EXHIBIT 10.1
Pooling and Servicing Agreement
August 1, 2002
FIRST HORIZON ASSET SECURITIES INC.
Depositor
FIRST HORIZON HOME LOAN CORPORATION
Seller and Master Servicer
and
THE BANK OF NEW YORK,
Trustee
_____________________________________________________
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2002
_____________________________________________________
FIRST HORIZON MORTGAGE PASS-THROUGH TRUST 2002-5
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-5
TABLE OF CONTENTS
ARTICLE I DEFINITIONS ......................................................................................... 5
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES ...................................... 32
SECTION 2.1 Conveyance of Mortgage Loans ..................................................................... 32
SECTION 2.2 Acceptance by Trustee of the Mortgage Loans ...................................................... 36
SECTION 2.3 Representations, Warranties and Covenants of the Seller and
Master Servicer .......................................................................................... 38
SECTION 2.4 Representations and Warranties of the Depositor as to the Mortgage Loans ......................... 40
SECTION 2.5 Delivery of Opinion of Counsel in Connection with Substitutions .................................. 41
SECTION 2.6 Execution and Delivery of Certificates ........................................................... 41
SECTION 2.7 REMIC Matters .................................................................................... 41
SECTION 2.8 Covenants of the Master Servicer ................................................................. 43
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS .................................................... 43
SECTION 3.1 Master Servicer to Service Mortgage Loans ........................................................ 43
SECTION 3.2 Subservicing; Enforcement of the Obligations of Servicers ........................................ 44
SECTION 3.3 Rights of the Depositor and the Trustee in Respect of the Master Servicer ........................ 45
SECTION 3.4 Trustee to Act as Master Servicer ................................................................ 45
SECTION 3.5 Collection of Mortgage Loan Payments; Certificate Account; Distribution Account .................. 46
SECTION 3.6 Collection of Taxes, Assessments and Similar Items; Escrow Accounts .............................. 48
SECTION 3.7 Access to Certain Documentation and Information Regarding the
Mortgage Loans ........................................................................................... 49
SECTION 3.8 Permitted Withdrawals from the Certificate Account and Distribution
Account .................................................................................................. 49
SECTION 3.9 Maintenance of Hazard Insurance; Maintenance of Primary Insurance
Policies ................................................................................................. 51
SECTION 3.10 Enforcement of Due-on-Sale Clauses; Assumption Agreements ....................................... 53
SECTION 3.11 Realization Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage Loans ................. 54
SECTION 3.12 Trustee to Cooperate; Release of Mortgage Files ................................................. 57
SECTION 3.13 Documents Records and Funds in Possession of Master Servicer to be Held for the Trustee ......... 57
SECTION 3.14 Master Servicing Compensation ................................................................... 58
SECTION 3.15 Access to Certain Documentation ................................................................. 58
SECTION 3.16 Annual Statement as to Compliance ............................................................... 59
SECTION 3.17 Annual Independent Public Accountants' Servicing Statement; Financial Statements ................ 59
SECTION 3.18 Errors and Omissions Insurance; Fidelity Bonds .................................................. 60
ARTICLE IV DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER .................................................. 60
SECTION 4.1 Advances ......................................................................................... 60
SECTION 4.2 Priorities of Distribution ........................................................................ 60
SECTION 4.3 Method of Distribution ............................................................................ 63
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SECTION 4.4 Allocation of Losses.................................................................... 64
SECTION 4.5 Reserved................................................................................ 66
SECTION 4.6 Monthly Statements to Certificateholders................................................ 66
SECTION 4.7 Determination of Pass-Through Rates for LIBOR Certificates.............................. 68
ARTICLE V THE CERTIFICATES............................................................................ 70
SECTION 5.1 The Certificates........................................................................ 70
SECTION 5.2 Certificate Register; Registration of Transfer and Exchange of Certificates............. 70
SECTION 5.3 Mutilated, Destroyed, Lost or Stolen Certificates....................................... 75
SECTION 5.4 Persons Deemed Owners................................................................... 76
SECTION 5.5 Access to List of Certificateholders' Names and Addresses............................... 76
SECTION 5.6 Maintenance of Office or Agency......................................................... 76
ARTICLE VI THE DEPOSITOR AND THE MASTER SERVICER...................................................... 77
SECTION 6.1 Respective Liabilities of the Depositor and the Master Servicer......................... 77
SECTION 6.2 Merger or Consolidation of the Depositor or the Master Servicer......................... 77
SECTION 6.3 Limitation on Liability of the Depositor, the Seller, the Master Servicer and
Others.......................................................................................... 77
SECTION 6.4 Limitation on Resignation of Master Servicer............................................ 78
ARTICLE VII DEFAULT................................................................................... 78
SECTION 7.1 Events of Default....................................................................... 78
SECTION 7.2 Trustee to Act; Appointment of Successor................................................ 80
SECTION 7.3 Notification to Certificateholders...................................................... 81
ARTICLE VIII CONCERNING THE TRUSTEE................................................................... 81
SECTION 8.1 Duties of Trustee....................................................................... 81
SECTION 8.2 Certain Matters Affecting the Trustee................................................... 83
SECTION 8.3 Trustee Not Liable for Certificates or Mortgage Loans................................... 84
SECTION 8.4 Trustee May Own Certificates............................................................ 85
SECTION 8.5 Trustee's Fees and Expenses............................................................. 85
SECTION 8.6 Eligibility Requirements for Trustee.................................................... 85
