financial
institution or other person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to any Distribution Date, the 15th
day of the month of such Distribution Date or, if such 15th day is not a
Business Day, the immediately preceding Business Day.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.05 in the name of the Trustee
for the benefit of the Certificateholders and designated "The Bank of New
York, in trust for registered holders of CWABS, Inc., Asset-Backed
Certificates, Series 2004-S1". Funds in the Distribution Account shall be held
in trust for the Certificateholders for the uses and purposes set forth in
this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, 1:00
p.m. Pacific time on the Business Day immediately preceding such Distribution
Date.
Distribution Date: The 25th day of each calendar month after the
initial issuance of the Certificates, or if such 25th day is not a Business
Day, the next succeeding Business Day, commencing in January 2005.
Due Date: With respect to any Mortgage Loan and Due Period, the due
date for Scheduled Payments of interest and/or principal on that Mortgage Loan
occurring in such Due Period as provided in the related Mortgage Note.
Due Period: With respect to any Distribution Date, the period
beginning on the second day of the calendar month preceding the calendar month
in which such Distribution Date occurs and ending on the first day of the
month in which such Distribution Date occurs.
Eligible Account: Any of (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company, the
long-term unsecured debt obligations and 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, if Xxxxx'x is not a Rating Agency) are rated by each Rating
Agency in one of its two highest long-term and its highest short-term rating
categories respectively, 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 (to the limits established by the
FDIC) 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
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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 corporate trust department of a federal or state chartered
depository institution or trust company having capital and surplus of not less
than $50,000,000, acting in its fiduciary capacity or (iv) any other account
acceptable to the Rating Agencies without reduction or withdrawal of their
then current ratings of the Certificates as evidenced by a letter from each
Rating Agency to the Trustee. Eligible Accounts may bear interest, and may
include, if otherwise qualified under this definition, accounts maintained
with the Trustee.
Eligible Repurchase Month: As defined in Section 3.12(d) hereof.
Enhancement Payment: With respect to any Distribution Date on or prior
to the Distribution Date on which the Seller Loss Coverage Amount is reduced
to zero, the amount, if any, by which (1) the sum of (a) the amount of
Realized Losses with respect to Mortgage Loans plus (b) the aggregate amount
of accrued and unpaid interest on Liquidated Mortgage Loans as of the
respective dates on which such Mortgage Loans became Liquidated Mortgage Loans
exceeds (2) the proceeds, if any, paid, pursuant to the Loan Insurance Policy,
in respect of the Mortgage Loans. Notwithstanding the preceding sentence, with
respect to the Distribution Date on which the amount described in the preceding
sentence exceeds the Seller Loss Coverage Amount, the Enhancement Payment for
such Distribution Date shall be the Seller Loss Coverage Amount.
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 applicable requirements of
the Underwriter's Exemption.
ERISA-Restricted Certificates: The Class A-R Certificates, Class P
and, until they have been the subject of an ERISA-Qualifying Underwriting, the
Class A-IO Certificates; and the Certificates of any Class that ceases to
satisfy the applicable rating requirement under the Underwriter's Exemption.
Event of Default: As defined in Section 7.01 hereof.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds and Subsequent
Recoveries is in excess of the sum of (i) the unpaid principal balance of such
Liquidated Mortgage Loan as of the date of liquidation of such Liquidated
Mortgage Loan plus (ii) interest at the Mortgage Rate from the Due Date as to
which interest was last paid or advanced to Certificateholders (and not
reimbursed to the Master Servicer) up to the first day of the month in which
such Liquidation Proceeds are required to be distributed on the Stated
Principal Balance of such Liquidated Mortgage Loan outstanding during each Due
Period as to which such interest was not paid or advanced.
Expense Fee Rate: The sum of (i) the Servicing Fee Rate, (ii) the
Trustee Fee Rate and (iii) the Loan Insurance Policy Premium Rate.
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Xxxxxx Mae: 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.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989.
Xxxxxxx Mac: 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.
Initial Certificate Principal Balance: With respect to any
Certificate (other than the Class A-IO Certificates), the Certificate
Principal Balance of such Certificate or any predecessor Certificate on the
Closing Date.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including the Loan Insurance Policy, and
including all riders and endorsements thereto in effect with respect to such
Mortgage Loan, including any replacement policy or policies for any Insurance
Policy.
Insurance Proceeds: With respect to any Mortgage Loan, proceeds paid
in respect thereof pursuant to any Insurance Policy (including, without
limitation, the Loan Insurance Policy) or any other insurance policy covering
such Mortgage Loan, to the extent such proceeds are payable to the mortgagee
under the Mortgage, the Master Servicer or the trustee under the deed of trust
and are not applied to the restoration of the related Mortgaged Property or
released to the Mortgagor in accordance with the procedures that the Master
Servicer would follow in servicing mortgage loans held for its own account, in
each case other than any amount included in such Insurance Proceeds in respect
of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Interest Carry Forward Amount: With respect to (i) the Class A-1
Certificates, the Class A-1 Interest Carry Forward Amount, (ii) the Class A-2
Certificates, the Class A-2 Interest Carry Forward Amount, (iii) the Class A-3
Certificates, the Class A-3 Interest Carry Forward Amount, (iv) the Class A-IO
Certificates, the Class A-IO Interest Carry Forward Amount, (v) the Class M-1
Certificates, the Class M-1 Interest Carry Forward Amount, (vi) the Class M-2
Certificates, the Class M-2 Interest Carry Forward Amount and (vii) the Class
M-3 Certificates, the Class M-3 Interest Carry Forward Amount.
Interest Determination Date: With respect to the Class A-1
Certificates for the first Accrual Period, December 24, 2004. With respect to
the Class A-1 Certificates for any Accrual Period thereafter, the second LIBOR
Business Day preceding the commencement of such Accrual Period.
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Interest Funds: With respect to any Distribution Date, the amount by
which (a) the sum of (i) the Interest Remittance Amount for such Distribution
Date and the (ii) portion of any Enhancement Payment, if any, for such
Distribution Date that is applied to accrued and unpaid interest on a
Liquidated Mortgage Loan exceeds (b) the sum of (i) the aggregate Loan
Insurance Policy Premium for such Distribution Date and (ii) the Trustee Fee
for such Distribution Date.
Interest Remittance Amount: With respect to the Mortgage Loans and
any Master Servicer Advance Date, the amount by which (a) the sum, without
duplication, of (i) all scheduled interest collected during the related Due
Period with respect to the Mortgage Loans less the related Servicing Fee, (ii)
all related Advances relating to interest with respect to the Mortgage Loans,
(iii) all interest on Principal Prepayments other than Prepayment Interest
Excess, (iv) all Compensating Interest for the related Distribution Date, (v)
Liquidation Proceeds with respect to the Mortgage Loans collected during the
related Due Period, to the extent such Liquidation Proceeds relate to interest
(including, without limitation, any proceeds paid in respect of the Mortgage
Loans pursuant to the Loan Insurance Policy attributable to interest for the
related Due Period) and (vi) for the Master Servicer Advance Date in January
2005, the Seller Shortfall Interest Requirement, if any, for such date exceeds
(b) all Nonrecoverable Advances relating to interest reimbursed during the
related Due Period.
Latest Possible Maturity Date: The Distribution Date following the
third anniversary of the scheduled maturity date of the Mortgage Loan having
the latest scheduled maturity date as of the Cut-off Date.
LIBOR Business Day: Any day on which banks in the City of London,
England and New York City, U.S.A. are open and conducting transactions in
foreign currency and exchange.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan that has been liquidated through deed-in-lieu of
foreclosure, foreclosure sale, trustee's sale or other realization as provided
by applicable law governing the real property subject to the related Mortgage
and any security agreements and as to which the Master Servicer has certified
(in accordance with Section 3.12) in the related Prepayment Period that it has
received all amounts it expects to receive in connection with such
liquidation.
Liquidation Proceeds: With respect to any Mortgage Loan, amounts,
including Insurance Proceeds, received in connection with the partial or
complete liquidation of such Mortgage Loan, 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, less the sum of related
unreimbursed Advances, Servicing Fees, Servicing Advances and any proceeds of
the liquidation of a Mortgage Loan recovered by the Loan Insurance Policy
Provider in connection with a claim paid under the Loan Insurance Policy
pursuant to the Loan Insurance Policy Provider's subrogation rights under the
terms of the Loan Insurance Policy.
Loan Insurance Policy: The mortgage insurance policy issued by the
Loan Insurance Policy Provider with respect to the Mortgage Loans.
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Loan Insurance Policy Premium: The initial premium payable on the
Loan Insurance Policy on the Closing Date and the renewal premium payable on
the Loan Insurance Policy on each Distribution Date as provided by the Loan
Insurance Policy.
Loan Insurance Policy Premium Rate: With respect to a Mortgage Loan
and the Closing Date or any Distribution Date, as applicable, the premium rate
defined in the Loan Insurance Policy.
Loan Insurance Policy Provider: United Guaranty Residential
Insurance Company of North Carolina, a North Carolina Insurance Company.
Master Servicer: Countrywide Home Loans Servicing LP, a Texas
limited partnership, and its successors and assigns, in its capacity as master
servicer hereunder.
Master Servicer Advance Date: As to any Distribution Date, 1:00 p.m.
Pacific time on the Business Day immediately preceding such Distribution Date.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor thereto.
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.
MIN: The Mortgage Identification Number for any MERS Mortgage Loan.
Modified Mortgage Loan: As defined in Section 3.12(a).
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.
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.05.
Moody's: Xxxxx'x Investors Service, Inc. and its successors.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on or first priority ownership interest, or creating a second lien
on or second priority ownership interest, as applicable, in an estate in fee
simple in real property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional documents
delivered to the Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Master Servicer to reflect the deletion of Deleted
Mortgage Loans and the
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addition of Replacement Mortgage Loans pursuant to the provisions of this
Agreement transferred to the Trustee as part of the Trust Fund and from time
to time subject to this Agreement, attached hereto as Exhibit F-1, setting
forth the following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the Appraised Value;
(iii) the Mortgage Rate;
(iv) the maturity date;
(v) the original principal balance;
(vi) the Cut-off Date Principal Balance;
(vii) the first payment date of the Mortgage Loan;
(viii) the Scheduled Payment in effect as of the Cut-off Date;
(ix) the Combined Loan-to-Value Ratio at origination;
(x) a code indicating whether the residential dwelling at the time
of origination was represented to be owner-occupied;
(xi) a code indicating whether the residential dwelling is either
(a) a detached single-family dwelling, (b) a two-family residential
property, (c) a three-family residential property, (d) a four-family
residential property, (e) planned unit development, (f) a low-rise
condominium unit, (g) a high-rise condominium unit or (h) manufactured
housing; and
(x) the Loan Insurance Policy Premium Rate.
Mortgage Loans: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to the provisions hereof as from time to time are held
as a part of the Trust Fund (including any REO Property), the mortgage loans
so held being identified in the Mortgage Loan Schedule, notwithstanding
foreclosure or other acquisition of title of the related Mortgaged Property.
Any Mortgage Loan subject to repurchase by the Seller or Master Servicer as
provided in this Agreement, shall continue to be a Mortgage Loan hereunder
until the Purchase Price with respect thereto has been paid to the Trustee.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Pool: The aggregate of the Mortgage Loans identified in the
Mortgage Loan Schedule.
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Mortgage Rate: The annual rate of interest borne by a Mortgage Note
from time to time.
Mortgaged Property: The underlying property securing a Mortgage
Loan.
Mortgagor: The obligors on a Mortgage Note.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate less the Servicing Fee Rate.
Net Rate Cap: For any Distribution Date, the weighted average
Adjusted Net Mortgage Rate on the Mortgage Loans in the Trust Fund for such
Distribution Date, adjusted, in the case of the Class A-1 Certificates, to an
effective rate for the related Accrual Period reflecting the calculation of
interest on the basis of the actual number of days elapsed during such Accrual
Period and a 360-day year.
Net Rate Carryover: With respect to any Distribution Date, an amount
equal to the sum of (i) the Class A-1 Interest Carryover Amount, if any, for
such Distribution Date, (ii) the Class A-2 Interest Carryover Amount, if any,
for such Distribution Date, (iii) the Class A-3 Interest Carryover Amount, if
any, for such Distribution Date, (iv) the Class M-1 Interest Carryover Amount,
if any, for such Distribution Date, (v) the Class M-2 Interest Carryover
Amount, if any, for such Distribution Date and (vi) the Class M-3 Interest
Carryover Amount, if any, for such Distribution Date, provided that when the
term Net Rate Carryover is used with respect to one Class of Certificates
(other than the Class A-IO Certificates), it shall mean such carryover amount
listed in clauses (i), (ii), (iii), (iv), (v) or (vi), as applicable, with the
same Class designation. The Class A-IO Certificates shall not accrue any Net
Rate Carryover.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer that, in the good faith judgment of
the Master Servicer, will not or, in the case of a current delinquency, would
not, be ultimately recoverable by the Master Servicer from the related
Mortgagor, related Liquidation Proceeds or otherwise.
Notional Amount: With respect to the Class A-IO Certificates, the
Class A-IO Notional Amount.
Officer's Certificate: A certificate (i) in the case of the
Depositor, signed by the Chairman of the Board, the Vice Chairman of the
Board, the President, a Managing Director, a Vice President (however
denominated), an Assistant Vice President, the Treasurer, the Secretary, or
one of the Assistant Treasurers or Assistant Secretaries of the Depositor,
(ii) in the case of the Master Servicer, signed by the President, an Executive
Vice President, a Vice President, an Assistant Vice President, the Treasurer,
or one of the Assistant Treasurers or Assistant Secretaries of Countrywide GP,
Inc., its general partner or (iii) if provided for in this Agreement, signed
by a Servicing Officer, as the case may be, and delivered to the Depositor and
the Trustee, as the case may be, as required by this Agreement.
One-Month LIBOR: With respect to any Accrual Period for the Class
A-1 Certificates, the rate determined by the Trustee on the related Interest
Determination Date on the basis of the rate for U.S. dollar deposits for one
month that appears on Telerate Screen Page
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3750 as of 11:00 a.m. (London time) on such Interest Determination Date;
provided that the parties hereto acknowledge that One-Month LIBOR calculated
for the first Accrual Period shall equal 2.42% per annum. If such rate does
not appear on such page (or such other page as may replace that page on that
service, or if such service is no longer offered, such other service for
displaying One-Month LIBOR or comparable rates as may be reasonably selected
by the Trustee), One-Month LIBOR for the applicable Accrual Period will be the
Reference Bank Rate. If no such quotations can be obtained by the Trustee and
no Reference Bank Rate is available, One-Month LIBOR will be One-Month LIBOR
applicable to the preceding Accrual Period.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Depositor or the Master Servicer, reasonably acceptable to each
addressee of such opinion; provided that with respect to Section 6.04 or
10.01, or the interpretation or application of the REMIC Provisions, such
counsel must (i) in fact be independent of the Depositor and the Master
Servicer, (ii) not have any direct financial interest in the Depositor or the
Master Servicer or in any affiliate of either, and (iii) not be connected with
the Depositor or the Master Servicer as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
Optional Termination: The termination of the Trust Fund provided
hereunder pursuant to the purchase of the Mortgage Loans pursuant to the last
sentence of Section 9.01 hereof.
Optional Termination Date: Any Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans as of such
Distribution Date is equal to or less than 10% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
Original Mortgage Loan: The mortgage loan refinanced in connection
with the origination of a Refinancing Mortgage Loan.
Original Value: The value of the property underlying a Mortgage Loan
based, in the case of the purchase of the underlying Mortgaged Property, on
the lower of an appraisal satisfactory to the Master Servicer or the sales
price of such property or, in the case of a refinancing, on an appraisal
satisfactory to the Master Servicer.
OTS: The Office of Thrift Supervision.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
Outstanding Mortgage Loan: As of any Distribution Date, a Mortgage
Loan with a Stated Principal Balance greater than zero that was not the
subject of a Principal Prepayment in
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full, and that did not become a Liquidated Mortgage Loan, prior to the end of
the related Prepayment Period.
Ownership Interest: As to any Certificate, any ownership interest in
such Certificate including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
Pass-Through Rate: With respect to the Class A-1 Certificates, the
Class A-1 Pass-Through Rate; with respect to the Class A-2 Certificates, the
Class A-2 Pass-Through Rate; with respect to the Class A-3 Certificates, the
Class A-3 Pass-Through Rate; with respect to the Class A-IO Certificates, the
Class A-IO Pass-Through Rate; with respect to the Class M-1 Certificates, the
Class M-1 Pass-Through Rate; with respect to the Class M-2 Certificates, the
Class M-2 Pass-Through Rate; and with respect to the Class M-3 Certificates,
the Class M-3 Pass-Through Rate.
Percentage Interest: With respect to:
(i) any Class, the percentage interest in the undivided beneficial
ownership interest in the Trust Fund evidenced by such Class which shall
be equal to the Certificate Principal Balance of such Class divided by
the Certificate Principal Balance of all Certificates of such Class; and
(ii) any Certificate, the Percentage Interest evidenced thereby of
the related Class shall equal the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the Denominations of
all Certificates of such Class.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof, provided
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 each
Rating Agency has confirmed in writing will not result in the downgrading
or withdrawal of the ratings then assigned to the Certificates by such
Rating Agency;
(iii) [Reserved];
(iv) commercial or finance company paper which is then receiving the
highest commercial or finance company paper rating of each Rating Agency,
or such lower rating as each Rating Agency has confirmed in writing will
not result in the downgrading or withdrawal of the ratings then assigned
to the Certificates by such Rating Agency;
(v) 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
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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 a Rating Agency) are then rated one of the two highest
long-term and the highest short-term ratings of each such Rating Agency
for such securities, or such lower ratings as each Rating Agency has
confirmed in writing will not result in the downgrading or withdrawal of
the rating then assigned to the Certificates by such Rating Agency;
(vi) 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 (v) above;
(vii) 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 long
term ratings of each Rating Agency (except (x) if the Rating Agency is
Moody's, such rating shall be the highest commercial paper rating of S&P
for any such securities) and (y), or such lower rating as each Rating
Agency has confirmed in writing will not result in the downgrading or
withdrawal of the rating then assigned to the Certificates by such Rating
Agency;
(viii) 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 long term
rating by each Rating Agency or such lower rating as each Rating Agency
has confirmed in writing will not result in the downgrading or withdrawal
of the ratings then assigned to the Certificates by such Rating Agency;
(ix) 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 Rating Agency in their respective highest applicable rating
category or such lower rating as each Rating Agency has confirmed in
writing will not result in the downgrading or withdrawal of the ratings
then assigned to the Certificates by such Rating Agency; and
(x) such other relatively risk free investments having a specified
stated maturity and bearing interest or sold at a discount acceptable to
each Rating Agency as will not result in the downgrading or withdrawal of
the rating then assigned to the Certificates by any Rating Agency, as
evidenced by a signed writing delivered by each Rating Agency;
provided, that no such instrument shall be a Permitted Investment if such
instrument (i) evidences the right to receive interest only payments with
respect to the obligations underlying such instrument, (ii) is purchased at a
premium or (iii) is purchased at a deep discount; provided further that no
such instrument shall be a Permitted Investment (A) if such instrument
evidences
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principal and interest payments derived from obligations underlying such
instrument and the interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (B) if it may be redeemed at a price below the
purchase price (the foregoing clause (B) not to apply to investments in units
of money market funds pursuant to clause (vii) above); provided further that
no amount beneficially owned by any REMIC (including, without limitation, any
amounts collected by the Master Servicer but not yet deposited in the
Certificate Account) may be invested in investments (other than money market
funds) treated as equity interests for Federal income tax purposes, unless the
Master Servicer shall receive an Opinion of Counsel, at the expense of Master
Servicer, to the effect that such investment will not adversely affect the
status of any such REMIC as a REMIC under the Code or result in imposition of
a tax on any such REMIC. Permitted Investments that are subject to prepayment
or call may not be purchased at a price in excess of par.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality
of any of the foregoing, (ii) a foreign government, International Organization
or any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in section 521 of
the Code) that is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by section 511 of the Code on unrelated business taxable
income) on any excess inclusions (as defined in section 860E(c)(1) of the
Code) with respect to any Class A-R Certificate, (iv) rural electric and
telephone cooperatives described in section 1381(a)(2)(C) of the Code, (v) an
"electing large partnership" as defined in section 775 of the Code, (vi) a
Person that is not a citizen or resident of the United States, a corporation,
partnership, or other entity (treated as a corporation or a partnership for
federal income tax purposes) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, or an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States,
or a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have authority to control all substantial decisions of the trustor
unless such Person has furnished the transferor and the Trustee with a duly
completed Internal Revenue Service Form W-8ECI, and (vii) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the Transfer
of an Ownership Interest in a Class A-R Certificate to such Person may cause
any REMIC formed hereunder to fail to qualify as a REMIC at any time that any
Certificates are Outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in section 7701
of the Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and,
with the exception of the Federal Home Loan Mortgage Corporation, a majority
of its board of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
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Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans which were
Outstanding Mortgage Loans on the Due Date in the month preceding the month of
such Distribution Date.
Prepayment Assumption: The applicable rate of prepayment, as
described in the Prospectus Supplement relating to the Certificates.
Prepayment Charge: With respect to any Mortgage Loan, the charges or
premiums, if any, due in connection with a full or partial prepayment of such
Mortgage Loan within the related Prepayment Charge Period in accordance with
the terms thereof (other than any Master Servicer Prepayment Charge Payment
Amount).
Prepayment Charge Period: with respect to any to any Mortgage Loan,
the period of time during which a Prepayment Charge may be imposed.
Prepayment Charge Schedule: As of the Cut-off Date with respect to
each Mortgage Loan, a list attached hereto as Schedule I (including the
prepayment charge summary attached thereto), setting forth the following
information with respect to each Prepayment Charge:
(i) the Mortgage Loan identifying number;
(ii) a code indicating the type of Prepayment Charge;
(iii) the state of origination of the related Mortgage Loan;
(iv) the date on which the first monthly payment was due on the
related Mortgage Loan;
(v) the term of the related Prepayment Charge; and
(vi) the principal balance of the related Mortgage Loan as of the
Cut-off Date.
As of the Closing Date, the Prepayment Charge Schedule shall contain
the necessary information for each Mortgage Loan. The Prepayment Charge
Schedule shall be amended from time to time by the Master Servicer in
accordance with the provisions of this Agreement and a copy of each related
amendment shall be furnished by the Master Servicer to the Trustee.
Prepayment Interest Excess: With respect to any Distribution Date,
for each Mortgage Loan that was the subject of a Principal Prepayment during
the period from the related Due Date to the end of the related Prepayment
Period, any payment of interest received in connection therewith (net of any
applicable Servicing Fee) representing interest accrued for any portion of
such month of receipt.
Prepayment Interest Shortfall: With respect to any Distribution
Date, for each Mortgage Loan that was the subject of a partial Principal
Prepayment or a Principal Prepayment in full during the period from the
beginning of the related Prepayment Period to the related Due
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Date in such Prepayment Period (other than a Principal Prepayment in full
resulting from the purchase of a Mortgage Loan pursuant to Section 2.02, 2.03,
2.04, 3.12 or 9.01 hereof) and for each Mortgage Loan that became a Liquidated
Mortgage Loan during the related Due Period, the amount, if any, by which (i)
one month's interest at the applicable Net Mortgage Rate on the Stated
Principal Balance of such Mortgage Loan immediately prior to such prepayment
(or liquidation) or in the case of a partial Principal Prepayment on the
amount of such prepayment (or Liquidation Proceeds) exceeds (ii) the amount of
interest paid or collected in connection with such Principal Prepayment or
such Liquidation Proceeds.
Prepayment Period: As to any Distribution Date, the time period
beginning with the opening of business on the 16th day of the calendar month
preceding the month in which such Distribution Date occurs (or, with respect
to the first Distribution Date, the period from the Cut-off Date) and ending
on the close of business on the 15th day of the month in which such
Distribution Date occurs.
Primary Carryover Reserve Fund Deposit: With respect to any
Distribution Date, an amount equal to the Net Rate Carryover for such
Distribution Date.
Prime Rate: The prime commercial lending rate of The Bank of New
York, as publicly announced to be in effect from time to time. The Prime Rate
shall be adjusted automatically, without notice, on the effective date of any
change in such prime commercial lending rate. The Prime Rate is not
necessarily The Bank of New York's lowest rate of interest.
Principal Distribution Amount: With respect to any Distribution
Date, the sum of (a) the Principal Remittance Amount for such Distribution
Date, (b) the portion of the Enhancement Payment, if any, for such
Distribution Date that is applied to Realized Losses and (c) with respect to
the Distribution Date occurring in January 2005 only, the funds withdrawn from
the Principal Reserve Fund and deposited in the Distribution Account pursuant
to Section 3.05(d).
Principal Prepayment: Any Mortgagor payment or other recovery of (or
proceeds with respect to) principal on a Mortgage Loan (including loans
purchased or repurchased under Sections 2.02, 2.03, 2.04, 3.12 and 9.01
hereof) that is received in advance of its scheduled Due Date and is not
accompanied by an amount as to interest representing scheduled interest due on
any date or dates in any month or months subsequent to the month of
prepayment. Partial Principal Prepayments shall be applied by the Master
Servicer in accordance with the terms of the related Mortgage Note.
Principal Remittance Amount: As to any Distribution Date, the amount
by which (a) the sum, without duplication, of (i) the scheduled principal
collected during the related Due Period or advanced on or before the related
Master Servicer Advance Date, (ii) Principal Prepayments collected in the
related Prepayment Period, (iii) the Stated Principal Balance of each Mortgage
Loan repurchased by the Seller or purchased by the Master Servicer with
respect to such Distribution Date, (iv) the amount, if any, by which the
aggregate unpaid principal balance of any Replacement Mortgage Loans delivered
by the Seller in connection with a substitution of a Mortgage Loan is less
than the aggregate unpaid principal balance of any Deleted Mortgage Loans, and
(v) all Liquidation Proceeds collected during the related Due
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Period, to the extent related to principal (including, without limitation, any
proceeds paid in respect of the Mortgage Loans pursuant to the Loan Insurance
Policy attributable to principal) and all Subsequent Recoveries collected
during the related Due Period exceeds (b) all Nonrecoverable Advances relating
to principal and expenses reimbursable pursuant to Section 6.03 and reimbursed
during the related Due Period.
Principal Reserve Fund: The separate Eligible Account created and
initially maintained by the Trustee pursuant to Section 3.05(d) in the name of
the Trustee for the benefit of the Certificateholders and designated "The Bank
of New York in trust for registered holders of CWABS, Inc., Asset-Backed
Certificates, Series 2004-S1". Funds in the Principal Reserve Fund shall be
held in trust for the Certificateholders for the uses and purposes set forth
in this Agreement and shall not be a part of any REMIC created under this
Agreement.
Private Certificates: The Class P Certificates.
Prospectus: The prospectus dated October 25, 2004, relating to
mortgage pass-through certificates to be sold by the Depositor.
Prospectus Supplement: The prospectus supplement dated December 16,
2004, by which the Certificates, other than the Private Certificates, may be
offered from time to time, and any supplements to such prospectus supplement.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan (x) required to be
(1) repurchased by the Seller or purchased by the Master Servicer, as
applicable, pursuant to Section 2.02, 2.03 or 3.12 hereof or (2) repurchased
by the Depositor pursuant to Section 2.04 hereof, or (y) that the Master
Servicer has a right to purchase pursuant to Section 3.12 hereof, an amount
equal to the sum of (i) 100% of the unpaid principal balance (or, if such
purchase or repurchase, as the case may be, is effected by the Master
Servicer, the Stated Principal Balance) of the Mortgage Loan as of the date of
such purchase, (ii) accrued interest thereon at the applicable Mortgage Rate
(or, if such purchase or repurchase, as the case may be, is effected by the
Master Servicer, at the Net Mortgage Rate) from (a) the date through which
interest was last paid by the Mortgagor (or, if such purchase or repurchase,
as the case may be, is effected by the Master Servicer, the date through which
interest was last advanced and not reimbursed by the Master Servicer) to (b)
the Due Date in the month in which the Purchase Price is to be distributed to
Certificateholders and (iii) any costs, expenses and damages incurred by the
Trust Fund resulting from any violation of any predatory or abusive lending
law in connection with such Mortgage Loan.
Rating Agency: Xxxxx'x and S&P. If any such organization or its
successor is no longer in existence, "Rating Agency" shall be a nationally
recognized statistical rating organization, or other comparable Person,
designated by the Depositor, notice of which designation shall be given to the
Trustee. References herein to a given rating category of a Rating Agency shall
mean such rating category without giving effect to any modifiers.
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Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount (not less than zero or more than the Stated Principal Balance of the
Mortgage Loan) as of the date of such liquidation, equal to (i) the Stated
Principal Balance of such Liquidated Mortgage Loan as of the date on which
such loan became a Liquidated Mortgage Loan, minus (ii) the Liquidation
Proceeds, if any, received in connection with such liquidation during the
month in which such liquidation occurs, to the extent applied as recoveries of
principal of the Liquidated Mortgage Loan. With respect to each Mortgage Loan
that has become the subject of a Deficient Valuation, (i) if the value of the
related Mortgaged Property was reduced below the principal balance of the
related Mortgage Note, the amount by which the value of the Mortgaged Property
was reduced below the principal balance of the related Mortgage Note, and (ii)
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 that has become the subject of a Debt Service Reduction and any
Distribution Date, the amount, if any, by which the related Scheduled Payment
was reduced.
Record Date: With respect to the Class X-0, Xxxxx X-0, Class M-1,
Class M-2, Class M-3, Class A-IO and Class A-R Certificates, the last Business
Day of the month preceding the month of a Distribution Date. With respect to
the Class A-1 Certificates, the Business Day immediately preceding a
Distribution Date, or if such Certificates are no longer book-entry
certificates, the last Business Day of the month preceding the month of a
Distribution Date.
Reference Bank Rate: With respect to any Accrual Period for the
Class A-1 Certificates, the arithmetic mean (rounded upwards, if necessary, to
the nearest whole multiple of 0.03125%) of the offered rates for United States
dollar deposits for one month that are quoted by the Reference Banks as of
11:00 a.m., New York City time, on the related Interest Determination Date to
prime banks in the London interbank market for a period of one month in
amounts approximately equal to the outstanding Certificate Principal Balance
of the Class A-1 Certificates on such Interest Determination Date, provided
that at least two such Reference Banks provide such rate. If fewer than two
offered rates appear, the Reference Bank Rate will be the arithmetic mean
(rounded upwards, if necessary, to the nearest whole multiple of 0.03125%) of
the rates quoted by one or more major banks in New York City, selected by the
Trustee, as of 11:00 a.m., New York City time, on such date for loans in U.S.
dollars to leading European banks for a period of one month in amounts
approximately equal to the outstanding Certificate Principal Balance of the
Class A-1 Certificates on such Interest Determination Date.
Reference Banks: Barclays Bank PLC, Deutsche Bank and NatWest, N.A.,
provided that if any of the foregoing banks are not suitable to serve as a
Reference Bank, then any leading banks selected by the Trustee which are
engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in London,
England, (ii) not controlling, under the control of or under common control
with the Depositor, the Seller, the Master Servicer, any successor Master
Servicer or any affiliate of any of them and (iii) which have been designated
as such by the Trustee.
Refinancing Mortgage Loan: Any Mortgage Loan originated in
connection with the refinancing of an existing mortgage loan.
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Regular Certificate: Any Certificate other than a Class A-R
Certificate.
Remittance Report: A report prepared by the Master Servicer and
delivered to the Trustee in accordance with Section 4.04.
REO Property: A Mortgaged Property acquired by the Master Servicer
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Replacement Mortgage Loan: A Mortgage Loan substituted by the Seller
for a Deleted Mortgage Loan, which must, on the date of such substitution, as
confirmed in a Request for Release, substantially in the form of Exhibit N,
(i) have a Stated Principal Balance, after deduction of the principal portion
of the Scheduled Payment due in the month of substitution, not in excess of,
and not less than 90% of the Stated Principal Balance of the Deleted Mortgage
Loan; (ii) have a Mortgage Rate not less than or no more than 1% per annum
higher than the Mortgage Rate of the Deleted Mortgage Loan; (iii) have the
same or higher credit quality characteristics than that of the Deleted
Mortgage Loan; (iv) at the time of transfer to the Trustee, be accruing
interest at a Mortgage Rate not more than 1% per annum higher or lower than
that of the Deleted Mortgage Loan; (v) have a Combined Loan-to-Value Ratio no
higher than that of the Deleted Mortgage Loan; (vi) have a remaining term to
maturity no greater than (and not more than one year less than) that of the
Deleted Mortgage Loan; (vii) not permit conversion of the Mortgage Rate from a
fixed rate to a variable rate or visa versa; (viii) provide for a Prepayment
Charge on terms substantially similar to those of the Prepayment Charge, if
any, of the Deleted Mortgage Loan; (ix) have the same lien priority as the
Deleted Mortgage Loan; (x) constitute the same occupancy type as the Deleted
Mortgage Loan; (xi) be covered by the Loan Insurance Policy, and (xii) comply
with each representation and warranty set forth in Section 2.03 hereof.
Request for Document Release: A Request for Document Release
submitted by the Master Servicer to the Trustee, substantially in the form of
Exhibit M.
Request for File Release: A Request for File Release submitted by
the Master Servicer to the Trustee, substantially in the form of Exhibit N.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under
this Agreement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, the Secretary, any Assistant
Secretary, any Trust Officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also to whom, with respect to a particular matter, such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
Rolling Sixty-Day Delinquency Rate: With respect to any Distribution
Date on or after the Stepdown Date, the average of the Sixty-Day Delinquency
Rates for such Distribution Date and the two immediately preceding
Distribution Dates.
Rule 144A: Rule 144A under the Securities Act.
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Rule 144A Letter: As defined in Section 5.02(b).
Scheduled Payment: With respect to any Mortgage Loan, the scheduled
monthly payment of principal and/or interest due on any Due Date on such
Mortgage Loan which is payable by the related Mortgagor from time to time
under the related Mortgage Note, determined: (a) after giving effect to (i)
any Debt Service Reduction with respect to such Mortgage Loan and (ii) any
reduction in the amount of interest collectible from the related Mortgagor
pursuant to the Relief Act; (b) without giving effect to any extension granted
or agreed to by the Master Servicer pursuant to Section 3.05(a); and (c) on
the assumption that all other amounts, if any, due under such Mortgage Loan
are paid when due.
Secondary Carryover Reserve Fund Deposit: With respect to any
Distribution Date, an amount equal to the excess of (i) $10,000 over (ii) the
amount of funds on deposit in the Carryover Reserve Fund following the deposit
therein of the Primary Carryover Reserve Fund Deposit pursuant to Section
4.04(a) and following distributions therefrom pursuant to Section 4.04(c).
Securities Act: The Securities Act of 1933, as amended.
Seller: Countrywide Home Loans, Inc., a New York corporation, and
its successors and assigns, in its capacity as seller of the Mortgage Loans to
the Depositor.
Seller Loss Coverage Amount: With respect to any Distribution Date,
the amount by which 2.67% of the sum of the initial Certificate Principal
Balances of the Certificates exceeds the amount of all Enhancement Payments,
if any, made prior to such Distribution Date.
Seller Loss Coverage Obligation: Pursuant to the obligation of the
Seller described in Section 2.08, the amount that the Seller will provide as
coverage against losses realized on the Mortgage Loans that the Certificates
would otherwise absorb; provided, however, that such amount shall be limited
to no more than the Seller Loss Coverage Amount.
Seller Shortfall Interest Requirement: For the Master Servicer
Advance Date in January 2005, the product of:
(a) the excess of the aggregate Stated Principal Balance of the
Mortgage Loans over the aggregate Stated Principal Balance of the Mortgage
Loans that have a scheduled payment of interest due in the related Due Period,
and
(b) a fraction whose numerator is the weighted average Net Mortgage
Rate of the Mortgage Loans (weighted on the basis of the respective Stated
Principal Balances thereof) as of the Cut-off Date and whose denominator is
12.
