EXHIBIT 4.1
EXECUTION COPY
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Depositor
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
-----------------------------
TRUST AGREEMENT
Dated as of September 1, 2003
-----------------------------
XXXXXXX XXXXX MORTGAGE INVESTORS TRUST
SERIES MLCC 2003-F
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS............................................................................... 17
Section 1.01 Definitions...................................................................... 17
Section 1.02 Calculations Respecting Mortgage Loans........................................... 54
ARTICLE II DECLARATION OF TRUST; ISSUANCE OF CERTIFICATES............................................ 55
Section 2.01 Creation and Declaration of Trust Fund; Conveyance of Mortgage Loans............. 55
Section 2.02 Acceptance of Trust Fund by Trustee; Review of Documentation for Trust Fund...... 57
Section 2.03 Representations and Warranties of the Depositor.................................. 58
Section 2.04 Discovery of Breach; Repurchase or Substitution of Mortgage Loans................ 60
Section 2.05 Grant Clause..................................................................... 63
Section 2.06 Representation and Warranty of the Seller........................................ 64
ARTICLE III THE CERTIFICATES.......................................................................... 65
Section 3.01 The Certificates................................................................. 65
Section 3.02 Registration..................................................................... 66
Section 3.03 Transfer and Exchange of Certificates............................................ 66
Section 3.04 Cancellation of Certificates..................................................... 70
Section 3.05 Replacement of Certificates...................................................... 70
Section 3.06 Persons Deemed Owners............................................................ 70
Section 3.07 Temporary Certificates........................................................... 71
Section 3.08 Appointment of Paying Agent...................................................... 71
Section 3.09 Book-Entry Certificates.......................................................... 71
ARTICLE IV ADMINISTRATION OF THE TRUST FUND.......................................................... 73
Section 4.01 Custodial Accounts; Distribution Account......................................... 73
Section 4.02 Reports to Trustee and Certificateholders........................................ 74
ARTICLE V DISTRIBUTIONS TO HOLDERS OF CERTIFICATES.................................................. 76
Section 5.01 Distributions Generally.......................................................... 76
Section 5.02 Distributions from the Distribution Account...................................... 77
Section 5.03 Allocation of Losses............................................................. 81
Section 5.04 Advances......................................................................... 82
i
Section 5.05 [RESERVED]....................................................................... 82
Section 5.06 [RESERVED]....................................................................... 82
ARTICLE VI CONCERNING THE TRUSTEE; EVENTS OF DEFAULT................................................. 83
Section 6.01 Duties of Trustee................................................................ 83
Section 6.02 Certain Matters Affecting the Trustee............................................ 85
Section 6.03 Trustee Not Liable for Certificates.............................................. 86
Section 6.04 Trustee May Own Certificates..................................................... 87
Section 6.05 Eligibility Requirements for Trustee............................................. 87
Section 6.06 Resignation and Removal of Trustee............................................... 87
Section 6.07 Successor Trustee................................................................ 88
Section 6.08 Merger or Consolidation of Trustee............................................... 88
Section 6.09 Appointment of Co-Trustee, Separate Trustee or Custodian......................... 89
Section 6.10 Authenticating Agents............................................................ 90
Section 6.11 Indemnification of Trustee....................................................... 91
Section 6.12 Fees and Expenses of the Trustee................................................. 92
Section 6.13 Collection of Monies............................................................. 92
Section 6.14 Events of Default; Trustee To Act; Appointment of Successor...................... 92
Section 6.15 Additional Remedies of Trustee Upon Event of Default............................. 93
Section 6.16 Waiver of Defaults............................................................... 94
Section 6.17 Notification to Holders.......................................................... 94
Section 6.18 Directions by Certificateholders and Duties of Trustee During Event of
Default........................................................................ 94
Section 6.19 Preparation of Tax Returns and Other Reports..................................... 95
Section 6.20 Annual Certificate by Trustee.................................................... 96
ARTICLE VII PURCHASE OF MORTGAGE LOANS AND TERMINATION OF THE TRUST FUND.............................. 96
Section 7.01 Purchase of Mortgage Loans; Termination of Trust Fund Upon Purchase or
Liquidation of All Mortgage Loans.............................................. 96
Section 7.02 Procedure Upon Redemption or Termination of Trust Fund........................... 97
Section 7.03 Additional Trust Fund Termination Requirements................................... 98
Section 7.04 [RESERVED]....................................................................... 99
ARTICLE VIII RIGHTS OF CERTIFICATEHOLDERS............................................................. 100
Section 8.01 Limitation on Rights of Holders................................................. 100
ii
Section 8.02 Access to List of Holders....................................................... 101
Section 8.03 Acts of Holders of Certificates................................................. 101
ARTICLE IX [RESERVED]............................................................................... 102
ARTICLE X REMIC ADMINISTRATION..................................................................... 102
Section 10.01 REMIC Administration............................................................ 102
Section 10.02 Prohibited Transactions and Activities.......................................... 106
Section 10.03 Indemnification with Respect to Prohibited Transactions or Loss of REMIC
Status........................................................................ 106
Section 10.04 REO Property.................................................................... 106
ARTICLE XI MISCELLANEOUS PROVISIONS................................................................. 107
Section 11.01 Binding Nature of Agreement; Assignment......................................... 107
Section 11.02 Entire Agreement................................................................ 107
Section 11.03 Amendment....................................................................... 107
Section 11.04 Voting Rights................................................................... 109
Section 11.05 Provision of Information........................................................ 109
Section 11.06 Governing Law................................................................... 110
Section 11.07 Notices......................................................................... 110
Section 11.08 Severability of Provisions...................................................... 110
Section 11.09 Indulgences; No Waivers......................................................... 110
Section 11.10 Headings Not To Affect Interpretation........................................... 110
Section 11.11 Benefits of Agreement........................................................... 111
Section 11.12 Special Notices to the Rating Agencies.......................................... 111
Section 11.13 Conflicts....................................................................... 112
Section 11.14 Counterparts.................................................................... 112
Section 11.15 No Petitions.................................................................... 112
iii
ATTACHMENTS
Exhibit A Forms of Certificates
Exhibit B Form of Residual Certificate Transfer Affidavit (Transferee)
Exhibit C Form of Residual Certificate Transfer Affidavit (Transferor)
Exhibit D Mortgage Loan Servicing Agreement
Exhibit E Master Mortgage Loan Purchase Agreement
Exhibit F List of Limited Purpose Surety Bonds
Exhibit G Form of Rule 144A Transfer Certificate
Exhibit H Form of Purchaser's Letter for Institutional Accredited
Investors
Exhibit I Form of ERISA Transfer Affidavit
Exhibit J Form of Letter of Representations with the Depository Trust
Company
Exhibit K Form of Initial Certification
Exhibit L Form of Final Certification
Exhibit M List of Servicing Officers
Exhibit N Form of Request for Release
Exhibit O Custody Agreement (without Exhibits)
Exhibit P Amendment No. 1 to Custodial Agreement (without Exhibits)
Exhibit Q Officer's Certificate - Trustee
Exhibit R MLBTC Mortgage Loan Purchase Agreement
Schedule A Mortgage Loan Schedule
Schedule B Mortgage Loan Representations and Warranties of the
Originator
iv
This TRUST AGREEMENT, dated as of September 1, 2003 (the "Agreement"),
by and among XXXXXXX XXXXX MORTGAGE INVESTORS, INC., a Delaware corporation, as
depositor (the "Depositor"), and XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee (the "Trustee"), and acknowledged by XXXXXXX XXXXX
CREDIT CORPORATION a Delaware corporation, as originator (the "Originator"), for
purposes of Section 2.04 and XXXXXXX XXXXX BANK & TRUST CO., an affiliate of
Xxxxxxx Xxxxx Credit Corporation, a New Jersey bank, as originator ("MLBTC"),
for purposes of Section 2.04.
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans originated by the
Originator from Sequoia Residential Funding Inc., which acquired the Mortgage
Loans from the Seller and at the Closing Date is the owner of the Mortgage Loans
and the other property being conveyed by the Depositor to the Trustee hereunder
for inclusion in the Trust Fund. On the Closing Date, the Depositor will acquire
the Certificates from the Trustee as consideration for the Depositor's transfer
to the Trust Fund of the Mortgage Loans and the other property constituting the
Trust Fund. The Depositor has duly authorized the execution and delivery of this
Agreement to provide for the conveyance to the Trustee of the Mortgage Loans and
the other property constituting the Trust Fund. All covenants and agreements
made by the Originator in the Mortgage Loan Purchase and Sale Agreement , by
MLBTC in the MLBTC Mortgage Loan Purchase Agreement, by both the Originator and
MLBTC in this Agreement and by the Depositor and the Trustee herein with respect
to the Mortgage Loans and the other property constituting the Trust Fund are for
the benefit of the Holders from time to time of the Certificates. The Depositor
and the Trustee are entering into this Agreement, and the Trustee is accepting
the Trust Fund created hereby, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged.
As provided herein, the Trustee shall elect that the Trust Fund be
treated for federal income tax purposes as comprising five real estate mortgage
investment conduits (each a "REMIC" or, in the alternative, "REMIC 1," "REMIC
2," "REMIC 3," "REMIC 4" and the "Upper Tier REMIC," respectively) in a tiered
structure. The Certificates, other than the Class A-R Certificate, shall
represent ownership of regular interests in the Upper Tier REMIC. For federal
income tax purposes, in addition to representing ownership of a REMIC regular
interest, (i) each of the Class A-1 Certificates represents the right to receive
payments in respect of interest accruals on the Class A-1 Certificates at rates
in excess of the Pool 1 Adjusted Net WAC, including all payments in respect of
Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls, (ii) each of the Class
A-2 Certificates represents the right to receive payments in respect of interest
accruals on the Class A-2 Certificates at rates in excess of the Pool 2 Adjusted
Net WAC, including all payments in respect of Basis Risk Shortfalls and Unpaid
Basis Risk Shortfalls and (iii) each of the Class B-1, Class B-2 and Class B-3
Certificates represents the right to receive payments in respect of Basis Risk
Shortfalls and Unpaid Basis Risk Shortfalls as provided in Section 5.06. For
federal income tax purposes, (i) each Class X-A-1 Certificate will represent two
REMIC regular interests, the rights to receive certain non-REMIC payments from
the holders of the Class X-A-2 Certificates and the obligation to make certain
non-REMIC payments to the holders of the Class A-1 and Class A-2 Certificates,
(ii) each Class X-A-2 Certificate will represent two REMIC regular interests and
the obligation to make certain non-REMIC payments to the holders of the Class
A-1, Class A-2 and Class X-A-1 Certificates and
(iii) each Class X-B Certificate will represent three REMIC regular interests
and the obligation to make certain payments to the holders of the Class B-1,
Class B-2 and Class B-3 Certificates in respect of Basis Risk Shortfalls and
Unpaid Basis Risk Shortfalls. The Class A-R Certificate represents the sole
class of residual interest in each of REMIC 1, REMIC 2, REMIC 3, REMIC 4 and the
Upper Tier REMIC.
The Upper Tier REMIC shall hold as its assets the several classes of
uncertificated REMIC 4 Regular Interests and the uncertificated REMIC 3 IO
Classes. REMIC 4 shall hold as its assets the several classes of uncertificated
REMIC 3 Regular Interests other than the REMIC 3 IO Classes. REMIC 3 shall hold
as its assets the several classes of uncertificated REMIC 2 Regular Interests.
REMIC 2 shall hold as its assets the several uncertificated classes of REMIC 1
Regular Interests. REMIC 1 shall hold as its assets the property of the Trust
Fund other than the REMIC 1 Interests, the REMIC 2 Interests, the REMIC 3
Interests, the REMIC 4 Interests and the interests in the grantor trusts
described herein.
Each Upper Tier REMIC Regular Interest is hereby designated as a
regular interest in the Upper Tier REMIC for purposes of the REMIC Provisions.
Each REMIC 4 Regular Interest is hereby designated as a regular interest in
REMIC 4 for purposes of the REMIC provisions. Each REMIC 3 Regular Interest is
hereby designated as a regular interest in REMIC 3 for purposes of the REMIC
provisions. Each REMIC 2 Regular Interest is hereby designated as a regular
interest in REMIC 2 for purposes of the REMIC provisions. Each REMIC 1 Regular
Interest is hereby designated as a regular interest in REMIC 1 for purposes of
the REMIC Provisions.
The Class LT1-R Interest is hereby designated as the sole class of
residual interest in REMIC 1 for purposes of the REMIC Provisions. The Class
LT2-R Interest is hereby designated as the sole class of residual interest in
REMIC 2 for purposes of the REMIC provisions. The Class LT3-R Interest is hereby
designated as the sole class of residual interest in REMIC 3 for purposes of the
REMIC Provisions. The Class LT4-R Interest is hereby designated as the sole
class of residual interest in REMIC 4 for purposes of the REMIC Provisions. The
Class A-R Certificate, other than the portion thereof representing the right to
receive payments in respect of the Class LT1-R Interest, the Class LT2-R
Interest, the Class LT3-R Interest or the Class LT4-R Interest, is hereby
designated as the sole class of residual interest in the Upper Tier REMIC for
purposes of the REMIC provisions and will also represent the Class LT1-R
Interest, the LT2-R Interest, the Class LT3-R Interest and the Class LT4-R
Interest.
THE REMIC 1 INTERESTS
The following table sets forth (or describes) the class designation,
interest rate, initial principal amount, and related pool of Mortgage Loans for
each class of REMIC 1 Interests:
Interest Related Mortgage Pool or
Class Designation Principal Amount Rate Pools
----------------- ---------------- ---- -----
LT11A $ 268,415.7718 (2) Pool 1
LT11B $ 8,658,416.7718 (3) Pool 1
LT12A $ 86,379.3049 (2) Pool 2
LT12B $ 2,786,379.3049 (4) Pool 2
LT13A $ 55,985.6155 (2) Pool 3
2
LT13B $ 1,805,985.6155 (5) Pool 3
LT1Z $1,311,416,606.8356 (2) Pool 1, Pool 2 and Pool 3
LT1-R (1) (1) N/A
-------------------
(1) The Class LT1-R Interest represents the sole class of residual interest in
REMIC 1 and has neither a principal amount nor an interest rate. The Class
LT1-R Interest shall be represented by the Class A-R Certificate.
(2) The Class LT11A Interest, the Class LT12A Interest, the Class LT13A
Interest and the Class LT1Z Interest shall have an interest rate for each
Distribution Date (and the related Accrual Period) equal to the Net WAC.
(3) The Class LT11B Interest shall have an interest rate for any Distribution
Date (and the related Accrual Period) equal to the Pool 1 Net WAC.
(4) The Class LT12B Interest shall have an interest rate for any Distribution
Date (and the related Accrual Period) equal to the Pool 2 Net WAC.
(5) The Class LT13B Interest shall have an interest rate for any Distribution
Date (and the related Accrual Period) equal to the Pool 3 Net WAC.
On each Distribution Date, the Trustee shall first pay or charge as an
expense of REMIC 1 all expenses of the Trust for such Distribution Date.
Principal distributions shall be deemed to be made on the REMIC 1 Interests
first, so as to keep the uncertificated principal balance of each REMIC 1
Interest ending with the designation "A" equal to 1% of the excess of (x) the
aggregate Principal Balance of the Mortgage Loans in the related Mortgage Pool
over (y) the aggregate class principal amounts of the Certificates in the
Certificate Group related to such Mortgage Pool (except that if 1% of any such
excess is greater than the principal amount of the corresponding REMIC 1
Interest ending with the designation "A", the least amount of principal shall be
distributed to such REMIC 1 Interests such that the REMIC 1 Subordinated Balance
Ratio is maintained); second, to each REMIC 1 Interest ending with the
designation "B" so as to keep the uncertificated principal balance of each such
REMIC 1 Interest equal to 1% of the aggregate Principal Balance of the Mortgage
Loans in the related Mortgage Pool and finally, all remaining principal amounts
shall be distributed in respect of the Class LT1Z Interest. Realized Losses with
respect to principal shall be allocated among the REMIC 1 Interests first, so as
to keep the uncertificated principal balance of each REMIC 1 Interest ending
with the designation "A" equal to 1% of the excess of (x) the aggregate
Principal Balance of the Mortgage Loans in the related Mortgage Pool over (y)
the aggregate class principal amounts of the Certificates in the Certificate
Group related to such Mortgage Pool (except that if 1% of any such excess is
greater than the principal amount of the corresponding REMIC 1 Interest ending
with the designation "A", the least amount of losses shall be allocated to such
REMIC 1 Interests such that the REMIC 1 Subordinated Balance Ratio is
maintained); second, to each REMIC 1 Interest ending with the designation "B" so
as to keep the uncertificated principal balance of each such REMIC 1 Interest
equal to 1% of the aggregate Principal Balance of the Mortgage Loans in the
related Mortgage Pool and finally, all remaining Realized Losses with respect to
principal shall be distributed in respect of the Class LT1Z Interest.
3
All computations with respect to the REMIC 1 Interests shall be
computed to eight decimal places.
THE REMIC 2 INTERESTS
The following table sets forth (or describes) the class designation,
interest rate, and initial principal amount for each class of REMIC 2 Interests:
Interest
Class Designation Principal Amount Rate
----------------- ---------------- ----
LT21A1 $30,531,191.65 (2)
LT21A2 $29,454,604.91 (2)
LT21A3 $28,415,980.63 (2)
LT21A4 $27,413,980.18 (2)
LT21A5 $26,447,312.14 (2)
LT21A6 $25,514,730.61 (2)
LT21A7 $24,615,033.64 (2)
LT21A8 $23,747,061.66 (2)
LT21A9 $22,909,696.01 (2)
LT21A10 $22,101,857.41 (2)
LT21A11 $21,322,504.72 (2)
LT21A12 $20,570,633.45 (2)
LT21A13 $19,845,274.57 (2)
LT21A14 $19,145,493.20 (2)
LT21A15 $18,470,387.41 (2)
LT21A16 $17,819,087.12 (2)
LT21A17 $17,190,752.88 (2)
LT21A18 $16,584,574.90 (2)
LT21A19 $15,999,771.86 (2)
LT21A20 $15,435,590.09 (2)
LT21A21 $14,418,060.34 (2)
LT21A22 $13,901,308.95 (2)
LT21A23 $13,402,926.29 (2)
LT21A24 $12,922,262.05 (2)
LT21A25 $12,458,688.89 (2)
LT21A26 $12,011,601.64 (2)
LT21A27 $11,580,416.53 (2)
LT21A28 $11,164,570.39 (2)
LT21A29 $10,763,519.99 (2)
LT21A30 $10,376,741.25 (2)
LT21A31 $10,003,728.65 (2)
LT21A32 $ 9,643,994.51 (2)
4
LT21A33 $ 9,297,068.39 (2)
LT21A34 $ 8,962,496.52 (2)
LT21A35 $ 8,639,841.09 (2)
LT21A36 $ 8,328,679.83 (2)
LT21A37 $ 7,672,582.25 (2)
LT21A38 $ 7,402,032.71 (2)
LT21A39 $ 7,141,023.22 (2)
LT21A40 $ 6,889,217.44 (2)
LT21A41 $ 6,646,290.79 (2)
LT21A42 $ 6,411,930.18 (2)
LT21A43 $ 6,185,833.58 (2)
LT21A44 $ 5,967,709.55 (2)
LT21A45 $ 5,757,276.98 (2)
LT21A46 $157,514,678.95 (2)
LT21AR $ 100.00 (2)
LT22A1 $ 9,825,292.87 (3)
LT22A2 $ 9,478,834.72 (3)
LT22A3 $ 9,144,593.34 (3)
LT22A4 $ 8,822,137.94 (3)
LT22A5 $ 8,511,052.90 (3)
LT22A6 $ 8,210,937.31 (3)
LT22A7 $ 7,921,404.36 (3)
LT22A8 $ 7,642,080.87 (3)
LT22A9 $ 7,372,606.85 (3)
LT22A10 $ 7,112,634.99 (3)
LT22A11 $ 6,861,830.23 (3)
LT22A12 $ 6,619,869.29 (3)
LT22A13 $ 6,386,440.37 (3)
LT22A14 $ 6,161,242.57 (3)
LT22A15 $ 5,943,985.67 (3)
LT22A16 $ 5,734,389.66 (3)
LT22A17 $ 5,532,184.38 (3)
LT22A18 $ 5,337,109.26 (3)
LT22A19 $ 5,148,912.83 (3)
LT22A20 $ 4,967,352.56 (3)
LT22A21 $ 4,639,899.65 (3)
LT22A22 $ 4,473,603.04 (3)
LT22A23 $ 4,313,217.70 (3)
LT22A24 $ 4,158,534.35 (3)
LT22A25 $ 4,009,351.10 (3)
LT22A26 $ 3,865,473.23 (3)
5
LT22A27 $ 3,726,712.84 (3)
LT22A28 $ 3,592,888.72 (3)
LT22A29 $ 3,463,826.02 (3)
LT22A30 $ 3,339,356.12 (3)
LT22A31 $ 3,219,316.33 (3)
LT22A32 $ 3,103,549.69 (3)
LT22A33 $ 2,991,904.84 (3)
LT22A34 $ 2,884,235.70 (3)
LT22A35 $ 2,780,401.44 (3)
LT22A36 $ 2,680,266.11 (3)
LT22A37 $ 2,469,126.29 (3)
LT22A38 $ 2,382,060.28 (3)
LT22A39 $ 2,298,064.40 (3)
LT22A40 $ 2,217,030.37 (3)
LT22A41 $ 2,138,853.74 (3)
LT22A42 $ 2,063,433.77 (3)
LT22A43 $ 1,990,673.25 (3)
LT22A44 $ 1,920,478.40 (3)
LT22A45 $ 1,852,758.75 (3)
LT22A46 $ 50,690,090.90 (3)
LT23A $175,000,000.00 (4)
LT2B $ 41,078,069.22 (5)
LT2-R (1) (1)
-------------------
(1) The Class LT2-R interest represents the sole class of residual interest in
REMIC 2 and has neither a principal amount nor an interest rate. The Class
LT2-R Interest shall be represented by the Class A-R Certificate.
(2) The interest rate for each of the Class LT21A1 Interest through the Class
LT21A46 Interest and the Class LT21AR Interest for any Distribution Date
(and the related Accrual Period) is a per annum rate equal to the Pool 1
Net WAC.
(3) The interest rate for each of the Class LT22A1 Interest through the Class
LT22A46 Interest for any Distribution Date (and the related Accrual
Period) is a per annum rate equal to the Pool 2 Net WAC.
(4) The interest rate for the Class LT23A Interest for any Distribution Date
(and the related Accrual Period) is a per annum rate equal to the Pool 3
Net WAC.
(5) The interest rate for the Class LT2B Interest for any Distribution Date
(and the related Accrual Period) is a per annum rate equal to the
Subordinate Net WAC, which is the numerical equivalent of the weighted
average of the interest rates on the Class LT11A Interest, the Class LT12A
Interest and the Class LT13A Interest (treating, for purposes of computing
this weighted average, the Class LT11A Interest as subject to a cap and a
floor equal to the interest rate on the Class LT11B Interest, the Class
LT12A Interest as subject to a cap and a floor equal to the interest rate
on the Class LT12B Interest and the Class LT13A Interest as subject to a
cap and a floor equal to the interest rate on the Class LT13B Interest).
6
On each Distribution Date principal payments will be deemed made and
Realized Losses with respect to principal will be allocated among the REMIC 2
Regular Interests as follows: (i) an amount equal to the total principal
distributed in respect of the Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5 and Class B-6 Certificates will be treated as having been distributed in
respect of the Class LT2B Interest in reduction of its principal amount
(treating the initial Class Principal Amount of the Class B-6 Certificates, for
purposes of this clause (i), as being $4,639,069.22 and treating the first $0.22
of payments to the Class A-R Certificate under Section 5.02(a)(vi) from
principal payments on the Mortgage Loans as paid in respect of the Class B-6
Certificates), (ii) the amount of all Realized Losses in respect of principal
allocated to the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class
B-6 Certificates will be allocated to the Class LT2B Interest in reduction of
its principal amount (treating the initial Class Principal Amount of the Class
B-6 Certificates, for purposes of this clause (ii), as being $4,639,069.22 and
disregarding Section 5.03(c) hereof), (iii) an amount equal to the total
principal distributed in respect of the Class A-R Certificates will be treated
as having been distributed in respect of the Class LT21AR Interest in reduction
of its principal amount, (iv) the amount of all Realized Losses in respect of
principal allocated to the Class A-R Certificates will be allocated to the Class
LT21AR Interest in reduction of its principal amount, (v) an amount equal to the
total principal distributed in respect of the Class A-1 Certificates will be
treated as having been distributed in the aggregate in respect of the Class
LT21A1 Interest through the Class LT21A46 Interest in reduction of their
principal amount, (vi) the amount of all Realized Losses in respect of principal
allocated to the Class A-1 Certificates will be allocated in the aggregate to
the Class LT21A1 Interest through the Class LT21A46 Interest in reduction of
their principal amount, (vii) an amount equal to the total principal distributed
in respect of the Class A-2 Certificates will be treated as having been
distributed in the aggregate in respect of the Class LT22A1 Interest through the
Class LT22A46 Interest in reduction of their principal amount, (viii) the amount
of all Realized Losses in respect of principal allocated to the Class A-2
Certificates will be allocated in the aggregate to the Class LT22A1 Interest
through the Class LT22A46 Interest in reduction of their principal amount, (ix)
an amount equal to the total principal distributed in respect of the Class A-3
Certificates will be treated as having been distributed in respect of the Class
LT23A Interest in reduction of its principal amount and (x) the amount of all
Realized Losses in respect of principal allocated to the Class A-3 Certificates
will be allocated to the Class LT23A Interest in reduction of its principal
amount. All principal deemed paid and Realized Losses allocated to the Class
LT21A1 Interest through the Class LT21A46 Interest shall be deemed paid or
allocated first to the Class LT21A1 Interest until its principal balance has
been reduced to zero and to such other REMIC 2 Regular Interests in numerical
order until the principal balance of each in turn has been reduced to zero. All
principal deemed paid and Realized Losses allocated to the Class LT22A1 Interest
through the Class LT22A46 Interest shall be deemed paid or allocated first to
the Class LT22A1 Interest until its principal balance has been reduced to zero
and to such other REMIC 2 Regular Interests in numerical order until the
principal balance of each in turn has been reduced to zero.
THE REMIC 3 INTERESTS
The following table sets forth (or describes) the class designation,
interest rate and initial principal amount for each class of REMIC 3 Interests:
7
Corresponding
Class Interest REMIC 2 Regular
Designation Principal Amount Rate Change Date Interest
----------- ---------------- ---- ----------- --------
LT31A1 $ 30,531,191.65 (3) October 2003 N/A
LT31A2 $ 29,454,604.91 (3) November 2003 N/A
LT31A3 $ 28,415,980.63 (3) December 2003 N/A
LT31A4 $ 27,413,980.18 (3) January 2004 N/A
LT31A5 $ 26,447,312.14 (3) February 2004 N/A
LT31A6 $ 25,514,730.61 (3) March 2004 N/A
LT31A7 $ 24,615,033.64 (3) April 2004 N/A
LT31A8 $ 23,747,061.66 (3) May 2004 N/A
LT31A9 $ 22,909,696.01 (3) June 2004 N/A
LT31A10 $ 22,101,857.41 (3) July 2004 N/A
LT31A11 $ 21,322,504.72 (3) August 2004 N/A
LT31A12 $ 20,570,633.45 (3) September 2004 N/A
LT31A13 $ 19,845,274.57 (3) October 2004 N/A
LT31A14 $ 19,145,493.20 (3) November 2004 N/A
LT31A15 $ 18,470,387.41 (3) December 2004 N/A
LT31A16 $ 17,819,087.12 (3) January 2005 N/A
LT31A17 $ 17,190,752.88 (3) February 2005 N/A
LT31A18 $ 16,584,574.90 (3) March 2005 N/A
LT31A19 $ 15,999,771.86 (3) April 2005 N/A
LT31A20 $ 15,435,590.09 (3) May 2005 N/A
LT31A21 $ 14,418,060.34 (3) June 2005 N/A
LT31A22 $ 13,901,308.95 (3) July 2005 N/A
LT31A23 $ 13,402,926.29 (3) August 2005 N/A
LT31A24 $ 12,922,262.05 (3) September 2005 N/A
LT31A25 $ 12,458,688.89 (3) October 2005 N/A
LT31A26 $ 12,011,601.64 (3) November 2005 N/A
LT31A27 $ 11,580,416.53 (3) December 2005 N/A
LT31A28 $ 11,164,570.39 (3 January 2006 N/A
LT31A29 $ 10,763,519.99 (3) February 2006 N/A
LT31A30 $ 10,376,741.25 (3) March 2006 N/A
LT31A31 $ 10,003,728.65 (3) April 2006 N/A
LT31A32 $ 9,643,994.51 (3) May 2006 N/A
LT31A33 $ 9,297,068.39 (3) June 2006 N/A
LT31A34 $ 8,962,496.52 (3) July 2006 N/A
LT31A35 $ 8,639,841.09 (3) August 2006 N/A
LT31A36 $ 8,328,679.83 (3) September 2006 N/A
LT31A37 $ 7,672,582.25 (3) October 2006 N/A
LT31A38 $ 7,402,032.71 (3) November 2006 N/A
8
LT31A39 $ 7,141,023.22 (3) December 2006 N/A
LT31A40 $ 6,889,217.44 (3) January 2007 N/A
LT31A41 $ 6,646,290.79 (3) February 2007 N/A
LT31A42 $ 6,411,930.18 (3) March 2007 N/A
LT31A43 $ 6,185,833.58 (3) April 2007 N/A
LT31A44 $ 5,967,709.55 (3) May 2007 N/A
LT31A45 $ 5,757,276.98 (3) June 2007 N/A
LT31A46 $157,514,678.95 (3) July 2007 N/A
LT31IO1 (1) (4) October 2003 LT21A1
LT31IO2 (1) (4) November 2003 LT21A2
LT31IO3 (1) (4) December 2003 LT21A3
LT31IO4 (1) (4) January 2004 LT21A4
LT31IO5 (1) (4) February 2004 LT21A5
LT31IO6 (1) (4) March 2004 LT21A6
LT31IO7 (1) (4) April 2004 LT21A7
LT31IO8 (1) (4) May 2004 LT21A8
LT31IO9 (1) (4) June 2004 LT21A9
LT31IO10 (1) (4) July 2004 LT21A10
LT31IO11 (1) (4) August 2004 LT21A11
LT31IO12 (1) (4) September 2004 LT21A12
LT31IO13 (1) (4) October 2004 LT21A13
LT31IO14 (1) (4) November 2004 LT21A14
LT31IO15 (1) (4) December 2004 LT21A15
LT31IO16 (1) (4) January 2005 LT21A16
LT31IO17 (1) (4) February 2005 LT21A17
LT31IO18 (1) (4) March 2005 LT21A18
LT31IO19 (1) (4) April 2005 LT21A19
LT31IO20 (1) (4) May 2005 LT21A20
LT31IO21 (1) (4) June 2005 LT21A21
LT31IO22 (1) (4) July 2005 LT21A22
LT31IO23 (1) (4) August 2005 LT21A23
LT31IO24 (1) (4) September 2005 LT21A24
LT31IO25 (1) (4) October 2005 LT21A25
LT31IO26 (1) (4) November 2005 LT21A26
LT31IO27 (1) (4) December 2005 LT21A27
LT31IO28 (1) (4) January 2006 LT21A28
LT31IO29 (1) (4) February 2006 LT21A29
LT31IO30 (1) (4) March 2006 LT21A30
LT31IO31 (1) (4) April 2006 LT21A31
LT31IO32 (1) (4) May 2006 LT21A32
LT31IO33 (1) (4) June 2006 LT21A33
9
LT31IO34 (1) (4) July 2006 LT21A34
LT31IO35 (1) (4) August 2006 LT21A35
LT31IO36 (1) (4) September 2006 LT21A36
LT31IO37 (1) (4) October 2006 LT21A37
LT31IO38 (1) (4) November 2006 LT21A38
LT31IO39 (1) (4) December 2006 LT21A39
LT31IO40 (1) (4) January 2007 LT21A40
LT31IO41 (1) (4) February 2007 LT21A41
LT31IO42 (1) (4) March 2007 LT21A42
LT31IO43 (1) (4) April 2007 LT21A43
LT31IO44 (1) (4) May 2007 LT21A44
LT31IO45 (1) (4) June 2007 LT21A45
LT31IO46 (1) (4) July 2007 XX00X00
XX00XX $ 100.00 (5) X/X X/X
XX00X0 $ 9,825,292.87 (6) October 2003 N/A
LT32A2 $ 9,478,834.72 (6) November 2003 N/A
LT32A3 $ 9,144,593.34 (6) December 2003 N/A
LT32A4 $ 8,822,137.94 (6) January 2004 N/A
LT32A5 $ 8,511,052.90 (6) February 2004 N/A
LT32A6 $ 8,210,937.31 (6) March 2004 N/A
LT32A7 $ 7,921,404.36 (6) April 2004 N/A
LT32A8 $ 7,642,080.87 (6) May 2004 N/A
LT32A9 $ 7,372,606.85 (6) June 2004 N/A
LT32A10 $ 7,112,634.99 (6) July 2004 N/A
LT32A11 $ 6,861,830.23 (6) August 2004 N/A
LT32A12 $ 6,619,869.29 (6) September 2004 N/A
LT32A13 $ 6,386,440.37 (6) October 2004 N/A
LT32A14 $ 6,161,242.57 (6) November 2004 N/A
LT32A15 $ 5,943,985.67 (6) December 2004 N/A
LT32A16 $ 5,734,389.66 (6) January 2005 N/A
LT32A17 $ 5,532,184.38 (6) February 2005 N/A
LT32A18 $ 5,337,109.26 (6) March 2005 N/A
LT32A19 $ 5,148,912.83 (6) April 2005 N/A
LT32A20 $ 4,967,352.56 (6) May 2005 N/A
LT32A21 $ 4,639,899.65 (6) June 2005 N/A
LT32A22 $ 4,473,603.04 (6) July 2005 N/A
LT32A23 $ 4,313,217.70 (6) August 2005 N/A
LT32A24 $ 4,158,534.35 (6) September 2005 N/A
LT32A25 $ 4,009,351.10 (6) October 2005 N/A
LT32A26 $ 3,865,473.23 (6) November 2005 N/A
LT32A27 $ 3,726,712.84 (6) December 2005 N/A
10
LT32A28 $ 3,592,888.72 (6) January 2006 N/A
LT32A29 $ 3,463,826.02 (6) February 2006 N/A
LT32A30 $ 3,339,356.12 (6) March 2006 N/A
LT32A31 $ 3,219,316.33 (6) April 2006 N/A
LT32A32 $ 3,103,549.69 (6) May 2006 N/A
LT32A33 $ 2,991,904.84 (6) June 2006 N/A
LT32A34 $ 2,884,235.70 (6) July 2006 N/A
LT32A35 $ 2,780,401.44 (6) August 2006 N/A
LT32A36 $ 2,680,266.11 (6) September 2006 N/A
LT32A37 $ 2,469,126.29 (6) October 2006 N/A
LT32A38 $ 2,382,060.28 (6) November 2006 N/A
LT32A39 $ 2,298,064.40 (6) December 2006 N/A
LT32A40 $ 2,217,030.37 (6) January 2007 N/A
LT32A41 $ 2,138,853.74 (6) February 2007 N/A
LT32A42 $ 2,063,433.77 (6) March 2007 N/A
LT32A43 $ 1,990,673.25 (6) April 2007 N/A
LT32A44 $ 1,920,478.40 (6) May 2007 N/A
LT32A45 $ 1,852,758.75 (6) June 2007 N/A
LT32A46 $ 50,690,090.90 (6) July 2007 N/A
LT32IO1 (1) (7) October 2003 LT22A1
LT32IO2 (1) (7) November 2003 LT22A2
LT32IO3 (1) (7) December 2003 LT22A3
LT32IO4 (1) (7) January 2004 LT22A4
LT32IO5 (1) (7) February 2004 LT22A5
LT32IO6 (1) (7) March 2004 LT22A6
LT32IO7 (1) (7) April 2004 LT22A7
LT32IO8 (1) (7) May 2004 LT22A8
LT32IO9 (1) (7) June 2004 LT22A9
LT32IO10 (1) (7) July 2004 LT22A10
LT32IO11 (1) (7) August 2004 LT22A11
LT32IO12 (1) (7) September 2004 LT22A12
LT32IO13 (1) (7) October 2004 LT22A13
LT32IO14 (1) (7) November 2004 LT22A14
LT32IO15 (1) (7) December 2004 LT22A15
LT32IO16 (1) (7) January 2005 LT22A16
LT32IO17 (1) (7) February 2005 LT22A17
LT32IO18 (1) (7) March 2005 LT22A18
LT32IO19 (1) (7) April 2005 LT22A19
LT32IO20 (1) (7) May 2005 LT22A20
LT32IO21 (1) (7) June 2005 LT22A21
LT32IO22 (1) (7) July 2005 LT22A22
11
LT32IO23 (1) (7) August 2005 LT22A23
LT32IO24 (1) (7) September 2005 LT22A24
LT32IO25 (1) (7) October 2005 LT22A25
LT32IO26 (1) (7) November 2005 LT22A26
LT32IO27 (1) (7) December 2005 LT22A27
LT32IO28 (1) (7) January 2006 LT22A28
LT32IO29 (1) (7) February 2006 LT22A29
LT32IO30 (1) (7) March 2006 LT22A30
LT32IO31 (1) (7) April 2006 LT22A31
LT32IO32 (1) (7) May 2006 LT22A32
LT32IO33 (1) (7) June 2006 LT22A33
LT32IO34 (1) (7) July 2006 LT22A34
LT32IO35 (1) (7) August 2006 LT22A35
LT32IO36 (1) (7) September 2006 LT22A36
LT32IO37 (1) (7) October 2006 LT22A37
LT32IO38 (1) (7) November 2006 LT22A38
LT32IO39 (1) (7) December 2006 LT22A39
LT32IO40 (1) (7) January 2007 LT22A40
LT32IO41 (1) (7) February 2007 LT22A41
LT32IO42 (1) (7) March 2007 LT22A42
LT32IO43 (1) (7) April 2007 LT22A43
LT32IO44 (1) (7) May 2007 LT22A44
LT32IO45 (1) (7) June 2007 LT22A45
LT32IO46 (1) (7) July 2007 LT22A46
LT33A $175,000,000.00 (8) X/X X/X
XX0X0 $ 13,913,000.00 (9) X/X X/X
XX0X0 $ 10,600,000.00 (9) X/X X/X
XX0X0 $ 5,963,000.00 (9) X/X X/X
XX0X0 $ 3,313,000.00 (9) X/X X/X
XX0X0 $ 2,650,000.00 (9) X/X X/X
XX0X0 $ 4,639,069.22 (9) N/A N/A
LT3-R (2) (9) N/A N/A
--------------------
(1) Each of the REMIC 3 IO Classes shall be an "interest-only" interest that
has no principal balance. The notional balance of each of the Class
LT31IO1 Interest through the Class LT31IO46 Interest and each of the Class
LT32IO1 Interest through the Class LT32IO46 Interest as of any
Distribution Date on or prior to the applicable Change Date for such Class
shall equal the principal balance of the Corresponding REMIC 2 Regular
Interest immediately prior to such Distribution Date and for subsequent
Distribution Dates shall equal $0.
(2) The Class LT3-R interest represents the sole class of residual interest in
REMIC 3 and has neither a principal amount nor an interest rate. The Class
LT3-R Interest shall be represented by the Class A-R Certificate.
12
(3) For Distribution Dates on or prior to the applicable Change Date, the
interest rate on each of the Class LT31A1 Interest through the Class
LT31A46 Interest shall be the Pool 1 Net WAC minus 100 basis points,
subject to a floor of 0%, and for subsequent Distribution Dates shall be
the Pool 1 Net WAC.
(4) For each Distribution Date, the interest rate on each of the Class LT31IO1
Interest through the Class LT31IO46 Interest shall equal the lesser of (i)
1.00% and (ii) the Pool 1 Net WAC.
(5) For each Distribution Date, the interest rate on the Class LT31AR Interest
shall equal the Pool 1 Net WAC.
(6) For Distribution Dates on or prior to the applicable Change Date, the
interest rate on each of the Class LT32A1 Interest through the Class
LT32A46 Interest shall be the Pool 2 Net WAC minus 100 basis points,
subject to a floor of 0%, and for subsequent Distribution Dates shall be
the Pool 2 Net WAC.
(7) For each Distribution Date, the interest rate on each of the Class LT32IO1
Interest through the Class LT32IO46 Interest shall equal the lesser of (i)
1.00% and (ii) the Pool 2 Net WAC.
(8) For each Distribution Date, the interest rate on the Class LT33A Interest
shall equal the Pool 3 Net WAC.
(9) For each Distribution Date, the interest rate on each of the Class LT3B1
Interest, Class LT3B2 Interest, Class LT3B3 Interest, Class LT3B4
Interest, Class LT3B5 Interest and Class LT3B6 Interest shall equal the
Subordinate Net WAC
On each Distribution Date principal payments will be deemed made and
Realized Losses with respect to principal will be allocated among the REMIC 3
Regular Interests as follows: (i) an amount equal to the principal distributed
in respect of the Class B-1 Certificates, Class B-2 Certificates, Class B-3
Certificates, Class B-4 Certificates, Class B-5 Certificates and Class B-6
Certificates will be treated as having been distributed in respect of the Class
LT3B1 Interest, the Class LT3B2 Interest, the Class LT3B3 Interest, the Class
LT3B4 Interest, the Class LT3B5 Interest and the Class LT3B6 Interest,
respectively, in reduction of their principal amounts (treating the initial
Class Principal Amount of the Class B-6 Certificates, for purposes of this
clause (i), as being $4,639,069.22 and treating the first $0.22 distributed to
the A-R under Section 5.02(a)(vi) from principal payments on the Mortgage Loans
as distributed to the Class B-6 Certificates), (ii) the amount of all Realized
Losses in respect of principal allocated to the Class B-1 Certificates, Class
B-2 Certificates, Class B-3 Certificates, Class B-4 Certificates, Class B-5
Certificates and Class B-6 Certificates will be allocated to the Class LT3B1
Interest, Class LT3B2 Interest, Class LT3B3 Interest, Class LT3B4 Interest,
Class LT3B5 Interest and Class LT3B6 Interest, respectively, in reduction of
their principal amounts (treating the initial Class Principal Amount of the
Class B-6 Certificates, for purposes of this clause (ii), as being $4,639,069.22
and disregarding Section 5.03(c) hereof), (iii) an amount equal to the total
principal distributed in respect of the Class A-R Certificates will be treated
as having been distributed in respect of the Class LT31AR Interest in reduction
of its principal amount, (iv) the amount of all Realized Losses in respect of
principal allocated to the Class A-R Certificates will be allocated to the Class
LT31AR Interest in reduction of its principal amount, (v) an amount equal to the
total principal distributed in respect of the Class A-1 Certificates will be
treated as having been distributed in the aggregate in respect of the Class
LT31A1 Interest through the Class LT31A46 Interest in reduction of their
principal amount, (vi) the amount of all Realized Losses in respect of principal
allocated to the Class A-1 Certificates will be allocated in the aggregate to
the Class LT31A1 Interest through the Class LT31A46 Interest in reduction of
their principal amount, (vii) an amount equal to the total principal distributed
in respect of the Class A-2 Certificates will be treated as having been
distributed in the aggregate in respect of the Class
13
LT32A1 Interest through the Class LT32A46 Interest in reduction of their
principal amount, (viii) the amount of all Realized Losses in respect of
principal allocated to the Class A-2 Certificates will be allocated in the
aggregate to the Class LT32A1 Interest through the Class LT32A46 Interest in
reduction of their principal amount, (ix) an amount equal to the total principal
distributed in respect of the Class A-3 Certificates will be treated as having
been distributed in respect of the Class LT33A Interest in reduction of its
principal amount and (x) the amount of all Realized Losses in respect of
principal allocated to the Class A-3 Certificates will be allocated to the Class
LT33A Interest in reduction of its principal amount. All principal deemed paid
and Realized Losses allocated to the Class LT31A1 Interest through the Class
LT31A46 Interest shall be deemed paid or allocated first to the Class LT31A1
Interest until its principal balance has been reduced to zero and to such other
REMIC 3 Regular Interests in numerical order until the principal balance of each
in turn has been reduced to zero. All principal deemed paid and Realized Losses
allocated to the Class LT32A1 Interest through the Class LT32A46 Interest shall
be deemed paid or allocated first to the Class LT32A1 Interest until its
principal balance has been reduced to zero and to such other REMIC 3 Regular
Interests in numerical order until the principal balance of each in turn has
been reduced to zero.