SECTION 8.7 Resignation and Removal of Trustee. .................................................... 86
SECTION 8.8 Successor Trustee....................................................................... 87
SECTION 8.9 Merger or Consolidation of Trustee...................................................... 87
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee. ........................................ 87
SECTION 8.11 Tax Matters............................................................................ 89
SECTION 8.12 Periodic Filings....................................................................... 90
ARTICLE IX TERMINATION ............................................................................... 91
SECTION 9.1 Termination upon Liquidation or Purchase of all Mortgage Loans.......................... 91
SECTION 9.2 Final Distribution on the Certificates.................................................. 91
SECTION 9.3 Additional Termination Requirements..................................................... 92
ARTICLE X [RESERVED].................................................................................. 93
ARTICLE XI MISCELLANEOUS PROVISIONS................................................................... 93
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SECTION 11.1 Amendment..................................................................... 93
SECTION 11.2 Recordation of Agreement; Counterparts........................................ 95
SECTION 11.3 Governing Law................................................................. 95
SECTION 11.4 Intention of Parties. ........................................................ 95
SECTION 11.5 Notices....................................................................... 96
SECTION 11.6 Severability of Provisions.................................................... 97
SECTION 11.7 Assignment.................................................................... 98
SECTION 11.8 Limitation on Rights of Certificateholders.................................... 98
SECTION 11.9 Inspection and Audit Rights................................................... 98
SECTION 11.10 Certificates Nonassessable and Fully Paid.................................... 99
SECTION 11.11 Limitations on Actions; No Proceedings....................................... 99
SCHEDULES
Schedule I: Mortgage Loan Schedule S-I-1
Schedule II: Representations and Warranties of the Seller/Master Servicer S-II-1
Schedule III: Representations and Warranties as to the Mortgage Loans S-III-1
Schedule IV: Form of Monthly Master Servicer Report S-IV-1
Schedule V: Principal Balance Schedules S-V-1
EXHIBITS
Exhibit A: Form of Senior Certificate A-1
Exhibit B: Form of Subordinated Certificate B-1
Exhibit C: Form of Residual Certificate C-1
Exhibit D: Form of Reverse of Certificates D-1
Exhibit E: Form of Initial Certification E-1
Exhibit F: Form of Delay Delivery Certification F-1
Exhibit G: Form of Final Certification of Custodian G-1
Exhibit H: Transfer Affidavit H-1
Exhibit I: Form of Transferor Certificate I-1
Exhibit J: Form of Investment Letter [Non-Rule 144A] J-1
Exhibit K: Form of Rule 144A Letter K-1
Exhibit L: Request for Release (for Trustee) L-1
Exhibit M: Request for Release (Mortgage Loan) M-1
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THIS POOLING AND SERVICING AGREEMENT, dated as of August 1, 2002, among
FIRST HORIZON ASSET SECURITIES INC., a Delaware corporation, as depositor (the
"Depositor"), FIRST HORIZON HOME LOAN CORPORATION, a Kansas corporation, as
seller (in such capacity, the "Seller") and as master servicer (in such
capacity, the "Master Servicer"), and THE BANK OF NEW YORK, a banking
corporation organized under the laws of the State of New York, as trustee (the
"Trustee").
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the parties
hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates. The Trust Fund for federal income
tax purposes will consist of two separate REMICs. The Certificates will
represent the entire beneficial ownership interest in the Trust Fund. The
Regular Certificates will represent "regular interests" in the Upper REMIC. The
Class A-RU Certificates will represent the sole class of residual interests in
the Upper REMIC and the Class A-RL Certificates will represent the sole class of
residual interests in the Lower REMIC, as described in Section 2.7. The "latest
possible maturity date" for federal income tax purposes of all interests created
hereby will be the Latest Possible Maturity Date.
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which such Classes shall be issuable (except that one Certificate of each
Class of Certificates may be issued in a different amount and, in addition, one
Residual Certificate representing the Tax Matters Person Certificate may be
issued in a different amount):
[Remainder of Page Intentionally Left Blank]
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Initial Class Integral Multiples
Class Designation Certificate Balance Pass Through Rate Minimum Denomination in Excess Minimum
----------------------------------------------------------------------------------------------------------------
Class A-1 $ 186,234,000.00 5.500% $ 25,000 $ 1,000
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Class A-2 $ 62,077,000.00 Variable/(1)/ $ 25,000 $ 1,000
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Class A-3 /(2)/ Variable/(3)/ $ 2,000,000 $ 1,000
----------------------------------------------------------------------------------------------------------------
Class A-4 $ 36,500,000.00 6.250% $ 25,000 $ 1,000
----------------------------------------------------------------------------------------------------------------
Class A-5 $ 20,760,000.00 6.250% $ 1,000 $ 1,000
----------------------------------------------------------------------------------------------------------------
Class A-6 $ 35,000,000.00 6.250% $ 25,000 $ 1,000
----------------------------------------------------------------------------------------------------------------
Class A-RU $ 50.00 6.250% $ 50 N/A
----------------------------------------------------------------------------------------------------------------
Class A-RL $ 50.00 6.250% $ 50 N/A
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Class B-1 $ 4,551,000.00 6.250% $ 100,000 $ 1,000
----------------------------------------------------------------------------------------------------------------
Class B-2 $ 1,750,000.00 6.250% $ 100,000 $ 1,000
----------------------------------------------------------------------------------------------------------------
Class B-3 $ 1,400,000.00 6.250% $ 100,000 $ 1,000
----------------------------------------------------------------------------------------------------------------
Class B-4 $ 525,000.00 6.250% $ 100,000 $ 1,000
----------------------------------------------------------------------------------------------------------------
Class B-5 $ 700,000.00 6.250% $ 100,000 $ 1,000
----------------------------------------------------------------------------------------------------------------
Class B-6 $ 525,317.00 6.250% $ 100,000 $ 1,000
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(1) The Pass-Through Rate with respect to any Distribution Date (and the related
Interest Accrual Period) for the Class A-2 Certificates is the per annum rate
equal to (a) 2.35% with respect to the first Distribution Date, and (b)
thereafter, the lesser of (i) LIBOR plus 0.55% and (ii) 8.50%, subject to a
minimum rate of 0.55%.