Senior Enhancement Percentage: With respect to a Distribution Date
on or after the Stepdown Date, the percentage equivalent of a fraction (1)
whose numerator is the excess of (a) the aggregate Stated Principal Balance of
the Mortgage Loans for the preceding Distribution Date over (b)(i) before the
Certificate Principal Balances of the Class A Certificates have been reduced
to zero, the sum of the Certificate Principal Balances of the Class A
Certificates and (ii) after such time, the Certificate Principal Balance of
the most senior Class of Subordinate
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Certificates outstanding, as of the preceding Master Servicer Advance Date,
and (2) whose denominator is the aggregate Stated Principal Balance of the
Mortgage Loans for the preceding Distribution Date.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer
of its servicing obligations hereunder, including, but not limited to, the
cost of (i) the preservation, restoration and protection of a Mortgaged
Property, (ii) any enforcement or judicial proceedings, including
foreclosures, (iii) the management and liquidation of any REO Property and
(iv) compliance with the obligations under Section 3.10.
Servicing Fee: As to each Mortgage Loan and any Distribution Date,
an amount equal to one month's interest at the Servicing Fee Rate on the
Stated Principal Balance of such Mortgage Loan as of the first day of the
related Due Period or, in the event of any payment of interest that
accompanies a Principal Prepayment in full made by the Mortgagor, interest at
the Servicing Fee Rate on the Stated Principal Balance of such Mortgage Loan
for the period covered by such payment of interest.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.50% per
annum.
Servicing Officer: Any officer of the Master Servicer involved in,
or responsible for, the administration and servicing of the Mortgage Loans
whose name and facsimile signature appear on a list of servicing officers
furnished to the Trustee by the Master Servicer on the Closing Date pursuant
to this Agreement, as such list may from time to time be amended.
Sixty-Day Delinquency Rate: With respect to any Distribution Date,
the percentage equivalent of a fraction, whose numerator is the aggregate
Stated Principal Balance for such Distribution Date of all Mortgage Loans 60
or more days delinquent as of the close of business on the last day of the
calendar month preceding such Distribution Date (including Mortgage Loans in
foreclosure, bankruptcy and REO Properties) and whose denominator is the
aggregate Stated Principal Balance for such Distribution Date of all Mortgage
Loans.
S&P: Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and its successors.
Stated Principal Balance: With respect to any Mortgage Loan or
related REO Property (i) as of the Cut-off Date, the unpaid principal balance
of the Mortgage Loan as of such date (before any adjustment to the
amortization schedule for any moratorium or similar waiver or grace period),
after giving effect to any partial prepayments and Liquidation Proceeds
received prior to such date and to the payment of principal due on or prior to
such date and irrespective of any delinquency in payment by the related
Mortgagor, and (ii) as of any Distribution Date, the Stated Principal Balance
of the Mortgage Loan as of its Cut-off Date, minus the sum of (a) the
principal portion of the Scheduled Payments (x) due with respect to such
Mortgage Loan during each Due Period ending prior to such Distribution Date
and (y) that were received by the Master Servicer as of the close of business
on the Determination Date related to such Distribution Date or with respect to
which Advances were made as of the Master Servicer Advance Date related to
such Distribution Date, (b) all Principal Prepayments with respect to such
Mortgage Loan
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received by the Master Servicer during each Prepayment Period ending prior to
such Distribution Date, and (c) all Liquidation Proceeds collected with
respect to such Mortgage Loan during each Due Period ending prior to such
Distribution Date, to the extent applied by the Master Servicer as recoveries
of principal in accordance with Section 3.12. The Stated Principal Balance of
any Mortgage Loan that becomes a Liquidated Mortgage Loan will be zero on each
date following the Due Period in which such Mortgage Loan becomes a Liquidated
Mortgage Loan. References herein to the Stated Principal Balance of the
Mortgage Loans at any time shall mean the aggregate Stated Principal Balance
of all Mortgage Loans in the Trust Fund as of such time.
Stepdown Date: The earlier to occur of:
(1) the Distribution Date on which the aggregate Certificate
Principal Balance of the Class A Certificates is reduced to zero, and
(2) the later to occur of (x) the Distribution Date in January 2008
and (y) the first Distribution Date on which the aggregate Certificate
Principal Balance of the Class A Certificates (after calculating
anticipated distributions on such Distribution Date) is less than or
equal to 80.00% of the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date.
Subordinate Certificates: The Class M-1, Class M-2 and Class M-3
Certificates.
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, unexpected amounts received by the Master Servicer (net of any
related expenses permitted to be reimbursed pursuant to Section 3.08 and 3.12)
specifically related to such Liquidated Mortgage Loan after the classification
of such Mortgage Loan as a Liquidated Mortgage Loan.
Subservicer: As defined in Section 3.02(a).
Subservicing Agreement: As defined in Section 3.02(a).
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant to Section 2.03(c).
Substitution Amount: With respect to any Mortgage Loan substituted
pursuant to Section 2.03(c), the excess of (x) the principal balance of the
Mortgage Loan that is substituted for, over (y) the principal balance of the
related substitute Mortgage Loan, each balance being determined as of the date
of substitution.
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, this person shall be the
Trustee.
Tax Matters Person Certificate: The Class A-R Certificate with a
Denomination of $0.05 and in the form of Exhibit E hereto.
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Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date on or after the
Stepdown Date, the existence of either a Delinquency Trigger Event with
respect to such Distribution Date or a Cumulative Loss Trigger Event with
respect to such Distribution Date.
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal received on or with
respect thereto on and after the Cut-off Date to the extent not applied in
computing the Cut-off Date Principal Balance thereof, exclusive of interest
not required to be deposited in the Certificate Account pursuant to Section
3.05(b)(ii); (ii) the Certificate Account, the Distribution Account, the
Carryover Reserve Fund and the Principal Reserve Fund, and all amounts
deposited therein pursuant to the applicable provisions of this Agreement;
(iii) the Corridor Contract; (iv) property that secured a Mortgage Loan and
has been acquired by foreclosure, deed in lieu of foreclosure or otherwise;
(v) the mortgagee's rights under the Insurance Policies (other than the Loan
Insurance Policy) with respect to the Mortgage Loans; (vi) the rights of the
Co-Trustee, for the benefit of the Certificateholders, under the Loan
Insurance Policy; and (vii) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid property.
Trustee: The Bank of New York banking corporation, not in its
individual capacity, but solely in its capacity as trustee for the benefit of
the Certificateholders under this Agreement, and any successor thereto, and
any corporation or national banking association resulting from or surviving
any consolidation or merger to which it or its successors may be a party and
any successor trustee as may from time to time be serving as successor trustee
hereunder.
Trustee Advance Notice: As defined in Section 4.01(d).
Trustee Advance Rate: With respect to any Advance made by the
Trustee pursuant to Section 4.01(d), a per annum rate of interest determined
as of the date of such Advance equal to the Prime Rate in effect on such date
plus 5.00%.
Trustee Fee: As to any Distribution Date, an amount equal to
one-twelfth of the Trustee Fee Rate multiplied by the Pool Stated Principal
Balance with respect to such Distribution Date.
Trustee Fee Rate: With respect to each Mortgage Loan, the per annum
rate agreed upon in writing on or prior to the Closing Date by the Trustee and
the Depositor, which is 0.009% per annum.
Underwriter: Countrywide Securities Corporation.
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Unpaid Realized Loss Amount: For any Class of Subordinate
Certificates and any Distribution Date, the amount, if any, by which (x) the
portion of the aggregate Applied Realized Loss Amount previously allocated to
that Class remaining unpaid from prior Distribution Dates exceeds (y) any
increase in the Certificate Principal Balance of that Class due to the
allocation of Subsequent Recoveries to the Certificate Principal Balance of
that Class pursuant to Section 4.04.
Voting Rights: The portion of the voting rights of all the
Certificates that is allocated to any Certificates for purposes of the voting
provisions hereunder. Voting Rights allocated to each Class of Certificates
shall be allocated 97% to the Class X-0, Xxxxx X-0, Class A-3, Class M-1,
Class M-2 and Class M-3 Certificates, and 3% to the Class A-IO, Class A-R and
Class P Certificates; with the allocation among the Class X-0, Xxxxx X-0,
Class A-3, Class M-1, Class M-2 and Class M-3 Certificates to be in proportion
to the Certificate Principal Balance of each Class relative to the Certificate
Principal Balance of all other such Classes, and with the allocation among the
Class A-IO, Class A-R and Class P Certificates being one-third each. Voting
Rights will be allocated among the Certificates of each such Class in
accordance with their respective Percentage Interests.
Section 1.02 Certain Interpretive Provisions.
All terms defined in this Agreement shall have the defined meanings
when used in any certificate, agreement or other document delivered pursuant
hereto unless otherwise defined therein. For purposes of this Agreement and
all such certificates and other documents, unless the context otherwise
requires: (a) accounting terms not otherwise defined in this Agreement, and
accounting terms partly defined in this Agreement to the extent not defined,
shall have the respective meanings given to them under generally accepted
accounting principles; (b) the words "hereof," "herein" and "hereunder" and
words of similar import refer to this Agreement (or the certificate, agreement
or other document in which they are used) as a whole and not to any particular
provision of this Agreement (or such certificate, agreement or document); (c)
references to any Section, Schedule or Exhibit are references to Sections,
Schedules and Exhibits in or to this Agreement, and references to any
paragraph, subsection, clause or other subdivision within any Section or
definition refer to such paragraph, subsection, clause or other subdivision of
such Section or definition; (d) the term "including" means "including without
limitation"; (e) references to any law or regulation refer to that law or
regulation as amended from time to time and include any successor law or
regulation; (f) references to any agreement refer to that agreement as amended
from time to time; and (g) references to any Person include that Person's
permitted successors and assigns.
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ARTICLE II.
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Seller hereby sells, transfers, assigns, sets over and
otherwise conveys to the Depositor, without recourse, all the right, title and
interest of the Seller in and to (i) the Mortgage Loans, including all
interest and principal received and receivable by the Seller on or with
respect to the Mortgage Loans after the Cut-off Date (to the extent not
applied in computing the Cut-off Date Principal Balance thereof) or deposited
into the Certificate Account by the Master Servicer on behalf of the Seller as
a Certificate Account Deposit as provided in this Agreement, other than
principal due on the Mortgage Loans on or prior to the Cut-off Date and
interest accruing prior to the Cut-off Date, (ii) the mortgagee's rights under
the Insurance Policies with respect to the Mortgage Loans and (iii) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing
into cash or other liquid property. The Seller confirms that, concurrently
with the transfer and assignment, it has deposited into the Certificate
Account the Certificate Account Deposit.
Immediately upon the conveyance of the Mortgage Loans referred to in
the preceding paragraph, the Depositor (i) sells, transfers, assigns, sets
over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all right, title and interest of the
Depositor in and to (A) the Mortgage Loans, including all interest and
principal received and receivable by the Seller on or with respect to the
Mortgage Loans after the Cut-off Date (to the extent not applied in computing
the Cut-off Date Principal Balance thereof) or deposited into the Certificate
Account by the Seller as a Certificate Account Deposit as provided in this
Agreement, other than principal due on the Mortgage Loans on or prior to the
Cut-off Date and interest accruing prior to the Cut-off Date, (B) the
mortgagee's rights under the Insurance Policies with respect to the Mortgage
Loans, and (C) all proceeds of the conversion, voluntary or involuntary, of
any of the foregoing into cash or other liquid property, (ii) causes the
Seller to issue the Seller Loss Coverage Obligation in favor of the Trust
pursuant to Section 2.08 hereof and (iii) causes the Loan Insurance Policy
Provider to deliver the Loan Insurance Policy to the Co-Trustee.
The Seller further assigns all of its right, title and interest in
and to the Corridor Contract evidenced by the Confirmation, and causes all of
its obligations in respect of such transaction to be assumed by the Trustee on
behalf of the Trust Fund, on the terms and conditions set forth in the
Corridor Contract Assignment Agreement.
(b) [Reserved]
(c) [Reserved]
(d) [Reserved]
(e) [Reserved]
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(f) [Reserved]
(g) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered to, and deposited with, the Trustee (or, in
the case of the Delay Delivery Mortgage Loans, will deliver to, and deposit
with, the Trustee within the time periods specified in the definition of
"Delay Delivery Mortgage Loans") (except as provided in clause (vi) below) for
the benefit of the Certificateholders, the following documents or instruments
with respect to each such Mortgage Loan so assigned (with respect to each
Mortgage Loan, clause (i) through (vi) below, together, the "Mortgage File"
for each such Mortgage Loan):
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse, in the following
form: "Pay to the order of ________________ without recourse", with all
intervening endorsements that show a complete chain of endorsement from
the originator to the Seller, or, if the original Mortgage Note has been
lost or destroyed and not replaced, an original lost note affidavit from
the Seller, stating that the original Mortgage Note was lost or
destroyed, together with a copy of the related Mortgage Note;
(ii) in the case of each Mortgage Loan that is not a MERS
Mortgage Loan, the original recorded Mortgage, and in the case of each
MERS Mortgage Loan, the original Mortgage, noting the presence of the MIN
of the Mortgage Loan and language indicating that the Mortgage Loan is a
MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording
indicated thereon, or a copy of the Mortgage certified by the public
recording office in which such Mortgage has been recorded;
(iii) in the case of each Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage to
"Asset-Backed Certificates, Series 2004-S1, CWABS, Inc., by The Bank of
New York, a New York banking corporation, as trustee under the Pooling
and Servicing Agreement dated as of December 1, 2004, without recourse"
(each such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and transfer
to the assignee thereof, under the Mortgage to which such assignment
relates);
(iv) the original recorded assignment or assignments of the
Mortgage together with all interim recorded assignments of such Mortgage
(noting the presence of a MIN in the case of each MERS Mortgage Loan);
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any; and
(vi) the original or duplicate original lender's title policy
or a printout of the electronic equivalent and all riders thereto or, in
the event such original title policy has not been received from the
insurer, such original or duplicate original lender's title policy and
all riders thereto shall be delivered within one year of the Closing
Date.
In addition, in connection with the assignment of any MERS Mortgage
Loan, the Seller agrees that it will cause, at the Seller's own expense, the
MERS(R) System to indicate (and provide evidence to the Trustee that it has
done so) that such Mortgage Loans have been
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assigned by the Seller 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 (a) the code "[IDENTIFY TRUSTEE SPECIFIC CODE]" in the
field "[IDENTIFY THE FIELD NAME FOR TRUSTEE]" which identifies the Trustee and
(b) the code "[IDENTIFY SERIES SPECIFIC CODE NUMBER]" in the field "Pool
Field" which identifies the series of the Certificates issued in connection
with such Mortgage Loans. The Seller further agrees that it will not, and will
not permit the Master Servicer to, and the Master Servicer agrees that it will
not, alter the codes 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.
In the event that in connection with any Mortgage Loan that is not a
MERS Mortgage Loan the Seller cannot deliver the original recorded Mortgage or
all interim recorded assignments of the Mortgage satisfying the requirements
of clause (ii), (iii) or (iv) concurrently with the execution and delivery
hereof, the Seller shall deliver or cause to be delivered to the Trustee a
true copy of such Mortgage and of each such undelivered interim assignment of
the Mortgage each certified by the Seller, the applicable title company,
escrow agent or attorney, or the originator of such Mortgage, as the case may
be, to be a true and complete copy of the original Mortgage or assignment of
Mortgage submitted for recording. For any such Mortgage Loan that is not a
MERS Mortgage Loan the Seller shall promptly deliver or cause to be delivered
to the Trustee such original Mortgage and such assignment or assignments with
evidence of recording indicated thereon upon receipt thereof from the public
recording official, or a copy thereof, certified, if appropriate, by the
relevant recording office, but in no event shall any such delivery be made
later than 270 days following the Closing Date; provided that in the event
that by such date the Seller is unable to deliver or cause to be delivered
each such Mortgage and each interim assignment by reason of the fact that any
such documents have not been returned by the appropriate recording office, or,
in the case of each interim assignment, because the related Mortgage has not
been returned by the appropriate recording office, the Seller shall deliver or
cause to be delivered such documents to the Trustee as promptly as possible
upon receipt thereof. If the public recording office in which a Mortgage or
interim assignment thereof is recorded retains the original of such Mortgage
or assignment, a copy of the original Mortgage or assignment so retained, with
evidence of recording thereon, certified to be true and complete by such
recording office, shall satisfy the Seller's obligations in Section 2.01. If
any document submitted for recording pursuant to this Agreement is (x) lost
prior to recording or rejected by the applicable recording office, the Seller
shall immediately prepare or cause to be prepared a substitute and submit it
for recording, and shall deliver copies and originals thereof in accordance
with the foregoing or (y) lost after recording, the Seller shall deliver to
the Trustee a copy of such document certified by the applicable public
recording office to be a true and complete copy of the original recorded
document. The Seller shall promptly forward or cause to be forwarded to the
Trustee (x) from time to time additional original documents evidencing an
assumption or modification of a Mortgage Loan and (y) any other documents
required to be delivered by the Depositor or the Master Servicer to the
Trustee within the time periods specified in this Section 2.01.
With respect to each Mortgage Loan other than a MERS Mortgage Loan
as to which the related Mortgaged Property and Mortgage File are located in
(a) the State of California
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or (b) any other jurisdiction under the laws of which the recordation of the
assignment specified in clause (iii) of the first paragraph of this Section
2.01(g) is not necessary to protect the Trustee's and the Certificateholders'
interest in the related Mortgage Loan, as evidenced by an Opinion of Counsel,
delivered by the Seller to the Trustee and a copy to the Rating Agencies, in
lieu of recording the assignment specified in clause (iii) of the first
paragraph of this Section 2.01(g), the Seller may deliver an unrecorded
assignment in blank, in form otherwise suitable for recording to the Trustee;
provided that if the related Mortgage has not been returned from the
applicable public recording office, such assignment, or any copy thereof, of
the Mortgage may exclude the information to be provided by the recording
office. As to any Mortgage Loan other than a MERS Mortgage Loan, the
procedures of the preceding sentence shall be applicable only so long as the
related Mortgage File is maintained in the possession of the Trustee in the
State or jurisdiction described in such sentence. In the event that with
respect to Mortgage Loans other than MERS Mortgage Loans (i) the Seller, the
Depositor or the Master Servicer gives written notice to the Trustee that
recording is required to protect the right, title and interest of the Trustee
on behalf of the Certificateholders in and to any Mortgage Loan, (ii) a court
recharacterizes the sale of the Mortgage Loans as a financing, or (iii) as a
result of any change in or amendment to the laws of the State or jurisdiction
described in the first sentence of this paragraph or any applicable political
subdivision thereof, or any change in official position regarding application
or interpretation of such laws, including a holding by a court of competent
jurisdiction, such recording is so required, the Trustee shall complete the
assignment in the manner specified in clause (iii) of the first paragraph of
this Section 2.01(g) and the Seller shall submit or cause to be submitted for
recording as specified above or, should the Seller fail to perform such
obligations, the Trustee shall cause the Master Servicer, at the Master
Servicer's expense, to cause each such previously unrecorded assignment to be
submitted for recording as specified above. In the event a Mortgage File is
released to the Master Servicer as a result of the Master Servicer's having
completed a Request for Release in the form of Exhibit M, the Trustee shall
complete the assignment of the related Mortgage in the manner specified in
clause (iii) of the first paragraph of this Section 2.01(g).
So long as the Trustee maintains an office in the State of
California, the Trustee shall maintain possession of and not remove or attempt
to remove from the State of California any of the Mortgage Files as to which
the related Mortgaged Property is located in such State. In the event that the
Seller fails to record an assignment of a Mortgage Loan as herein provided
within 90 days of notice of an event set forth in clause (i), (ii) or (iii) of
the immediately preceding paragraph, the Master Servicer shall prepare and, if
required hereunder, file such assignments for recordation in the appropriate
real property or other records office. The Seller hereby appoints the Master
Servicer (and any successor servicer hereunder) as its attorney-in-fact with
full power and authority acting in its stead for the purpose of such
preparation, execution and filing.
In the case of Mortgage Loans that become the subject of a Principal
Prepayment between the Closing Date and the Cut-off Date, the Seller shall
deposit or cause to be deposited in the Certificate Account the amount
required to be deposited therein with respect to such payment pursuant to
Section 3.05 hereof.
Notwithstanding anything to the contrary in this Agreement, within
thirty days after the Closing Date, the Seller shall either (i) deliver to the
Trustee the Mortgage File as
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required pursuant to this Section 2.01 for each Delay Delivery Mortgage Loan
or (ii) (A) repurchase the Delay Delivery Mortgage Loan or (B) substitute the
Delay Delivery Mortgage Loan for a Replacement Mortgage Loan, which repurchase
or substitution shall be accomplished in the manner and subject to the
conditions set forth in Section 2.03, provided that if the Seller fails to
deliver a Mortgage File for any Delay Delivery Mortgage Loan within the period
provided in the prior sentence, the cure period provided for in Section 2.02
or in Section 2.03 shall not apply to the initial delivery of the Mortgage
File for such Delay Delivery Mortgage Loan, but rather the Seller shall have
five (5) Business Days to cure such failure to deliver. The Seller shall
promptly provide each Rating Agency with written notice of any cure,
repurchase or substitution made pursuant to the proviso of the preceding
sentence. On or before the thirtieth (30th) day (or if such thirtieth day is
not a Business Day, the succeeding Business Day) after the Closing Date, the
Trustee shall, in accordance with the provisions of Section 2.02, send a Delay
Delivery Certification substantially in the form annexed hereto as Exhibit G-3
(with any applicable exceptions noted thereon) for all Delay Delivery Mortgage
Loans delivered within thirty (30) days after such date. The Trustee will
promptly send a copy of such Delay Delivery Certification to each Rating
Agency.
Section 2.02 Acceptance by Trustee of the Mortgage Loans.
The Trustee acknowledges receipt, subject to the limitations
contained in and any exceptions noted in the Initial Certification in the form
annexed hereto as Exhibit G-1 and in the list of exceptions attached thereto,
of the documents referred to in clauses (i) and (iii) of Section 2.01(g) above
with respect to the Mortgage Loans and all other assets included in the Trust
Fund and declares that it holds and will hold such documents and the other
documents delivered to it constituting the Mortgage Files, and that it holds
or will hold such other assets included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders.
The Trustee agrees to execute and deliver on the Closing Date to the
Depositor, the Master Servicer and the Seller an Initial Certification
substantially in the form annexed hereto as Exhibit G-1 to the effect that, as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage Loan specifically identified in
such certification as not covered by such certification), the documents
described in Section 2.01(g)(i) and, in the case of each Mortgage Loan that is
not a MERS Mortgage Loan, the documents described in Section 2.01(g)(iii),
with respect to such Mortgage Loan as are in the Trustee's possession, and
based on its review and examination and only as to the foregoing documents,
such documents appear regular on their face and relate to such Mortgage Loan.
The Trustee agrees to execute and deliver within 30 days after the Closing
Date to the Depositor, the Master Servicer and the Seller an Interim
Certification substantially in the form annexed hereto as Exhibit G-2 to the
effect that, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or any Mortgage Loan specifically
identified in such certification as not covered by such certification), all
documents required to be delivered to the Trustee pursuant to this Agreement
with respect to such Mortgage Loan are in its possession (except those
described in Section 2.01(g)(vi)) and based on its review and examination and
only as to the foregoing documents, (i) such documents appear regular on their
face and relate to such Mortgage Loan, and (ii) the information set forth in
items (ii), (iii), (iv), (v), (vi), (viii) and (xi) of the definition of the
"Mortgage Loan Schedule" accurately reflects information set forth in the
Mortgage File. On or before the thirtieth (30th) day after the Closing Date
(or if such thirtieth
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day is not a Business Day, the succeeding Business Day), the Trustee shall
deliver to the Depositor, the Master Servicer and the Seller a Delay Delivery
Certification with respect to the Mortgage Loans substantially in the form
annexed hereto as Exhibit G-3, with any applicable exceptions noted thereon.
The Trustee shall be under no duty or obligation to inspect, review or examine
such documents, instruments, certificates or other papers to determine that
the same are genuine, enforceable or appropriate for the represented purpose
or that they have actually been recorded in the real estate records or that
they are other than what they purport to be on their face.
Not later than 180 days after the Closing Date, the Trustee shall
deliver to the Depositor, the Master Servicer and the Seller (and to any
Certificateholder that so requests) a Final Certification with respect to the
Mortgage Loans substantially in the form annexed hereto as Exhibit H, with any
applicable exceptions noted thereon.
In connection with the Trustee's completion and delivery of such
Final Certification, the Trustee shall review each Mortgage File with respect
to the Mortgage Loans to determine that such Mortgage File contains the
documents identified in clauses (i) through (vi) of Section 2.01(g) with
respect to such Mortgage Loans.
If, in the course of such review, the Trustee finds any document or
documents constituting a part of such Mortgage File that do not meet the
requirements of clauses (i) through (iv) and clause (vi) of Section 2.01(g),
the Trustee shall include such exceptions in such Final Certification (and the
Trustee shall state in such Final Certification whether any Mortgage File does
not then include the original or duplicate original lender's title policy or a
printout of the electronic equivalent and all riders thereto). If the public
recording office in which a Mortgage or assignment thereof is recorded retains
the original of such Mortgage or assignment, a copy of the original Mortgage
or assignment so retained, with evidence of recording thereon, certified to be
true and complete by such recording office, shall be deemed to satisfy the
requirements of clause (ii), (iii) or (iv) of Section 2.01(g), as applicable.
The Seller shall promptly correct or cure such defect referred to above within
90 days from the date it was so notified of such defect and, if the Seller
does not correct or cure such defect within such period, the Seller shall
either (A) if the time to cure such defect expires prior to the end of the
second anniversary of the Closing Date, substitute for the related Mortgage
Loan a Replacement Mortgage Loan, which substitution shall be accomplished in
the manner and subject to the conditions set forth in Section 2.03, or (B)
purchase such Mortgage Loan from the Trust Fund within 90 days from the date
the Seller was notified of such defect in writing at the Purchase Price of
such Mortgage Loan; provided that any such substitution pursuant to (A) above
or repurchase pursuant to (B) above shall not be effected prior to the
delivery to the Trustee of the Opinion of Counsel required by Section 2.05
hereof and any substitution pursuant to (A) above shall not be effected prior
to the additional delivery to the Trustee of a Request for File Release. No
substitution will be made in any calendar month after the Determination Date
for such month. The Purchase Price for any such Mortgage Loan shall be
deposited by the Seller in the Certificate Account and, upon receipt of such
deposit and Request for File Release with respect thereto, the Trustee shall
release the related Mortgage File to the Seller and shall execute and deliver
at the Seller's request such instruments of transfer or assignment as the
Seller has prepared, in each case without recourse, as shall be necessary to
vest in the Seller, or a designee, the Trustee's interest in any Mortgage Loan
released pursuant hereto. If pursuant to the foregoing provisions the Seller
repurchases a
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Mortgage Loan that is a MERS Mortgage Loan, the Master Servicer shall cause
MERS to execute and deliver an assignment of the Mortgage in recordable form
to transfer the Mortgage from MERS to the Seller and shall cause such Mortgage
to be removed from registration on the MERS(R) System in accordance with MERS'
rules and regulations.
The Trustee shall retain possession and custody of each Mortgage
File in accordance with and subject to the terms and conditions set forth
herein. The Seller shall promptly deliver to the Trustee, upon the execution
or receipt thereof, the originals of such other documents or instruments
constituting the Mortgage File that come into the possession of the Seller
from time to time.
It is understood and agreed that the obligation of the Seller to
substitute for or to purchase any Mortgage Loan that does not meet the
requirements described in the fifth paragraph of this Section 2.02 shall
constitute the sole remedy respecting such defect available to the Trustee,
the Depositor, the Co-Trustee and any Certificateholder against the Seller.
Section 2.03 Representations, Warranties and Covenants of the Master
Servicer and the Seller.
(a) The Master Servicer hereby represents and warrants to the
Depositor and the Trustee as follows, as of the date hereof with respect to
the Mortgage Loans:
(i) The Master Servicer is duly organized as a Texas limited
partnership and is validly existing and in good standing under the laws
of the State of Texas and is duly authorized and qualified to transact
any and all business contemplated by this Agreement to be conducted by
the Master Servicer in any state in which a Mortgaged Property is located
or is otherwise not required under applicable law to effect such
qualification and, in any event, is in compliance with the doing business
laws of any such state, to the extent necessary to ensure its ability to
enforce each Mortgage Loan, to service the Mortgage Loans in accordance
with the terms of this Agreement and to perform any of its other
obligations under this Agreement in accordance with the terms hereof.
(ii) The Master Servicer has the full partnership power and
authority to sell and service each Mortgage Loan, and to execute, deliver
and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary
partnership action on the part of the Master Servicer the execution,
delivery and performance of this Agreement; and this Agreement, assuming
the due authorization, execution and delivery hereof by the other parties
hereto, constitutes a legal, valid and binding obligation of the Master
Servicer, enforceable against the Master Servicer in accordance with its
terms, except that (a) the enforceability hereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
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(iii) The execution and delivery of this Agreement by the
Master Servicer, the servicing of the Mortgage Loans by the Master
Servicer under this Agreement, the consummation of any other of the
transactions contemplated by this Agreement, and the fulfillment of or
compliance with the terms hereof are in the ordinary course of business
of the Master Servicer and will not (A) result in a material breach of
any term or provision of the certificate of limited partnership,
partnership agreement or other organizational document of the Master
Servicer or (B) materially conflict with, result in a material breach,
violation or acceleration of, or result in a material default under, the
terms of any other material agreement or instrument to which the Master
Servicer is a party or by which it may be bound, or (C) constitute a
material violation of any statute, order or regulation applicable to the
Master Servicer of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Master Servicer; and the
Master Servicer is not in breach or violation of any material indenture
or other material agreement or instrument, or in violation of any
statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it
which breach or violation may materially impair the Master Servicer's
ability to perform or meet any of its obligations under this Agreement.
(iv) The Master Servicer is an approved servicer of
conventional mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac and is a
mortgagee approved by the Secretary of Housing and Urban Development
pursuant to sections 203 and 211 of the National Housing Act.
(v) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer that would
materially and adversely affect the execution, delivery or enforceability
of this Agreement or the ability of the Master Servicer to service the
Mortgage Loans or to perform any of its other obligations under this
Agreement in accordance with the terms hereof.
(vi) 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 hereby, or if any such consent, approval, authorization or
order is required, the Master Servicer has obtained the same.
(vii) The Master Servicer is a member of MERS in good standing,
and will comply in all material respects with the rules and procedures of
MERS in connection with the servicing of the Mortgage Loans for as long
as such Mortgage Loans are registered with MERS.
(b) The Seller hereby represents and warrants to the Depositor and
the Trustee as follows, as of the Cut-off Date (unless otherwise indicated or
the context otherwise requires, percentages with respect to the Mortgage Loans
are measured by the Cut-off Date Principal Balance):
(i) The Seller is duly organized as a New York corporation and
is validly existing and in good standing under the laws of the State of
New York and is duly
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authorized and qualified to transact any and all business contemplated by
this Agreement to be conducted by the Seller in any state in which a
Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such state, to the extent
necessary to ensure its ability to enforce each Mortgage Loan, to sell
the Mortgage Loans in accordance with the terms of this Agreement and to
perform any of its other obligations under this Agreement in accordance
with the terms hereof.
(ii) The Seller has the full corporate power and authority to
sell each Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by this Agreement
and has duly authorized by all necessary corporate action on the part of
the Seller the execution, delivery and performance of this Agreement.
This Agreement, assuming the due authorization, execution and delivery
hereof by the other parties hereto, constitutes a legal, valid and
binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except that (a) the enforceability hereof may
be limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally and (b) the remedy
of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
(iii) The execution and delivery of this Agreement by the
Seller, the sale of the Mortgage Loans by the Seller under this
Agreement, the consummation of any other of the transactions contemplated
by this Agreement, and the fulfillment of or compliance with the terms
hereof are in the ordinary course of business of the Seller and will not
(A) result in a material breach of any term or provision of the charter
or by-laws of the Seller or (B) materially conflict with, result in a
material breach, violation or acceleration of, or result in a material
default under, the terms of any other material agreement or instrument to
which the Seller is a party or by which it may be bound, or (C)
constitute a material violation of any statute, order or regulation
applicable to the Seller of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Seller; and the
Seller is not in breach or violation of any material indenture or other
material agreement or instrument, or in violation of any statute, order
or regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it which breach or violation
may materially impair the Seller's ability to perform or meet any of its
obligations under this Agreement.
(iv) The Seller is an approved seller of conventional mortgage
loans for Xxxxxx Xxx or Xxxxxxx Mac and is a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to sections 203 and
211 of the National Housing Act.
(v) No litigation is pending or, to the best of the Seller's
knowledge, threatened, against the Seller that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement or the ability of the Seller to sell the Mortgage Loans or to
perform any of its other obligations under this Agreement in accordance
with the terms hereof.
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(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Seller of, or compliance by the Seller with, this
Agreement or the consummation of the transactions contemplated hereby, or
if any such consent, approval, authorization or order is required, the
Seller has obtained the same.
(vii) The information set forth on Exhibit F-1 hereto with
respect to each Mortgage Loan is true and correct in all material
respects as of the Closing Date.
(viii) The Seller will treat the transfer of the Mortgage Loans
to the Depositor as a sale of the Mortgage Loans for all tax, accounting
and regulatory purposes.
(ix) None of the Mortgage Loans are more than 60 days delinquent
in payment of principal and interest.
(x) No Mortgage Loan had a Combined Loan-to-Value Ratio at
origination in excess of 100%.
(xi) Each Mortgage Loan is secured by a valid and enforceable
second lien on the related Mortgaged Property, subject only to (1) the
lien of non-delinquent current real property taxes and assessments, (2)
covenants, conditions and restrictions, rights of way, easements and
other matters of public record as of the date of recording of such
Mortgage, such exceptions appearing of record being acceptable to
mortgage lending institutions generally or specifically reflected in the
appraisal made in connection with the origination of the related Mortgage
Loan, (3) other matters to which like properties are commonly subject
that do not materially interfere with the benefits of the security
intended to be provided by such Mortgage and (4) any senior mortgage loan
secured by such Mortgaged Property and identified in the Mortgage File
related to such Mortgage Loan.
(xii) Immediately prior to the assignment of each Mortgage Loan
to the Depositor, the Seller had good title to, and was the sole owner
of, such Mortgage Loan free and clear of any pledge, lien, encumbrance 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 the same pursuant to this Agreement.
(xiii) There is no delinquent tax or assessment lien against
any Mortgaged Property.
(xiv) There is no valid offset, claim, defense or counterclaim
to any Mortgage Note or Mortgage, including the obligation of the
Mortgagor to pay the unpaid principal of or interest on such Mortgage
Note.
(xv) There are no mechanics' liens or claims for work, labor or
material affecting any Mortgaged Property that are or may be a lien prior
to, or equal with, the lien of such Mortgage, except those that are
insured against by the title insurance policy referred to in item (xxii)
below.
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(xvi) As of the Closing Date, to the best of the Seller's
knowledge, each Mortgaged Property is free of material damage and is in
good repair.
(xvii) To the best of the Seller's knowledge, the Mortgage
Loans complied at origination in all material respects with applicable
state and federal laws and regulations, including, without limitation,
usury, equal credit opportunity, real estate settlement procedures,
truth-in-lending and disclosure, and all applicable predatory and abusive
lending laws, and consummation of the transactions contemplated hereby
will not involve the violation of any such laws or regulations.
(xviii) No Mortgage Loan secured by property located in the
State of Illinois is in violation of the provisions of the Illinois
Interest Act (815 Ill. Comp. Stat. 205/0.01 (2004));
(xix) No Mortgage Loan originated on or after March 7, 2003 is
a "high cost home loan" as defined under the Georgia Fair Lending Act;
(xx) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the current Standard & Poor's
LEVELS(R) Glossary, which as of the date hereof is Version 5.6 Revised,
Appendix E), and no Mortgage Loan originated from October 1, 2002 through
March 6, 2003 is governed by the Georgia Fair Lending Act;
(xxi) As of the Closing Date, neither the Seller nor any prior
holder of any Mortgage has modified the Mortgage in any material respect
(except that a Mortgage Loan may have been modified by a written
instrument that has been recorded or submitted for recordation, if
necessary, to protect the interests of the Certificateholders and the
original or a copy of which has been delivered to the Trustee);
satisfied, cancelled or subordinated such Mortgage in whole or in part;
released the related Mortgaged Property in whole or in part from the lien
of such Mortgage; or executed any instrument of release, cancellation,
modification (except as expressly permitted above) or satisfaction with
respect thereto.