THE REMIC 4 INTERESTS
The following table sets forth (or describes) the class designation,
interest rate, initial principal amount, and corresponding class of certificates
or components for each class of REMIC 4 Interests:
Interest Corresponding Class of
Class Designation Principal Amount Rate Certificates
----------------- ---------------- -------- ------------
LT4A1 $ 839,000,000.00 (2) Class A-1
LT4A2 $ 270,000,000.00 (3) Class A-2
LT4A3 $ 175,000,000.00 (4) Class A-3
LT4B1 $ 13,913,000.00 (5) Class B-1
LT4B2 $ 10,600,000.00 (5) Class B-2
LT4B3 $ 5,963,000.00 (5) Class B-3
LT4B4 $ 3,313,000.00 (5) Class B-4
LT4B5 $ 2,650,000.00 (5) Class B-5
LT4B6 $ 4,639,069.22 (5) Class B-6
LT4AR $ 100.00 (6) Class A-R
LT4-R (1) (1) N/A
---------------
(1) The Class LT4-R Interest represents the sole class of residual interest
in REMIC 4 and has neither a principal amount nor an interest rate. The
Class LT4-R Interest shall be represented by the Class A-R Certificate.
(2) The Class LT4A1 Interest shall have an interest rate for each
Distribution Date (and the related Accrual Period) equal to the
weighted average of the interest rates on the Class LT31A1 Interest
through the Class LT31A46 Interest, weighted on the basis of their
principal amounts immediately prior to such Distribution Date.
14
(3) The Class LT4A2 Interest shall have an interest rate for each
Distribution Date (and the related Accrual Period) equal to the
weighted average of the interest rates on the Class LT32A1 Interest
through the Class LT32A46 Interest, weighted on the basis of their
principal amounts immediately prior to such Distribution Date.
(4) The Class LT4A3 Interest shall have an interest rate for each
Distribution Date (and the related Accrual Period) equal to the Pool 3
Net WAC.
(5) Each of the Class LT4B1 Interest, the Class LT4B2 Interest, the Class
LT4B3 Interest, the Class LT4B4 Interest, the Class LT4B5 Interest and
the Class LT4B6 Interest shall have an interest rate for each
Distribution Date (and the related Accrual Period) equal to the
Subordinate Net WAC.
(6) The Class LT4AR Interest shall have an interest rate for each
Distribution Date (and the related Accrual Period) equal to the Pool 1
Net WAC.
Principal payments shall be deemed made and Realized Losses with
respect to principal shall be allocated among the REMIC 4 Interests in the same
manner as such payments are made or such Realized Losses are allocated among the
Corresponding Classes of Certificates (treating the initial Class Principal
Amount of the Class B-6 Certificates, for purposes of this sentence, as being
$4,639,069.22, treating the first $0.22 of distributions to the Class A-R
Certificate under Section 5.02(a)(vi) from principal payments on the Mortgage
Loans as distributed to the Class B-6 Certificates and disregarding Section
5.03(c)).
THE CERTIFICATES
The following table sets forth (or describes) the Class designation,
Certificate Interest Rate, initial Class Principal Amount (or initial Class
Notional Amount), and minimum denomination for each Class of Certificates
comprising interests in the Trust Fund created hereunder.
Related Class
or Classes of Initial Class
interests in the Certificate Principal Amount Minimum
Class Upper Tier Interest or Class Notional Denominations or
Designation REMIC Rate Amount Percentage Interest
------------ ------------------ ----------- ----------------- -------------------
Class A-1 Upper Tier (1) $ 25,000.00
REMIC Class
A-1 Interest $839,000,000
Class A-2 Upper Tier (2) $ 25,000.00
REMIC Class
A-2 Interest $270,000,000
Class A-3 Class A-3 (3) $175,000,000 $ 25,000.00
Class X-A-1 Pool 1 REMIC (4) $ 25,000.00
NAS
Component and
Pool 2 REMIC
NAS
Component (4)
15
Class X-A-2 Pool 1 REMIC (5) $ 25,000.00
Companion
Component and Pool
2 REMIC Companion
Component (5)
Class X-B Component XB1, (6) $ 25,000.00
Component XB2 and
Component XB3 (6)
Class A-R Class A-R (7) $ 100 100%
Class B-1 Upper Tier (8) $ 25,000.00
REMIC Class
B-1 Interest $13,913,000
Class B-2 Upper Tier (9) $ 25,000.00
REMIC Class
B-2 Interest $10,600,000
Class B-3 Upper Tier (10) $ 25,000.00
REMIC Class
B-3 Interest $ 5,963,000
Class B-4 Class B-4 (11) $ 3,313,000 $100,000.00
Class B-5 Class B-5 (11) $ 2,650,000 $100,000.00
Class B-6 Class B-6 (11) $ 4,639,069 $100,000.00
--------------------------
(1) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for the Class A-1 Certificates will be
the least of (i) LIBOR plus 0.32%; (ii) the Pool 1 Net WAC and (iii)
11.75%; provided, however, if the Mortgage Loans and related property
are not purchased pursuant to Section 7.01(c) on the Initial Optional
Purchase Date, then with respect to each subsequent Distribution Date
the per annum rate calculated pursuant to clause (i) above with respect
to the Class A-1 Certificates will be LIBOR plus 0.64%.
(2) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for the Class A-2 Certificates will be
the least of (i) LIBOR plus 0.34%; (ii) the Pool 2 Net WAC and (iii)
11.75%; provided, however, if the Mortgage Loans and related property
are not purchased pursuant to Section 7.01(c) on the Initial Optional
Purchase Date, then with respect to each subsequent Distribution Date
the per annum rate calculated pursuant to clause (i) above with respect
to the Class A-2 Certificates will be LIBOR plus 0.68%.
(3) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for the Class A-3 Certificates will be
the least of (i) the Pool 3 Net WAC and (ii) 11.75%.
(4) The Class X-A-1 Certificates consist of two components, the Pool 1 NAS
Component and the Pool 2 NAS Component. On any Distribution Date, the
Class X-A-1 will have a Class Notional Amount equal to the sum of the
Component Notional Amount of the Pool 1 NAS Component and the Pool 2
NAS Component. The Class X-A-1 Certificates are entitled to receive on
each Distribution Date the sum of the amount of interest accrued on the
Pool 1 NAS Component and the Pool 2 NAS Component.
16
(5) The Class X-A-2 Certificates consist of two components, the Pool 1
Companion Component and the Pool 2 Companion Component. On any
Distribution Date the Class Notional Amount of the Class X-A-2
Certificates will be equal to sum of the Certificate Principal Amount
of the Class A-1 and A-2 Certificates immediately prior to such
Distribution Date. The Class X-A-2 Certificates are entitled to receive
on each Distribution Date, the sum of the amount of interest accrued on
the Pool 1 Companion Component and the Pool 2 Companion Component.
(6) The Class X-B Certificates will represent a 100% interest in each of
Component XB1, Component XB2 and Component XB3. See the definitions of
"Component XB1," "Component XB2" and Component XB3" for the interest
rates and notional balance of these Components.
(7) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for the Class A-R Certificate will
equal the Pool 1 Net WAC.
(8) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for the Class B-1 Certificates will be
the least of (i) LIBOR plus 0.60%; (ii) the Subordinate Net WAC and
(iii) 11.75%; provided, however, if the Mortgage Loans and related
property are not purchased pursuant to Section 7.01(c) on the Initial
Optional Purchase Date, then with respect to each subsequent
Distribution Date the per annum rate calculated pursuant to clause (i)
above with respect to the Class B-1 Certificates will be LIBOR plus
0.90%.
(9) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for the Class B-2 Certificates will be
the least of (i) LIBOR plus 1.50%; (ii) the Subordinate Net WAC and
(iii) 11.75%; provided, however, if the Mortgage Loans and related
property are not purchased pursuant to Section 7.01(c) on the Initial
Optional Purchase Date, then with respect to each subsequent
Distribution Date the per annum rate calculated pursuant to clause (i)
above with respect to the Class B-2 Certificates will be LIBOR plus
2.25%.
(10) The Certificate Interest Rate with respect to any Distribution Date
(and the related Accrual Period) for the Class B-3 Certificates will be
the least of (i) LIBOR plus 1.50%; (ii) the Subordinate Net WAC and
(iii) 11.75%; provided, however, if the Mortgage Loans and related
property are not purchased pursuant to Section 7.01(c) on the Initial
Optional Purchase Date, then with respect to each subsequent
Distribution Date the per annum rate calculated pursuant to clause (i)
above with respect to the Class B-3 Certificates will be LIBOR plus
2.25%.
(11) The Certificate Interest Rates with respect to any Distribution Date
(and the related Accrual Period) for the, Class B-4, Class B-5 and
Class B-6 Certificates will be equal to the Subordinate Net WAC.
As of the Cut-off Date, the Mortgage Loans had an aggregate Scheduled
Principal Balance of $1,325,078,169.22.
In consideration of the mutual agreements herein contained, the
Depositor and the Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
The following words and phrases, unless the context otherwise requires,
shall have the following meanings:
17
Accountant: A Person engaged in the practice of accounting who (except
when this Agreement provides that an Accountant must be Independent) may be
employed by or affiliated with the Depositor or an Affiliate of the Depositor.
Accrual Period: With respect to any Distribution Date and any Class of
LIBOR Certificates, the period commencing on the 25th day of the month preceding
the month in which the Distribution Date occurs and ending on the 24th day of
the month in which the Distribution Date occurs; provided, however, that the
first Accrual Period with respect to the LIBOR Certificates shall be the period
beginning on the Closing Date and ending on September 24, 2003. The Accrual
Period applicable to the Components, the Class A-3, Class A-R, Class B-4, Class
B-5, Class B-6 Certificates and each Class of Lower Tier REMIC Interests shall
be the calendar month immediately preceding the month in which the related
Distribution Date occurs. Interest shall accrue on all Classes of Certificates,
all Components and on all Lower Tier REMIC Interests on the basis of a 360-day
year consisting of twelve 30-day months.
Acknowledgements: The Assignment, Assumption and Recognition
Agreements, each dated September 25, 2003, among the Seller, Sequoia Residential
Funding, Inc., the Depositor, the Trustee and the Originator, MLBTC or the
Servicer assigning rights under the Purchase Agreement and the Servicing
Agreements from the Seller to Sequoia Residential Funding, Inc., and from
Sequoia Residential Funding, Inc. to the Depositor, and from the Depositor to
the Trustee for the benefit of the Certificateholders.
Act: The Securities Act of 1933, as amended.
Additional Collateral: With respect to any Additional Collateral
Mortgage Loan, the meaning assigned thereto in the Master Mortgage Loan Purchase
Agreement.
Additional Collateral Mortgage Loan: Each Mortgage Loan identified as
such in the Mortgage Loan Schedule.
Additional Collateral Servicing Agreement: The Additional Collateral
Servicing Agreement, dated as of September 1, 2002, among Cendant, the Seller
and Redwood Trust, Inc., as amended to date and modified by the related
Acknowledgements, a copy of which is attached as Exhibit D.
Adjustment Date: As to any Mortgage Loan, the date on which the related
Mortgage Rate adjusts in accordance with the terms of the related Mortgage Note.
Advance: With respect to a Mortgage Loan, the payments required to be
made by the Trustee solely in its capacity as successor Servicer or the Servicer
with respect to any Distribution Date pursuant to this Agreement or the
Portfolio Servicing Agreement, as applicable, the amount of any such payment
being equal to the aggregate of the payments of principal and interest (net of
the applicable Servicing Fee and net of any net income in the case of any REO
Property) on the Mortgage Loans that were due on the related Due Date and not
received as of the close of business on the related Determination Date, less the
aggregate amount of any such delinquent payment that either the Trustee or the
Servicer has determined would constitute Nonrecoverable Advances if advanced.
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Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Aggregate Senior Percentage: As to any Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the aggregate of
the Class Principal Amounts of the Class A-1, Class A-2, Class A-3 and Class A-R
Certificates and the denominator of which is the Aggregate Stated Principal
Balance, but in no event greater than 100%.
Aggregate Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances for all Mortgage Loans (and when such
term is used with respect to a particular Mortgage Pool, the aggregate of the
Stated Principal Balances of the Mortgage Loans in such Mortgage Pool) which
were outstanding on the Due Date in the month preceding the month of such
Distribution Date.
Aggregate Subordinate Percentage: As to any Distribution Date, the
difference between 100% and the Aggregate Senior Percentage for such
Distribution Date, but in no event less than zero.
Aggregate Voting Interests: The aggregate of the Voting Interests of
all the Certificates under this Agreement.
Agreement: This Trust Agreement and all amendments and supplements
hereto.
Allocable Share: With respect to each Class of Subordinate Certificates
and any Distribution Date, the percentage equivalent of a fraction, the
numerator of which is the Class Principal Amount of such Class and the
denominator of which is the aggregate of the Class Principal Amounts of each
Class of Subordinate Certificates.
Applicable Credit Support Percentage: As to any Class of Subordinate
Certificates and any Distribution Date, the sum of the Class Subordination
Percentages of such Class and the aggregate Class Subordination Percentage of
all other Classes of Subordinate Certificates having higher numerical Class
designations than such Class.
Apportioned Principal Balance: As to any Distribution Date and each
Class of Subordinate Certificates and any Mortgage Pool, the Class Principal
Amount thereof multiplied by a fraction, the numerator of which is the
applicable Pool Subordinate Amount (i.e., the Pool 1 Subordinate Amount, the
Pool 2 Subordinate Amount or the Pool 3 Subordinate Amount, as the case may
require), and the denominator of which is the sum of such Pool Subordinate
Amounts on such date.
Appraised Value: With respect to any Mortgage Loan, the Appraised Value
of the related Mortgaged Property shall be: (i) with respect to a Mortgage Loan
other than a Refinancing Mortgage Loan, the lesser of (a) the value of the
Mortgaged Property based upon the appraisal made at the time of the origination
of such Mortgage Loan and (b) the sales price of
19
the Mortgaged Property at the time of the origination of such Mortgage Loan; and
(ii) with respect to a Refinancing Mortgage Loan, the value of the Mortgaged
Property based upon the appraisal made at the time of the origination of such
Refinancing Mortgage Loan.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Trustee, which assignment, notice of transfer or
equivalent instrument may be in the form of one or more blanket assignments
covering the Mortgage Loans secured by Mortgaged Properties located in the same
jurisdiction, if permitted by law; provided, however, that the Trustee shall not
be responsible for determining whether any such assignment is in recordable
form.
Authenticating Agent: The Trustee or any authenticating agent appointed
by the Trustee pursuant to Section 6.10 until any successor authenticating agent
for the Certificates is named, and thereafter "Authenticating Agent" shall mean
any such successor.
Authorized Officer: Any Person who may execute an Officer's Certificate
on behalf of the Depositor.
Available Distribution Amount: With respect to any Distribution Date
and each Mortgage Pool, the total amount of all cash received by the Trustee on
the Mortgage Loans in such Mortgage Pool from the Servicer or otherwise through
the Distribution Account Deposit Date for deposit into the Distribution Account
in respect of such Distribution Date, including (1) all scheduled installments
of interest (net of the related Servicing Fee) and principal collected on the
related Mortgage Loans and due during the Due Period related to such
Distribution Date, together with any Advances in respect thereof, (2) all
Insurance Proceeds, Liquidation Proceeds and the proceeds of any Additional
Collateral from the related Mortgage Loans, in each case for such Distribution
Date, (3) all partial or full Principal Prepayments, together with any accrued
interest thereon, identified as having been received from the related Mortgage
Loans during the related Prepayment Period, (4) any amounts received from the
Servicer in respect of Prepayment Interest Shortfalls with respect to the
related Mortgage Loans; and (5) the aggregate Purchase Price of all Defective
Mortgage Loans and Converted Mortgage Loans (if any) in such Mortgage Pool
purchased from the Trust Fund during the related Prepayment Period, minus:
(A) all related fees, charges and amounts payable or
reimbursable to the Trustee under this Agreement, to
the extent that, if paid by the Trust Fund, such
fees, charges or other amounts would constitute
"unanticipated expenses" (within the meaning of
Treasury Regulations Section 1.860G-1(b)(3)(ii)) of
any of the REMICs provided for herein and up to an
aggregate maximum amount equal to the product of (i)
the applicable Pool Percentage and (ii) $300,000
annually such aggregate maximum amount not to include
any Servicing Transfer Costs, or to the Servicer
under the Servicing Agreement;
(B) in the case of (2), (3), (4) and (5) above, any
related unreimbursed expenses incurred by the
Servicer in connection with a liquidation or
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foreclosure and any unreimbursed Advances or
Servicing Advances due to the Servicer (or, pursuant
to Section 5.04, the Trustee);
(C) any related unreimbursed Nonrecoverable Advances
due to the Servicer (or, pursuant to Section 5.04,
the Trustee); and
(D) in the case of (1) through (4) above, any related
amounts collected which are determined to be
attributable to a subsequent Due Period or Prepayment
Period.
Bankruptcy: As to any Person, the making of an assignment for the
benefit of creditors, the filing of a voluntary petition in bankruptcy,
adjudication as a bankrupt or insolvent, the entry of an order for relief in a
bankruptcy or insolvency proceeding, the seeking of reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief, or
seeking, consenting to or acquiescing in the appointment of a trustee, receiver
or liquidator, dissolution, or termination, as the case may be, of such Person
pursuant to the provisions of either the Bankruptcy Code or any other similar
state laws.
Bankruptcy Code: The United States Bankruptcy Code of 1986, as amended.
Basis Risk Shortfall: With respect to any Distribution Date and any
Class of LIBOR Certificates, the excess, if any, of (i) the amount of Current
Interest that would have been payable on such Class for such Distribution Date
if the Certificate Interest Rate for such Class as set forth in the Preliminary
Statement hereto were determined without regard to clause (ii) in the definition
thereof, over (ii) the actual Current Interest payable on such Class for such
Distribution Date.
BBA: The British Banker's Association.
Book-Entry Certificates: Beneficial interests in Certificates
designated as "Book-Entry Certificates" in this Agreement, ownership and
transfers of which shall be evidenced or made through book entries by a Clearing
Agency as described in Section 3.09; provided, that after the occurrence of a
Book-Entry Termination whereupon book-entry registration and transfer are no
longer permitted and Definitive Certificates are to be issued to Certificate
Owners, such Book-Entry Certificates shall no longer be "Book-Entry
Certificates." As of the Closing Date, the following Classes of Certificates
constitute Book-Entry Certificates: the Class A-1, Class A-2, Class A-3, Class
X-A-1, Class X-A-2, Class B-1, Class B-2, Class B-3 and Class X-B.
Book-Entry Termination: The occurrence of any of the following events:
(i) the Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Book Entry Certificates, and the Depositor
is unable to locate a qualified successor; or (ii) the Depositor at its option
advises the Trustee and the Certificate Registrar in writing that it elects to
terminate the book-entry system through the Clearing Agency.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in New York, New York or, if other than New
York, the city in which the Corporate Trust Office of the Trustee is located, or
the States of Maryland or Minnesota, are authorized or obligated by law or
executive order to be closed.
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Cendant: Cendant Mortgage Corporation or its successors in interest.
Certificate: Any one of the certificates signed by the Trustee and
authenticated by the Authenticating Agent in substantially the forms attached
hereto as Exhibit A.
Certificate Group: Each of the Group 1 Certificates, the Group 2
Certificates and the Group 3 Certificates.
Certificate Interest Rate: With respect to each Class of Certificates
and any Distribution Date, the applicable per annum rate described in the
Preliminary Statement hereto.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the owner of such Book-Entry Certificate, as reflected on the books of
the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly or as an indirect participant, in accordance with
the rules of such Clearing Agency).
Certificate Principal Amount: With respect to any Certificate (other
than a Class X-A-1, Class X-A-2 or Class X-B Certificate), at the time of
determination, the maximum specified dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
initial principal amount set forth on the face of such Certificate, less (i) the
amount of all principal distributions previously made with respect to such
Certificate; (ii) all Realized Losses allocated to such Certificate; and (iii)
in the case of a Subordinate Certificate, any Subordinate Certificate Writedown
Amount allocated to such Certificates. For purposes of Article V hereof, unless
specifically provided to the contrary, Certificate Principal Amounts shall be
determined as of the close of business of the immediately preceding Distribution
Date, after giving effect to all distributions made on such date.
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed pursuant to Section 3.02.
Certificateholder: The meaning provided in the definition of "Holder."
Change Date: With respect to each REMIC 3 Regular Interest and REMIC 4
Regular Interest, the calendar month appearing opposite such Lower Tier REMIC
Interest as described in the Preliminary Statement hereto.
Civil Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940,
as amended.
Class: Collectively, Certificates bearing the same class designation.
In the case of the REMIC 1, REMIC 2, REMIC 3, REMIC 4 and the Upper Tier REMIC,
the term "Class" refers to all REMIC Interests having the same alphanumeric
designation.
Class A-R Certificate: The Class A-R Certificate executed by the
Trustee, and authenticated and delivered by the Authenticating Agent,
substantially in the form annexed hereto as Exhibit A, and evidencing the
ownership of the Class LT1-R Interest, the Class LT2-R Interest, the Class LT3-R
Interest, the Class LT4-R Interest and the residual interest in the Upper Tier
REMIC.
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Class Notional Amount: With respect to the Class X-A-1 or Class X-A-2
Certificates, the applicable class notional amount calculated as provided in the
Preliminary Statement hereto.
Class Principal Amount: With respect to each Class of Certificates
(other than a Class X-A-1, Class X-A-2 or Class X-B Certificate) the aggregate
of the Certificate Principal Amounts of all Certificates of such Class at the
date of determination.
Class X Certificates: Any of the Class X-A-1, Class X-A-2 or Class X-B
Certificates.
Class Subordination Percentage: With respect to each Class of
Subordinate Certificates, for each Distribution Date, the percentage obtained by
dividing the Class Principal Amount of such Class immediately prior to such
Distribution Date by the sum of the Class Principal Amounts of all Classes of
Certificates immediately prior to such Distribution Date.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. As
of the Closing Date, the Clearing Agency shall be The Depository Trust Company.
Clearing Agency Participant: A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
Closing Date: September 25, 2003.
Code: The Internal Revenue Code of 1986, as amended, and as it may be
further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
Compensating Interest Payment: As to any Distribution Date, the lesser
of (1) the Servicing Fee for such date and (2) any Prepayment Interest Shortfall
for such date.
Component Interest Rate: With respect to the Pool 1 NAS Component,
1.00% per annum subject to a cap equal to the Pool 1 Net WAC. With respect to
the Pool 1 Companion Component, the interest rate specified in the definition of
Pool 1 Companion Component. With respect to the Pool 2 NAS Component, 1.00% per
annum subject to a cap equal to the Pool 2 Net WAC. With respect to the Pool 2
Companion Component, the interest rate specified in the definition of Pool 2
Companion Component. With respect to Component XB1 and any Distribution Date,
the interest rate specified in the definition of Component XB1. With respect to
Component XB2 and any Distribution Date, the interest rate specified in the
definition of Component XB2. With respect to Component XB3 and any Distribution
Date, the interest rate specified in the definition of Component XB3.
Component Notional Amount: With respect to Component XB1 and any
Distribution Date, the notional amount specified in the definition of Component
XB1. With respect to Component XB2 and any Distribution Date, the notional
amount specified in the definition of Component XB2. With respect to Component
XB3 and any Distribution Date, the notional amount specified in the definition
of Component XB3. With respect to the Pool 1 NAS Component and any Distribution
Date, the Pool 1 NAS Notional Principal Amount. With respect
23
to the Pool 2 NAS Component and any Distribution Date, the Pool 2 NAS Notional
Principal Amount. With respect to the Pool 1 Companion Component and any
Distribution Date, the Pool 1 Companion Notional Principal Amount. With respect
to the Pool 2 Companion Component and any Distribution Date, the Pool 2
Companion Notional Principal Amount.
Component XB1: A regular interest in the Upper Tier REMIC having a
notional amount equal to the Class Principal Amount of the Class B-1
Certificates immediately before the related Distribution Date and having an
interest rate with respect to any Distribution Date (and the related Accrual
Period) equal to the excess of the Subordinate Net WAC over the Certificate
Interest Rate on the Class B-1 Certificates.
Component XB2: A regular interest in the Upper Tier REMIC having a
notional amount equal to the Class Principal Amount of the Class B-2
Certificates immediately before the related Distribution Date and having an
interest rate with respect to any Distribution Date (and the related Accrual
Period) equal to the excess of the Subordinate Net WAC over the Certificate
Interest Rate on the Class B-2 Certificates.
Component XB3: A regular interest in the Upper Tier REMIC having a
notional amount equal to the Class Principal Amount of the Class B-3
Certificates immediately before the related Distribution Date and having an
interest rate with respect to any Distribution Date (and the related Accrual
Period) equal to the excess of the Subordinate Net WAC over the Certificate
Interest Rate on the Class B-3 Certificates.
Components: Each of the Pool 1 NAS Component, the Pool 1 Companion
Component, the Pool 2 NAS Component, the Pool 2 Companion Component, Component
XB1, Component XB2 and Component XB3.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements constituting
the Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Cooperative Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, that includes the allocation of individual dwelling
units to the holders of the shares of the Cooperative Corporation.
Cooperative Shares: Shares issued by a Cooperative Corporation.
Corporate Trust Office: With respect to the presentment of Certificates
for registration of transfer, exchange or final payment, Xxxxx Fargo Bank
Minnesota, National Association, 0xx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, Attention: Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC
2003-F and for all other purposes, Xxxxx Fargo Bank Minnesota, National
Association, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Client Manager - MLCC 2003-F, or such other address as the Trustee may designate
from time to time by notice to the Certificateholders.
24
Corresponding Classes of Certificates or Components: With respect to
each Lower Tier REMIC Interest, the Class or Classes of Certificates or
Components appearing opposite such Lower Tier REMIC Interest as described in the
Preliminary Statement hereto.
Corresponding REMIC 2 Regular Interest: With respect to each REMIC 3
Regular Interest, the REMIC 2 Regular Interest appearing opposite such REMIC 3
Regular Interest as described in the Preliminary Statement hereto.
Credit Support Depletion Date: The first Distribution Date, if any, on
which the aggregate Certificate Principal Amounts of the Subordinate
Certificates have been reduced to zero.
Current Interest: With respect to each Class of Certificates and each
Component on each Distribution Date, the aggregate amount of interest accrued at
the applicable Certificate Interest Rate or Component Interest Rate during the
related Accrual Period on the Class Principal Amount or Component Notional
Amount of such Class or Component; provided, however, that on any Distribution
Date the Current Interest for the Pool NAS Component and Pool Companion
Component related to a particular Mortgage Pool is subject to the Current
Interest Restriction.
Current Interest Restriction: As to any Distribution Date, the
aggregate Current Interest for a Pool NAS Component and related Pool Companion
Component for such Distribution Date cannot exceed the excess of (i) the Current
Interest that would have accrued on the related Class A Certificates for such
Distribution Date had the Certificate Interest Rate for such class of Class A-1
or Class A-2 Certificates been equal to the related Pool Net WAC over (ii) the
actual Current Interest on such class of Class A-1 or Class A-2 Certificates for
such Distribution Date. The determinations required by clauses (i) and (ii)
shall be made as though the first Accrual Period with respect to the Class A-1
or Class A-2 Certificates began on September 25, 2003. For purposes of the
Current Interest Restriction, the Class A-1 Certificates shall be related to the
Pool 1 Component and the Class A-2 Certificates will be related to the Pool 2
Component.
Custodial Accounts: Each custodial account (other than an Escrow
Account) established and maintained by the Servicer pursuant to the Servicing
Agreement.
Custody Agreement: The Custodial Agreement, dated as of December 15,
2000, between Xxxxxxx Xxxxx Credit Corporation and Xxxxx Fargo Bank Minnesota,
N.A., as custodian, as amended by Amendment No. 1, dated as of January 16, 2002
a copy of which (excluding all exhibits thereto) is attached hereto as Exhibit
O.
Cut-off Date: September 1, 2003.
Cut-off Date Balance: With respect to the Mortgage Loans in the Trust
Fund on the Closing Date, the Aggregate Stated Principal Balance as of the
Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction
by a court of competent jurisdiction in a proceeding under the Bankruptcy Code
in the Scheduled Payment for such Mortgage Loan which became final and
non-appealable, except such a reduction resulting from a Deficient Valuation or
any reduction that results in a permanent forgiveness of principal.
25
Defective Mortgage Loan: The meaning specified in Section 2.04(a).
Deficient Valuation: With respect to any Mortgage Loan, a valuation of
the related Mortgaged Property by a court of competent jurisdiction in an amount
less than the then outstanding indebtedness under the Mortgage Loan, or any
reduction in the amount of principal to be paid in connection with any Scheduled
Payment that results in a permanent forgiveness of principal, which valuation or
reduction results from an order of such court which is final and non-appealable
in a proceeding under the Bankruptcy Code.
Definitive Certificate: A Certificate of any Class issued in
definitive, fully registered, certificated form.
Deleted Mortgage Loan: As defined in Section 2.04(a).
Delinquent: Any Mortgage Loan with respect to which the Scheduled
Payment due on a Due Date is not received.
Depositor: Xxxxxxx Xxxxx Mortgage Investors, Inc., a Delaware
corporation, having its principal place of business at 000 Xxxxx Xxxxxx, 4 World
Financial Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or its successors in
interest.
Determination Date: With respect to each Distribution Date, the 15th
day of the month in which such Distribution Date occurs, or, if such 15th day is
not a Business Day, the next succeeding Business Day.
Disqualified Organization: A "disqualified organization" as defined in
Section 860E(e)(5) of the Code.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 4.01 in the name of the Trustee
for the benefit of the Certificateholders and designated "Xxxxx Fargo Bank
Minnesota, National Association, in trust for registered holders of Xxxxxxx
Xxxxx Mortgage Investors Trust Series MLCC 2003-F, Mortgage Pass-Through
Certificates." Funds in the Distribution Account (exclusive of any earnings on
investments made with funds deposited in the Distribution Account) shall be held
in trust for the Trustee and the Certificateholders for the uses and purposes
set forth in this Agreement.
Distribution Account Deposit Date: The 18th day of each calendar month
after the initial issuance of the Certificates or, if such 18th day is not a
Business Day, the immediately preceding Business Day, commencing in October
2003.
Distribution Date: The 25th day of each month or, if such 25th day is
not a Business Day, the next succeeding Business Day, commencing in October
2003.
Due Date: With respect to any Mortgage Loan, the date on which a
Scheduled Payment is due under the related Mortgage Note as indicated in the
Mortgage Note.
26
Due Period: As to any Distribution Date, the period beginning on the
second day of the month preceding the month of such Distribution Date, and
ending on the first day of the month of such Distribution Date.
Effective Loan-to-Value Ratio: A fraction, expressed as a percentage,
the numerator of which is the original Stated Principal Balance of the Mortgage
Loan, less the amount of Additional Collateral required to secure such Mortgage
Loan at the time of origination, if any, and the denominator of which is the
Appraised Value of the related Mortgage Property at such date.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC or the SAIF (to the
limits established by the FDIC or the SAIF) and the uninsured deposits in which
accounts are otherwise secured such that, as evidenced by an Opinion of Counsel
delivered to the Trustee and to each Rating Agency, the Certificateholders have
a claim with respect to the funds in such account or a perfected first priority
security interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a trust account or accounts maintained with
the trust department of a federal or state chartered depository institution or
trust company, acting in its fiduciary capacity or (iv) any other account
acceptable to each Rating Agency. Eligible Accounts may bear interest, and may
include, if otherwise qualified under this definition, accounts maintained with
the Trustee, any Paying Agent, or the Servicer.
ERISA: The Employee Retirement Income Security Act of 1974, as amended,
and as it may be further amended from time to time, any successor statutes
thereto, and applicable U.S. Department of Labor regulations issued pursuant
thereto in temporary or final form.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of an
Underwriter's Exemption.
ERISA-Restricted Certificate: The Class A-R, Class B-4, Class B-5 or
Class B-6 Certificates.
Escrow Account: As defined in the Servicing Agreement.
Event of Default: The failure of the Servicer to perform any of its
obligations under the Servicing Agreement.
Xxxxxx Mae: The entity formerly known as the Federal National Mortgage
Association, a federally chartered and privately owned corporation organized and
existing under the Federal National Mortgage Association Charter Act, or any
successor thereto.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
27
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Certification: As referred to in Section 2.02(c), the form of
which is set forth at Exhibit X.
Xxxxx Ratings: Fitch, Inc., or any successor in interest.
Global Securities: The global certificates representing the Book-Entry
Certificates.
Group 1: All of the Group 1 Certificates.
Group 1 Certificate: Any Class A-1 or Class A-R Certificate.
Group 2: All of the Group 2 Certificates.
Group 2 Certificate: Any Class A-2 Certificate.
Group 3: All of the Group 3 Certificates.
Group 3 Certificate: Any Class A-3 Certificate.
Holder or Certificateholder: The registered owner of any Certificate as
recorded on the books of the Certificate Registrar except that, solely for the
purposes of taking any action or giving any consent pursuant to this Agreement,
any Certificate registered in the name of the Depositor, the Trustee or the
Servicer, or any Affiliate thereof shall be deemed not to be outstanding in
determining whether the requisite percentage necessary to effect any such
consent has been obtained, except that, in determining whether the Trustee shall
be protected in relying upon any such consent, only Certificates which a
Responsible Officer of the Trustee knows to be so owned shall be disregarded.
The Trustee may request and conclusively rely on certifications by the Depositor
and the Servicer in determining whether any Certificates are registered to an
Affiliate of the Depositor or the Servicer.
HUD: The United States Department of Housing and Urban Development, or
any successor thereto.
Independent: When used with respect to any Accountants, a Person who is
"independent" within the meaning of Rule 2-01(b) of the Securities and Exchange
Commission's Regulation S-X. When used with respect to any other Person, a
Person who (a) is in fact independent of another specified Person and any
Affiliate of such other Person, (b) does not have any material direct financial
interest in such other Person or any Affiliate of such other Person, and (c) is
not connected with such other Person or any Affiliate of such other Person as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions.
Index: As to each Mortgage Loan, the index from time to time in effect
for adjustment of the Mortgage Rate as set forth as such on the related Mortgage
Note.
28
Initial Certification: As referred to Section 2.02(a), the form of
which is set forth at Exhibit K.
Initial LIBOR Rate: 1.12% with respect to the Class A-1, Class A-R,
Class B-1, Class B-2 and Class B-3 Certificates other than the Class A-2
Certificates, and 1.18% with respect to the Class A-2 Certificates.
Initial Optional Purchase Date: The first Distribution Date following
the date on which the Aggregate Stated Principal Balance is less than 10.00% of
the Cut-off Date Balance.
Initial Optional Redemption Date: The first Distribution Date following
the date on which the Aggregate Stated Principal Balance is equal to or less
than 20.00% of the Cut-off Date Balance.
Insurance Policy: With respect to any Mortgage Loan, any insurance
policy, including all names and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by any Insurance Policy (excluding
proceeds required to be applied to the restoration and repair of the related
Mortgaged Property or released to the Mortgagor), in each case other than any
amount included in such Insurance Proceeds in respect of Insured Expenses and
(i) the proceeds from any Limited Purpose Surety Bond.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Distribution Amount: For each Class of Certificates or
Component, on any Distribution Date, the Current Interest for such Class or
Component, as reduced by such Class's or Component's share of Net Prepayment
Interest Shortfalls and Relief Act Reductions. Any such shortfalls and
reductions shall be allocated among (i) all Classes of Certificates (other than
the Interest Only Certificates) of the related Certificate Group from such
Mortgage Pool, (ii) the Pool 1 NAS Component, Pool 1 Companion Component, Pool 2
NAS Component or the Pool 2 Companion Component, as the case may be, and (iii)
the Subordinate Certificates proportionately on the basis of (1) in the case of
the Senior Certificates (other than the Class X Certificates), Current Interest
otherwise distributable thereon on such Distribution Date; (2) in the case of
the Pool NAS Component and the Pool Companion Component related to a Mortgage
Pool, Current Interest otherwise distributable in respect thereof on such
Distribution Date and (3) in the case of Subordinate Certificates, interest
accrued at the Net WAC of the applicable Mortgage Pool on their Apportioned
Principal Balance before taking into account any reductions in such amounts from
Net Interest Shortfalls for that Distribution Date.
Interest-Only Certificates: Any of the Class X-A-1, Class X-A-2 and
Class X-B Certificates.
Interest Shortfall: As to any Class of Certificates or Component and
any Distribution Date, (i) the amount by which the Interest Distribution Amount
(exclusive of any payments to such Class in respect of Basis Risk Shortfalls or
Unpaid Basis Risk Shortfalls) for such Class or Component on such Distribution
Date and all prior Distribution Dates exceeds (ii) amounts
29
distributed in respect thereof to such Class or Component on prior Distribution
Dates (as determined without reduction for amounts not paid to such Class or in
respect of such Component as a result of the provisos set forth in Sections
5.02(a)(i) and 5.02(b) hereof.
Interest Transfer Amount: For any Distribution Date and for any
Undercollateralized Group, an amount equal to one month's interest on the
applicable Principal Transfer Amount at the weighted average Certificate
Interest Rate of the applicable Undercollateralized Group, plus any interest
accrued on such Undercollateralized Group remaining unpaid from prior
Distribution Dates.
Intervening Assignments: The original intervening assignments of the
Mortgage, notices of transfer or equivalent instrument.
Latest Possible Maturity Date: The Distribution Date in November 2028.
LIBOR: With respect to the first Accrual Period, the Initial LIBOR
Rate. With respect to each subsequent Accrual Period, a per annum rate
determined on the LIBOR Determination Date in the following manner by the
Trustee on the basis of the "Interest Settlement Rate" set by the BBA for
one-month (or six-month with respect to the Class A-2 Certificates) United
States dollar deposits, as such rates appear on the Telerate Page 3750, as of
11:00 a.m. (London time) on such LIBOR Determination Date.
(a) If on such a LIBOR Determination Date, the BBA's Interest
Settlement Rate does not appear on the Telerate Page 3750 as of 11:00 a.m.
(London time), or if the Telerate Page 3750 is not available on such date, the
Trustee will obtain such rate from Reuters' "page LIBOR 01" or Bloomberg's page
"BBAM." If such rate is not published for such LIBOR Determination Date, LIBOR
for such date will be the most recently published Interest Settlement Rate. In
the event that the BBA no longer sets an Interest Settlement Rate, the Trustee
will designate an alternative index that has performed, or that the Trustee
expects to perform, in a manner substantially similar to the BBA's Interest
Settlement Rate. The Trustee will select a particular index as the alternative
index only if it receives an Opinion of Counsel, which opinion shall be an
expense reimbursed from the Distribution Account, that the selection of such
index will not cause any of the REMICs to lose their classification as REMICs
for federal income tax purposes.
(b) The establishment of LIBOR by the Trustee and the Trustee's
subsequent calculation of the Certificate Interest Rate applicable to the LIBOR
Certificates for the relevant Accrual Period, in the absence of manifest error,
will be final and binding.
LIBOR Business Day: Any day on which banks in London, England and The
City of New York are open and conducting transactions in foreign currency and
exchange.
LIBOR Certificate: Any Class A-1, Class A-2, Class B-1, Class B-2 and
Class B-3 Certificate.
LIBOR Determination Date: With respect to any LIBOR Certificates other
than the Class A-2 Certificates, the second LIBOR Business Day immediately
preceding the commencement of each Accrual Period and with respect to the Class
A-2 Certificates, the second
30
LIBOR Business Day immediately preceding every sixth Accrual Period beginning
with the Accrual Period commencing during March 2004.
Limited Purpose Surety Bond: Any Limited Purpose Surety Bond listed in
Exhibit F.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
Servicer has certified (in accordance with the Servicing Agreement) that it has
received all amounts it expects to receive in connection with the liquidation of
such Mortgage Loan including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received
in connection with the partial or complete liquidation of defaulted Mortgage
Loans, whether through trustee's sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of a Mortgaged
Property and any other proceeds received in connection with an REO Property.
Loan-To-Value Ratio: With respect to any Mortgage Loan and as to any
date of determination, the fraction (expressed as a percentage) the numerator of
which is the principal balance of the related Mortgage Loan at such date of
determination and the denominator of which is the Appraised Value of the related
Mortgaged Property.
Lower Tier REMIC Interests: Any of the REMIC 1 Interests, the REMIC 2
Interests, the REMIC 3 Interests or the REMIC 4 Interests.
Lower Tier Regular Interests: Any of the REMIC 1 Regular Interests, the
REMIC 2 Regular Interests, the REMIC 3 Regular Interests or the REMIC 4 Regular
Interests.
Margin: As to each Mortgage Loan, the percentage amount set forth on
the related Mortgage Note added to the Index in calculating the Mortgage Rate
thereon.
Master Mortgage Loan Purchase Agreement: The Master Mortgage Loan
Purchase Agreement, dated as of April 1, 1998, between RWT Holdings, Inc. and
Xxxxxxx Xxxxx Credit Corporation, as amended to date and modified by the related
Acknowledgements, a copy of which is attached hereto as Exhibit E.
Material Defect: As defined in Section 2.02(b).
Maximum Rate: As to any Mortgage Loan, the maximum rate set forth on
the related Mortgage Note at which interest can accrue on such Mortgage Loan.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware or any successor
thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS
System.
31
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
MLBTC: Xxxxxxx Xxxxx Bank & Trust Co.
MLBTC Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated as of September 1, 2003, by and among MLBTC and the Seller, as
modified by the related Acknowledgements, a copy of which is attached hereto as
Exhibit X.
Xxxxx'x: Xxxxx'x Investors Service, Inc., or any successor in interest.
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.02.
Mortgage: A mortgage, deed of trust or other instrument encumbering a
fee simple interest in real property securing a Mortgage Note, together with
improvements thereto.
Mortgage Documents: With respect to each Mortgage Loan, the mortgage
documents required to be delivered to the Trustee pursuant to the Trust
Agreement.
Mortgage Loan: A Mortgage and the related notes or other evidences of
indebtedness secured by each such Mortgage conveyed, transferred, sold, assigned
to or deposited with the Trustee pursuant to Section 2.01 (including any
Replacement Loan and REO Property), including without limitation, each Mortgage
Loan listed on the Mortgage Loan Schedule, as amended from time to time.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase Agreement,
dated as of September 1, 2003, by and among the Seller, Sequoia Residential
Trust, Inc. and the Depositor with respect to the sale and purchase of the
Mortgage Loans.
Mortgage Loan Schedule: The schedule attached hereto as Schedule A,
which shall identify each Mortgage Loan, as such schedule may be amended by the
Depositor or the Servicer from time to time to reflect the addition of
Replacement Mortgage Loans to, or the deletion of Deleted Mortgage Loans from,
the Trust Fund. Such schedule shall, among other things (1) identify the
designated Mortgage Pool in which such Mortgage Loan is included and (2)
separately identify One-Month LIBOR Loans, Six-Month LIBOR Loans and Additional
Collateral Mortgage Loans.
Mortgage Loan Servicing Agreement: The Mortgage Loan Flow Purchase,
Sale and Servicing Agreement, dated as of August 1, 2002, between the Seller,
Cendant, Xxxxxx'x Gate Residential Mortgage Trust and Redwood Trust, Inc., as
amended to date and modified by the related Acknowledgements, a copy of which is
attached as Exhibit D.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage Pools: Any of Pool 1, Pool 2 and Pool 3.
32
Mortgage Rate: As to any Mortgage Loan, the annual rate of interest
borne by the related Mortgage Notes.
Mortgaged Property: The underlying property, including any Additional
Collateral, securing a Mortgage Loan which, with respect to a Cooperative Loan,
is the related Cooperative Shares and Property Lease.
Mortgagor: The obligor on a Mortgage Note.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage Loan
or any other disposition of related Mortgaged Property, the related Liquidation
Proceeds net of Advances, Servicer Advances, related Servicing Fees and any
other accrued and unpaid fees received and retained in connection with the
liquidation of such Mortgage Loan or Mortgaged Property.
Net Interest Shortfalls: With respect to any Distribution Date, any Net
Prepayment Interest Shortfalls for that Distribution Date and the amount of
interest that would otherwise have been received with respect to any Mortgage
Loan which was subject to (i) a Relief Act Reduction or (ii) the interest
portion of any Debt Service Reduction or Deficient Valuation, after exhaustion
of the respective amounts of coverage provided by the Subordinate Certificates
for those type of losses.
Net Mortgage Rate: With respect to any Mortgage Loan and any
Distribution Date, the related Mortgage Rate as of the Due Date in the month
preceding the month of such Distribution Date reduced by the Servicing Fee Rate
for such Mortgage Loan.