(2) The Notional Amount with respect to any Distribution Date (and the related
Interest Accrual Period) of the Class A-3 Certificates will equal the Class
Certificate Balance of the Class A-2 Certificates immediately preceding such
Distribution Date.
(3) The Pass-Through Rate with respect to any Distribution Date (and the related
Interest Accrual Period) for the Class A-3 Certificates is the per annum rate
equal to (a) 6.15% with respect to the first Distribution Date, and (b)
thereafter, 7.95% minus LIBOR, subject to a minimum rate of 0.00%.
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Accretion Directed Certificates ......... None.
Accrual Certificates .................... None.
Accrual Components ...................... None.
Book-Entry Certificates ................. All Classes of Certificates other than the Physical Certificates.
Component Certificates .................. None.
Components .............................. For purposes of calculating distributions, the Component Certificates
will be comprised of multiple payment components having the designations,
Initial Component Balances and Pass-Through Rates set forth below:
Initial
Component
Designation Balance Pass-Through Rate
----------- --------- -----------------
N/A N/A N/A
Delay Certificates ...................... All interest-bearing Classes of Certificates other than
the Non-Delay Certificates, if any.
ERISA-Restricted Certificates ........... The Residual Certificates and the Private Certificates.
Floating Rate Certificates .............. The Class A-2 Certificates.
Insured Retail Certificates ............. None.
Interest Only Certificates .............. The Class A-3 Certificates.
Inverse Floating Rate
Certificates ............................ The Class A-3 Certificates.
COFI Certificates ....................... None.
LIBOR Certificates ...................... The Class A-2 and Class A-3 Certificates.
Non-Delay Certificates .................. The LIBOR Certificates.
Notional Principal Amount
Certificates ............................ The Class A-3 Certificates.
Offered Certificates .................... All Classes of Certificates other than the Private Certificates.
Physical Certificates ................... The Private Certificates and the Residual Certificates.
Planned Principal Classes ............... The Primary Planned Principal Classes and the Secondary Planned Principal
Classes.
Primary Planned Principal
Classes ................................. None.
Principal Only Certificates ............. None.
Private Certificates .................... The Class B-4, Class B-5 and Class B-6 Certificates.
Rating Agencies ......................... S&P and Fitch.
Regular Certificates .................... All Classes of Certificates, other than the Residual Certificates.
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Residual Certificates ................... The Class A-RU and Class A-RL Certificates.
Retail Certificates ..................... None.
Scheduled Principal Classes ............. None.
Secondary Planned Principal
Class ................................... None.
Senior Certificates ..................... The Class A-1, Class A-2, Class A-3, Class A-4, Class A-5,
Class A-6, Class A-RU and Class A-RL Certificates.
Subordinated Certificates ............... The Class B-1, Class B-2, Class B-3, Class B-4, Class B-5
and Class B-6 Certificates.
Support Classes ......................... None.
Targeted Principal Classes .............. None.
Underwriters ............................ Xxxxxx Brothers, Inc.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions herein
relating solely to such designations shall be of no force or effect, and any
calculations herein incorporating references to such designations shall be
interpreted without reference to such designations and amounts. Defined terms
and provisions herein relating to statistical rating agencies not designated
above as Rating Agencies shall be of no force or effect.
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ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
Accrued Certificate Interest: For any Class of Certificates for any
Distribution Date, the interest accrued during the related Interest Accrual
Period at the applicable Pass-Through Rate on the Class Certificate Balance (or
Notional Amount, in the case of any Interest Only Certificates) of such Class of
Certificates immediately prior to such Distribution Date, less such Class' share
of any Net Interest Shortfall.
Adjusted Mortgage Rate: As to each Mortgage Loan, and at any time, the per
annum rate equal to the Mortgage Rate less the Master Servicing Fee Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan, and at any time, the
per annum rate equal to the Mortgage Rate less the related Expense Rate.
Advance: The payment required to be made by the Master Servicer with
respect to any Distribution Date pursuant to Section 4.1, the amount of any such
payment being equal to the aggregate of payments of principal and interest (net
of the Master Servicing Fee and net of any net income in the case of any REO
Property) on the Mortgage Loans that were due on the related Due Date and not
received as of the close of business on the related Determination Date, less the
aggregate amount of any such delinquent payments that the Master Servicer has
determined would constitute a Nonrecoverable Advance if advanced.
Agreement: This Pooling and Servicing Agreement and all amendments or
supplements hereto.
Allocable Share: With respect to any Class of Subordinated Certificates on
any Distribution Date, such Class' pro rata share (based on the Class
Certificate Balance of each Class entitled thereto) of each of the components of
the Subordinated Optimal Principal Amount; provided, that, except as provided in
this Agreement, no Subordinated Certificates (other than the Class of
Subordinated Certificates with the highest priority of distribution) shall be
entitled on any Distribution Date to receive distributions pursuant to clauses
(2), (3) and (5) of the definition of Subordinated Optimal Principal Amount
unless the Class Prepayment Distribution Trigger for such Class is satisfied for
such Distribution Date.