(xxii) A lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if applicable,
in an amount at least equal to the Cut-off Date Stated Principal Balance
of each such Mortgage Loan or a commitment (binder) to issue the same was
effective on the date of the origination of each Mortgage Loan, each such
policy is valid and remains in full force and effect, and each such
policy was issued by a title insurer qualified to do business in the
jurisdiction where the Mortgaged Property is located and acceptable to
Xxxxxx Mae or Xxxxxxx Mac and is in a form acceptable to Xxxxxx Mae or
Xxxxxxx Mac, which policy insures the Seller and successor owners of
indebtedness secured by the insured Mortgage, as to the first priority
lien, of the Mortgage subject to the exceptions set forth in paragraph
(iv) above; to the best of the Seller's knowledge, no claims have been
made under such mortgage title insurance policy and no prior holder of
the related Mortgage, including the Seller, has done, by act or omission,
anything that would impair the coverage of such mortgage title insurance
policy.
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(xxiii) No Mortgage Loan was the subject of a Principal
Prepayment in full between the Closing Date and the Cut-off Date.
(xxiv) To the best of the Seller's knowledge, all of the
improvements that were included for the purpose of determining the
Appraised Value of the Mortgaged Property lie wholly within the
boundaries and building restriction lines of such property, and no
improvements on adjoining properties encroach upon the Mortgaged
Property.
(xxv) To the best of the Seller's knowledge, no improvement
located on or being part of the Mortgaged Property is in violation of any
applicable zoning law or regulation. To the best of the Seller's
knowledge, all inspections, licenses and certificates required to be made
or issued with respect to all occupied portions of the Mortgaged Property
and, with respect to the use and occupancy of the same, including but not
limited to certificates of occupancy and fire underwriting certificates,
have been made or obtained from the appropriate authorities, unless the
lack thereof would not have a material adverse effect on the value of
such Mortgaged Property, and the Mortgaged Property is lawfully occupied
under applicable law.
(xxvi) The Mortgage Note and the related Mortgage are genuine,
and each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms and under applicable law, except
that (a) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought. To the best of the Seller's
knowledge, all parties to the Mortgage Note and the Mortgage had legal
capacity to execute the Mortgage Note and the Mortgage and each Mortgage
Note and Mortgage have been duly and properly executed by such parties.
(xxvii) The proceeds of the Mortgage Loan have been fully
disbursed, there is no requirement for future advances thereunder, and
any and all requirements as to completion of any on-site or off-site
improvements and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making, or
closing or recording the Mortgage Loans were paid.
(xxviii) The related Mortgage contains customary and
enforceable provisions that render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of
the benefits of the security, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure.
(xxix) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is named in such
Mortgage, and no fees or expenses are or will become payable by the
Certificateholders to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor.
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(xxx) Each Mortgage Note and each Mortgage is in substantially
one of the forms attached hereto as Exhibit P and is acceptable in form
to Xxxxxx Mae and Xxxxxxx Mac.
(xxxi) There exist no deficiencies with respect to escrow
deposits and payments, if such are required, for which customary
arrangements for repayment thereof have not been made, and no escrow
deposits or payments of other charges or payments due the Seller have
been capitalized under the Mortgage or the related Mortgage Note.
(xxxii) The origination, underwriting, servicing and collection
practices with respect to each Mortgage Loan have been in all respects
legal, proper, prudent and customary in the mortgage lending and
servicing business, as conducted by prudent lending institutions that
service mortgage loans of the same type in the jurisdiction in which the
Mortgaged Property is located.
(xxxiii) There is no pledged account or other security other
than real estate securing the Mortgagor's obligations.
(xxxiv) No Mortgage Loan has a shared appreciation feature, or
other contingent interest feature.
(xxxv) Each Mortgage Loan contains a customary "due on sale"
clause.
(xxxvi) Approximately 1.61% of the Mortgage Loans are secured
by two- to four-family dwellings. Approximately 5.43% of the Mortgage
Loans are secured by condominiums units. No less than approximately
67.64% of the Mortgage Loans are secured by single family detached
dwellings. Approximately 25.07% of the Mortgage Loans are secured by
PUDs.
(xxxvii) No Mortgage Loan had a principal balance in excess of
$487,400 at origination.
(xxxviii) [Reserved];
(xxxix) Each Mortgage Loan was originated on or after March 17,
1997;
(xl) [Reserved]
(xli) [Reserved]
(xlii) Approximately 6.73% of the Mortgage Loans provide for a
Prepayment Charge.
(xliii) [Reserved]
(xliv) On the basis of representations made by the Mortgagors
in their loan applications, approximately 1.69% of the Mortgage Loans are
secured by investor properties, approximately 96.67% of the
owner-occupied Mortgage Loans are secured by
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owner-occupied Mortgaged Properties that are primary residences and
approximately 1.64% of the owner-occupied Mortgage Loans are secured by
owner-occupied Mortgaged Properties that are secondary residences.
(xlv) At the Cut-off Date, the improvements upon each Mortgaged
Property are covered by a valid and existing hazard insurance policy with
a generally acceptable carrier that provides for fire and extended
coverage and coverage for such other hazards as are customary in the area
where the Mortgaged Property is located in an amount that is at least
equal to the lesser of (i) the maximum insurable value of the
improvements securing such Mortgage Loan or (ii) the greater of (a) the
outstanding principal balance of the Mortgage Loan and (b) an amount such
that the proceeds of such policy shall be sufficient to prevent the
Mortgagor and/or the mortgagee from becoming a co-insurer. If the
Mortgaged Property is a condominium unit, it is included under the
coverage afforded by a blanket policy for the condominium unit. All such
individual insurance policies and all flood policies referred to in item
(xlvi) below contain a standard mortgagee clause naming the Seller or the
original mortgagee, and its successors in interest, as mortgagee, and the
Seller has received no notice that any premiums due and payable thereon
have not been paid; the Mortgage obligates the Mortgagor thereunder to
maintain all such insurance, including flood insurance, at the
Mortgagor's cost and expense, and upon the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such
insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor.
(xlvi) If the Mortgaged Property is in an area identified in
the Federal Register by the Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy in a form meeting the
requirements of the current guidelines of the Flood Insurance
Administration is in effect with respect to such Mortgaged Property with
a generally acceptable carrier in an amount representing coverage not
less than the least of (A) the original outstanding principal balance of
the Mortgage Loan, (B) the minimum amount required to compensate for
damage or loss on a replacement cost basis, or (C) the maximum amount of
insurance that is available under the Flood Disaster Protection Act of
1973, as amended.
(xlvii) To the best of the Seller's knowledge, there is no
proceeding occurring, pending or threatened for the total or partial
condemnation of the Mortgaged Property.
(xlviii) There is no material monetary default existing under
any Mortgage or the related Mortgage Note and, to the best of the
Seller's knowledge, there is no material event that, with the passage of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event of acceleration under
the Mortgage or the related Mortgage Note; and the Seller has not waived
any default, breach, violation or event of acceleration.
(xlix) Each Mortgaged Property is improved by a one- to
four-family residential dwelling, including condominium units and
dwelling units in PUDs. To the
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best of the Seller's knowledge, no improvement to a Mortgaged Property
includes a cooperative or a mobile home or constitutes other than real
property under state law.
(l) Each Mortgage Loan is being serviced by the Master
Servicer.
(li) Any future advances made prior to the Cut-off Date have
been consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a
single interest rate and single repayment term reflected on the Mortgage
Loan Schedule. The consolidated principal amount does not exceed the
original principal amount of the Mortgage Loan. The Mortgage Note does
not permit or obligate the Master Servicer to make future advances to the
Mortgagor at the option of the Mortgagor.
(lii) All taxes, governmental assessments, insurance premiums,
water, sewer and municipal charges, leasehold payments or ground rents
that previously became due and owing have been paid, or an escrow of
funds has been established in an amount sufficient to pay for every such
item that remains unpaid and that has been assessed, but is not yet due
and payable. Except for (A) payments in the nature of escrow payments,
and (B) interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage proceeds, whichever is later, to the day
that precedes by one month the Due Date of the first installment of
principal and interest, including without limitation, taxes and insurance
payments, the Master Servicer has not advanced funds, or induced,
solicited or knowingly received any advance of funds by a party other
than the Mortgagor, directly or indirectly, for the payment of any amount
required by the Mortgage.
(liii) The Mortgage Loans originated by the Seller were
underwritten in all material respects in accordance with the Seller's
underwriting guidelines for closed-end second lien mortgage loans or,
with respect to Mortgage Loans purchased by the Seller, were underwritten
in all material respects in accordance with customary and prudent
underwriting guidelines generally used by originators of A quality
mortgage loans.
(liv) Prior to the approval of the Mortgage Loan application,
an appraisal of the related Mortgaged Property was obtained from a
qualified appraiser, duly appointed by the originator, who had no
interest, direct or indirect, in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by
the approval or disapproval of the Mortgage Loan; such appraisal is in a
form acceptable to Xxxxxx Xxx and Xxxxxxx Mac.
(lv) None of the Mortgage Loans is a graduated payment mortgage
loan or a growing equity mortgage loan, and no Mortgage Loan is subject
to a buydown or similar arrangement.
(lvi) The Mortgage Rates borne by the Mortgage Loans as of the
Cut-off Date ranged from 5.000% per annum to 14.250% per annum and the
weighted average Mortgage Rate as of the Cut-off Date was 7.815% per
annum.
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(lvii) [Reserved]
(lviii) The Mortgage Loans were selected from among outstanding
one- to four-family mortgage loans in the Seller's portfolio at the
Closing Date as to which the representations and warranties made as to
the Mortgage Loans set forth in this Section 2.03(b) can be made. No
selection was made in a manner that would adversely affect the interests
of Certificateholders.
(lix) [Reserved]
(lx) Except for 226 Mortgage Loans representing approximately
2.08% of the Mortgage Loans (by Stated Principal Balance as of the
Cut-Off Date), each Mortgage Loan has a payment date on or before the Due
Date in the month of the first Distribution Date.
(lxi) The Mortgage Loans, individually and in the aggregate,
conform in all material respects to the descriptions thereof in the
Prospectus Supplement.
(lxii) [Reserved]
(lxiii) There is no obligation on the part of the Seller under
the terms of the Mortgage or related Mortgage Note to make payments in
addition to those made by the Mortgagor.
(lxiv) Any leasehold estate securing a Mortgage Loan has a term
of not less than five years in excess of the term of the related Mortgage
Loan.
(lxv) Each Mortgage Loan represents a "qualified mortgage"
within the meaning of Section 860(a)(3) of the Code (but without regard
to the rule in Treasury Regulation ss. 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage, or any substantially
similar successor provision) and applicable Treasury regulations
promulgated thereunder.
(lxvi) No Mortgage Loan was either a "consumer credit contract"
or a "purchase money loan" as such terms are defined in 16 C.F.R. Section
433 nor is any Mortgage Loan a "mortgage" as defined in 15 U.S.C. ss.
1602(aa).
(lxvii) None of the Mortgage Loans were, or will be, 30 days or
more delinquent in payment of the Scheduled Payment due on the first Due
Date under such Mortgage Loan.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty set forth in Section 2.03(a) or (b) that materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, the party discovering such breach shall give prompt notice thereof to
the other parties. Each of the Master Servicer and the Seller (each, a
"Representing Party") hereby covenants with respect to the representations and
warranties set forth in Sections 2.03(a) and (b) that within 90 days of the
earlier of the discovery by such Representing Party or receipt of written
notice by such Representing Party from any party of a
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breach of any representation or warranty set forth herein made that materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, it shall cure such breach in all material respects and, if such breach
is not so cured, shall, (i) if such 90-day period expires prior to the second
anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted
Mortgage Loan") from the Trust Fund and substitute in its place a Replacement
Mortgage Loan, in the manner and subject to the conditions set forth in this
Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from
the Trustee at the Purchase Price in the manner set forth below; provided that
any such substitution pursuant to (i) above or repurchase pursuant to (ii)
above shall not be effected prior to the delivery to the Trustee of the
Opinion of Counsel required by Section 2.05 hereof and any such substitution
pursuant to (i) above shall not be effected prior to the additional delivery
to the Trustee of a Request for Release substantially in the form of Exhibit
M. Any Representing Party liable for a breach under this Section 2.03 shall
promptly reimburse the Master Servicer and the Trustee for any expenses
reasonably incurred by the Master Servicer or the Trustee in respect of
enforcing the remedies for such breach. To enable the Master Servicer to amend
the Mortgage Loan Schedule, any Representing Party liable for a breach under
this Section 2.03 shall, unless it cures such breach in a timely fashion
pursuant to this Section 2.03, promptly notify the Master Servicer whether
such Representing Party intends either to repurchase, or to substitute for,
the Mortgage Loan affected by such breach. With respect to the representations
and warranties described in this Section that are made to the best of the
Representing Party's knowledge, if it is discovered by any of the Depositor,
the Master Servicer, the Seller or the Trustee that the substance of such
representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of the related Mortgage Loan, notwithstanding the
Representing Party's lack of knowledge with respect to the substance of such
representation or warranty, such inaccuracy shall be deemed a breach of the
applicable representation or warranty.
With respect to any Replacement Mortgage Loan or Loans, the Seller
delivering such Replacement Mortgage Loan shall deliver to the Trustee for the
benefit of the Certificateholders the related Mortgage Note, Mortgage and
assignment of the Mortgage, and such other documents and agreements as are
required by Section 2.01, with the Mortgage Note endorsed and the Mortgage
assigned as required by Section 2.01. No substitution will be made in any
calendar month after the Determination Date for such month. Scheduled Payments
due with respect to Replacement Mortgage Loans in the Due Period related to
the Distribution Date on which such proceeds are to be distributed shall not
be part of the Trust Fund and will be retained by the Seller delivering such
Replacement Loan on such Distribution Date. For the month of substitution,
distributions to Certificateholders will include the Scheduled Payment due on
any Deleted Mortgage Loan for the related Due Period and thereafter the Seller
shall be entitled to retain all amounts received in respect of such Deleted
Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for
the benefit of the Certificateholders to reflect the removal of such Deleted
Mortgage Loan and the substitution of the Replacement Mortgage Loan or Loans
and the Master Servicer shall deliver the amended Mortgage Loan Schedule to
the Trustee. Upon such substitution, the Replacement Mortgage Loan or Loans
shall be subject to the terms of this Agreement in all respects, and the
Seller delivering such Replacement Mortgage Loan shall be deemed to have made
with respect to such Replacement Mortgage Loan or Loans, as of the date of
substitution, the representations and warranties set forth in Section 2.03(b)
with respect to such Mortgage Loan. Upon any such substitution and the deposit
to the Certificate Account of the amount required to be deposited therein in
connection
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with such substitution as described in the following paragraph, the Trustee
shall release to the Representing Party the Mortgage File relating to such
Deleted Mortgage Loan and held for the benefit of the Certificateholders and
shall execute and deliver at the Master Servicer's direction such instruments
of transfer or assignment as have been prepared by the Master Servicer, in
each case without recourse, as shall be necessary to vest in the Seller, or
its respective designee, title to the Trustee's interest in any Deleted
Mortgage Loan substituted for pursuant to this Section 2.03.
For any month in which the Seller substitutes one or more
Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Master
Servicer will determine the amount (if any) by which the aggregate principal
balance of all such Replacement Mortgage Loans as of the date of substitution
is less than the Stated Principal Balance (after application of the principal
portion of the Scheduled Payment due in the month of substitution) of all such
Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies
described in the preceding sentence (such amount, the "Substitution Adjustment
Amount") shall be forwarded by the Seller to the Master Servicer and deposited
by the Master Servicer into the Certificate Account not later than the
Determination Date for the Distribution Date relating to the Prepayment Period
during which the related Mortgage Loan became required to be purchased or
replaced hereunder.
In the event that a Seller shall have repurchased a Mortgage Loan,
the Purchase Price therefor shall be deposited in the Certificate Account
pursuant to Section 3.08 on the Determination Date for the Distribution Date
in the month following the month during which such Seller became obligated to
repurchase or replace such Mortgage Loan and upon such deposit of the Purchase
Price, the delivery of the Opinion of Counsel required by Section 2.05, if
any, and the receipt of a Request for file Release, the Trustee shall release
the related Mortgage File held for the benefit of the Certificateholders to
such Seller, and the Trustee shall execute and deliver at such Person's
direction the related instruments of transfer or assignment prepared by such
Seller, in each case without recourse, as shall be necessary to transfer title
from the Trustee for the benefit of the Certificateholders and transfer the
Trustee's interest to such Seller to any Mortgage Loan purchased pursuant to
this Section 2.03. It is understood and agreed that the obligation under this
Agreement of the Seller to cure, repurchase or replace any Mortgage Loan as to
which a breach has occurred and is continuing shall constitute the sole remedy
against the Seller respecting such breach available to Certificateholders, the
Depositor, the Co-Trustee or the Trustee.
(d) The representations and warranties set forth in Section 2.03
hereof shall survive delivery of the respective Mortgage Files to the Trustee
for the benefit of the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the Master Servicer
and the Trustee as follows, as of the date hereof:
(i) The Depositor is duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware
and has full power and authority (corporate and other) necessary to own
or hold its properties and to conduct
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its business as now conducted by it and to enter into and perform its
obligations under this Agreement.
(ii) The Depositor has the full corporate power and authority
to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement and has duly authorized, by
all necessary corporate action on its part, the execution, delivery and
performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery hereof by the other parties hereto,
constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, subject,
as to enforceability, to (i) bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors' rights generally
and (ii) general principles of equity, regardless of whether enforcement
is sought in a proceeding in equity or at law.
(iii) The execution and delivery of this Agreement by the
Depositor, the consummation of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms hereof are
in the ordinary course of business of the Depositor and will not (A)
result in a material breach of any term or provision of the charter or
by-laws of the Depositor or (B) materially conflict with, result in a
material breach, violation or acceleration of, or result in a material
default under, the terms of any other material agreement or instrument to
which the Depositor is a party or by which it may be bound or (C)
constitute a material violation of any statute, order or regulation
applicable to the Depositor of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Depositor; and
the Depositor is not in breach or violation of any material indenture or
other material agreement or instrument, or in violation of any statute,
order or regulation of any court, regulatory body, administrative agency
or governmental body having jurisdiction over it which breach or
violation may materially impair the Depositor's ability to perform or
meet any of its obligations under this Agreement.
(iv) No litigation is pending, or, to the best of the
Depositor's knowledge, threatened, against the Depositor that would
materially and adversely affect the execution, delivery or enforceability
of this Agreement or the ability of the Depositor to perform its
obligations under this Agreement in accordance with the terms hereof.
(v) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Depositor of, or compliance by the Depositor with,
this Agreement or the consummation of the transactions contemplated
hereby, or if any such consent, approval, authorization or order is
required, the Depositor has obtained the same.
The Depositor hereby represents and warrants to the Trustee with
respect to each Mortgage Loan as of the Closing Date, and following the
transfer of the Mortgage Loans to it by the Seller, the Depositor had good
title to the Mortgage Loans, and the related Mortgage Notes were subject to no
offsets, claims, defenses or counterclaims.
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It is understood and agreed that the representations and warranties
set forth in the two immediately preceding paragraphs shall survive delivery
of the Mortgage Files to the Trustee. Upon discovery by the Depositor or the
Trustee of a breach of any of the foregoing representations and warranties set
forth in the immediately preceding paragraph (referred to herein as a
"breach"), which breach materially and adversely affects the interest of the
Certificateholders, the party discovering such breach shall give prompt
written notice to the others and to each Rating Agency. The Depositor hereby
covenants with respect to the representations and warranties made by it in
this Section 2.04 that within 90 days of the earlier of the discovery it or
receipt of written notice by it from any party of a breach of any
representation or warranty set forth herein made that materially and adversely
affects the interests of the Certificateholders in any Mortgage Loan, it shall
cure such breach in all material respects and, if such breach is not so cured,
shall repurchase or replace the affected Mortgage Loan or Loans in accordance
with the procedure set forth in Section 2.03(c).
Section 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions and Repurchases.
(a) Notwithstanding any contrary provision of this Agreement, with
respect to any Mortgage Loan that is not in default or as to which default is
not imminent, no repurchase or substitution pursuant to Sections 2.02, 2.03 or
2.04 shall be made unless the Representing Party making such repurchase or
substitution delivers to the Trustee an Opinion of Counsel, addressed to the
Trustee, to the effect that such repurchase or substitution would not (i)
result in the imposition of the tax on "prohibited transactions" of the Trust
Fund or contributions after the Closing Date, as defined in sections
860F(a)(2) and 860G(d) of the Code, respectively or (ii) cause any REMIC
formed hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding. Any Mortgage Loan as to which repurchase or
substitution was delayed pursuant to this paragraph shall be repurchased or
the substitution therefor shall occur (subject to compliance with Sections
2.02, 2.03 or 2.04) upon the earlier of (a) the occurrence of a default or
imminent default with respect to such loan and (b) receipt by the Trustee of
an Opinion of Counsel to the effect that such repurchase or substitution, as
applicable, will not result in the events described in clause (i) or clause
(ii) of the preceding sentence.
(b) Upon discovery by the Depositor, the Seller, the Master Servicer
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 promptly (and in any event within 5 Business Days
of discovery) give written notice thereof to the other parties. In connection
therewith, the Trustee shall require the Seller, at the Seller's option, to
either (i) substitute, if the conditions in Section 2.03(b) with respect to
substitutions are satisfied, a Replacement Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90 days of
such discovery in the same manner as it would a Mortgage Loan for a breach of
representation or warranty contained in Section 2.03. The Trustee shall
reconvey to the Seller 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 contained in Section
2.03.
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Section 2.06 Authentication and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the
Trust Fund and, concurrently with such transfer and assignment, has executed,
authenticated and delivered, to or upon the order of the Depositor, the
Certificates in authorized denominations evidencing the entire ownership of
the Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the
rights referred to above for the benefit of all present and future Holders of
the Certificates and to perform the duties set forth in this Agreement to the
best of its ability, to the end that the interests of the Holders of the
Certificates may be adequately and effectively protected.
Section 2.07 Covenants of the Master Servicer.
The Master Servicer hereby covenants to the Depositor and the
Trustee as follows:
(a) the Master Servicer shall comply in the performance of its
obligations under this Agreement with all reasonable rules and requirements of
the insurer under each Required Insurance Policy; and
(b) no written information, certificate of an officer, statement
furnished in writing or written report delivered to the Depositor, any
affiliate of the Depositor or the Trustee and prepared by the Master Servicer
pursuant to this Agreement will contain any untrue statement of a material
fact or omit to state a material fact necessary to make the information,
certificate, statement or report not misleading.
Section 2.08 Seller Loss Coverage Obligation.
The Seller hereby agrees that, for the benefit of the
Certificateholders, on the Business Day immediately preceding each
Distribution Date it will remit to the Trustee for deposit into the
Distribution Account the amount of any Enhancement Payment due for such
Distribution Date as specified in the remittance report delivered by the
Master Servicer. The obligation of the Seller to remit Enhancement Payments
will terminate when the Seller Loss Coverage Amount has been reduced to zero.
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ARTICLE III.
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer
shall service and administer the Mortgage Loans in accordance with customary
and usual standards of practice of prudent mortgage loan lenders in the
respective states in which the Mortgaged Properties are located, including
taking all required and appropriate actions under each Required Insurance
Policy. In connection with such servicing and administration, the Master
Servicer shall have full power and authority, acting alone and/or through
subservicers as provided in Section 3.02 hereof, subject to the terms hereof
(i) to execute and deliver, on behalf of the Certificateholders and the
Trustee, customary consents or waivers and other instruments and documents,
(ii) to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages (but only in the manner provided in this
Agreement), (iii) to collect any Insurance Proceeds, other Liquidation
Proceeds (other than proceeds of the Loan Insurance Policy) and, Subsequent
Recoveries, and (iv) subject to Section 3.12(b), to effectuate foreclosure or
other conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan; provided that the Master Servicer shall take no action that is
inconsistent with or prejudices the interests of the Trustee or the
Certificateholders in any Mortgage Loan or the rights and interests of the
Depositor and the Trustee under this Agreement. The Master Servicer shall
represent and protect the interest of the Trustee in the same manner as it
currently protects its own interest in mortgage loans in its own portfolio in
any claim, proceeding or litigation regarding a Mortgage Loan and shall not
make or permit any modification, waiver or amendment of any term of any
Mortgage Loan which would (i) cause any REMIC formed hereunder to fail to
qualify as a REMIC or (ii) result in the imposition of any tax under Section
860(a) or 860(d) of the Code, but in any case the Master Servicer shall not
act in any manner that is a lesser standard than that provided in the first
sentence of this Section 3.01. Without limiting the generality of the
foregoing, the Master Servicer, in its own name or in the name of the
Depositor and the Trustee, is hereby authorized and empowered by the Depositor
and the Trustee, when the Master Servicer believes it appropriate in its
reasonable judgment, to execute and deliver, on behalf of the Trustee, the
Depositor, the Certificateholders or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and
all other comparable instruments, with respect to the Mortgage Loans, and with
respect to the Mortgaged Properties held for the benefit of the
Certificateholders. The Master Servicer shall prepare and deliver to the
Depositor and/or the Trustee such documents requiring execution and delivery
by any or all of them as are necessary or appropriate to enable the Master
Servicer to service and administer the Mortgage Loans. Upon receipt of such
documents, the Depositor and/or the Trustee shall execute such documents and
deliver them to the Master Servicer. The Master Servicer further is authorized
and empowered by the Trustee, on behalf of the Certificateholders and the
Trustee, in its own name or in the name of the Subservicer, when the Master
Servicer or the Subservicer, as the case may be, believes it appropriate in
its best judgment to register any Mortgage Loan on the MERS(R) System, or
cause the removal from the registration of any Mortgage Loan on the MERS(R)
System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with
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respect to such assignment or re-recording of a Mortgage in the name of MERS,
solely as nominee for the Trustee and its successors and assigns.
In accordance with the standards of the preceding paragraph, the
Master Servicer shall advance or cause to be advanced funds as necessary for
the purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties, which advances shall be reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 3.06, and further
as provided in Section 3.08. All costs incurred by the Master Servicer, if
any, in effecting the timely payments of taxes and assessments on the
Mortgaged Properties and related insurance premiums shall not, for the purpose
of calculating monthly distributions to the Certificateholders, be added to
the Stated Principal Balance under the related Mortgage Loans, notwithstanding
that the terms of such Mortgage Loans so permit.
The Master Servicer shall deliver a list of Servicing Officers to
the Trustee by the Closing Date.
In connection with its activities as Master Servicer of the Mortgage
Loans, the Master Servicer agrees to present, on behalf of itself, the Trustee
and the Certificateholders, claims to the insurer under any primary insurance
policies and, in this regard, to take any reasonable action necessary to
permit recovery under any primary insurance policies respecting defaulted
Mortgage Loans. Any amounts collected by the Master Servicer under any primary
insurance policies shall be deposited in the Certificate Account.
In the event that a shortfall in any collection on or liability with
respect to any Mortgage Loan results from or is attributable to adjustments to
Mortgage Rates, Scheduled Payments or Stated Principal Balances that were made
by the Master Servicer in a manner not consistent with the terms of the
related Mortgage Note and this Agreement, the Master Servicer, upon discovery
or receipt of notice thereof, immediately shall deliver to the Trustee for
deposit in the Distribution Account from its own funds the amount of any such
shortfall and shall indemnify and hold harmless the Trust Fund, the Trustee,
the Co-Trustee, the Depositor and any successor master servicer in respect of
any such liability. Such indemnities shall survive the termination or
discharge of this Agreement. Notwithstanding the foregoing, this Section 3.01
shall not limit the ability of the Master Servicer to seek recovery of any
such amounts from the related Mortgagor under the terms of the related
Mortgage Note, as permitted by law and shall not be an expense of the Trust.
Section 3.02 Subservicing; Enforcement of the Obligations of Master
Servicer.
(a) The Master Servicer may arrange for the subservicing of any
Mortgage Loan by a subservicer (each, a "Subservicer") pursuant to a
subservicing agreement (each, a "Subservicing Agreement"); provided that (i)
such subservicing arrangement and the terms of the related subservicing
agreement must provide for the servicing of such Mortgage Loans in a manner
consistent with the servicing arrangements contemplated hereunder and (ii)
such subservicing agreements would not result in a withdrawal or a downgrading
by any Rating Agency of the ratings on any Class of Certificates, as evidenced
by a letter to that effect delivered by each Rating Agency to the Depositor.
The Master Servicer shall deliver to the Trustee copies of all Sub-servicing
Agreements, and any amendments or modifications thereof,
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promptly upon the Master Servicer's execution and delivery of such
instruments. The Master Servicer shall be entitled to terminate any
Subservicing Agreement and the rights and obligations of any Subservicer
pursuant to any Subservicing Agreement in accordance with the terms and
conditions of such Subservicing Agreement. Notwithstanding the provisions of
any subservicing agreement, any of the provisions of this Agreement relating
to agreements or arrangements between the Master Servicer or a subservicer or
reference to actions taken through a Master Servicer or otherwise, the Master
Servicer shall remain obligated and liable to the Depositor, the Trustee and
the Certificateholders for the servicing and administration of the Mortgage
Loans in accordance with the provisions of this Agreement without diminution
of such obligation or liability by virtue of such subservicing agreements or
arrangements or by virtue of indemnification from the subservicer and to the
same extent and under the same terms and conditions as if the Master Servicer
alone were servicing and administering the Mortgage Loans. Every subservicing
agreement entered into by the Master Servicer shall contain a provision giving
the successor Master Servicer the option to terminate such agreement in the
event a successor Master Servicer is appointed. All actions of each
subservicer performed pursuant to the related subservicing agreement shall be
performed as an agent of the Master Servicer with the same force and effect as
if performed directly by the Master Servicer.
(b) For purposes of this Agreement, the Master Servicer shall be
deemed to have received any collections, recoveries or payments with respect
to the Mortgage Loans that are received by a subservicer regardless of whether
such payments are remitted by the subservicer to the Master Servicer.
Section 3.03 Rights of the Depositor, the Seller, the
Certificateholders and the Trustee in Respect
of the Master Servicer.
None of the Trustee, the Co-Trustee, the Seller, the
Certificateholders or the Depositor shall have any responsibility or liability
for any action or failure to act by the Master Servicer, and none of them is
obligated to supervise the performance of the Master Servicer hereunder or
otherwise. The Master Servicer shall afford (and any Subservicing Agreement
shall provide that each Subservicer shall afford) the Depositor and the
Trustee, upon reasonable notice, during normal business hours, access to all
records maintained by the Master Servicer (and any such Subservicer) in
respect of the Master Servicer's rights and obligations hereunder and access
to officers of the Master Servicer (and those of any such Subservicer)
responsible for such obligations. Upon request, the Master Servicer shall
furnish to the Depositor and the Trustee its (and any such Subservicer's) most
recent financial statements and such other information relating to the Master
Servicer's capacity to perform its obligations under this Agreement that it
possesses. To the extent such information is not otherwise available to the
public, the Depositor and the Trustee shall not disseminate any information
obtained pursuant to the preceding two sentences without the Masters
Servicer's (or any such Subservicer's) written consent, except as required
pursuant to this Agreement or to the extent that it is necessary to do so (i)
in working with legal counsel, auditors, taxing authorities or other
governmental agencies, rating agencies or reinsurers or (ii) pursuant to any
law, rule, regulation, order, judgment, writ, injunction or decree of any
court or governmental authority having jurisdiction over the Depositor, the
Trustee or the Trust Fund, and in either case, the Depositor or the Trustee,
as the case may be, shall use its reasonable best efforts to assure the
confidentiality of any such disseminated non-public information. The Depositor
may, but is not obligated to, enforce the
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obligations of the Master Servicer under this Agreement and may, but is not
obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Master Servicer under this Agreement or exercise the rights
of the Master Servicer under this Agreement; provided by virtue of such
performance by the Depositor of its designee. The Depositor shall not have any
responsibility or liability for any action or failure to act by the Master
Servicer and is not obligated to supervise the performance of the Master
Servicer under this Agreement or otherwise.
Section 3.04 Trustee to Act as Master Servicer.
In the event that the Master Servicer shall for any reason no longer
be the Master Servicer hereunder (including by reason of an Event of Default),
the Trustee or its designee shall thereupon assume all of the rights and
obligations of the Master Servicer hereunder arising thereafter (except that
the Trustee shall not be (i) liable for losses of the Master Servicer pursuant
to Section 3.10 hereof or any acts or omissions of the predecessor Master
Servicer hereunder, (ii) obligated to make Advances if it is prohibited from
doing so by applicable law, (iii) obligated to effectuate repurchases or
substitutions of Mortgage Loans hereunder, including pursuant to Section 2.02
or 2.03 hereof, (iv) responsible for expenses of the Master Servicer pursuant
to Section 2.03 or (v) deemed to have made any representations and warranties
hereunder, including pursuant to Section 2.03 or the first paragraph of
Section 6.02 hereof). If the Master Servicer shall for any reason no longer be
the Master Servicer (including by reason of any Event of Default), the Trustee
(or any other successor servicer) may, at its option, succeed to any rights
and obligations of the Master Servicer under any subservicing agreement in
accordance with the terms thereof; provided that the Trustee (or any other
successor servicer) shall not incur any liability or have any obligations in
its capacity as servicer under a subservicing agreement arising prior to the
date of such succession unless it expressly elects to succeed to the rights
and obligations of the Master Servicer thereunder; and the Master Servicer
shall not thereby be relieved of any liability or obligations under the
subservicing agreement arising prior to the date of such succession.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party all documents
and records relating to each subservicing agreement and the Mortgage Loans
then being serviced thereunder and an accounting of amounts collected held by
it and otherwise use its best efforts to effect the orderly and efficient
transfer of the subservicing agreement to the assuming party.
Section 3.05 Collection of Mortgage Loan Payments; Certificate
Account; Distribution Account; Seller Shortfall
Interest Requirement.
(a) The Master Servicer shall make reasonable efforts in accordance
with customary and usual standards of practice of prudent mortgage lenders in
the respective states in which the Mortgaged Properties are located to collect
all payments called for under the terms and provisions of the Mortgage Loans
to the extent such procedures shall be consistent with this Agreement and the
terms and provisions of any related Required Insurance Policy. Consistent with
the foregoing, the Master Servicer may in its discretion (i) waive any late
payment charge or, subject to Section 3.20, any Prepayment Charge or penalty
interest in connection with the prepayment of a Mortgage Loan and (ii) extend
the due dates for payments due on a Mortgage
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Note for a period not greater than 270 days. In the event of any such
arrangement, the Master Servicer shall make Advances on the related Mortgage
Loan during the scheduled period in accordance with the amortization schedule
of such Mortgage Loan without modification thereof by reason of such
arrangements. The Master Servicer shall not be required to institute or join
in litigation with respect to collection of any payment (whether under a
Mortgage, Mortgage Note or otherwise or against any public or governmental
authority with respect to a taking or condemnation) if it reasonably believes
that enforcing the provision of the Mortgage or other instrument pursuant to
which such payment is required is prohibited by applicable law.
(b) The Master Servicer shall establish and maintain a Certificate
Account into which the Master Servicer shall deposit or cause to be deposited
on a daily basis within two Business Days of receipt, except as otherwise
specifically provided herein, the following payments and collections remitted
by Subservicers or received by it in respect of Mortgage Loans subsequent to
the Cut-off Date (other than in respect of principal and interest due on the
Mortgage Loans before the Cut-off Date) and the following amounts (without
duplication) required to be deposited hereunder:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans
net of the related Servicing Fee permitted under Section 3.15, other than
interest accrued on the Mortgage Loans prior to the Cut-off Date, and the
Certificate Account Deposit;
(iii) all Insurance Proceeds (other than proceeds of the Loan
Insurance Policy);
(iv) all other Liquidation Proceeds and Subsequent Recoveries,
other than proceeds to be applied to the restoration or repair of the
Mortgaged Property or released to the Mortgagor in accordance with the
Master Servicer's normal servicing procedures;
(v) all Compensating Interest;
(vi) any amount required to be deposited by the Master Servicer
pursuant to Section 3.05(e) in connection with any losses on Permitted
Investments;
(vii) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.10 hereof;
(viii) the Purchase Price and any Substitution Adjustment
Amount;
(ix) all Advances made by the Master Servicer pursuant to
Section 4.01;
(x) all Prepayment Charges paid by a Mortgagor in connection
with the full or partial Principal Prepayment of the related Mortgage
Loan; and
(xi) any other amounts required to be deposited hereunder.