Net Prepayment Interest Shortfall: With respect to any Mortgage Loan
and any Distribution Date, the amount by which any Prepayment Interest Shortfall
for such date exceeds the amount payable by the Servicer in respect of such
shortfall.
Net WAC: As to any Distribution Date, the weighted average of the Net
Mortgage Rates of the Mortgage Loans as of the Due Date of the month preceding
the month of such Distribution Date, weighted on the basis of their outstanding
Stated Principal Balances (after giving effect to the Scheduled Payments due on
or before such Due Date and Principal Prepayments received prior to such Due
Date) at such time. When the term "Net WAC" is used herein with reference to
only the One-Month LIBOR Loans or only the Six-Month LIBOR Loans, such weighted
average shall be computed with reference solely to the Mortgage Loans in the
relevant group.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Non-permitted Foreign Holder: As defined in Section 3.03(f).
Nonrecoverable Advance: Any portion of an Advance or Servicer Advance
previously made or proposed to be made by the Servicer (as certified in an
Officer's Certificate of the Servicer) or by the Trustee pursuant to Section
5.04, which in the good faith judgment of such party, shall not be ultimately
recoverable by such party from the related Mortgagor, related Liquidation
Proceeds or otherwise.
33
Non-U.S. Person: Any person other than a "United States person" within
the meaning of Section 7701(a)(30) of the Code.
Notional Amount: With respect to any Notional Certificate and any
Distribution Date, such Certificate's Percentage Interest of the Class Notional
Amount of such Class of Certificates for such Distribution Date.
Notional Certificate: Any Class X-A-1 or Class X-A-2 Certificate.
Offering Document: The Prospectus.
Officer's Certificate: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a vice president (however
denominated), an Assistant Vice President, the Treasurer, the Secretary, or one
of the assistant treasurers or assistant secretaries (or any other officer
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 a
particular subject) of the Depositor or the Trustee, as the case may be, and
delivered to the Depositor or the Trustee, as the case may be, as required by
this Agreement.
Officer's Certificate of the Servicer: A certificate (i) signed by the
Chairman of the Board, the Vice Chairman of the Board, the President, a Managing
Director, a Vice President (however denominated), an Assistant Vice President,
the Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Servicer, or (ii) if provided for herein, signed by a
Servicing Officer, as the case may be, and delivered to the Trustee.
One-Month LIBOR Loan: Each Mortgage Loan bearing a Mortgage Rate that
adjusts in accordance with LIBOR for one-month U.S. dollar deposits.
Opinion of Counsel: A written opinion of counsel, reasonably acceptable
in form and substance to the Trustee and who may be in-house or outside counsel
to the Depositor or the Trustee but which must be Independent outside counsel
with respect to any such opinion of counsel concerning the transfer of any
Residual Certificate or concerning certain matters with respect to ERISA, or the
taxation, or the federal income tax status, of each REMIC.
Original Applicable Credit Support Percentage: With respect to each
Class of Subordinate Certificates, the corresponding percentage set forth
opposite its Class designation: Class B-1 - 3.10%; Class B-2 - 2.05%; Class B-3
- 1.25%; Class B-4 - 0.80%; Class B-5 - 0.55%; and Class B-6 - 0.35%.
Original Subordinate Principal Amount: The aggregate of the initial
Class Principal Amounts of the Classes of Subordinated Certificates.
Originator: Xxxxxxx Xxxxx Credit Corporation, a Delaware corporation.
Overcollateralized Group: On any Distribution Date, any Certificate
Group which is not an Undercollateralized Group.
34
Parent Power(R)Guaranty and Security Agreement: With respect to any
Additional Collateral Loan, as defined in the Master Mortgage Loan Purchase
Agreement.
Paying Agent: Any paying agent appointed by the Trustee pursuant to
Section 3.08.
Percentage Interest: With respect to any Certificate, its percentage
interest in the undivided beneficial ownership interest in the Trust Fund
evidenced by all Certificates of the same Class as such Certificate. With
respect to any Certificate other than a Notional Certificate, a Class X-B
Certificate or the Class A-R Certificate, the Percentage Interest evidenced
thereby shall equal the initial Certificate Principal Amount thereof divided by
the initial Class Principal Amount of all Certificates of the same Class. With
respect to the Class A-R Certificate, the Percentage Interest evidenced thereby
shall be as specified on the face thereof, or otherwise, be equal to 100%. With
respect to any Notional Certificate, the Percentage Interest evidenced thereby
shall equal its initial Notional Amount as set forth on the face thereof divided
by the initial Class Notional Amount of such Class. With respect to any Class
X-B Certificate, the Percentage Interest represented thereby shall equal the
initial aggregate Component Notional Amount of its Components divided by the
initial aggregate Component Notional Amount of all of the Components.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency
thereof, provided that such obligations are backed by the full faith
and credit of the United States;
(ii) general obligations of or obligations guaranteed by
any state of the United States or the District of Columbia receiving
the highest long-term debt rating of each Rating Agency, or such lower
rating as shall not result in the downgrading or withdrawal of the
ratings then assigned to the Certificates by the Rating Agencies, as
evidenced by a signed writing delivered by each Rating Agency;
(iii) commercial or finance company paper which is then
receiving the highest commercial or finance company paper rating of
each Rating Agency rating such paper, or such lower rating as shall not
result in the downgrading or withdrawal of the ratings then assigned to
the Certificates by the Rating Agencies, as evidenced by a signed
writing delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or
bankers' acceptances issued by any depository institution or trust
company incorporated under the laws of the United States or of any
state thereof and subject to supervision and examination by federal
and/or state banking authorities, provided that the commercial paper
and/or long-term unsecured debt obligations of such depository
institution or trust company (or in the case of the principal
depository institution in a holding company system, the commercial
paper or long-term unsecured debt obligations of such holding company,
but only if Xxxxx'x is not the applicable Rating Agency) are then rated
one of the two highest long-term and the highest short-term ratings of
each Rating Agency for such securities, or such lower ratings as shall
not result in the downgrading or withdrawal of the ratings then
35
assigned to the Certificates by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency;
(v) guaranteed reinvestment agreements issued by any
bank, insurance company or other corporation acceptable to the Rating
Agencies at the time of the issuance of such agreements, as evidenced
by a signed writing delivered by each Rating Agency;
(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 (iv) 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 ratings of each Rating Agency (except if the Rating
Agency is Moody's, such rating shall be the highest commercial paper
rating of Moody's for any such series), or such lower rating as shall
not result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency;
(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 rating
by each Rating Agency rating such fund or such lower rating as shall
not result in a change in the rating then assigned to the Certificates
by each Rating Agency including funds for which the Trustee or any of
its Affiliates is investment manager or adviser;
(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 applicable Rating Agency in their respective
highest applicable rating category or such lower rating as shall not
result in a change in the rating then specified stated maturity and
bearing interest or sold at a discount acceptable to each Rating Agency
as shall not result in the downgrading or withdrawal of the ratings
then assigned to the Certificates by the Rating Agencies; and
(x) such other investments having a specified stated
maturity and bearing interest or sold at a discount acceptable to the
Rating Agencies as shall not result in the downgrading or withdrawal of
the ratings then assigned to the Certificates by the Rating Agencies;
provided, that no such instrument shall be a Permitted Investment if (i) such
instrument evidences the right to receive interest only payments with respect to
the obligations underlying such instrument, (ii) such instrument would require
the Depositor to register as an investment company under the Investment Company
Act of 1940, as amended, or (iii) such instrument
36
would not be a "permitted investment" within the meaning of such term as
provided for in Section 860G(a)(5) of the Code and the Treasury Regulations
thereunder.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Pool Companion Component: The Pool 1 Companion Component or Pool 2
Companion Component, as the context may require.
Pool NAS Component. The Pool 1 NAS Component or Pool 2 NAS Component,
as the context may require. Pool Net WAC: The Pool 1 Net WAC, Pool 2 Net WAC or
Pool 3 Net WAC, as the context may require.
Pool 1: The aggregate of Mortgage Loans identified on the Mortgage Loan
Schedule as being included in Pool 1.
Pool 1 Adjusted Net WAC: For each Distribution Date, the interest rate
on the Class LT4A1 Interest.
Pool 1 Companion Component: An interest-only Component represented by
the Class X-A-2 Certificates which has a notional amount on any Distribution
Date equal to the Pool 1 Companion Notional Principal Amount and bears interest
at a rate equal to the excess, if any, of the Pool 1 Adjusted Net WAC over the
Certificate Interest Rate on the Class A-1 Certificates.
Pool 1 Companion Notional Principal Amount: For any Distribution Date,
the Certificate Principal Amount of the Class A-1 Certificates immediately prior
to such Distribution Date.
Pool 1 Components: The Pool 1 Companion Component and the Pool 1 NAS
Component.
Pool 1 Mortgage Loans: Any Mortgage Loan in Pool 1.
Pool 1 NAS Component: An interest only Component represented by the
Class X-A-1 Certificates which has a notional amount equal to the Pool 1 NAS
Notional Principal Amount and, subject to the Current Interest Restriction,
bears interest at a rate equal on any Distribution Date to the lesser of (i)
1.00% or (ii) the Pool 1 Net WAC.
Pool 1 NAS Notional Principal Amount: For each Distribution Date, the
lesser of (i) the outstanding Class Principal Amount of the Class A-1
Certificates immediately prior to such Distribution Date and (ii) the amount
specified below for such Distribution Date:
37
POOL 1 NAS
NOTIONAL
PRINCIPAL
DISTRIBUTION DATE AMOUNT
----------------- ----------
October 2003........................ 839,000,000.00
November 2003....................... 808,468,808.35
December 2003....................... 779,014,203.44
January 2004........................ 750,598,222.81
February 2004....................... 723,184,242.63
March 2004.......................... 696,736,930.49
April 2004.......................... 671,222,199.88
May 2004............................ 646,607,166.24
June 2004........................... 622,860,104.58
July 2004........................... 599,950,408.57
August 2004......................... 577,848,551.16
September 2004...................... 556,526,046.44
October 2004........................ 535,955,412.99
November 2004....................... 516,110,138.42
December 2004....................... 496,964,645.22
January 2005........................ 478,494,257.81
February 2005....................... 460,675,170.69
March 2005.......................... 443,484,417.81
April 2005.......................... 426,899,842.91
May 2005............................ 410,900,071.05
June 2005........................... 395,464,480.96
July 2005........................... 381,046,420.62
August 2005......................... 367,145,111.67
September 2005...................... 353,742,185.38
October 2005........................ 340,819,923.33
November 2005....................... 328,361,234.44
December 2005....................... 316,349,632.80
January 2006........................ 304,769,216.27
February 2006....................... 293,604,645.88
March 2006.......................... 282,841,125.89
April 2006.......................... 272,464,384.64
May 2006............................ 262,460,655.99
June 2006........................... 252,816,661.48
July 2006........................... 243,519,593.09
August 2006......................... 234,557,096.57
September 2006...................... 225,917,255.48
October 2006........................ 217,588,575.65
November 2006....................... 209,915,993.40
December 2006....................... 202,513,960.69
January 2007........................ 195,372,937.47
February 2007....................... 188,483,720.03
March 2007.......................... 181,837,429.24
April 2007.......................... 175,425,499.06
May 2007............................ 169,239,665.48
June 2007........................... 163,271,955.93
July 2007........................... 157,514,678.95
August 2007 and thereafter.......... 0.00
38
Pool 1 Net WAC: With respect to any Distribution Date, the weighted
average of the Net Mortgage Rates of the Pool 1 Mortgage Loans as of the first
day of the calendar month immediately preceding the calendar month of such
Distribution Date, weighted on the basis of their Stated Principal Balances.
Pool 1 REMIC Companion Component: An uncertificated "interest-only"
regular interest in the Upper Tier REMIC that, on each Distribution Date, has a
notional principal amount equal to the Class Principal Amount of the Class A-1
Certificates immediately prior to such Distribution Date and bears interest at a
rate equal to the excess of the Pool 1 Adjusted Net WAC over the Certificate
Interest Rate on the Class A-1 Certificates on such Distribution Date. For
federal income tax purposes, the Pool 1 REMIC Companion Component is represented
by the Class X-A-2 Certificates.
Pool 1 REMIC NAS Component: An uncertificated "interest-only" regular
interest in the Upper Tier REMIC that is entitled to 100% of the amounts payable
in respect of the REMIC 3 Pool 1 IO Interests. For federal income tax purposes,
the Pool 1 REMIC NAS Component is represented by the Class X-A-1 Certificates.
Pool 1 Subordinate Amount: For any Distribution Date, the excess of (a)
the Aggregate Stated Principal Balances of the Pool 1 Mortgage Loans and over
(b) the sum of the Class Principal Amounts of the Class A-1 and Class A-R
Certificates immediately before such Distribution Date.
Pool 2: The aggregate of Mortgage Loans identified on the Mortgage Loan
Schedule as being included in Pool 2.
Pool 2 Adjusted Net WAC: For each Distribution Date, the interest rate
on the Class LT4A2 Interest.
Pool 2 Companion Component: An interest-only Component represented by
the Class X-A-1 Certificates which has a notional amount on any Distribution
Date equal to the Pool 2 Companion Notional Principal Amount and bears interest
at a rate equal to the excess, if any, of the Pool 2 Adjusted Net WAC over the
Certificate Interest Rate on the Class A-2 Certificates.
Pool 2 Companion Notional Principal Amount: For any Distribution Date,
the Certificate Principal Amount of the Class A-2 Certificates immediately prior
to such Distribution Date.
Pool 2 Components: The Pool 2 Companion Component and the Pool 2 NAS
Component.
Pool 2 Mortgage Loans: Any Mortgage Loan in Pool 2.
Pool 2 NAS Component: An interest only Component represented by the
Class X-A-1 Certificates which has a notional amount equal to the Pool 2 NAS
Notional Principal Amount and, subject to the Current Interest Restriction,
bears interest at a rate equal on any Distribution Date to the lesser of (i)
1.00% or (ii) the Pool 2 Net WAC.
39
Pool 2 NAS Notional Principal Amount: For each Distribution Date, the
lesser of (i) the outstanding Class Principal Amount of the Class A-2
Certificates immediately prior to such Distribution Date and (ii) the amount
specified below for such Distribution Date:
POOL 2 NAS
NOTIONAL
PRINCIPAL
DISTRIBUTION DATE AMOUNT
----------------- ----------
October 2003.......................... 270,000,000.00
November 2003......................... 260,174,707.13
December 2003......................... 250,695,872.41
January 2004.......................... 241,551,279.07
February 2004......................... 232,729,141.13
March 2004............................ 224,218,088.23
April 2004............................ 216,007,150.92
May 2004.............................. 208,085,746.56
June 2004............................. 200,443,665.69
July 2004............................. 193,071,058.84
August 2004........................... 185,958,423.85
September 2004........................ 179,096,593.62
October 2004.......................... 172,476,724.33
November 2004......................... 166,090,283.96
December 2004......................... 159,929,041.39
January 2005.......................... 153,985,055.72
February 2005......................... 148,250,666.06
March 2005............................ 142,718,481.68
April 2005............................ 137,381,372.42
May 2005.............................. 132,232,459.59
June 2005............................. 127,265,107.03
July 2005............................. 122,625,207.38
August 2005........................... 118,151,604.34
September 2005........................ 113,838,386.64
October 2005.......................... 109,679,852.29
November 2005......................... 105,670,501.19
December 2005......................... 101,805,027.96
January 2006.......................... 98,078,315.12
February 2006......................... 94,485,426.40
March 2006............................ 91,021,600.38
April 2006............................ 87,682,244.26
May 2006.............................. 84,462,927.93
June 2006............................. 81,359,378.24
July 2006............................. 78,367,473.40
August 2006........................... 75,483,237.70
September 2006........................ 72,702,836.26
October 2006.......................... 70,022,570.15
November 2006......................... 67,553,443.86
December 2006......................... 65,171,383.58
40
January 2007.......................... 62,873,319.18
February 2007......................... 60,656,288.81
March 2007............................ 58,517,435.07
April 2007............................ 56,454,001.30
May 2007.............................. 54,463,328.05
June 2007............................. 52,542,849.65
July 2007............................. 50,690,090.90
August 2007 and thereafter............ 0.00
Pool 2 Net WAC: With respect to any Distribution Date, the weighted
average of the Net Mortgage Rates of the Pool 2 Mortgage Loans as of the first
day of the calendar month immediately preceding the calendar month of such
Distribution Date, weighted on the basis of their Stated Principal Balances.
Pool 2 REMIC Companion Component: An uncertificated "interest-only"
regular interest in the Upper Tier REMIC that, on each Distribution Date, has a
notional principal amount equal to the Class Principal Amount of the Class A-2
Certificates immediately prior to such Distribution Date and bears interest at a
rate equal to the excess of the Pool 2 Adjusted Net WAC over the Certificate
Interest Rate on the Class A-2 Certificates on such Distribution Date. For
federal income tax purposes, the Pool 2 REMIC Companion Component is represented
by the Class X-A-2 Certificates.
Pool 2 REMIC NAS Component: An uncertificated "interest-only" regular
interest in the Upper Tier REMIC that is entitled to 100% of the amounts payable
in respect of the REMIC 3 Pool 2 IO Interests. For federal income tax purposes,
the Pool 2 REMIC NAS Component is represented by the Class X-A-1 Certificates.
Pool 2 Subordinate Amount: For any Distribution Date, the excess of (a)
the Aggregate Stated Principal Balance of the Pool 2 Mortgage Loans over (b) the
Class Principal Amount of the Class A-2 Certificates immediately before such
Distribution Date.
Pool 3: The aggregate of Mortgage Loans identified on the Mortgage Loan
Schedule as being included in Pool 3.
Pool 3 Mortgage Loans: Any Mortgage Loan in Pool 3.
Pool 3 Net WAC: With respect to any Distribution Date, the weighted
average of the Net Mortgage Rates of the Pool 3 Mortgage Loans as of the first
day of the calendar month immediately preceding the calendar month of such
Distribution Date, weighted on the basis of their Stated Principal Balances.
Pool 3 Subordinate Amount: For any Distribution Date, the excess of (a)
the Aggregate Stated Principal Balance of the Pool 3 Mortgage Loans over (b) the
Class Principal Amount of the Class A-3 Certificates immediately before such
Distribution Date.
Pool Percentage: With respect to each Mortgage Pool and any
Distribution Date, a fraction, expressed as a percentage, the numerator of which
is the Aggregate Stated Principal
41
Balance of such Mortgage Pool and the denominator of which is the Aggregate
Stated Principal Balance as of such Due Date.
Pool Subordinate Amount: Any of the Pool 1 Subordinate Amount, Pool 2
Subordinate Amount or the Pool 3 Subordinate Amount.
Prepayment Interest Shortfall: With respect to any full or partial
Principal Prepayment of a Mortgage Loan, the excess, if any, of (i) one full
month's interest at the applicable Mortgage Rate on the outstanding principal
balance of such Mortgage Loan immediately prior to such Principal Prepayment
over (ii) the amount of interest actually received with respect to such Mortgage
Loan in connection with such Principal Prepayment.
Prepayment Period: With respect to each Distribution Date, the calendar
month immediately preceding the month in which the Distribution Date occurs.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan.
Principal Distribution Amount: With respect to any Mortgage Pool and
any Distribution Date, the sum of (a) each Scheduled Payment of principal
collected or advanced on the related Mortgage Loans (before taking into account
any Deficient Valuations or Debt Service Reductions) and due during the related
Due Period, (b) that portion of the Purchase Price representing principal of any
Mortgage Loans in such Mortgage Pool purchased in accordance with Section 2.04
hereof and received during the related Prepayment Period, (c) the principal
portion of any related Substitution Amount received during the related
Prepayment Period, (d) the principal portion of all Insurance Proceeds received
during the related Prepayment Period with respect to Mortgage Loans in such
Mortgage Pool that are not yet Liquidated Mortgage Loans, (e) the principal
portion of all Net Liquidation Proceeds received during the related Prepayment
Period with respect to Liquidated Mortgage Loans in such Mortgage Pool, (f) the
principal portion of the proceeds of any Additional Collateral with respect to
the Mortgage Loans in such Mortgage Pool, (g) the principal portion of all
partial and full principal prepayments of Mortgage Loans in such Mortgage Pool
applied by the Servicer during the related Prepayment Period and (h) on the
Distribution Date on which the Trust Fund is to be terminated pursuant to
Article X hereof, that portion of the Redemption Price in respect of principal
for such Mortgage Pool.
Principal Prepayment: Any Mortgagor payment of principal or other
recovery of principal on a Mortgage Loan that is recognized as having been
received or recovered in advance of its scheduled Due Date and applied to reduce
the principal balance of the Mortgage Loan in accordance with the terms of the
Mortgage Note or the Servicing Agreement.
Principal Prepayment In Full: Any Principal Prepayment of the entire
principal balance of the Mortgage Loans.
Principal Transfer Amount: For any Distribution Date and for any
Undercollateralized Group, the excess, if any, of the aggregate Class Principal
Amount of such Undercollateralized Group immediately prior to such Distribution
Date over the Aggregate Stated Principal Balance of the related Mortgage Pool
immediately prior to such Distribution Date.
42
Proceeding: Any suit in equity, action at law or other judicial or
administrative proceeding.
Proprietary Lease: With respect to any Cooperative Property, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Cooperative Shares.
Pro Rata Senior Percentage: With respect to each Distribution Date and
each Mortgage Pool, the percentage equivalent of a fraction the numerator of
which is the aggregate Class Principal Amount of the Class or Classes of the
Related Certificate Group immediately prior to such Distribution Date and the
denominator of which is the Aggregate Stated Principal Balance of the related
Mortgage Pool for such Distribution Date.
Prospectus: The prospectus supplement dated September 22, 2003,
together with the accompanying prospectus dated July 3, 2003, relating to the
initial sale of the Class A-1, Class A-2, Class A-3, Class A-R, Class X-A-1,
Class X-A-2, Class X-B, Class B-1, Class B-2 and Class B-3 Certificates.
Purchase Date: Any Distribution Date on which Certificates may be
repurchased pursuant to Section 7.01(c).
Purchase Price: With respect to any Mortgage Loan required or permitted
to be purchased by the Depositor pursuant to this Agreement, by the Servicer
pursuant to the Servicing Agreement, or by the Seller pursuant to the Master
Mortgage Loan Purchase Agreement, an amount equal to the sum of (i) 100% of the
unpaid principal balance of the Mortgage Loan on the date of such purchase, (ii)
accrued interest thereon at the applicable Net Mortgage Rate from the date
through which interest was last paid by the Mortgagor to the Due Date in the
month in which the Purchase Price is to be distributed to Certificateholders and
(iii) any unreimbursed costs, penalties and/or damages incurred by the Trust
Fund in connection with any violation relating to such Mortgage Loan of any
predatory or abusive lending law.
Rapid Prepayment Conditions: As to any Distribution Date either of the
following conditions: if (1) the Aggregate Subordinate Percentage on such date
is less than 200% of the Aggregate Subordinate Percentage on the Closing Date or
(2) the outstanding Stated Principal Balance of the Mortgage Loans in any
Mortgage Pool delinquent 60 days or months, as a percentage of such Mortgage
Pool's Pool Subordinate Amount, is greater than or equal to 50%.
Rating Agency: Each of Xxxxx'x, S&P and Fitch Ratings.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Net Mortgage Rate from the Due Date as to which interest
was last paid or advanced (and not reimbursed) to Certificateholders up to the
Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Net Liquidation Proceeds and the proceeds of
any Additional Collateral, if any, received during the month in which such
liquidation occurred, to the extent applied as recoveries of interest at the Net
Mortgage Rate and to principal of the Liquidated Mortgage Loan. With respect to
each
43
Mortgage Loan which has become the subject of a Deficient Valuation, if the
principal amount due under the related Mortgage Note has been reduced, the
difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation.
Record Date: As to any Distribution Date (i) with respect to the LIBOR
Certificates, the last Business Day preceding such Distribution Date (or the
Closing Date, in the case of the first Distribution Date) unless such
Certificates shall no longer be Book-Entry Certificates, in which case the
Record Date shall be the last Business Day of the month preceding the month of
such Distribution Date and (ii) in the case of all other Certificates (including
LIBOR Certificates that are subsequently reissued as Definitive Certificates),
the last Business Day of the month preceding the month of each Distribution
Date.
Redemption Date: Any Distribution Date on which Certificates may be
redeemed pursuant to Section 7.01(b).
Redemption Price: An amount equal to the sum of (i) 100% of the Class
Principal Amount of the outstanding Certificates; (ii) interest on such amount
at the applicable Certificate Interest Rate through the related Accrual Period
(as increased by any Interest Shortfalls but excluding any Unpaid Basis Risk
Shortfalls); (iii) any cost and damages incurred by the Trust Fund (or the
Trustee on behalf of the Trust Fund) in connection with the violation of any
anti-predatory or anti-abusive lending laws; and (iv) the payment of all amounts
(including, without limitation, all previously unreimbursed Advances and
Servicing Advances and accrued and unpaid Servicing Fees) payable or
reimbursable to the Servicer or Trustee.
Refinancing Mortgage Loan: Any Mortgage Loan originated in connection
with the refinancing of an existing mortgage loan.
Related Certificate Group: The Certificate Group related to a
particular Mortgage Pool as indicated by the same numerical designation (i.e.,
Group 1 Certificates are related to Pool 1, Group 2 Certificates are related to
Pool 2 and Group 3 Certificates are related to Pool 3).
Related Class of Upper Tier REMIC Interest: With respect to any Class
of Certificates, the interest in the Upper Tier REMIC appearing opposite such
Class in the Preliminary Statement hereto.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Civil Relief Act, the amount, if any, by which (i)
interest collectible on such Mortgage Loan for the most recently ended calendar
month is less than (ii) interest accrued thereon for such month pursuant to the
Mortgage Note.
REMIC: Each pool of assets in the Trust Fund designated as a REMIC as
described in the Preliminary Statement.
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REMIC Components: Each of the Pool 1 REMIC NAS Component, the Pool 2
REMIC NAS Component, the Pool 1 REMIC Companion Component, the Pool 2 REMIC
Companion Component, Component XB1, Component XB2 and Component XB3.
REMIC Interests: Any regular or residual interest in any of REMIC 1,
REMIC 2, REMIC 3, REMIC 4 or the Upper Tier REMIC, as described in the
Preliminary Statement.
REMIC Provisions: The provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations, including proposed regulations and rulings, and administrative
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
REMIC 1: As described in the Preliminary Statement.
REMIC 1 Interest: Each class of interest in REMIC 1 as described in the
Preliminary Statement.
REMIC 1 Regular Interest: Each of the REMIC 1 Interests other than the
Class LT1-R Interest.
REMIC 1 Subordinated Balance Ratio: The ratio among the uncertificated
principal balances of each of the REMIC 1 Interests ending with the designation
"A" that is equal to the ratio among, with respect to each such REMIC 1
Interest, the excess of (x) the aggregate Scheduled Principal Balance of the
Mortgage Loans in the related Mortgage Pool over (y) the aggregate class
principal amounts of the Certificates in the Certificate Group related to such
Mortgage Pool.
REMIC 2: As described in the Preliminary Statement.
REMIC 2 Interest: Each class of interest in REMIC 2 as described in the
Preliminary Statement.
REMIC 2 Regular Interest: Each of the REMIC 2 Interests other than the
Class LT2-R Interest.
REMIC 3: As described in the Preliminary Statement.
REMIC 3 Interest: Each class of interest in REMIC 3 as described in the
Preliminary Statement.
REMIC 3 IO Interests: Each class of interest in REMIC 3 that has the
letters "IO" in its class designation.
REMIC 3 Pool 1 IO Interests: Each of the Class LT31IO1 Interest, Class
LT31IO2 Interest, Class LT31IO3 Interest, Class LT31IO4 Interest, Class LT31IO5
Interest, Class LT31IO6 Interest, Class LT31IO7 Interest, Class LT31IO8
Interest, Class LT31IO9 Interest, Class LT31IO10 Interest, Class LT31IO11
Interest, Class LT31IO12 Interest, Class LT31IO13
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Interest, Class LT31IO14 Interest, Class LT31IO15 Interest, Class LT31IO16
Interest, Class LT31IO17 Interest, Class LT31IO18 Interest, Class LT31IO19
Interest, Class LT31IO20 Interest, Class LT31IO21 Interest, Class LT31IO22
Interest, Class LT31IO23 Interest, Class LT31IO24 Interest, Class LT31IO25
Interest, Class LT31IO26 Interest, Class LT31IO27 Interest, Class LT31IO28
Interest, Class LT31IO29 Interest, Class LT31IO30 Interest, Class LT31IO31
Interest, Class LT31IO32 Interest, Class LT31IO33 Interest, Class LT31IO34
Interest, Class LT31IO35 Interest, Class LT31IO36 Interest, Class LT31IO37
Interest, Class LT31IO38 Interest, Class LT31IO39 Interest, Class LT31IO40
Interest, Class LT31IO41 Interest, Class LT31IO42 Interest, Class LT31IO43
Interest, Class LT31IO44 Interest, Class LT31IO45 Interest and Class LT31IO46
Interest.
REMIC 3 Pool 2 IO Interests: Each of the Class LT32IO1 Interest, Class
LT32IO2 Interest, Class LT32IO3 Interest, Class LT32IO4 Interest, Class LT32IO5
Interest, Class LT32IO6 Interest, Class LT32IO7 Interest, Class LT32IO8
Interest, Class LT32IO9 Interest, Class LT32IO10 Interest, Class LT32IO11
Interest, Class LT32IO12 Interest, Class LT32IO13 Interest, Class LT32IO14
Interest, Class LT32IO15 Interest, Class LT32IO16 Interest, Class LT32IO17
Interest, Class LT32IO18 Interest, Class LT32IO19 Interest, Class LT32IO20
Interest, Class LT32IO21 Interest, Class LT32IO22 Interest, Class LT32IO23
Interest, Class LT32IO24 Interest, Class LT32IO25 Interest, Class LT32IO26
Interest, Class LT32IO27 Interest, Class LT32IO28 Interest, Class LT32IO29
Interest, Class LT32IO30 Interest, Class LT32IO31 Interest, Class LT32IO32
Interest, Class LT32IO33 Interest, Class LT32IO34 Interest, Class LT32IO35
Interest, Class LT32IO36 Interest, Class LT32IO37 Interest, Class LT32IO38
Interest, Class LT32IO39 Interest, Class LT32IO40 Interest, Class LT32IO41
Interest, Class LT32IO42 Interest, Class LT32IO43 Interest, Class LT32IO44
Interest, Class LT32IO45 Interest and Class LT32IO46 Interest.
REMIC 3 Regular Interest: Each of the REMIC 3 Interests other than the
Class LT3-R Interest.
REMIC 4: As described in the Preliminary Statement.
REMIC 4 Interest: Each class of interest in REMIC 4 as described in the
Preliminary Statement.
REMIC 4 Regular Interest: Each of the REMIC 4 Interests other than the
Class LT4-R Interest.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan or otherwise treated as having been acquired pursuant to the REMIC
Provisions.
Replacement Mortgage Loan: A mortgage loan substituted by the Seller
for a Deleted Mortgage Loan which must, on the date of such substitution, as
confirmed in a Request for Release, substantially in the form attached to the
Trust Agreement, (i) have a Stated Principal Balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution, not
in excess of, and not more than 10% less than, the Stated Principal Balance of
the Deleted Mortgage Loan; (ii) have a Maximum Rate not less than (and not more
than two
46
percentage points greater than) the Maximum Rate of the Deleted Mortgage Loan;
(iii) have a gross margin not less than that of the Deleted Mortgage Loan and,
if Mortgage Loans equal to 1% or more of the balance of the related Mortgage
Pool as of the Cut-off Date have become Deleted Mortgage Loans, not more than
two percentage points more than that of the Deleted Mortgage Loan; (iv) have an
Effective Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan;
(v) have Adjustment Dates that are no more or less frequent than 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 related Mortgage Rate to a permanent fixed Mortgage
Rate; (viii) not be a Cooperative Loan unless the Deleted Mortgage Loan was a
Cooperative Loan; (ix) have the same or better FICO credit score; (x) have an
initial interest adjustment date no earlier than five months before (and no
later than five months after) the initial adjustment date of the Deleted
Mortgage Loan, (xi) comply with each representation and warranty set forth in
Schedule B of this Agreement; and (xii) shall be accompanied by an Opinion of
Counsel that such Replacement Mortgage Loan would not adversely affect the REMIC
status of the Trust Estate or would not otherwise be prohibited by this
Indenture.
Request for Release: A request for release, substantially in the form
of Exhibit N attached hereto, properly completed and signed by a Servicing
Officer (or, if delivered on behalf of the Seller or Depositor, an Authorized
Officer thereof).
Residual Certificate: The Class A-R Certificate.
Residual Interest: The Residual Certificate, other than the portion
thereof representing the right to payments in respect of the Class LT1-R
Interest, the Class LT2-R Interest, the Class LT3-R Interest and the Class LT4-R
Interest.
Responsible Officer: With respect to the Trustee, any officer in the
corporate trust department or similar group of the Trustee with direct
responsibility for the administration of this Agreement and also, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
Restricted Certificate: Any Class B-4, Class B-5 or Class B-6
Certificate.
Restricted Global Security: As defined in Section 3.01(c).
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.,
or any successor in interest.
SAIF: The Saving's Association Insurance Fund, or any successor
thereto.
Schedule of Exceptions: As defined in Section 2.02(a) of the Trust
Agreement.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified in the Servicing Agreement, shall give effect
to any related Debt Service Reduction and
47
any Deficient Valuation that affects the amount of the monthly payment due on
such Mortgage Loan.
Seller: RWT Holdings, Inc., a Delaware corporation.
Senior Certificate: Any one of the Class X-0, Xxxxx X-0, Class A-3,
Class X-A-1, Class X-A-2, Class X-B or Class A-R Certificates.
Senior Percentage: Except as provided in this definition, for each
Mortgage Pool with respect to any Distribution Date before October 2013, 100%.
The Senior Percentage for each Mortgage Pool for any Distribution Date occurring
(i) before the Distribution Date in October 2013 but in or after October 2006 on
which the Two Times Test is satisfied, or (ii) in or after October 2013, is the
related Pro Rata Senior Percentage. If the Two Times Test is satisfied with
respect to any Distribution Date prior to the Distribution Date in October 2006,
the Senior Percentage for such Mortgage Pool is the Pro Rata Senior Percentage
plus 50% of an amount equal to 100% minus the related Pro Rata Senior
Percentage. With respect to any Distribution Date after the Senior Termination
Date, the Senior Percentage for such Mortgage Pool will equal zero. If on any
Distribution Date the allocation to the Senior Certificates of the related
Certificate Group then entitled to distributions of principal of full and
partial principal prepayments and other amounts in the percentage required above
would reduce the sum of the Class Principal Amounts of those Certificates to
below zero, the Senior Percentage for such Distribution Date shall be limited to
the percentage necessary to reduce such Class Principal Amounts to zero.
Senior Prepayment Percentage: With respect to any Distribution Date,
during the ten years beginning on the first Distribution Date, 100%. Except as
provided herein, the related Senior Prepayment Percentage for each Mortgage Pool
and any Distribution Date occurring on or after the tenth anniversary of the
first Distribution Date shall be as follows: (i) from October 2013 through
September 2014, the Senior Percentage plus 70% of the Subordinate Percentage for
that Distribution Date; (ii) from October 2014 through September 2015, the
Senior Percentage plus 60% of the Subordinate Percentage for that Distribution
Date; (iii) from October 2015 through September 2016, the Senior Percentage plus
40% of the Subordinate Percentage for that Distribution Date; (iv) from October
2016 through September 2017, the related Senior Percentage plus 20% of the
Subordinate Percentage for that Distribution Date; and (v) from and after
September 2017, the Senior Percentage for that Distribution Date; provided,
however, that there shall be no reduction in the Senior Prepayment Percentage
for a Mortgage Pool unless both Step Down Conditions are satisfied; and
provided, further, that if on any such Distribution Date the Pro Rata Senior
Percentage exceeds the initial Pro Rata Senior Percentage, the Senior Prepayment
Percentage for a Mortgage Pool for that Distribution Date shall again equal
100%.
Notwithstanding the above, if on any Distribution Date the Two Times
Test is satisfied, the Senior Prepayment Percentage for a Mortgage Pool shall
equal the related Senior Percentage for such Distribution Date. In addition, if
on any Distribution Date the allocation to the Senior Certificates of the
related Certificate Group then entitled to distributions of principal of full
and partial principal prepayments and other amounts in the percentage required
above would reduce the sum of the Class Principal Amounts of those Certificates
to below zero, the Senior
48
Prepayment Percentage for a Mortgage Pool for such Distribution Date shall be
limited to the percentage necessary to reduce the related Class Principal
Amounts to zero.
Senior Principal Distribution Amount: With respect to any Mortgage Pool
and Distribution Date, the sum of:
(1) the related Senior Percentage of all amounts
described in clauses (a) through (d) of the definition of "Principal
Distribution Amount" for that Distribution Date;
(2) with respect to each Mortgage Loan in the related
Mortgage Pool which became a Liquidated Mortgage Loan during the
related Prepayment Period, the lesser of
(x) the related Senior Percentage of the Stated
Principal Balance of that Mortgage Loan and
(y) the related Senior Prepayment Percentage of
the amount of the Net Liquidation Proceeds allocable to
principal received with respect to that Mortgage Loan; and
(3) the related Senior Prepayment Percentage of the
amounts described in clause (g) of the definition of "Principal
Distribution Amount".
Senior Termination Date: For each Certificate Group, the Distribution
Date when the aggregate of the Class Certificate Principal Balances of that
Group has been reduced to zero.
Servicer: Cendant and its successors and assigns.
Servicer Advance: A "Servicing Advance" as defined in the Servicing
Agreement.
Servicing Agreement: Collectively, the Mortgage Loan Servicing
Agreement and the Additional Collateral Servicing Agreement.
Servicing Fee: As to any Distribution Date and each Mortgage Loan, an
amount equal to the product of (a) one-twelfth of the Servicing Fee Rate and (b)
the outstanding principal balance of such Mortgage Loan as of the first day of
the related Due Period.
Servicing Fee Rate: With respect to each Mortgage Loan and any
Distribution Date, 0.25% per annum.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee by the Servicer on the Closing Date and attached hereto as Exhibit
M, as such list may from time to time be amended.
Servicing Transfer Costs: As defined in Section 6.14(b).
49
Six-Month LIBOR Loan: Each Mortgage Loan bearing a Mortgage Rate that
adjusts in accordance with LIBOR for six-month U.S. dollar deposits.
Startup Day: The day designated as such pursuant to Section 10.01(b)
hereof.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date as specified
in the amortization schedule at the time relating thereto (before any adjustment
to such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to any previous partial Principal Prepayments
and Liquidation Proceeds allocable to principal (other than with respect to any
Liquidated Mortgage Loan) and to the payment of principal due on such Due Date
and irrespective of any delinquency in payment by the related Mortgagor.
Step Down Conditions: As of the first Distribution Date as to which any
decrease in any Senior Prepayment Percentage applies, (i) the outstanding Stated
Principal Balance of all Mortgage Loans 60 days or more Delinquent (including
Mortgage Loans in bankruptcy, REO and foreclosure) (averaged over the preceding
six month period), as a percentage of the aggregate of the Class Principal
Amounts of the Classes of Subordinate Certificates on such Distribution Date,
does not equal or exceed 50% and (ii) cumulative Realized Losses with respect to
the Mortgage Loans do not exceed (a) with respect to each Distribution Date from
October 2013 through September 2014, 30% of the Original Subordinate Principal
Amount, (b) with respect to each Distribution Date from October 2014 through
September 2015, 35% of the Original Subordinate Principal Amount, (c) with
respect to each Distribution Date from October 2015 through September 2016, 40%
of the Original Subordinate Principal Amount, (d) with respect to each
Distribution Date from October 2016 through September 2017, 45% of the Original
Subordinate Principal Amount and (e) with respect to each Distribution Date from
and after September 2017, 50% of the Original Subordinate Principal Amount.
Subordinate Certificate: Any of the Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 or Class B-6 Certificates.
Subordinate Certificate Writedown Amount: The amount described in
Section 5.03(b)(iii).
Subordinate Class Percentage: As to any Distribution Date and any Class
of Subordinate Certificates, a fraction, expressed as a percentage, the
numerator of which is the Class Principal Amount of such Class on such date, and
the denominator of which is the aggregate Class Principal Amount of all Classes
of Subordinate Certificates on such date.
Subordinate Net WAC: For any Distribution Date, the weighted average of
the Pool 1 Net WAC, the Pool 2 Net WAC and the Pool 3 Net WAC, in each case
weighted on the basis of the Pool Subordinate Amounts for Pool 1, Pool 2 and
Pool 3, respectively, immediately prior to such Distribution Date.
Subordinate Percentage: With respect to each Mortgage Pool and any
Distribution Date, the difference between 100% and the related Senior Percentage
for such Mortgage Pool for such Distribution Date.
50
Subordinate Prepayment Percentage: With respect to any Distribution
Date and for any Mortgage Pool, the difference between 100% and the related
Senior Prepayment Percentage for such Mortgage Pool for that Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and each Mortgage Pool, an amount equal to the sum of:
(1) the related Subordinate Percentage of all
amounts described in clauses (a) through (d) of the definition
of "Principal Distribution Amount" for that Distribution Date;
(2) with respect to each Mortgage Loan in the
related Mortgage Pool that became a Liquidated Mortgage Loan
during the related Prepayment Period the amount of the Net
Liquidation Proceeds allocated to principal received with
respect thereto remaining after application thereof pursuant
to clause (2) of the definition of "Senior Principal
Distribution Amount" for that Distribution Date, up to the
Subordinate Percentage of the Stated Principal Balance of such
Mortgage Loan; and
(3) the related Subordinate Prepayment
Percentage of all amounts described in clause (g) of the
definition of "Principal Distribution Amount" for that
Mortgage Pool and that Distribution Date;
minus the sum of:
any Principal Transfer Amount paid from the Available
Distribution Amount of the Related Certificate Group to an
Undercollateralized Group; and
the amount of principal distributions made to the
Senior Certificates pursuant to Section 5.02(h);
Substitution Amount: As defined in the second paragraph of Section
2.04(b).
Tax Matters Person: The "tax matters person" as specified in the REMIC
Provisions which shall initially be the Holder of the Class A-R Certificate.
Telerate Page 3750: The display currently so designated as "Page 3750"
on the Bridge Telerate Service (or such other page selected by the Trustee as
may replace Page 3750 on that service for the purpose of displaying daily
comparable rates on prices).
Terminator: As defined in Section 7.01(b) hereof.
Trust Fund: The corpus of the trust created pursuant to this Agreement,
consisting of (i) the Mortgage Loans, including the right to all payments of
principal and interest received on or with respect to the Mortgage Loans on and
after the Cut-off Date (other than Scheduled Payments due on or before such
date), and all such payments due after such date but received prior to such date
and intended by the related Mortgagors to be applied after such date; (ii) all
of the Depositor's right, title and interest in and to all amounts from time to
time credited to and the
51
proceeds of the Distribution Account, any Custodial Accounts or any Escrow
Accounts established with respect to the Mortgage Loans; (iii) all of the
Depositor's rights under the Servicing Agreement, the Master Mortgage Loan
Purchase Agreement and the Mortgage Loan Purchase Agreement; (iv) all of the
Depositor's right, title or interest in REO Property and the proceeds thereof;
(v) all of the Depositor's rights under any Insurance Policies relating to the
Mortgage Loans; (vi) all proceeds of the conversion, voluntary or involuntary,
of any of the foregoing into cash or other liquid assets, including without
limitation, all Insurance Proceeds, Liquidation Proceeds and condemnation
awards; and(vii) the Depositor's security interest in any collateral pledged to
secure the Mortgage Loans, including the Mortgaged Properties and any Additional
Collateral relating to the Additional Collateral Mortgage Loans, including, but
not limited to, any pledge, control and guaranty agreements and the Limited
Purpose Surety Bond and any proceeds of the foregoing.
Trustee: Xxxxx Fargo Bank Minnesota, National Association and any
Person succeeding the Trustee hereunder, or if any successor trustee or any
co-trustee shall be appointed as herein provided, then such successor trustee
and such co-trustee, as the case may be.
Trustee Mortgage Files: With respect to each Mortgage Loan, the
Mortgage Documents to be retained in the custody and possession of the Trustee.