Amount Held for Future Distribution: As to any Distribution Date, the
aggregate amount held in the Certificate Account at the close of business on the
related Determination Date on account of (i) Principal Prepayments received
after the related Prepayment Period and Liquidation Proceeds received in the
month of such Distribution Date and (ii) all Scheduled Payments due after the
related Due 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
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the Mortgaged Property at the time of the origination of such Mortgage Loan;
(ii) with respect to a Refinancing Mortgage Loan other than a Streamlined
Documentation Mortgage Loan, the value of the Mortgaged Property based upon the
appraisal made at the time of the origination of such Refinancing Mortgage Loan;
and (iii) with respect to a Streamlined Documentation Mortgage Loan, (a) if the
loan-to-value ratio with respect to the Original Mortgage Loan at the time of
the origination thereof was 90% or less, the value of the Mortgaged Property
based upon the appraisal made at the time of the origination of the Original
Mortgage Loan and (b) if the loan-to-value ratio with respect to the Original
Mortgage Loan at the time of the origination thereof was greater than 90%, the
value of the Mortgaged Property based upon the appraisal (which may be a
drive-by appraisal) made at the time of the origination of such Streamlined
Documentation Mortgage Loan.
Available Funds: With respect to any Distribution Date, an amount equal to
the sum of:
. all scheduled installments of interest, net of the Master
Servicing Fee, the Trustee Fee and any amounts due to First
Horizon in respect of the Retained Yield on such Distribution
Date, and all scheduled installments of principal due on the Due
Date in the month in which the Distribution Date occurs and
received before the related Determination Date, together with any
Advances in respect thereof;
. all Insurance Proceeds and all Liquidation Proceeds received
during the calendar month before the Distribution Date, which in
each case is net of unreimbursed expenses incurred in connection
with a liquidation or foreclosure and unreimbursed Advances, if
any;
. all Principal Prepayments received during the related Prepayment
Period, plus interest received thereon, net of any Prepayment
Interest Excess;
. any Compensating Interest in respect of Principal Prepayments in
Full received during the related Prepayment Period; and
. any Substitution Adjustment Amount or the Purchase Price for any
Deleted Mortgage Loan or a Mortgage Loan repurchased by the
Seller or the Master Servicer as of such Distribution Date,
reduced by amounts in reimbursement for Advances previously made
and other amounts that the Master Servicer is entitled to be
reimbursed for out of the Certificate Account pursuant to this
Agreement.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy Coverage Termination Date: The date on which the Bankruptcy Loss
Coverage Amount is reduced to zero.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient Valuation
or Debt Service Reduction; provided, however, that a Bankruptcy Loss shall not
be deemed a Bankruptcy Loss hereunder so long as the Master Servicer has
notified the Trustee in writing that the Master Servicer is diligently pursuing
any remedies that may exist in connection with the related Mortgage Loan and
either (A) the related Mortgage Loan is not in default with regard to
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payments due thereunder or (B) delinquent payments of principal and interest
under the related Mortgage Loan and any related escrow payments in respect of
such Mortgage Loan are being advanced on a current basis by the Master Servicer,
in either case without giving effect to any Debt Service Reduction or Deficient
Valuation.
Bankruptcy Loss Coverage Amount: As of any Determination Date, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses allocated to
the Certificates since the Cut-off Date and (ii) any permissible reductions in
the Bankruptcy Loss Coverage Amount as evidenced by a letter of each Rating
Agency to the Trustee to the effect that any such reduction will not result in a
downgrading of the then current ratings assigned to the Classes of Certificates
rated by it.
Blanket Mortgage: The mortgage or mortgages encumbering the Cooperative
Property.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a day
on which banking institutions in the City of Dallas, or the State of Texas or
the city in which the Corporate Trust Office of the Trustee is located are
authorized or obligated by law or executive order to be closed.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached hereto as exhibits.
Certificate Account: The separate Eligible Account or Accounts created and
maintained by the Master Servicer pursuant to Section 3.5 with a depository
institution in the name of the Master Servicer for the benefit of the Trustee on
behalf of Certificateholders and designated "First Horizon Home Loan Corporation
in trust for the registered holders of First Horizon Asset Securities Inc.
Mortgage Pass-Through Certificates, Series 2002-5."
Certificate Principal Balance: With respect to any Certificate (other than
the Class A-3 Certificates) and as of any Distribution Date, the Certificate
Principal Balance on the date of the initial issuance of such Certificate, as
reduced by:
(a) all amounts distributed on previous Distribution Dates on such
Certificate on account of principal,
(b) the principal portion of all Realized Losses previously allocated to
such Certificate, and
(c) in the case of a Subordinated Certificate, such Certificate's pro rata
share, if any, of the Subordinated Certificate Writedown Amount for
previous Distribution Dates.
Certificate Owner: With respect to a Book-Entry Certificate, the Person who
is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section 5.2
hereof.
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Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor or the Seller or any affiliate or agent of the Depositor
or the Seller shall be deemed not to be Outstanding and the Percentage Interest
evidenced thereby shall not be taken into account in determining whether the
requisite amount of Percentage Interests necessary to effect such consent has
been obtained; provided, however, that if any such Person (including the
Depositor) owns 100% of the Percentage Interests evidenced by a Class of
Certificates, such Certificates shall be deemed to be Outstanding for purposes
of any provision hereof that requires the consent of the Holders of Certificates
of a particular Class as a condition to the taking of any action hereunder. The
Trustee is entitled to rely conclusively on a certification of the Depositor or
any affiliate of the Depositor in determining which Certificates are registered
in the name of an affiliate of the Depositor.