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The foregoing requirements for remittance by the Master Servicer
into the Certificate Account shall be exclusive, it being understood and
agreed that, without limiting the generality of the foregoing, payments in the
nature of prepayment penalties, late payment charges or assumption fees, if
collected, need not be remitted by the Master Servicer. In the event that the
Master Servicer shall remit any amount not required to be remitted and not
otherwise subject to withdrawal pursuant to Section 3.08 hereof, it may at any
time withdraw or direct the institution maintaining the Certificate Account,
to withdraw such amount from the Certificate Account, any provision herein to
the contrary notwithstanding. Such withdrawal or direction may be accomplished
by delivering written notice thereof to the institution maintaining the
Certificate Account, that describes the amounts deposited in error in the
Certificate Account. The Master Servicer shall maintain adequate records with
respect to all withdrawals made pursuant to this Section. All funds deposited
in the Certificate Account shall be held in trust for the Certificateholders
until withdrawn in accordance with Section 3.08.
No later than 1:00 p.m. Pacific time on the Business Day prior to
the Master Servicer Advance Date in January 2005, the Seller shall remit to
the Master Servicer, and the Master Servicer shall deposit in the Certificate
Account, the Seller Shortfall Interest Requirement (if any) for such Master
Servicer Advance Date.
(c) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Trustee shall, promptly upon
receipt, deposit in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Master Servicer
pursuant to the second paragraph of Section 3.08(a);
(ii) any Enhancement Payment made by the Seller;
(iii) any amount required to be deposited by the Master
Servicer pursuant to Section 3.05(e) in connection with any losses on
Permitted Investments; and
(iv) any proceeds paid in respect of the Mortgage Loans
pursuant to the Loan Insurance Policy.
The foregoing requirements for remittance by the Master Servicer and
deposit by the Trustee into the Distribution Account shall be exclusive. In
the event that the Master Servicer shall remit any amount not required to be
remitted and not otherwise subject to withdrawal pursuant to Section 3.08
hereof, it may at any time direct the Trustee to withdraw such amount from the
Distribution Account, any provision herein to the contrary notwithstanding.
Such direction may be accomplished by delivering a written notice to the
Trustee that describes the amounts deposited in error in the Distribution
Account. All funds deposited in the Distribution Account shall be held by the
Trustee in trust for the Certificateholders until disbursed in accordance with
this Agreement or withdrawn in accordance with Section 3.08. In no event shall
the Trustee incur liability for withdrawals from the Distribution Account at
the direction of the Master Servicer.
(d) [Reserved].
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(e) Each institution that maintains the Certificate Account or the
Distribution Account shall invest the funds in each such account, as directed
by the Master Servicer, in Permitted Investments, which shall mature not later
than (x) in the case of the Certificate Account, the second Business Day next
preceding the related Distribution Account Deposit Date (except that if such
Permitted Investment is an obligation of the institution that maintains such
Certificate Account, then such Permitted Investment shall mature not later
than the Business Day next preceding such Distribution Account Deposit Date)
and (y) in the case of the Distribution Account and the Carryover Reserve Fund
the Business Day immediately preceding the first Distribution Date that
follows the date of such investment (except that if such Permitted Investment
is an obligation of the institution that maintains such Distribution Account
or the Carryover Reserve Fund, then such Permitted Investment shall mature not
later than such Distribution Date), in each case, shall not be sold or
disposed of prior to its maturity. All such Permitted Investments shall be
made in the name of the Trustee, for the benefit of the Certificateholders,
except in connection with Permitted Investments made with respect to funds in
the Carryover Reserve Fund which shall be made in the name of the Trustee, for
the benefit of the Certificateholders. In the case of (i) the Certificate
Account and the Distribution Account, all income and gain net of any losses
realized from any such investment shall be for the benefit of the Master
Servicer as servicing compensation and shall be remitted to it monthly as
provided herein, and (ii) the Carryover Reserve Fund, all income and gain net
of any losses realized from any such investment shall be for the benefit of
the Class A-IO Certificateholders and shall be remitted to the Class A-IO
Certificateholders monthly as provided herein. The amount of any losses
incurred in the Certificate Account or the Distribution Account in respect of
any such investments shall be deposited by the Master Servicer in the
Certificate Account or paid to the Trustee for deposit into the Distribution
Account out of the Master Servicer's own funds immediately as realized. Any
losses incurred in the Carryover Reserve Fund in respect of any such
investments shall be charged against amounts on deposit in the Carryover
Reserve Fund (or such investments) immediately as realized. The Trustee shall
not be liable for the amount of any loss incurred in respect of any investment
or lack of investment of funds held in the Certificate Account, the
Distribution Account or the Carryover Reserve Fund and made in accordance with
this Section 3.05.
(f) The Master Servicer shall give at least 30 days advance notice
to the Trustee, the Seller, each Rating Agency and the Depositor of any
proposed change of location of the Certificate Account prior to any change
thereof. The Trustee shall give at least 30 days advance notice to the Master
Servicer, the Seller, each Rating Agency and the Depositor of any proposed
change of the location of the Distribution Account or the Carryover Reserve
Fund prior to any change thereof.
(g) Except as otherwise expressly provided in this Agreement, if any
default occurs under any Permitted Investment, the Trustee may and, subject to
Section 8.01 and 8.02(4), at the request of the Holders of Certificates
representing more than 50% of the Voting Rights, shall take any action
appropriate to enforce payment or performance, including the institution and
prosecution of appropriate proceedings.
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Section 3.06 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
To the extent required by the related Mortgage Note, the Master
Servicer shall establish and maintain one or more accounts (each, an "Escrow
Account") and deposit and retain therein all collections from the Mortgagors
(or advances by the Master Servicer) for the payment of taxes, assessments,
hazard insurance premiums or comparable items for the account of the
Mortgagors. Nothing herein shall require the Master Servicer to compel a
Mortgagor to establish an Escrow Account in violation of applicable law.
Withdrawals of amounts so collected from the Escrow Accounts may be
made only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items, to
reimburse the Master Servicer out of related collections for any payments made
pursuant to Sections 3.01 hereof (with respect to taxes and assessments and
insurance premiums) and 3.10 hereof (with respect to hazard insurance), to
refund to any Mortgagors any sums as may be determined to be overages, to pay
interest, if required by law or the terms of the related Mortgage or Mortgage
Note, to Mortgagors on balances in the Escrow Account or to clear and
terminate the Escrow Account at the termination of this Agreement in
accordance with Section 9.01 hereof. The Escrow Accounts shall not be a part
of the Trust Fund.
Section 3.07 Access to Certain Documentation and Information
Regarding the Mortgage Loans.
The Master Servicer shall afford the Depositor and the Trustee
reasonable access to all records and documentation regarding the Mortgage
Loans and all accounts, insurance policies and other matters relating to this
Agreement, such access being afforded without charge, but only upon reasonable
request and during normal business hours at the offices of the Master Servicer
designated by it.
Upon reasonable advance notice in writing if required by federal
regulation, the Master Servicer will provide to each Certificateholder or
Certificate Owner that is a savings and loan association, bank or insurance
company certain reports and reasonable access to information and documentation
regarding the Mortgage Loans sufficient to permit such Certificateholder or
Certificate Owner to comply with applicable regulations of the OTS or other
regulatory authorities with respect to investment in the Certificates;
provided that the Master Servicer shall be entitled to be reimbursed by each
such Certificateholder or Certificate Owner for actual expenses incurred by
the Master Servicer in providing such reports and access.
Section 3.08 Permitted Withdrawals from the Certificate Account,
Distribution Account, the Carryover Reserve Fund and
the Principal Reserve Fund.
(a) The Master Servicer may from time to time make withdrawals from
the Certificate Account for the following purposes:
(i) to pay to the Master Servicer (to the extent not previously
paid to or withheld by the Master Servicer), as servicing compensation in
accordance with Section
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3.15, that portion of any payment of interest that equals the Servicing
Fee for the period with respect to which such interest payment was made,
and, as additional servicing compensation to the Master Servicer, those
other amounts set forth in Section 3.15;
(ii) to reimburse each of the Master Servicer and the Trustee
for Advances made by it with respect to the Mortgage Loans, such right of
reimbursement pursuant to this subclause (ii) being limited to amounts
received on particular Mortgage Loan(s) (including, for this purpose,
Liquidation Proceeds, Insurance Proceeds and Subsequent Recoveries (other
than, in each case, proceeds of the Loan Insurance Policy)) that
represent late recoveries of payments of principal and/or interest on
such particular Mortgage Loan(s) in respect of which any such Advance was
made;
(iii) to pay the Co-Trustee, for payment to the Loan Insurance
Policy Provider as provided below, the Loan Insurance Policy Premium and
any other amounts payable to the Loan Insurance Policy Provider under the
Loan Insurance Policy;
(iv) to reimburse each of the Master Servicer and the Trustee
for any Nonrecoverable Advance previously made;
(v) to reimburse the Master Servicer from Insurance Proceeds
(other than proceeds of the Loan Insurance Policy) for Insured Expenses
incurred by the Master Servicer and covered by the related Insurance
Policy;
(vi) to pay the Master Servicer any unpaid Servicing Fees and
to reimburse it for any unreimbursed Servicing Advances, the Master
Servicer's right to reimbursement of Servicing Advances pursuant to this
subclause (vi) with respect to any Mortgage Loan being limited to amounts
received on particular Mortgage Loan(s) (including, for this purpose,
Liquidation Proceeds, Insurance Proceeds and Subsequent Recoveries and
purchase and repurchase proceeds) that represent late recoveries of the
payments for which such advances were made pursuant to Section 3.01 or
Section 3.06;
(vii) to pay to the Seller, the Depositor or the Master
Servicer, as applicable, with respect to each Mortgage Loan or property
acquired in respect thereof that has been purchased pursuant to Section
2.02, 2.03, 2.04 or 3.12, all amounts received thereon and not taken into
account in determining the related Stated Principal Balance of such
purchased Mortgage Loan;
(viii) to reimburse the Seller, the Master Servicer or the
Depositor for expenses incurred by any of them in connection with the
Mortgage Loans or Certificates and reimbursable pursuant to Section 6.03
hereof provided that such amount shall only be withdrawn following the
withdrawal from the Certificate Account for deposit into the Distribution
Account pursuant to the following paragraph;
(ix) to withdraw any amount deposited in the Certificate
Account and not required to be deposited therein; and
(x) to clear and terminate the Certificate Account upon
termination of this Agreement pursuant to Section 9.01 hereof.
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In addition, no later than 1:00 p.m. Pacific time on the
Distribution Account Deposit Date, the Master Servicer shall withdraw from the
Certificate Account and remit to the Trustee the Interest Remittance Amount
and the Principal Remittance Amount for such Distribution Date to the extent
on deposit in the Certificate Account, and the Trustee shall deposit such
amount in the Distribution Account.
The Trustee shall establish and maintain, on behalf of the
Certificateholders, a Principal Reserve Fund in the name of the Trustee. On
the Closing Date, the Seller shall deposit into the Principal Reserve Fund
$1,732.42. Funds on deposit in the Principal Reserve Fund shall not be
invested. The Principal Reserve Fund shall be treated as an "outside reserve
fund" under applicable Treasury regulations and shall not be part of any REMIC
created under this Agreement. Amounts on deposit in the Principal Reserve Fund
shall not be invested.
On the Business Day before the Distribution Date occurring in
January 2005, the Trustee shall transfer from the Principal Reserve Fund to
the Distribution Account $1,632.42 and shall distribute such amount to the
Certificates on the Distribution Date pursuant to Section 4.04(d).
On the Business Day before the Class P Principal Distribution Date,
the Trustee shall transfer from the Principal Reserve Fund to the Distribution
Account $100.00 and shall distribute such amount to the Class P Certificates
on the Class P Principal Distribution Date. The Trustee shall then terminate
the Principal Reserve Fund.
The Master Servicer shall keep and maintain separate accounting, on
a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Certificate Account pursuant to subclauses (i), (ii),
(iv), (v), (vi), (vii) and (viii) above. Prior to making any withdrawal from
the Certificate Account pursuant to subclause (iv), the Master Servicer shall
deliver to the Trustee an Officer's Certificate of a Servicing Officer
indicating the amount of any previous Advance determined by the Master
Servicer to be a Nonrecoverable Advance and identifying the related Mortgage
Loan(s), and their respective portions of such Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account
for distribution to the Certificateholders in the manner specified in this
Agreement (and shall withhold, from the amounts so withdrawn, the amount of
any taxes that it is authorized to retain pursuant to Section 8.11(c)). In
addition, the Trustee may from time to time make withdrawals from the
Distribution Account for the following purposes:
(i) to pay the Trustee the Trustee Fee on each Distribution
Date;
(ii) to pay to the Master Servicer, as additional servicing
compensation, earnings on or investment income with respect to funds in
or credited to the Distribution Account;
(iii) to withdraw any amount deposited in the Distribution
Account and not required to be deposited therein;
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(iv) to reimburse the Trustee for any unreimbursed Advances
made by it pursuant to Section 4.01(d) hereof, such right of
reimbursement pursuant to this subclause (iv) being limited to (x)
amounts received on the related Mortgage Loan(s) in respect of which any
such Advance was made and (y) amounts not otherwise reimbursed to the
Trustee pursuant to Section 3.08(a)(ii) hereof;
(v) to reimburse the Trustee for any Nonrecoverable Advance
previously made by the Trustee pursuant to Section 4.01(d) hereof, such
right of reimbursement pursuant to this subclause (v) being limited to
amounts not otherwise reimbursed to the Trustee pursuant to Section
3.08(a)(iv) hereof; and
(vi) to clear and terminate the Distribution Account upon
termination of this Agreement pursuant to Section 9.01 hereof.
(c) The Trustee shall withdraw funds from the Carryover Reserve Fund
for distribution to the Certificateholders in the manner specified in this
Agreement (and shall withhold, from the amounts so withdrawn, the amount of
any taxes that it is authorized to retain pursuant to Section 8.11(c)). In
addition, the Trustee may from time to time make withdrawals from the
Carryover Reserve Fund for the following purposes:
(i) to withdraw any amount deposited in the Carryover Reserve
Fund and not required to be deposited therein; and
(ii) to clear and terminate the Carryover Reserve Fund upon
termination of this Agreement pursuant to Section 9.01 hereof.]
Section 3.09 The Loan Insurance Policy.
The Master Servicer shall take whatever action is appropriate to
maximize the amounts payable under the Loan Insurance Policy and to service
the Mortgage Loans in the manner required by the Loan Insurance Policy. The
Master Servicer shall prepare and submit all claims eligible for submission
under the Loan Insurance Policy and shall perform all of the obligations of
the insured under the Loan Insurance Policy other than those in Section 8.12
hereof to be performed by the Co-Trustee. If the Loan Insurance Policy is
terminated for any reason other than the exhaustion of its coverage, or if the
claims-paying ability rating of its issuer is reduced to below investment
grade, the Master Servicer will use its best efforts to obtain a comparable
policy from an insurer that is acceptable to the Rating Agencies. The
replacement policy will provide coverage equal to the then remaining coverage
of the Loan Insurance Policy if available. However, if the premium cost of a
replacement policy exceeds the premium cost of the Loan Insurance Policy, the
coverage amount of the replacement policy will be reduced so that its premium
cost will not exceed the premium cost of the Loan Insurance Policy.
The Master Servicer shall forward to the Loan Insurance Policy
Provider in immediately available funds on or before 12:00 noon (New York City
time) on January 25, 2005 the initial premium due under the Loan Insurance
Policy. The Master Servicer shall withdraw from the Certificate Account and
forward to the Co-Trustee in immediately available funds on or before 12:00
noon (New York City time) on each Distribution Date the Loan Insurance Policy
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Premium due on such Distribution Date, and (iii) promptly when due any other
amount owed to the Loan Insurance Policy Provider under the Loan Insurance
Policy.
Section 3.10 Maintenance of Hazard Insurance.
The Master Servicer shall cause to be maintained, for each Mortgage
Loan, hazard insurance with extended coverage in an amount that is at least
equal to the lesser of (i) the maximum insurable value of the improvements
securing such Mortgage Loan and (ii) the greater of (a) the outstanding
principal balance of the Mortgage Loan and (b) an amount such that the
proceeds of such policy shall be sufficient to prevent the related Mortgagor
and/or mortgagee from becoming a co-insurer. Each such policy of standard
hazard insurance shall contain, or have an accompanying endorsement that
contains, a standard mortgagee clause. The Master Servicer shall also cause
flood insurance to be maintained on property acquired upon foreclosure or deed
in lieu of foreclosure of any Mortgage Loan, to the extent described below.
Pursuant to Section 3.05 hereof, any amounts collected by the Master Servicer
under any such policies (other than the amounts to be applied to the
restoration or repair of the related Mortgaged Property or property thus
acquired or amounts released to the Mortgagor in accordance with the Master
Servicer's normal servicing procedures) shall be deposited in the Certificate
Account. Any cost incurred by the Master Servicer in maintaining any such
insurance shall not, for the purpose of calculating monthly distributions to
the Certificateholders or remittances to the Trustee for their benefit, be
added to the principal balance of the Mortgage Loan, notwithstanding that the
terms of the Mortgage Loan so permit. Such costs shall be recoverable by the
Master Servicer out of late payments by the related Mortgagor or out of
Liquidation Proceeds or Subsequent Recoveries to the extent permitted by
Section 3.08 hereof. It is understood and agreed that no earthquake or other
additional insurance is to be required of any Mortgagor or maintained on
property acquired in respect of a Mortgage other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Mortgaged Property is located at the
time of origination of the Mortgage Loan in a federally designated special
flood hazard area and such area is participating in the national flood
insurance program, the Master Servicer shall cause flood insurance to be
maintained with respect to such Mortgage Loan. Such flood insurance shall be
in an amount equal to the lesser of (i) the original principal balance of the
related Mortgage Loan, (ii) the replacement value of the improvements that are
part of such Mortgaged Property, or (iii) the maximum amount of such insurance
available for the related Mortgaged Property under the Flood Disaster
Protection Act of 1973, as amended.
Section 3.11 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section 3.11(a), when any
property subject to a Mortgage has been or is about to be conveyed by the
Mortgagor, the Master Servicer shall to the extent that it has knowledge of
such conveyance, enforce any due-on-sale clause contained in any Mortgage Note
or Mortgage, to the extent permitted under applicable law and governmental
regulations, but only to the extent that such enforcement will not adversely
affect or jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing, the Master Servicer is not required to exercise
such rights with respect to a Mortgage Loan if the Person to whom the related
Mortgaged Property has been conveyed or is proposed to be conveyed satisfies
the terms and conditions contained in the Mortgage Note and Mortgage related
thereto and the consent of the mortgagee under such Mortgage Note or Mortgage
is not
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otherwise so required under such Mortgage Note or Mortgage as a condition to
such transfer. In the event that the Master Servicer is prohibited by law from
enforcing any such due-on-sale clause, or if coverage under any Required
Insurance Policy would be adversely affected, or if nonenforcement is
otherwise permitted hereunder, the Master Servicer is authorized, subject to
Section 3.11(b), to take or enter into an assumption and modification
agreement from or with the person to whom such property has been or is about
to be conveyed, pursuant to which such person becomes liable under the
Mortgage Note and, unless prohibited by applicable state law, the Mortgagor
remains liable thereon, provided that the Mortgage Loan shall continue to be
covered (if so covered before the Master Servicer enters such agreement) by
the applicable Required Insurance Policies. The Master Servicer, subject to
Section 3.11(b), is also authorized with the prior approval of the insurers
under any Required Insurance Policies to enter into a substitution of
liability agreement with such Person, pursuant to which the original Mortgagor
is released from liability and such Person is substituted as Mortgagor and
becomes liable under the Mortgage Note. Notwithstanding the foregoing, the
Master Servicer shall not be deemed to be in default under this Section
3.11(a) by reason of any transfer or assumption that the Master Servicer
reasonably believes it is restricted by law from preventing. The Master
Servicer shall notify the Trustee that any such substitution, modification or
assumption agreement has been completed by forwarding to the Trustee the
executed original of such substitution or assumption agreement, which document
shall be added to the related Mortgage File and shall, for all purposes, be
considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting a part thereof.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale
clause to the extent set forth in Section 3.11(a) hereof, in any case in which
a Mortgaged Property has been conveyed to a Person by a Mortgagor, and such
Person is to enter into an assumption agreement or modification agreement or
supplement to the Mortgage Note or Mortgage that requires the signature of the
Trustee, or if an instrument of release signed by the Trustee is required
releasing the Mortgagor from liability on the Mortgage Loan, the Master
Servicer shall prepare and deliver or cause to be prepared and delivered to
the Trustee for signature and shall direct, in writing, the Trustee to execute
the assumption agreement with the Person to whom the Mortgaged Property is to
be conveyed and such modification agreement or supplement to the Mortgage Note
or Mortgage or other instruments as are reasonable or necessary to carry out
the terms of the Mortgage Note or Mortgage or otherwise to comply with any
applicable laws regarding assumptions or the transfer of the Mortgaged
Property to such Person. In connection with any such assumption, no material
term of the Mortgage Note (including, but not limited to, the Mortgage Rate,
the amount of the Scheduled Payment and any other term affecting the amount or
timing of payment on the Mortgage Loan) may be changed. In addition, the
substitute Mortgagor and the Mortgaged Property must be acceptable to the
Master Servicer in accordance with its underwriting standards as then in
effect. The Master Servicer shall notify the Trustee that any such
substitution or assumption agreement has been completed by forwarding to the
Trustee the original of such substitution or assumption agreement, which in
the case of the original shall be added to the related Mortgage File and
shall, for all purposes, be considered a part of such Mortgage File to the
same extent as all other documents and instruments constituting a part
thereof. Any fee collected by the Master Servicer for entering into an
assumption or substitution of liability agreement will be retained by the
Master Servicer as additional servicing compensation.
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Section 3.12 Realization Upon Defaulted Mortgage Loans;
Determination of Excess Proceeds and Realized
Losses; Repurchase of Certain Mortgage Loans.
(a) The Master Servicer may agree to a modification of any Mortgage
Loan (the "Modified Mortgage Loan") if (i) the modification is in lieu of a
refinancing and (ii) the Mortgage Rate on the Modified Mortgage Loan is
approximately a prevailing market rate for newly originated mortgage loans
having similar terms and (iii) the Master Servicer purchases the Modified
Mortgage Loan from the Trust Fund as described below. Effective immediately
after the modification, and, in any event, on the same Business Day on which
the modification occurs, all interest of the Trustee in the Modified Mortgage
Loan shall automatically be deemed transferred and assigned to the Master
Servicer and all benefits and burdens of ownership thereof, including the
right to accrued interest thereon from the date of modification and the risk
of default thereon, shall pass to the Master Servicer. The Master Servicer
shall promptly deliver to the Trustee a certification of a Servicing Officer
to the effect that all requirements of this paragraph have been satisfied with
respect to the Modified Mortgage Loan. For federal income tax purposes, the
Trustee shall account for such purchase as a prepayment in full of the
Modified Mortgage Loan. The Master Servicer shall deposit the Purchase Price
for any Modified Mortgage Loan in the Certificate Account pursuant to Section
3.05 within one Business Day after the purchase of the Modified Mortgage Loan.
Upon receipt by the Trustee of written notification of any such deposit signed
by a Servicing Officer, the Trustee shall release to the Master Servicer the
related Mortgage File and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be necessary
to vest in the Master Servicer any Modified Mortgage Loan previously
transferred and assigned pursuant hereto. The Master Servicer covenants and
agrees to indemnify the Trust Fund against any liability for any "prohibited
transaction" taxes and any related interest, additions, and penalties imposed
on the Trust Fund established hereunder as a result of any modification of a
Mortgage Loan effected pursuant to this subsection (b), any holding of a
Modified Mortgage Loan by the Trust Fund or any purchase of a Modified
Mortgage Loan by the Master Servicer (but such obligation shall not prevent
the Master Servicer or any other appropriate Person from in good faith
contesting any such tax in appropriate proceedings and shall not prevent the
Master Servicer from withholding payment of such tax, if permitted by law,
pending the outcome of such proceedings). The Master Servicer shall have no
right of reimbursement for any amount paid pursuant to the foregoing
indemnification, except to the extent that the amount of any tax, interest,
and penalties, together with interest thereon, is refunded to the Trust Fund
or the Master Servicer. If the Master Servicer agrees to a modification of any
Mortgage Loan pursuant to this Section 3.12(a), and if such Mortgage Loan
carries a Prepayment Charge provision, the Master Servicer will deliver to the
Trustee the amount of the Prepayment Charge, if any, that would have been due
had such Mortgage Loan been prepaid at the time of such modification, for
deposit into the Certificate Account (not later than 1:00 p.m. Pacific time on
the Master Servicer Advance Date immediately succeeding the date of such
modification) for distribution in accordance with the terms of this Agreement.
The Servicer may not purchase more than 5.0% of the aggregate Cut-Off Date
Principal Balance of the Mortgage Loans under the circumstances described in
this Section 3.12(a).
(b) The Master Servicer shall use reasonable efforts to foreclose
upon or otherwise comparably convert the ownership of properties securing such
of the Mortgage Loans
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as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments. In connection
with such foreclosure or other conversion, the Master Servicer shall follow
such practices and procedures as it shall deem necessary or advisable and as
shall be normal and usual in its general mortgage servicing activities and the
requirements of the insurer under any Required Insurance Policy; provided that
the Master Servicer shall not be required to expend its own funds in
connection with any foreclosure or towards the restoration of any property
unless it shall determine (i) that such restoration and/or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan after reimbursement
to itself of such expenses and (ii) that such expenses will be recoverable to
it through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Certificate Account pursuant to Section 3.08
hereof). The Master Servicer shall be responsible for all other costs and
expenses incurred by it in any such proceedings; provided that it shall be
entitled to reimbursement thereof from the proceeds of liquidation of the
related Mortgaged Property and any related Subsequent Recoveries, as
contemplated in Section 3.08 hereof. If the Master Servicer has knowledge that
a Mortgaged Property that the Master Servicer is contemplating acquiring in
foreclosure or by deed-in-lieu of foreclosure is located within a one-mile
radius of any site with environmental or hazardous waste risks known to the
Master Servicer, the Master Servicer will, prior to acquiring the Mortgaged
Property, consider such risks and only take action in accordance with its
established environmental review procedures.
With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trustee for the benefit of the
Certificateholders (or the Trustee's nominee on behalf of the
Certificateholders). The Trustee's name shall be placed on the title to such
REO Property solely as the Trustee hereunder and not in its individual
capacity. The Master Servicer shall ensure that the title to such REO Property
references this Agreement and the Trustee's capacity thereunder. Pursuant to
its efforts to sell such REO Property, the Master Servicer shall either itself
or through an agent selected by the Master Servicer protect and conserve such
REO Property in the same manner and to such extent as is customary in the
locality where such REO Property is located and may, incident to its
conservation and protection of the interests of the Certificateholders, rent
the same, or any part thereof, as the Master Servicer deems to be in the best
interest of the Master Servicer and the Certificateholders for the period
prior to the sale of such REO Property. The Master Servicer shall prepare for
and deliver to the Trustee a statement with respect to each REO Property that
has been rented showing the aggregate rental income received and all expenses
incurred in connection with the management and maintenance of such REO
Property at such times as is necessary to enable the Trustee to comply with
the reporting requirements of the REMIC Provisions. The net monthly rental
income, if any, from such REO Property shall be deposited in the Certificate
Account no later than the close of business on each Determination Date. The
Master Servicer shall perform the tax reporting and withholding related to
foreclosures, abandonments and cancellation of indebtedness income as
specified by Sections 1445, 6050J and 6050P of the Code by preparing and
filing such tax and information returns, as may be required.
In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall dispose of such Mortgaged Property as
soon as practicable in a manner that maximizes the Liquidation Proceeds, but
in no event later than three years after its acquisition by the Trust Fund or,
at the expense of the Trust Fund, the Master Servicer shall request, more than
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60 days prior to the day on which such three-year period would otherwise
expire, an extension of the three-year grace period. In the event the Trustee
shall have been supplied with an Opinion of Counsel (such opinion not to be an
expense of the Trustee) to the effect that the holding by the Trust Fund of
such Mortgaged Property subsequent to such three-year period will not result
in the imposition of taxes on "prohibited transactions" of the Trust Fund as
defined in section 860F of the Code or cause any REMIC created hereunder to
fail to qualify as a REMIC at any time that any Certificates are outstanding,
and the Trust Fund may continue to hold such Mortgaged Property (subject to
any conditions contained in such Opinion of Counsel) after the expiration of
such three-year period. Notwithstanding any other provision of this Agreement,
no Mortgaged Property acquired by the Trust Fund shall be rented (or allowed
to continue to be rented) or otherwise used for the production of income by or
on behalf of the Trust Fund in such a manner or pursuant to any terms that
would (i) cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of section 860G(a)(8) of the Code or (ii) subject
the Trust Fund to the imposition of any federal, state or local income taxes
on the income earned from such Mortgaged Property under section 860G(c) of the
Code or otherwise, unless the Master Servicer has agreed to indemnify and hold
harmless the Trust Fund with respect to the imposition of any such taxes.
The decision of the Master Servicer to foreclose on a defaulted
Mortgage Loan shall be subject to a determination by the Master Servicer that
the proceeds of such foreclosure would exceed the costs and expenses of
bringing such a proceeding. The income earned from the management of any
Mortgaged Properties acquired through foreclosure or other judicial
proceeding, net of reimbursement to the Master Servicer for expenses incurred
(including any property or other taxes) in connection with such management and
net of unreimbursed Servicing Fees, Advances, Servicing Advances and any
management fee paid or to be paid with respect to the management of such
Mortgaged Property, shall be applied to the payment of principal of, and
interest on, the related defaulted Mortgage Loans (with interest accruing as
though such Mortgage Loans were still current) and all such income shall be
deemed, for all purposes in this Agreement, to be payments on account of
principal and interest on the related Mortgage Notes and shall be deposited
into the Certificate Account. To the extent the income received during a
Prepayment Period is in excess of the amount attributable to amortizing
principal and accrued interest at the related Mortgage Rate on the related
Mortgage Loan, such excess shall be considered to be a partial Principal
Prepayment for all purposes hereof.
The Liquidation Proceeds from any liquidation of a Mortgage Loan and
any Subsequent Recoveries, net of any payment to the Master Servicer as
provided above, shall be deposited in the Certificate Account as provided in
Section 3.05 for distribution on the related Distribution Date, except that
any Excess Proceeds shall be retained by the Master Servicer as additional
servicing compensation.
The proceeds of any Liquidated Mortgage Loan, as well as any
recovery resulting from a partial collection of Liquidation Proceeds or any
income from an REO Property, will be applied in the following order of
priority: first, to reimburse the Master Servicer for any related unreimbursed
Servicing Advances and Servicing Fees, pursuant to Section 3.08(a)(v) or this
Section 3.12; second, to reimburse the Master Servicer for any unreimbursed
Advances, pursuant to Section 3.08(a)(ii) or this Section 3.12; third, to
accrued and unpaid interest (to the extent no Advance has been made for such
amount) on the Mortgage Loan or related REO Property, at the
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Net Mortgage Rate to the Due Date occurring in the month in which such amounts
are required to be distributed; and fourth, as a recovery of principal of the
Mortgage Loan.
(c) On each Determination Date, the Master Servicer shall determine
the respective aggregate amounts of Excess Proceeds and Realized Losses, if
any, in connection with the related Distribution Date.
(d) The Master Servicer, in its sole discretion, shall have the
right to elect (by written notice sent to the Trustee) to purchase for its own
account from the Trust Fund any Mortgage Loan that is 150 days or more
delinquent at a price equal to the Purchase Price; provided, however, that the
Master Servicer may only exercise this right on or before the last day of the
calendar month in which such Mortgage Loan became 150 days delinquent (such
month, the "Eligible Repurchase Month"); provided further, that any such
Mortgage Loan which becomes current but thereafter becomes delinquent may be
purchased by the Master Servicer pursuant to this Section in any ensuing
Eligible Repurchase Month. The Purchase Price for any Mortgage Loan purchased
hereunder shall be deposited in the Certificate Account. Any purchase of a
Mortgage Loan pursuant to this Section 3.12(d) shall be accomplished by
remittance to the Master Servicer for deposit in the Certificate Account of
the Purchase Price. The Trustee, upon receipt of certification from the Master
Servicer of such deposit and a Request for File Release from the Master
Servicer, shall release or cause to be released to the purchaser of such
Mortgage Loan the related Mortgage File and shall execute and deliver such
instruments of transfer or assignment prepared by the purchaser of such
Mortgage Loan, in each case without recourse, as shall be necessary to vest in
the purchaser of such Mortgage Loan any Mortgage Loan released pursuant hereto
and the purchaser of such Mortgage Loan shall succeed to all the Trustee's
right, title and interest in and to such Mortgage Loan and all security and
documents related thereto. Such assignment shall be an assignment outright and
not for security. The purchaser of such Mortgage Loan shall thereupon own such
Mortgage Loan, and all security and documents, free of any further obligation
to the Trustee or the Certificateholders with respect thereto.
Section 3.13 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master Servicer will promptly notify
the Trustee by delivering a Request for File Release. Upon receipt of such
request, the Trustee shall promptly release the related Mortgage File to the
Master Servicer, and the Trustee shall at the Master Servicer's direction
execute and deliver to the Master Servicer the request for reconveyance, deed
of reconveyance or release or satisfaction of mortgage or such instrument
releasing the lien of the Mortgage in each case provided by the Master
Servicer, together with the Mortgage Note with written evidence of
cancellation thereon. The Master Servicer is authorized to cause the removal
from the registration on the MERS(R) System of such Mortgage and to execute
and deliver, on behalf of the Trust Fund and the Certificateholders or any of
them, any and all instruments of satisfaction or cancellation or of partial or
full release. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Certificate
Account, the Distribution Account, the Carryover Reserve Fund or the related
subservicing account. From time to time and as shall be appropriate for the
servicing or foreclosure of any Mortgage Loan,
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including for such purpose, collection under any policy of flood insurance any
fidelity bond or errors or omissions policy, or for the purposes of effecting
a partial release of any Mortgaged Property from the lien of the Mortgage or
the making of any corrections to the Mortgage Note or the Mortgage or any of
the other documents included in the Mortgage File, the Trustee shall, upon
delivery to the Trustee of a Request for Document Release or a Request for
File Release, as applicable, release the document specified in such request or
the Mortgage File, as the case may be, to the Master Servicer. Subject to the
further limitations set forth below, the Master Servicer shall cause the
Mortgage File or documents so released to be returned to the Trustee when the
need therefor by the Master Servicer no longer exists, unless the Mortgage
Loan is liquidated and the proceeds thereof are deposited in the Certificate
Account, in which case the Master Servicer shall deliver to the Trustee a
Request for File Release for any remaining documents in the Mortgage File not
in the possession of the Master Servicer.
If the Master Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property as authorized by this
Agreement, the Master Servicer shall deliver or cause to be delivered to the
Trustee, for signature, as appropriate, any court pleadings, requests for
trustee's sale or other documents necessary to effectuate such foreclosure or
any legal action brought to obtain judgment against the Mortgagor on the
Mortgage Note or the Mortgage or to obtain a deficiency judgment or to enforce
any other remedies or rights provided by the Mortgage Note or the Mortgage or
otherwise available at law or in equity. Notwithstanding the foregoing, the
Master Servicer shall cause possession of any Mortgage File or of the
documents therein that shall have been released by the Trustee to be returned
to the Trustee within 21 calendar days after possession thereof shall have
been released by the Trustee unless (i) the Mortgage Loan has been liquidated
and the Liquidation Proceeds relating to the Mortgage Loan have been deposited
in the Certificate Account, and the Master Servicer shall have delivered to
the Trustee a Request for File Release or (ii) the Mortgage File or document
shall have been delivered to an attorney or to a public trustee or other
public official as required by law for purposes of initiating or pursuing
legal action or other proceedings for the foreclosure of the Mortgaged
Property and the Master Servicer shall have delivered to the Trustee an
Officer's Certificate of a Servicing Officer certifying as to the name and
address of the Person to which the Mortgage File or the documents therein were
delivered and the purpose or purposes of such delivery.