Two Times Test: As to any Distribution Date, (i) the Aggregate
Subordinate Percentage is at least two times the Aggregate Subordinate
Percentage as of the Closing Date; (ii) the aggregate of the Stated Principal
Balances of all Mortgage Loans Delinquent 60 days or more (including Mortgage
Loans in bankruptcy, REO and foreclosure) (averaged over the preceding six-month
period), as a percentage of the aggregate of the Class Principal Amount of the
Subordinate Certificates on such Distribution Date, does not equal or exceed
50%; and (iii) cumulative Realized Losses with respect to the Mortgage Loans do
not exceed 20% of the Original Subordinate Principal Amount.
UCC: The Uniform Commercial Code as enacted in the relevant
jurisdiction.
Undercollateralized Group: With respect to any Distribution Date, and
any Certificate Group, the aggregate Class Principal Amount of such Certificate
Group is greater than the aggregate Stated Principal Balance of the Mortgage
Loans in the related Mortgage Pool immediately prior to such Distribution Date.
Underwriters: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Bank
of America Securities LLC and Credit Suisse First Boston LLC.
Underwriter's Exemption: Prohibited Transaction Exemption ("PTE") 90-29
(Exemption Application No. D-8019, 55 Fed. Reg. 21459 (1990)) as amended, or any
substantially similar administrative exemption granted by the U.S. Department of
Labor to an Underwriter.
Underwriting Agreement: The underwriting agreement, dated February 28,
2003 and the terms agreement, dated September 19, 2003, each between the
Depositor and the Underwriters, referred to collectively.
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Uniform Commercial Code: The Uniform Commercial Code as in effect in
any applicable jurisdiction from time to time.
Unpaid Basis Risk Shortfall: With respect to any Distribution Date and
any Class of LIBOR Certificates, the aggregate of all Basis Risk Shortfalls with
respect to such Certificate remaining unpaid from previous Distribution Dates,
plus interest accrued thereon at the applicable Certificate Interest Rate
determined without regard to clause (ii) of the definition therefor to the
extent not paid on prior Distribution Dates.
Upper Tier REMIC: As described in the Preliminary Statement.
Upper Tier REMIC Class A-1 Interest: An uncertificated interest in the
Upper Tier REMIC having the same characteristics as the Class A-1 Certificates,
but without the right to receive payments in respect of Basis Risk Shortfalls
and Unpaid Basis Risk Shortfalls and with an interest rate cap equal to the Pool
1 Adjusted Net WAC.
Upper Tier REMIC Class A-2 Interest: An uncertificated interest in the
Upper Tier REMIC having the same characteristics as the Class A-2 Certificates,
but without the right to receive payments in respect of Basis Risk Shortfalls
and Unpaid Basis Risk Shortfalls and with an interest rate cap equal to the Pool
2 Adjusted Net WAC.
Upper Tier REMIC Class B-1 Interest: An uncertificated interest in the
Upper Tier REMIC having the same characteristics as the Class B-1 Certificates,
but without the right to receive payments in respect of Basis Risk Shortfalls
and Unpaid Basis Risk Shortfalls.
Upper Tier REMIC Class B-2 Interest: An uncertificated interest in the
Upper Tier REMIC having the same characteristics as the Class B-2 Certificates,
but without the right to receive payments in respect of Basis Risk Shortfalls
and Unpaid Basis Risk Shortfalls.
Upper Tier REMIC Class B-3 Interest: An uncertificated interest in the
Upper Tier REMIC having the same characteristics as the Class B-3 Certificates,
but without the right to receive payments in respect of Basis Risk Shortfalls
and Unpaid Basis Risk Shortfalls.
Upper Tier REMIC Regular Interest: Each of the REMIC Components, the
Upper Tier REMIC Class A-1 Interest, the Upper Tier REMIC Class A-2 Interest,
the Upper-Tier REMIC Class B-1 Interest, the Upper-Tier Class B-2 Interest, the
Upper Tier REMIC Class B-3 Interest, the Class B-4 Certificates, the Class B-5
Certificates and the Class B-6 Certificates.
Voting Interests: The portion of the voting rights of all the
Certificates that is allocated to any Certificate for purposes of the voting
provisions of this Agreement. At all times during the term of this Agreement,
97.00% of all Voting Interests shall be allocated to the Class A-1, Class A-2,
Class A-3, Class A-R, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and
Class B-6 Certificates. Voting Interests shall be allocated among such
Certificates (other than the Class A-R Certificates) based on the product of (i)
97.00% and (ii) the fraction, expressed as a percentage, the numerator of which
is the aggregate Class Principal Amounts for each Class then outstanding and the
denominator of which is the Aggregate Stated Principal Balance outstanding, and
the remainder of such percentage of Voting Interests shall be allocated to the
Class A-R Certificates. At all times during the term of this Agreement, 3.00% of
all Voting Interests shall
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be allocated among the Class X-A-1, Class X-A-2, and Class X-B Certificates,
while they remain outstanding, in proportion to their relative Class Notional
Amounts. Voting Interests shall be allocated among the Certificates within each
such Class in proportion to their Certificate Principal Amounts or Percentage
Interests.
Section 1.01 Calculations Respecting Mortgage Loans.
Calculations required to be made pursuant to this Agreement with
respect to any Mortgage Loan in the Trust Fund shall be made based upon current
information as to the terms of the Mortgage Loans and reports of payments
received from the Mortgagor on such Mortgage Loans and payments to be made to
the Trustee as provided by the Servicer. The Trustee shall not be required to
recompute, verify or recalculate the information supplied to it by the Servicer.
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ARTICLE II
DECLARATION OF TRUST;
ISSUANCE OF CERTIFICATES
Section 2.01 Creation and Declaration of Trust Fund; Conveyance of
Mortgage Loans.
(a) Concurrently with the execution and delivery of this
Agreement, the Depositor does hereby establish the Trust Fund and transfer,
assign, set over, deposit with and otherwise convey to the Trustee, without
recourse, subject to Sections 2.02 and 2.04, in trust, all the right, title and
interest of the Depositor in and to the Trust Fund. Such conveyance includes,
without limitation, (i) the Mortgage Loans, including the right to all payments
of principal and interest received on or with respect to the Mortgage Loans on
and after the Cut-off Date (other than Scheduled Payments due on or before such
date), and all such payments due after such date but received prior to such date
and intended by the related Mortgagors to be applied after such date; (ii) all
of the Depositor's right, title and interest in and to all amounts from time to
time credited to and the proceeds of the Distribution Account, any Custodial
Accounts or any Escrow Account established with respect to the Mortgage Loans;
(iii) all of the Depositor's rights under the Servicing Agreement, the Master
Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement; (iv)
all of the Depositor's right, title or interest in REO Property and the proceeds
thereof; (v) all of the Depositor's rights under any Insurance Policies relating
to the Mortgage Loans; (vi) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid assets,
including, without limitation, all Insurance Proceeds, Liquidation Proceeds and
condemnation awards; and(vii) the Depositor's security interest in any
collateral pledged to secure the Mortgage Loans, including the Mortgaged
Properties and any Additional Collateral relating to the Additional Collateral
Mortgage Loans, including, but not limited to, any pledge, control and guaranty
agreements and the Limited Purpose Surety Bond and any proceeds of the
foregoing, to have and to hold, in trust; and the Trustee declares that, subject
to the review provided for in Section 2.02, it has received and shall hold the
Trust Fund, as trustee, in trust, for the benefit and use of the Holders of the
Certificates and for the purposes and subject to the terms and conditions set
forth in this Agreement, and, concurrently with such receipt, has caused to be
executed, authenticated and delivered to or upon the order of the Depositor, in
exchange for the Trust Fund, Certificates in the authorized denominations
evidencing the entire ownership of the Trust Fund. Notwithstanding anything to
the contrary in this Agreement, the Trust Fund shall not obtain title to or
beneficial ownership of any Additional Collateral as a result of or in lieu of
the disposition thereof or otherwise.
The foregoing sale, transfer, assignment, set-over, deposit and
conveyance does not and is not intended to result in the creation or assumption
by the Trustee of any obligation of the Depositor, the Originator, MLBTC, the
Seller or any other Person in connection with the Mortgage Loans or any other
agreement or instrument relating thereto except as specifically set forth
therein.
In connection with such transfer and assignment of the Mortgage Loans,
the Depositor shall deliver to, and deposit with, or cause to be delivered to
and deposited with, the Trustee, the documents or instruments described in
Section 2 of the Custody Agreement with respect to each
55
Mortgage Loan; provided that in Section 2a thereof, a lost note affidavit
(including a copy of the original Mortgage Note) may be delivered in lieu of the
original Mortgage Note (each a "Trustee Mortgage File") (the Custody Agreement
to be deemed modified by the foregoing) so transferred and assigned.
(b) The Depositor shall cause the Mortgage Notes with respect to
each Mortgage Loan to be completed either (A) in blank, without recourse, or (B)
endorsed to "Xxxxx Fargo Bank Minnesota, National Association, as Trustee of the
Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2003-F, Mortgage Pass-Through
Certificates, without recourse" and the Depositor shall cause Assignments of
Mortgage with respect to each Mortgage Loan other than a Cooperative Mortgage
Loan to be completed either (A) in blank or (B) to "Xxxxx Fargo Bank Minnesota,
National Association, as Trustee of the Xxxxxxx Xxxxx Mortgage Investors Trust
Series MLCC 2003-F, Mortgage Pass-Through Certificates," within 30 days of the
Closing Date for purpose of their recording; provided, however, that such
Assignments of Mortgage need not be recorded unless required in writing by the
Rating Agencies; provided, further, that with respect to each MERS Mortgage Loan
where MERS is not the Mortgagee of record, the original Assignment of Mortgage
showing MERS as the assignee of the Mortgage, with the evidence of recording
thereon or copies thereof certified by an officer of the Depositor to have been
submitted for recordation, shall be delivered to the Trustee.
If any Mortgage has been recorded in the name of MERS or its designee,
no Assignment of Mortgage in favor of the Trustee will be required to be
prepared or delivered and instead, the Servicer shall take all actions as are
necessary to cause the Trustee to be shown as the owner of the related Mortgage
Loan on the records of MERS for the purpose of the system of recording transfer
of beneficial ownership of mortgages maintained by MERS.
(c) In instances where a title insurance policy is required to be
delivered to the Trustee and is not so delivered, the Depositor will provide a
copy of such title insurance policy to the Trustee, as promptly as practicable
after the execution and delivery hereof, but in any case within 270 days of the
Closing Date.
(d) For Mortgage Loans (if any) that have been prepaid in full
after the Cut-off Date and prior to the Closing Date, the Depositor, in lieu of
delivering the above Trustee Mortgage File, shall deliver to the Trustee an
Officer's Certificate which shall include a statement to the effect that all
amounts received in connection with such prepayment that are required to be
deposited in the Distribution Account pursuant to Section 4.01 have been so
deposited. All original documents that are not delivered to the Trustee shall be
held by the Servicer in trust for the benefit of the Trustee and the
Certificateholders.
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Section 2.02 Acceptance of Trust Fund by Trustee; Review of
Documentation for Trust Fund.
(a) The Trustee, by execution and delivery hereof, acknowledges
receipt by it of the Trustee Mortgage Files pertaining to the Mortgage Loans
listed on the Mortgage Loan Schedule, subject to review thereof as provided
herein. Upon receipt by the Trustee of each Trustee Mortgage File, the Trustee
shall review each Trustee Mortgage File in accordance with the review procedures
set forth in Section 2 of Amendment No. 1 to the Custody Agreement.
In making such verifications, the Trustee may rely conclusively on the
Mortgage Loan Schedule and the documents constituting the Trustee Mortgage File,
and the Trustee shall have no obligation to independently verify the validity,
enforceability, recordability, sufficiency, due authorization or genuineness of
any document in any Trustee Mortgage File or any Mortgage Loan hereunder, nor
the collectibility, insurability, effectiveness or suitability of any Mortgage
Loan hereunder. The Trustee shall prepare an initial certification to be
delivered to the Depositor, the Seller and the Servicer on the Closing Date in
the form annexed hereto as Exhibit K (the "Initial Certification") with respect
to the Mortgage Loans (other than any Mortgage Loan paid in full or any Mortgage
Loan specifically identified on the Schedule of Exceptions attached to the
Initial Certification (the "Schedule of Exceptions") as not covered by such
Initial Certification) listed on the Mortgage Loan Schedule. If the Trustee
determines from such verification that any discrepancy or deficiency exists with
respect to a Trustee Mortgage File, the Trustee shall note such omission,
discrepancy or deficiency on the Schedule of Exceptions attached to the Initial
Certification, and shall deliver a copy (which shall be electronic, if
requested) of the Schedule of Exceptions to the Depositor on the Closing Date.
During the life of the Mortgage Loans (while subject to this Agreement), in the
event the Trustee discovers any defect with respect to any Trustee Mortgage
File, the Trustee shall give written specification of such defect to the
Depositor. Except as specifically provided above, the Trustee shall be under no
duty to review, inspect or examine such documents to determine that any of them
are enforceable or appropriate for their prescribed purpose.
(b) If in the course of the review described in paragraph (a) of
this Section 2.02 the Trustee discovers any document or documents constituting a
part of a Trustee Mortgage File that is missing, does not appear regular on its
face (i.e., is mutilated, damaged, defaced, torn or otherwise physically
altered) or appears to be unrelated to the Mortgage Loans identified in the
Mortgage Loan Schedule (each, a "Material Defect"), the Trustee, upon
discovering such Material Defect shall promptly identify the Mortgage Loan to
which such Material Defect relates to the Depositor, the Seller and the
Servicer. Within 90 days of its receipt of such notice (but in no case prior to
the 270th day following the Closing Date), the Depositor shall be required to
cure such Material Defect (and, in such event, the Depositor shall provide the
Trustee with an Officer's Certificate confirming that such cure has been
effected). If the Servicer notifies the Depositor and the Trustee in writing
that (i) a loss has occurred and (ii) such loss relates to a Mortgage Loan for
which the Trustee previously identified a Material Defect or for which the
Servicer has identified a Material Defect and the Depositor has not cured such
Material Defect, then the Depositor shall repurchase such Mortgage Loan at the
Purchase Price therefore in the event that such loss would, if such Mortgage
Loan is not repurchased by the Depositor, constitute a Realized Loss and such
loss is attributable to the failure of the Depositor to have cured such Material
Defect. A loss shall be deemed to be attributable to the failure of the
57
Depositor to cure a Material Defect if, as determined by the Depositor, upon
mutual agreement with the Trustee each acting in good faith, absent such
Material Defect, such loss would not have been incurred. Within the two-year
period following the Closing Date, the Depositor may, in lieu of repurchasing a
Mortgage Loan pursuant to this Section 2.02(b), substitute for such Mortgage
Loan a Replacement Mortgage Loan subject to the provisions of Section 2.04.
(c) Within 270 days following the Closing Date, the Trustee shall
deliver to the Depositor, the Seller and the Servicer, a final certification
substantially in the form attached as Exhibit L (the "Final Certification")
evidencing the completeness of the Trustee Mortgage Files in its possession or
control, with any exceptions noted on the Scheduled of Exceptions attached to
the Final Certification.
(d) Nothing in this Agreement shall be construed to constitute an
assumption by the Trust Fund, the Trustee or the Certificateholders of any
unsatisfied duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
(e) Upon execution of this Agreement, the Depositor hereby
delivers to the Trustee and the Trustee acknowledges receipt of the Servicing
Agreement and the Master Mortgage Loan Purchase Agreement.
Section 2.03 Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the Trustee, for the
benefit of the Certificateholders as of the Closing Date or such other date as
is specified, that:
(i) the Depositor is a corporation duly organized,
validly existing and in good standing under the laws governing its
creation and existence and has full corporate power and authority to
own its property, to carry on its business as presently conducted, to
enter into and perform its obligations under this Agreement, and to
create the trust pursuant hereto;
(ii) the execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate action
on the part of the Depositor; neither the execution and delivery of
this Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will conflict
with or result in a breach of, or constitute a default under, any of
the provisions of any law, governmental rule, regulation, judgment,
decree or order binding on the Depositor or its properties or the
certificate of incorporation or bylaws of the Depositor;
(iii) the execution, delivery and performance by the
Depositor of this Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the
giving of notice to, the registration with, or the taking of any other
action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected
or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered
by the Depositor and, assuming due authorization, execution and
delivery by the Trustee, constitutes a
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valid and binding obligation of the Depositor enforceable against it in
accordance with its terms except as such enforceability may be subject
to (A) applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors generally and (B)
general principles of equity regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(v) there are no actions, suits or proceedings pending
or, to the knowledge of the Depositor, threatened or likely to be
asserted against or affecting the Depositor, before or by any court,
administrative agency, arbitrator or governmental body (A) with respect
to any of the transactions contemplated by this Agreement or (B) with
respect to any other matter which in the judgment of the Depositor will
be determined adversely to the Depositor and will if determined
adversely to the Depositor materially and adversely affect it or its
business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this
Agreement;
(vi) immediately prior to the transfer and assignment of
the Mortgage Loans to the Trustee, the Depositor was the sole owner of
record and holder of each Mortgage Loan, and the Depositor had good and
marketable title thereto, and had full right to transfer and sell each
Mortgage Loan to the Trustee free and clear, subject only to (1) liens
of current real property taxes and assessments not yet due and payable
and, if the related Mortgaged Property is a condominium unit, any lien
for common charges permitted by statute, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record as of the date of recording of such Mortgage acceptable to
mortgage lending institutions in the area in which the related
Mortgaged Property is located and specifically referred to in the
lender's title insurance policy or attorney's opinion of title and
abstract of title delivered to the originator of such Mortgage Loan,
and (3) such other matters to which like properties are commonly
subject which do not, individually or in the aggregate, materially
interfere with the benefits of the security intended to be provided by
the Mortgage, of any encumbrance, equity, participation interest, lien,
pledge, charge, claim or security interest, and had full right and
authority, subject to no interest or participation of, or agreement
with, any other party, to sell and assign each Mortgage Loan pursuant
to this Agreement;
(vii) This Agreement creates a valid and continuing
security interest (as defined in the applicable Uniform Commercial Code
(the "UCC"), in the Mortgage Loans in favor of the Trustee, which
security interest is prior to all other liens, and is enforceable as
such against creditors of and purchasers from the Depositor;
(viii) The Mortgage Loans constitute "instruments" within
the meaning of the applicable UCC;
(ix) Other than the security interest granted to the
Trustee pursuant to this Agreement, the Depositor has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed
any of the Mortgage Loans. The Depositor has not authorized the filing
of and is not aware of any financing statement against the Depositor
that includes a description of the collateral covering the Mortgage
Loans other than a financing statement relating to the security
interest granted to the Trustee hereunder or that has
59
been terminated. The Depositor is not aware of any judgment or tax lien
filings against the Depositor;
(x) None of the Mortgage Loans have any marks or
notations indicating that such Mortgage Loans have been pledged,
assigned or otherwise conveyed to any Person other than the Trustee;
and
(xi) The Depositor has received all consents and approvals
required by the terms of the Mortgage Loans to convey the Mortgage
Loans hereunder to the Trustee;
(xii) Each Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (without regard to
Treasury Regulations Section 1.860G-2(f)) or any similar rule that
provides that a defective obligation is a qualified mortgage for a
temporary period;
(xiii) No Mortgage Loan provides for interest other than at
either (x) a single fixed rate in effect throughout the term of the
Mortgage Loan or (y) a single "variable rate" (within the meaning of
Treasury Regulations Section 1.860G-1(a)(3)) in effect throughout the
term of the Mortgage Loan;
(xiv) No Mortgage is the subject of pending or final
foreclosure proceedings; and
(xv) As of the Closing Date, the Depositor would not
initiate foreclosure proceedings with respect to any Mortgage Loan
based on such Mortgage Loan's delinquency status prior to the next
scheduled payment date for such Mortgage Loan.
The foregoing representations made in this Section 2.03 shall survive
the termination of this Agreement and shall not be waived by any party hereto.
Section 2.04 Discovery of Breach; Repurchase or Substitution of
Mortgage Loans.
(a) Pursuant to Sections 5(b) of the Master Mortgage Loan Purchase
Agreement and Section 5(b) of the MLBTC Mortgage Loan Purchase Agreement, the
Originator and MLBTC have made certain representations and warranties as to the
characteristics of the Mortgage Loans (such representations and warranties are
set out in full in Schedule B of this Agreement) as of the Closing Date and the
conveyance thereof from the Originator or MLBTC to the Seller and then to the
Depositor, for the benefit of the Trustee and the Certificateholders, and the
Originator and MLBTC have agreed to comply with the provisions of this Section
2.04 in respect of a breach of any of such representations and warranties.
It is understood and agreed that (i) the representations and warranties
of the Depositor set forth in Section 2.03, (ii) the representations and
warranties of the Originator set forth in Sections 5(a) and 5(b) of the Master
Mortgage Loan Purchase Agreement and (iii) the representations and warranties of
MLBTC set forth in Sections 5(a) and 5(b) of the MLBTC Mortgage Loan Purchase
Agreement shall survive delivery of the Trustee Mortgage Files and the
Assignment of Mortgage of each Mortgage Loan to the Trustee and shall continue
throughout the term of this Agreement. Upon discovery (i) by the Depositor, the
Seller, the Originator, MLBTC
60
or the Trustee of a breach of any representation or warranty made by Depositor
under Section 2.03 which materially adversely affects the value of a Mortgage
Loan or the interest therein of the Certificateholder (a "Defective Mortgage
Loan"), (ii) by the Depositor, the Originator, MLBTC or the Seller of the breach
by the Originator of any representation or warranty under the Master Mortgage
Loan Purchase Agreement in respect of any Mortgage Loan, (iii) by the Depositor,
the Originator, MLBTC or the Seller of the breach by MLBTC of any representation
or warranty under the MLBTC Mortgage Loan Purchase Agreement in respect of any
Mortgage Loan, which breach results in the Mortgage Loan being a "Defective
Mortgage Loan" (each of such parties hereby agreeing to give written notice of
such breach to the Trustee and the other of such parties), the Trustee, or its
designee, shall promptly notify the Depositor in writing of such breach and
request that the Depositor cure or cause the cure of such breach within 90 days
from the date that the Depositor discovered or was notified of such breach, and
if the Depositor does not cure such breach in all material respects during such
period, the Trustee shall (i) in the case of an uncured breach under Section
2.03, cause the Depositor to repurchase such Defective Mortgage Loan at the
Purchase Price, (ii) in the case of an uncured breach by the Originator under
the Master Mortgage Loan Purchase Agreement, cause the Depositor to enforce the
Originator's obligation under the Master Mortgage Loan Purchase Agreement and
cause the Originator to repurchase that Defective Mortgage Loan from the Trust
Fund at the Purchase Price, and (iii) in the case of an uncured breach by MLBTC
under the MLBTC Mortgage Loan Purchase Agreement, cause the Depositor to enforce
MLBTC's obligation under the MLBTC Mortgage Loan Purchase Agreement and cause
MLBTC to repurchase that Defective Mortgage Loan from the Trust Fund at the
Purchase Price; in each case on or prior to the Determination Date following the
expiration of such 90-day period (subject to Section 2.04(b) below); provided,
however, that, in connection with any such breach under clauses (ii) and (iii)
above that could not reasonably have been cured within such 90-day period, if
the Originator or MLBTC, as applicable, shall have commenced to cure such breach
within such 90-day period, the Originator or MLBTC shall be permitted to proceed
thereafter diligently and expeditiously to cure the same within an additional
90-day period. The Purchase Price for the repurchased Defective Mortgage Loan
shall be deposited in the related Distribution Account, and the Trustee, or its
designee, upon receipt of such deposit and two copies of a Request for Release
with respect to such Defective Mortgage Loan, shall release to the Originator or
MLBTC, as applicable, the related Trustee Mortgage File and shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, representation or warranties, as either party shall furnish to it and
as shall be necessary to vest in such party any Defective Mortgage Loan released
pursuant hereto and the Trustee, or its designee, shall have no further
responsibility with regard to such Trustee Mortgage File (it being understood
that the Trustee shall have no responsibility for determining the sufficiency of
such assignment for its intended purpose). In lieu of repurchasing any such
Defective Mortgage Loan as provided above, the Originator or MLBTC may cause
such Defective Mortgage Loan to be removed from the Trust Fund (in which case it
shall become a Deleted Mortgage Loan) and substitute one or more Replacement
Mortgage Loans in the manner and subject to the limitations set forth in Section
2.04(b) below. It is understood and agreed that the obligation of the Originator
or MLBTC, as applicable, to cure or to repurchase (or to substitute for) any
Mortgage Loan as to which a breach has occurred and is continuing shall
constitute the sole remedy against the Originator or MLBTC, as applicable,
respecting such breach available to the Trustee on behalf of the
Certificateholders. With respect to the representations and warranties described
in Schedule B which are made to
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the best of the Originator's or MLBTC's, as applicable knowledge, if it is
discovered by any of the Depositor, the Originator, MLBTC or the Trustee that
the substance of such representation and warranty is inaccurate and such
inaccuracy materially and adversely affects the value of the relate Mortgage
Loan, then notwithstanding the Originator's or MLBTC's, as applicable, lack of
knowledge with respect to the substance of such representation and warranty,
such inaccuracy shall be deemed a breach of the applicable representation or
warranty.
(b) Any substitution of Replacement Mortgage Loans for Deleted
Mortgage Loans made pursuant to Section 2.04(a) above must be effected prior to
the last Business Day that is within two years after the Closing Date. As to any
Deleted Mortgage Loan for which the Originator or MLBTC substitutes a
Replacement Mortgage Loan or Loans, such substitution shall be effected by
delivering to the Trustee for such Replacement Mortgage Loan or Loans, the
Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other
documents and agreements, with all necessary endorsements thereon, together with
an Officers' Certificate stating that each such Replacement Mortgage Loan
satisfies the definition thereof and specifying the Substitution Amount (as
described below), if any, in connection with such substitution. The Trustee
shall acknowledge receipt for such Replacement Mortgage Loan and, within 45 days
thereafter, shall review such Mortgage Documents as specified in this Agreement
under Section 2.02(a) and deliver to the Depositor, with respect to such
Replacement Mortgage Loans, a certification substantially in the form of a
revised Initial Certification, with any exceptions noted thereon. Within one
year of the date of substitution, the Trustee shall deliver to the Depositor a
certification substantially in the form of a revised Final Certification, with
respect to such Replacement Mortgage Loans, with any exceptions noted thereon.
Monthly Payments due with respect to Replacement Mortgage Loans in the month of
substitution shall not be included as part of the Trust Fund and shall be
retained by the Originator or MLBTC, as applicable. For the month of
substitution, distributions to Certificateholders shall reflect the collections
and recoveries in respect of such Deleted Mortgage in the Due Period preceding
the month of substitution and the Originator or MLBTC, as applicable, shall
thereafter be entitled to retain all amounts subsequently received in respect of
such Deleted Mortgage Loan. Upon such substitution, such Replacement Mortgage
Loan shall constitute part of the Trust Fund and shall be subject in all
respects to the terms of this Agreement and the Master Mortgage Loan Purchase
Agreement, including all representations and warranties thereof included in the
Master Mortgage Loan Purchase Agreement, in each case as of the date of
substitution.
For any month in which the Originator or MLBTC substitutes one or more
Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Trustee,
based upon information provided by the Servicer, shall determine the excess
(each, a "Substitution Amount"), if any, by which the aggregate Purchase Price
of all such Deleted Mortgage Loans exceeds the aggregate Stated Principal
Balance of the Replacement Mortgage Loans replacing such Deleted Mortgage Loans,
together with one month's interest on such excess amount at the applicable Net
Mortgage Rate. On the date of such substitution, the Originator or MLBTC, as
applicable, shall deliver or cause to be delivered to the Servicer for deposit
in the Custodial Account an amount equal to the related Substitution Amount, if
any, and the Trustee, upon receipt of the related Replacement Mortgage Loan or
Loans and two copies of a Request for Release with respect to the Deleted
Mortgage Loan or Loans, shall release to the Originator or MLBTC, as applicable,
the related Trustee Mortgage File or Files and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as the
Originator or MLBTC, as applicable, shall
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deliver to it and as shall be necessary to vest therein any Deleted Mortgage
Loan released pursuant hereto.
In addition, the Originator or MLBTC, as applicable, shall obtain at
its own expense and deliver to the Trustee an Opinion of Counsel to the effect
that such substitution (either specifically or as a class of transactions) shall
not cause (a) any federal tax to be imposed on the Trust Fund, including without
limitation, any federal tax imposed on "prohibited transactions" under Section
860F(a)(l) of the Code or on "contributions after the startup date" under
Section 860G(d)(l) of the Code, or (b) any REMIC created hereunder to fail to
qualify as a REMIC at any time that any Certificate is outstanding. If such
Opinion of Counsel can not be delivered, then such substitution may only be
effected at such time as the required Opinion of Counsel can be given.
(c) Upon discovery by the Originator, MLBTC, the Seller, the
Depositor or the Trustee that any Mortgage Loan does not constitute a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code, the party
discovering such fact shall within two Business Days give written notice thereof
to the other parties. In connection therewith, the Originator, MLBTC or
Depositor, as applicable, shall repurchase or, subject to the limitations set
forth in Section 2.04(b), substitute one or more Replacement Mortgage Loans for
the affected Mortgage Loan within 90 days of the earlier of discovery or receipt
of such notice with respect to such affected Mortgage Loan. Any such repurchase
or substitution shall be made in the same manner as set forth in Section 2.04(a)
above, if made by the Originator or MLBTC. The Trustee shall re-convey to the
Originator or MLBTC, as applicable, the Mortgage Loan to be released pursuant
hereto in the same manner, and on the same terms and conditions, as it would a
Mortgage Loan repurchased for breach of a representation or warranty.
(d) The Originator and MLBTC indemnify and hold the Trust Fund,
the Trustee, the Depositor and each Certificateholder harmless against any and
all taxes, claims, losses, penalties, fines, forfeitures, reasonable legal fees
and related costs, judgments, and any other costs, fees and expenses that the
Trust Fund, the Trustee, the Depositor and any Certificateholder may sustain in
connection with any actions of such party relating to a repurchase of a Mortgage
Loan other than in compliance with the terms of this Section 2.04 and the Master
Mortgage Loan Purchase Agreement, to the extent that any such action causes (i)
any federal or state tax to be imposed on the Trust Fund, including without
limitation, any federal tax imposed on "prohibited transactions" under Section
860F(a)(1) of the Code or on "contributions after the startup date" under
Section 860G(d)(1) of the Code, or (ii) any REMIC formed hereby to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
Section 2.05 Grant Clause.
(a) It is intended that the conveyance of the Depositor's right,
title and interest in and to property constituting the Trust Fund pursuant to
this Agreement shall constitute, and shall be construed as, a sale of such
property and not a grant of a security interest to secure a loan. However, if
such conveyance is deemed to be in respect of a loan, it is intended that: (1)
the rights and obligations of the parties shall be established pursuant to the
terms of this Agreement; (2) the Depositor hereby grants to the Trustee for the
benefit of the Holders of the Certificates a first priority security interest in
all of the Depositor's right, title and interest in, to and under,
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whether now owned or hereafter acquired, the Trust Fund and all proceeds of any
and all property constituting the Trust Fund to secure payment of the
Certificates; and (3) this Agreement shall constitute a security agreement under
applicable law. If such conveyance is deemed to be in respect of a loan and the
trust created by this Agreement terminates prior to the satisfaction of the
claims of any Person holding any Certificate, the security interest created
hereby shall continue in full force and effect and the Trustee shall be deemed
to be the collateral agent for the benefit of such Person, and all proceeds
shall be distributed as herein provided.
(b) The Depositor shall, to the extent consistent with this
Agreement, take such reasonable actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans
and the other property described above, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement. The Depositor
will, at its own expense, make all initial filings on or about the Closing Date
and shall forward a copy of such filing or filings to the Trustee. Without
limiting the generality of the foregoing, the Depositor shall prepare and
forward for filing, or shall cause to be forwarded for filing, at the expense of
the Depositor, all filings necessary to maintain the effectiveness of any
original filings necessary under the relevant UCC to perfect the Trustee's
security interest in or lien on the Mortgage Loans and the other property
described above, including without limitation (x) continuation statements, and
(y) such other statements as may be occasioned by (1) any change of name of
Seller, the Depositor or the Trustee, (2) any change of location of the place of
business or the chief executive office of the Seller or the Depositor, (3) any
transfer of any interest of the Depositor in any Mortgage Loan or (4) any change
under the relevant UCC or other applicable laws. The Depositor shall not
organize under the law of any jurisdiction other than the State under which each
is organized as of the Closing Date (whether changing its jurisdiction of
organization or organizing under an additional jurisdiction) without giving 30
days prior written notice of such action to its immediate and intermediate
transferee, including the Trustee. Before effecting such change, the Depositor
proposing to change its jurisdiction of organization shall prepare and file in
the appropriate filing office any financing statements or other statements
necessary to continue the perfection of the interests of its immediate and
mediate transferees, including the Trustee, in the Mortgage Loans and the other
property described above. In connection with the transactions contemplated by
this Agreement, the Depositor authorizes its immediate or mediate transferee to
file in any filing office any initial financing statements, any amendments to
financing statements, any continuation statements, or any other statements or
filings described in this paragraph (b).
Section 2.06 Representation and Warranty of the Seller. The Seller
hereby represents and warrants to the Trustee, for the benefit of the
Certificateholders as of the Closing Date that:
(i) it purchased the Mortgage Loans from the Originator
pursuant to the Master Mortgage Loan Purchase Agreement and it is the
owner, as of the Closing Date, of all right, title and interest in and
to the Mortgage Loans;
(ii) it purchased the Mortgage Loans from MLBTC pursuant
to the MLBTC Mortgage Loan Purchase Agreement and it is the owner, as
of the Closing Date, of all right, title and interest in and to the
Mortgage Loans; and
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(iii) on the Closing Date, it has sold the Mortgage Loans
and has assigned its rights under the Master Mortgage Loan Purchase
Agreement to Sequoia Residential Funding Inc.
ARTICLE III
THE CERTIFICATES
Section 3.01 The Certificates.
(a) The Certificates shall be issuable in registered form only and
shall be securities governed by Article 8 of the New York Uniform Commercial
Code. The Book-Entry Certificates will be evidenced by one or more certificates,
beneficial ownership of which will be held in the dollar denominations in
Certificate Principal Amount, or Class Notional Amount, as applicable, or in the
Percentage Interests, specified herein. Each Class of Book-Entry Certificates
will be issued in the minimum denominations in Certificate Principal Amount (or
Class Notional Amount) specified in the Preliminary Statement hereto and in
integral multiples of $1 in excess thereof. Each Class of Non-Book-Entry
Certificates other than the Residual Certificates shall be issued in definitive,
fully registered form in the minimum denominations in Certificate Principal
Amount specified in the Preliminary Statement hereto and in integral multiples
of $1 in excess thereof. The Residual Certificates shall be issued as single
Certificates and maintained in definitive, fully registered form in a
denomination equal to 100% of the Percentage Interest of each such Class. The
Class X-A-1, Class X-A-2 and Class X-B Certificates shall each be issued as
single Certificates in a denomination equal to 100% of the Percentage Interest
of each such Class.
(b) The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer. Each Certificate shall, on
original issue, be authenticated by the Trustee or an Authenticating Agent upon
the order of the Depositor upon receipt by the Trustee of the Trustee Mortgage
Files described in Section 2.01. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Trustee or of an
Authenticating Agent, by manual signature, and such certification upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. At any time and
from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates executed by the Trustee to the Trustee or the
Authenticating Agent for authentication and the Trustee or the Authenticating
Agent shall authenticate and deliver such Certificates as in this Agreement
provided and not otherwise.
(c) The Class B-4, Class B-5 and Class B-6 certificates offered and
sold in reliance on the exemption from registration under Rule 144A under the
Act shall be issued initially in the form of one or more permanent global
Certificates in definitive, fully registered form without interest coupons with
the applicable legends set forth in Exhibit A added to the forms of such
Certificates (each, a "Restricted Global Security").
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Section 3.02 Registration.
The Trustee is hereby appointed, and the Trustee hereby accepts its
appointment as, initial Certificate Registrar in respect of the Certificates and
shall maintain books for the registration and for the transfer of Certificates
(the "Certificate Register"). The Trustee may appoint a bank or trust company to
act as successor Certificate Registrar. A registration book shall be maintained
for the Certificates collectively. The Certificate Registrar may resign or be
discharged or removed and a new successor may be appointed in accordance with
the procedures and requirements set forth in Sections 6.06 and 6.07 hereof with
respect to the resignation, discharge or removal of the Trustee and the
appointment of a successor Trustee. The Certificate Registrar may appoint, by a
written instrument delivered to the Holders, any bank or trust company to act as
co-registrar under such conditions as the Certificate Registrar may prescribe;
provided, however, that the Certificate Registrar shall not be relieved of any
of its duties or responsibilities hereunder by reason of such appointment.
Section 3.03 Transfer and Exchange of Certificates.
(a) A Certificate (other than Book-Entry Certificates which shall be
subject to Section 3.09 hereof) may be transferred by the Holder thereof only
upon presentation and surrender of such Certificate at the office of the
Certificate Registrar duly endorsed or accompanied by an assignment duly
executed by such Holder or his duly authorized attorney in such form as shall be
satisfactory to the Certificate Registrar. Upon the transfer of any Certificate
in accordance with the preceding sentence, the Trustee shall execute, and the
Authenticating Agent shall authenticate and deliver to the transferee, one or
more new Certificates of the same Class and evidencing, in the aggregate, the
same aggregate Certificate Principal Amount (or Notional Amount) as the
Certificate being transferred. No service charge shall be made to a
Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
of transfer of Certificates.
(b) A Certificate may be exchanged by the Holder thereof for any number
of new Certificates of the same Class, in authorized denominations, representing
in the aggregate the same Certificate Principal Amount (or Notional Amount) as
the Certificate surrendered, upon surrender of the Certificate to be exchanged
at the office of the Certificate Registrar duly endorsed or accompanied by a
written instrument of transfer duly executed by such Holder or his duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Trustee shall execute, and the
Authenticating Agent shall authenticate, date and deliver the Certificates which
the Certificateholder making the exchange is entitled to receive.
(c) By acceptance of a Restricted Certificate, whether upon original
issuance or subsequent transfer, each Holder of such a Certificate acknowledges
the restrictions on the
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transfer of such Certificate set forth thereon and agrees that it will transfer
such a Certificate only as provided herein.
The following restrictions shall apply with respect to the transfer and
registration of transfer of a Restricted Certificate to a transferee that takes
delivery in the form of a Definitive Certificate:
(i) The Certificate Registrar shall register the transfer
of a Restricted Certificate if the requested transfer is (x) to the
Depositor or an affiliate (as defined in Rule 405 under the 0000 Xxx)
of the Depositor or (y) being made to a "qualified institutional buyer"
(a "QIB") as defined in Rule 144A under the Securities Act of 1933, as
amended (the "Act") by a transferor that has provided the Certificate
Registrar with a certificate in the form of Exhibit G hereto; and
(ii) The Certificate Registrar shall register the transfer
of a Restricted Certificate if the requested transfer is being made to
an "accredited investor" under Rule 501(a)(1), (2), (3) or (7) under
the Act, or to any Person all of the equity owners in which are such
accredited investors, by a transferor who furnishes to the Certificate
Registrar a letter of the transferee substantially in the form of
Exhibit H hereto.
(d) No transfer of an ERISA-Restricted Certificate in the form of a
Definitive Certificate shall be made to any Person unless the Certificate
Registrar has received (A) a certificate substantially in the form of Exhibit I
hereto from such transferee or (B) an Opinion of Counsel satisfactory to the
Certificate Registrar to the effect that the purchase and holding of such a
Certificate will not constitute or result in the assets of the Trust Fund being
deemed to be "plan assets" subject to the prohibited transactions provisions of
ERISA, Section 4975 of the Code, or any provisions of applicable federal, state
or local law substantially similar to the foregoing provisions of ERISA or the
Code ("Similar Law"), and will not subject the Trustee, the Certificate
Registrar or the Depositor to any obligation in addition to those undertaken in
the Agreement; provided, however, that the Certificate Registrar will not
require such certificate or opinion in the event that, as a result of a change
of law or otherwise, counsel satisfactory to the Certificate Registrar has
rendered an opinion to the effect that the purchase and holding of an
ERISA-Restricted Certificate by a plan or a Person that is purchasing or holding
such a Certificate with the assets of a plan will not constitute or result in a
prohibited transaction under ERISA, Section 4975 of the Code or Similar Law. The
preparation and delivery of the certificates and opinions referred to above
shall not be an expense of the Trust Fund, the Trustee, the Certificate
Registrar or the Depositor.
Notwithstanding the foregoing, no Opinion of Counsel or certificate
shall be required for the initial issuance of the ERISA-Restricted Certificates.
Notwithstanding anything to the contrary herein, any purported transfer of an
ERISA-Restricted Certificate to or on behalf of an employee benefit plan subject
to Title I of ERISA or a plan subject to Section 4975 of the Code or a plan
subject to Similar Law without the delivery to the Certificate Registrar of a
certificate substantially in the form of Exhibit I hereto or an Opinion of
Counsel satisfactory to the Certificate Registrar as described above shall be
void and of no effect. The Trustee, the Certificate Registrar and the Depositor
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
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Section 3.03(d) or for the Paying Agent making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Certificate Registrar in accordance with the foregoing
requirements. The last preceding Holder of such Certificate that is not a plan
or a Person acting on behalf of a plan shall be entitled to recover from any
purported Holder of any ERISA-Restricted Certificate that was in fact an
employee benefit plan subject to Title I of ERISA or a plan subject to Section
4975 of the Code or a plan subject to Similar Law or a Person acting on behalf
of any such plan at the time it became a Holder or, at such subsequent time as
it became such a plan or Person acting on behalf of such a plan, all payments
made on such ERISA-Restricted Certificate at and after either such time;
provided that none of the Depositor, the Certificate Registrar or the Trustee
shall be responsible for such recovery if they otherwise made a good faith
effort to comply with this Section 3.03(d).
(e) As a condition of the registration of transfer or exchange of any
Certificate, the Certificate Registrar may require the certified taxpayer
identification number of the owner of the Certificate and the payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith; provided, however, that the Certificate Registrar shall have no
obligation to require such payment or to determine whether or not any such tax
or charge may be applicable. No service charge shall be made to the
Certificateholder for any registration, transfer or exchange of a Certificate.
(f) Notwithstanding anything to the contrary contained herein, no
Residual Certificate or beneficial interest therein may be owned, pledged or
transferred, directly or indirectly, by or to (i) a Disqualified Organization or
(ii) an individual, corporation or partnership or other person unless, in the
case of clause (ii), such person is (A) not a Non-U.S. Person or (B) is a
Non-U.S. Person that holds a Residual Certificate in connection with the conduct
of a trade or business within the United States and has furnished the transferor
and the Certificate Registrar with an effective Internal Revenue Service Form
W-8ECI or successor form at the time and in the manner required by the Code (any
such person who is not covered by clause (A) or (B) above is referred to herein
as a "Non-permitted Foreign Holder").
Prior to and as a condition of the registration of any transfer, sale
or other disposition of a Residual Certificate or a beneficial interest therein,
the proposed transferee shall deliver to the Trustee and the Certificate
Registrar an affidavit in substantially the form attached hereto as Exhibit B
representing and warranting, among other things, that such transferee is neither
a Disqualified Organization, an agent or nominee acting on behalf of a
Disqualified Organization, nor a Non-permitted Foreign Holder (any such
transferee, a "Permitted Transferee"), and the proposed transferor shall deliver
to the Trustee and the Certificate Registrar an affidavit in substantially the
form attached hereto as Exhibit C. In addition, the Trustee or the Certificate
Registrar may (but shall have no obligation to) require, prior to and as a
condition of any such transfer, the delivery by the proposed transferee of an
Opinion of Counsel, addressed to the Trustee and the Certificate Registrar, that
such proposed transferee or, if the proposed transferee is an agent or nominee,
the proposed beneficial owner, is not a Disqualified Organization, agent or
nominee thereof, or a Non-permitted Foreign Holder. Notwithstanding the
registration in the Certificate Register of any transfer, sale, or other
disposition of a Residual Certificate to a Disqualified Organization, an agent
or nominee thereof, or Non-permitted Foreign Holder, such registration shall be
deemed to be of no legal force or effect whatsoever and such Disqualified
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Organization, agent or nominee thereof, or Non-permitted Foreign Holder shall
not be deemed to be a Certificateholder for any purpose hereunder, including,
but not limited to, the receipt of distributions on such Residual Certificate.