Class: All Certificates bearing the same class designation as set forth in
the Preliminary Statement.
Class Certificate Balance: With respect to any Class of Certificates (other
than the Class A-3 Certificates) and as of any Distribution Date the aggregate
of the Certificate Principal Balances of all Certificates of such Class as of
such date.
Class A-6 Distribution Percentage: 0% through the Distribution Date in
August 2007; 30% of the applicable Class A-6 Percentage thereafter through the
Distribution Date in August 2008; 40% of the applicable Class A-6 Percentage
thereafter through the Distribution Date in August 2009; 60% of the applicable
Class A-6 Percentage thereafter through the Distribution Date in August 2010;
80% of the applicable Class A-6 Percentage thereafter through the Distribution
Date in August 2011; and 100% of the applicable Class A-6 Percentage thereafter.
Class A-6 Percentage: For any Distribution Date, the lesser of (x) 100% and
(y) the percentage (carried to six places rounded up) obtained by dividing (1)
the aggregate Class Certificate Balance of the Class A-6 Certificates
immediately preceding such Distribution Date by (2) the aggregate Stated
Principal Balance of the Mortgage Loans immediately preceding such Distribution
Date.
Class A-6 Principal Distribution Amount: For any Distribution Date, the
lesser of (i) the sum of:
(a) the total of the amounts described in clauses (1) and (4) of the
definition of Senior Optimal Principal Amount (determined without
application of the Senior Percentage or the Senior Prepayment
Percentage) for such date multiplied by the Class A-6 Scheduled
Distribution Percentage for such date; and
(b) the total of the amounts described in clauses (2), (3) and (5) of
the definition of Senior Optimal Principal Amount (determined without
application of the Senior Prepayment Percentage) for such date
multiplied by the Class A-6 Distribution Percentage for such date.
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and (ii) 98.6% of the Senior Optimal Principal Amount.
Class A-6 Scheduled Distribution Percentage: As to any Distribution
Date, 0% through the Distribution Date in August 2007 and thereafter, the Class
A-6 Percentage for such date.
Class Prepayment Distribution Trigger: For a Class of Subordinated
Certificates (other than the Class of Subordinated Certificates with the highest
priority of distribution), a trigger that is satisfied on any Distribution Date
on which a fraction (expressed as a percentage), the numerator of which is the
aggregate Class Certificate Balance of such Class and each Class subordinate
thereto, if any, and the denominator of which is the Pool Principal Balance with
respect to such Distribution Date, equals or exceeds such percentage calculated
as of the Closing Date.
Closing Date: August 29, 2002.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COFI: Not applicable.
COFI Certificates: Not applicable.
Compensating Interest: As to any Distribution Date and any Principal
Prepayment in respect of a Mortgage Loan that is received during the period from
the sixteenth day of the month prior to the month of such Distribution Date
through the last day of such month, an additional payment made by the Master
Servicer, to the extent funds are available from the Master Servicing Fee, equal
to the amount of interest at the Adjusted Net Mortgage Rate for that Mortgage
Loan from the date of the prepayment to the related Due Date; provided that the
aggregate of all such payments shall not exceed 0.0083% of the Pool Principal
Balance as of the related Determination Date, and provided further that if a
partial Principal Prepayment is applied after the first of the month following
the month of receipt, no additional payment is required for such Principal
Prepayment.
Component: Not applicable.
Component Balance: Not applicable.
Component Certificates: Not applicable.
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.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
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Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Coop Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The designated office of the Trustee in the State
of New York at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at The Bank of New York, 000 Xxxxxxx
Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000 (Attn: Corporate Trust Mortgage-Backed
Securities Group, First Horizon Asset Securities Inc. Series 2002-5), facsimile
no. (000) 000-0000, and which is the address to which notices to and
correspondence with the Trustee should be directed.
Corresponding Classes of Certificates: Not applicable.
Cross-over Date: The Distribution Date on which the respective Class
Certificate Balances of each Class of Subordinated Certificates have been
reduced to zero.
Custodial Agreement: The Custodial Agreement dated as of August 29, 2002 by
and among the Trustee, the Master Servicer and the Custodian.
Custodian: LaSalle Bank National Association, a national banking
association, and its successors and assigns, as custodian under the Custodial
Agreement.
Cut-off Date: August 1, 2002.
Cut-off Date Pool Principal Balance: $350,022,417.52.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction by a
court of competent jurisdiction in a proceeding under the Bankruptcy Code in the
Scheduled Payment for such Mortgage Loan which became final and non-appealable,
except such a reduction resulting from a Deficient Valuation or any reduction
that results in a permanent forgiveness of principal.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
repurchased pursuant to Section 2.2 or 2.3.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by a
court of competent jurisdiction of the Mortgaged Property in an amount less than
the then-outstanding 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.
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Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.2(e).
Delay Certificates: As specified in the Preliminary Statement.
Delay Delivery Mortgage Loans: The Mortgage Loans for which all or a
portion of a related Mortgage File is not delivered to Trustee on the Closing
Date. The number of Delay Delivery Mortgage Loans shall not exceed 25% of the
aggregate number of Mortgage Loans as of the Closing Date.
Deleted Mortgage Loan: As defined in Section 2.3(c) hereof.
Denomination: With respect to each Certificate, the amount set forth on the
face thereof as the "Initial Certificate Balance of this Certificate" or the
Percentage Interest appearing on the face thereof.