Section 3.14 Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall transmit to the Trustee as required by this Agreement all
documents and instruments in respect of a Mortgage Loan coming into the
possession of the Master Servicer from time to time and shall account fully to
the Trustee for any funds received by the Master Servicer or that otherwise
are collected by the Master Servicer as Liquidation Proceeds, Insurance
Proceeds or Subsequent Recoveries in respect of any Mortgage Loan. All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds or Subsequent
Recoveries, including but not limited to, any funds on deposit in the
Certificate Account, shall be held by the Master Servicer for and on behalf of
the Trust Fund and shall be and remain the sole and exclusive property of the
Trust Fund, subject to the applicable
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provisions of this Agreement. The Master Servicer also agrees that it shall
not create, incur or subject any Mortgage File or any funds that are deposited
in the Certificate Account, Distribution Account, or Carryover Reserve Fund or
in any Escrow Account (as defined in Section 3.06), or any funds that
otherwise are or may become due or payable to the Trustee for the benefit of
the Certificateholders, to any claim, lien, security interest, judgment, levy,
writ of attachment or other encumbrance, or assert by legal action or
otherwise any claim or right of set off against any Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that
the Master Servicer shall be entitled to set off against and deduct from any
such funds any amounts that are properly due and payable to the Master
Servicer under this Agreement.
Section 3.15 Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer
shall be entitled to retain or withdraw from the Certificate Account out of
each payment of interest on a Mortgage Loan included in the Trust Fund an
amount equal to interest at the applicable Servicing Fee Rate on the Stated
Principal Balance of the related Mortgage Loan for the period covered by such
interest payment.
Additional servicing compensation in the form of any Excess
Proceeds, assumption fees, late payment charges, Prepayment Interest Excess,
and all income and gain net of any losses realized from Permitted Investments
shall be retained by the Master Servicer to the extent not required to be
deposited in the Certificate Account pursuant to Section 3.05 or 3.12(b)
hereof. The Master Servicer shall be required to pay all expenses incurred by
it in connection with its servicing activities hereunder (including payment of
any premiums for hazard insurance, as required by Section 3.10 hereof and
maintenance of the other forms of insurance coverage required by Section 3.10
hereof) and shall not be entitled to reimbursement therefor except as
specifically provided in Sections 3.08 and 3.12 hereof.
Section 3.16 Access to Certain Documentation.
The Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of the Certificates
and/or Certificate Owners and the examiners and supervisory agents of the OTS,
the FDIC and such other authorities, access to the documentation regarding the
Mortgage Loans required by applicable regulations of the OTS and the FDIC.
Such access shall be afforded without charge, but only upon reasonable and
prior written request and during normal business hours at the offices of the
Master Servicer designated by it. Nothing in this Section shall limit the
obligation of the Master Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors and the failure of the
Master Servicer to provide access as provided in this Section as a result of
such obligation shall not constitute a breach of this Section.
Section 3.17 Annual Statement as to Compliance.
The Master Servicer shall deliver to the Depositor and the Trustee
on or before the 80th day after the end of the Master Servicer's fiscal year,
commencing with its 2004 fiscal year, an Officer's Certificate stating, as to
the signer thereof, that (i) a review of the activities of
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the Master Servicer during the preceding calendar year and of the performance
of the Master Servicer under this Agreement has been made under such officer's
supervision and (ii) to the best of such officer's knowledge, based on such
review, the Master Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and (iii) to the best of such
officer's knowledge, each Subservicer has fulfilled all its obligations under
its Subservicing Agreement throughout such year, or, if there has been a
default in the fulfillment of any such obligation specifying each such default
known to such officer and the nature and status thereof. The Trustee shall
forward a copy of each such statement to each Rating Agency. Copies of such
statement shall be provided by the Trustee to any Certificateholder or
Certificate Owner upon request at the Master Servicer's expense, provided such
statement is delivered by the Master Servicer to the Trustee.
Section 3.18 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
On or before the later of (i) the 80th day after the end of the
Master Servicer's fiscal year, commencing with its 2004 fiscal year or (ii)
within 30 days of the issuance of the annual audited financial statements
beginning with the audit for the period ending in 2005, the Master Servicer at
its expense shall cause a nationally recognized firm of independent public
accountants (who may also render other services to the Master Servicer, the
Seller or any affiliate thereof) that is a member of the American Institute of
Certified Public Accountants to furnish a report to the Trustee, the Depositor
and the Seller in compliance with the Uniform Single Attestation Program for
Mortgage Bankers. Copies of such report shall be provided by the Trustee to
any Certificateholder or Certificate Owner upon request at the Master
Servicer's expense, provided such report is delivered by the Master Servicer
to the Trustee. Upon written request, the Master Servicer shall provide to the
Certificateholders or Certificate Owners its publicly available annual
financial statements (or the Master Servicer's parent company's publicly
available annual financial statements, as applicable), if any, promptly after
they become available.
Section 3.19 The Corridor Contract.
The Seller shall assign all of its right, title and interest in and
to the Corridor Contract evidenced by the Confirmation to, and shall cause all
of its obligations in respect of such transactions to be assumed by, the
Trustee on behalf of the Trust Fund, on the terms and conditions set forth in
the Corridor Contract Assignment Agreement. The Corridor Contract will be an
asset of the Trust Fund but will not be an asset of any REMIC. The Master
Servicer, on behalf of the Trustee, shall deposit any amounts received from
time to time with respect to the Corridor Contract into the Carryover Reserve
Fund.
The Master Servicer, on behalf of the Trustee, shall prepare and
deliver any notices required to be delivered under the Corridor Contract.
The Master Servicer, on behalf of the Trustee, shall act as
calculation agent and/or shall terminate the Corridor Contract, in each case
upon the occurrence of certain events of default or termination events to the
extent specified thereunder. Upon any such termination, the
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Corridor Contract Counterparty will be obligated to pay the Trustee or the
Master Servicer for the benefit of the Trust Fund an amount in respect of such
termination. Any amounts received by the Trustee or the Master Servicer for
the benefit of the Trust Fund, as the case may be, in respect of such
termination shall be deposited and held in the Carryover Reserve Fund to pay
Net Rate Carryover for the applicable Classes of Certificates as provided in
Section 4.04(e) on the Distribution Dates following such termination to and
including the Corridor Contract Termination Date, but shall not be available
for distribution to the Class A-IO Certificates pursuant to Section 4.09(c)
until the Corridor Contract Termination Date. On the Corridor Contract
Termination Date, after all other distributions on such date have been made
hereunder, if any amounts received by the Trustee for the benefit of the Trust
Fund in respect of early termination of the Corridor Contract remain in the
Carryover Reserve Fund, such amounts shall be distributed by the Trustee to
the Class A-IO Certificates.
Section 3.20 Prepayment Charges.
(a) Notwithstanding anything in this Agreement to the contrary, in
the event of a Principal Prepayment in full or in part of a Mortgage Loan, the
Master Servicer may not waive any Prepayment Charge or portion thereof
required by the terms of the related Mortgage Note unless (i) such Mortgage
Loan is in default or the Master Servicer believes that such a default is
imminent, and the Master Servicer determines that such waiver would maximize
recovery of Liquidation Proceeds for such Mortgage Loan, taking into account
the value of such Prepayment Charge, or (ii) (A) the enforceability thereof is
limited (1) by bankruptcy, insolvency, moratorium, receivership, or other
similar law relating to creditors' rights generally or (2) due to acceleration
in connection with a foreclosure or other involuntary payment, or (B) the
enforceability is otherwise limited or prohibited by applicable law. In the
event of a Principal Prepayment in full or in part with respect to any
Mortgage Loan, the Master Servicer shall deliver to the Trustee an Officer's
Certificate substantially in the form of Exhibit T no later than the third
Business Day following the immediately succeeding Determination Date with a
copy to the Class P Certificateholders. If the Master Servicer has waived or
does not collect all or a portion of a Prepayment Charge relating to a
Principal Prepayment in full or in part due to any action or omission of the
Master Servicer, other than as provided above, the Master Servicer shall
deliver to the Trustee, together with the Principal Prepayment in full or in
part, the amount of such Prepayment Charge (or such portion thereof as had
been waived) for deposit into the Certificate Account (not later than 1:00
p.m. Pacific time on the immediately succeeding Master Servicer Advance Date,
in the case of such Prepayment Charge) for distribution in accordance with the
terms of this Agreement.
(b) Upon discovery by the Master Servicer or a Responsible Officer
of the Trustee of a breach of Section 3.20(a), the party discovering the
breach shall give prompt written notice to the other parties.
(c) The Seller represents and warrants to the Depositor and the
Trustee that, as of the Closing Date, the information in the Prepayment Charge
Schedule (including the attached prepayment charge summary) is complete and
accurate in all material respects at the dates as of which the information is
furnished and each Prepayment Charge is permissible and enforceable in
accordance with its terms under applicable state law, except as the
enforceability
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thereof is limited due to acceleration in connection with a foreclosure or
other involuntary payment.
(d) Upon discovery by the Master Servicer or a Responsible Officer
of the Trustee of a breach of the foregoing clause (c) that materially and
adversely affects right of the Holders of the Class P Certificates to any
Prepayment Charge, the party discovering the breach shall give prompt written
notice to the other parties. Within 60 days of the earlier of discovery by the
Seller or receipt of notice by the Seller of breach, the Seller shall cure the
breach in all material respects or shall pay into the Certificate Account the
amount of the Prepayment Charge that would otherwise be due from the
Mortgagor, less any amount representing such Prepayment Charge previously
collected and paid by the Master Servicer into the Certificate Account.
ARTICLE IV.
DISTRIBUTIONS AND
ADVANCES BY THE MASTER SERVICER
Section 4.01 Advances.
(a) [Reserved.]
(b) Subject to the conditions of this Article IV, the Master
Servicer, as required below, shall make an Advance and deposit such Advance in
the Certificate Account. Each such Advance shall be remitted to the
Certificate Account no later than 1:00 p.m. Pacific time on the Master
Servicer Advance Date in immediately available funds. The Trustee shall
provide notice to the Master Servicer by facsimile by the close of business on
any Master Servicer Advance Date if the amount remitted by the Master Servicer
to the Trustee on the Distribution Account Deposit Date is less than the
Advances required to be made by the Master Servicer for such Distribution
Date. The Master Servicer shall be obligated to make any such Advance only to
the extent that such advance would not be a Nonrecoverable Advance. If the
Master Servicer shall have determined that it has made a Nonrecoverable
Advance or that a proposed Advance or a lesser portion of such Advance would
constitute a Nonrecoverable Advance, the Master Servicer shall deliver (i) to
the Trustee for the benefit of the Certificateholders funds constituting the
remaining portion of such Advance, if applicable, and (ii) to the Depositor,
each Rating Agency and the Trustee an Officer's Certificate setting forth the
basis for such determination.
(c) In lieu of making all or a portion of such Advance from its own
funds, the Master Servicer may (i) cause to be made an appropriate entry in
its records relating to the Certificate Account that any Amount Held for
Future Distributions has been used by the Master Servicer in discharge of its
obligation to make any such Advance and (ii) transfer such funds from the
Certificate Account to the Distribution Account. Any funds so applied and
transferred shall be replaced by the Master Servicer by deposit in the
Certificate Account no later than the close of business on the Business Day
immediately preceding the Distribution Date on which such funds are required
to be distributed pursuant to this Agreement. The Master Servicer shall
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be entitled to be reimbursed from the Certificate Account for all Advances of
its own funds made pursuant to this Section as provided in Section 3.08. The
obligation to make Advances with respect to any Mortgage Loan shall continue
until such Mortgage Loan is paid in full or the related Mortgaged Property or
related REO Property has been liquidated or until the purchase or repurchase
thereof (or substitution therefor) from the Trustee pursuant to any applicable
provision of this Agreement, except as otherwise provided in this Section
4.01.
(d) If the Master Servicer determines that it will be unable to
comply with its obligation to make the Advances as and when described in
paragraphs (b) and (c) immediately above, it shall use its best efforts to
give written notice thereof to the Trustee (each such notice a "Trustee
Advance Notice"; and such notice may be given by facsimile), not later than
3:00 P.M., New York time, on the Business Day immediately preceding the
related Master Servicer Advance Date, specifying the amount that it will be
unable to deposit (each such amount an "Advance Deficiency") and certifying
that such Advance Deficiency constitutes an Advance hereunder and is not a
Nonrecoverable Advance. If the Trustee receives a Trustee Advance Notice on or
before 3:30 P.M., New York time, on a Master Servicer Advance Date, the
Trustee shall, not later than 3:00 P.M., New York time, on the related
Distribution Date, deposit in the Distribution Account an amount equal to the
Advance Deficiency identified in such Trustee Advance Notice unless it is
prohibited from so doing by applicable law. Notwithstanding the foregoing, the
Trustee shall not be required to make such deposit if the Trustee shall have
received written notification from the Master Servicer that the Master
Servicer has deposited or caused to be deposited in the Certificate Account an
amount equal to such Advance Deficiency. All Advances made by the Trustee
pursuant to this Section 4.01(d) shall accrue interest on behalf of the
Trustee at the Trustee Advance Rate from and including the date such Advances
are made to but excluding the date of repayment, with such interest being an
obligation of the Master Servicer and not the Trust Fund. The Master Servicer
shall reimburse the Trustee for the amount of any Advance made by the Trustee
pursuant to this Section 4.01(d) together with accrued interest, not later
than 6:00 P.M., New York time, on the Business Day following the related
Distribution Date. In the event that the Master Servicer does not reimburse
the Trustee in accordance with the requirements of the preceding sentence, the
Trustee shall immediately (a) terminate all of the rights and obligations of
the Master Servicer under this Agreement in accordance with Section 7.01 and
(b) subject to the limitations set forth in Section 3.04, assume all of the
rights and obligations of the Master Servicer hereunder.
(e) The Master Servicer shall, not later than the close of business
on the second Business Day immediately preceding each Distribution Date,
deliver to the Trustee a report (in form and substance reasonably satisfactory
to the Trustee) that indicates (i) the Mortgage Loans with respect to which
the Master Servicer has determined that Scheduled Payments should be advanced
and (ii) the amount of such Scheduled Payments. The Master Servicer shall
deliver to the Trustee on the related Master Servicer Advance Date an
Officer's Certificate of a Servicing Officer indicating the amount of any
proposed Advance determined by the Master Servicer to be a Nonrecoverable
Advance.
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Section 4.02 Reduction of Servicing Compensation in Connection with
Prepayment Interest Shortfalls.
In the event that any Mortgage Loan is the subject of a Prepayment
Interest Shortfall, the Master Servicer shall remit the related Compensating
Interest, if any, as part of the Interest Remittance Amount, as provided in
this Agreement. The Master Servicer shall not be entitled to any recovery or
reimbursement for Compensating Interest from the Depositor, the Trustee, the
Seller, the Trust Fund or the Certificateholders.
Section 4.03 [Reserved]
Section 4.04 Distributions.
(a) On each Distribution Date, the Interest Funds for such
Distribution Date shall be allocated by the Trustee from the Distribution
Account in the following order of priority:
(i) concurrently, to the Class A-1, Class A-2, Class A-3 and
Class A-IO Certificates, the Current Interest and any Interest Carry
Forward Amount for each such Class; provided, however, that the Current
Interest and any Interest Carry Forward Amount payable to the Class A-IO
Certificates shall be deposited in the Carryover Reserve Fund as provided
in Section 4.09 in an amount equal to the sum of the Primary Carryover
Reserve Fund Deposit and the Secondary Carryover Reserve Fund Deposit,
and any remaining amount shall be distributed to the Class A-IO
Certificates; and provided, further, that if the Interest Funds are not
sufficient to make a full distribution of the aggregate Current Interest
and the aggregate Interest Carry Forward Amount for each such Class of
Certificates, such Interest Funds will be distributed pro rata among each
such Class, based on the ratio of (x) the portion of the Current Interest
and the portion of any Interest Carry Forward Amount attributable to such
Class to (y) the portion of Current Interest and the portion of any
Interest Carry Forward Amount attributable to all such Classes;
(ii) to the Class M-1 Certificates, the Current Interest and
any Interest Carry Forward Amount for such Class,
(iii) to the Class M-2 Certificates, the Current Interest and
any Interest Carry Forward Amount for such Class,
(iv) to the Class M-3 Certificates, the Current Interest and
any Interest Carry Forward Amount for such Class, and
(v) any remainder to the Class A-R Certificates.
(b) [Reserved]
(c) On each Distribution Date on or prior to the Corridor Contract
Termination Date, amounts received by the Trustee in respect of the Corridor
Contract for such Distribution Date shall be withdrawn from the Carryover
Reserve Fund and distributed in the following order of priority:
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(1) first, to the Class A-1 Certificates, to the extent needed to
pay any Class A-1 Interest Carryover Amount; and
(2) second, to the Class A-IO Certificates, any remaining amounts,
unless the Corridor Contract is subject to early termination, in which case
any early termination payments received on the Corridor Contract shall be
deposited by the Trustee in the Carryover Reserve Fund to cover any Class A-1
Interest Carryover Amount on future Distribution Dates until the Corridor
Contract Termination Date.
On each Distribution Date, after the deposit in the Carryover
Reserve Fund of the Primary Carryover Reserve Fund Deposit as provided in
Section 4.04(a)(i) above, but prior to the deposit in the Carryover Reserve
Fund of the Secondary Carryover Reserve Fund Deposit as provided in Section
4.04(a)(i) above, and after giving effect to the distribution of Corridor
Contract proceeds to the Class A-1 Certificates, amounts on deposit in the
Carryover Reserve Fund shall be allocated by the Trustee to each Class of
Certificates (other than the Class A-IO Certificates) to the extent of any
remaining Net Rate Carryover for such Class of Certificates for such
Distribution Date on a pro rata basis among all such Classes (on the basis of
the Net Rate Carryover for each such Class).
(d) On each Distribution Date, the Principal Distribution Amount for
such Distribution Date shall be allocated by the Trustee from the Distribution
Account in the following order of priority:
(i) with respect to any Distribution Date prior to the Stepdown
Date or on which a Trigger Event is in effect:
(A) to the Class A-R Certificates, until the Certificate
Principal Balance thereof is reduced to zero;
(B) to the Class A Certificates in the order and the priorities
set forth in Section 4.04(e) below;
(C) to the Class M-1 Certificates, until the Certificate
Principal Balance thereof is reduced to zero;
(D) to the Class M-2 Certificates, until the Certificate
Principal Balance thereof is reduced to zero;
(E) to the Class M-3 Certificates, until the Certificate
Principal Balance thereof is reduced to zero; and
(F) any remainder to the Class A-R Certificates; and
(ii) with respect to each Distribution Date on and after the
Stepdown Date and on which a Trigger Event is not in effect:
(A) to the Class A Certificates, the Class A Principal
Distribution Amount, in the order and the priorities set forth in
Section 4.04(e) below;
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(B) to the Class M-1 Certificates, the Class M-1 Principal
Distribution Amount, until the Certificate Principal Balance thereof
is reduced to zero;
(C) to the Class M-2 Certificates, the Class M-2 Principal
Distribution Amount, until the Certificate Principal Balance thereof
is reduced to zero;
(D) to the Class M-3 Certificates, the Class M-3 Principal
Distribution Amount, until the Certificate Principal Balance thereof
is reduced to zero; and
(E) any remainder to the Class A-R Certificates.
(e) On each Distribution Date, the Principal Distribution Amount or
the Class A Principal Distribution Amount, as applicable, allocated under
Section 4.04(d) to the Class A Certificates is required to be further
allocated by the Trustee to the Class A Certificates in the following order
and priority:
(i) to the Class A-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
(ii) to the Class A-2 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; and
(iii) to the Class A-3 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero;
provided that, on any Distribution Date on which the Aggregate Class A
Certificate Principal Balance (calculated for this purpose after taking into
account all distributions of principal on such Distribution Date) is greater
than the sum of the Stated Principal Balances of the Mortgage Loans as of such
Distribution Date, the Principal Distribution Amount or the Class A Principal
Distribution Amount, as applicable, shall be distributed pro rata among each
Class of Class A Certificates (in accordance with the respective Certificate
Principal Balances thereof) and not sequentially.
(f) For applicable tax purposes, to the extent that a Class of
Certificates (other than the Class A-IO Certificates) receives interest in
excess of the Net Rate Cap the excess shall be treated as having been
distributed to the Class A-IO Certificateholders, then paid to the Carryover
Reserve Fund and then paid to such receiving Certificateholders.
(g) On each Distribution Date, all Prepayment Charges (including
amounts deposited in connection with the full or partial waiver of such
Prepayment Charges pursuant to Section 3.20) shall be allocated and paid to
the Class P Certificates. On the Class P Principal Distribution Date, the
Trustee shall make the $100.00 distribution to the Class P Certificates as
specified in Section 3.08.
(h) On each Distribution Date, the Trustee shall allocate the
Applied Realized Loss Amount to reduce the Certificate Principal Balances of
the Subordinate Certificates in the following order of priority:
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(i) to the Class M-3 Certificates until the Class M-3
Certificate Principal Balance is reduced to zero;
(ii) to the Class M-2 Certificates until the Class M-2
Certificate Principal Balance is reduced to zero; and
(iii) to the Class M-1 Certificates until the Class M-1
Certificate Principal Balance is reduced to zero.
(i) On each Distribution Date, the Trustee shall allocate the amount
of the Subsequent Recoveries for the Mortgage Loans as, if any, to increase the
Certificate Principal Balances of the Subordinate Certificates to which
Applied Realized Loss Amounts have been previously allocated in the following
order of priority:
(i) to the Class M-1 Certificates, but not by more than the
amount of the Unpaid Realized Loss Amount of the Class M-1 Certificates;
(ii) to the Class M-2 Certificates, but not by more than the
amount of the Unpaid Realized Loss Amount of the Class M-2 Certificates;
and
(iii) to the Class M-3 Certificates, but not by more than the
amount of the Unpaid Realized Loss Amount of the Class M-3 Certificates.
Subject to Section 9.02 hereof respecting the final distribution, on
each Distribution Date the Trustee shall make distributions to each
Certificateholder of record on the preceding Record Date either by wire
transfer in immediately available funds to the account of such holder at a
bank or other entity having appropriate facilities therefor, if (i) such
Holder has so notified the Trustee at least 5 Business Days prior to the
related Record Date and (ii) such Holder shall hold Regular Certificates with
aggregate principal denominations of not less than $1,000,000 or evidencing a
Percentage Interest aggregating 10% or more with respect to such Class or, if
not, by check mailed by first class mail to such Certificateholder at the
address of such holder appearing in the Certificate Register. Notwithstanding
the foregoing, but subject to Section 9.02 hereof respecting the final
distribution, distributions with respect to Certificates registered in the
name of a Depository shall be made to such Depository in immediately available
funds.
On or before 5:00 p.m. Pacific time on the fifth Business Day
following each Determination Date (but in no event later than 5:00 p.m.
Pacific time on the third Business Day before the related Distribution Date),
the Master Servicer shall deliver a report to the Trustee in the form of a
computer readable magnetic tape (or by such other means as the Master Servicer
and the Trustee may agree from time to time) containing such data and
information as agreed to by the Master Servicer and the Trustee such as to
permit the Trustee to prepare the Monthly Statement to Certificateholders and
make the required distributions for the related Distribution Date (the
"Remittance Report"). The Trustee shall, not later than 9:00 a.m. Pacific time
on the Master Servicer Advance Date, other than any Master Servicer Advance
Date relating to any Distribution Date on which the proceeds of any Optional
Termination are being distributed, (i) furnish by telecopy a statement to the
Master Servicer (the information in such statement to be made available to
Certificateholders by the Trustee on request) setting forth the Interest Funds
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and Principal Funds for such Distribution Date and the amount to be withdrawn
from the Certificate Account and (ii) determine (and notify the Master
Servicer by telecopy of the results of such determination) the amount of
Advances to be made by the Master Servicer in respect of the related
Distribution Date; provided that no Advance shall be made if it would be a
Nonrecoverable Advance; provided further that any failure by the Trustee to
notify the Master Servicer shall not relieve the Master Servicer from any
obligation to make any such Advances. The Trustee shall not be responsible to
recompute, recalculate or verify information provided to it by the Master
Servicer and shall be permitted to conclusively rely on any information
provided to it by the Master Servicer.
Section 4.05 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare
and cause to be forwarded by first class mail to each Holder of a Class of
Certificates of the Trust Fund, the Master Servicer, the Seller and the
Depositor a statement setting forth for the Certificates:
(i) the amount of the related distribution to Holders of each
Class allocable to principal, separately identifying (A) the aggregate
amount of any Principal Prepayments included therein and (B) the
aggregate of all scheduled payments of principal included therein;
(ii) the amount of such distribution to Holders of each Class
allocable to interest;
(iii) any Interest Carry Forward Amount for each Class;
(iv) the Certificate Principal Balance of each Class after
giving effect to (i) all distributions allocable to principal on such
Distribution Date, (ii) the allocation of any Applied Realized Loss
Amounts for such Distribution Date and (iii) the allocation of any
Subsequent Recoveries for such Distribution Date;
(v) the aggregate of the Stated Principal Balance of the
Mortgage Loans for the Mortgage Pool;
(vi) the related amount of the Servicing Fees paid to or
retained by the Master Servicer for the related Due Period; (vii) the
Pass-Through Rate for each Class of Certificates with respect to the
current Accrual Period;
(viii) with respect to the January 2005 Distribution Date, the
Seller Shortfall Interest Requirement (if any) for the related Master
Servicer Advance Date;
(ix) the amount of Advances included in the distribution on
such Distribution Date;
(x) the cumulative amount of Applied Realized Loss Amounts to
date;
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(xi) the number and aggregate principal amounts of Mortgage
Loans: (A) Delinquent (exclusive of Mortgage Loans in foreclosure) (1) 30
to 59 days, (2) 60 to 89 days and (3) 90 or more days, and (B) in
foreclosure and Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3)
90 or more days, in each case as of the close of business on the last day
of the calendar month preceding such Distribution Date;
(xii) with respect to any Mortgage Loan that became an REO
Property during the preceding calendar month, the loan number and Stated
Principal Balance of such Mortgage Loan;
(xiii) and the aggregate Stated Principal Balances of any
Mortgage Loans converted to REO Properties as of the close of business on
the Determination Date preceding such Distribution Date;
(xiv) the total number and Stated Principal Balances of all
Liquidated Mortgage Loans;
(xv) with respect to any Liquidated Mortgage Loan, the loan
number and Stated Principal Balance relating thereto;
(xvi) whether a Trigger Event is in effect;
(xvii) the amount of the distribution made to the Holders of
the Class P Certificates;
(xviii) the amount, if any, of Realized Losses and Subsequent
Recoveries allocated to the Subordinate Certificates for such
Distribution Date;
(xix) all payments made by the Master Servicer in respect of
Compensating Interest for such Distribution Date; and
(xx) any Net Rate Carryover paid on each Class of Certificates
and any remaining Net Rate Carryover remaining on each Class of
Certificates on such Distribution Date;
(xxi) the amount, if any, due from the Corridor Contract
Counterparty, and the amounts received under the Corridor Contract, for
such Distribution Date;
(xxii) the amount of any Enhancement Payments made with respect
to such Distribution Date and the amount remaining under the Seller Loss
Coverage Obligation; and
(xxiii) to the extent that the Trustee receives such
information from the Co-Trustee, the amount of proceeds received under
the Loan Insurance Policy included in such distribution and, to the
extent that the Trustee receives such information from the Master
Servicer, the remaining amount available under the Loan Insurance Policy.
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(b) The Trustee's responsibility for disbursing the above
information to the Certificateholders is limited to the availability,
timeliness and accuracy of the information derived from the Master Servicer.
The Trustee shall send a copy of each statement provided pursuant to this
Section 4.05 to each Rating Agency. The Trustee may make the above information
available to Certificateholders via the Trustee's website at
xxxx://xxx.xxxxxxxxxxxxxxxxxxxx.xxx.
(c) Within a reasonable period of time after the end of each
calendar year, the Trustee shall cause to be furnished to each Person who at
any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i), (a)(ii) and (a)(vi) of
this Section 4.05 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of
the Trustee shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Trustee pursuant
to any requirements of the Code as from time to time in effect.
(d) Upon filing with the Internal Revenue Service, the Trustee shall
furnish to the Holders of the Class A-R Certificates the Form 1066 and each
Form 1066Q and shall respond promptly to written requests made not more
frequently than quarterly by any Holder of Class A-R Certificates with respect
to the following matters:
(i) The original projected principal and interest cash flows on
the Closing Date on each related Class of regular and residual interests
created hereunder and on the Mortgage Loans, based on the Prepayment
Assumption;
(ii) The projected remaining principal and interest cash flows
as of the end of any calendar quarter with respect to each related Class
of regular and residual interests created hereunder and the Mortgage
Loans, based on the Prepayment Assumption;
(iii) The applicable Prepayment Assumption and any interest
rate assumptions used in determining the projected principal and interest
cash flows described above;
(iv) The original issue discount (or, in the case of the
Mortgage Loans, market discount) or premium accrued or amortized through
the end of such calendar quarter with respect to each related Class of
regular or residual interests created hereunder and to the Mortgage
Loans, together with each constant yield to maturity used in computing
the same;
(v) The treatment of losses realized with respect to the
Mortgage Loans or the regular interests created hereunder, including the
timing and amount of any cancellation of indebtedness income of the
related REMIC with respect to such regular interests or bad debt
deductions claimed with respect to the Mortgage Loans;
(vi) The amount and timing of any non-interest expenses of the
related REMIC; and
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(vii) Any taxes (including penalties and interest) imposed on
the related REMIC, including, without limitation, taxes on "prohibited
transactions," "contributions" or "net income from foreclosure property"
or state or local income or franchise taxes.
The information pursuant to clauses (i), (ii), (iii) and (iv) above
shall be provided by the Depositor pursuant to Section 8.11(b).
Section 4.06 [Reserved]
Section 4.07 [Reserved]
Section 4.08 [Reserved]
Section 4.09 Carryover Reserve Fund.
(a) On the Closing Date, the Trustee shall establish and maintain in
its name, in trust for the benefit of the Holders of the Certificates, the
Carryover Reserve Fund. The Carryover 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 held by the Trustee pursuant to this Agreement. On
the Closing Date, the Seller shall remit $10,000 to the Trustee, which shall
deposit such funds in the Carryover Reserve Fund.
(b) On each Distribution Date, the Trustee shall deposit all amounts
received pursuant to the Corridor Contract in the Carryover Reserve Fund. The
Trustee shall make withdrawals from the Carryover Reserve Fund to make
distributions pursuant to Section 4.04(c) hereof.
(c) Any amounts received on the Corridor Contract with respect to a
Distribution Date and remaining after the distributions required pursuant to
Section 4.04(c) shall be distributed to the Class A-IO Certificates; provided,
however, that if the Corridor Contract is subject to early termination, early
termination payments received on the Corridor Contract shall be deposited by
the Trustee in the Carryover Reserve Fund and withdrawn from the Carryover
Reserve Fund to pay any Net Rate Carryover on the related Classes of
Certificates as provided in Section 4.04(c) on the Distribution Dates
following such termination to and including the Corridor Contract Termination
Date, but such early termination payments shall not be available for
distribution to the Class A-IO Certificates on future Distribution Dates until
the Corridor Contract Termination Date.
(d) Funds in the Carryover Reserve Fund may be invested in Permitted
Investments. Any earnings on such amounts shall be payable to the Class A-IO
Certificates. The Class A-IO Certificates shall evidence ownership of the
Carryover Reserve Fund for federal tax purposes and the Holders thereof
evidencing not less than 50% of the Voting Rights of such Class shall direct
the Trustee in writing as to the investment of amounts therein. In the absence
of such written direction, all funds in the Carryover Reserve Fund shall be
invested by the Trustee in The Bank of New York cash reserves.
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(e) Upon termination of the Trust Fund, any amounts remaining in the
Carryover Reserve Fund shall be distributed to the Holders of the Class A-IO
Certificates in the same manner as if distributed pursuant to Section 4.04(c)
hereof.
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ARTICLE V.
THE CERTIFICATES
Section 5.01 The Certificates.
The Certificates shall be substantially in the forms attached hereto
as Exhibits A-1 through A-7, B, C, D and E. The Certificates shall be issuable
in registered form, in the minimum dollar denominations, integral dollar
multiples in excess thereof and aggregate dollar denominations as set forth in
the following table:
Integral Multiples in Original Certificate
Class Minimum Denomination Excess of Minimum Principal Balance
----- -------------------- ----------------- -----------------
A-1 $20,000 $1,000 $203,183,000
A-2 $20,000 $1,000 $96,843,000
A-3 $20,000 $1,000 $73,474,000
A-IO $20,000(1) $1,000(1) (1)
A-R $100(2) N/A $100
M-1 $20,000 $1,000 $23,863,000
M-2 $20,000 $1,000 $13,488,000
M-3 $20,000 $1,000 $4,149,000
R N/A N/A 100%
P $100 N/A $100
------------------
(1) Notional Amount.
(2) The Tax Matters Person Certificate may be issued in a denomination of
$0.50.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall
bind the Trustee, notwithstanding that such individuals or any of them have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such authentication
and delivery. 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 set
forth as attached hereto executed by the Trustee by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication. On the Closing Date, the Trustee shall
authenticate the Certificates to be issued at the written direction of the
Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee
on a continuous basis, an adequate inventory of certificates to facilitate
transfers.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates.
(a) The Trustee shall maintain a Certificate Register for the Trust
Fund in which, subject to the provisions of subsections (b) and (c) below and
to such reasonable
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regulations as it may prescribe, the Trustee shall provide for the
registration of Certificates and of Transfers and exchanges of Certificates as
herein provided. Upon surrender for registration of Transfer of any
Certificate, the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and of like aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates that the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of Transfer or exchange shall be accompanied by a
written instrument of Transfer in form satisfactory to the Trustee duly
executed by the holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of Transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any Transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of Transfer or
exchange shall be canceled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(b) No Transfer of a Private Certificate shall be made unless such
Transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. If a transfer is to be made in reliance upon an exemption from the
Securities Act and such state securities laws, in order to assure compliance
with the Securities Act and such state securities laws, the Certificateholder
desiring to effect such Transfer and such Certificateholder's prospective
transferee shall each certify to the Trustee in writing the facts surrounding
the Transfer in substantially the forms set forth in Exhibit J (the
"Transferor Certificate") and (i) deliver a letter in substantially the form
of either Exhibit K (the "Investment Letter") or Exhibit L (the "Rule 144A
Letter") or (ii) there shall be delivered to the Trustee at the expense of the
Certificateholder desiring to effect such transfer an Opinion of Counsel that
such Transfer may be made pursuant to an exemption from the Securities Act.
The Depositor shall provide to any Holder of a Private Certificate and any
prospective transferee designated by any such Holder, information regarding
the related Certificates and the Mortgage Loans and such other information as
shall be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by
Rule 144A. The Trustee and the Master Servicer shall cooperate with the
Depositor in providing the Rule 144A information referenced in the preceding
sentence, including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund as
the Depositor shall reasonably request to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect
such Transfer shall, and does hereby agree to, indemnify the Trustee, the
Co-Trustee, the Depositor, the Trust Fund, each Seller and the Master Servicer
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against any liability that may result if the Transfer is not so exempt or is
not made in accordance with such federal and state laws.