The Depositor, the Certificate Registrar and the Trustee shall be under no
liability to any Person for any registration or transfer of a Residual
Certificate to a Disqualified Organization, agent or nominee thereof or
Non-permitted Foreign Holder or for the Paying Agent making any payments due on
such Residual Certificate to the Holder thereof or for taking any other action
with respect to such Holder under the provisions of the Agreement, so long as
the transfer was effected in accordance with this Section 3.03(f), unless the
Certificate Registrar shall have actual knowledge at the time of such transfer
or the time of such payment or other action that the transferee is a
Disqualified Organization, or an agent or nominee thereof, or Non-permitted
Foreign Holder. The Certificate Registrar shall be entitled to recover from any
Holder of a Residual Certificate that was a Disqualified Organization, agent or
nominee thereof, or Non-permitted Foreign Holder at the time it became a Holder
or any subsequent time it became a Disqualified Organization, agent or nominee
thereof, or Non-permitted Foreign Holder, all payments made on such Residual
Certificate at and after either such times (and all costs and expenses,
including but not limited to attorneys' fees, incurred in connection therewith).
Any payment (not including any such costs and expenses) so recovered by the
Certificate Registrar shall be paid and delivered to the last preceding Holder
of such Residual Certificate.
If any purported transferee shall become a registered Holder of a
Residual Certificate in violation of the provisions of this Section 3.03(f),
then upon receipt of written notice to the Trustee that the registration of
transfer of such Residual Certificate was not in fact permitted by this Section
3.03(f), such transfer shall be absolutely null and void and shall vest no
rights in the purported transferee and the last preceding Permitted Transferee
shall be restored to all rights as Holder thereof retroactive to the date of
such registration of transfer of such Residual Certificate. The Depositor, the
Certificate Registrar and the Trustee shall be under no liability to any Person
for any registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 3.03(f), or for the Paying Agent making any payment
due on such Certificate to the registered Holder thereof or for taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the transfer was registered upon receipt of the affidavit described in
the preceding paragraph of this Section 3.03(f).
(g) Each Holder or Certificate Owner of a Restricted Certificate,
ERISA-Restricted Certificate or Residual Certificate, or an interest therein, by
such Holder's or Owner's acceptance thereof, shall be deemed for all purposes to
have consented to the provisions of this section.
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Section 3.04 Cancellation of Certificates.
Any Certificate surrendered for registration of transfer or exchange
shall be cancelled and retained in accordance with normal retention policies
with respect to cancelled certificates maintained by the Trustee or the
Certificate Registrar.
Section 3.05 Replacement of Certificates.
If (i) any Certificate is mutilated and is surrendered to the Trustee
or the Certificate Registrar or (ii) the Trustee or the Certificate Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and there is delivered to the Trustee and the Certificate Registrar
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Depositor, the Trustee or the
Certificate Registrar that such destroyed, lost or stolen Certificate has been
acquired by a protected purchaser, the Trustee shall execute and the
Authenticating Agent shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor and Certificate Principal Amount. Upon the issuance of any new
Certificate under this Section 3.05, the Trustee, the Depositor or the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee, the Depositor or
the Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section 3.05 shall constitute complete and indefeasible
evidence of ownership in the applicable Trust Fund, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
If after the delivery of such new Certificate, a protected purchaser of
the original Certificate in lieu of which such new Certificate was issued
presents for payment such original Certificate, the Depositor, the Certificate
Registrar and the Trustee or any agent shall be entitled to recover such new
Certificate from the Person to whom it was delivered or any Person taking
therefrom, except a protected purchaser, and shall be entitled to recover upon
the security or indemnity provided therefor to the extent of any loss, damage,
cost or expenses incurred by the Depositor, the Certificate Registrar, the
Trustee or any agent in connection therewith.
Section 3.06 Persons Deemed Owners.
Subject to the provisions of Section 3.09 with respect to Book-Entry
Certificates, the Depositor, the Trustee, the Certificate Registrar, the Paying
Agent and any agent of any of them shall treat the Person in whose name any
Certificate is registered upon the books of the Certificate Registrar as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Sections 5.01 and 5.02 and for all other purposes whatsoever, and neither the
Depositor, the Trustee, the Certificate Registrar, the Paying Agent nor any
agent of any of them shall be affected by notice to the contrary.
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Section 3.07 Temporary Certificates.
(a) Pending the preparation of definitive Certificates, upon the order
of the Depositor, the Trustee shall execute and the Authenticating Agent shall
authenticate and deliver temporary Certificates that are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Certificates in lieu of which they
are issued and with such variations as the authorized officers executing such
Certificates may determine, as evidenced by their execution of such
Certificates.
(b) If temporary Certificates are issued, the Depositor will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Certificate Registrar without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute and the Authenticating Agent shall
authenticate and deliver in exchange therefor a like aggregate Certificate
Principal Amount (or Notional Amount) of definitive Certificates of the same
Class in the authorized denominations. Until so exchanged, the temporary
Certificates shall in all respects be entitled to the same benefits under this
Agreement as definitive Certificates of the same Class.
Section 3.08 Appointment of Paying Agent.
The Trustee may appoint a Paying Agent (which may be the Trustee) for
the purpose of making distributions to Certificateholders hereunder. The Trustee
shall cause any Paying Agent to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee that such Paying Agent
will hold all sums held by it for the payment to Certificateholders in an
Eligible Account (which shall be the Distribution Account) in trust for the
benefit of the Certificateholders entitled thereto until such sums shall be paid
to the Certificateholders. All funds remitted by the Trustee to any such Paying
Agent for the purpose of making distributions shall be paid to
Certificateholders on each Distribution Date and any amounts not so paid shall
be returned on such Distribution Date to the Trustee. If the Paying Agent is not
the Trustee, the Trustee shall cause to be remitted to the Paying Agent on or
before the Business Day prior to each Distribution Date, by wire transfer in
immediately available funds, the funds to be distributed on such Distribution
Date. Any Paying Agent shall be either a bank or trust company or otherwise
authorized under law to exercise corporate trust powers.
Section 3.09 Book-Entry Certificates.
(a) Each Class of Book-Entry Certificates, upon original issuance,
shall be issued in the form of one or more typewritten Certificates representing
the Book-Entry Certificates. The Book-Entry Certificates shall initially be
registered on the Certificate Register in the name of the nominee of the
Clearing Agency, and no Certificate Owner will receive a definitive certificate
representing such Certificate Owner's interest in the Book-Entry Certificates,
except as provided in Section 3.09(c). Unless Definitive Certificates have been
issued to Certificate Owners of Book-Entry Certificates pursuant to Section
3.09(c):
(i) the provisions of this Section 3.09 shall be in full
force and effect;
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(ii) the Certificate Registrar, the Paying Agent and the
Trustee shall deal with the Clearing Agency for all purposes (including
the making of distributions on the Book-Entry Certificates) as the
authorized representatives of the Certificate Owners and the Clearing
Agency and shall be responsible for crediting the amount of such
distributions to the accounts of such Persons entitled thereto, in
accordance with the Clearing Agency's normal procedures;
(iii) to the extent that the provisions of this Section
3.09 conflict with any other provisions of this Agreement, the
provisions of this Section 3.09 shall control; and
(iv) the rights of Certificate Owners shall be exercised
only through the Clearing Agency and the Clearing Agency Participants
and shall be limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency and/or the Clearing
Agency Participants. Unless and until Definitive Certificates are
issued pursuant to Section 3.09(c), the initial Clearing Agency will
make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal of and interest on the
Book-Entry Certificates to such Clearing Agency Participants.
(b) Whenever notice or other communication to the Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to Certificate Owners pursuant to Section 3.09(c), the Trustee
shall give all such notices and communications specified herein to be given to
Holders of the Book-Entry Certificates to the Clearing Agency.
(c) If (i) (A) the Clearing Agency or the Depositor advises the Paying
Agent in writing that the Clearing Agency is no longer willing or able to
discharge properly its responsibilities with respect to the Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor
satisfactory to the Depositor and the Paying Agent, (ii) the Depositor, at its
option, advises the Paying Agent in writing that it elects to terminate the
book-entry system through the Clearing Agency or (iii) after the occurrence of
an Event of Default, Certificate Owners representing beneficial interests
aggregating not less than 50% of the Class Principal Amount (or Class Notional
Amount) of a Class of Book-Entry Certificates advise the Paying Agent and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of the Certificate Owners of a Class of Book-Entry
Certificates, the Certificate Registrar shall notify the Clearing Agency to
effect notification to all Certificate Owners, through the Clearing Agency, of
the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of the Book-Entry Certificates by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency for
registration, the Certificate Registrar shall issue the Definitive Certificates.
Neither the Depositor, the Certificate Registrar nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates all references herein to obligations imposed upon or to
be performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Certificate Registrar, to the extent applicable, with respect
to such Definitive Certificates and the Certificate Registrar shall
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recognize the holders of the Definitive Certificates as Certificateholders
hereunder. Notwithstanding the foregoing, the Certificate Registrar, upon the
instruction of the Depositor, shall have the right to issue Definitive
Certificates on the Closing Date in connection with credit enhancement programs.
ARTICLE IV
ADMINISTRATION OF THE TRUST FUND
Section 4.01 Custodial Accounts; Distribution Account.
(a) On or prior to the Closing Date, the Servicer shall establish and
maintain one or more Custodial Accounts, as provided in the Servicing Agreement,
into which all Scheduled Payments and unscheduled payments with respect to the
Mortgage Loans, net of any deductions or reimbursements permitted under the
Servicing Agreement, shall be deposited. Prior to 1:00 p.m. New York City time
on each Distribution Account Deposit Date, the Servicer shall remit to the
Trustee for deposit into the Distribution Account, all amounts so required to be
deposited into such account in accordance with the terms of the Servicing
Agreement.
(b) The Trustee, shall establish and maintain an Eligible Account
entitled "Distribution Account of Xxxxx Fargo Bank Minnesota, National
Association, as Trustee, for the benefit of Xxxxxxx Xxxxx Mortgage Investors
Trust Series MLCC 2003-F Holders of Mortgage Pass-Through Certificates." The
Trustee shall, promptly upon receipt from the Servicer on each Distribution
Account Deposit Date, deposit into the Distribution Account and retain on
deposit until the related Distribution Date the following amounts:
(i) the aggregate of collections with respect to the
Mortgage Loans remitted by the Servicer from the Custodial Accounts in
accordance with the Servicing Agreement, including the amount of any
Advances or Compensating Interest Payments with respect to the Mortgage
Loans required to be paid by the Servicer; and
(ii) any other amounts so required to be deposited in the
Distribution Account in the related Due Period pursuant to this
Agreement.
(c) In the event Servicer has remitted in error to the Distribution
Account any amount not required to be remitted in accordance with the definition
of Available Distribution Amount, it may at any time direct the Trustee to
withdraw such amount from the Distribution Account for repayment to the
Servicer, as applicable, by delivery of an Officer's Certificate of the Servicer
to the Trustee which describes the amount deposited in error.
(d) On each Distribution Date, Redemption Date and Purchase Date, the
Trustee shall distribute the Available Distribution Amount to the
Certificateholders and any other parties entitled thereto in the amounts and
priorities set forth in Section 5.02. The Trustee may from time to time withdraw
from the Distribution Account and pay itself or the Servicer any amounts
permitted to be paid or reimbursed to such Person from funds in the Distribution
Account pursuant to the clauses (A) through (D) of the definition of Available
Distribution Amount.
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(e) Funds in the Distribution Account may be invested in Permitted
Investments selected by the Trustee, which shall mature not later than one
Business Day prior to the Distribution Date (except that if such Permitted
Investment is an obligation of the Trustee or is managed or advised by the
Trustee or its affiliates, then such Permitted Investment shall mature not later
than such applicable Distribution Date) and any such Permitted Investment shall
not be sold or disposed of prior to its maturity. All such Permitted Investments
shall be made in the name of the Trustee (in its capacity as such) or its
nominee. All income and gain realized from any Permitted Investment shall be for
the benefit of the Trustee and shall be subject to its withdrawal or order from
time to time, and shall not be part of the Trust Fund. The amount of any losses
incurred in respect of any such investments shall be deposited in such
Distribution Account by the Trustee out of its own funds, without any right of
reimbursement therefor, immediately as realized. Any such funds that are not
invested in Permitted Investments may be held uninvested.
Section 4.02 Reports to Trustee and Certificateholders.
On each Distribution Date, the Trustee shall have prepared and shall
make available to each Certificateholder and other interested parties a written
report setting forth the following information (on the basis of Mortgage Loan
level information obtained from the Servicer).
(a) the amount of the distributions, separately identified, with
respect to each Class of Certificates;
(b) the amount of the distributions set forth in the clause (a)
allocable to principal, separately identifying the aggregate amount of any
Principal Prepayments or other unscheduled recoveries of principal included in
that amount;
(c) the amount of the distributions set forth in the clause (a)
allocable to interest and how it was calculated;
(d) the amount of any unpaid Interest Shortfall, Basis Risk Shortfall
or Unpaid Basis Risk Shortfall (if applicable) and the related accrued interest
thereon, with respect to each Class of Certificates;
(e) the Class Principal Amount of each Class of Certificates after
giving effect to the distribution of principal on that Distribution Date;
(f) the Aggregated Stated Principal Balance of the Mortgage Loans in
each Mortgage Pool and the applicable Net WAC of the Mortgage Loans at the end
of the related Prepayment Period;
(g) the Stated Principal Balance of the Mortgage Loans in each Mortgage
Pool whose Mortgage Rates adjust on the basis of the One-Month LIBOR index and
the Six-Month LIBOR index at the end of the related Prepayment Period;
(h) the Pro Rata Senior Percentage, Senior Percentage and the
Subordinate Percentage for each Mortgage Pool for the following Distribution
Date;
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(i) the Senior Prepayment Percentage and Subordinate Prepayment
Percentage for each Mortgage Pool the following Distribution Date;
(j) in the aggregate and with respect to each Mortgage Pool, the amount
of Servicing Fee paid to or retained by the Servicer;
(k) in the aggregate and with respect to each Mortgage Pool, the amount
of Advances for the related Due Period;
(l) in the aggregate and with respect to each Mortgage Pool, the number
and Stated Principal Balance of the Mortgage Loans that were (A) Delinquent
(exclusive of Mortgage Loans in foreclosure) (1) 30 to 59 days, (2) 60 to 89
days and (3) 90 or more days, (B) in foreclosure and Delinquent (1) 30 to 59
days, (2) 60 to 89 days and (3) 90 or more days and (C) in bankruptcy as of the
close of business on the last day of the calendar month preceding that
Distribution Date;
(m) in the aggregate and with respect to each Mortgage Pool, for any
Mortgage Loan as to which the related Mortgaged Property was an REO property
during the preceding calendar month, the principal balance of that Mortgage Loan
as of the close of business on the last day of the related Due Period;
(n) in the aggregate and with respect to each Mortgage Pool, the total
number and principal balance of any REO properties as of the close of business
on the last day of the preceding Due Period;
(o) in the aggregate and with respect to each Mortgage Pool, the amount
of Realized Losses incurred during the preceding calendar month;
(p) in the aggregate and with respect to each Mortgage Pool, the
cumulative amount of Realized Losses incurred since the Closing Date;
(q) the Realized Losses, if any, allocated to each Class of
Certificates on that Distribution Date;
(r) the Certificate Interest Rate for each Class of Certificates for
that Distribution Date;
(s) the amount of any Principal Transfer Amounts or Interest Transfer
Amounts paid to an Undercollateralized Group or Principal Transfer Amounts
between Groups in the event of Rapid Prepayment Conditions; and
(t) for each Class of Certificates, the amounts accrued and paid in
respect of each deemed interest rate cap agreement under which such Class of
Certificates is deemed entitled to receive or deemed obligated to make payments
as provided for in Section 10.01 hereof.
The Trustee shall make such reports available each month via its
website at xxxx://xxx.xxxxxxx.xxx. Assistance in using the website may be
obtained by calling the Trustee's customer service desk at (000) 000-0000.
Certificateholders and other parties that are unable to
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use the website are entitled to have a paper copy mailed to them via first class
mail by contacting the Trustee and indicating such. In preparing or furnishing
the foregoing information, the Trustee shall be entitled to rely conclusively on
the accuracy of the information or data regarding the Mortgage Loans and the
related REO Properties that has been provided to the Trustee by the Servicer,
and the Trustee shall not be obligated to verify, recompute, reconcile or
recalculate any such information or data.
Upon receipt by the Trustee of the reasonable advance written request
of any Certificateholder that is a savings and loan, bank or insurance company,
the Trustee, shall provide, or cause to be provided, (or, to the extent that
such information or documentation is not required to be provided by a Servicer
under the Servicing Agreement, shall use reasonable efforts to obtain such
information and documentation from the Servicer, and provide) to such
Certificateholders such reports and access to information and documentation
regarding the Mortgage Loans as such Certificateholders may reasonably deem
necessary to comply with applicable regulations of the Office of Thrift
Supervision or its successor or other regulatory authorities with respect to an
investment in the Certificates; provided, however, that the Trustee shall be
entitled to be reimbursed by such Certificateholders for the Trustee's actual
expenses incurred in providing such reports and access.
The Trustee shall prepare and file with the Internal Revenue Service
("IRS"), on behalf of the Trust Fund, an application for an employer
identification number on IRS Form SS-4 or by any other acceptable method. The
Trustee shall also file a Form 8811 as required. The Trustee, upon receipt from
the IRS of the Notice of Taxpayer Identification Number Assigned, shall upon
request promptly forward a copy of such notice to the Depositor. The Trustee
shall furnish any other information that is required by the Code and regulations
thereunder to be made available to Certificateholders. The Depositor shall cause
the Servicer to provide the Trustee with such information as is necessary for
the Trustee to prepare such reports.
ARTICLE V
DISTRIBUTIONS TO HOLDERS OF CERTIFICATES
Section 5.01 Distributions Generally.
(a) Subject to Section 7.01 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee or the Paying Agent shall
make distributions in accordance with this Article V. Such distributions shall
be made by check mailed to each Certificateholder's address as it appears on the
Certificate Register of the Certificate Registrar or, upon written request made
to the Trustee at least five Business Days prior to the related Record Date by
any Certificateholder owning an aggregate initial Certificate Principal Amount
of at least $1,000,000, or in the case of a Class of Interest-Only Certificates
or Residual Certificate, a Percentage Interest of not less than 100%, by wire
transfer in immediately available funds to an account specified in the request
and at the expense of such Certificateholder; provided, however, that the final
distribution in respect of any Certificate shall be made only upon presentation
and surrender of such Certificate at the Certificate Registrar's Corporate Trust
Office; provided, further, that the foregoing provisions shall not apply to any
Class of Certificates as long as such Certificate
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remains a Book-Entry Certificate in which case all payments made shall be made
through the Clearing Agency and its Clearing Agency Participants. Wire transfers
will be made at the expense of the Holder requesting such wire transfer by
deducting a wire transfer fee from the related distribution. Notwithstanding
such final payment of principal of any of the Certificates, each Residual
Certificate will remain outstanding until the termination of each REMIC and the
payment in full of all other amounts due with respect to the Residual
Certificates and at such time such final payment in retirement of any Residual
Certificate will be made only upon presentation and surrender of such
Certificate at the Certificate Registrar's Corporate Trust Office. If any
payment required to be made on the Certificates is to be made on a day that is
not a Business Day, then such payment will be made on the next succeeding
Business Day.
(b) All distributions or allocations made with respect to
Certificateholders within each Class on each Distribution Date shall be
allocated among the outstanding Certificates in such Class equally in proportion
to their respective initial Class Principal Amounts or initial Class Notional
Amounts (or Percentage Interests).
Section 5.02 Distributions from the Distribution Account.
(a) Subject to Sections 5.02(h) and 5.02(i), on each Distribution Date,
the Available Distribution Amount for the related Mortgage Pool (in the case of
the Components of the Class X-A-1 and Class X-A-2 Certificates and the Senior
Certificates other than the Class X Certificates) and the Mortgage Pools in the
aggregate (in the case of the Subordinate Certificates and the Class X-B
Certificates) shall be withdrawn by the Trustee from the Distribution Account
and allocated among the classes of Senior Certificates and Subordinate
Certificates in the following order of priority:
(i) Concurrently, to the payment of the Interest
Distribution Amount and any accrued but unpaid Interest Shortfalls with
respect to each class of Senior Certificates (other than the Class X
Certificates) and the Components, with, subject to the proviso set
forth below, (x) all amounts payable in respect of Component XB1,
Component XB2 and Component XB3 being payable to the Class X-B
Certificates, (y) all amounts payable in respect of the Pool 1 NAS
Component and the Pool 2 NAS Component being payable to the Class X-A-1
Certificates and (z) all amounts payable in respect of the Pool 1
Companion Component and the Pool 2 Companion Component being payable to
the Class X-A-2 Certificates; provided, however, that on each
Distribution Date, amounts that would otherwise be payable to the Class
X-A-1, Class X-A-2 or Class X-B Certificates under this clause (a)(i)
will (A) in the case of amounts otherwise payable to the Class X-A-1 or
Class X-A-2 Certificates in respect of the Pool 1 NAS Component or Pool
1 Companion Component, be paid to the Class A-1 Certificates to the
extent of any Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls
for the Class A-1 Certificates as of such Distribution Date, (B) in the
case of amounts otherwise payable to the Class X-A-1 and Class X-A-2
Certificates in respect of the Pool 2 NAS Component or Pool 2 Companion
Component, be paid to the Class A-2 Certificates to the extent of any
Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls for the Class
A-2 Certificates as of such Distribution Date, (C) in the case of
amounts otherwise payable to the Class X-B Certificates, be paid to the
Class B-1, Class B-2 and Class B-3 Certificates to the extent of any
Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls for the Class
B-1, Class B-
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2 and Class B-3 Certificates, respectively, as of such Distribution
Date, (D) in the case of amounts otherwise payable to the Class X-A-2
Certificates in respect of the Pool 1 Companion Component, be paid to
the Class X-A-1 Certificates in respect of the Pool 1 NAS Component to
the extent of any previously unreimbursed amounts not distributed in
respect of the Pool 1 NAS Component as a result of clause (A) above or
as a result of the Current Interest Restriction and (E) in the case of
amounts otherwise payable to the Class X-A-2 Certificates in respect of
the Pool 2 Companion Component, be paid to the Class X-A-1 Certificates
in respect of the Pool 2 NAS Component to the extent of any previously
unreimbursed amounts not distributed in respect of the Pool 2 NAS
Component as a result of clause (B) above or as a result of the Current
Interest Restriction;
(ii) Concurrently, to the Senior Certificates from the
Available Distribution Amount remaining in the related Mortgage Pool
after application of amounts pursuant to clause (i) above, as follows:
(a) sequentially to the Class A-R and Class A-1
Certificates, in that order, the Senior
Principal Distribution Amount for Pool 1,
until their respective Class Principal
Amounts have been reduced to zero;
(b) to the Class A-2 Certificates, the Senior
Principal Distribution Amount for Pool 2,
until its Class Principal Amount has been
reduced to zero; and
(c) to the Class A-3 Certificates, the Senior
Principal Distribution Amount for Pool 3,
until its Class Principal Amount has been
reduced to zero.
(iii) From the Available Distribution Amount from the
Mortgage Pools in the aggregate remaining after the application of
amounts pursuant to clauses (i) and (ii) above, to the Class B-1, Class
B-2 and Class B-3 Certificates, sequentially, in that order, the
Interest Distribution Amount and any Interest Shortfalls, in each case,
for such Class on such date;
(iv) From the Available Distribution Amount from the
Mortgage Pools in the aggregate remaining after application of amounts
pursuant to clauses (i) through (iii) above, to the Class B-1, Class
B-2 and Class B-3 Certificates, sequentially, in that order, such
Class' Subordinate Class Percentage of the Subordinate Principal
Distribution Amount for each Mortgage Pool, until its Class Principal
Amount has been reduced to zero;
(v) From the remaining Available Distribution Amount from
the Mortgage Pools in the aggregate remaining after application of
amounts pursuant to clauses (i) through (iv) in the following order of
priority:
(A) to the Class B-4 Certificates, the payment of its
Interest Distribution Amount and any outstanding Interest Shortfalls;
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(B) to the Class B-4 Certificates, such Class'
Subordinate Class Percentage of the Subordinate Principal Distribution
Amount for each Mortgage Pool, until its Class Principal Amount has
been reduced to zero;
(C) to the Class B-5 Certificates, the payment of its
Interest Distribution Amount and any outstanding Interest Shortfalls;
(D) to the Class B-5 Certificates, such Class'
Subordinate Class Percentage of the Subordinate Principal Distribution
Amount for each Mortgage Pool, until its Class Principal Amount has
been reduced to zero;
(E) to the Class B-6 Certificates, the payment of its
Interest Distribution Amount and any outstanding Interest Shortfalls;
and
(F) to the Class B-6 Certificates, such Class'
Subordinate Class Percentage of the Subordinate Principal Distribution
Amount for each Mortgage Pool, until its Class Principal Amount has
been reduced to zero;
(vi) To the Class A-R Certificate, any remaining amount of
the Available Distribution Amount from the Mortgage Pools in the
aggregate allocated as provided in Section 5.02(d).
Amounts paid to the Class A-1 Certificates on any Distribution Date pursuant to
the proviso in clause (a)(i)(A) above shall reduce amounts otherwise payable on
such Distribution Date in respect of the Pool 1 Companion Component before
reducing any amounts otherwise payable to the Pool 1 NAS Component. Amounts paid
to the Class A-2 Certificates on any Distribution Date pursuant to the proviso
in clause (a)(i)(B) above shall reduce amounts otherwise payable on such
Distribution Date in respect of the Pool 2 Companion Component before reducing
any amounts otherwise payable to the Pool 2 NAS Component. Amounts that would
have been distributed in respect of the Class X-A-1, Class X-A-2 and Class X-B
Certificates, but for the proviso set forth in clause (a)(i) above shall, except
for purposes of determining unreimbursed amounts under clauses (a)(i)(D) and (E)
above, be treated as having been distributed to the Class X-A-1, Class X-A-2 and
Class X-B Certificates, as the case may be, for purposes of determining
subsequent Interest Shortfalls with respect to the Class X-A-1, Class X-A-2 and
Class X-B Certificates.
(b) On each Distribution Date on and after the Credit Support Depletion
Date, the Available Distribution Amount for each Mortgage Pool shall be
distributed to the remaining Classes of Certificates of a Certificate Group and
in respect of the Class X-A-1 and Class X-A-2 Certificates, as the case may be,
on a pro rata basis, first, to pay the Interest Distribution amount and any
accrued but unpaid Interest Shortfalls; provided, however, that on each
Distribution Date with respect to the Class A-1 or Class A-2 Certificates (as
applicable) (x) the amount of the Interest Distribution Amount that would
otherwise be payable to the related Pool Companion Component or Pool NAS
Component (in that order) will be paid to the Class A-1 or Class A-2
Certificates (as applicable) to the extent of any Basis Risk Shortfalls for the
Class A-1 or Class A-2 Certificates (as applicable) and (y) the amount of the
Interest Distribution Amount that would otherwise be payable on the related Pool
Companion Component (after the application of
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clause (x) above) will be payable to the related Pool NAS Component to the
extent of any remaining unreimbursed amounts otherwise payable to the related
Pool NAS Component that were distributed to the Class A-1 or Class A-2
Certificates (as applicable) in respect of Basis Risk Shortfalls or that were
not paid with respect to the related Pool NAS Component as a result of the
Current Interest Restriction; second, to pay the Senior Principal Distribution
Amount for such Mortgage Pool; and third, to the Class A-R Certificate, any
remaining Available Distribution Amount from such Mortgage Pool.
Amounts paid to the Class A-1 Certificates on any Distribution Date pursuant to
the proviso in this clause (b) shall reduce amounts otherwise payable on such
Distribution Date in respect of the Pool 1 Companion Component before reducing
any amounts otherwise payable to the Pool 1 NAS Component. Amounts paid to the
Class A-2 Certificates on any Distribution Date pursuant to the proviso in this
clause (b) shall reduce amounts otherwise payable on such Distribution Date in
respect of the Pool 2 Companion Component before reducing any amounts otherwise
payable to the Pool 2 NAS Component. Amounts that would have been distributed in
respect of the Class X-A-1 or Class X-A-2 Certificates but for the proviso set
forth in this Section 5.02(b) shall, except for purposes of determining
unreimbursed amounts under clause (b)(y) above, be treated as having been
distributed to the Class X-A-1 or Class X-A-2 Certificates, as the case may be,
for purposes of determining subsequent Interest Shortfalls with respect to the
Class X-A-1 or Class X-A-2 Certificates.
(c) Notwithstanding the priority and allocation set forth in Section
5.02(a)(iv) and Section 5.02(a)(v) above, if with respect to any Class of
Subordinate Certificates on any Distribution Date the sum of the related Class
Subordination Percentages of such Class and of all other Classes of Subordinate
Certificates which have a higher numerical Class designation than such Class is
less than the Original Applicable Credit Support Percentage for such Class, no
distribution of Principal Prepayments shall be made to any such Classes and the
amount of such Principal Prepayment otherwise distributable to such Classes
shall be distributed to any Classes of Subordinate Certificates having lower
numerical Class designations than such Class, pro rata, based on the Class
Principal Amounts of the respective Classes immediately prior to such
Distribution Date and shall be distributed in the sequential order provided in
Section 5.02(a)(iv) and Section 5.02(a)(v) above.
(d) Amounts distributed to the Residual Certificates pursuant to
subparagraph (a)(vi) of this Section 5.02 on any Distribution Date shall be
allocated among the REMIC residual interests represented thereby such that each
such interest is allocated the excess of funds available to the related REMIC
over required distributions to the regular interests in such REMIC on such
Distribution Date.
(e) For purposes of distributions provided in paragraph (a) of this
Section 5.02, each Mortgage Pool shall "relate" to the Senior Class or Classes
of the applicable Related Certificate Group.
(f) For purposes of distributions of interest in paragraph (a) of this
Section 5.02 such distributions to a Class of Certificates on any Distribution
Date shall be made first, in respect of Current Interest; and second, in respect
of Interest Shortfalls.
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(g) Notwithstanding the priority of distributions set forth in
paragraph (a) of this Section 5.02, if on any Distribution Date prior to the
Credit Support Depletion (1) either one of the Rapid Prepayment Conditions is
satisfied on such date and (2) the Certificate Principal Amount of the Senior
Certificates relating to one of the Mortgage Pools has been reduced to zero,
then that portion of the Available Distribution Amount for such Mortgage Pool
described in Section 5.02(a)(ii) that represents principal collections on the
Mortgage Loans shall be applied as an additional distribution to the remaining
Classes of Senior Certificates in reduction of, and in proportion to, the Class
Principal Amounts thereof; provided, however, that any such amounts
distributable to the Class A-R and Class A-1 Certificates shall be distributed
sequentially thereto in such order.
(h) If, on any Distribution Date, any Certificate Group or Groups would
constitute an Undercollateralized Group and the other Certificate Group or
Groups constitute an Overcollateralized Group, then notwithstanding Section
5.02(a)(ii), the Available Distribution Amount for the Overcollateralized Group
or Groups, to the extent remaining following distributions of interest and
principal to the related Senior Certificates of that Certificate Group or Groups
and to the Components of the Class X-A-1 and Class X-A-2 Certificates, if any,
related to the Undercollateralized Group or Groups, shall be distributed up to
the sum of the Interest Transfer Amount and the Principal Transfer Amount for
the Undercollateralized Group or Groups to the Senior Certificates related to
the Undercollateralized Group or Groups and to the Components of the Class X-A-1
and Class X-A-2 Certificates related to the Undercollateralized Group or Groups
in payment of accrued but unpaid interest, if any, and then to such Senior
Certificates as principal, in the same order and priority as such Certificates
would receive other distributions of principal.
Section 5.03 Allocation of Losses.
(a) On or prior to each Distribution Date, the Trustee shall aggregate
the information provided by each Servicer with respect to the total amount of
Realized Losses, with respect to the Mortgage Loans for the related Distribution
Date.
(b) On each Distribution Date, the principal portion of Realized Losses
with respect to such Distribution Date shall be allocated as follows:
(i) Realized Losses shall be allocated in the following
order:
first, to the Classes of Subordinate Certificates in
reverse order of their respective numerical Class designations
(beginning with the Class of Subordinate Certificates with the
highest numerical Class designation) until the Class Principal
Amount of each such Class is reduced to zero; and
second, to each Class of Senior Certificates relating
to the Mortgage Pool which sustained such loss (allocated, in
the case of Pool among the related Senior Classes on a pro
rata basis), in each case, until the Class Principal Amount of
each Class of Senior Certificates is reduced to zero;
(ii) Reserved.
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(iii) The Class Principal Amount of the Class of
Subordinate Certificates then outstanding with the highest numerical
Class designation shall be reduced on each Distribution Date by the
amount, if any, by which the aggregate of the Class Principal Amounts
of all outstanding Classes of Certificates (after giving effect to the
distribution of principal and the allocation of Realized Losses, on
such Distribution Date) exceeds the Aggregate Stated Principal Balance
for the following Distribution Date.
(iv) Any allocation of a loss pursuant to this section to
a Class of Certificates shall be achieved by reducing the Class
Principal Amount thereof by the amount of such loss.
(c) Notwithstanding the other provisions of Section 5.03, the first
$0.22 of Realized Losses shall not be allocated to any Class of Certificates.
Section 5.04 Advances.
If the Servicer fails to remit any Advance required to be made under
the Servicing Agreement, the Trustee solely in its capacity as successor
Servicer shall itself make, or shall cause the successor Servicer to make, such
Advance. If the Trustee solely in its capacity as successor Servicer determines
that an Advance is required, it shall on the Business Day preceding the related
Distribution Date immediately following such Determination Date remit from its
own funds (or funds advanced by the Servicer) for deposit in the Distribution
Account immediately available funds in an amount equal to such Advance. The
Trustee and the Servicer shall be entitled to be reimbursed for all Advances
made by it. Notwithstanding anything to the contrary herein, in the event the
Trustee (or successor servicer) determines in its reasonable judgment that an
Advance is Nonrecoverable, the Trustee (or successor servicer) shall be under no
obligation to make such Advance.
Section 5.05 [RESERVED].
Section 5.06 [RESERVED].
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ARTICLE VI
CONCERNING THE TRUSTEE; EVENTS OF DEFAULT
Section 6.01 Duties of Trustee.
(a) The Trustee, except during the continuance of an Event of Default
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. Any permissive right of the Trustee provided for in
this Agreement shall not be construed as a duty of the Trustee. If an Event of
Default has occurred and has not otherwise been cured or waived, 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.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they are in
the form required by this Agreement; provided, however, that the Trustee shall
not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Servicer to the Trustee pursuant to this Agreement or the
Servicing Agreement, and shall not be required to recalculate or verify any
numerical information furnished to the Trustee pursuant to this Agreement.
Subject to the immediately preceding sentence, if any such resolution,
certificate, statement, opinion, report, document, order or other instrument is
found not to conform to the form required by this Agreement in a material manner
the Trustee shall take such action as it deems appropriate to cause the
instrument to be corrected, and if the instrument is not corrected to the
Trustee's satisfaction, the Trustee will provide notice thereof to the
Certificateholders and will, at the expense of the Trust Fund, which expense
shall be reasonable given the scope and nature of the required action, take such
further action as directed by the Certificateholders.
(c) The Trustee shall not have any liability arising out of or in
connection with this Agreement, except for its negligence or willful misconduct.
Notwithstanding anything in this Agreement to the contrary, the Trustee shall
not be liable for special, indirect or consequential losses or damages of any
kind whatsoever (including, but not limited to, lost profits). No provision of
this Agreement shall be construed to relieve the Trustee from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct; provided, however, that:
(i) The Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Holders of Certificates
as provided in Section 6.18 hereof;
(ii) For all purposes under this Agreement, the Trustee
shall not be deemed to have notice of any Event of Default (other than
resulting from a failure by the Servicer (i) to remit funds (or to make
Advances) or (ii) to furnish information to the Trustee when required
to do so) unless a Responsible Officer of the Trustee has actual
knowledge
83
thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Holders of the Certificates and
this Agreement;
(iii) No provision of this Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it; and none of the provisions contained in this Agreement
shall in any event require the Trustee to perform, or be responsible
for the manner of performance of, any of the obligations of the
Servicer under the Servicing Agreement;
(iv) The Trustee shall not be responsible for any act or
omission of the Servicer, the Depositor, the Originator or the Seller.
(d) The Trustee shall have no duty hereunder with respect to any
complaint, claim, demand, notice or other document it may receive or which may
be alleged to have been delivered to or served upon it by the parties as a
consequence of the assignment of any Mortgage Loan hereunder; provided, however,
that the Trustee shall promptly remit to the Servicer upon receipt any such
complaint, claim, demand, notice or other document (i) which is delivered to the
Corporate Trust Office of the Trustee, (ii) of which a Responsible Officer has
actual knowledge, and (iii) which contains information sufficient to permit the
Trustee to make a determination that the real property to which such document
relates is a Mortgaged Property.
(e) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of the Certificateholders of any Class holding Certificates
which evidence, as to such Class, Percentage Interests aggregating not less than
25% as to the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred upon the
Trustee under this Agreement.
(f) The Trustee shall not be required to perform services under this
Agreement, or to expend or risk its own funds or otherwise incur financial
liability for the performance of any of its duties hereunder or the exercise of
any of its rights or powers if there is reasonable ground for believing that the
timely payment of its fees and expenses or the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it, and none of the provisions contained in this Agreement shall in any event
require the Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Servicer under the Servicing Agreement except
during such time, if any, as the Trustee shall be the successor to, and be
vested with the rights, duties, powers and privileges of, the Servicer in
accordance with the terms of the Servicing Agreement.
(g) The Trustee shall not be held liable by reason of any insufficiency
in the Distribution Account resulting from any investment loss on any Permitted
Investment included therein (except to the extent that the Trustee is the
obligor and has defaulted thereon).
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(h) Except as otherwise provided herein, the Trustee shall not
have any duty (A) to see to any recording, filing, or depositing of this
Agreement or any agreement referred to herein or any financing statement or
continuation statement evidencing a security interest, or to see to the
maintenance of any such recording or filing or depositing or to any
re-recording, refiling or redepositing of any thereof, (B) to see to any
insurance, (C) to see to the payment or discharge of any tax, assessment, or
other governmental charge or any lien or encumbrance of any kind owing with
respect to, assessed or levied against, any part of the Trust Fund other than
from funds available in the Distribution Account, or (D) to confirm or verify
the contents of any reports or certificates of the Servicer delivered to the
Trustee pursuant to the Servicing Agreement believed by the Trustee to be
genuine and to have been signed or presented by the proper party or parties.
(i) The Trustee shall not be liable in its individual capacity for
an error of judgment made in good faith by a Responsible Officer or other
officers of the Trustee, unless it shall be proved that the Trustee, was
negligent in ascertaining the pertinent facts.
(j) Notwithstanding anything in this Agreement to the contrary,
Trustee shall not be liable for special, indirect or consequential losses or
damages of any kind whatsoever (including, but not limited to, lost profits),
even if the Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action.
Section 6.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 6.01:
(i) The Trustee may request, and may rely and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(ii) The Trustee may consult with counsel and any advice
of its counsel or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(iii) The Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(iv) Unless an Event of Default shall have occurred and be
continuing, 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 (provided the same
appears regular on its face), unless requested in writing to do so by
the Holders of at least a majority in Class Principal Amount (or
Percentage Interest) of each Class of Certificates; provided, however,
that, if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded
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to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability or payment of
such estimated expenses from the Certificateholders as a condition to
proceeding. The reasonable expense thereof shall be paid by the party
requesting such investigation and if not reimbursed by the requesting
party shall be reimbursed to the Trustee by the Trust Fund;
(v) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, custodians or attorneys, which agents, custodians or
attorneys shall have any and all of the rights, powers, duties and
obligations of the Trustee conferred on it by such appointment,
provided that the Trustee shall continue to be responsible for its
duties and obligations hereunder to the extent provided herein, and
provided further that the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or attorney
appointed with due care by the Trustee;
(vi) The Trustee shall not be under any obligation to
exercise any of the trusts or powers vested in it by this Agreement or
to institute, conduct or defend any litigation hereunder or in relation
hereto, in each case at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby;
(vii) The right of the Trustee to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty, and
the Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of such act; and
(viii) The Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust Fund created hereby or
the powers granted hereunder.
Section 6.03 Trustee Not Liable for Certificates.
The Trustee make no representations as to the validity or sufficiency
of this Agreement or of the Certificates (other than the certificate of
authentication on the Certificates) or of any Mortgage Loan, or related document
save that the Trustee represents that, assuming due execution and delivery by
the other parties hereto, this Agreement has been duly authorized, executed and
delivered by it and constitutes its valid and binding obligation, enforceable
against it in accordance with its terms except that such enforceability may be
subject to (A) applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors generally, and (B) general
principles of equity regardless of whether such enforcement is considered in a
proceeding in equity or at law. The Trustee shall not be accountable for the use
or application by the Depositor of funds paid to the Depositor in consideration
of the assignment of the Mortgage Loans to the Trust Fund by the Depositor or
for the use or application of any funds deposited into the Distribution Account
or any other fund or account maintained with respect to the Certificates. The
Trustee shall not be responsible for the legality or validity of this Agreement
or the validity, priority, perfection or sufficiency of the security for the
Certificates issued or intended to be issued hereunder. Except as otherwise
provided herein, the Trustee shall have no responsibility for filing any
financing or continuation statement in any
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public office at any time or to otherwise perfect or maintain the perfection of
any security interest or lien granted to it hereunder or to record this
Agreement.
Section 6.04 Trustee May Own Certificates.
The Trustee and any Affiliate or agent of the Trustee in its individual
or any other capacity may become the owner or pledgee of Certificates and may
transact banking and trust business with the other parties hereto and their
Affiliates with the same rights it would have if it were not Trustee or such
agent.
Section 6.05 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times (i) be an institution insured
by the FDIC, (ii) a corporation or national banking association, organized and
doing business under the laws of any State or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority and (iii) not be an Affiliate of the
Servicer. If such corporation or national banking association publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section, the combined capital and surplus of such corporation or national
banking association shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time the Trustee shall cease to be eligible in accordance with provisions of
this Section, the Trustee shall resign immediately in the manner and with the
effect specified in Section 6.06.
Section 6.06 Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trust hereby created by giving written notice thereof to the Depositor and the
Servicer. Upon receiving such notice of resignation, the Depositor will promptly
appoint a successor trustee by written instrument, one copy of which instrument
shall be delivered to the resigning Trustee, one copy to the successor trustee
and one copy to the Servicer. If no successor trustee shall have been so
appointed and shall have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.05 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of either of their property or affairs
for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust Fund by any state in which the
Trustee or the Trust Fund held by the Trustee is located, or (iv) the continued
use of the Trustee would result in a downgrading of the rating by any Rating
Agency of any Class of Certificates with a rating, then the Depositor shall
remove the Trustee and the Depositor shall appoint a successor trustee by
written instrument, one copy of which instrument
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shall be delivered to the Trustee so removed, one copy each to the successor
trustee and one copy to the Servicer.
(c) The Holders of more than 50% of the Class Principal Amount (or
Percentage Interest) of each Class of Certificates may at any time upon 30 days'
written notice to the Trustee and to the Depositor remove the Trustee by such
written instrument, signed by such Holders or their attorney-in-fact duly
authorized, one copy of which instrument shall be delivered to the Depositor and
one copy to the Trustee; the Depositor shall thereupon appoint a successor
trustee in accordance with this Section.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee, as provided
in Section 6.07.
Section 6.07 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 6.06
shall execute, acknowledge and deliver to the Depositor and to its predecessor
trustee, an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as trustee. The
predecessor trustee shall deliver to the successor trustee all Trustee Mortgage
Files and documents and statements related to each Trustee Mortgage File held by
it hereunder, and shall duly assign, transfer, deliver and pay over to the
successor trustee the entire Trust Fund, together with all necessary instruments
of transfer and assignment or other documents properly executed necessary to
effect such transfer and such of the records or copies thereof maintained by the
predecessor trustee in the administration hereof as may be requested by the
successor trustee and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the Depositor and the
predecessor trustee shall execute and deliver such other instruments and do such
other things as may reasonably be required to more fully and certainly vest and
confirm in the successor trustee all such rights, powers, duties and
obligations.
(b) No successor trustee shall accept appointment as provided in
this Section unless at the time of such appointment such successor trustee shall
be eligible under the provisions of Section 6.05.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section, the predecessor trustee shall mail notice of the
succession of such trustee hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register and to any Rating Agency. The
expenses of such mailing shall be borne by the Depositor.
Section 6.08 Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Persons succeeding
to the business of the Trustee shall be the successor to the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
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any of the parties hereto, anything herein to the contrary notwithstanding,
provided that, in the case of the Trustee, such Person shall be eligible under
the provisions of Section 6.05.