Depositor: First Horizon Asset Securities Inc., a Delaware corporation, or
its successor in interest.
Depository: The initial Depository shall be The Depository Trust Company,
the nominee of which is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(a)(5) of the Uniform Commercial Code of the State of
New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the earlier of (i) the
third Business Day after the 15th day of each month, and (ii) the second
Business Day prior to the related Distribution Date.
Discount Mortgage Loan: Any Mortgage Loan with a Mortgage Rate of less than
6.50% per annum.
Distribution Account: The separate Eligible Account created and maintained
by the Trustee pursuant to Section 3.5 in the name of the Trustee for the
benefit of the Certificateholders and designated "The Bank of New York, in trust
for registered Holders of First Horizon Asset Securities Inc. Mortgage
Pass-Through Certificates, Series 2002-5." Funds in the Distribution Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, 1:30 p.m.
Central time on the Business Day immediately preceding such Distribution Date.
Distribution Date: The 25th day of each calendar month after the initial
issuance of the Certificates, or if such 25th day is not a Business Day, the
next succeeding Business Day, commencing in September 2002.
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Due Date: With respect to any Distribution Date, the first day of the
month in which the related Distribution Date occurs.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
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, as applicable) 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 (a) the trust department of a federal or state
chartered depository institution or (b) a 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.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.6(a) hereof.
Event of Default: As defined in Section 7.1 hereof.
Excess Loss: The amount of any (i) Fraud Loss realized after the Fraud
Loss Coverage Termination Date, (ii) Special Hazard Loss realized after the
Special Hazard Coverage Termination Date or (iii) Deficient Valuation realized
after the Bankruptcy Coverage Termination Date.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of such Mortgage
Loan received in the calendar month in which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed to the Master
Servicer as Nonrecoverable Advance(s) with respect to such Mortgage Loan
pursuant to Section 3.8(a)(iii), exceeds (i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due Date in the month in which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest at
the 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
applicable to the Distribution Date immediately following the calendar month
during which such liquidation occurred.
Expense Rate: As to each Mortgage Loan, the sum of the related Master
Servicing Fee Rate and the Trustee Fee Rate.
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FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989.
First Horizon: First Horizon Home Loan Corporation, a Kansas
corporation and an indirect wholly owned subsidiary of First Tennessee National
Corporation, a Tennessee corporation.
Fitch: Fitch Ratings or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section 11.5(b)
the address for notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Surveillance Group, or
such other address as Fitch may hereafter furnish to the Depositor and the
Master Servicer.
FNMA: 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.
Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
Fraud Losses: Realized Losses on Mortgage Loans as to which a loss is
sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including a loss
by reason of the denial of coverage under any related Primary Insurance Policy
because of such fraud, dishonesty or misrepresentation.
Fraud Loss Coverage Amount: As of the Closing Date, $3,500,224. As of
any Distribution Date from the first anniversary of the Cut-off Date and prior
to the fourth anniversary of the Cut-off Date, the Fraud Loss Coverage Amount
will equal $3,500,224 minus the aggregate amount of Fraud Losses that would have
been allocated to the Subordinated Certificates in the absence of the Loss
Allocation Limitation since the Cut-off Date. As of any Distribution Date from
the fourth to the fifth anniversaries of the Cut-off Date, the Fraud Loss
Coverage Amount will equal (1) the lesser of (a) the Fraud Loss Coverage Amount
as of the most recent anniversary of the Cut-off Date and (b) 0.50% of the
aggregate outstanding principal balance of all of the mortgage loans as of the
most recent anniversary of the Cut-off Date minus (2) the Fraud Losses that
would have been allocated to the Subordinated Certificates in the absence of the
Loss Allocation Limitation since the most recent anniversary of the Cut-off
Date. As of any Distribution Date on or after the earlier of the Cross-over Date
or the fifth anniversary of the Cut-off Date, the Fraud Loss Coverage Amount
shall be zero.
Fraud Loss Coverage Termination Date: The point in time at which the
Fraud Loss Coverage Amount is reduced to zero.
Index: Not applicable.
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Indirect Participant: A broker, dealer, bank or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Bankruptcy Coverage Amount: $100,000.
Initial Component Balance: Not applicable.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements thereto
in effect, including any replacement policy or policies for any Insurance
Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Insured Retail Certificates: Not applicable.
Interest Accrual Period: With respect to each Class of Delay
Certificates and any Distribution Date, the calendar month prior to the month of
such Distribution Date. With respect to any Non-Delay Certificates and any
Distribution Date, the one month period commencing on the 25th day of the month
preceding the month in which such Distribution Date occurs and ending on the
24th day of the month in which such Distribution Date occurs.
Interest Determination Date: With respect to any Interest Accrual
Period for any LIBOR Certificates, the second Business Day prior to the first
day of such Interest Accrual Period.
Interest Only Certificates: As specified in the Preliminary Statement.
Latest Possible Maturity Date: As to each Class of Certificates, the
Distribution Date following the third anniversary of the scheduled maturity date
of the Mortgage Loan having the latest scheduled maturity date as of the Cut-off
Date.
Lender PMI Mortgage Loan: Not applicable.
LIBOR: The London Interbank offered rate for one-month United States
dollar deposits calculated in the manner described in Section 4.7.
LIBOR Certificates: As specified in the Preliminary Statement.
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
Master Servicer has determined (in accordance with this 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.
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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,
less the sum of related unreimbursed Master Servicing Fees, Servicing Advances
and Advances.
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.
Loss Allocation Limitation: As defined in Section 4.4(g).