No Transfer of an ERISA-Restricted Certificate shall be made unless
the Trustee shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trustee (in the event such Certificate is a Private
Certificate, such requirement is satisfied only by the Trustee's receipt of a
representation letter from the transferee substantially in the form of Exhibit
K or Exhibit L or, if such Certificate is a Residual Certificate, such
requirement is satisfied only by the Trustee's receipt of a representation
letter from the transferee substantially in the form of Exhibit I), to the
effect that (x) such transferee is not an employee benefit plan or arrangement
subject to Section 406 of ERISA or a plan or arrangement subject to Section
4975 of the Code, or a Person acting on behalf of any such plan or arrangement
or using the assets of any such plan or arrangement, or (ii) in the case of an
ERISA-Restricted Certificate that has been the subject of an ERISA-Qualifying
Underwriting, a representation that the transferee is an insurance company
which is purchasing such Certificate with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificate satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60 or (iii) in the case
of any ERISA-Restricted Certificate presented for registration in the name of
an employee benefit plan or arrangement subject to ERISA, or a plan or
arrangement subject to Section 4975 of the Code (or comparable provisions of
any subsequent enactments), or a trustee of any such plan or arrangement or
any other person acting on behalf of any such plan or arrangement, an Opinion
of Counsel satisfactory to the Trustee and addressed to the Trustee and the
Master Servicer to the effect that the purchase and holding of such
ERISA-Restricted Certificate will not result in a non-exempt prohibited
transaction under ERISA or the Code and will not subject the Trustee or the
Master Servicer to any obligation in addition to those expressly undertaken in
this Agreement, which Opinion of Counsel shall not be an expense of the
Trustee or the Master Servicer. For purposes of the preceding sentence, one of
such representations, as appropriate, shall be deemed to have been made to the
Trustee by the transferee's acceptance of an ERISA-Restricted Certificate (or
the acceptance by a Certificate Owner of the beneficial interest in any such
Class of ERISA-Restricted Certificates) unless the Trustee shall have received
from the transferee an Opinion of Counsel as described in clause (ii) or a
representation acceptable in form and substance to the Trustee.
Notwithstanding anything else to the contrary herein, any purported transfer
of an ERISA-Restricted Certificate to or on behalf of an employee benefit plan
subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code
without the delivery to the Trustee and the Master Servicer of an Opinion of
Counsel satisfactory to the Trustee and the Master Servicer as described above
and meeting the requirements of clause (i) of the first sentence of this
paragraph as described above shall be void and of no effect. The Trustee shall
be under no liability to any Person for any registration of transfer of any
ERISA-Restricted Certificate that is in fact not permitted by this Section
5.02(b) or for making any payments due on such Certificate to the Holder
thereof or taking any other action with respect to such Holder under the
provisions of this Agreement so long as the Trustee, with respect to the
transfer of such Classes of Certificates, required delivery of such
certificates and other documentation or evidence as are expressly required by
the terms of this Agreement and examined such certificates and other
documentation or evidence to determine compliance as to form with the express
requirements hereof. The Trustee shall be entitled, but not obligated, to
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recover from any Holder of any ERISA-Restricted Certificate that was in fact
an employee benefit plan or arrangement subject to Section 406 of ERISA or a
plan or arrangement subject to Section 4975 of the Code or a Person acting on
behalf of any such plan or arrangement at the time it became a Holder or, at
such subsequent time as it became such a plan or arrangement or Person acting
on behalf of such a plan or arrangement, all payments made on such
ERISA-Restricted Certificate at and after either such time. Any such payments
so recovered by the Trustee shall be paid and delivered by the Trustee to the
last preceding Holder of such Certificate that is not such a plan or
arrangement or Person acting on behalf of a plan or arrangement.
(c) Each Person who has or who acquires any Ownership Interest in a
Class A-R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Class A-R
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a Class A-R Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in a Class A-R Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Class A-R Certificate unless, the
Trustee shall have been furnished with an affidavit (a "Transfer
Affidavit") of the initial owner or the proposed transferee in the form
attached hereto as Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest
in a Class A-R Certificate shall agree (A) to obtain a Transfer Affidavit
from any other Person to whom such Person attempts to Transfer its
Ownership Interest in a Class A-R Certificate, (B) to obtain a Transfer
Affidavit from any Person for whom such Person is acting as nominee,
trustee or agent in connection with any Transfer of a Class A-R
Certificate and (C) not to Transfer its Ownership Interest in a Class A-R
Certificate, or to cause the Transfer of an Ownership Interest in a Class
A-R Certificate to any other Person, if it has actual knowledge that such
Person is not a Permitted Transferee or that such Transfer Affidavit is
false.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Class A-R Certificate in violation of the provisions of
this Section 5.02(c) shall be absolutely null and void and shall vest no
rights in the purported Transferee. If any purported transferee shall
become a Holder of a Class A-R Certificate in violation of the provisions
of this Section 5.02(c), then the last preceding Permitted Transferee
shall be restored to all rights as Holder thereof retroactive to the date
of registration of Transfer of such Class A-R Certificate. The Trustee
shall be under no liability to any Person for any registration of
Transfer of a Class A-R Certificate that is in fact not permitted by
Section 5.02(b) and this Section 5.02(c) or for making any payments due
on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as
the Transfer was registered after receipt of the related Transfer
Affidavit and Transferor Certificate. The Trustee shall be entitled but
not obligated to recover from any Holder of a Class A-R Certificate that
was in fact not a
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Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all
payments made on such Class A-R Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of
such Certificate.
(v) The Master Servicer shall use its best efforts to make
available, upon receipt of written request from the Trustee, all
information necessary to compute any tax imposed under section 860E(e) of
the Code as a result of a Transfer of an Ownership Interest in a Class
A-R Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Class A-R Certificate set forth
in this Section 5.02(c) shall cease to apply (and the applicable portions of
the legend on a Class A-R Certificate may be deleted) with respect to
Transfers occurring after delivery to the Trustee of an Opinion of Counsel,
which Opinion of Counsel shall not be an expense of the Trustee, the Seller or
the Master Servicer to the effect that the elimination of such restrictions
will not cause any REMIC formed hereunder to fail to qualify as a REMIC at any
time that the Certificates are outstanding or result in the imposition of any
tax on the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any Ownership Interest in a Class A-R Certificate, by
acceptance of its Ownership Interest, shall be deemed to consent to any
amendment of this Agreement that, based on an Opinion of Counsel furnished to
the Trustee, is reasonably necessary (a) to ensure that the record ownership
of, or any beneficial interest in, a Class A-R Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee and (b)
to provide for a means to compel the Transfer of a Class A-R Certificate that
is held by a Person that is not a Permitted Transferee to a Holder that is a
Permitted Transferee.
The preparation and delivery of all affidavits, certifications and
opinions referred to above in this Section 5.02 shall not be an expense of the
Trust Fund, the Trustee, the Depositor, the Seller or the Master Servicer.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and of the ownership thereof and (b) there is
delivered to the Master Servicer and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Trustee that such Certificate has been acquired by a bona fide
purchaser, the Trustee shall execute, authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
new Certificate of like Class, tenor and Percentage Interest. In connection
with the issuance of any new Certificate under this Section 5.03, the Trustee
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) connected therewith.
Any replacement Certificate issued pursuant to this Section 5.03 shall
constitute complete and indefeasible evidence of ownership in the Trust Fund,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time. All Certificates surrendered to the
Trustee under the terms of this Section 5.03 shall be
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canceled and destroyed by the Trustee in accordance with its standard
procedures without liability on its part.
Section 5.04 Persons Deemed Owners.
The Master Servicer, the Trustee and any agent of the Master
Servicer or the Trustee may treat the person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions as provided in this Agreement and for all other purposes
whatsoever, and neither the Master Servicer, the Trustee nor any agent of the
Master Servicer or the Trustee shall be affected by any notice to the
contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses.
If three or more Certificateholders and/or Certificate Owners (a)
request such information in writing from the Trustee, (b) state that such
Certificateholders and/or Certificate Owners desire to communicate with other
Certificateholders and/or Certificate Owners with respect to their rights
under this Agreement or under the Certificates, and (c) provide a copy of the
communication that such Certificateholders and/or Certificate Owners propose
to transmit or if the Depositor or Master Servicer shall request such
information in writing from the Trustee, then the Trustee shall, within ten
Business Days after the receipt of such request, provide the Depositor, the
Master Servicer or such Certificateholders and/or Certificate Owners at such
recipients' expense the most recent list of the Certificateholders and/or
Certificate Owners of the Trust Fund held by the Trustee, if any. The
Depositor and every Certificateholder and/or Certificate Owner , by receiving
and holding a Certificate, agree that the Trustee shall not be held
accountable by reason of the disclosure of any such information as to the list
of the Certificateholders and/or Certificate Owners hereunder, regardless of
the source from which such information was derived.
Section 5.06 Book-Entry Certificates.
The Book-Entry Certificates, upon original issuance, shall be issued
in the form of one or more typewritten Certificates for each Class of such
Certificates, to be delivered to the Depository by or on behalf of the
Depositor. Such Certificates shall initially be registered on the Certificate
Register in the name of the Depository or its nominee, and no Certificate
Owner of such Certificates will receive a definitive certificate representing
such Certificate Owner's interest in such Certificates, except as provided in
Section 5.08. Unless and until definitive, fully registered Certificates
("Definitive Certificates") have been issued to the Certificate Owners of such
Certificates pursuant to Section 5.08:
(a) the provisions of this Section shall be in full force and
effect;
(b) the Depositor, the Seller, the Master Servicer and the Trustee
may deal with the Depository and the Depository Participants for all purposes
(including the making of distributions) as the authorized representative of
the respective Certificate Owners of such Certificates;
(c) registration of the Book-Entry Certificates may not be
transferred by the Trustee except to another Depository;
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(d) the rights of the respective Certificate Owners of such
Certificates shall be exercised only through the Depository and the Depository
Participants and shall be limited to those established by law and agreements
between the Owners of such Certificates and the Depository and/or the
Depository Participants. Pursuant to the Depository Agreement, unless and
until Definitive Certificates are issued pursuant to Section 5.08, the
Depository will make book-entry transfers among the Depository Participants
and receive and transmit distributions of principal and interest on the
related Certificates to such Depository Participants;
(e) the Depository may collect its usual and customary fees, charges
and expenses from its Depository Participants;
(f) the Trustee may rely and shall be fully protected in relying
upon information furnished by the Depository with respect to its Depository
Participants; and
(g) to the extent that the provisions of this Section conflict with
any other provisions of this Agreement, the provisions of this Section shall
control.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of,
Certificateholders evidencing a specified percentage of the aggregate unpaid
principal amount of any Class of Certificates, such direction or consent may
be given by Certificate Owners (acting through the Depository and the
Depository Participants) owning Book-Entry Certificates evidencing the
requisite percentage of principal amount of such Class of Certificates.
Section 5.07 Notices to Depository.
Whenever any notice or other communication is required to be given
to Certificateholders of the Class with respect to which Book-Entry
Certificates have been issued, unless and until Definitive Certificates shall
have been issued to the related Certificate Owners, the Trustee shall give all
such notices and communications to the Depository.
Section 5.08 Definitive Certificates.
If, after Book-Entry Certificates have been issued with respect to
any Certificates, (a) the Depositor advises the Trustee that the Depository is
no longer willing or able to discharge properly its responsibilities under the
Depository Agreement with respect to such Certificates and the Trustee or the
Depositor is unable to locate a qualified successor, or (b) after the
occurrence and continuation of an Event of Default, Certificate Owners of such
Book-Entry Certificates having not less than 51% of the Voting Rights
evidenced by any Class of Book-Entry Certificates advise the Trustee and the
Depository in writing through the Depository Participants that the
continuation of a book-entry system with respect to Certificates of such Class
through the Depository (or its successor) is no longer in the best interests
of the Certificate Owners of such Class, then the Trustee shall notify all
Certificate Owners of such Certificates, through the Depository, of the
occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners of such Class requesting the same. The
Depositor shall provide the Trustee with an adequate inventory of certificates
to facilitate the issuance and transfer of Definitive Certificates. Upon
surrender to the Trustee of any such Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the
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Trustee shall authenticate and deliver such Definitive Certificates. Neither
the Depositor nor the Trustee shall be liable for any delay in delivery of
such instructions and each may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of such Definitive
Certificates, all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed
by the Trustee, to the extent applicable with respect to such Definitive
Certificates and the Trustee shall recognize the Holders of such Definitive
Certificates as Certificateholders hereunder.
Section 5.09 Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its expense
an office or offices or agency or agencies in New York City where Certificates
may be surrendered for registration of transfer or exchange. The Trustee
initially designates its offices at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust MBS Administration, as offices for such
purposes. The Trustee will give prompt written notice to the
Certificateholders of any change in such location of any such office or
agency.
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ARTICLE VI.
THE DEPOSITOR, THE MASTER SERVICER AND THE SELLER
Section 6.01 Respective Liabilities of the Depositor, the Master
Servicer and the Seller.
The Depositor, the Master Servicer and the Seller shall each be
liable in accordance herewith only to the extent of the obligations
specifically and respectively imposed upon and undertaken by them herein.
Section 6.02 Merger or Consolidation of the Depositor, the Master
Servicer or the Seller.
The Depositor will keep in full effect its existence, rights and
franchises as a corporation under the laws of the United States or under the
laws of one of the states thereof and will each obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement. The Master Servicer will keep in effect its
existence, rights and franchises as a limited partnership under the laws of
the United States or under the laws of one of the states thereof and will
obtain and preserve its qualification or registration to do business as a
foreign partnership in each jurisdiction in which such qualification or
registration is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any Person into which the Depositor, the Master Servicer or the
Seller may be merged or consolidated, or any Person resulting from any merger
or consolidation to which the Depositor, the Master Servicer or the Seller
shall be a party, or any person succeeding to the business of the Depositor,
the Master Servicer or the Seller, shall be the successor of the Depositor,
the Master Servicer or the Seller, as the case may be, hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided that
the successor or surviving Person to the Master Servicer shall be qualified to
service mortgage loans on behalf of, Xxxxxx Mae or Xxxxxxx Mac.
Section 6.03 Limitation on Liability of the Depositor, the Seller,
the Master Servicer and Others.
None of the Depositor, the Seller, the Master Servicer or any of the
directors, officers, employees or agents of the Depositor, the Seller or the
Master Servicer shall be under any liability to the Trustee (except as
provided in Section 8.05), the Trust Fund or the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided that this
provision shall not protect the Depositor, the Seller, the Master Servicer or
any such Person against any breach of representations or warranties made by it
herein or protect the Depositor, the Seller, the Master Servicer or any such
Person from any liability that would otherwise be imposed by reasons of
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willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
The Depositor, the Seller, the Master Servicer and any director, officer,
employee or agent of the Depositor, the Seller or 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
Depositor, the Seller, the Master Servicer and any director, officer, employee
or agent of the Depositor, the Seller or the Master Servicer shall be
indemnified by the Trust Fund and held harmless against any loss, liability or
expense incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense related to any specific Mortgage Loan or Mortgage Loans (except as
any such loss, liability or expense shall be otherwise reimbursable pursuant
to this Agreement) and any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or gross negligence in the performance of
duties hereunder or by reason of reckless disregard of obligations and duties
hereunder. None of the Depositor, the Seller or the Master Servicer shall be
under any obligation to appear in, prosecute or defend any legal action that
is not incidental to its respective duties hereunder and that in its opinion
may involve it in any expense or liability; provided that any of the
Depositor, the Seller or the Master Servicer may, in its discretion undertake
any such action that it may deem necessary or desirable in respect of this
Agreement and the rights and duties of the parties hereto and interests of the
Trustee and the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall
be, expenses, costs and liabilities of the Trust Fund, and the Depositor, the
Seller and the Master Servicer shall be entitled to be reimbursed therefor out
of the Certificate Account as provided by Section 3.08 hereof.
Section 6.04 Limitation on Resignation of Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except (i) upon determination that its duties hereunder
are no longer permissible under applicable law or (ii) upon appointment of a
successor servicer that is reasonably acceptable to the Trustee and the Loan
Insurance Provider and written confirmation from each Rating Agency (which
confirmation shall be furnished to the Depositor and the Trustee) that such
resignation will not cause such Rating Agency to reduce the then current
rating of the Certificates. Any such determination pursuant to clause (i) of
the preceding sentence permitting the resignation of the Master Servicer shall
be evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
No resignation of the Master Servicer shall become effective until the Trustee
or a successor servicer to such appointment shall have assumed the Master
Servicer's responsibilities, duties, liabilities (other than those liabilities
arising prior to the appointment of such successor) and obligations under this
Agreement.
Section 6.05 Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall, for so long as it acts as servicer under
this Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations
as servicer hereunder, and (b) a fidelity bond in respect of its officers,
employees and agents. Each such policy or policies and bond shall, together,
comply with the requirements from time to time of Xxxxxx Xxx or Xxxxxxx Mac
for persons performing servicing for mortgage loans purchased by Xxxxxx Mae or
Xxxxxxx Mac. In the event that any
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such policy or bond ceases to be in effect, the Master Servicer shall use its
reasonable best efforts to obtain a comparable replacement policy or bond from
an insurer or issuer, meeting the requirements set forth above as of the date
of such replacement.
The Master Servicer shall provide the Trustee (upon such party's
reasonable request) with copies of any such insurance policies and fidelity
bond. The Master Servicer shall be deemed to have complied with this provision
if an Affiliate of the Master Servicer has such errors and omissions and
fidelity bond coverage and, by the terms of such insurance policy or fidelity
bond, the coverage afforded thereunder extends to the Master Servicer.
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ARTICLE VII.
DEFAULT; TERMINATION OF MASTER SERVICER
Section 7.01 Events of Default.
"Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit in the
Certificate Account or the Distribution Account or remit to the Trustee
any payment (excluding a payment required to be made under Section 4.01
hereof) required to be made under the terms of this Agreement, which
failure shall continue unremedied for five calendar days and, with
respect to a payment required to be made under Section 4.01(b) or (c)
hereof, for one Business Day, after the date on which written notice of
such failure shall have been given to the Master Servicer by the Trustee
or the Depositor, or to the Trustee and the Master Servicer by the
Holders of Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates; or
(ii) any failure by the Master Servicer to observe or perform
in any material respect any other of the covenants or agreements on the
part of the Master Servicer contained in this Agreement or any
representation or warranty shall prove to be untrue, which failure or
breach shall continue unremedied for a period of 60 days after the date
on which written notice of such failure shall have been given to the
Master Servicer by the Trustee or the Depositor, or to the Trustee by the
Holders of Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates; provided that the sixty-day cure period
shall not apply to the initial delivery of the Mortgage File for Delay
Delivery Mortgage Loans nor the failure to repurchase or substitute in
lieu thereof; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 consecutive days; or
(iv) the Master Servicer shall consent to the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or all or substantially all of the
property of the Master Servicer; 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, or commence a voluntary case under, any applicable
insolvency or reorganization statute, make an assignment for the benefit
of its creditors, or voluntarily suspend payment of its obligations.
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If an Event of Default shall occur, then, and in each and every such
case, so long as such Event of Default shall not have been remedied, the
Trustee shall, but only at the direction of the Holders of Certificates
evidencing not less than 25% of the Voting Rights evidenced by the
Certificates, by notice in writing to the Master Servicer (with a copy to each
Rating Agency), terminate all of the rights and obligations of the Master
Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof, other than its rights as a Certificateholder hereunder. On
or after the receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer hereunder, whether with respect to
the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee.
The Trustee shall thereupon make any Advance described in Section 4.01 hereof
subject to Section 3.04 hereof. The Trustee is hereby authorized and empowered
to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. Unless expressly provided in such written notice, no such
termination shall affect any obligation of the Master Servicer to pay amounts
owed pursuant to Article VIII. The Master Servicer agrees to cooperate with
the Trustee in effecting the termination of the Master Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to the Trustee of all cash amounts which shall at the time be
credited to the Certificate Account, or thereafter be received with respect to
the Mortgage Loans. The Trustee shall promptly notify the Rating Agencies of
the occurrence of an Event of Default.
Notwithstanding any termination of the activities of a Master
Servicer hereunder, such Master Servicer shall be entitled to receive, out of
any late collection of a Scheduled Payment on a Mortgage Loan that was due
prior to the notice terminating such Master Servicer's rights and obligations
as Master Servicer hereunder and received after such notice, that portion
thereof to which such Master Servicer would have been entitled pursuant to
Sections 3.08(a)(i) through (viii), and any other amounts payable to such
Master Servicer hereunder the entitlement to which arose prior to the
termination of its activities hereunder.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7.01 hereof, the Trustee shall, to the extent
provided in Section 3.04, be the successor to the Master Servicer in its
capacity as servicer under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Master Servicer by the terms
and provisions hereof and applicable law including the obligation to make
advances pursuant to Section 4.01. As compensation therefor, the Trustee shall
be entitled to all fees, costs and expenses relating to the Mortgage Loans
that the Master Servicer would have been entitled to if the Master Servicer
had continued to act hereunder. Notwithstanding the foregoing, if the Trustee
has become the successor to the Master Servicer in accordance with Section
7.01 hereof, the Trustee may, if it shall be unwilling to so act, or shall, if
it is prohibited by applicable law from making Advances pursuant to Section
4.01 hereof or if it is otherwise unable to so act, appoint, or petition a
court of competent jurisdiction to appoint, any established mortgage loan
servicing institution the appointment of which does not adversely affect the
then current rating of the Certificates by each Rating Agency as the successor
to the Master Servicer hereunder in the assumption of all or any
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part of the responsibilities, duties or liabilities of the Master Servicer
hereunder. Any successor Master Servicer shall be an institution that is a
Xxxxxx Mae and Xxxxxxx Mac approved seller/servicer in good standing, that has
a net worth of at least $15,000,000, and that is willing to service the
Mortgage Loans and executes and delivers to the Depositor and the Trustee an
agreement accepting such delegation and assignment, that contains an
assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the Master Servicer (other than liabilities and
indemnities of the Master Servicer under Section 6.03 hereof incurred prior to
termination of the Master Servicer under Section 7.01), with like effect as if
originally named as a party to this Agreement; and provided further that each
Rating Agency acknowledges that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be qualified or
reduced as a result of such assignment and delegation. No appointment of a
successor to the Master Servicer hereunder shall be effective until the
Trustee shall have consented thereto, and written notice of such proposed
appointment shall have been provided by the Trustee to each Certificateholder.
No successor to the Master Servicer shall be appointed hereunder unless the
appointment of such institution as successor Master Servicer shall not
adversely affect the coverage under the Loan Insurance Policy. The Trustee
shall not resign as servicer until a successor servicer has been appointed and
has accepted such appointment. Pending appointment of a successor to the
Master Servicer hereunder, the Trustee, unless the Trustee is prohibited by
law from so acting, shall, subject to Section 3.04 hereof, act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor
shall agree; provided that no such compensation shall be in excess of that
permitted the Master Servicer hereunder. The Trustee and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. Neither the Trustee nor any other successor
servicer shall be deemed to be in default hereunder by reason of any failure
to make, or any delay in making, any distribution hereunder or any portion
thereof or any failure to perform, or any delay in performing, any duties or
responsibilities hereunder, in either case caused by the failure of the Master
Servicer to deliver or provide, or any delay in delivering or providing, any
cash, information, documents or records to it.
Any successor to the Master Servicer as servicer shall give notice
to the Mortgagors of such change of servicer and shall, during the term of its
service as servicer, maintain in force the policy or policies that the Master
Servicer is required to maintain pursuant to Section 6.05.
In connection with the termination or resignation of the Master
Servicer hereunder, either (i) the successor Master Servicer, including the
Trustee if the Trustee is acting as successor Master Servicer, shall represent
and warrant that it is a member of MERS in good standing and shall agree to
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans that are registered with
MERS, or (ii) the predecessor Master Servicer shall cooperate with the
successor Master Servicer in causing MERS to execute and deliver an assignment
of Mortgage in recordable form to transfer the Mortgage from MERS to the
Trustee and to execute and deliver such other notices, documents and other
instruments as may be necessary or desirable to effect a transfer of such
Mortgage Loan or servicing of such Mortgage Loan on the MERS(R) System to the
successor Master Servicer. The predecessor Master Servicer shall file or cause
to be filed any such
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assignment in the appropriate recording office. The successor Master Servicer
shall cause such assignment to be delivered to the Trustee or the Custodian
promptly upon receipt of the original with evidence of recording thereon or a
copy certified by the public recording office in which such assignment was
recorded.
Section 7.03 Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the
Master Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders notice of each such
Event of Default hereunder known to the Trustee, unless such Event of Default
shall have been cured or waived.
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ARTICLE VIII.
CONCERNING THE TRUSTEE AND THE CO-TRUSTEE
Section 8.01 Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default that may have occurred, shall
undertake to perform such duties and only such duties as are specifically set
forth in this Agreement. In case an Event of Default has occurred and remains
uncured, the Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the
conduct of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee (or the Co-Trustee, to the extent provided in this
Agreement) that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they
conform to the requirements of this Agreement, to the extent provided in this
Agreement. If any such instrument is found not to conform to the requirements
of this Agreement in a material manner, the Trustee shall take action as it
deems appropriate to have the instrument corrected.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own grossly negligent action, its own gross
negligent failure to act or its own misconduct, its grossly negligent failure
to perform its obligations in compliance with this Agreement, or any liability
that would be imposed by reason of its willful misfeasance or bad faith;
provided that:
(i) prior to the occurrence of an Event of Default, and after
the curing of all such Events of Default that may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable,
individually or as Trustee, except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the
Trustee and the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and conforming to
the requirements of this Agreement that it reasonably believed in good
faith to be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
(ii) the Trustee shall not be liable, individually or as
Trustee, for an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless the Trustee was
grossly negligent or acted in bad faith or with willful misfeasance;
(iii) the Trustee shall not be liable, individually or as
Trustee, with respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with
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the direction of Holders of each Class of Certificates evidencing not
less than 25% of the Voting Rights of such Class relating to the time,
method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee
under this Agreement; and
(iv) without in any way limiting the provisions of this Section
8.01 or Section 8.02 hereof, the Trustee shall be entitled to rely
conclusively on the information delivered to it by the Master Servicer in
a Trustee Advance Notice in determining whether or not it is required to
make an Advance under Section 4.01(d), shall have no responsibility to
ascertain or confirm any information contained in any Trustee Advance
Notice, and shall have no obligation to make any Advance under Section
4.01(d) in the absence of a Trustee Advance Notice or actual knowledge by
a Responsible Officer that a (A) required Advance was not made and (B)
such required Advance was not a Nonrecoverable Advance.
Section 8.02 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) the Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such Opinion of Counsel;
(iii) the Trustee shall not be liable, individually or as
Trustee, for any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(iv) prior to the occurrence of an Event of Default hereunder
and after the curing of all Events of Default that may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing so to do by the Holders of
each Class of Certificates evidencing not less than 25% of the Voting
Rights of such Class; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee not reasonably assured to the Trustee by such
Certificateholders, the Trustee may require reasonable indemnity against
such cost, expense or liability from such Certificateholders as a
condition to taking any such action;
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(v) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, accountants or attorneys;
(vi) the Trustee shall not be required to expend its own funds
or otherwise incur any financial liability in the performance of any of
its duties hereunder if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such liability
is not assured to it;
(vii) the Trustee shall not be liable, individually or as
Trustee, for any loss on any investment of funds pursuant to this
Agreement (other than as issuer of the investment security);
(viii) the Trustee shall not be deemed to have knowledge of an
Event of Default until a Responsible Officer of the Trustee shall have
received written notice thereof; and
(ix) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein or thereby.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by the Trustee
without the possession of any of the Certificates, or the production thereof
at the trial or other proceeding relating thereto, and any such suit, action
or proceeding instituted by the Trustee shall be brought in its name for the
benefit of all the Holders of the Certificates, subject to the provisions of
this Agreement.
Section 8.03 Trustee Not Liable for Mortgage Loans.
The recitals contained herein shall be taken as the statements of
the Depositor or the Master Servicer, as the case may be, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of any
Mortgage Loan or related document or of MERS or the MERS(R) System other than
with respect to the Trustee's execution and authentication of the
Certificates. The Trustee shall not be accountable for the use or application
by the Depositor or the Master Servicer of any funds paid to the Depositor or
the Master Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Certificate Account by the Depositor or the Master
Servicer.
Section 8.04 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Certificates with the same rights as it would have if it
were not the Trustee.
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Section 8.05 Master Servicer to Pay Trustee's Fees and Expenses.
The Master Servicer covenants and agrees to pay or reimburse the
Trustee, upon its request, for all reasonable expenses, disbursements and
advances incurred or made by the Trustee on behalf of the Trust Fund in
accordance with any of the provisions of this Agreement (including, without
limitation: (A) the reasonable compensation and the expenses and disbursements
of its counsel, but only for representation of the Trustee acting in its
capacity as Trustee hereunder and (B) to the extent that the Trustee must
engage persons not regularly in its employ to perform acts or services on
behalf of the Trust Fund, which acts or services are not in the ordinary
course of the duties of a trustee, paying agent or certificate registrar, in
the absence of a breach or default by any party hereto, the reasonable
compensation, expenses and disbursements of such persons, except any such
expense, disbursement or advance as may arise from its negligence, bad faith
or willful misconduct). The Trustee and any director, officer, employee or
agent of the Trustee shall be indemnified by the Master Servicer and held
harmless against any loss, liability or expense (i) incurred in connection
with any legal action relating to this Agreement or the Certificates, or in
connection with the performance of any of the Trustee's duties hereunder,
other than any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of any of the
Trustee's duties hereunder or by reason of reckless disregard of the Trustee's
obligations and duties hereunder and (ii) resulting from any error in any tax
or information return prepared by the Master Servicer. Such indemnity shall
survive the termination of this Agreement or the resignation or removal of the
Trustee hereunder.
Section 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall, at all times, be a corporation or
association organized and doing business under the laws of a state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating that would not cause any of the Rating Agencies to reduce their
respective ratings of any Class of Certificates below the ratings issued on
the Closing Date (or having provided such security from time to time as is
sufficient to avoid such reduction). If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.06, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.07 hereof. The corporation
or national banking association serving as Trustee may have normal banking and
trust relationships with the Depositor, the Seller and the Master Servicer and
their respective affiliates; provided that such corporation cannot be an
affiliate of the Master Servicer other than the Trustee in its role as
successor to the Master Servicer.
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Section 8.07 Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by (1) giving written notice of resignation to the Depositor
and the Master Servicer and by mailing notice of resignation by first class
mail, postage prepaid, to the Certificateholders at their addresses appearing
on the Certificate Register and each Rating Agency, not less than 60 days
before the date specified in such notice when, subject to Section 8.08, such
resignation is to take effect, and (2) acceptance of appointment by a
successor Trustee in accordance with Section 8.08 and meeting the
qualifications set forth in Section 8.06. If no successor Trustee shall have
been so appointed and have accepted appointment within 30 days after the
giving of such notice or resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 hereof and shall fail to resign
after written request thereto by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or
(iii)(A) a tax is imposed with respect to the Trust Fund by any state in which
the Trustee or the Trust Fund is located, (B) the imposition of such tax would
be avoided by the appointment of a different trustee and (C) the Trustee fails
to indemnify the Trust Fund against such tax, then the Depositor or the Master
Servicer may remove the Trustee and appoint a successor Trustee by written
instrument, in triplicate, one copy of which instrument shall be delivered to
the Trustee, one copy of which shall be delivered to the Master Servicer and
one copy of which shall be delivered to the successor Trustee.
The Holders evidencing at least 51% of the Voting Rights of each
Class of Certificates may at any time remove the Trustee and appoint a
successor Trustee by written instrument or instruments, in triplicate, signed
by such Holders or their attorneys-in-fact duly authorized, one complete set
of which instruments shall be delivered by the successor Trustee to the Master
Servicer one complete set to the Trustee so removed and one complete set to
the successor so appointed. Notice of any removal of the Trustee shall be
given to each Rating Agency by the successor Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.07 shall
become effective upon acceptance of appointment by the successor Trustee as
provided in Section 8.08 hereof.
Section 8.08 Successor Trustee.
Any successor Trustee appointed as provided in Section 8.07 hereof
shall execute, acknowledge and deliver to the Depositor, its predecessor
trustee and the Master Servicer an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect as
if originally named as trustee herein.
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No successor Trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor Trustee
shall be eligible under the provisions of Section 8.06 hereof and its
appointment shall not adversely affect the then current ratings of the
Certificates.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to
mail such notice within ten days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed
at the expense of the Depositor.
Section 8.09 Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be eligible under the provisions of
Section 8.06 hereof without the execution or filing of any paper or further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Master Servicer and the Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity and
for the benefit of the Certificateholders, such title to the Trust Fund or any
part thereof, whichever is applicable, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
receipt by it of a request to do so, or in the case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor Trustee under Section
8.06 and no notice to Certificateholders of the appointment of any co-trustee
or separate trustee shall be required under Section 8.08.
Notwithstanding any provision of this Section 8.10 to the contrary,
the Co-Trustee appointed pursuant to Section 8.12(a) shall have no duties and
obligations hereunder other than those described in Section 8.12(a).
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Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) All rights, powers, duties and obligations conferred or
imposed upon the Trustee, except for the obligation of the Trustee under
this Agreement to advance funds on behalf of the Master Servicer, shall
be conferred or imposed upon and exercised or performed by the Trustee
and such separate trustee or co-trustee (other than the Co-Trustee)
jointly (it being understood that such separate trustee or co-trustee is
not authorized to act separately without the Trustee joining in such
act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer hereunder), the Trustee
shall be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee (other than the Co-Trustee), but solely at the
direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Except with respect to the Co-Trustee, any notice, request or other
writing given to the Trustee shall be deemed to have been given to each of the
then separate trustees and co-trustees, as effectively as if given to each of
them. Every instrument appointing any separate trustee or co-trustee shall
refer to this Agreement and the conditions of this Article VIII. Each separate
trustee and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Trustee or separately, as may be provided
therein, subject to all the provisions of this Agreement, specifically
including every provision of this Agreement relating to the conduct of,
affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to
the Master Servicer and the Depositor.
Any separate trustee or co-trustee (other than the Co-Trustee) may,
at any time, constitute the Trustee its agent or attorney-in-fact, with full
power and authority, to the extent not prohibited by law, to do any lawful act
under or in respect of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor Trustee.
Section 8.11 Tax Matters.
(a) It is intended that each REMIC created pursuant to the
Preliminary Statement shall constitute, and that the affairs of the Trust Fund
shall be conducted so that each REMIC created pursuant to the Preliminary
Statement qualifies as, a "real estate mortgage
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investment conduit" as defined in and in accordance with the REMIC Provisions.
In furtherance of such intention, the Trustee covenants and agrees that it
shall act as agent (and the Trustee is hereby appointed to act as agent) on
behalf of the Trust Fund and that in such capacity it shall: (a) prepare and
file, or cause to be prepared and filed, in a timely manner, a U.S. Real
Estate Mortgage Investment Conduit Income Tax Returns (Form 1066 or any
successor form adopted by the Internal Revenue Service) and prepare and file
or cause to be prepared and filed with the Internal Revenue Service and
applicable state or local tax authorities income tax or information returns
for each taxable year with respect to each REMIC created hereunder containing
such information and at the times and in the manner as may be required by the
Code or state or local tax laws, regulations, or rules, and furnish or cause
to be furnished to Certificateholders the schedules, statements or information
at such times and in such manner as may be required thereby; (b) within thirty
days of the Closing Date, furnish or cause to be furnished to the Internal
Revenue Service, on Forms 8811 or as otherwise may be required by the Code,
the name, title, address, and telephone number of the person that the Holders
of the Certificates may contact for tax information relating thereto, together
with such additional information as may be required by such Form, and update
such information at the time or times in the manner required by the Code for
the Trust Fund; (c) make or cause to be made elections, on behalf of each
REMIC created hereunder to be treated as a REMIC on the federal tax return of
each such REMIC for its first taxable year (and, if necessary, under
applicable state law); (d) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders and to the Internal Revenue Service and,
if necessary, state tax authorities, all information returns and reports as
and when required to be provided to them in accordance with the REMIC
Provisions, including without limitation, the calculation of any original
issue discount using the Prepayment Assumption; (e) provide information
necessary for the computation of tax imposed on the transfer of a Class A-R
Certificate to a Person that is not a Permitted Transferee, or an agent
(including a broker, nominee or other middleman) of a Non-Permitted
Transferee, or a pass-through entity in which a Non-Permitted Transferee is
the record holder of an interest (the reasonable cost of computing and
furnishing such information may be charged to the Person liable for such tax);
(f) to the extent that they are under its control conduct the affairs of the
Trust Fund at all times that any Certificates are outstanding so as to
maintain the status of each REMIC created hereunder as a REMIC under the REMIC
Provisions; (g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any REMIC
created hereunder; (h) pay, from the sources specified in Section 8.11(c), the
amount of any federal, state and local taxes, including prohibited transaction
taxes as described below, imposed on any REMIC created hereunder prior to the
termination of the Trust Fund when and as the same shall be due and payable
(but such obligation shall not prevent the Trustee or any other appropriate
Person from contesting any such tax in appropriate proceedings and shall not
prevent the Trustee from withholding payment of such tax, if permitted by law,
pending the outcome of such proceedings); (i) sign or cause to be signed
federal, state or local income tax or information returns; (j) maintain
records relating to each REMIC created hereunder, including but not limited to
the income, expenses, assets and liabilities of each such REMIC, and the fair
market value and adjusted basis of the Trust Fund property determined at such
intervals as may be required by the Code, as may be necessary to prepare the
foregoing returns, schedules, statements or information; and (k) as and when
necessary and appropriate, represent the Trust Fund in any administrative or
judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable year
of any
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REMIC created hereunder, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of the Trust Fund, and otherwise act on behalf of any REMIC created
hereunder in relation to any tax matter involving any such REMIC.