Section 6.09 Appointment of Co-Trustee, Separate Trustee or
Custodian.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or the Certificateholders evidencing more than 50% of the
Class Principal Amount (or Percentage Interest) of every Class of Certificates
shall have the power from time to time to appoint one or more Persons, approved
by the Trustee, to act either as co-trustees jointly with the Trustee, or as
separate trustees, or as custodians, for the purpose of holding title to,
foreclosing or otherwise taking action with respect to any Mortgage Loan outside
the state where the Trustee has its principal place of business where such
separate trustee or co-trustee is necessary or advisable (or the Trustee has
been advised by the Servicer that such separate trustee or co-trustee is
necessary or advisable) under the laws of any state in which a property securing
a Mortgage Loan is located or for the purpose of otherwise conforming to any
legal requirement, restriction or condition in any state in which a property
securing a Mortgage Loan is located or in any state in which any portion of the
Trust Fund is located. The separate Trustees, co-trustees, or custodians so
appointed shall be trustees or custodians for the benefit of all the
Certificateholders and shall have such powers, rights and remedies as shall be
specified in the instrument of appointment; provided, however, that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee. The obligation of the Trustee to make Advances pursuant to Section
5.04 hereof shall not be affected or assigned by the appointment of a
co-trustee.
(b) Every separate trustee, co-trustee, and custodian shall, to
the extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred
upon the Trustee in respect of the receipt, custody and payment of
moneys shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate
trustee, co-trustee, or custodian jointly, except to the extent that
under any law of any jurisdiction in which any particular act or acts
are to be performed the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations, including the holding of title to the Trust Fund or
any portion thereof in any such jurisdiction, shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or
custodian hereunder; and
(iv) the Trustee may at any time, by an instrument in
writing executed by it, with the concurrence of the Depositor, accept
the resignation of or remove any separate trustee, co-trustee or
custodian, so appointed by it or them, if such resignation or removal
does not violate the other terms of this Agreement.
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(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee and a copy given to the Servicer.
(d) Any separate trustee, co-trustee or custodian may, at any
time, constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(e) No separate trustee, co-trustee or custodian hereunder shall
be required to meet the terms of eligibility as a successor trustee under
Section 6.05 hereunder and no notice to Certificateholders of the appointment
shall be required under Section 6.07 hereof.
(f) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(g) The Trust shall pay the reasonable compensation of the
co-trustees (which compensation shall not reduce any compensation payable to the
Trustee under such Section).
Section 6.10 Authenticating Agents.
(a) The Trustee may appoint one or more Authenticating Agents
which shall be authorized to act on behalf of the Trustee in authenticating
Certificates. If such an agent is so appointed by the Trustee, wherever
reference is made in this Agreement to the authentication of Certificates by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee by
an Authenticating Agent. Each Authenticating Agent must be a corporation
organized and doing business under the laws of the United States of America or
of any state, having a combined capital and surplus of at least $15,000,000,
authorized under such laws to do a trust business and subject to supervision or
examination by federal or state authorities.
(b) Any Person into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which any Authenticating Agent shall
be a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
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(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Depositor. Upon receiving a notice of resignation
or upon such a termination, or in case at any time any Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section
6.10, the Trustee may appoint a successor authenticating agent, shall give
written notice of such appointment to the Depositor and shall mail notice of
such appointment to all Holders of Certificates. Any successor authenticating
agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers, duties and responsibilities of its predecessor hereunder,
with like effect as if originally named as Authenticating Agent. No successor
authenticating agent shall be appointed unless eligible under the provisions of
this Section 6.10. No Authenticating Agent shall have responsibility or
liability for any action taken by it as such at the direction of the Trustee.
Section 6.11 Indemnification of Trustee.
The Trustee and its respective directors, officers, employees and
agents shall be entitled to indemnification from the Depositor and the Trust
Fund (provided that the Trust Fund's indemnification under this Section 6.11 is
limited by Section 4.01(d) for any loss, liability or expense (including,
without limitation, reasonable attorneys' fees and disbursements (and, in
connection with any custody agreement the Trustee may enter pursuant to this
Agreement, including the reasonable compensation and the expenses and
disbursements of its agents or counsel), incurred without negligence or willful
misconduct on its part, arising out of, or in connection with, the acceptance or
administration of the trusts created hereunder or in connection with the
performance of their duties hereunder including the costs and expenses of
defending themselves against any claim in connection with the exercise or
performance of any of their powers or duties hereunder, provided that:
(i) with respect to any such claim, the Trustee shall
have given the Depositor written notice thereof promptly after the
Trustee shall have knowledge thereof;
(ii) while maintaining control over its own defense, the
Trustee shall cooperate and consult fully with the Depositor in
preparing such defense;
(iii) notwithstanding anything to the contrary in this
Section 6.11, the Trust Fund shall not be liable for settlement of any
such claim by the Trustee entered into without the prior consent of the
Depositor, which consent shall not be unreasonably withheld; and
(iv) the Trust's Fund's indemnification obligations
hereunder shall be limited to losses, liability, costs or expenses,
payments in respect of which by the Trust Fund would constitute
"unanticipated expenses" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii)).
The provisions of this Section 6.11 shall survive any termination of
this Agreement and the resignation or removal of the Trustee and shall be
construed to include, but not be limited to any loss, liability or expense under
any environmental law.
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Section 6.12 Fees and Expenses of the Trustee.
As compensation for its services hereunder, the Trustee shall be
entitled to retain any and all investment earnings on amounts on deposit in the
Distribution Account pending the distribution of such funds to
Certificateholders on each Distribution Date (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust). Any expenses incurred by the Trustee shall be reimbursed in
accordance with Section 6.11.
Section 6.13 Collection of Monies.
Except as otherwise expressly provided in this Agreement, the Trustee
may demand payment or delivery of, and shall receive and collect, all money and
other property payable to or receivable by the Trustee pursuant to this
Agreement. The Trustee shall hold all such money and property received by it as
part of the Trust Fund and shall distribute it as provided in this Agreement.
Section 6.14 Events of Default; Trustee To Act; Appointment
of Successor.
(a) If an Event of Default described in the Servicing Agreement
shall occur and be continuing, then, in each and every case, subject to
applicable law, so long as any such Event of Default shall not have been
remedied within any period of time prescribed by the Servicing Agreement, the
Trustee, by notice in writing to the Servicer may, and shall, if so directed by
Certificateholders evidencing more than 50% of the Class Principal Amount (or
Class Notional Amount) of each Class of Certificates, terminate all of the
rights and obligations of the Servicer under the Servicing Agreement in
accordance with the terms of the Servicing Agreement. On or after the receipt by
the Servicer of such written notice, all authority and power of the Servicer,
whether with respect to the Mortgage Loans or otherwise, shall pass to and be
vested in the Trustee; and the Trustee is hereby authorized and empowered to
execute and deliver, on behalf of the defaulting 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.
If any Event of Default shall occur, the Trustee, upon becoming aware
of the occurrence thereof, shall promptly notify the Depositor and each Rating
Agency of the nature and extent of such Event of Default.
(b) Within 90 days of the time the Servicer receives a notice of
termination from the Trustee pursuant to Section 6.14(a), the Trustee, unless
another Servicer shall have been appointed, shall be the successor in all
respects to the Servicer in its capacity as such under the Servicing Agreement
and the transactions set forth or provided for therein and shall have all the
rights and powers and be subject to all the responsibilities, duties and
liabilities relating thereto and arising thereafter placed on the Servicer
thereunder, including the obligation to make Advances; provided, however, that
any failure to perform such duties or responsibilities caused by the Servicer's
failure to provide information required by this Agreement or the Servicing
Agreement shall not be considered a default by the Trustee hereunder. In
addition, the Trustee
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shall have no responsibility for any act or omission of the Servicer prior to
the issuance of any notice of termination. The Trustee shall have no liability
relating to any representations and warranties of the Servicer set forth in the
Servicing Agreement. In the Trustee's capacity as such successor, the Trustee
shall have the same limitations on liability provided to the Servicer in the
Servicing Agreement. As compensation therefor, the Trustee shall be entitled to
receive all compensation payable to the Servicer under the Servicing Agreement.
The Trustee shall be entitled to be reimbursed by the Depositor and the
Trust Fund (pursuant to Section 6.11 but without regard to any annual limitation
thereunder), in the event that the Servicer does not reimburse the Trustee under
the Servicing Agreement, for all costs associated with the transfer of servicing
from the predecessor Servicer, including, without limitation, any costs or
expenses associated with the termination of the predecessor Servicer, the
appointment of a successor servicer, the complete transfer of all servicing data
and the completion, correction or manipulation of such servicing data as may be
required by the Trustee or any successor servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the Trustee or
successor servicer to service the Mortgage Loans property and effectively (such
costs, "Servicing Transfer Costs").
(c) Notwithstanding the above, the Trustee may, if it shall be
unwilling to continue to so act, or shall, if it is unable to so act, petition a
court of competent jurisdiction to appoint, or, with the consent of the
Depositor, appoint on its own behalf any established housing and home finance
institution servicer, or servicing or mortgage servicing institution having a
net worth of not less than $15,000,000 and meeting such other standards for a
successor servicer as are set forth in the Servicing Agreement and reasonably
satisfactory to the Depositor, as the successor to the Servicer in the
assumption of all of the responsibilities, duties or liabilities of a servicer,
like the Servicer. Any entity designated by the Trustee as a successor servicer
may be an Affiliate of the Trustee; provided, however, that, unless such
Affiliate meets the net worth requirements and other standards set forth herein
for a successor servicer, the Trustee, in its individual capacity shall agree,
at the time of such designation, to be and remain liable to the Trust Fund for
such Affiliate's actions and omissions in performing its duties under the
Servicing Agreement. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted to the
Servicer under the Servicing Agreement. The Trustee and such successor shall
take such actions, consistent with this Agreement and the Servicing Agreement,
as shall be necessary to effectuate any such succession and may make other
arrangements with respect to the servicing to be conducted hereunder which are
not inconsistent herewith and therewith. Neither the Trustee nor any other
successor servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any distribution hereunder or any
portion thereof caused by (i) the failure of the Servicer to deliver, or any
delay in delivering, cash, documents or records to it, (ii) the failure of the
Servicer to cooperate as required by the Servicing Agreement, (iii) the failure
of the Servicer to deliver the Mortgage Loan data to the Trustee as required by
the Servicing Agreement or (iv) restrictions imposed by any regulatory authority
having jurisdiction over the Servicer.
Section 6.15 Additional Remedies of Trustee Upon Event of
Default.
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During the continuance of any Event of Default, so long as such Event
of Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 6.14, shall have the right, in its own name and as trustee
of the Trust Fund, to take all actions now or hereafter existing at law, in
equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement or the Servicing Agreement shall be exclusive of
any other remedy, and each and every remedy shall be cumulative and in addition
to any other remedy, and no delay or omission to exercise any right or remedy
shall impair any such right or remedy or shall be deemed to be a waiver of any
Event of Default.
Section 6.16 Waiver of Defaults.
More than 50% of the Aggregate Voting Interests of Certificateholders
may waive any default or Event of Default by the Servicer in the performance of
its obligations hereunder, except that a default in the making of any required
deposit to the Distribution Account that would result in a failure of the
Trustee to make any required payment of principal of or interest on the
Certificates may only be waived with the consent of 100% of the affected
Certificateholders. Upon any such waiver of a past default, such default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent thereon
except to the extent expressly so waived.
Section 6.17 Notification to Holders.
Upon termination of the Servicer or appointment of a successor to the
Servicer, in each case as provided herein, the Trustee shall promptly mail
notice thereof by first class mail to the Certificateholders at their respective
addresses appearing on the Certificate Register. The Trustee shall also, within
45 days after the occurrence of any Event of Default known to the Trustee, give
written notice thereof to the Certificateholders, unless such Event of Default
shall have been cured or waived prior to the issuance of such notice and within
such 45-day period.
Section 6.18 Directions by Certificateholders and Duties of
Trustee During Event of Default.
Subject to the provisions of Section 8.01 hereof, during the
continuance of any Event of Default, Holders of Certificates evidencing not less
than 25% of the Class Principal Amount (or Percentage Interest) of each Class of
Certificates affected thereby may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Agreement or the
Servicing Agreement; provided, however, that the Trustee shall be under no
obligation to pursue any such remedy, or to exercise any of the trusts or powers
vested in it by this Agreement or the Servicing Agreement (including, without
limitation, (i) the conducting or defending of any administrative action or
litigation hereunder or in relation hereto and (ii) the terminating of the
Servicer or any successor servicer from its rights and duties as servicer) at
the request, order or direction of any of the Certificateholders, unless such
Certificateholders shall have offered to the Trustee
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reasonable security or indemnity against the cost, expenses and liabilities
which may be incurred therein or thereby; and, provided further, that, subject
to the provisions of Section 8.01, the Trustee shall have the right to decline
to follow any such direction if the Trustee, in accordance with an Opinion of
Counsel, determines that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith determines that the action or
proceeding so directed would involve it in personal liability for which it is
not indemnified to its satisfaction or be unjustly prejudicial to the
non-assenting Certificateholders.
Section 6.19 Preparation of Tax Returns and Other Reports.
(a) The Trustee shall prepare or cause to be prepared on behalf of
the Trust Fund, based upon information calculated in accordance with this
Agreement pursuant to instructions given by the Depositor, and the Trustee shall
file federal tax returns, all in accordance with Article X hereof. The Trustee
shall prepare and file such state income tax returns and such other returns as
may be required by applicable law relating to the Trust Fund, and, if required
by state law, and shall file any other documents to the extent required by
applicable state tax law (to the extent such documents are in the Trustee's
possession). The Trustee shall forward copies to the Depositor of all such
returns and Form 1099 supplemental tax information and such other information
within the control of the Trustee as the Depositor may reasonably request in
writing, and shall distribute to each Certificateholder such forms and furnish
such information within the control of the Trustee as are required by the Code
and the REMIC Provisions to be furnished to them, and will prepare and
distribute to Certificateholders Form 1099 (supplemental tax information) (or
otherwise furnish information within the control of the Trustee) to the extent
required by applicable law. The Trustee shall prepare and provide to such
Persons as may be required by applicable law all information returns required
with respect to payments made from the Basis Risk Reserve Fund.
(b) The Trustee shall prepare and file with the Internal Revenue
Service ("IRS"), on behalf of each of REMIC 1, REMIC 2, REMIC 3, REMIC 4 and the
Upper Tier REMIC, an application on IRS Form SS-4 or shall obtain a Taxpayer
Identification Number for each of REMIC 1, REMIC 2, REMIC 3, REMIC 4 and the
Upper Tier REMIC using another reasonable method. If the application is filed on
Form SS-4, the Trustee, upon receipt from the IRS of the Notice of Taxpayer
Identification Number Assigned for each REMIC, shall promptly forward copies of
such notices to the Depositor, upon request. The Trustee will file an IRS Form
8811.
(c) The Depositor shall prepare or cause to be prepared the
initial current report on Form 8-K. Thereafter, within 15 days after each
Distribution Date, the Trustee shall, in accordance with industry standards,
file with the Securities and Exchange Commission (the "Commission") via the
Electronic Data Gathering and Retrieval System (XXXXX), a Form 8-K with a copy
of the statement to the Certificateholders for such Distribution Date as an
exhibit thereto. Prior to January 31, 2004, the Trustee shall, in accordance
with industry standards, file a Form 15 Suspension Notification with respect to
the Trust Fund, if applicable. Prior to March 31, 2004, the Trustee shall file a
Form 10-K executed by the Depositor, in substance conforming to industry
standards, with respect to the Trust Fund. The Depositor shall be responsible
for preparing all filings and certificates required by the Xxxxxxxx-Xxxxx Act of
2002. The Trustee agrees to promptly furnish to the Depositor, from time to time
upon request, such further information, reports, and financial statements within
its control related to this Agreement and the
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Mortgage Loans as the Depositor reasonably deems appropriate to prepare and file
all necessary reports with the Commission.
Section 6.20 Annual Certificate by Trustee.
(a) By March 15th of each year for which a Form 10-K is to be
filed with a certification by the Depositor, an officer of the Trustee shall
execute and deliver an Officer's Certificate, signed by the senior officer in
charge of the Trustee or any officer to whom that officer reports, to the
Depositor for the benefit of such Depositor and its officers, directors and
affiliates, certifying as to the matters described in the Officer's Certificate
attached hereto as Exhibit P.
(b) The Trustee shall indemnify and hold harmless the Depositor
and its officers, directors, agents and affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach by
the Trustee or any of its officers, directors, agents or affiliates of its
obligations under this Section 6.20 any material misstatement or omission in the
Officer's Certificate required under this Section or the negligence, bad faith
or willful misconduct of the Trustee in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, then the Trustee agrees that it shall contribute to the
amount paid or payable by the Depositor as a result of the losses, claims,
damages or liabilities of the Depositor in such proportion as is appropriate to
reflect the relative fault of the Trustee on the one had and the Depositor on
the other in connection with a breach of the Trustee's obligations under this
Section 6.20, any material misstatement or omission in the Officer's Certificate
required under this Section or the Trustee's negligence, bad faith or willful
misconduct in connection therewith.
ARTICLE VII
PURCHASE OF MORTGAGE LOANS AND
TERMINATION OF THE TRUST FUND
Section 7.01 Purchase of Mortgage Loans; Termination of Trust
Fund Upon Purchase or Liquidation of All Mortgage
Loans.
(a) The respective obligations and responsibilities of the Trustee
created hereby (other than the obligation of the Trustee to make payments to
Certificateholders as set forth in Section 7.02), shall terminate on the
earliest of (i) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all REO Property, (ii) the
sale of the property held by the Trust Fund in accordance with Section 7.01(c)
and (iii) the Latest Possible Maturity Date; provided, however, that in no event
shall the Trust Fund created hereby continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late Ambassador of the United States to the Court of St. James's, living on the
date hereof. Any termination of the Trust Fund shall be carried out in such a
manner so that the termination of each REMIC included therein shall qualify as a
"qualified liquidation" under the REMIC Provisions.
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(b) On any Distribution Date occurring after the Initial
Redemption Purchase Date, the majority Holder of the most subordinate Class of
Subordinate Certificates then outstanding (the "Terminator") has the option to
cause the redemption of the Certificates, in whole but not in part. If the
Terminator elects to redeem the Certificates, it shall no later than 30 days
prior to the Distribution Date selected for redemption of the Certificates (the
"Redemption Date") deliver notices to the Trustee and the Depositor and either
(i) deposit in the Distribution Account the Redemption Price or (ii) state in
such notice that the Redemption Price shall be deposited in the Distribution
Account not later than 5:00 p.m., New York City time on the Business Day before
the applicable Redemption Date. Upon an election to exercise this redemption
option, the assets of the Trust Fund underlying the Certificates will be
transferred to the Terminator and the Trust Fund will terminate.
(c) On any Distribution Date occurring on or after the Initial
Optional Purchase Date, the Terminator has the option to purchase the Mortgage
Loans and cause the Trust Fund to adopt a plan of complete liquidation pursuant
to Section 7.03(a)(i) hereof to sell all of its property. If the Terminator
elects to exercise such option, it shall no later than 30 days prior to the
Distribution Date selected for purchase of the assets of the Trust Fund (the
"Purchase Date") deliver notices to the Trustee and the Depositor and either (i)
deposit in the Distribution Account the Redemption Price or (ii) state in such
notice that the Redemption Price shall be deposited in the Distribution Account
not later than 5:00 p.m., New York City time on the Business Day before the
applicable Purchase Date. Upon exercise of such option, the property of the
Trust Fund shall be sold to the Terminator at a price equal to the Redemption
Price.
(d) The Servicer and the Trustee shall be reimbursed from the
Redemption Price for any Advances, Servicer Advances, accrual and unpaid
Servicing Fees or other amounts with respect to the Mortgage Loans that are
reimbursable to such parties under this Agreement or the Servicing Agreement.
Section 7.02 Procedure Upon Redemption or Termination of Trust
Fund.
(a) Notice of any redemption or optional termination pursuant to
the provisions of Sections 7.01(b) and 7.01(c), respectively, specifying the
Distribution Date upon which the final distribution shall be made or the
Redemption Date of the Certificates or Purchase Date, as applicable, shall be
given promptly by the Trustee by first class mail to Certificateholders mailed
in the case of a redemption of the Certificates, no less than the first day of
the month in which the Distribution Date selected for redemption or purchase of
the Certificates occurs or upon (x) the sale of all of the property of the Trust
Fund by the Trustee or in the case of a sale of assets of the Trust Fund, or (y)
upon the final payment or other liquidation of the last Mortgage Loan or REO
Property in the Trust Fund. Such notice shall specify (A) the Redemption Date or
the Purchase Date, as applicable, and the Distribution Date upon which final
distribution on the Certificates of all amounts required to be distributed to
Certificateholders pursuant to Section 5.02 will be made upon presentation and
surrender of the Certificates at the Certificate Registrar's Corporate Trust
Office, and (B) that the Record Date otherwise applicable to such Distribution
Date is not applicable, distribution being made only upon presentation and
surrender of the Certificates at the office or agency of the Trustee therein
specified. The Trustee shall give such notice to the Certificate Registrar at
the time such notice is given to Holders of the Certificates. Upon any such
termination, the duties of the Trustee and the Certificate Xxxxxxxxx
00
with respect to the Certificates shall terminate and the Trustee shall terminate
the Distribution Account and any other account or fund maintained with respect
to the Certificates, subject to the Trustee's obligation hereunder to hold all
amounts payable to Certificateholders in trust without interest pending such
payment.
(b) In the event that all of the Holders do not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee may take appropriate steps to contact
the remaining Certificateholders concerning surrender of such Certificates, and
the cost thereof shall be paid out of the amounts distributable to such Holders.
If within two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Trustee shall, subject to applicable state law
relating to escheatment, hold all amounts distributable to such Holders for the
benefit of such Holders. No interest shall accrue on any amount held by the
Trustee and not distributed to a Certificateholder due to such
Certificateholder's failure to surrender its Certificate(s) for payment of the
final distribution thereon in accordance with this Section.
(c) Any reasonable expenses incurred by the Trustee, to the extent
that such expenses, if paid or reimbursed by the Trust Fund, would constitute
"unanticipated expenses" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii), in connection with any redemption or termination or
liquidation of the Trust Fund shall be reimbursed from proceeds received from
the liquidation of the Trust Fund.
Section 7.03 Additional Trust Fund Termination Requirements.
(a) Any termination of the Trust Fund shall be effected in
accordance with the following additional requirements, unless the Trustee seeks
(at the request of the party exercising the option to (i) redeem all of the
Certificates pursuant to Section 7.01(b) or (ii) purchase all of the Mortgage
Loans pursuant to Section 7.01(c) and subsequently receives, an Opinion of
Counsel (at the expense of such requesting party), addressed to the Trustee to
the effect that the failure of the Trust Fund to comply with the requirements of
this Section 7.03 will not (I) result in the imposition of taxes on any REMIC
under the REMIC Provisions or (II) cause any REMIC established hereunder to fail
to qualify as a REMIC at any time that any Certificates are outstanding:
(i) Within 89 days prior to the time of the making of the
final payment on the Certificates, upon notification by the Depositor
that it intends to exercise its option to cause the termination of the
Trust Fund, the Trustee shall adopt a plan of complete liquidation
prepared by the Depositor of the Trust Fund on behalf of each REMIC,
meeting the requirements of a qualified liquidation under the REMIC
Provisions;
(ii) Any sale of the assets of the Trust Fund pursuant to
Section 7.02 shall be a sale for cash and shall occur at or after the
time of adoption of such a plan of complete liquidation and prior to
the time of making of the final payment on the Certificates;
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(iii) On the date specified for final payment of the
Certificates, the Trustee shall make final distributions of principal
and interest on the Certificates in accordance with Section 5.02 and,
after payment of, or provision for any outstanding expenses, distribute
or credit, or cause to be distributed or credited, to the Holders of
the Residual Certificates all cash on hand after such final payment
(other than cash retained to meet claims), and the Trust Fund (and each
REMIC) shall terminate at that time; and
(iv) In no event may the final payment on the Certificates
or the final distribution or credit to the Holders of the Residual
Certificates be made after the 89th day from the date on which the plan
of complete liquidation is adopted.
(b) By its acceptance of a Residual Certificate, each Holder
thereof hereby agrees to accept the plan of complete liquidation adopted by the
Trustee under this Section and to take such other action in connection therewith
as may be reasonably requested by the Trustee.
Section 7.04 [RESERVED].
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ARTICLE VIII
RIGHTS OF CERTIFICATEHOLDERS
Section 8.01 Limitation on Rights of Holders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or this Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of this
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them. Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Trustee or the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(b) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of Certificates evidencing not less than 25% of the Class
Principal Amount or Class Notional Amount (or Percentage Interest) of
Certificates of each Class affected thereby shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding and no direction inconsistent
with such written request has been given such Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
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Section 8.02 Access to List of Holders.
(a) If the Trustee is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee,
within fifteen days after receipt by the Certificate Registrar of a request by
the Trustee in writing, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Certificateholders of each Class as
of the most recent Record Date.
(b) If three or more Holders or Certificate Owners (hereinafter
referred to as "Applicants") apply in writing to the Trustee, and such
application states that the Applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, afford such Applicants reasonable access during the normal
business hours of the Trustee to the most recent list of Certificateholders held
by the Trustee or shall, as an alternative, send, at the Applicants' expense,
the written communication proffered by the Applicants to all Certificateholders
at their addresses as they appear in the Certificate Register.
(c) Every Holder or Certificate Owner, if the Holder is a Clearing
Agency, by receiving and holding a Certificate, agrees with the Depositor, the
Certificate Registrar and the Trustee that neither the Depositor, the
Certificate Registrar nor the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 8.03 Acts of Holders of Certificates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or taken
by Holders or Certificate Owners, if the Holder is a Clearing Agency, may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee. Such
instrument or instruments (as the action embodies therein and evidenced thereby)
are herein sometimes referred to as an "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agents shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee, if made in the manner provided
in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments or deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Whenever
such execution is by an officer of a corporation or a member of a partnership on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or
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writing, or the authority of the individual executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (whether or not such
Certificates shall be overdue and notwithstanding any notation of ownership or
other writing thereon made by anyone other than the Trustee) shall be proved by
the Certificate Register, and neither the Trustee nor the Depositor shall be
affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Certificate shall bind
every future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by the
Trustee in reliance thereon, whether or not notation of such action is made upon
such Certificate.
ARTICLE IX
[RESERVED]
ARTICLE X
REMIC ADMINISTRATION
Section 10.01 REMIC Administration.
(a) REMIC elections as set forth in the Preliminary Statement
shall be made on Forms 1066 or other appropriate federal tax or information
return for the taxable year ending on the last day of the calendar year in which
the Certificates are issued. The regular interests and residual interest in each
REMIC shall be as designated in the Preliminary Statement and Section 1.01.
(b) The Closing Date is hereby designated as the "Startup Day" of
each REMIC within the meaning of section 860G(a)(9) of the Code. The latest
possible maturity date for purposes of Treasury Regulation 1.860G-1(a)(4) will
be the Latest Possible Maturity Date.
(c) The Trustee shall represent the Trust Fund in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority with respect thereto. The Trustee shall pay any
and all tax related expenses (not including taxes) of each REMIC, including but
not limited to any professional fees or expenses related to audits or any
administrative or judicial proceedings with respect to such REMIC that involve
the Internal Revenue Service or state tax authorities, but only to the extent
that (i) such expenses are ordinary or routine expenses, including expenses of a
routine audit but not expenses of litigation (except as described in (ii)); or
(ii) such expenses or liabilities (including taxes and penalties) are
attributable to the negligence or willful misconduct of the Trustee in
fulfilling its duties hereunder (including its duties as tax return preparer).
The Trustee shall be entitled to reimbursement of expenses to the extent
provided in clause (i) above from the Distribution Account, provided, however,
the Trustee shall not be entitled to reimbursement for expenses
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incurred in connection with the preparation of tax returns and other reports as
required by Section 6.19 and this Section.
(d) The Trustee shall prepare, sign and file all of each REMIC's
federal and appropriate state tax and information returns as such REMIC's direct
representative. The expenses of preparing and filing such returns shall be borne
by the Trustee.
(e) The Trustee or its designee shall perform on behalf of each
REMIC all reporting and other tax compliance duties that are the responsibility
of such REMIC under the Code, the REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Among its other duties, if required by the Code, the REMIC Provisions, or other
such guidance, the Trustee shall provide, upon receipt of additional reasonable
compensation, to the Treasury or other governmental authority such information
as is necessary for the application of any tax relating to the transfer of a
Residual Certificate to any disqualified person or organization pursuant to
Treasury Regulation 1.860E-2(a)(5) and any person designated in Section
860E(e)(3) of the Code.
(f) The Trustee and the Holders of Certificates shall take any
action or cause any REMIC to take any action necessary to create or maintain the
status of any REMIC as a REMIC under the REMIC Provisions and shall assist each
other as necessary to create or maintain such status. Neither the Trustee nor
the Holder of any Residual Certificate shall knowingly take any action, cause
any REMIC to take any action or fail to take (or fail to cause to be taken) any
action that, under the REMIC Provisions, if taken or not taken, as the case may
be, could (i) endanger the status of any REMIC as a REMIC or (ii) result in the
imposition of a tax upon any REMIC (including but not limited to the tax on
prohibited transactions as defined in Code Section 860F(a)(2) and the tax on
prohibited contributions set forth on Section 860G(d) of the Code) (either such
event, an "Adverse REMIC Event") unless the Trustee has received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the effect
that the contemplated action will not endanger such status or result in the
imposition of such a tax. In addition, prior to taking any action with respect
to any REMIC or the assets therein, or causing any REMIC to take any action,
which is not expressly permitted under the terms of this Agreement, any Holder
of a Residual Certificate will consult with the Trustee, in writing, with
respect to whether such action could cause an Adverse REMIC Event to occur with
respect to any REMIC, and no such Person shall take any such action or cause any
REMIC to take any such action as to which the Trustee has advised it in writing
that an Adverse REMIC Event could occur; provided, however, that if no Adverse
REMIC Event would occur but such action could result in the imposition of
additional taxes on the Residual Certificateholders, no such Person shall take
any such action, or cause any REMIC to take any such action without the written
consent of the Residual Certificateholders.
(g) Each Holder of a Residual Certificate shall pay when due any
and all taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such taxes are not paid by a Residual
Certificateholder, the Trustee or the Paying Agent shall pay any remaining REMIC
taxes out of current or future amounts otherwise distributable to the Holder of
the Residual Certificate in any such REMIC or, if no such amounts are available,
out of other amounts held in the Collection Account, and shall reduce amounts
otherwise payable to holders of regular interests in any such REMIC, as the case
may be.
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(h) The Trustee shall, for federal income tax purposes, maintain
books and records with respect to each REMIC on a calendar year and on an
accrual basis.
(i) No additional contributions of assets shall be made to any
REMIC, except as expressly provided in this Agreement.
(j) The Trustee shall not enter into any arrangement by which any
REMIC will receive a fee or other compensation for services.
(k)
(i) The Trustee shall treat the Class A-1 Certificates as
representing ownership, through a grantor trust, of the Upper Tier
REMIC Class A-1 Interest. The Trustee shall treat the rights of the
Holders of the Class A-1 Certificates to receive distributions
attributable to accruals of interest at rates in excess of the Pool 1
Adjusted Net WAC, including all payments in respect of Basis Risk
Shortfalls and Unpaid Basis Risk Shortfalls, as interests in interest
rate cap contracts written by the Holders of each of the Class X-A-1
and Class X-A-2 Certificates (as holders of interests in the Pool 1
REMIC NAS Component or the Pool 1 REMIC Companion Component) in favor
of the Holders of the Class A-1 Certificates. Amounts otherwise payable
with respect to the Pool 1 REMIC Companion Component will be treated as
used to make payments in respect of the interest rate cap contracts
written in favor of the holders of the Class A-1 Certificates before
amounts payable with respect to the Pool 1 REMIC NAS Component are so
treated.
(ii) The Trustee shall treat the Class A-2 Certificates as
representing ownership, through a grantor trust, of the Upper Tier
REMIC Class A-2 Interest. The Trustee shall treat the rights of the
Holders of the Class A-2 Certificates to receive distributions
attributable to accruals of interest at rates in excess of the Pool 2
Adjusted Net WAC, including all payments in respect of Basis Risk
Shortfalls and Unpaid Basis Risk Shortfalls, as interests in interest
rate cap contracts written by the Holders of each of the Class X-A-1
and Class X-A-2 Certificates (as holders of interests in the Pool 2
REMIC NAS Component or the Pool 2 REMIC Companion Component) in favor
of the Holders of the Class A-2 Certificates. Amounts otherwise payable
with respect to the Pool 2 REMIC Companion Component will be treated as
used to make payments in respect of the interest rate cap contracts
written in favor of the holders of the Class A-2 Certificates before
amounts payable with respect to the Pool 2 REMIC NAS Component are so
treated.
(iii) The Trustee shall treat the Class X-A-1 Certificates
as representing, through separate grantor trusts, the Pool 1 REMIC NAS
Component and the Pool 2 REMIC NAS Component. The Trustee shall treat
the Class X-A-2 Certificates as representing, through separate grantor
trusts, the Pool 1 REMIC Companion Component and the Pool 2 REMIC
Companion Component. The Trustee will treat all amounts distributed in
respect of the Pool 1 NAS Component that either (x) reverse the effect
of the provisos of Section 5.02(a)(i) or 5.02(b) on the amount of prior
distributions in respect of the Pool 1 NAS Component or (y) reverse the
effect of the Current Interest
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Restriction as amounts paid under an interest rate cap agreement
written by the holders of the Class X-A-2 Certificates in favor of the
holders of the Class X-A-1 Certificates. The Trustee will treat all
amounts distributed in respect of the Pool 2 NAS Component that either
(x) reverse the effect of the provisos of Section 5.02(a)(i) or 5.02(b)
on the amount of prior distributions in respect of the Pool 2 NAS
Component or (y) reverse the effect of the Current Interest Restriction
as amounts paid under an interest rate cap agreement written by the
holders of the Class X-A-2 Certificates in favor of the holders of the
Class X-A-1 Certificates.
(iv) The Trustee shall treat each of the Class X-0, X-0
and Class B-3 Certificates as representing ownership, through grantor
trusts, of the Upper Tier REMIC Class B-1 Interest, Upper Tier REMIC
Class B-2 Interest and Upper Tier REMIC Class B-3 Interest,
respectively. The Trustee shall treat the rights of the Holders of the
Class B-1, Class B-2 and Class B-3 Certificates to receive payments in
respect of Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls as
interests in cap contracts written by the Holders of the Class X-B
Certificate in favor of the Holders of the Class B-1, Class B-2 and
Class B-3 Certificates.
(v) For purposes of determining the issue prices of the
REMIC regular interests or portions thereof represented by the
Certificates, the interest rate cap contracts described in this Section
10.01(k) shall be assumed to have a zero value unless and until
required otherwise by an applicable taxing authority.
(vi) Each holder or beneficial owner of a Class X-0, Xxxxx
X-0, Class X-A-1, Class X-A-2, Class X-B, Class B-1, Class B-2 or Class
B-3 Certificate agrees, by its acceptance of such Certificate or a
beneficial interest therein, to treat, for tax purposes, such
Certificate in a manner consistent with the treatment described in this
Section 10.01(k).
(vii) For federal income tax purposes, the Trustee shall
treat distributions from the Trust Fund as occurring as required by the
terms of the Upper Tier REMIC Interests, with any difference between
such and actual distributions being treated as resulting from payments
in respect of the interest rate cap agreements described in this
Section 10.01(k).
(l) The Class A-R Holder shall act as "tax matters person" with
respect to each REMIC and irrevocably appoints the Trustee to act as its agent
in such roles.
(m) Neither the Trustee nor the Depositor, as assignees under the
Servicing Agreement, shall provide any consent pursuant to the Servicing
Agreement or knowingly take any action under such Servicing Agreement that would
conflict with or violate the provisions of this Article X.
105
Section 10.02 Prohibited Transactions and Activities.
Neither the Depositor nor the Trustee shall sell, dispose of, or
substitute for any of the Mortgage Loans, except in a disposition pursuant to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of each REMIC pursuant to Article VII of this Agreement,
(iv) a substitution pursuant to Article II of this Agreement or (v) a repurchase
of Mortgage Loans pursuant to Article II of this Agreement, nor acquire any
assets for any REMIC, nor sell or dispose of any investments in the Distribution
Account for gain, nor accept any contributions to any REMIC after the Closing
Date, unless it has received an Opinion of Counsel (at the expense of the party
causing such sale, disposition, or substitution) that such disposition,
acquisition, substitution, or acceptance will not (a) affect adversely the
status of any such REMIC as a REMIC or of the interests therein other than the
Residual Certificate as the regular interests therein, (b) affect the
distribution of interest or principal on the Certificates, (c) result in the
encumbrance of the assets transferred or assigned to the Trust Fund (except
pursuant to the provisions of this Agreement) or (d) cause any such REMIC to be
subject to any tax including a tax on prohibited transactions or prohibited
contributions pursuant to the REMIC Provisions.
Section 10.03 Indemnification with Respect to Prohibited
Transactions or Loss of REMIC Status.
In the event that a REMIC fails to qualify as a REMIC, loses its status
as a REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due to the
negligent performance by the Trustee of its duties and obligations set forth
herein, the Trustee shall indemnify the Certificateholders of the related
Residual Certificate against any and all losses, claims, damages, liabilities or
expenses ("Losses") resulting from such negligence; provided, however, that the
Trustee shall not be liable for any such Losses attributable to the action or
inaction of the Depositor or the Holder of the Residual Certificate, nor for any
such Losses resulting from misinformation provided by any of the foregoing
parties on which the Trustee has relied. Notwithstanding the foregoing, however,
in no event shall the Trustee have any liability (1) for any action or omission
that is taken in accordance with and in compliance with the express terms of, or
which is expressly permitted by the terms of, this Agreement, the Master
Mortgage Loan Purchase Agreement or the Servicing Agreement, (2) for any Losses
other than arising out of malfeasance, willful misconduct or negligent
performance by the Trustee of its duties and obligations set forth herein, and
(3) for any special or consequential damages to Certificateholders of the
related Residual Certificate (in addition to payment of principal and interest
on the Certificates).
Section 10.04 REO Property.
(a) Notwithstanding any other provision of this Agreement, the
Trustee, shall not, except to the extent provided in the Servicing Agreement,
knowingly permit any Servicer to, rent, lease, or otherwise earn income on
behalf of any REMIC with respect to any REO Property which might cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
section 860G(a)(8) of the Code or result in the receipt by any REMIC of any
"income from non-permitted assets" within the meaning of section 860F(a)(2) of
the Code or any "net income from foreclosure property" which is subject to tax
under the REMIC Provisions unless the Servicer has provided to the Trustee an
Opinion of Counsel concluding that, under the
106
REMIC Provisions, such action would not adversely affect the status of any REMIC
as a REMIC and any income generated for any REMIC by the REO Property would not
result in the imposition of a tax upon such REMIC.
(b) The Depositor shall cause the Servicer (to the extent provided
in the Servicing Agreement) to make reasonable efforts to sell any REO Property
for its fair market value. In any event, however, the Depositor shall, or shall
cause the Servicer (to the extent provided in the Servicing Agreement) to,
dispose of any REO Property within three years of its acquisition by the Trust
Fund unless the Depositor or the Servicer (on behalf of the Trust Fund) has
received a grant of extension from the Internal Revenue Service to the effect
that, under the REMIC Provisions and any relevant proposed legislation and under
applicable state law, the REMIC may hold REO Property for a longer period
without adversely affecting the REMIC status of such REMIC or causing the
imposition of a Federal or state tax upon such REMIC. If such an extension has
been received, then the Depositor, acting on behalf of the Trustee hereunder,
shall, or shall cause the Servicer to, continue to attempt to sell the REO
Property for its fair market value for such period longer than three years as
such extension permits (the "Extended Period"). If such an extension has not
been received and the Depositor or the Servicer, acting on behalf of the Trust
Fund hereunder, is unable to sell the REO Property within 33 months after its
acquisition by the Trust Fund or if such an extension, has been received and the
Depositor or the Servicer is unable to sell the REO Property within the period
ending three months before the close of the Extended Period, the Depositor shall
cause the Servicer, before the end of the three year period or the Extended
Period, as applicable, to (i) purchase such REO Property at a price equal to the
REO Property's fair market value or (ii) auction the REO Property to the highest
bidder (which may be the Servicer) in an auction reasonably designed to produce
a fair price prior to the expiration of the three-year period or the Extended
Period, as the case may be.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Binding Nature of Agreement; Assignment.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 11.02 Entire Agreement.
This Agreement contains the entire agreement and understanding among
the parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof.
Section 11.03 Amendment.
107
(a) This Agreement may be amended from time to time by the
Depositor and the Trustee, without notice to or the consent of any of the
Holders, (i) to cure any ambiguity or mistake, (ii) to cause the provisions
herein to conform to or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust Fund or this Agreement in any
Offering Document, or to correct or supplement any provision herein which may be
inconsistent with any other provisions herein or with the provisions of the
Servicing Agreement, (iii) to add any other provisions with respect to matters
or questions arising under this Agreement, (iv) to modify alter, amend, add to
or rescind any of the terms or provisions contained in this Agreement or (v) to
add, delete, or amend any provisions to the extent necessary or desirable to
comply with any requirements imposed by the Code and the REMIC Provisions. No
such amendment effected pursuant to the preceding sentence shall, as evidenced
by an Opinion of Counsel, adversely affect the status of any REMIC created
pursuant to this Agreement, nor shall such amendment effected pursuant to
clauses (iii) or (iv) of such sentence adversely affect in any material respect
the interests of any Holder unless such Holder has consented thereto. Prior to
entering into any amendment without the consent of Holders pursuant to this
paragraph, the Trustee shall be provided with an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such
amendment is permitted under this Section. Any such amendment shall be deemed
not to adversely affect in any material respect any Holder, if the Trustee
receives written confirmation from each Rating Agency that such amendment will
not cause such Rating Agency to reduce the then current rating assigned to the
Certificates.
(b) This Agreement may also be amended from time to time by the
Depositor and the Trustee, with the consent of the Holders of not less than
66-2/3% of the Class Principal Amount (or Percentage Interest) of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders; provided, however, that no
such amendment shall be made unless the Trustee receives an Opinion of Counsel,
at the expense of the party requesting the change, that such change will not
adversely affect the status of any REMIC as a REMIC or cause a tax to be imposed
on such REMIC; and provided further, that no such amendment may (i) reduce in
any manner the amount of, or delay the timing of, payments received on Mortgage
Loans which are required to be distributed on any Certificate, without the
consent of the Holder of such Certificate or (ii) reduce the aforesaid
percentages of Class Principal Amount or Class Notional Amount (or Percentage
Interest) of Certificates of each Class, the Holders of which are required to
consent to any such amendment without the consent of the Holders of 100% of the
Class Principal Amount or Class Notional Amount (or Percentage Interest) of each
Class of Certificates affected thereby. For purposes of this paragraph,
references to "Holder" or "Holders" shall be deemed to include, in the case of
any Class of Book-Entry Certificates, the related Certificate Owners.
(c) Promptly after the execution of any such amendment, the
Trustee shall furnish written notification of the substance of such amendment to
each Holder, the Depositor and the Rating Agencies.
(d) It shall not be necessary for the consent of Holders under
this Section 11.03 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing
108
the authorization of the execution thereof by Holders shall be subject to such
reasonable regulations as the Trustee may prescribe.
(e) Notwithstanding anything to the contrary in the Servicing
Agreement, the Trustee shall not consent to any amendment of the Servicing
Agreement except pursuant to the standards provided in this Section with respect
to amendment of this Agreement.
(f) Neither the Seller not the Trustee shall consent to the
assignment by the Servicer of the Servicer's rights and obligations under the
Servicing Agreement without the prior written consent of the Depositor, which
consent shall not be unreasonably withheld.
Section 11.04 Voting Rights.
Except to the extent that the consent of all affected
Certificateholders is required pursuant to this Agreement, with respect to any
provision of this Agreement requiring the consent of Certificateholders
representing specified percentages of aggregate outstanding Certificate
Principal Amount or Class Notional Amount (or Percentage Interest), Certificates
owned by the Depositor, the Trustee, the Servicer or any Affiliates thereof are
not to be counted so long as such Certificates are owned by the Depositor, the
Trustee, the Servicer or any Affiliate thereof.
Section 11.05 Provision of Information.