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Lower REMIC: The segregated pool of assets consisting of the Trust Fund
but excluding the Retained Yield and the Lower REMIC Interests.
Lower REMIC Interests: The regular REMIC interests issued by the Lower
REMIC as set forth in Section 2.7.
Maintenance: With respect to any Cooperative Unit, the rent paid by the
Mortgagor to the Cooperative Corporation pursuant to the Proprietary Lease.
Majority in Interest: As to any Class of Regular Certificates, the
Holders of Certificates of such Class evidencing, in the aggregate, at least 51%
of the Percentage Interests evidenced by all Certificates of such Class.
Master Servicer: First Horizon Home Loan Corporation, a Kansas
corporation, and its successors and assigns, in its capacity as master servicer
hereunder.
Master Servicer Advance Date: As to any Distribution Date, 1:30 p.m.
Central time on the Business Day immediately preceding such Distribution Date.
Master Servicing Fee: As to each Mortgage Loan and any Distribution
Date, an amount payable out of each full payment of interest received on such
Mortgage Loan and equal to one-twelfth of the Master Servicing Fee Rate
multiplied by the Stated Principal Balance of such Mortgage Loan as of the Due
Date in the month of such Distribution Date (prior to giving effect to any
Scheduled Payments due on such Mortgage Loan on such Due Date), subject to
reduction as provided in Section 3.14.
Master Servicing Fee Rate: For each Mortgage Loan, other than Discount
Mortgage Loans, a per annum rate equal to 0.244%. For each Discount Mortgage
Loan, a per annum rate equal to the excess, if any, of the Mortgage Rate thereof
over 6.256%.
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Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.6.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto. If
Xxxxx'x is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 11.5(b) the address for notices to Moody's shall be Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Pass-Through Monitoring, or such other address as Moody's may
hereafter furnish to the Depositor or the Master Servicer.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.1 hereof
pertaining to a particular Mortgage Loan and any additional documents delivered
to the Trustee to be added to the Mortgage File pursuant to this Agreement.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Master Servicer to reflect the addition of Substitute
Mortgage Loans and the deletion of Deleted Mortgage Loans pursuant to the
provisions of this Agreement) transferred to the Trustee as part of the Trust
Fund and from time to time subject to this Agreement, attached hereto as
Schedule I, setting forth the following information with respect to each
Mortgage Loan:
(1) the loan number;
(2) the Mortgagor's name and the street address of the
Mortgaged Property, including the zip code;
(3) the maturity date;
(4) the original principal balance;
(5) the Cut-off Date Principal Balance;
(6) the first payment date of the Mortgage Loan;
(7) the Scheduled Payment in effect as of the Cut-off Date;
(8) the Loan-to-Value Ratio at origination;
(9) a code indicating whether the residential dwelling at the
time of origination was represented to be owner-occupied;
(10) a code indicating whether the residential dwelling is
either (a) a detached single family dwelling (b) a
dwelling in a de minimis PUD, (c) a condominium unit or
PUD (other than a de minimis PUD), (d) a two-to-four unit
residential property or (e) a Cooperative Unit;
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(11) the Mortgage Rate;
(12) the purpose for the Mortgage Loan;
(13) the type of documentation program pursuant to which the
Mortgage Loan was originated; and
(14) the Master Servicing Fee for the Mortgage Loan.
Such schedule shall also set forth the total of the amounts described
under (iv) and (v) above for all of the Mortgage Loans.
Mortgage Loans: Such of the mortgage loans transferred and assigned to
the Trustee pursuant to the provisions hereof as from time to time are held as a
part of the Trust Fund (including any REO Property), the mortgage loans so held
being identified in the Mortgage Loan Schedule, notwithstanding foreclosure or
other acquisition of title of the related Mortgaged Property.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note
from time to time, net of any insurance premium charged by the mortgagee to
obtain or maintain any Primary Insurance Policy.
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Coop Shares and
Proprietary Lease.
Mortgagor: The obligor(s) on a Mortgage Note.
National Cost of Funds Index: The National Monthly Median Cost of Funds
Ratio to SAIF-Insured Institutions published by the Office of Thrift
Supervision.
Net Interest Shortfall: For any Distribution Date, the sum of (a) the
amount of interest which would otherwise have been received for any Mortgage
Loan that was the subject of (x) a Relief Act Reduction or (y) a Special Hazard
Loss, Fraud Loss, or Deficient Valuation, after the exhaustion of the respective
amounts of coverage for those types of losses provided by the Subordinated
Certificates; and (b) any Net Prepayment Interest Shortfalls.
Net Prepayment Interest Shortfalls: As to any Distribution Date, the
amount by which the aggregate of Prepayment Interest Shortfalls during the
related Prepayment Period exceeds an amount equal to the Compensating Interest,
if any, for such Distribution Date.
Non-Delay Certificates: As specified in the Preliminary Statement.
Non-Excess Loss: Any Realized Loss other than an Excess Loss.
17
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer that, in the good faith judgment of
the Master Servicer, will not be ultimately recoverable by the Master Servicer
from the related Mortgagor, related Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.2 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Notional Amount: With respect to the Class A-3 Certificates and any
Distribution Date, an amount equal to the Class Certificate Balance of the Class
A-2 Certificates immediately prior to such Distribution Date.