(b) In order to enable the Trustee to perform its duties as set
forth herein, the Depositor shall provide, or cause to be provided, to the
Trustee within 10 days after the Closing Date all information or data that the
Trustee requests in writing and determines to be relevant for tax purposes to
the valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows
of the Certificates and the Mortgage Loans (and, to the extent not part of the
aforementioned, the information referred to in paragraphs (i), (ii), (iii) and
(iv) of Section 4.05(d)). Thereafter, the Depositor shall provide to the
Trustee promptly upon written request therefor, any such additional
information or data that the Trustee may, from time to time, request in order
to enable the Trustee to perform its duties as set forth herein. The Depositor
hereby indemnifies the Trustee for any losses, liabilities, damages, claims or
expenses of the Trustee arising from any errors or miscalculations of the
Trustee that result from any failure of the Depositor to provide, or to cause
to be provided, accurate information or data to the Trustee on a timely basis.
(c) In the event that any tax is imposed on "prohibited
transactions" of the Trust Fund as defined in Section 860F(a)(2) of the Code,
on the "net income from foreclosure property" of the Trust Fund as defined in
Section 860G(c) of the Code, on any contribution to the Trust Fund after the
startup day pursuant to Section 860G(d) of the Code, or any other tax is
imposed, including, without limitation, any federal, state or local tax or
minimum tax imposed upon the Trust Fund pursuant to Sections 23153 and 24872
of the California Revenue and Taxation Code if not paid as otherwise provided
for herein, such tax shall be paid by (i) the Trustee, if any such other tax
arises out of or results from a breach by the Trustee of any of its
obligations under this Agreement, (ii) (x) the Master Servicer, in the case of
any such minimum tax, and (y) any party hereto (other than the Trustee) to the
extent any such other tax arises out of or results from a breach by such other
party of any of its obligations under this Agreement or (iii) in all other
cases, or in the event that any liable party here fails to honor its
obligations under the preceding clauses (i) or (ii), any such tax will be paid
first with amounts otherwise to be distributed to the Class A-R
Certificateholders, and second with amounts otherwise to be distributed to all
other Certificateholders in the following order of priority: first to the
Class M-3 Certificates, second, to the Class M-2 Certificates, third, to the
Class M-1 Certificates, and fourth, to the Class A-R Certificates and the
Class A Certificates (pro rata). Notwithstanding anything to the contrary
contained herein, to the extent that such tax is payable by the Class A-R
Certificates, the Trustee is hereby authorized to retain on any Distribution
Date, from the Holders of the Class A-R Certificates (and, if necessary,
second, from the Holders of the all other Certificates in the priority
specified in the preceding sentence), funds otherwise distributable to such
Holders in an amount sufficient to pay such tax. The Trustee agrees to
promptly notify in writing the party liable for any such tax of the amount
thereof and the due date for the payment thereof.
(d) The Trustee shall treat the Carryover Reserve Fund as an outside
reserve fund within the meaning of Treasury Regulation 1.860G-2(h) that is
owned by the Class A-IO Certificateholders, and that is not an asset of any
REMIC created under this Agreement. For
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applicable tax purposes only, the Trustee shall (i) treat the rights of the
Class A-1, Class X-0, Xxxxx X-0, Class M-1, Class M-2 and Class M-3
Certificateholders to receive payments from the Carryover Reserve Fund as
rights under an interest rate cap contract between the Class A-1, Class X-0,
Xxxxx X-0, Class M-1, Class M-2 and Class M-3 Certificateholders and the Class
A-IO Certificateholders and (ii) treat the Class A-IO Certificateholders as
holding the entire interest in the right to receive payments on the Corridor
Contract. Thus, each Class A-1, Class X-0, Xxxxx X-0, Class M-1, Class M-2 and
Class M-3 Certificate shall be treated as representing ownership of not only
Master REMIC Regular Interests, but also ownership of an interest in an
interest rate cap contract. For purposes of determining the issue price of the
Class A-1, Class X-0, Xxxxx X-0, Class M-1, Class M-2 and Class M-3
Certificate, the Trustee shall assume that the deemed interest rate cap
contract written by the Class A-IO Certificateholders has a value of $10,000.
As required under Treasury Regulation 1.860G-2(i), the Trustee shall account
for the rights of the Class A-1, Class X-0, Xxxxx X-0, Class M-1, Class M-2
and Class M-3 Certificateholders to receive payments from the Carryover
Reserve Fund, and the rights of the Class A-IO Certificateholders to receive
payments from the Corridor Contract, as property that the Trustee holds
separate and apart from the Master REMIC Regular Interests.
Section 8.12 Co-Trustee.
(a) The Co-Trustee has been appointed at a Minnesota office solely
to (i) receive and hold the Loan Insurance Policy on behalf of the
Certificateholders and (ii) make payments and receive proceeds paid in respect
of the Mortgage Loans pursuant to the Loan Insurance Policy and take the other
actions expressly provided for in this Agreement. The Co-Trustee, not in its
individual capacity but solely in its capacity as Co-Trustee on behalf of the
Certificateholders, is hereby directed to hold the Loan Insurance Policy for
the benefit of the Certificateholders. The Co-Trustee acknowledges receipt of
the Loan Insurance Policy and agrees to perform its duties at that office in
the manner described below.
(b) The Co-Trustee shall not undertake nor have any of the duties of
the Trustee and shall have no obligations under this Agreement other than as
expressly stated in this Section 8.12.
On each Distribution Date upon receipt of funds from the Master
Servicer in accordance with Section 3.09, the Co-Trustee shall pay the amount
received from the Master Servicer to the Loan Insurance Policy Provider on the
Distribution Date by wire transfer of immediately available funds in
accordance with instructions furnished by the Loan Insurance Policy Provider
pursuant to the Loan Insurance Policy. The Master Servicer shall make any
claims pursuant to and in accordance with the Loan Insurance Policy and,
except for the duties of the Co-Trustee in this Section 8.12, shall perform
all of the obligations of the insured under the Loan Insurance Policy on
behalf of the Co-Trustee and for the benefit of the Certificateholders. If the
Co-Trustee receives any payments under the Loan Insurance Policy from the Loan
Insurance Policy Provider, the Co-Trustee shall notify the Trustee of the
receipt of such amounts and shall pay them to the Trustee by wire transfer of
immediately available funds on the date of receipt if received before 2:00
P.M. (New York City time), and otherwise on the next Business Day. The wiring
instructions for the Trustee are:
The Bank of New York
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ABA# 000000000
GLA# 111-565
For further credit: XXX Xxxxxxx 000000
Ref: CWABS 2004-S1
Attention: Xxx Xxxxx Xxxxxxx, telephone no. (000) 000-0000.
If any payment under the Loan Insurance Policy is made to the
Co-Trustee other than by wire transfer of immediately available funds, that
payment shall be deemed to have been received by the Co-Trustee on the date
that payment cleared and was available to the Co-Trustee in immediately
available funds.
No provision of this Agreement shall be construed to relieve the
Co-Trustee from liability for its own grossly negligent action, its own gross
negligent failure to act or its own misconduct, its grossly negligent failure
to perform its obligations in compliance with this Agreement, or any liability
that would be imposed by reason of its willful misfeasance or bad faith;
provided that:
(i) the duties and obligations of the Co-Trustee shall be
determined solely by the express provisions of this Agreement with the
exception of Section 8.10, the Co-Trustee shall not be liable,
individually or as Co-Trustee, except for the performance of such duties
and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement
against the Co-Trustee, and it may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to it and conforming to the
requirements of this Agreement that it reasonably believed in good faith
to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder; and
(ii) the Co-Trustee shall not be liable, individually or as
Co-Trustee, for an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Co-Trustee, unless the Co-Trustee
was grossly negligent or acted in bad faith or with willful misfeasance.
(c) Except as otherwise provided in paragraph (b) above:
(i) the Co-Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) the Co-Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such Opinion of Counsel;
(iii) the Co-Trustee shall not be liable, individually or as
Co-Trustee, for any action taken, suffered or omitted by it in good faith
and believed by it to be
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authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(iv) the Co-Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document;
(v) the Co-Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, accountants or attorneys; and
(vi) the Co-Trustee shall not be required to expend its own
funds or otherwise incur any financial liability in the performance of
any of its duties hereunder if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
liability is not assured to it.
(d) The recitals contained herein shall be taken as the statements
of the Depositor or the Master Servicer, as the case may be, and the
Co-Trustee assumes no responsibility for their correctness. The Co-Trustee
makes no representations as to the validity or sufficiency of this Agreement,
the Loan Insurance Policy or of any Mortgage Loan or related document.
(e) The Co-Trustee in its individual or any other capacity may
become the owner or pledgee of Certificates with the same rights as it would
have if it were not the Co-Trustee.
(f) The Master Servicer covenants and agrees (i) to pay to the
Co-Trustee from time to time, and the Co-Trustee shall be entitled to, such
compensation as shall be agreed in writing by the Master Servicer and the
Co-Trustee (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) for all services rendered
by it in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Co-Trustee and
(ii) to pay or reimburse the Co-Trustee, upon its request, for all reasonable
expenses, disbursements and advances incurred or made by the Co-Trustee on
behalf of the Trust Fund in accordance with any of the provisions of this
Agreement (including, without limitation: (A) the reasonable compensation and
the expenses and disbursements of its counsel, but only for representation of
the Co-Trustee acting in its capacity as Co-Trustee hereunder and (B) to the
extent that the Co-Trustee must engage persons not regularly in its employ to
perform acts or services on behalf of the Trust Fund, which acts or services
are not in the ordinary course of the duties of a trustee, paying agent or
certificate registrar, in the absence of a breach or default by any party
hereto, the reasonable compensation, expenses and disbursements of such
persons, except any such expense, disbursement or advance as may arise from
its negligence, bad faith or willful misconduct). The Co-Trustee and any
director, officer, employee or agent of the Co-Trustee shall be indemnified by
the Master Servicer and held harmless against any loss, liability or expense
(i) incurred in connection with any legal action relating to this Agreement,
the Loan Insurance Policy or the Certificates, or in connection with the
performance of any of the Co-Trustee's duties hereunder, other than any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the
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performance of any of the Co-Trustee's duties hereunder or by reason of
reckless disregard of the Co-Trustee's obligations and duties hereunder and
(ii) resulting from any error in any tax or information return prepared by the
Master Servicer. Such indemnity shall survive the termination of this
Agreement or the resignation or removal of the Co-Trustee hereunder.
(g) The Co-Trustee hereunder shall, at all times, be a corporation
or association organized and doing business under the laws of a state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating that would not cause any of the Rating Agencies to reduce their
respective ratings of any Class of Certificates below the ratings issued on
the Closing Date (or having provided such security from time to time as is
sufficient to avoid such reduction), and otherwise acceptable to the Loan
Insurance Policy Provider. If such corporation or association publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 8.12 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 Co-Trustee shall cease to be eligible in accordance with the provisions of
this Section 8.12, the Co-Trustee shall resign immediately in the manner and
with the effect specified in paragraph (h) below. The corporation or national
banking association serving as Co-Trustee may have normal banking and trust
relationships with the Depositor, the Seller and the Master Servicer and their
respective affiliates; provided that such corporation cannot be an affiliate
of the Master Servicer other than the Trustee in its role as successor to the
Master Servicer. If at any time (i) the Co-Trustee ceases to be eligible in
accordance with this Section 8.12(g) and fails to resign after written request
by the Loan Insurance Policy Provider or the Trustee, or (ii) the Co-Trustee
becomes incapable of acting, or is adjudged a bankrupt or insolvent, or a
receiver of the Co-Trustee or of its property is appointed, or any public
officer takes charge of the Co-Trustee or of its property or affairs for the
purpose of rehabilitation, conservation, or liquidation, then the Loan
Insurance Policy Provider or Trustee may remove the Co-Trustee and appoint a
successor co-trustee by written instrument, with copies delivered to the
Co-Trustee, the Trustee, Loan Insurance Policy Provider and the successor
co-trustee. Any successor co-trustee shall be paid pursuant to an agreement
with the Master Servicer and the assets of the Trust Fund shall not be used to
satisfy any obligation to pay the compensation of the successor co-trustee.
Any resignation or removal of the Co-Trustee and appointment of a successor
co-trustee pursuant to this Section shall become effective only upon
acceptance of appointment by the successor co-trustee as provided in this
Section.
(h) The Co-Trustee may at any time resign and be discharged from the
trusts hereby created by giving 30 days prior written notice of resignation to
the Trustee, the Loan Insurance Policy Provider, the Depositor and the Master
Servicer. Upon such resignation the Trustee (x) may appoint a successor
Co-Trustee meeting the requirements in paragraph (g) above and acceptable to
the Master Servicer (in its sole discretion), so long as such Co-Trustee
executes and delivers to the other parties hereto and to the Loan Insurance
Policy Provider an instrument agreeing to be bound by the provisions of this
Agreement or (y) may if permitted by the Master Servicer (in its sole
discretion) assume the rights and duties of the resigning Co-Trustee so long
as the Trustee executes and delivers an instrument to that effect. The
Co-Trustee shall deliver
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the Loan Insurance Policy and any amounts held in its possession for the
benefit of the Certificateholders to the successor co-trustee upon the
appointment of the successor co-trustee.
(i) The Co-Trustee shall surrender the Loan Insurance Policy to the
Loan Insurance Policy Provider for cancellation upon the termination of the
Trust Fund.
Section 8.13 Access to Records of the Trustee and the Co-Trustee.
The Trustee, the Co-Trustee and any other co-trustee shall, upon
reasonable notice, afford the Seller, the Depositor, the Master Servicer and
each Certificate Owner, access during normal business hours, access to all
records maintained by the Trustee, Co-Trustee or co-trustee in respect of its
duties under this Agreement and access to officers of the Trustee, Co-Trustee
or co-trustee responsible for performing its duties. Upon request, the
Trustee, the Co-Trustee or the co-trustee shall furnish the Depositor, the
Master Servicer and any requesting Certificate Owner with its most recent
financial statements. The Trustee, the Co-Trustee and any other co-trustee
shall cooperate fully with the Seller, the Master Servicer, the Depositor and
each Certificate Owner in its review in the copying of any books, documents,
or records requested with respect to the Trustee's, Co-Trustee's or
co-trustee's respective duties under this Agreement. None of the Seller, the
Depositor, the Master Servicer or any Certificate Owner shall have any
responsibility or liability for any action for failure to act by the Trustee,
the Co-Trustee or any co-trustee, and none of such persons is obligated to
supervise the performance of the Trustee or the Co-Trustee under this
Agreement or otherwise.
Section 8.14 Suits for Enforcement.
If an Event of Default or other material default by the Master
Servicer or the Depositor under this Agreement occurs and is continuing, at
the direction of the Certificateholders holding not less than 51% of the
Voting Rights, the Trustee shall proceed to protect and enforce its rights and
the rights of the Certificateholders under this Agreement by a suit, action,
or proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Agreement or in aid
of the execution of any power granted in this Agreement or for the enforcement
of any other legal, equitable, or other remedy, as the Trustee, on the advice
of counsel, and subject to the foregoing, shall deem most effectual to protect
and enforce any of the rights of the Trustee and the Certificateholders.
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ARTICLE IX.
TERMINATION
Section 9.01 Termination upon Liquidation or Repurchase of all
Mortgage Loans.
Subject to Section 9.03, the Trust Fund shall terminate and the
obligations and responsibilities of the Depositor, the Master Servicer, the
Seller and the Trustee created hereby shall terminate upon the earlier of (a)
the purchase by the Master Servicer of all of the Mortgage Loans (and REO
Properties) remaining in the Trust Fund at the price equal to the sum of (i)
100% of the Stated Principal Balance of each Mortgage Loan in the Trust Fund
(other than in respect of an REO Property), (ii) accrued interest thereon at
the applicable Net Mortgage Rate, (iii) the appraised value of any REO
Property in the Trust Fund (up to the Stated Principal Balance of the related
Mortgage Loan), such appraisal to be conducted by an appraiser mutually agreed
upon by the Master Servicer and the Trustee and (iv) any unreimbursed
Servicing Advances, and the principal portion of any unreimbursed Advances,
made on the Mortgage Loans prior to the exercise of such repurchase and (b)
the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant
to this Agreement, as applicable. In no event shall the trusts created hereby
continue beyond the earlier of (i) 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 and (ii) the Latest Possible Maturity Date.
The Master Servicer shall have the right to repurchase all Mortgage
Loans and REO Properties in the Trust Fund pursuant to clause (a) in the
preceding paragraph only on or after the date on which the Stated Principal
Balance of the Mortgage Loans, at the time of any such repurchase, is less
than or equal to ten percent (10%) of the Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
Section 9.02 Final Distribution on the Certificates.
If on any Determination Date, (i) the Master Servicer determines
that there are no Outstanding Mortgage Loans and no other funds or assets in
the Trust Fund other than the funds in the Certificate Account, the Master
Servicer shall direct the Trustee to send a final distribution notice promptly
to each Certificateholder or (ii) the Trustee determines that a Class of
Certificates shall be retired after a final distribution on such Class, the
Trustee shall notify the related Certificateholders within five (5) Business
Days after such Determination Date that the final distribution in retirement
of such Class of Certificates is scheduled to be made on the immediately
following Distribution Date. Any final distribution made pursuant to the
immediately preceding sentence will be made only upon presentation and
surrender of the related Certificates at the Corporate Trust Office of the
Trustee. If the Master Servicer elects to terminate the Trust Fund pursuant to
clause (a) of Section 9.01, at least 20 days prior to the date notice is to be
mailed to the Certificateholders, such electing party shall notify the
Depositor and
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the Trustee of the date such electing party intends to terminate the Trust
Fund and of the applicable repurchase price of the related Mortgage Loans and
REO Properties.
Notice of any termination of the Trust Fund, specifying the
Distribution Date on which related Certificateholders may surrender their
Certificates for payment of the final distribution and cancellation, shall be
given promptly by the Trustee by letter to related Certificateholders mailed
not earlier than the 10th day and no later than the 15th day of the month
immediately preceding the month of such final distribution. Any such notice
shall specify (a) the Distribution Date upon which final distribution on
related Certificates will be made upon presentation and surrender of such
Certificates at the office therein designated, (b) the amount of such final
distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date
otherwise applicable to such Distribution Date is not applicable,
distributions being made only upon presentation and surrender of such
Certificates at the office therein specified. The Master Servicer will give
such notice to each Rating Agency at the time such notice is given to the
affected Certificateholders.
In the event such notice is given, the Master Servicer shall cause
all funds in the Certificate Account to be remitted to the Trustee for deposit
in the Distribution Account on the Business Day prior to the applicable
Distribution Date in an amount equal to the final distribution in respect of
the related Certificates. Upon such final deposit and the receipt by the
Trustee of a Request for Release therefor, the Trustee shall promptly release
to the Master Servicer the Mortgage Files for the related Mortgage Loans.
Upon presentation and surrender of the related Certificates, the
Trustee shall cause to be distributed to Certificateholders of each affected
Class the amounts allocable to such Certificates held in the Distribution
Account (and, if applicable, the Carryover Reserve Fund) in the order and
priority set forth in Section 4.04 hereof on the final Distribution Date and
in proportion to their respective Percentage Interests. Notwithstanding the
reduction of the Certificate Principal Balance of any Class of Certificates to
zero, such Class will be outstanding hereunder (solely for the purpose of
receiving distributions (if any) to which it may be entitled pursuant to the
terms of this Agreement and not for any other purpose) until the termination
of the respective obligations and responsibilities of the Depositor, each
Seller, the Master Servicer and the Trustee hereunder in accordance with this
Article IX.
In the event that any affected Certificateholders shall not
surrender related Certificates for cancellation within six months after the
date specified in the above mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
related Certificates for cancellation and receive the final distribution with
respect thereto. If within six months after the second notice all the
applicable Certificates shall not have been surrendered for cancellation, the
Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that remain a part of the Trust Fund. If within one
year after the second notice all related Certificates shall not have been
surrendered for cancellation, the Class A-R Certificateholders shall be
entitled to all unclaimed funds and other assets that remain subject hereto.
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Section 9.03 Additional Termination Requirements.
(a) In the event the Master Servicer exercises its purchase option
on the Mortgage Loans, the Trust Fund shall be terminated in accordance with
the following additional requirements, unless the Trustee has been supplied
with an Opinion of Counsel, at the expense of the Master Servicer, to the
effect that the failure of the Trust Fund to comply with the requirements of
this Section 9.03 will not (i) result in the imposition of taxes on
"prohibited transactions" of a REMIC, or (ii) cause any REMIC created
hereunder to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(1) The Master Servicer shall establish a 90-day
liquidation period and notify the Trustee thereof, which shall in turn specify
the first day of such period in a statement attached to the Trust Fund's final
Tax Return pursuant to Treasury Regulation Section 1.860F-1. The Master
Servicer shall prepare a plan of complete liquidation and shall otherwise
satisfy all the requirements of a qualified liquidation under Section 860F of
the Code and any regulations thereunder, as evidenced by an Opinion of Counsel
delivered to the Trustee and the Depositor and obtained at the expense of the
Master Servicer;
(2) During such 90-day liquidation period, and at or prior
to the time of making the final payment on the Certificates, the Master
Servicer as agent of the Trustee shall sell all of the assets of the Trust
Fund for cash; and
(3) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Class A-R Certificateholders all cash on hand
(other than cash retained to meet claims) related to such Class of
Certificates, and the Trust Fund shall terminate at that time.
(b) By their acceptance of the Certificates, the Holders thereof
hereby authorize the Master Servicer to specify the 90-day liquidation period
for the Trust Fund, which authorization shall be binding upon all successor
Certificateholders. The Trustee shall attach a statement to the final federal
income tax return for each of any REMIC created hereunder stating that
pursuant to Treasury Regulation Section 1.860F-1, the first day of the 90-day
liquidation period for each the REMIC was the date on which the Trustee sold
the assets of the Trust Fund to the Master Servicer.
(c) The Trustee as agent for each REMIC created hereunder hereby
agrees to adopt and sign such a plan of complete liquidation upon the written
request of the Master Servicer, and the receipt of the Opinion of Counsel
referred to in Section 9.03(a)(1), and together with the Holders of the Class
A-R Certificates agree to take such other action in connection therewith as
may be reasonably requested by the Master Servicer.
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ARTICLE X.
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment.
This Agreement may be amended from time to time by the Depositor,
the Master Servicer, the Seller, the Co-Trustee and the Trustee, without the
consent of any of the Certificateholders, (i) to cure any ambiguity, (ii) to
correct or supplement any provisions herein, (iii) to conform this Agreement
to the Prospectus Supplement or the Prospectus, (iv) to modify, alter, amend,
add to or rescind any of the terms or provisions contained in this Agreement
to comply with any rules or regulations promulgated by the Securities and
Exchange Commission from time to time or (v) to make such other provisions
with respect to matters or questions arising under this Agreement, as shall
not be inconsistent with any other provisions herein if such action shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any Certificateholder; provided that any such
amendment shall be deemed not to adversely affect in any material respect the
interests of the Certificateholders and no such Opinion of Counsel shall be
required if the Person requesting such amendment obtains a letter from each
Rating Agency stating that such amendment would not result in the downgrading
or withdrawal of the respective ratings then assigned to the Certificates, it
being understood and agreed that any such letter in and of itself will not
represent a determination as to the materiality of any such amendment and will
represent a determination only as to the credit issues affecting any such
rating. Notwithstanding the foregoing, no amendment that significantly changes
the permitted activities of the trust created by this Agreement may be made
without the consent of Certificateholders representing not less than 51% of
the Voting Rights of each Class of Certificates affected by such amendment.
Each party to this Agreement hereby agrees that it will cooperate with each
other party in amending this Agreement pursuant to clause (iv) above.
The Trustee, the Co-Trustee, the Depositor, the Master Servicer and
the Seller may also at any time and from time to time amend this Agreement,
without the consent of the Certificateholders, to modify, eliminate or add to
any of its provisions to such extent as shall be necessary or appropriate to
maintain the qualification of the Trust Fund as a REMIC under the Code or to
avoid or minimize the risk of the imposition of any tax on the Trust Fund
pursuant to the Code that would be a claim against the Trust Fund at any time
prior to the final redemption of the Certificates, provided that the Trustee
has been provided an Opinion of Counsel, which shall be an expense of the
party requesting it but in any case shall not be an expense of the Trustee, to
the effect that such action is necessary or appropriate to maintain such
qualification or to avoid or minimize the risk of the imposition of such a
tax.
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Seller and the Trustee and the Holders of
not less than 51% of the Voting Rights of each Class of Certificates adversely
affected thereby for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Holders of Certificates; provided
that no such amendment shall (i) reduce in any manner the amount of, or delay
the timing of, payments required to be distributed on any Certificate without
the consent of the Holder of such Certificate, (ii) adversely affect in any
material respect the interests of the Holders of any Class
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of Certificates in a manner other than as described in clause (i), without the
consent of the Holders of Certificates of such Class evidencing 66% or more of
the Voting Rights of such Class or (iii) reduce the aforesaid percentages of
Certificates whose Holders are required to consent to any such amendment,
without the consent of the Holders of all then outstanding Certificates of
such class.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
have first received an Opinion of Counsel, which shall be an expense of the
party requesting such amendment but in any case shall not be an expense of the
Trustee, to the effect that such amendment will not cause the imposition of
any tax on the Trust Fund or the Certificateholders or cause any REMIC formed
hereunder to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance of such amendment to each Certificateholder and
each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel, reasonably satisfactory to
the Trustee that (i) such amendment is permitted and is not prohibited by this
Agreement and that all requirements for amending this Agreement have been
complied with; and (ii) either (A) the amendment does not adversely affect in
any material respect the interests of any Certificateholder or (B) the
conclusion set forth in the immediately preceding clause (A) is not required
to be reached pursuant to this Section 10.01.
Section 10.02 Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages
are situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Master Servicer at its
expense.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
Section 10.03 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN THE STATE
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OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND
THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS
WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 10.04 Intention of Parties.
It is the express intent of the parties hereto that the conveyance
of the Mortgage Notes, Mortgages, assignments of Mortgages, title insurance
policies and any modifications, extensions and/or assumption agreements and
private mortgage insurance policies relating to the Mortgage Loans by the
Depositor to the Trustee be, and be construed as, an absolute sale thereof to
the Trustee. It is, further, not the intention of the parties that such
conveyance be deemed a pledge thereof by the Depositor to the Trustee.
However, in the event that, notwithstanding the intent of the parties, such
assets are held to be the property of the Depositor, or if for any other
reason this Agreement is held or deemed to create a security interest in such
assets, then (i) this Agreement shall be deemed to be a security agreement
(within the meaning of the Uniform Commercial Code of the State of New York)
with respect to all such assets and security interests and (ii) the conveyance
provided for in this Agreement shall be deemed to be an assignment and a grant
pursuant to the terms of this Agreement by the Depositor to the Trustee, for
the benefit of the Certificateholders, of a security interest in all of the
assets that constitute the Trust Fund, whether now owned or hereafter
acquired.
The Depositor for the benefit of the Certificateholders shall, to
the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the assets of the Trust Fund, such security interest would be
deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement. The
Depositor shall arrange for filing any Uniform Commercial Code continuation
statements in connection with any security interest granted or assigned to the
Trustee for the benefit of the Certificateholders.
Section 10.05 Notices.
(a) The Trustee shall use its best efforts to promptly provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Event of Default that has not been
cured;
(iii) The resignation or termination of the Master Servicer or
the Trustee and the appointment of any successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant
to Sections 2.02, 2.03, 2.04 and 3.12; and
(v) The final payment to Certificateholders.
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In addition, the Trustee shall promptly furnish to each Rating
Agency copies of the following:
(i) Each report to Certificateholders described in Section
4.05;
(ii) Each annual statement as to compliance described in
Section 3.17; and
(iii) Each annual independent public accountants' servicing
report described in Section 3.18.
(b) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when sent by facsimile
transmission, first class mail or delivered to (i) in the case of the
Depositor, CWABS, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxx Xxxxx, with a copy to the same address, Attention: Legal
Department; (ii) in the case of the Seller, Countrywide Home Loans, Inc., 0000
Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx Xxxxx, with a copy
to the same address, Attention: Legal Department, or such other address as may
be hereafter furnished to the Depositor and the Trustee by the Master Servicer
in writing; (iii) in the case of the Master Servicer, Countrywide Home Loans
Servicing LP, 000 Xxxxxxxxxxx Xxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxx Xxxx or such other address as may be hereafter furnished to the Depositor
and the Trustee by the Master Servicer in writing; (iv) in the case of the
Trustee, The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust MBS Administration, CWABS, Series 2004-S1, or such
other address as the Trustee may hereafter furnish to the Depositor or the
Master Servicer; (v) in the case of the Co-Trustee, Xxxxx Fargo Bank, National
Association, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000-0000, Attention: CWABS Series 2004-S1, with a copy to: Xxxxx Fargo Bank,
National Association, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trust Services - CWABS Series 2004-S1; and (vi) in the
case of the Rating Agencies, (x) Xxxxx'x Investors Service, Inc., Attention:
ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 and (y) Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Attention: Mortgage Surveillance Group, 00 Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. Notices to Certificateholders shall be
deemed given when mailed, first class postage prepaid, to their respective
addresses appearing in the Certificate Register.
Section 10.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.07 Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided pursuant to Section 6.02, this Agreement may not be assigned by the
Master Servicer without the prior written consent of the Trustee and the
Depositor.
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Section 10.08 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the Trust Fund, or otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth or contained in the terms of the Certificates
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be
under any liability to any third party by reason of any action taken by the
parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
hereinbefore provided, the Holders of Certificates evidencing not less than
25% of the Voting Rights evidenced by the Certificates shall also have made
written request to the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses, and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity shall have
neglected or refused to institute any such action, suit or proceeding; it
being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the Holders of
any other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Agreement, except in the manner herein provided and for the common benefit of
all Certificateholders. For the protection and enforcement of the provisions
of this Section 10.08, each and every Certificateholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Section 10.09 Inspection and Audit Rights.
The Master Servicer agrees that, on reasonable prior notice, it will
permit any representative of the Depositor, the Seller or the Trustee during
the Master Servicer's normal business hours, to examine all the books of
account, records, reports and other papers of the Master Servicer relating to
the Mortgage Loans, to make copies and extracts therefrom, to cause such books
to be audited by independent certified public accountants selected by the
Depositor, the Seller or the Trustee and to discuss its affairs, finances and
accounts relating to the Mortgage Loans with its officers, employees and
independent public accountants (and by this provision the Master Servicer
hereby authorizes such accountants to discuss with such representative such
affairs, finances and accounts), all at such reasonable times and as often as
may be reasonably
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requested. Any out-of-pocket expense incident to the exercise by the
Depositor, the Seller or the Trustee of any right under this Section 10.09
shall be borne by the party requesting such inspection; all other such
expenses shall be borne by the Master Servicer.
Section 10.10 Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall
not be personally liable for obligations of the Trust Fund, that the interests
in the Trust Fund represented by the Certificates shall be nonassessable for
any reason whatsoever, and that the Certificates, upon due authentication
thereof by the Trustee pursuant to this Agreement, are and shall be deemed
fully paid.
* * *
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IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Seller,
the Trustee and the Co-Trustee have caused their names to be signed hereto by
their respective officers thereunto duly authorized as of the day and year
first above written.
CWABS, INC.,
as Depositor
By: /s/ Xxxx Xxxxxxx, Xx.
-----------------------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.,
as Seller
By: /s/ Xxxx Xxxxxxx, Xx.
-----------------------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: Senior Vice President
COUNTRYWIDE HOME LOANS SERVICING LP,
as Master Servicer
By: COUNTRYWIDE GP, INC.
By: /s/ Xxxx Xxxxxxx, Xx.
------------------------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: Vice President
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Treasurer
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Co-Trustee
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK
(solely with respect to its
obligations under Section 4.01(d))
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
CWABS-2004-S1
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On this 29thth day of December, 2004, before me, a notary public in
and for said State, appeared Xxxx Xxxxxxx, Xx., personally known to me on the
basis of satisfactory evidence to be the Senior Vice President of Countrywide
Home Loans, Inc., one of the corporations that executed the within instrument,
and also known to me to be the person who executed it on behalf of such
corporation and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxx
-----------------
Notary Public
[Notarial Seal]
Xxxxxx X. Xxxxxx
Commission # 1325392
Notary Public - California
Los Angeles County
My Comm. Expires Oct 15, 0000
XXXXX XX XXXXXXXXXX )
) ss.:
COUNTY OF LOS ANGELES )
On this 29th day of December, 2004, before me, a notary public in
and for said State, appeared Xxxx Xxxxxxx, Xx., personally known to me on the
basis of satisfactory evidence to be the Vice President of Countrywide GP,
Inc., the parent company of Countrywide Home Loans Servicing LP, one of the
organizations that executed the within instrument, and also known to me to be
the person who executed it on behalf of such limited partnership and
acknowledged to me that such limited partnership executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxx
-----------------
Notary Public
[Notarial Seal]
Xxxxxx X. Xxxxxx
Commission # 1325392
Notary Public - California
Los Angeles County
My Comm. Expires Oct 15, 0000
XXXXX XX XXXXXXXXXX )
) ss.:
COUNTY OF LOS ANGELES )
On this 29th day of December, 2004, before me, a notary public in
and for said State, appeared Xxxx Xxxxxxx, Xx., personally known to me on the
basis of satisfactory evidence to be the Vice President of CWABS, Inc., one of
the corporations that executed the within instrument, and also known to me to
be the person who executed it on behalf of such corporation and acknowledged
to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxx
-----------------
Notary Public
[Notarial Seal]
Xxxxxx X. Xxxxxx
Commission # 1325392
Notary Public - California
Los Angeles County
My Comm. Expires Oct 15, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this 29th day of December, 2004, before me, a notary public in
and for said State, appeared Xxxxx Xxxxxx, personally known to me on the basis
of satisfactory evidence to be an Assistant Treasurer of The Bank of New York,
a New York banking corporation that executed the within instrument, and also
known to me to be the person who executed it on behalf of such corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx X. Xxxxx
------------------------------
Notary Public
[Notarial Seal]
Xxxxxx X. Xxxxx III
Notary Public, State of New York
No. 01TR6115018
Qualified in New York County
Commission Expires 08/30/2008
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 29th day of December, 2004, before me, a notary public in
and for said State, appeared Xxxx Xxxxxxxx, personally known to me on the
basis of satisfactory evidence to be a Vice President of The Bank of New York,
a New York banking corporation that executed the within instrument, and also
known to me to be the person who executed it on behalf of such corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxx
------------------------
Notary Public
[Notarial Seal]
Xxxxx Xxxxxx
Notary Public, State of New York
No. 01KA4994374
Qualified in Nassau County
Commission Expires April 6, 0000
XXXXX XX XXXXXXXX )
) ss.:
COUNTY OF XXXXXX )
On this 29th day of December, 2004, before me, a notary public in
and for said State, appeared Xxxxx X. Xxxxxx, personally known to me on the
basis of satisfactory evidence to be the Vice President of Xxxxx Fargo Bank,
National Association that executed the within instrument, and also known to me
to be the person who executed it on behalf of such corporation, and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxx
---------------------------------
Notary Public
[Notarial Seal]
Xxxxxxxx X. Xxxx
Notary Public
Xxxxxx County
Maryland
My Commission Expired Feb. 22, 2005
Exhibit A-1
through X-0
Xxxxxxxx X-0 through A-8 are
photocopies of such Certificates as
delivered.
[See appropriate documents delivered at closing.]
A-1
Exhibit B
[Reserved]
B-1
Exhibit C
[Reserved]
C-1
Exhibit D
Exhibit D is a photocopy
of the Class A-R Certificate
as delivered.
[See appropriate documents delivered at closing.]