(a) For so long as any of the Certificates of any Series or Class
are "restricted securities" within the meaning of Rule 144(a)(3) under the Act,
each of the Depositor and the Trustee agree to cooperate with each other to
provide to any Certificateholders and to any prospective purchaser of
Certificates designated by such holder, upon the request of such holder or
prospective purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act. Any reasonable, out-of-pocket expenses incurred by the Trustee in
providing such information shall be reimbursed by the Depositor.
(b) The Trustee shall provide to any person to whom a Prospectus
was delivered, upon the request of such person specifying the document or
documents requested, (i) a copy (excluding exhibits) of any report on Form 8-K
or Form 10-K filed with the Securities and Exchange Commission pursuant to
Section 9.23(b) and (ii) a copy of any other document incorporated by reference
in the Prospectus. Any reasonable out-of-pocket expenses incurred by the Trustee
in providing copies of such documents shall be reimbursed by the Depositor.
(c) On each Distribution Date, the Trustee shall deliver or cause
to be delivered by first class mail or make available on its website to the
Depositor, Attention: Contract Finance, a copy of the report delivered to
Certificateholders pursuant to Section 4.02.
109
Section 11.06 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 11.07 Notices.
All requests, demands, notices, authorizations, directions, consents,
waivers and communications hereunder shall be in writing and shall be deemed to
have been duly given when received by (a) in the case of the Depositor, Xxxxxxx
Xxxxx Mortgage Investors, Inc., 000 Xxxxx Xxxxxx, 4 World Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, telecopy number (000) 000-0000, Attention:
Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2003-F, (b) in the case of
the Originator, Xxxxxxx Xxxxx Credit Corporation, 000 Xxxxx Xxxxxx, 4 World
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, telecopy number (212)
449-9015, Attention: Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2003-F,
(c) in the case of the Seller, Redwood Holdings Inc., Xxx Xxxxxxxxx Xxxxx, Xxxxx
000, Xxxx Xxxxxx, Xxxxxxxxxx 00000 and (d) with respect to the Trustee or the
Certificate Registrar, X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: Client
Manager - MLMI Trust Series MLCC 2003-F, with a copy to it at its respective
Corporate Trust Office, or as to each party such other address as may hereafter
be furnished by such party to the other parties in writing. All demands, notices
and communications to a party hereunder shall be in writing and shall be deemed
to have been duly given when delivered to such party at the relevant address,
facsimile number or electronic mail address set forth above or at such other
address, facsimile number or electronic mail address as such party may designate
from time to time by written notice in accordance with this Section 11.07.
Section 11.08 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.09 Indulgences; No Waivers.
Neither the failure nor any delay on the part of a party to exercise
any right, remedy, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege preclude any other or further exercise of the same or of any
other right, remedy, power or privilege, nor shall any waiver of any right,
remedy, power or privilege with respect to any occurrence be construed as a
waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed
by the party asserted to have granted such waiver.
Section 11.10 Headings Not To Affect Interpretation.
110
The headings contained in this Agreement are for convenience of
reference only, and they shall not be used in the interpretation hereof.
Section 11.11 Benefits of Agreement.
Nothing in this Agreement or in the Certificates, express or implied,
shall give to any Person, other than the parties to this Agreement and their
successors hereunder and the Holders of the Certificates, any benefit or any
legal or equitable right, power, remedy or claim under this Agreement, except to
the extent specified in Section 11.15.
Section 11.12 Special Notices to the Rating Agencies.
(a) The Depositor shall give prompt notice to the Rating Agencies
of the occurrence of any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section
11.03;
(ii) the occurrence of any Event of Default;
(iii) any notice of termination given to the Servicer
pursuant to Section 6.14 or any resignation of the Servicer pursuant to
the Servicing Agreement;
(iv) the appointment of any successor to the Servicer
pursuant to Section 6.14; and
(v) the making of a final payment pursuant to Section
7.02.
(b) All notices to the Rating Agencies provided for this Section
shall be in writing and sent by first class mail, telecopy or overnight courier,
as follows:
If to Moody's, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Monitoring
If to S&P, to:
Standard & Poor's Ratings Service,
a Division of The XxXxxx-Xxxx
Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgages
If to Fitch Ratings, to:
Fitch, Inc.
000
Xxx Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Surveillance Group
(c) The Trustee shall provide or make available to the Rating
Agencies reports prepared pursuant to Section 4.02. In addition, the Trustee
shall, at the expense of the Trust Fund, make available to each Rating Agency
such information as such Rating Agency may reasonably request regarding the
Certificates or the Trust Fund, to the extent that such information is
reasonably available to the Trustee.
Section 11.13 Conflicts.
To the extent that the terms of this Agreement conflict with the terms
of the Servicing Agreement, the Servicing Agreement shall govern.
Section 11.14 Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
Section 11.15 No Petitions.
The Trustee, by entering into this Agreement, hereby covenants and
agrees that it shall not at any time institute against the Depositor, or join in
any institution against the Depositor of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to this Agreement or any of the documents entered into
by the Depositor in connection with the transactions contemplated by this
Agreement.
112
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers hereunto duly authorized as of the
day and year first above written.
XXXXXXX XXXXX MORTGAGE INVESTORS,
INC., as Depositor
By:_______________________________
Name: Xxxxxxx Xxxxxx
Title: President
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:_______________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
MLCC 2003-F
Trust Agreement
Solely for purposes of Section 2.04,
accepted and agreed to by:
XXXXXXX XXXXX CREDIT CORPORATION
By:____________________________
Name: Xxxxx Xxxxxx
Title: Vice President
Solely for purposes of Section 2.04,
accepted and agreed to by:
XXXXXXX XXXXX BANK & TRUST CO.
By:____________________________
Name: Xxxxx X. Xxxxxxxxxxx, III
Title: President and CEO
Solely for purposes of Section 2.06,
accepted and agreed to by:
RWT HOLDINGS, INC.
By:____________________________
Name:
Title:
MLCC 2003-F
Trust Agreement
EXHIBIT A
FORMS OF CERTIFICATES
[INTENTIONALLY OMITTED]
A-1
EXHIBIT B
FORM OF RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEREE)
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], _________________ being first duly sworn, deposes
and says:
1. That he [she] is [title of officer] ________________________
of [name of Purchaser] _____________________________________
(the "Purchaser"), a _______________________ [description of
type of entity] duly organized and existing under the laws of
the [State of __________] [United States], on behalf of which
he [she] makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is [ ].
3. That the Purchaser is not a "disqualified organization" within
the meaning of Section 860E(e)(5) of the Internal Revenue Code
of 1986, as amended (the "Code") and will not be a
"disqualified organization" as of [date of transfer], and that
the Purchaser is not acquiring a Residual Certificate (as
defined in the Agreement) for the account of, or as agent
(including a broker, nominee, or other middleman) for, any
person or entity from which it has not received an affidavit
substantially in the form of this affidavit. For these
purposes, a "disqualified organization" means the United
States, any state or political subdivision thereof, any
foreign government, any international organization, any agency
or instrumentality of any of the foregoing (other than an
instrumentality if all of its activities are subject to tax
and a majority of its board of directors is not selected by
such governmental entity), any cooperative organization
furnishing electric energy or providing telephone service to
persons in rural areas as described in Code Section
1381(a)(2)(C), any "electing large partnership" within the
meaning of Section 775 of the Code, or any organization (other
than a farmers' cooperative described in Code Section 521)
that is exempt from federal income tax unless such
organization is subject to the tax on unrelated business
income imposed by Code Section 511.
4. That the Purchaser either (x) is not, and on _________________
[date of transfer] will not be, an employee benefit plan
subject to Title I of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Code
or any provisions of federal, state or local law substantially
similar to the foregoing provisions of ERISA or the Code
("Similar Law"), the trustee of any such plan or a person
acting on behalf of any such plan or investing the assets of
any such plan to acquire a Residual Certificate; or (y)
herewith delivers to the Certificate Registrar an opinion of
counsel satisfactory to the Certificate Registrar, and upon
which the Certificate Registrar shall be entitled to
B-1
rely, to the effect that the purchase and holding of such
Residual Certificate by the Investor will not result in the
assets of the Trust Fund being deemed to be plan assets and
subject to the prohibited transaction provisions of ERISA or
the Code or Similar Law, and will not subject the Trustee or
the Depositor to any obligation in addition to those
undertaken by such entities in the Trust Agreement, which
opinion of counsel shall not be an expense of the Trust Fund,
the Trustee, the Certificate Registrar or the Depositor.
5. That the Purchaser hereby acknowledges that under the terms of
the Trust Agreement dated as of September 1, 2003 (the
"Agreement"), by and between Xxxxxxx Xxxxx Mortgage Investors,
Inc., as Depositor and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee with respect to Xxxxxxx Xxxxx Mortgage
Investors Trust Series MLCC 2003-F Mortgage Pass-Through
Certificates, no transfer of the Residual Certificates shall
be permitted to be made to any person unless the Certificate
Registrar and Trustee have received a certificate from such
transferee containing the representations in paragraphs 3 and
4 hereof.
6. That the Purchaser does not hold REMIC residual securities as
nominee to facilitate the clearance and settlement of such
securities through electronic book-entry changes in accounts
of participating organizations (such entity, a "Book-Entry
Nominee").
7. That the Purchaser does not have the intention to impede the
assessment or collection of any federal, state or local taxes
legally required to be paid with respect to such Residual
Certificate.
8. That the Purchaser will not transfer a Residual Certificate to
any person or entity (i) as to which the Purchaser has actual
knowledge that the requirements set forth in paragraph 3,
paragraph 6 or paragraph 10 hereof are not satisfied or that
the Purchaser has reason to believe does not satisfy the
requirements set forth in paragraph 7 hereof, and (ii) without
obtaining from the prospective Purchaser an affidavit
substantially in this form and providing to the Trustee and
the Certificate Registrar a written statement substantially in
the form of Exhibit C to the Agreement.
9. That the Purchaser understands that, as the holder of a
Residual Certificate, the Purchaser may incur tax liabilities
in excess of any cash flows generated by the interest and that
it intends to pay taxes associated with holding such Residual
Certificate as they become due.
10. That the Purchaser (i) is not a Non-U.S. Person or (ii) is a
Non-U.S. Person that holds a Residual Certificate in
connection with the conduct of a trade or business within the
United States and has furnished the transferor, the Trustee
and the Certificate Registrar with an effective Internal
Revenue Service Form W-8ECI (Certificate of Foreign Person's
Claim for Exemption From Withholding on Income Effectively
Connected With the Conduct of a Trade or Business in the
B-2
United States) or successor form at the time and in the manner
required by the Code. "Non-U.S. Person" means an individual,
corporation, partnership or other person other than (i) a
citizen or resident of the United States; (ii) a corporation,
partnership or other entity created or organized in or under
the laws of the United States or any state thereof, including
for this purpose, the District of Columbia; (iii) an estate
that is subject to U.S. federal income tax regardless of the
source of its income; (iv) a trust if a court within the
United States is able to exercise primary supervision over the
administration of the trust and one or more United States
trustees have authority to control all substantial decisions
of the trust; and, (v) to the extent provided in Treasury
regulations, certain trusts in existence on June August 20,
1996 that are treated as United States persons prior to such
date and elect to continue to be treated as United States
persons.
11. The Purchaser will not cause income from the Residual
Certificate to be attributable to a foreign permanent
establishment or fixed base (within the meaning of an
applicable income tax treaty) of the Purchaser or another U.S.
taxpayer.
12. That the Purchaser agrees to such amendments of the Trust
Agreement as may be required to further effectuate the
restrictions on transfer of any Residual Certificate to such a
"disqualified organization," an agent thereof, a Book-Entry
Nominee, or a person that does not satisfy the requirements of
paragraph 7 and paragraph 10 hereof.
13. That the Purchaser consents to the designation of the Trustee
to act as agent for the "tax matters person" of each REMIC
created by the Trust Fund pursuant to the Trust Agreement.
14. That the Purchaser agrees to be bound by Section 3.03(f) of
the Agreement.
B-3
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[title of officer] this _____ day of __________, 20__.
_________________________________
[name of Purchaser]
By:______________________________
Name:
Title:
Personally appeared before me the above-named [name of officer]
________________, known or proved to me to be the same person who executed the
foregoing instrument and to be the [title of officer] _________________ of the
Purchaser, and acknowledged to me that he [she] executed the same as his [her]
free act and deed and the free act and deed of the Purchaser.
Subscribed and sworn before me this _____ day of __________ 20__.
NOTARY PUBLIC
______________________________
COUNTY OF_____________________
STATE OF______________________
My commission expires the _____ day of __________ 20__.
B-4
EXHIBIT C
RESIDUAL CERTIFICATE TRANSFER AFFIDAVIT (TRANSFEROR)
____________________________
Date
Re: Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2003-F
Mortgage Pass-Through Certificates
_______________________ (the "Transferor") has reviewed the attached
affidavit of _____________________________ (the "Transferee"), and has no actual
knowledge that such affidavit is not true and has no reason to believe that the
information contained in paragraph 7 thereof is not true, and has no reason to
believe that the Transferee has the intention to impede the assessment or
collection of any federal, state or local taxes legally required to be paid with
respect to a Residual Certificate. In addition, the Transferor has conducted a
reasonable investigation at the time of the transfer and found that the
Transferee had historically paid its debts as they came due and found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due.
Very truly yours,
______________________________
Name:
Title:
C-1
EXHIBIT D
MORTGAGE LOAN SERVICING AGREEMENT
See Exhibit 99.15, filed herewith
D-1
EXHIBIT E
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
See Exhibit 99.1, filed herewith
E-1
EXHIBIT F
LIST OF LIMITED PURPOSE SURETY BONDS
Ambac Assurance Corporation Surety Bond No. AB0039BE, issued February
26, 1996, for Xxxxxxx Xxxxx Credit Corporation.
F-1
EXHIBIT G
FORM OF RULE 144A TRANSFER CERTIFICATE
Re: Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2003-F
Mortgage Pass-Through Certificates
Reference is hereby made to the Trust Agreement, dated as of September
1, 2003 (the "Trust Agreement"), by and between Xxxxxxx Xxxxx Mortgage
Investors, Inc., as Depositor and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Trust Agreement.
This letter relates to $__________ initial Certificate Balance of Class
Certificates which are held in the form of Definitive Certificates
registered in the name of (the "Transferor"). The Transferor has requested a
transfer of such Definitive Certificates for Definitive Certificates of such
Class registered in the name of [insert name of transferee].
In connection with such request, and in respect of such Certificates,
the Transferor hereby certifies that such Certificates are being transferred in
accordance with (i) the transfer restrictions set forth in the Trust Agreement
and the Certificates and (ii) Rule 144A under the Securities Act to a purchaser
that the Transferor reasonably believes is a "qualified institutional buyer"
within the meaning of Rule 144A purchasing for its own account or for the
account of a "qualified institutional buyer," which purchaser is aware that the
sale to it is being made in reliance upon Rule 144A, in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other applicable jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Underwriters and the Depositor.
_____________________________________
[Name of Transferor]
By:__________________________________
Name:
Title:
Dated: ___________, ____
G-1
EXHIBIT H
FORM OF PURCHASER'S LETTER FOR
INSTITUTIONAL ACCREDITED INVESTOR
Date
Dear Sirs:
In connection with our proposed purchase of $______________ principal
amount of Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2003-F Mortgage
Pass-Through Certificates (the "Privately Offered Certificates") of Xxxxxxx
Xxxxx Mortgage Investors, Inc. (the "Depositor"), we confirm that:
(1) We understand that the Privately Offered Certificates have not been,
and will not be, registered under the Securities Act of 1933, as
amended (the "Securities Act"), and may not be sold except as permitted
in the following sentence. We agree, on our own behalf and on behalf of
any accounts for which we are acting as hereinafter stated, that if we
should sell any Privately Offered Certificates within two years of the
later of the date of original issuance of the Privately Offered
Certificates or the last day on which such Privately Offered
Certificates are owned by the Depositor or any affiliate of the
Depositor we will do so only (A) to the Depositor, (B) to "qualified
institutional buyers" (within the meaning of Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities Act
("QIBs"), (C) pursuant to the exemption from registration provided by
Rule 144 under the Securities Act, or (D) to an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act that is not a QIB (an
"Institutional Accredited Investor") which, prior to such transfer,
delivers to the Certificate Registrar under the Trust Agreement, dated
as of September 1, 2003, by and between Xxxxxxx Xxxxx Mortgage
Investors, Inc., as Depositor and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee, a signed letter in the form of this letter;
and we further agree, in the capacities stated above, to provide to any
person purchasing any of the Privately Offered Certificates from us a
notice advising such purchaser that resales of the Privately Offered
Certificates are restricted as stated herein.
(2) We understand that, in connection with any proposed resale of any
Privately Offered Certificates to an Institutional Accredited Investor,
we will be required to furnish to the Certificate Registrar a
certification from such transferee in the form hereof to confirm that
the proposed sale is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act. We further understand that the Privately Offered
Certificates purchased by us will bear a legend to the foregoing
effect.
(3) We are acquiring the Privately Offered Certificates for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the
H-1
Securities Act. We have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of
our investment in the Privately Offered Certificates, and we and any
account for which we are acting are each able to bear the economic risk
of such investment.
(4) We are an Institutional Accredited Investor and we are acquiring the
Privately Offered Certificates purchased by us for our own account or
for one or more accounts (each of which is an Institutional Accredited
Investor) as to each of which we exercise sole investment discretion.
(5) We have received such information as we deem necessary in order to make
our investment decision.
(6) If we are acquiring ERISA-Restricted Certificates, we understand that
in accordance with ERISA, the Code and the Exemption, no Plan and no
person acting on behalf of such a Plan may acquire such Certificate
except in accordance with Section 3.03(d) of the Trust Agreement.
Terms used in this letter which are not otherwise defined herein have
the respective meanings assigned thereto in the Trust Agreement.
H-2
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
___________________________________
[Purchaser]
By: _______________________________
Name:
Title:
H-3
EXHIBIT I
FORM OF ERISA TRANSFER AFFIDAVIT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is the ______________________ of
______________ (the "Investor"), a [corporation duly organized] and
existing under the laws of __________, on behalf of which he makes this
affidavit.
2. The Investor either (x) is not, and on ___________ [date of
transfer] will not be, an employee benefit plan subject to Title I of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code") or any provisions of applicable federal, state or
local law substantially similar to the foregoing provisions of ERISA or
the Code ("Similar Law"), the trustee of any such plan or a person
acting on behalf of any such plan or investing the assets of any such
plan; (y) if the Certificate (other than the Class A-R Certificate) has
been the subject of an ERISA-Qualifying Underwriting, is an insurance
company that is purchasing the Certificate with funds contained in an
"insurance company general account" as defined in Section V(e) of
Prohibited Transaction Class Exemption ("PTCE") 95-60 and the purchase
and holding of the Certificate are covered under Sections I and III of
PTCE 95-60; or (z) herewith delivers to the Certificate Registrar an
opinion of counsel satisfactory to the Certificate Registrar, and upon
which the Certificate Registrar shall be entitled to rely, to the
effect that the purchase and holding of such Certificate by the
Investor will not result in the assets of the Trust Fund being deemed
to be plan assets and subject to the prohibited transaction provisions
of ERISA or the Code or Similar Law, and will not subject the Trustee
or the Depositor to any obligation in addition to those undertaken by
such entities in the Trust Agreement, which opinion of counsel shall
not be an expense of the Trust Fund, the Trustee, the Certificate
Registrar or the Depositor.
3. The Investor hereby acknowledges that under the terms of
the Trust Agreement dated as of September 1, 2003 (the "Agreement"), by
and between Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor and
Xxxxx Fargo Bank Minnesota, National Association, as Trustee, no
transfer of the ERISA-Restricted Certificates shall be permitted to be
made to any person unless the Certificate Registrar has received a
certificate from such transferee in the form hereof.
I-1
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to proper authority, by its duly authorized
officer, duly attested, this ____ day of _______________ 20___.
_________________________________
[Investor]
By:______________________________
Name:
Title:
ATTEST:
_________________________________
STATE OF )
) ss.:
COUNTY OF )
Personally appeared before me the above-named
________________, known or proved to me to be the same person who
executed the foregoing instrument and to be the ____________________ of
the Investor, and acknowledged that he executed the same as his free
act and deed and the free act and deed of the Investor.
Subscribed and sworn before me this _____ day of _________
20___.
______________________________
NOTARY PUBLIC
My commission expires the
_____ day of __________, 20___.
I-2
EXHIBIT J
FORM OF LETTER OF REPRESENTATIONS
WITH THE DEPOSITORY TRUST COMPANY
[INTENTIONALLY OMITTED]
j-1
EXHIBIT K
INITIAL CERTIFICATION
XXXXXXX XXXXX MORTGAGE INVESTORS TRUST SERIES MLCC 2003-F
____________, 2003
To: Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Cendant Mortgage Corporation
0000 Xxxxxxxxxx Xxxx
Xx. Xxxxxx, Xxx Xxxxxx 00000
RWT Holdings, Inc.
000 Xxxxxxx Xxxxxxx, Xxxxx 0000
Xxxx Xxxxxx, XX 00000
Reference is made to the Trust Agreement between Xxxxxxx Xxxxx Mortgage
Investors, Inc. (the "Depositor") and Xxxxx Fargo Bank Minnesota, as Trustee
(the "Trustee"), dated as of September 1, 2003 (the "Trust Agreement"), pursuant
to which the Depositor has delivered to the Trustee, with respect to each
Mortgage Loan set forth on Schedule A hereto (the "Mortgage Loan Schedule"), the
documents set forth in Section 2.01 of the Trust Agreement.
With respect to each Mortgage Loan listed on the Mortgage Loan Schedule
and except as otherwise noted on the Schedule of Exceptions set forth on
Schedule B hereto, the Trustee confirms that (1) the Trustee has received all of
the documents required to be delivered to the Trustee pursuant to Section 2.01
of the Trust Agreement, (2) the Trustee has reviewed each Trustee's Mortgage
File in accordance with Section 2.02(a) of the Trust Agreement, and the
documents contained in each Trustee's Mortgage File conform to the requirements
set forth in such Section 2.02(a), and (3) the Trustee has physical possession
of the documents in each Trustee's Mortgage File. The Trustee has not
independently verified the validity, enforceability, sufficiency, recordability,
due authorization or genuineness or any document in any Trustee's Mortgage File
or any related Mortgage Loan, nor the collectibility, insurability,
effectiveness or suitability of any related Mortgage Loan.
All terms used herein and not otherwise defined herein shall have the
respective meaning ascribed to such term in the Trust Agreement.
XXXXX FARGO BANK MINNESOTA, N.A.,
as Trustee
By:__________________________________
Name:________________________________
Title:_______________________________
K-1
EXHIBIT L
FORM OF FINAL CERTIFICATION
_____________, 2003
To: Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Cendant Mortgage Corporation
0000 Xxxxxxxxxx Xxxx
Xx. Xxxxxx, Xxx Xxxxxx 00000
RWT Holdings, Inc.
000 Xxxxxxx Xxxxxxx, Xxxxx 0000
Xxxx Xxxxxx, XX 00000
Reference is made to the Trust Agreement between Xxxxxxx Xxxxx Mortgage
Investors, Inc. (the "Depositor") and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee (the "Trustee"), dated as of September 1, 2003 (the
"Trust Agreement"), pursuant to which the Depositor has delivered to the
Trustee, with respect to each Mortgage Loan set forth on Schedule A hereto (the
"Mortgage Loan Schedule"), the documents set forth in Section 2.01 of the Trust
Agreement.
With respect to each Mortgage Loan listed on the Mortgage Loan Schedule
and except as otherwise noted on the Schedule of Exceptions set forth on
Schedule B hereto, the Trustee confirms that (1) the Trustee has received all of
the documents required to be delivered to the Custodian pursuant to Section 2.01
of the Trust Agreement, (2) the Trustee has reviewed each Trustee's Mortgage
File in accordance with Section 2 of Amendment No. 1 to the Custody Agreement,
and the documents contained in each Trustee's Mortgage File conform to the
requirements set forth in such Section 2, and (3) the Trustee has physical
possession of the documents in each Trustee's Mortgage File. The Trustee has not
independently verified the validity, enforceability, sufficiency, recordability,
due authorization or genuineness or any document in any Trustee's Mortgage File
or any related Mortgage Loan, nor the collectibility, insurability,
effectiveness or suitability of any related Mortgage Loan.
All terms used herein and not otherwise defined herein shall have the
respective meaning ascribed to such term in the Trust Agreement.
XXXXX FARGO BANK MINNESOTA, N.A.,
as Trustee
By:__________________________________
Name:________________________________
Title:_______________________________
L-1
EXHIBIT M
LIST OF SERVICING OFFICERS
[INTENTIONALLY OMITTED]
M-1
EXHIBIT N
REQUEST FOR RELEASE
To: Xxxxx Fargo Bank Minnesota,
National Association
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000
(Attention: Xxxxxxx Xxxxx Mortgage Investors Trust Series MLCC 2003-F)
Re: Trust Agreement, dated as of September 1, 2003 by and
between Xxxxxxx Xxxxx Mortgage Investors, Inc. and
Xxxxx Fargo Bank Minnesota, National Association, as
Trustee
In connection with the administration of the pool of Mortgage Loans
held by you as Trustee for the benefit of Certificateholders, we request the
release of the (Trustee's Mortgage File/[specify documents]) for the Mortgage
Loan described below, for the reason indicated.
File/document to be sent to:
[Company]
[Address]
[Attn:]
[Telephone Number ____]
Mortgagor's Name, Address & Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
______ 1. Mortgage Loan Paid in Full
([Seller/Depositor] [Servicer], hereby certifies that all
amounts received in connection therewith have been credited to
the Custodial Account or the Distribution Account, as
applicable.)
______ 2. Mortgage Loan in Foreclosure
______ 3. Mortgage Loan Repurchased or Substituted For
([Seller/Depositor] [Servicer], hereby certifies that any
applicable repurchase price or substitution shortfall amount
has been credited to the Custodial Account or the Distribution
Account, as applicable.)
______ 4. Mortgage Loan Liquidated
([Seller/Depositor] [Servicer], hereby certifies that all
proceeds of foreclosure, insurance or other liquidation have
been finally received and credited to the Custodial Account or
the Distribution Account, as applicable.)
______ 5. Other (explain)______________________________
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If box 1, 2 or 3 above is checked, and if all or part of the Trustee's
Mortgage File was previously released to us, please release to us our previous
receipt on file with you, as well as any additional documents in your possession
relating to the above specified Mortgage Loan.
If box 4 or 5 above is checked, upon our return of all of the above
documents to you as Trustee, please acknowledge your receipt by signing in the
space indicated below, and returning this form.
[SELLER/DEPOSITOR]
[SERVICER]
By:________________________________
Date:______________________________
Documents returned to Trustee:
_______________________________,
as Trustee
By:__________________________________
Date:________________________________
N-2
EXHIBIT O
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT dated as of December 15, 2000 (this
"Agreement"), between XXXXXXX XXXXX CREDIT CORPORATION ("MLCC") having an
address at 0000 Xxxx Xxxx Xxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 and XXXXX
FARGO BANK MINNESOTA, N.A. ("Custodian"), having an address at Sixth and
Marquette, Xxxxxxxxxxx, Xxxxxxxxx 00000- 0031.
PRELIMINARY STATEMENT
MLCC may, from time to time, purchase certain Mortgage Loans
from third party sellers pursuant to the terms and conditions of certain
mortgage loan purchase agreements entered into between MLCC and such third
parties (each, a "Purchase Agreement"). MLCC desires that the Custodian act as
custodian with respect to the documents for the Mortgage Loans delivered from
time to time to the Custodian hereunder, and the Custodian desires to act as
custodian with respect to the documents for the Mortgage Loans.
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein and for other good and valuable consideration, the sufficiency and
receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions.
"Additional Collateral Mortgage Loan": Each Mortgage Loan that is
either a Mortgage 100(sm) Loan or Parent Power(R) Mortgage Loan as to which the
Additional Collateral is provided. For purposes hereof, the term "Additional
Collateral" shall mean (i) with respect to any Mortgage 100(sm) Loan, the
marketable securities subject to a security interest pursuant to the related
Mortgage 100(sm) Pledge Agreement, or (ii) with respect to any Parent Power(R)
Mortgage Loan, the related Parent Power(R) Agreement.
"Agreement": This Custodial Agreement and all amendments and
attachments hereto and supplements hereof.
"Assignment": An assignment of the Mortgage, notice of transfer or
equivalent instrument in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to give record
notice of the sale or transfer of the Mortgage Loan.
"Business Day": Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking or savings associations in the State of New Jersey or the
State of Minnesota are authorized or obligated by law or executive order to be
closed.
"Closing Date": With respect to each Mortgage Loan, the date upon which
the MLCC completes the purchase of such Mortgage Loan.
"Custodian": Xxxxx Fargo Bank Minnesota, N.A., or its successor in
interest or assigns.
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"Custodian's Mortgage File": As to each Mortgage Loan, all Mortgage
Loan documents delivered to the Custodian pursuant hereto and held by the
Custodian with respect to each Mortgage Loan.
"Custody Receipt": An Initial Custody Receipt and/or a Final Custody
Receipt.
"Cut-off Date": With respect to each Mortgage Loan, the first day of
the month in which the related Delivery Date occurs or such other date specified
by the Registered Holder.
"Delivery Date": The date on which MLCC delivers or causes to be
delivered to the Custodian the Mortgage Loans listed on the related Mortgage
Loan Schedule.
"Exception Report": The Exception Report prepared by the Custodian as
part of the Initial Custody Receipt and as updated thereafter.
"Final Custody Receipt": A final custody receipt as to each Mortgage
Loan, which final custody receipt is delivered to MLCC, or its successor in
interest or assigns, by the Custodian in the form annexed hereto as Exhibit Two.
"First Mortgage Loan": A Mortgage Loan that is secured by a first lien
on the Mortgaged Property securing the related Mortgage Note.
"Gross Margin": With respect to each adjustable rate Mortgage Loan, the
fixed number of basis points set forth in the Mortgage Loan Schedule that is
added to the Index on each Interest Rate Adjustment Date in accordance with the
terms of the related Mortgage Note to determine the Mortgage Interest Rate for
such Mortgage Loan, subject to any applicable Periodic Rate Cap or Lifetime Rate
Cap.
"Index": With respect to each adjustable rate Mortgage Loan, a rate per
annum to which the Gross Margin is added on each Interest Rate Adjustment Date
to determine the new Mortgage Interest Rate for such Mortgage Loan.
"Initial Custody Receipt": An initial custody receipt as to each
Mortgage Loan, which initial custody receipt is delivered to MLCC, or its
successor in interest or assigns, by the Custodian in the form annexed hereto as
Exhibit One.
"Interest Rate Adjustment Date": With respect to each adjustable rate
Mortgage Loan, the date on which the Mortgage Interest Rate is adjusted in
accordance with the terms of the related Mortgage Note.
"Lifetime Rate Cap": With respect to each adjustable rate Mortgage
Loan, the maximum Mortgage Interest Rate that may be borne thereby, as set forth
in the related Mortgage Note.
"Loan-to-Value Ratio": With respect to any First Mortgage Loan, as of
any date of determination, the ratio on such date of the outstanding principal
balance of such Mortgage Loan to the Appraised Value of the related Mortgaged
Property.
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"Mortgage": The mortgage, deed of trust or other instrument creating a
first or second lien on real property securing the Mortgage Note.
"Mortgage Interest Rate": The annual rate at which interest accrues on
any Mortgage Loan and with respect to any adjustable rate Mortgage Loan, as such
annual rate may be adjusted on any Interest Rate Adjustment Date and subject to
the limitations on such interest rate imposed by any Lifetime Rate Cap or any
Periodic Rate Cap.
"Mortgage Loan": An individual Mortgage Loan, including but not limited
to all documents included in the Custodian's Mortgage File, monthly payments,
principal prepayments, proceeds from REO dispositions and any and all rights,
benefits, proceeds and obligations arising therefrom or in connection therewith,
and which is the subject of this Agreement.
"Mortgage Loan Schedule": The list of Mortgage Loans purchased by MLCC
from a third party seller from time to time that are subject to this Agreement
which list shall set forth the following information with respect to each
Mortgage Loan:
(i) the loan number;
(ii) the Mortgagor's name, social security number, and
FICO score;
(iii) the street address of the Mortgaged Property,
including city, state and zip code, if available;
(iv) the Mortgage Interest Rate at origination and, in the
case of an adjustable rate Mortgage Loan, the
Mortgage Interest Rate in effect as of the related
Cut-off Date, which rate may vary from that reflected
in the Mortgage and Note;
(v) for each adjustable rate Mortgage Loan, the first
Interest Rate Adjustment Date;
(vi) for each adjustable rate Mortgage Loan, the Gross
Margin;
(vii) for each adjustable rate Mortgage Loan, the Lifetime
Rate Cap, if applicable;
(viii) for each adjustable rate Mortgage Loan, the Periodic
Rate Cap, if applicable;
(ix) the original term to maturity and remaining term to
maturity;
(x) the original principal balance;
(xi) the first payment due date;
(xii) the maturity date;
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(xiii) the monthly payment in effect as of the related
Cut-off Date;
(xiv) the principal balance as of the related Cut-off Date;
(xv) as to any First Mortgage Loan the Loan-to-Value Ratio
at origination;
(xvi) a code indicating whether the Mortgaged Property is
occupied by the Mortgagor;
(xvii) a code indicating the type of Residential Dwelling;
(xviii) a code indicating the purpose of the Mortgage Loan;
(xix) a code indicating the Mortgage Loan documentation
type (i.e. limited documentation, full documentation,
easy documentation, etc.); and
(xx) for each adjustable rate Mortgage Loan, a code
indicating the type of Index.
"Mortgage Note": The note evidencing the indebtedness of a Mortgagor
secured by a Mortgage.
"Mortgaged Property": The underlying real property securing repayment
of a Mortgage Note, consisting of a fee simple estate in a single parcel of real
property improved by a Residential Dwelling.
"Mortgagor": The obligor on a Mortgage Note, the owner of the Mortgaged
Property and the grantor or mortgagor named in the related Mortgage and such
grantor's or mortgagor's successor in title to the Mortgaged Property.
"Opinion of Counsel": A document signed by an attorney, explaining the
attorney's understanding of the law as applicable to a state of facts submitted
for the purpose of an opinion.
"Periodic Rate Cap": With respect to each adjustable rate Mortgage Loan
as to which the related Mortgage Loan Schedule indicates the existence of a
Periodic Rate Cap, the provision of the related Mortgage Note that provides for
a maximum amount by which the Mortgage Interest Rate may increase (or, if so
indicated on such Mortgage Loan Schedule, decrease) on an Interest Rate
Adjustment Date above (or below) the Mortgage Interest Rate in effect
immediately prior to such Interest Rate Adjustment Date.
"Pledge Agreement": Any Mortgage 100 Pledge Agreement, Parent Power
Guaranty and Security Agreement for Securities Account, or Parent Power Guaranty
Agreement for Real Estate related to an Additional Collateral Mortgage Loan.
"Registered Holder": MLCC, its successors in interest or assigns, in
whole or in part, as the case may be.
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"Residential Dwelling": Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family dwelling, (iii) a
one-family dwelling unit in a Xxxxxx Xxx-eligible condominium project, or (iv) a
detached one-family dwelling in a planned unit development, none of which is a
co-operative.
"Second Mortgage Loan": A Mortgage Loan that is secured by a second
lien on the Mortgaged Property securing the related Mortgage Note.
2. Delivery of Mortgage Loan Schedule and Custodian's Mortgage
File.
MLCC may, from time to time, deliver or cause to be delivered to the
Custodian a Mortgage Loan Schedule and the following documents for each Mortgage
Loan listed on such Mortgage Loan Schedule, to be held by the Custodian for the
benefit of the Registered Holder, as the owner thereof:
(a) The original Mortgage Note endorsed, "Pay to the order of
___________, without recourse" and signed in the name of the name
of last endorsee, by an authorized officer of the last endorsee.
If the Mortgage Loan was acquired by the last endorsee in a merger
or other type of acquisition, the endorsement must be by "[name of
last endorsee], successor [by merger to or in interest to, as
applicable] [name of predecessor]"; and if the Mortgage Loan was
acquired or originated by the last endorsee while doing business
under another name, the endorsement must be by "[name of last
endorsee], successor in interest to [previous name]." The Mortgage
Note shall include all intervening endorsements showing a complete
chain of title from the originator to the last endorsee.
(b) The original recorded Mortgage, with evidence of recording
thereon, or, if the original Mortgage has not yet been returned
from the recording office, a copy of the original Mortgage
certified by the previous owner to be a true copy of the original
of the Mortgage which has been delivered for recording in the
appropriate recording office of the jurisdiction in which the
Mortgaged Property is located.
(c) The original Assignment of each Mortgage, executed in blank by
either MLCC or its Servicer. If the Mortgage Loan was acquired by
the last endorsee in a merger or other type of acquisition, the
assignment must be by "[name of last assignee], successor [by
merger to or in interest to, as applicable] [name of
predecessor]"; and if the Mortgage Loan was acquired or originated
by the last endorsee while doing business under another name, the
assignment must be by "[name of last assignee], successor in
interest to [previous name]."
(d) The original policy of title insurance (or a preliminary title
report if the original title insurance policy has not been
received from the title insurance company).
(e) Originals of any intervening assignments of the Mortgage, with
evidence of recording thereon or, if the original intervening
assignment has not yet been returned from the recording office, a
copy of such assignment certified by the Seller to be a true copy
of the original of the assignment which has been delivered for
recording in
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the appropriate recording office of the jurisdiction in which the
Mortgaged Property is located.
(f) With respect to a Mortgage Loan that, according to the
Mortgage Loan Schedule is covered by a primary mortgage insurance
policy, the original or a copy of primary mortgage insurance
certificate, if any.
(g) If indicated on the Mortgage Loan Schedule, originals of all
assumption and modification agreements, if any, with originals or
copies of the underlying instruments being modified.
(h) With respect to each Additional Collateral Mortgage Loan,
1. Copy of the related Mortgage 100 Pledge
Agreement for Securities Account or the
Parent Power Guaranty and Security Agreement
for Securities Account or the Parent Power
Guaranty Agreement for Real Estate, as the
case may be;
2. copy of the UCC-1 (applicable for South
Carolina and Rhode Island only);
3. an original form UCC-3, if applicable;
4. For loans originated by a correspondent
lender, an original assignment of security
interest of the related Mortgage 100 Pledge
Agreement or Parent Power Agreement, as the
case may be.
(i) With respect to each Cooperative Loan:
1. the original proprietary lease;
2. the original recognition agreement;
3. the original security agreement;
4. the original or copy of the assignment of
proprietary lease;
5. the original cooperative stock certificate
and stock power executed by borrower in
blank;
6. the original UCC-1 Financing Statements; and
7. the original UCC-3 Financing Statements.
(j) Power of Attorney, if applicable.
From time to time, MLCC shall forward or cause to be forwarded to the
Custodian additional documents, original or otherwise, evidencing an assumption
or modification of a Mortgage Loan which documents shall become part of the
Custodian's Mortgage File.
3. Obligations of the Custodian.
(a) With respect to each Custodian's Mortgage File, the Custodian is
exclusively the custodian for the Registered Holder from and after the related
Delivery Date. The Custodian shall hold all documents constituting the
Custodian's Mortgage File received by it for the exclusive use and benefit of
the Registered Holder, and shall make disposition thereof only in accordance
with this Agreement and the instructions furnished by the Registered Holder. The
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Custodian shall segregate and maintain continuous custody of all documents
constituting the Custodian's Mortgage File received by it in secure and
fire-resistant facilities in accordance with customary standards for such
custody. The Custodian represents and warrants that it will verify the receipt
of required documents, the accuracy of certain information, and indicate
discrepancies pursuant to the custody receipt requirements herein. The Custodian
makes no representations or warranties as to, and shall not be responsible to,
verify: (i) the validity, legality, enforceability, sufficiency, recordability,
due authorization or genuineness of any of the documents contained in each
Custodian's Mortgage File or any of the Mortgage Loans or (ii) the
collctibility, insurability, effectiveness or suitability of any such Mortgage
Loan. No provision of this Agreement shall be construed to impose on the
Custodian any obligation of a third party seller under this Agreement or a
Purchase Agreement under any circumstances.
(b) The Custodian shall, at its own expense, maintain at all times
during the existence of this Agreement and keep in full force and effect a
fidelity bond, errors and omissions insurance, theft and documents insurance and
forgery insurance in amounts and with standard coverage as is customary for
insurance typically maintained by institutions that act as custodians. The
minimum coverage under any such bond and insurance policies shall be at least
equal to the corresponding amounts required by the Government National Mortgage
Association, Xxxxxx Mae or Xxxxxxx Mac either of the Custodian or in their
respective Seller/Servicing Guides. A certificate of an authorized officer for
the Custodian shall be furnished to the Registered Holder upon request as
evidence of its compliance with any such requirement.
4. Custody Receipts.
(a) Initial Custody Receipt. The Custodian shall review the documents
delivered to it on each Delivery Date and shall deliver to MLCC as initial
Registered Holder within two (2) Business Days following the Delivery Date, or
within a mutually agreed upon time between the Bank and the Custodian, but prior
to the Closing Date, an Initial Custody Receipt with respect to the Mortgage
Loans, in which the Custodian shall certify that such Mortgage Loans are held
for MLCC (as Registered Holder) and 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), (a) all documents described in Paragraphs 2(a) through 2(e)
and to the extent provided in the Custodian's Mortgage Files Paragraphs 2(f)
through 2(j), if applicable, of this Agreement are in its possession and (b)
each Mortgage Note has been endorsed and each Assignment has been executed as
provided in Paragraph 2 hereof. If the Custodian determines from such
verification that any discrepancy or deficiency exists with respect to a
Custodian's Mortgage File, the Custodian shall note such discrepancy on the
schedule of exceptions attached to the Initial Custody Receipt as Schedule B
thereto (the "Exception Report").
The Custodian shall also note on the Exception Report, with respect to
each Mortgage Loan, whether a certified copy of the related Mortgage was
delivered to the Custodian in lieu of the original of such Mortgage, whether a
certified copy of an intervening assignment of the related Mortgage was
delivered to the Custodian in lieu of the original of such assignment, and
whether a preliminary title report with respect to such Mortgage Loan was
delivered to the Custodian in lieu of the original policy of title insurance.
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Xx the first Business Day of each calendar month following delivery of
the Initial Custody Receipt until the month in which the Final Custody Receipt
is to be delivered pursuant to Subsection (b) below, the Custodian shall deliver
to the Registered Holder of the Initial Custody Receipt, an updated Exception
Report, revised to reflect any changes with respect to the status of the
exceptions noted for the related Mortgage Loans.
(b) Final Custody Receipt. Not later than sixty (60) days following the
date of each delivery of an Initial Custody Receipt, the Custodian shall deliver
to the Registered Holder of the Initial Custody Receipt the Final Custody
Receipt, with respect to the Mortgage Loans related to such Initial Custody
Receipt, in which the Custodian shall certify to the Registered Holder that, as
to each Mortgage Loan listed in the related 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), (a) all documents
described in Paragraphs 2(a) through 2(e), and to the extent provided in the
Custodian's Mortgage Files Paragraphs 2(f) through 2(j), if applicable, of this
Agreement are in its possession, (b) such documents have been reviewed by it and
appear regular on their face and relate to such Mortgage Loan, (c) based on its
examination and only as to the foregoing documents, the information set forth in
items (i), (ii), (iii) excluding the zip code requirement, (iv), (vi), (vii),
(viii) and (x) of the definition of "Mortgage Loan Schedule" respecting such
Mortgage Loan is correct, and which as to items (iv), (vi), (viii), and (x) for
adjustable rate Mortgage Loans may reflect interest rates or amounts that as of
the Cutoff Date vary from those provided in the Mortgage Loan Documents and (d)
each Mortgage Note has been endorsed and each Assignment has been executed as
provided in Paragraph 2 hereof. If the Custodian determines from such
verification that any discrepancy or deficiency exists with respect to a
Custodian's Mortgage File, the Custodian shall note such discrepancy on the
Exception Report attached to the Final Custody Receipt as Schedule B thereto.
The Custodian shall also note on such Exception Report, with respect to each
Mortgage Loan, whether a certified copy of the related Mortgage was delivered to
the Custodian in lieu of the original of such Mortgage, whether a certified copy
of an intervening assignment of the related Mortgage was delivered to the
Custodian in lieu of the original of such assignment, and whether a preliminary
title report with respect to such Mortgage Loan was delivered to the Custodian
in lieu of the original policy of title insurance. Except as specifically
provided above, the Custodian shall be under no duty to review, inspect or
examine such documents to determine that any of them are enforceable or
appropriate for their prescribed purpose. Upon delivery of the Final Custody
Receipt to the Registered Holder of the Initial Custody Receipt, the Initial
Custody Receipt shall be of no further force or effect.