D-1
Exhibit E
Exhibit E is a photocopy
of the Tax Matters Person Certificate
as delivered.
[See appropriate documents delivered at closing.]
E-1
Exhibit F-1 and F-2
Exhibit F-1 and F-2 are schedules of Mortgage Loans
[Delivered to Trustee at closing and on file with the Trustee.]
F-1
EXHIBIT G-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[Date]
[Depositor]
[Seller]
[Master Servicer]
Re: Pooling and Servicing Agreement dated as of December 1, 2004
among CWABS, Inc., as Depositor, Countrywide Home Loans,
Inc., as Seller , Countrywide Home Loans Servicing LP, as
Master Servicer, The Bank of New York, as Trustee, and Xxxxx
Fargo Bank, National Association, as Co-Trustee, relating to the
Asset-Backed Certificates, Series 2004-S1
----------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that, as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed in the attached list of exceptions) the
Trustee has received:
(i) the original Mortgage Note, endorsed by the Seller or the originator
of such Mortgage Loan, without recourse in the following form: "Pay to the
order of , without recourse", or, if the original Mortgage Note has been lost
or destroyed and not replaced, an original lost note affidavit from the
Seller, stating that the original Mortgage Note was lost or destroyed,
together with a copy of the related Mortgage Note; and
(ii) a duly executed assignment of the Mortgage in the form permitted by
Section 2.01 of the Pooling and Servicing Agreement referred to above.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Mortgage Loans identified on the Mortgage Loan Schedule or (ii) the
collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan.
G-1-1
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
The Bank of New York,
as Trustee
By:
------------------------------
Name:
Title:
G-1-2
EXHIBIT G-2
FORM OF INTERIM CERTIFICATION OF TRUSTEE
[Date]
[Depositor]
[Seller]
[Master Servicer]
Re: Pooling and Servicing Agreement dated as of December 1, 2004
among CWABS, Inc., as Depositor, Countrywide Home Loans, Inc.,
as Seller, Countrywide Home Loans Servicing LP, as Master
Servicer, The Bank of New York, as Trustee, and Xxxxx Fargo
Bank, National Association, as Co-Trustee, relating to the
Asset-Backed Certificates, Series 2004-S1
-------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that,
except as listed in the following paragraph, as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or
listed on the attached list of exceptions) the Trustee has received:
(i) original Mortgage Note, endorsed by the Seller or the originator of
such Mortgage Loan, without recourse in the following form: "Pay to
the order of _______________ without recourse", with all intervening
endorsements that show a complete chain of endorsement from the
originator to the Seller, or, if the original Mortgage Note has been
lost or destroyed and not replaced, an original lost note affidavit
from the Seller, stating that the original Mortgage Note was lost or
destroyed, together with a copy of the related Mortgage Note;
(ii) the case of each Mortgage Loan that is not a MERS Mortgage Loan, the
original recorded Mortgage, [and in the case of each Mortgage Loan
that is a MERS Mortgage Loan, the original Mortgage, noting thereon
the presence of the MIN of the Mortgage Loan and language indicating
that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM
Loan, with evidence of recording indicated thereon, or a copy of the
Mortgage certified by the public recording office in which such
Mortgage has been recorded];
(iii) the case of each Mortgage Loan that is not a MERS Mortgage Loan, a
duly executed assignment of the Mortgage to "Asset-Backed
Certificates, Series 2004-S1 CWABS, Inc., by The Bank of New York, a
New York banking corporation, as trustee under the Pooling and
Servicing Agreement dated as of December 1, 2004, without recourse,"
or, in the case of each Mortgage Loan with respect to
G-2-1
property located in the State of California that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage in blank
(each such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which such
assignment relates);
(iv) original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage
[(noting the presence of a MIN in the case of each MERS
Mortgage Loan)];
(v) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any, with
evidence of recording thereon if recordation thereof is
permissible under applicable law; and
(vi) the original or duplicate original lender's title policy or a
printout of the electronic equivalent and all riders thereto
or, in the event such original title policy has not been
received from the insurer, any one of an original title binder,
an original preliminary title report or an original title
commitment, or a copy thereof certified by the title company,
with the original policy of title insurance to be delivered
within one year of the Closing Date.
In the event that in connection with any Mortgage Loan that is not a MERS
Mortgage Loan the Seller cannot deliver the original recorded Mortgage or all
interim recorded assignments of the Mortgage satisfying the requirements of
clause (ii), (iii) or (iv), as applicable, the Trustee has received, in lieu
thereof, a true and complete copy of such Mortgage and/or such assignment or
assignments of the Mortgage, as applicable, each certified by the Seller, the
applicable title company, escrow agent or attorney, or the originator of such
Mortgage Loan, as the case may be, to be a true and complete copy of the
original Mortgage or assignment of Mortgage submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Mortgage Loan, and (ii) the information set forth in items (i), (iv), (v),
(vi), (viii), (xi) and (xiv) of the definition of the "Mortgage Loan Schedule"
in Section 1.01 of the Pooling and Servicing Agreement accurately reflects
information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Mortgage Loan identified on the Mortgage Loan Schedule or (ii) the
collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan.
G-2-2
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
The Bank of New York,
as Trustee
By:
------------------------------
Name:
Title:
G-2-3
EXHIBIT G-3
FORM OF DELAY DELIVERY CERTIFICATION
[Date]
[Depositor]
[Seller]
[Master Servicer]
Re: Pooling and Servicing Agreement dated as of December 1, 2004
(the "Pooling and Servicing Agreement") among CWABS, Inc., as
Depositor, Countrywide Home Loans, Inc., as Seller, Countrywide
Home Loans Servicing LP, as Master Servicer, The Bank of New
York, as Trustee, and Xxxxx Fargo Bank, National Association,
as Co-Trustee, relating to the Asset-Backed Certificates,
Series 2004-S1
----------------------------------------------------------------
Ladies and Gentlemen:
[Reference is made to the Initial Certification of Trustee relating to
the above-referenced series, with the schedule of exceptions attached thereto,
delivered by the undersigned, as Trustee, on the Closing Date in accordance
with Section 2.02 of the above-captioned Pooling and Servicing Agreement.] The
undersigned hereby certifies that as to each Delay Delivery Mortgage Loan
listed on the Schedule A attached hereto (other than any Mortgage Loan paid in
full or listed on Schedule B attached hereto) the Trustee has received:
(i) the original Mortgage Note, endorsed by the Seller or the originator
of such Mortgage Loan, without recourse in the following form: "Pay
to the order of _______________ without recourse", with all
intervening endorsements that show a complete chain of endorsement
from the originator to the Seller, or, if the original Mortgage Note
has been lost or destroyed and not replaced, an original lost note
affidavit from the Seller, stating that the original Mortgage Note
was lost or destroyed, together with a copy of the related Mortgage
Note;
(ii) in the case of each Mortgage Loan that is not a MERS Mortgage Loan,
a duly executed assignment of the Mortgage to "Asset-Backed
Certificates, Series 2004-S1, CWABS, Inc., by The Bank of New York,
a New York banking corporation, as trustee under the Pooling and
Servicing Agreement dated as of December 1, 2004, without recourse",
or, in the case of each Mortgage Loan with respect to property
located in the State of California that is not a MERS Mortgage Loan,
a duly executed assignment of the Mortgage in blank (each such
assignment, when duly and validly completed, to be in recordable
form and sufficient to effect the assignment of and transfer to the
assignee thereof, under the Mortgage to which such assignment
relates).
G-3-1
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.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Mortgage Loans identified on the Mortgage Loan Schedule or (ii) the
collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
The Bank of New York,
as Trustee
By:
------------------------------
Name:
Title:
G-3-2
EXHIBIT H
FORM OF FINAL CERTIFICATION OF TRUSTEE
[Date]
[Depositor]
[Master Servicer]
[Seller]
Re: Pooling and Servicing Agreement dated as of December 1, 2004 among
CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as Seller,
Countrywide Home Loans Servicing LP, as Master Servicer, The Bank of
New York, as Trustee, and Xxxxx Fargo Bank, National Association, as
Co-Trustee, relating to the Asset-Backed Certificates, Series
2004-S1
---------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, as Trustee, hereby certifies that as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the attached Document Exception
Report) the Trustee has received:
(i) the original Mortgage Note, endorsed by the Seller or the originator
of such Mortgage Loan, without recourse in the following form: "Pay to the
order of _________________ without recourse", with all intervening
endorsements that show a complete chain of endorsement from the originator to
the Seller, or, if the original Mortgage Note has been lost or destroyed and
not replaced, an original lost note affidavit from the Seller, stating that
the original Mortgage Note was lost or destroyed, together with a copy of the
related Mortgage Note;
(ii) in the case of each Mortgage Loan that is not a MERS Mortgage Loan,
the original recorded Mortgage, [and in the case of each Mortgage Loan that is
a MERS Mortgage Loan, the original Mortgage, noting thereon the presence of
the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is
a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording
indicated thereon, or a copy of the Mortgage certified by the public recording
office in which such Mortgage has been recorded];
(iii) in the case of each Mortgage Loan that is not a MERS Mortgage Loan,
a duly executed assignment of the Mortgage to "Asset-Backed Certificates,
Series 2004-S1, CWABS, Inc., by The Bank of New York, a New York banking
corporation, as trustee under the Pooling and Servicing Agreement dated as of
December 1, 2004, without recourse", or, in the case of each Mortgage Loan
with respect to property located in the State of California that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage in blank (each such
assignment, when duly and validly completed, to be in recordable form and
sufficient to effect
H-1
the assignment of and transfer to the assignee thereof, under the Mortgage to
which such assignment relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage [(noting the
presence of a MIN in the case of each MERS Mortgage Loan)];
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of recording
thereon if recordation thereof is permissible under applicable law; and
(vi) the original or duplicate original lender's title policy or a
printout of the electronic equivalent and all riders thereto or any one of an
original title binder, an original preliminary title report or an original
title commitment, or a copy thereof certified by the title company.
If the public recording office in which a Mortgage or assignment thereof
is recorded has retained the original of such Mortgage or assignment, the
Trustee has received, in lieu thereof, a copy of the original Mortgage or
assignment so retained, with evidence of recording thereon, certified to be
true and complete by such recording office.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Mortgage Loan, and (ii) the information set forth in items (i), (iv), (v),
(vi), (viii), (xiii) and (xiv) of the definition of the "Mortgage Loan
Schedule" in Section 1.01 of the Pooling and Servicing Agreement accurately
reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Mortgage Loans identified on the Mortgage Loan Schedule or (ii) the
collectibility, insurability, effectiveness or suitability of any such
Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
The Bank of New York,
as Trustee
By:
------------------------------
Name:
Title:
H-2
EXHIBIT I
TRANSFER AFFIDAVIT
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________, the proposed Transferee
of an Ownership Interest in a Class A-R Certificate (the "Certificate")
issued pursuant to the Pooling and Servicing Agreement, dated as of
December 1, 2004 (the "Agreement"), by and among CWABS, Inc., as
depositor (the "Depositor"), Countrywide Home Loans, Inc., as Seller,
Countrywide Home Loans Servicing LP, as Master Servicer, The Bank of New
York, as Trustee, and Xxxxx Fargo Bank, National Association, as
Co-Trustee. Capitalized terms used, but not defined herein or in Exhibit
1 hereto, shall have the meanings ascribed to such terms in the
Agreement. The Transferee has authorized the undersigned to make this
affidavit on behalf of the Transferee.
2. The Transferee is not an employee benefit plan that is subject to Title I
of ERISA or to Section 4975 of the Internal Revenue Code of 1986, nor is
it acting on behalf of or with plan assets of any such plan. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account.
3. The Transferee has been advised of, and understands that (i) a tax will
be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor,
or, if such Transfer is through an agent (which includes a broker,
nominee or middleman) for a Person that is not a Permitted Transferee, on
the agent; and (iii) the Person otherwise liable for the tax shall be
relieved of liability for the tax if the subsequent Transferee furnished
to such Person an affidavit that such subsequent Transferee is a
Permitted Transferee and, at the time of Transfer, such Person does not
have actual knowledge that the affidavit is false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity.
The Transferee understands that such tax will not be imposed for any
period with respect to which the record holder furnishes to the
pass-through entity an affidavit that such record holder is a Permitted
Transferee and the pass-through entity does not have actual knowledge
that such affidavit is false. (For this purpose, a "pass-through entity"
includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain
cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for
another Person.)
I-1
5. The Transferee has reviewed the provisions of Section 5.02(c) of the
Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of
an Ownership Interest in the Certificate including, without limitation,
the restrictions on subsequent Transfers and the provisions regarding
voiding the Transfer and mandatory sales. The Transferee expressly agrees
to be bound by and to abide by the provisions of Section 5.02(c) of the
Agreement and the restrictions noted on the face of the Certificate. The
Transferee understands and agrees that any breach of any of the
representations included herein shall render the Transfer to the
Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any Person to
whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee
will not Transfer its Ownership Interest or cause any Ownership Interest
to be Transferred to any Person that the Transferee knows is not a
Permitted Transferee. In connection with any such Transfer by the
Transferee, the Transferee agrees to deliver to the Trustee a certificate
substantially in the form set forth as Exhibit J to the Agreement (a
"Transferor Certificate") to the effect that such Transferee has no
actual knowledge that the Person to which the Transfer is to be made is
not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the
Class A-R Certificates.
8. The Transferee's taxpayer identification number is _____.
9. The Transferee is a U.S. Person as defined in Code Section 7701(a)(30).
10. The Transferee is aware that the Class A-R Certificates may be
"noneconomic residual interests" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant
purpose of the transfer was to impede the assessment or collection of
tax. In addition, as the holder of a noneconomic residual interest, the
Transferee may incur tax liabilities in excess of any cash flows
generated by the interest and the Transferee hereby represents that it
intends to pay taxes associated with holding the residual interest as
they become due.
11. The Transferee has provided financial statements or other financial
information requested by the Transferor in connection with the transfer
of the Class A-R Certificates to permit the Transferor to assess the
financial capability of the Transferee to pay such taxes.
* * *
I-2
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ____ day of _____________, 20__.
[NAME OF TRANSFEREE]
By:
------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
-------------------------
[Assistant] Secretary
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 Transferee, and acknowledged that he executed
the same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of _______, 20__.
-------------------------------------------
NOTARY PUBLIC
My Commission expires the ___ day of, 20__
I-3
EXHIBIT 1
Certain Definitions
-------------------
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in section 521 of
the Code) that is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by section 511 of the Code on unrelated business taxable
income) on any excess inclusions (as defined in section 860E(c)(1) of the
Code) with respect to any Class A-R Certificate, (iv) rural electric and
telephone cooperatives described in section 1381(a)(2)(C) of the Code, (v) an
"electing large partnership" as defined in Section 775 of the Code, (vi) a
Person that is not a citizen or resident of the United States, a corporation,
partnership, or other entity (treated as a corporation or a partnership for
federal income tax purposes) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, or an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States,
or a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have authority to control all substantial decisions of the trustor
unless such Person has furnished the transferor and the Trustee with a duly
completed Internal Revenue Service Form 4224, and (vii) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the Transfer
of an Ownership Interest in a Class A-R Certificate to such Person may cause
the Trust Fund to fail to qualify as a REMIC at any time that certain
Certificates are Outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in section 7701
of the Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and,
with the exception of the Federal Home Loan Mortgage Corporation, a majority
of its board of directors is not selected by such government unit.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, bank, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency
or political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
EXHIBIT 2
Section 5.02(c) of this Agreement
---------------------------------
(c) Each Person who has or who acquires any Ownership Interest in a
Class A-R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Class A-R
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a Class A-R Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in a Class A-R Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Class A-R Certificate
unless, in addition to the certificates required to be delivered to
the Trustee under subparagraph (b) above, the Trustee shall have
been furnished with an affidavit (a "Transfer Affidavit") of the
initial owner or the proposed transferee in the form attached hereto
as Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest
in a Class A-R Certificate shall agree (A) to obtain a Transfer
Affidavit from any other Person to whom such Person attempts to
Transfer its Ownership Interest in a Class A-R Certificate, (B) to
obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer
of a Class A-R Certificate and (C) not to Transfer its Ownership
Interest in a Class A-R Certificate or to cause the Transfer of an
Ownership Interest in a Class A-R Certificate to any other Person if
it has actual knowledge that such Person is not a Permitted
Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Class A-R Certificate in violation of the provisions
of this Section 5.02(c) shall be absolutely null and void and shall
vest no rights in the purported Transferee. If any purported
transferee shall become a Holder of a Class A-R Certificate in
violation of the provisions of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as
Holder thereof retroactive to the date of registration of Transfer
of such Class A-R Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Class
A-R Certificate that is in fact not permitted by Section 5.02(b) and
this Section 5.02(c) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so
long as the Transfer was registered after receipt of the related
Transfer Affidavit and Transferor Certificate. The Trustee shall be
entitled but not obligated to recover from any Holder of a Class A-R
Certificate that was in fact not a Permitted Transferee at the time
it became a Holder or, at such subsequent time as it became other
than a Permitted Transferee, all payments made on such Class A-R
Certificate at and
after either such time. Any such payments so recovered by the
Trustee shall be paid and delivered by the Trustee to the last
preceding Permitted Transferee of such Certificate.
(v) The Master Servicer shall use its best efforts to make
available, upon receipt of written request from the Trustee, all
information necessary to compute any tax imposed under Section
860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Class A-R Certificate to any Holder who is not a
Permitted Transferee.
The restrictions on Transfers of a Class A-R Certificate set forth
in this Section 5.02(c) shall cease to apply (and the applicable portions of
the legend on a Class A-R Certificate may be deleted) with respect to
Transfers occurring after delivery to the Trustee of an Opinion of Counsel,
which Opinion of Counsel shall not be an expense of the Trustee, the Seller or
the Master Servicer to the effect that the elimination of such restrictions
will not cause the Trust Fund to fail to qualify as a REMIC at any time that
the Certificates are outstanding or result in the imposition of any tax on the
Trust Fund, a Certificateholder or another Person. Each Person holding or
acquiring any Ownership Interest in a Class A-R Certificate hereby consents to
any amendment of this Agreement that, based on an Opinion of Counsel furnished
to the Trustee, is reasonably necessary (a) to ensure that the record
ownership of, or any beneficial interest in, a Class A-R Certificate is not
transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Class
A-R Certificate that is held by a Person that is not a Permitted Transferee to
a Holder that is a Permitted Transferee.
-2-
EXHIBIT J-1
FORM OF TRANSFEROR CERTIFICATE FOR
CLASS A-R CERTIFICATES
Date:
CWABS, Inc.,
as Depositor
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Re: CWABS, Inc. Asset-Backed
Certificates, Series 2004-S1
----------------------------
Ladies and Gentlemen:
In connection with our disposition of the Class A-R Certificates, we
certify that we have no knowledge the Transferee is not a Permitted
Transferee. All capitalized terms used herein but not defined herein shall
have the meanings assigned to them in the Pooling and Servicing Agreement
dated as of December 1, 2004, among CWABS, Inc., as Depositor, Countrywide
Home Loans, Inc., as Seller, Countrywide Home Loans Servicing LP, as Master
Servicer, The Bank of New York, as Trustee, and Xxxxx Fargo Bank, National
Association, as Co-Trustee.
Very truly yours,
-----------------------------
Name of Transferor
By:
-----------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF TRANSFEROR CERTIFICATE FOR
PRIVATE CERTIFICATES
Date:
CWABS, Inc.,
as Depositor
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
The Bank of New York,
as Trustee
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: CWABS, Inc. Asset-Backed
Certificates, Series 2004-S1
----------------------------
Ladies and Gentlemen:
In connection with our disposition of the above-captioned
Certificates we certify that (a) we understand that the Certificates have not
been registered under the Securities Act of 1933, as amended (the "Act"), and
are being disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act. All capitalized terms used herein but not
defined herein shall have the meanings assigned to them in the Pooling and
Servicing Agreement dated as of December 1, 2004, among CWABS, Inc., as
Depositor, Countrywide Home Loans, Inc., as Seller, Countrywide Home Loans
Servicing LP, as Master Servicer, The Bank of New York, as Trustee, and Xxxxx
Fargo Bank, National Association, as Co-Trustee and relating to the
above-captioned certificates.
Very truly yours,
-----------------------------
Name of Transferor
By:
-----------------------------
Name:
Title:
J-2-1
EXHIBIT K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
Date:
CWABS, Inc.,
as Depositor
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
The Bank of New York,
as Trustee
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: CWABS, Inc. Asset-Backed
Certificates, Series 2004-S1
----------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned
Certificates we certify that (a) we understand that the Certificates are not
being registered under the Securities Act of 1933, as amended (the "Act"), or
any state securities laws and are being transferred to us in a transaction
that is exempt from the registration requirements of the Act and any such
laws, (b) we are an "accredited investor," as defined in Regulation D under
the Act, and have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of investments
in the Certificates, (c) we have had the opportunity to ask questions of and
receive answers from the Depositor concerning the purchase of the Certificates
and all matters relating thereto or any additional information deemed
necessary to our decision to purchase the Certificates, (d) either (i) we are
not an employee benefit plan that is subject to the Employee Retirement Income
Security Act of 1974, as amended, or a plan or arrangement that is subject to
Section 4975 of the Internal Revenue Code of 1986, as amended, nor are we
acting on behalf of any such plan or arrangement, nor are we using the assets
of any such plan or arrangement to effect such acquisition or (ii) if the
Certificates have been the subject of an ERISA-Qualifying Underwriting, we are
an insurance company which is purchasing such Certificates with funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and the purchase and holding of such Certificates are covered under
Sections I and III of PTCE 95-60, (e) we are acquiring the Certificates for
investment for our own account and not with a view to any distribution of such
Certificates (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificates in accordance with clause (g) below),
(f) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, or taken any other action which would
result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer
K-1
or otherwise dispose of any Certificates unless (1) such sale, transfer or
other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory
to the addressees of this Certificate that such sale, transfer or other
disposition may be made pursuant to an exemption from the Act, (2) the
purchaser or transferee of such Certificate has executed and delivered to you
a certificate to substantially the same effect as this certificate, and (3)
the purchaser or transferee has otherwise complied with any conditions for
transfer set forth in the Pooling and Servicing Agreement.
All capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement dated as
of December 1, 2004, among CWABS, Inc., as Depositor, Countrywide Home Loans,
Inc., as Seller, Countrywide Home Loans Servicing LP, as Master Servicer, The
Bank of New York, as Trustee, and Xxxxx Fargo Bank, National Association, as
Co-Trustee and relating to the above-captioned certificates.
Very truly yours,
___________________________________
Name of Transferee
By: _______________________________
Authorized Officer
K-2
EXHIBIT L
FORM OF RULE 144A LETTER
Date:
CWABS, Inc.,
as Depositor
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
The Bank of New York,
as Trustee
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: CWABS, Inc. Asset-Backed
Certificates Series 2004-S1
---------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above-captioned
Certificates we certify that (a) we understand that the Certificates are not
being registered under the Securities Act of 1933, as amended (the "Act"), or
any state securities laws and are being transferred to us in a transaction
that is exempt from the registration requirements of the Act and any such
laws, (b) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of investments
in the Certificates, (c) we have had the opportunity to ask questions of and
receive answers from the Depositor concerning the purchase of the Certificates
and all matters relating thereto or any additional information deemed
necessary to our decision to purchase the Certificates, (d) either (i) we are
not an employee benefit plan that is subject to the Employee Retirement Income
Security Act of 1974, as amended, or a plan or arrangement that is subject to
Section 4975 of the Internal Revenue Code of 1986, as amended, nor are we
acting on behalf of any such plan or arrangement, nor are we using the assets
of any such plan or arrangement to effect such acquisition or (ii) if the
Certificates have been the subject of an ERISA-Qualifying Underwriting, we are
an insurance company which is purchasing such Certificates with funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and the purchase and holding of such Certificates are covered under
Sections I and III of PTCE 95-60, (e) we have not, nor has anyone acting on
our behalf offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the Certificates or any other similar security
to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Certificates, any interest in the Certificates or any other
similar security from, or otherwise approached or negotiated with respect to
the Certificates, any interest in the Certificates or any other similar
security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other
action, that would constitute a
L-1
distribution of the Certificates under the Securities Act or that would render
the disposition of the Certificates a violation of Section 5 of the Securities
Act or require registration pursuant thereto, nor will act, nor has authorized
or will authorize any person to act, in such manner with respect to the
Certificates, (f) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act and have completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex 2.
We are aware that the sale to us is being made in reliance on Rule 144A. We
are acquiring the Certificates for our own account or for resale pursuant to
Rule 144A and further, understand that such Certificates may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
All capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement dated as
of December 1, 2004, among CWABS, Inc., as Depositor, Countrywide Home Loans,
Inc., as Seller, Countrywide Home Loans Servicing LP, as Master Servicer, The
Bank of New York, as Trustee, and Xxxxx Fargo Bank, National Association, as
Co-Trustee and relating to the above-captioned certificates.
Very truly yours,
___________________________________
Name of Transferee
By: _______________________________
Authorized Officer
L-2
ANNEX 1 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer
of the Buyer.
In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the
Buyer owned and/or invested on a discretionary basis either at least
$100,000 in securities or, if Buyer is a dealer, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in
securities (except for the excluded securities referred to below) as
of the end of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A) and (ii) the Buyer
satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or
territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached
hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of
L-3
risks underwritten by insurance companies and which is subject
to supervision by the insurance commissioner or a similar
official or agency of a State, territory or the District of
Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
___ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940.
The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part
of an unsold allotment to or subscription by the Buyer, if the Buyer is a
dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of
deposit, (v) loan participations, (vi) repurchase agreements, (vii)
securities owned but subject to a repurchase agreement and (viii)
currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph, except (i) where the
Buyer reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect
to the cost of those securities has been published. If clause (ii) in the
preceding sentence applies, the securities may be valued at market.
Further, in determining such aggregate amount, the Buyer may have
included securities owned by subsidiaries of the Buyer, but only if such
subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and
if the investments of such subsidiaries are managed under the Buyer's
direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the
Buyer is not itself a reporting company under the Securities Exchange Act
of 1934, as amended.
The Buyer acknowledges that it is familiar with Rule 144A and understands
that the seller to it and other parties related to the Certificates are
relying and will continue to rely on the statements made herein because
one or more sales to the Buyer may be in reliance on Rule 144A.
L-4
Until the date of purchase of the Rule 144A Securities, the Buyer will
notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is
given, the Buyer's purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Buyer is a bank or savings and loan is provided above,
the Buyer agrees that it will furnish to such parties updated annual
financial statements promptly after they become available.
------------------------------------
Print Name of Buyer
By:
---------------------------------
Name:
Title:
Date:
-------------------------------
L-5
ANNEX 2 TO EXHIBIT L
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
___ In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A
because (i) the Buyer is an investment company registered under
the Investment Company Act of 1940, as amended and (ii) as
marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities
(other than the excluded securities referred to below) as of
the end of the Buyer's most recent fiscal year. For purposes of
determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such
securities was used, except (i) where the Buyer or the Buyer's
Family of Investment Companies reports its securities holdings
in its financial statements on the basis of their market value,
and (ii) no current information with respect to the cost of
those securities has been published. If clause (ii) in the
preceding sentence applies, the securities may be valued at
market.
___ The Buyer owned $ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance
with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance
with Rule 144A).
The term "Family of Investment Companies" as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family
of Investment Companies, (ii) securities issued or guaranteed by the U.S. or
any instrumentality thereof, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi)
L-6
securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
The Buyer is familiar with Rule 144A and under-stands that the parties listed
in the Rule 144A Transferee Certificate to which this certification relates
are relying and will continue to rely on the statements made herein because
one or more sales to the Buyer will be in reliance on Rule 144A. In addition,
the Buyer will only purchase for the Buyer's own account.
Until the date of purchase of the Certificates, the undersigned will notify
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
-----------------------------------
Print Name of Buyer or Adviser
By:
-------------------------------
Name:
Title:
IF AN ADVISER:
-------------------------------------
Print Name of Buyer
Date:
--------------------------------
L-7
EXHIBIT M
FORM OF REQUEST FOR DOCUMENT RELEASE
Loan Information
----------------
Name of Mortgagor: ______________________________
Master Servicer
Loan No.: ______________________________
Trustee
-------
Name: ______________________________
Address: ______________________________
Trustee
Mortgage File No.: ______________________________
The undersigned Master Servicer hereby acknowledges that it has
received from _______________________________________, as Trustee for the
Holders of Asset-Backed Certificates, Series 2004-S1, the documents referred
to below (the "Documents"). All capitalized terms not otherwise defined in
this Request for Release shall have the meanings given them in the Pooling and
Servicing Agreement dated as of December 1, 2004 (the "Pooling and Servicing
Agreement") among CWABS, Inc., as Depositor, Countrywide Home Loans, Inc., as
Seller, Countrywide Home Loans Servicing LP, as Master Servicer, the Trustee
and the Co-Trustee.
( ) Mortgage Note dated ___________, ____, in the original principal sum of
$________, made by __________________, payable to, or endorsed to the
order of, the Trustee.
( ) Mortgage recorded on _________________ as instrument no.
________________ in the County Recorder's Office of the County of
________________, State of _______________ in book/reel/docket
_______________ of official records at page/image _____________.
( ) Deed of Trust recorded on _________________ as instrument no.
________________ in the County Recorder's Office of the County of
________________, State of _______________ in book/reel/docket
_______________ of official records at page/image _____________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
_________________ as instrument no. __________ in the County Recorder's
Office of the County of __________, State of _______________ in
book/reel/docket
M-1
_______________ of official records at page/image _____________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( ) ----------------------------------------------
( ) ----------------------------------------------
( ) ----------------------------------------------
( ) ----------------------------------------------
The undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The Master Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trust Fund, solely for the
purposes provided in the Agreement.
(2) The Master Servicer shall not cause or knowingly permit the
Documents to become subject to, or encumbered by, any claim, liens,
security interest, charges, writs of attachment or other impositions nor
shall the Master Servicer assert or seek to assert any claims or rights
of setoff to or against the Documents or any proceeds thereof.
(3) The Master Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when the need
therefor no longer exists, unless the Mortgage Loan relating to the
Documents has been liquidated and the proceeds thereof have been remitted
to the Certificate Account and except as expressly provided in the
Agreement.
(4) The Documents and any proceeds thereof, including any proceeds
of proceeds, coming into the possession or control of the Master Servicer
shall at all times be earmarked for the account of the Trust Fund, and
the Master Servicer shall keep the Documents and any proceeds separate
and distinct from all other property in the Master Servicer's possession,
custody or control.
[Master Servicer]
By ______________________________________
Its _____________________________________
Date: _________________, ____
M-2
EXHIBIT N
FORM OF REQUEST FOR FILE RELEASE
OFFICER'S CERTIFICATE AND TRUST RECEIPT
ASSET-BACKED CERTIFICATES,
Series 2004-S1
__________________________________________ HEREBY CERTIFIES THAT HE/SHE IS AN
OFFICER OF THE MASTER SERVICER, HOLDING THE OFFICE SET FORTH BENEATH HIS/HER
SIGNATURE, AND HEREBY FURTHER CERTIFIES AS FOLLOWS:
WITH RESPECT TO THE MORTGAGE LOANS, AS THE TERM IS DEFINED IN THE POOLING AND
SERVICING AGREEMENT DESCRIBED IN THE ATTACHED SCHEDULE:
[ALL PAYMENTS OF PRINCIPAL AND INTEREST HAVE BEEN MADE.] [THE [PURCHASE PRICE]
[MORTGAGE LOAN REPURCHASE PRICE] FOR SUCH MORTGAGE LOANS HAS BEEN PAID.] [THE
MORTGAGE LOANS HAVE BEEN LIQUIDATED AND THE RELATED [INSURANCE PROCEEDS]
[LIQUIDATION PROCEEDS] HAVE BEEN DEPOSITED PURSUANT TO SECTION 3.13 OF THE
POOLING AND SERVICING AGREEMENT.] [A REPLACEMENT MORTGAGE LOAN HAS BEEN
DELIVERED TO THE TRUSTEE IN THE MANNER AND OTHERWISE IN ACCORDANCE WITH THE
CONDITIONS SET FORTH IN SECTIONS 2.02 AND 2.03 OF THE POOLING AND SERVICING
AGREEMENT.]
LOAN NUMBER:_______________ BORROWER'S NAME:_____________
COUNTY:____________________
[For Substitution or Repurchase Only: The Master Servicer certifies that [an]
[no] opinion is required by Section 2.05 [and is attached hereto].]
I HEREBY CERTIFY THAT ALL AMOUNTS RECEIVED IN CONNECTION WITH SUCH PAYMENTS,
THAT ARE REQUIRED TO BE DEPOSITED IN THE CERTIFICATE ACCOUNT PURSUANT TO
SECTION 3.05 OF THE POOLING AND SERVICING AGREEMENT, HAVE BEEN OR WILL BE
CREDITED.
_______________________________________ DATED:____________
/ / VICE PRESIDENT
/ / ASSISTANT VICE PRESIDENT
N-1
EXHIBIT O
Exhibit O is a photocopy
of the Depository Agreement
as delivered.
[See appropriate documents delivered at closing.]
O-1
EXHIBIT P
FORM OF MORTGAGE NOTE AND MORTGAGE
[See appropriate documents delivered at closing.]
P-1
EXHIBIT Q
FORM OF CORRIDOR CONTRACT
[See appropriate documents delivered at closing.]
Q-1
EXHIBIT R
FORM OF CORRIDOR CONTRACT ASSIGNMENT AGREEMENT
[See appropriate documents delivered at closing.]
R-1
EXHIBIT S
[Reserved]
S-1
EXHIBIT T
OFFICER'S CERTIFICATE WITH RESPECT TO PREPAYMENTS
ASSET-BACKED CERTIFICATES
Series 2004-S1
[Date]
Via Facsimile
The Bank of New York,
as Trustee
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sir or Madam:
Reference is made to the Pooling and Servicing Agreement, dated as
of December 1, 2004, (the "Pooling and Servicing Agreement") among CWABS,
Inc., as Depositor, Countrywide Home Loans, Inc., as Seller, Countrywide Home
Loans Servicing LP, as Master Servicer, Xxxxx Fargo Bank, National
Association, as Co-Trustee, and The Bank of New York, as Trustee. Capitalized
terms used herein shall have the meanings ascribed to such terms in the
Pooling and Servicing Agreement.
__________________ hereby certifies that he/she is a Servicing
Officer, holding the office set forth beneath his/her name and hereby further
certifies as follows:
With respect to the Distribution Date in _________ 20[ ] and each
Mortgage Loan set forth in the attached schedule:
1. A Principal Prepayment in full or in part was received during the
related Prepayment Period;
2. Any Prepayment Charge due under the terms of the Mortgage Note
with respect to such Principal Prepayment was or was not, as indicated on the
attached schedule using "Yes" or "No", received from the Mortgagor and
deposited in the Certificate Account;
3. As to each Mortgage Loan set forth on the attached schedule for
which all or part of the Prepayment Charge required in connection with the
Principal Prepayment was waived by the Master Servicer, such waiver was, as
indicated on the attached schedule, based upon:
(i) the Master Servicer's determination that such waiver would
maximize recovery of Liquidation Proceeds for such Mortgage Loan, taking
into account the value of such Prepayment Charge, or
(ii)(A) the enforceability thereof is limited (1) by
bankruptcy, insolvency, moratorium, receivership, or other similar law
relating to creditors' rights generally or (2)
T-1
due to acceleration in connection with a foreclosure or other involuntary
payment, or (B) the enforceability is otherwise limited or prohibited by
applicable law; and
4. We certify that all amounts due in connection with the waiver of
a Prepayment Charge inconsistent with clause 3 above which are required to be
deposited by the Master Servicer pursuant to Section 3.20 of the Pooling and
Servicing Agreement, have been or will be so deposited.
COUNTRYWIDE HOME LOANS, INC.,
as Master Servicer
T-2
SCHEDULE OF MORTGAGE LOANS FOR WHICH A PREPAYMENT
WAS RECEIVED DURING THE RELATED PREPAYMENT PERIOD
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Loan Number Clause 2: Yes/No Clause 3: (i) or (ii)
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T-3
SCHEDULE I
PREPAYMENT CHARGE SCHEDULE AND PREPAYMENT CHARGE SUMMARY
[Delivered to Trustee at closing and on file with the Trustee.]
SCHEDULE I-1