(c) Within five (5) days of receipt of written directions, in the form
attached hereto as Exhibit Six, from the Registered Holder with respect to all
or a portion of the Mortgage Loans owned by such Registered Holder, and upon the
prior tender by such Registered Holder of the applicable Initial and/or Final
Custody Receipt(s), as applicable, the Custodian shall deliver all or any
portion of the Custodian's Mortgage Files held by it to the Registered Holder,
or to such other party as the Registered Holder may direct, as provided in
Paragraph 19, at the place indicated in any such written direction from the
Registered Holder and shall deliver to the Registered Holder a new Initial or
Final Custody Receipt, as applicable, with respect to the Custodian's Mortgage
Files retained by the Custodian. The Registered Holder may require the Custodian
to complete the endorsements on any Mortgage Notes in its possession and to
complete the Assignment of Mortgages prepared by the Servicer in blank, within a
reasonable
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period of time. The cost of this shall be reimbursed by the Registered Holder. A
list of authorized signatures for such written directions has been furnished to
the Custodian by the Registered Holder pursuant to Paragraph 20 hereof. Upon the
Custodian's receipt of such written notification from the Registered Holder that
the Registered Holder has sold any or all of the Mortgage Loans, which
notification shall be accompanied by the Initial and/or Final Custody
Receipt(s), as applicable that relate to such Mortgage Loans, the Custodian
shall change its records to reflect that such purchaser is the owner of such
Mortgage Loans and shall immediately, upon the direction of such Registered
Holder, either deliver the related Custodian's Mortgage Files to such purchaser
at the expense of such purchaser or issue an Initial or Final Custody Receipt in
the name of such purchaser. Such purchaser, as a Registered Holder, shall be
required to simultaneously furnish to the Custodian a list of authorized
signatures for written directions pursuant to Paragraph 20 hereof. The Custodian
shall then deliver to the Registered Holder a new Initial and/or Final Custody
Receipt, as applicable reflecting all Mortgage Loans with respect to which the
Custodian still holds the related Custodian's Mortgage Files on behalf of the
Registered Holder. The Registered Holder and the Custodian agree herein that any
purchaser of any or all of the Mortgage Loans shall succeed to the rights and
obligations of the Registered Holder under this Agreement with respect to such
Mortgage Loans upon receipt of the related Initial and/or Final Custody Receipt,
as applicable subject to the provisions of Paragraph 15 hereof.
5. Fees and Expenses of the Custodian.
It is understood that the Custodian will charge such fees for its
services under this Agreement as are set forth in a separate agreement between
the Custodian and MLCC, the payment of which, together with the Custodian's
expenses in connection herewith, shall be solely the obligation of the
Registered Holder with respect to the related Mortgage Loans.
6. Removal of the Custodian.
Any Registered Holder with respect to all or a portion of the Mortgage
Loans owned by such Registered Holder, with or without cause, may, upon thirty
(30) days' written notice to the Custodian, remove and discharge or any
successor Custodian thereafter appointed, as to such portion or all of the
Mortgage Loans the Custodian, from the performance of its duties under this
Agreement. In the event of any such removal, upon tender of the Custody Receipts
and satisfaction of any outstanding fees and expenses of the Custodian, the
Custodian shall promptly transfer to such Registered Holder or to a successor
Custodian appointed by such Registered Holder at the expense of such Registered
Holder, as directed by such Registered Holder in writing, all Custodian's
Mortgage Files related to the Mortgage Loans as to which the Custodian is being
terminated.
7. Examination of the Custodian's Mortgage File.
Upon reasonable prior written notice to the Custodian, but not less
than two (2) Business Day, any Registered Holder with respect to all or a
portion of the Mortgage Loans owned by such Registered Holder and its agents,
accountants, attorneys, auditors, prospective purchasers, and third-party
contractors authorized by such Registered Holder will be permitted, during
normal business hours, to examine the Custodian's Mortgage Files, documents,
records and other
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papers in the possession of or under the control of the Custodian relating to
any or all of the Mortgage Loans for which the Custodian holds the related
Custodian's Mortgage File for such Registered Holder at the expense of the
inspecting party.
8. Counterparts.
For the purpose of facilitating the execution 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 all of which together shall constitute and be
one and the same instrument.
9. Periodic Statements.
Upon the request of any Registered Holder at any other time with at
least two (2) Business Days' notice to the Custodian, the Custodian shall
provide to the Registered Holder with respect to all or a portion of the
Mortgage Loans owned by such Registered Holder, a list of all of the Mortgage
Loans for which the Custodian holds a Custodian's Mortgage File pursuant to this
Agreement. Such list may be in the form of a copy of the Mortgage Loan Schedule
with manual deletions to denote specifically any Mortgage Loans paid off,
liquidated or repurchased or otherwise released by the Custodian since the date
of this Agreement.
10. Governing Law.
This Agreement shall be construed in accordance with the laws of the
State where MLCC is headquartered, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
11. Copies of Mortgage Documents.
Upon the request of the Registered Holder with respect to all or a
portion of the Mortgage Loans owned by such Registered Holder, and at the cost
and expense of such party, the Custodian shall provide such Registered Holder
with copies or originals as provided in Section 21 hereof, of the Mortgage
Notes, Mortgages, Assignments and other documents to the extent that such
documents are part of the Custodian's Mortgage File relating to one or more of
the Mortgage Loans.
12. No Adverse Interest of Custodian.
By execution of this Agreement, the Custodian represents, warrants and
covenants that it currently does not hold, and during the existence of this
Agreement shall not hold, any adverse interest, by way of security or otherwise,
in any Mortgage Loan.
13. Termination By Custodian.
The Custodian may terminate its obligations under this Agreement upon
at least sixty (60) days' notice to the Registered Holder with respect to all or
a portion of the Mortgage Loans owned by such Registered Holder. The Custodian
shall then be responsible for all costs associated with such termination,
including costs associated with the transfer of the Custodial
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Files. If, in the event of such termination, the Registered Holder shall appoint
a successor Custodian within such sixty day period, then upon such appointment
and tender of the related Custody Receipts, the Custodian shall promptly
transfer to such successor Custodian, as directed by the Registered Holder with
respect to all or a portion of the Mortgage Loans owned by such Registered
Holder, all of the Custodian's Mortgage Files being administered under this
Agreement and shall either complete the Assignments and endorse the Mortgage
Notes as directed by the Registered Holder or allow the Registered Holder or its
agents or attorneys, access to the Custodian's Mortgage Files for such purpose.
Notwithstanding the foregoing, if the Registered Holder fails to appoint a
Custodian within such sixty day period, the Custodian may petition any court of
competent jurisdiction for the appointment of a successor Custodian.
14. Termination of Agreement.
This Agreement shall terminate upon the earlier of (a) the final
payment or other liquidation (or advance with respect thereto) of the last
Mortgage Loan, (b) the disposition of all property acquired upon foreclosure or
by deed in lieu of foreclosure of the last Mortgage Loan, or (c) the delivery by
the Custodian of the last Custodian's Mortgage File pursuant to the direction of
the Registered Holder hereunder. In such event the Registered Holder with
respect to all or a portion of the Mortgage Loans owned by such Registered
Holder shall so notify the Custodian and tender all Custody Receipts, and
thereafter all documents remaining in the Custodian's Mortgage Files shall be
forwarded to the Registered Holder.
15. Assignment of Agreement.
The Registered Holder with respect to all or a portion of the Mortgage
Loans owned by such Registered Holder shall have the right to assign, in whole
or in part, its interests under this Agreement with respect to some or all of
the Mortgage Loans, and to designate any person or exercise any rights of the
Registered Holder hereunder, and such assignee or designee shall accede to the
rights and obligations hereunder of the Registered Holder with respect to such
Mortgage Loans. All references to the Registered Holder shall be deemed to
include its assignee or designee. In connection with any such assignment, the
Registered Holder with respect to all or a portion of the Mortgage Loans owned
by such Registered Holder may require that arrangements reasonably satisfactory
to it be made for the exchange of previously executed and outstanding Custody
Receipt(s) for a Custody Receipt representing such assignment. The Custodian may
not assign its interests or delegate its duties under this Agreement without the
prior written consent of the Registered Holder. In the event of any such
assignment or delegation, the Registered Holder shall not be responsible for any
fees of the successor Custodian in excess of the fees formerly paid by the
Registered Holder to the Custodian.
16. Notice.
(a) All demands, notices and communications hereunder shall be in
writing and shall be sent to the other party at the address shown on the first
page hereof, or such other address as may hereafter be furnished to the other
party by written notice given to the other party hereto in a notice complying
with the terms and provisions of this Section 16 or on an Exhibit Six notice
provided pursuant to Section 4(c).
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(b) Any such demand, notice or communication hereunder shall be deemed
conclusively to have been given if personally delivered at or mailed by
registered mail, postage prepaid, and return receipt requested or transmitted by
telex, telegraph or facsimile transmission and by a similar writing to the other
party at its address as described in Subclause (a).
17. Indemnification.
(a) Neither the Custodian nor any of its directors, officers, agents or
employees, shall be liable for any action taken or omitted to be taken by it or
them hereunder or in connection herewith in good faith and believed by it or
them to be within the purview of this Agreement, except for its or their own
negligence, lack of good faith or willful misconduct.
(b) The Registered Holder and the Custodian agree to indemnify and hold
each other and their respective directors, officers, agents and employees
harmless against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever, including reasonable attorney's fees, that may be
imposed on, incurred by, or asserted against it or them in any action taken or
not taken by it or them hereunder. This indemnification shall include, but not
be limited to, the claims of third parties arising from or related to this
Agreement or the Mortgage Loans. This indemnification applies if such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, disbursements, or claims were imposed on, incurred by or
asserted against the party seeking indemnification because of the breach of the
obligations, negligence, lack of good faith or willful misconduct of the other
party or any of its directors, officers, agents or employees. The foregoing
indemnification shall survive any termination of this Agreement and the
resignation or removal of the Custodian.
(c) In the event that the Custodian fails to produce a Mortgage Note,
Assignment of Mortgage or any other document related to a Mortgage Loan that was
in its possession pursuant to Section 2 within four (4) Business Days after
required or requested by the Registered Holder or its Servicer (a "Custodial
Delivery Failure"), and provided that (i) Custodian previously delivered to the
Registered Holder an Initial Custody Receipt which did not list such document as
an exception; (ii) such document is not outstanding pursuant to a request for
release in the form annexed hereto as Exhibit Five; and (iii) such document was
held by the Custodian on behalf of the Registered Holder, then the Custodian
shall: (a) with respect to any missing Mortgage Note, promptly deliver to the
Registered Holder upon request, a Lost Note Affidavit in the form of Exhibit
Seven hereto and (b) with respect to any missing document related to such
Mortgage Loan, including but not limited to a missing Mortgage Note, (1)
indemnify the Registered Holder, and its successor in interest, in accordance
with the succeeding paragraph and, (2) obtain and maintain an insurance bond in
the name of the Registered Holder, and its successors in interest and assigns,
insuring against any losses associated with the loss of such document, in an
amount equal to the then outstanding principal balance of the related Mortgage
Loan or such lesser amount requested by the Registered Holder, at the Registered
Holder's sole option, at any time the long term obligations of the Custodian are
rated below the second highest rating category of Xxxxx'x Investors Service,
Inc. or Standard and Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc.
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(d) The Custodian agrees to indemnify and hold the Registered Holder,
and its designees, harmless against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever, including reasonable attorney's
fees, that may be imposed on, incurred by, or asserted against it or them in any
way relating to or arising out of a Custodial Delivery Failure, as defined
herein, or the Custodian's negligence, lack of good faith or willful misconduct.
The forgoing indemnification shall survive any termination or assignment of this
Agreement.
18. Reliance of Custodian.
In the absence of bad faith on the part of the Custodian, the Custodian
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any request, instructions, certificate,
opinion or other document furnished to the Custodian, reasonably believed by
Custodian to be genuine and to have been signed or presented by the proper party
or parties and conforming to the requirements of this Agreement. No
representations, warranties, covenants or obligations of the Custodian shall be
implied with respect to this Agreement or the Custodian's services hereunder.
19. Transmission of Custodian's Mortgage File.
Written instructions as to the method of shipment and shipper(s)
Custodian is directed to utilize in connection with transmission of mortgage
files and loan documents in the performance of the Custodian's duties hereunder
shall be delivered by the Registered Holder (the "Requesting Party") with
respect to all or a portion of the Mortgage Loans owned by such Registered
Holder to the Custodian prior to any shipment of any mortgage files and loan
documents hereunder. The Registered Holder will arrange for the provision of
such services at its sole cost and expense (or, at Custodian's option, reimburse
Custodian for all costs and expenses incurred by Custodian consistent with such
instructions) and will maintain such insurance against loss or damage to
mortgage files and loan documents as the Requesting Party deems appropriate.
Without limiting the generality of the provisions of Paragraph 17 above, it is
expressly agreed that in no event shall the Custodian have any liability for any
losses or damages to any person, including, without limitation, the Requesting
Party, arising out of actions of the Custodian consistent with instructions of
the Requesting Party. In the absence of any written instructions with respect to
the transmission of the Custodian's Mortgage Files, the parties hereby agree
that the Custodian may utilize any nationally recognized overnight courier
service and shall be entitled to reimbursement from the Registered Holder.
20. Authorized Representative.
Unless the Registered Holder shall have given the Custodian written
notice to the contrary, each individual designated as an authorized
representative of the Registered Holder with respect to all or a portion of the
Mortgage Loans owned by such Registered Holder, and the Custodian, respectively
(an "Authorized Representative"), is authorized to give and receive notices,
requests and instructions and to deliver certificates and documents in
connection with this Agreement on behalf of the Registered Holder with respect
to all or a portion of the Mortgage Loans owned by such Registered Holder, or
the Custodian, as the case may be, and the specimen signature for each such
Authorized Representative of MLCC as the initial Registered
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Holder and each such Authorized Representative of the Custodian initially
authorized hereunder is set forth on Exhibit Three and Exhibit Four hereof,
respectively. Any subsequent Registered Holder of the Mortgage Loans shall
provide the Custodian specimen signatures for each Authorized Representative of
such Registered Holder. From time to time, the Registered Holder and the
Custodian may, by delivering to the other party a revised exhibit, change the
information previously given pursuant to this Paragraph, but each of the parties
hereto shall be entitled to rely conclusively on the then current exhibit until
receipt of a superseding exhibit.
21. Release of Custodian's File for Servicing.
Upon written request by the Registered Holder or its Servicer with
respect to all or a portion of the Mortgage Loans owned by such Registered
Holder, pursuant to the form attached hereto as Exhibit Five, the Custodian
shall use its best efforts to promptly, and in no event no later than two (2)
Business Days after receipt of such written request completed in accordance with
this Agreement, release to the Registered Holder or its Servicer for the
servicing or foreclosure of any of the Mortgage Loans the related Custodian's
Mortgage File. All Custodian's Mortgage Files so released to the Registered
Holder's Servicer shall be held by such Servicer in trust for the benefit of the
Registered Holder in accordance with the provisions of a servicing agreement
entered into between the Registered Holder and such Servicer. The Registered
Holder or its Servicer shall return to the Custodian the Custodian's Mortgage
File that has been released to the Registered Holder or its Servicer, when the
Registered Holder's or its Servicer's need therefor in connection with such
servicing or foreclosure no longer exists, unless the Mortgage Loan shall be
liquidated, in which case, upon receipt of a certification to this effect from
the Registered Holder or its Servicer to the Custodian in the form annexed
hereto as Exhibit Five, and the Custodian shall thereupon reflect any such
liquidation on the list of Mortgage Loans maintained by it pursuant to Paragraph
9 of this Agreement.
Custodian shall not release more than 5% of the number of Mortgage
Loans at any time without additional written consent from Registered Holder.
This limitation shall not apply to the release of Custodial Files upon payment
in full.
22. Release of Custodian's Mortgage File for Payment.
Upon the repurchase or substitution of any Mortgage Loan pursuant to a
Purchase Agreement or the payment in full of any Mortgage Loan, which shall be
evidenced by the Custodian's receipt of a request for release, receipt and
certification in the form annexed hereto as Exhibit Five (which certification
shall include a statement to the effect that all amounts received in connection
with such payment or repurchase have been credited to the account of the
Registered Holder), the Custodian shall use its best efforts promptly and in no
event later than two (2) Business Days after receipt of the written request
therefor completed in accordance with this Agreement, release the related
Custodian's Mortgage File to the Registered Holder or, at the request of the
Registered Holder, its Servicer, such repurchase thereupon to be noted on the
list maintained by the Custodian pursuant to Paragraph 9 of this Agreement.
23. Reproduction of Documents.
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This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, and (b) certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
24. Severability.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, the invalidity
of any such covenant, agreement, provision or term of this Agreement shall in no
way affect the validity or enforceability of the other provisions of this
Agreement; provided, however, that if the invalidity of any covenant, agreement
or provision shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate in good faith to
develop a structure the economic effect of which is as nearly as possible the
same as the economic effect of this Agreement.
25. Amendment; Exhibits.
This Agreement may be amended from time to time by the parties hereto
only by a written agreement signed by the parties hereto. The exhibits to this
Agreement are hereby incorporated and made a part hereof and are an integral
part of this Agreement.
26. Captions.
Section headings are used herein for convenience only and do not limit
or expand the scope of the provisions herein.
27. Representations and Warranties of Custodian.
Custodian represents and warrants to and covenants with MLCC as
follows:
(a) Custodian is a corporation duly incorporated, validly existing
and in good standing under the laws of Minnesota.
(b) Custodian has full corporate power to execute, deliver and
perform the obligations under this Agreement. MLCC may rely on
the actions of Custodian without further inquiry. No
additional consent, authorization, or regulatory filing is
required in order for Custodian to legally perform its
obligations.
(c) This agreement constitutes a legal, valid and binding
obligation of Custodian, enforceable against Custodian in
accordance with the terms herein except as limited by
bankruptcy, insolvency, liquidation or other similar laws
affecting generally the enforcement of creditor's rights.
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IN WITNESS WHEREOF, the Custodian and MLCC have caused this Agreement
to be executed as of the date and year first written above.
XXXXX FARGO BANK MINNESOTA, N.A.
("Custodian")
By:______________________________________
Name:____________________________________
Title:___________________________________
XXXXXXX XXXXX CREDIT CORPORATION
("MLCC")
By:_____________________________________
Name:___________________________________
Title:__________________________________
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EXHIBIT P
AMENDMENT XX. 0 XXXXXXXXX XXXXXXXXX
Xxxxxxxxx Xx. 0, dated as of January 16, 2002 (this
"Amendment"), between Xxxxxxx Xxxxx Credit Corporation ("MLCC") and Xxxxx Fargo
Bank Minnesota, N.A. (the "Custodian"), to the Custodial Agreement, dated as of
December 15, 2000 (the "Custodial Agreement").
RECITALS
WHEREAS, MLCC may from time to time, purchase certain Mortgage
Loans from third party sellers pursuant to the terms and condition of certain
mortgage loan purchase agreements entered into between MLCC and such parties
(each, a "Purchase Agreement");
WHEREAS, pursuant to the Custodial Agreement, the Custodian
has agreed to take possession of mortgage notes evidencing Mortgage Loans and
certain other Mortgage Loan Documents delivered from time to time pursuant to
the Custodial Agreement;
WHEREAS, MLCC and the Custodian have agreed, subject to the
terms and conditions of this Amendment, that the Custodial Agreement be amended
to reflect the replacement of individual certifications with a Master Trust
Receipt; and
Accordingly, MLCC and Custodian hereby agree, in consideration
of the mutual promises and mutual obligations set forth herein, that the
Custodial Agreement is hereby amended as follows:
SECTION 1 Definitions:
(a) Section 1 of the Custodial Agreement is hereby amended by deleting the
definitions of "Custody Receipt", "Final Custody Receipt" and "Initial
Custody Receipt."
(b) Section 1 of the Custodial Agreement is hereby amended by inserting the
following definition into its proper alphabetical order:
"Trust Receipt": A trust receipt in the form annexed hereto
as Exhibit One delivered to MLCC by the Custodian covering all
of the Mortgage Loans subject to this Custodial Agreement from
time to time, as reflected in the Mortgage Loan Schedule and
Exception Report attached thereto in accordance with Section
4(b).
(c) Section 1 of the Custodial Agreement is hereby amended by deleting the
definition of " Exception Report" and replacing it in its entirety as
follows:
"Exception Report": The Exception Report prepared by the
Custodian as an annex to the Trust Receipt which lists all
exceptions with respect to the Mortgage Loan Schedule and
attached thereto as Schedule B, as updated from time to time
in accordance with Section 4 hereof.
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SECTION 1. Trust Receipt. Section 4 is hereby deleted in its entirety
and replaced in its entirety with the following:
(a) The Custodian shall review the documents delivered to it on each Delivery
Date and shall deliver to Registered Holder within the time frames outlined
in exhibit B to this amendment, but prior to Closing Date, a Mortgage Loan
Schedule and Exception Report with respect to the Mortgage Loans, and the
delivery of each Mortgage Loan Schedule and Exception Report by the
Custodian hereunder shall be the Custodian's certification that such
Mortgage Loans are held for MLCC (as Registered Holder) and that, as to
each Mortgage Loan listed in the related Mortgage Loan Schedule (other than
any Mortgage Loan paid in full or any Mortgage Loan specifically identified
in such certification as not covered by the Exception Report), (a) all
documents described in Paragraphs 2(a) through 2(e) and to the extent
provided in the Custodian's Mortgage Files Paragraphs 2(f) through 2(j), if
applicable, of this Agreement are in its possession, (b) such documents
have reviewed by it and appear regular on their face and relate to such
Mortgage Loan, (c) based on its examination and only as to the foregoing
documents, the information set forth in terms (i), (ii), (iii) excluding
the zip code requirement, (iv), (vi), (vii), (viii) and (x) of the
definition of "Mortgage Loan Schedule" respecting such Mortgage Loan is
correct, and which as to items (iv) (vi), (viii) and (x) for adjustable
rate Mortgage Loan Documents and (d) each Mortgage Note has been endorsed
and each Assignment has been executed as provided in Paragraph 2 hereof.
The Custodian shall determine whether any discrepancy or deficiency exists
with respect to a Custodian's Mortgage File and shall note such discrepancy
on the Exception Report. The Custodian shall also note on such Exception
Report, with respect to each Mortgage Loan, whether a certified copy of the
related Mortgage was delivered to the Custodian in lieu of the original of
such Mortgage, whether a certified copy of an intervening assignment of the
related Mortgage was delivered to the Custodian in lieu of the original of
such assignment, and whether a preliminary title report with respect to
such Mortgage Loan was delivered to the Custodian in lieu of the original
policy of title insurance. Except as specifically provided above, the
Custodian shall be under no duty to review, inspect or examine such
documents to determine that any of them are enforceable or appropriate for
their prescribed purpose.
(b) On the date of this Amendment, the Custodian shall deliver to MLCC, a Trust
Receipt with a Mortgage Loan Schedule and Exception Report attached thereto
reflecting all Mortgage Loans subject to the Custodial Agreement as of such
date.
(c) Each Mortgage Loan Schedule and Exception Report delivered by the Custodian
to MLCC shall supersede and cancel the Mortgage Loan Schedule and Exception
Report previously delivered by the Custodian to MLCC hereunder, and shall
replace the then existing Mortgage Loan Schedule and Exception Report to be
attached to the Trust Receipt. Notwithstanding anything to the contrary set
forth herein, in the event that the Mortgage Loan Schedule and Exception
Report attached to the Trust Receipt is different from the most recently
delivered Mortgage Loan Schedule and Exception Report, then the most
recently delivered Mortgage Loan Schedule and Exception Report shall
control and be binding upon the parties hereto.
(d) The Custodian shall deliver to MLCC, electronically a Mortgage Loan
Schedule and Exception Report reflecting any additional Mortgage Loans
received and reviewed in accordance with the procedures set forth in
Section 2(a) hereof.
P-2
(e) Within five (5) days of receipt of written directions, in the form attached
hereto as Exhibit Six, from the Registered Holder with respect to all or a
portion of the Mortgage Loans owned by such Registered Holder, the
Custodian shall deliver all or any portion of the Custodian's Mortgage
Files held by it to Registered Holder, or to such other party as the
Registered Party may direct, as provided in Paragraph 19, at the place
indicated in any such written direction from the Registered Holder and
shall deliver to the Registered Holder a new Mortgage Loan Schedule and
Exception Report, with respect to the Custodian's Mortgage Files retained
by the Custodian. The Registered Holder may require the Custodian to
complete the endorsements on any Mortgage Notes in its possession and to
complete the Assignment of Mortgages prepared by the Servicer in blank,
within a reasonable period of time. The cost of this shall be reimbursed by
the Registered Holder. A list of authorized signatures for such written
directions has been furnished to the Custodian by the Registered Holder
pursuant to Paragraph 20 hereof. Upon the Custodian's receipt of such
written notification from the Registered Holder that the Registered Holder
has sold any or all of the Mortgage Loans, which notification shall be
accompanied by a Mortgage Loan Schedule identifying such Mortgage Loans,
the Custodian shall change its records to reflect that such purchaser is
the owner of such Mortgage Loans and shall immediately, upon the direction
of such Registered Holder, either deliver the related Custodian's Mortgage
Files to such purchaser at the expense of such purchaser or issue a
Mortgage Loan Schedule and Exception Report in the name of such purchaser.
Such purchaser, as a Registered Holder, shall be required to simultaneously
furnish to the Custodian a list of authorized signatures for written
directions pursuant to Paragraph 20 hereof. The Custodian shall then
deliver to the Registered Holder a new Mortgage Loan Schedule and Exception
Report, reflecting all Mortgage Loans with respect to which the Custodian
still holds the related Custodian's Mortgage Files on behalf of the
Registered Holder. The Registered Holder and the Custodian agree herein
that any purchaser of any or all of the Mortgage Loans shall succeed to the
rights and obligations of the Registered Holder under this Agreement with
respect to such Mortgage Loans upon receipt of its own Trust Receipt and
Mortgage Loan Schedule and Exception Report, as further specified in
Paragraph 15 hereof.
SECTION 2. Termination of Agreement. Section 14 of the Custodial Agreement
is hereby amended by deleting "Custody Receipts" from the sixth line of the
paragraph and replacing it with "Mortgage Loan Schedule and Exception
Report."
SECTION 3. Assignment of Agreement. Section 15 of the Custodial Agreement
is hereby deleted in its entirety and replaced in its entirety with the
following:
"The Registered Holder with respect to all or a portion of the
Mortgage Loans owned by such Registered Holder shall have the right to assign,
in whole or in part, its interests under this Agreement with respect to some or
all of the Mortgage Loans, and to designate any person (such person, an
"Assignee") or exercise any rights of the Registered Holder hereunder, and such
assignee or designee shall accede to the rights and obligations hereunder of the
Registered Holder with respect to such Mortgage Loans. All references to the
Registered Holder shall be deemed to include its assignee or designee. In
connection with any such assignment, the Registered Holder with respect to all
or a portion of the Mortgage Loans owned by such Registered Holder, the
Custodian shall issue (a) a Trust Receipt in the form of Exhibit One hereto with
a Mortgage Loan Schedule and Exception Report with respect to the Mortgage Loans
P-3
subject to such assignment to the Assignee and (b) an updated Mortgage Loan
Schedule and Exception Report to the assigning Registered Holder with respect to
the Mortgage Loans which the Custodian holds for the Registered Holder. The
Custodian may not assign its interest or delegate its duties under this
Agreement without the prior written consent of the Registered Holder. In the
event of any such assignment or delegation, the Registered Holder shall not be
responsible for any fees of the successor Custodian in excess of the fees
formerly paid by the Registered Holder to the Custodian."
SECTION 4. Indemnification. Section 17 of the Custodial Agreement is
hereby amended by deleting "an Initial Custody Receipt" from the fifth line
of subsection (c) and replacing it with "a Mortgage Loan Schedule and
Exception Report."
SECTION 5. Exhibits. The Exhibits of the Custodial Agreement are hereby
amended by deleting "Exhibit One" and "Exhibit Two" and adding The Form of
Trust Receipt attached as Exhibit A to this Amendment as Exhibit One to the
Custodial Agreement.
SECTION 6. Delivered Documents. On the date hereof, MLCC shall have
received the following documents, each of which shall be satisfactory to
the MLCC in form and substance:
(a) Amendment. This Amendment No. 1, executed and delivered by a duly
authorized officer of MLCC and the Custodian; and
(b) Other Documents. Such other documents as the Purchaser or counsel to the
Purchaser may reasonably request.
SECTION 7. Limited Effect. Except as expressly amended and modified by
this Amendment, the Custodial Agreement shall continue to be, and shall
remain, in full force and effect in accordance with its terms.
SECTION 8. Counterparts. This Amendment may be executed by each of the
parties hereto on any number of separate counterparts, each of which shall
be an original and all of which taken together shall constitute one and the
same instrument.
SECTION 9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURE PAGE FOLLOWS]
P-4
IN WITNESS WHEREOF, the parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
XXXXX FARGO BANK MINNESOTA, N.A.
("CUSTODIAN")
By: _______________________________
Name: Xxxxx X. Xxxx
Title: Assistant Vice President
XXXXXXX XXXXX CREDIT CORPORATION
("MLCC")
By: _______________________________
Name:
Title:
P-5
EXHIBIT Q
OFFICER'S CERTIFICATE - TRUSTEE
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Trust Agreement (the "Agreement") dated as of September 1, 2003 between
Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor and Xxxxx Fargo
Bank Minnesota, National Association, as trustee - Xxxxxxx Xxxxx
Mortgage Investors Trust Series MLCC 2003-F Mortgage Loan Pass-Through
Certificates
I, [identify the certifying individual], a [title] of the Trustee
hereby certify to the Depositor, and its officers, directors and affiliates, and
with the knowledge and intent that they will rely upon this certification, that:
1. I have reviewed the Monthly Statements delivered pursuant to Section 4.02
the Agreement since the last Officer's Certificate executed pursuant to
Section 6.20 of the Agreement [or in the case of the first certification,
since the Cut-off Date] (the "Trustee Information").
2. Based on my knowledge, the information in the Monthly Statements , taken as
a whole, does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as
of the date hereof;
3. Based on my knowledge, the Monthly Statements required to be prepared by
the Trustee under the Agreement has been prepared and provided in
accordance with the Agreement; and
4. I am responsible for reviewing the activities performed by the Trustee
under the Agreement and the Trustee has, as of the date hereof fulfilled
its obligations under the Agreement and there are no significant
deficiencies relating to the Trustee's compliance with this Agreement.
Date:
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee
By: ____________________________
Name: ____________________________
Title: ____________________________
Q-1
EXHIBIT R
MLBTC MORTGAGE LOAN PURCHASE AGREEMENT
See Exhibit 99.11, filed herewith
R-1
SCHEDULE A
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
Schedule A-1
SCHEDULE B
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
OF THE ORIGINATOR AND MLBTC
The Originator hereby represents and warrants to the Purchaser, as to
each Mortgage Loan, as of the Closing Date as follows:
(a) The information set forth in the Mortgage Loan Schedule is true and
correct in all material respects as of the Cut-off Date;
(b) As of the related Closing Date, the Mortgage Loan is not delinquent
in payment more than 30 days and the Mortgage Loan has not been dishonored;
there are no material defaults under the terms of the Mortgage Loan; the
Originator has not advanced funds, or induced, solicited or knowingly received
any advance of funds from a party other than the owner of the Mortgaged Property
subject to the Mortgage, directly or indirectly, for the payment of any amount
required by the Mortgage Loan;
(c) To the best of the Originator's knowledge, with respect to those
Mortgage Loans as to which the Mortgagors are required to deposit funds into an
escrow account for payment of taxes, assessments, insurance premiums and similar
items as they become due, there are no delinquent taxes, ground rents, water
charges, sewer rents, assessments or other outstanding charges which constitute
a lien on the related Mortgaged Property, and all escrow deposits have been
collected, are under the control of the Servicer, and have been applied to the
payment of such items in a timely fashion, in accordance with such Mortgage. No
escrow deposits or escrow payments or other charges or payments due the Servicer
have been capitalized under the related Mortgage or Mortgage Note. With respect
to those Mortgage Loans for which escrow deposits are not required, to the best
of the Originator's knowledge, there are no delinquent taxes or other
outstanding charges affecting the related Mortgaged Property which constitute a
lien on the related Mortgaged Property;
(d) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments contained in the Mortgage File, approved, if necessary, by the
insurer under any Primary Mortgage Insurance Policy and recorded in all places
necessary to maintain the first priority of the lien, the substance of which
waiver, alteration or modification is reflected on the Mortgage Loan Schedule.
No Mortgagor has been released, in whole or in part, except in connection with
an assumption agreement which assumption agreement is part of the Mortgage File
and the terms of which are reflected in the Mortgage Loan Schedule;
(e) Neither the Mortgage Note nor the Mortgage is subject to any right
of rescission, set-off, counterclaim or defense, including the defense of usury,
nor will the operation of any of the terms of the Mortgage Note and the
Mortgage, or the exercise of any right thereunder, render the Mortgage
unenforceable, in whole or in part, or subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury and to the best
of the Originator's knowledge, no such right of rescission, set-off,
counterclaim or defense has been asserted by any Person with respect thereto;
Schedule B-1
(f) All buildings upon the Mortgaged Property are required to be
insured by a generally acceptable insurer against loss by fire, hazards of
extended coverage and such other hazards as are customarily included in extended
coverage in the area where the Mortgaged Property is located, pursuant to
standard hazard insurance policies in an amount which is equal to the lesser of
(A) the replacement cost of the improvements securing such Mortgage Loan or (B)
the principal balance owing on such Mortgage Loan. To the best knowledge of the
Originator, all such standard hazard policies are in effect. On the date of
origination, such standard hazard policies contained a standard mortgagee clause
naming the Originator or the Originator of the Mortgage Loan and their
respective successors in interest as mortgagee and, to the best knowledge of the
Originator, such clause is still in effect and, to the best of the Originator's
knowledge, all premiums due thereon have been paid. If the Mortgaged Property is
located in an area identified by the Federal Emergency Management Agency as
having special flood hazards under the National Flood Insurance Act of 1994, as
amended, such Mortgaged Property is covered by flood insurance in the amount
required under the National Flood Insurance Act of 1994. The Mortgage obligates
the Mortgagor thereunder to maintain all such insurance at Mortgagor's cost and
expense, and on the Mortgagor's failure to do so, authorizes the holder of the
Mortgage to maintain such insurance at Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor;
(g) To the best of the Originator's knowledge, at the time of
origination of such Mortgage Loan and thereafter, all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity or disclosure laws required to be complied with by the
Originator as the Originator of the Mortgage Loan and applicable to the Mortgage
Loan have been complied with in all material respects;
(h) The Mortgage has not been satisfied as of the Closing Date,
canceled or subordinated, in whole, or rescinded, and the Mortgaged Property has
not been released from the lien of the Mortgage, in whole or in part (except for
a release that does not materially impair the security of the Mortgage Loan or a
release the effect of which is reflected in the Loan-to-Value Ratio for the
Mortgage Loan as set forth in the Mortgage Loan Schedule), nor to the best of
the Originator's knowledge has any instrument been executed that would effect
any such release, cancellation, subordination or rescission;
(i) Ownership of the Mortgaged Property is held in fee simple or a
leasehold estate. With respect to Mortgage Loans that are secured by a leasehold
estate, (i) the lease is valid, in full force and effect, and conforms to all of
FNMA's requirements for leasehold estates; (ii) all rents and other payments due
under the lease have been paid; (iii) the lessee is not in default under any
provision of the lease; (iv) the term of the lease exceeds the maturity date of
the related Mortgage Loan by at least five (5) years; and (v) the terms of the
lease provide a Mortgagee with an opportunity to cure any defaults. Except as
permitted by the fourth sentence of this paragraph (i), the Mortgage is a valid,
subsisting and enforceable first lien on the Mortgaged Property, including all
buildings on the Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems affixed to such
buildings, and all additions, alterations and replacements made at any time with
respect to the foregoing securing the Mortgage Note's original principal
balance. The Mortgage and the Mortgage Note do not contain any evidence on their
face of any security interest or other interest or right thereto.
Schedule B-2
Such lien is free and clear of all adverse claims, liens and encumbrances having
priority over the first lien of the Mortgage subject only to (1) the lien of
non-delinquent current real property taxes and assessments not yet due and
payable, (2) covenants, conditions and restrictions, rights of way, easements
and other matters of the public record as of the date of recording which are
acceptable to mortgage lending institutions generally, or which are specifically
referred to in the lender's title insurance policy delivered to the Originator
of the Mortgage Loan and either (A) which are referred to or otherwise
considered in the appraisal made for the Originator of the Mortgage Loan, or (B)
which do not in the aggregate adversely affect the appraised value of the
Mortgaged Property as set forth in such appraisal, and (3) other matters to
which like properties are commonly subject which do not in the aggregate
materially interfere with the benefits of the security intended to be provided
by the Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, subsisting and enforceable first lien and first
priority security interest on the property described therein. With respect to
each Co-op Loan, the security instruments create a valid, enforceable and
subsisting first priority security interest in the Co-op Lease and Co-op Stock
securing the related Mortgage Note subject to only to (a) the lien of the
related cooperative for unpaid assessments representing the Mortgagor's pro rata
share of payments for a blanket mortgage, if any, current and future real
property taxes, insurance premiums, maintenance fees and other assessments to
which like collateral is commonly subject, and (b) other matters to which the
collateral is commonly subject which do not materially interfere with the
benefits of the security intended to be provided; provided, however, that the
related Co-op Loan may be subordinated or otherwise subject to the lien of a
Mortgage on the cooperative building;
(j) The Mortgage Note is not subject to a third party's security
interest or other rights or interest therein;
(k) 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 subject to bankruptcy, insolvency and other laws of
general application affecting the rights of creditors. All parties to the
Mortgage Note and the Mortgage had the legal capacity to enter into the Mortgage
Loan and to execute and deliver the Mortgage Note and the Mortgage. The Mortgage
Note and the Mortgage have been duly and properly executed by such parties. The
proceeds of the Mortgage Loan have been fully disbursed and 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;
(l) Originator has good title to, and the full right to transfer and
sell, the Mortgage Loan free and clear of any encumbrance, equity, lien, pledge,
charge, claim or security interest, including, to the best knowledge of the
Originator, any lien, claim or other interest arising by operation of law;
(m) To the best of the Originator's knowledge, each Mortgage Loan is
covered by an ALTA lender's title insurance policy or other generally acceptable
form of policy or insurance acceptable to FNMA or FHLMC, issued by a title
insurer acceptable to FNMA or FHLMC and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject to the
exceptions contained in paragraph (ix)(1) (2) and (3) above) the Originator, its
Schedule B-3
successors and assigns, as to the first priority lien of the Mortgage in the
original principal amount of the Mortgage Loan. To the best of the Originator's
knowledge, the Originator is the sole insured of such lender's title insurance
policy, such title insurance policy has been duly and validly endorsed to the
Purchaser or the assignment to the Purchaser of the Originator's interest
therein does not require the consent of or notification to the insurer and such
lender's title insurance policy is in full force and effect and will be in full
force and effect upon the consummation of the transactions contemplated by this
Agreement. To the best of the Originator's knowledge, no claims have been made
under such lender's title insurance policy, and no prior holder of the related
Mortgage has done, by act or omission, anything which would impair the coverage
of such lender's title insurance policy;
(n) To the best of the Originator's knowledge, there is no default,
breach, violation or event of acceleration existing under the Mortgage or the
related Mortgage Note and no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event permitting acceleration, except for any
Mortgage Loan payment which is not late by more than 30 days, and the Originator
has not waived any default, breach, violation or event permitting acceleration;
(o) To the best of the Originator's knowledge, there are no mechanics'
or similar liens or claims which have been filed for work, labor or material
(and, to the best of the Originator's knowledge, no rights are outstanding that
under law could give rise to such lien) affecting the related Mortgaged Property
which are or may be liens prior to, or equal or coordinate with, the lien of the
related Mortgage;
(p) To the best of the Originator's knowledge, all improvements subject
to the Mortgage, lay wholly within the boundaries and building restriction lines
of the Mortgaged Property (and wholly within the project with respect to a
condominium unit) and no improvements on adjoining properties encroach upon the
Mortgaged Property except those which are insured against by the title insurance
policy referred to in paragraph (xiii) above and all improvements on the
property comply with all applicable zoning and subdivision laws and ordinances;
(q) To the best of the Originator's knowledge, each Mortgage Loan was
originated by the Originator or by a savings association, a savings bank, a
commercial bank or similar banking institution that is supervised and examined
by a Federal or state banking authority, a mortgagee approved by the Secretary
of HUD pursuant to Section 203 and 211 of the National Housing Act, or a FNMA-
or FHLMC-approved seller. To the best of the Originator's knowledge, each
Mortgage Loan was underwritten generally in accordance with the Underwriting
Standards as in effect at the time of origination. To the best of the
Originator's knowledge, the Mortgage contains the usual and customary provision
of the Originator at the time of origination for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan if the related Mortgaged
Property is sold without the prior consent of the mortgagee thereunder;
(r) The Mortgaged Property at origination or acquisition was and, to
the best of the Originator's knowledge, currently is free of material damage and
waste and at origination there was, and to the best of the Originator's
knowledge there currently is, no proceeding pending for the total or partial
condemnation thereof;
Schedule B-4
(s) The related Mortgage contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (1) in the case of a Mortgage designated as a deed
of trust, by trustee's sale or judicial foreclosure, and (2) otherwise by
judicial foreclosure. The Originator has no knowledge of any homestead or other
exemption available to the Mortgagor which would interfere with the right to
sell the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage;
(t) To the best of the Originator's knowledge, if the Mortgage
constitutes a deed of trust, a trustee, duly qualified if required under
applicable law to act as such, has been properly designated and currently so
serves and is named in the Mortgage, and no fees or expenses are or will become
payable to the trustee under the deed of trust, except in connection with a
trustee's sale or attempted sale after default by the Mortgagor;
(u) With respect to each Mortgage Loan, there is either (i) an
automated property valuation report or (ii) an appraisal on a FNMA-approved form
(or a narrative residential appraisal) of the related Mortgaged Property that
conforms to the applicable requirements of the Financial Institutions Reform
Recovery and Enforcement Act and that was signed prior to the approval of such
Mortgage Loan application by a qualified appraiser, appointed by the Originator
or the Originator of such Mortgage Loan, as appropriate, who has 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 such Mortgage Loan;
(v) No Mortgage Loan contains "subsidized buydown" or "graduated
payment" features;
(w) The Mortgaged Property is a single-family (one- to four-unit)
dwelling residence erected thereon, or an individual condominium unit in a
condominium, or a Co-operative Apartment or an individual unit in a planned unit
development or in a de minimis planned unit development as defined by FNMA. No
such residence is a mobile home or a manufactured dwelling which is not
permanently attached to the land;
(x) No Mortgage Loan provides for negative amortization;
(y) No Mortgage Loan had an original term in excess of thirty (30)
years;
(z) [RESERVED]
(aa) Each Mortgage Loan is a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code (without regard to Treasury Regulations Section
1.860G-2(f) or any similar rule that provides that a defective obligation is a
qualified mortgage for a temporary period);
(bb) No Mortgage Loan provides for interest other than at either (x) a
single fixed rate in effect throughout the term of the Mortgage Loan or (y) a
single "variable rate" (within the meaning of Treasury Regulations Section
1.860G-1(a)(3)) in effect throughout the term of the Mortgage Loan.
(cc) No Mortgage Loan is the subject of pending or final foreclosure
proceedings.
Schedule B-5
(dd) Based on delinquencies in payment on the Mortgage Loans, the
Originator would not initiate foreclosure proceedings with respect to any of the
Mortgage Loans prior to the next scheduled payment date on such Mortgage Loan.
(ee) Each Mortgage Note is comprised of one original promissory note
and each such promissory note constitutes an "instrument" for purposes of
section 9-102(a)(65) of the UCC.
(ff) No Mortgage Loan is covered by the Home Ownership and Equity
Protection Act of 1994 ("HOEPA") and no Mortgage Loan is "high cost" as defined
by any applicable federal, state or local predatory or abusive lending law. Any
breach of this representation shall be deemed to materially and adversely affect
the value of the Mortgage Loan and shall require a repurchase of the affected
Mortgage Loan.
(gg) Each Mortgage Loan at the time it was made complied in all
material respects with applicable local, state and federal laws, including, but
not limited to, all applicable predatory or abusive lending laws.
Schedule B-6