Notional Principal Amount Certificates: As specified in the Preliminary
Statement.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: 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 Depositor or the Master Servicer, or (ii), if provided for in
this Agreement, signed by a Servicing Officer, as the case may be, and delivered
to the Depositor and the Trustee, as the case may be, as required by this
Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Depositor or the Master Servicer, including, in-house counsel,
reasonably acceptable to the Trustee; provided, however, that with respect to
the interpretation or application of the REMIC Provisions, such counsel must (i)
in fact be independent of the Depositor and the Master Servicer, (ii) not have
any direct financial interest in the Depositor or the Master Servicer or in any
affiliate of either, and (iii) not be connected with the Depositor or the Master
Servicer as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
Optional Termination: The termination of the trust created hereunder in
connection with the purchase of the Mortgage Loans pursuant to Section 9.1(a)
hereof.
Original Mortgage Loan: The Mortgage Loan refinanced in connection with
the origination of a Refinancing Mortgage Loan.
Original Subordinated Principal Balance: The aggregate of the Class
Certificate Balances of the Subordinated Certificates as of the Closing Date.
OTS: The Office of Thrift Supervision.
Outside Reference Date: Not applicable.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
18
(i) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of
which other Certificates have been executed and delivered by the
Trustee pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
Pass-Through Rate: For any interest bearing Class of Certificates or
Component, the per annum rate set forth or calculated in the manner described in
the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency
thereof, provided such obligations are backed by the full faith
and credit of the United States;
(ii) general obligations of or obligations guaranteed by
any state of the United States or the District of Columbia
receiving the highest long-term debt rating of each Rating
Agency, or such lower rating as will not result in the
downgrading or withdrawal of the ratings then assigned to the
Certificates 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, or such lower rating as will not result in
the downgrading or withdrawal of the ratings then assigned to the
Certificates 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
19
unsecured debt obligations of such holding company, but only if
Xxxxx'x is not a Rating Agency) are then rated one of the two
highest long-term and the highest short-term ratings of each
Rating Agency for such securities, or such lower ratings as will
not result in the downgrading or withdrawal of the rating then
assigned to the Certificates by either Rating Agency;
(v) demand or time deposits or certificates of deposit
issued by any bank or trust company or savings institution to the
extent that such deposits are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any
bank, insurance company or other corporation containing, at the
time of the issuance of such agreements, such terms and
conditions as will not result in the downgrading or withdrawal of
the rating then assigned to the Certificates by either Rating
Agency;
(vii) repurchase obligations with respect to any security
described in clauses (i) and (ii) above, in either case entered
into with a depository institution or trust company (acting as
principal) described in clause (iv) above;
(viii) securities (other than stripped bonds, stripped
coupons or instruments sold at a purchase price in excess of 115%
of the face amount thereof) bearing interest or sold at a
discount issued by any corporation incorporated under the laws of
the United States or any state thereof which, at the time of such
investment, have one of the two highest ratings of each Rating
Agency (except if the Rating Agency is Moody's, such rating shall
be the highest commercial paper rating of Moody's for any such
securities), or such lower rating as will not result in the
downgrading or withdrawal of the rating then assigned to the
Certificates by either Rating Agency as evidenced by a signed
writing delivered by each Rating Agency;
(ix) units of a taxable money-market portfolio having
the highest rating assigned by each Rating Agency (except if
Fitch is a Rating Agency and has not rated the portfolio, the
highest rating assigned by Moody's) and restricted to obligations
issued or guaranteed by the United States of America or entities
whose obligations are backed by the full faith and credit of the
United States of America and repurchase agreements collateralized
by such obligations; and
(x) such other investments bearing interest or sold at
a discount acceptable to each Rating Agency as will not result in
the downgrading or withdrawal of the rating then assigned to the
Certificates by either Rating Agency, as evidenced by a signed
writing delivered by each Rating Agency;
provided that no such instrument shall be a Permitted Investment if such
instrument evidences the right to receive interest only payments with respect to
the obligations underlying such instrument.
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Permitted Transferee: Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in section 860E(c)(l) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in section 1381(a)(2)(C) of the Code, (v) an "electing large
partnership" as defined in section 775 of the Code, (vi) a Person that is not
(a) a citizen or resident of the United States, (b) a corporation, partnership,
or other entity created or organized in or under the laws of the United States,
any state thereof or the District of Columbia, (c) an estate whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States or (d) a trust if a court within
the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust, unless such Person
has furnished the transferor and the Trustee with a duly completed Internal
Revenue Service Form W-8ECI or any applicable successor form, and (vii) any
other Person so designated by the Depositor based upon an Opinion of Counsel
that the Transfer of an Ownership Interest in a Residual Certificate to such
Person may cause any REMIC created hereunder to fail to qualify as a REMIC at
any time that the Certificates are outstanding; provided, however, that if a
person is classified as a partnership under the Code, such person shall only be
a Permitted Transferee if all of its beneficial owners are described in
subclauses (a), (b), (c) or (d) of clause (vi) and the governing documents of
such person prohibits a transfer of any interest in such person to any person
described in clause (vi). The terms "United States," "State" and "International
Organization" shall have the meanings set forth in section 7701 of the Code or
successor provisions. A corporation will not be treated as an instrumentality of
the United States or of any State or political subdivision thereof for these
purposes if all of its activities are subject to tax and, with the exception of
the Federal Home Loan Mortgage Corporation, a majority of its board of directors
is not selected by such government unit.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
Physical Certificate: As specified in the Preliminary Statement.
Planned Principal Classes: Not applicable.
Pool Principal Balance: With respect to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans which were
Outstanding Mortgage Loans on the Due Date in the month preceding the month of
such Distribution Date.
Prepayment Interest Excess: As to any Principal Prepayment received by
the Master Servicer from the first day through the fifteenth day of any calendar
month (other than the calendar month in which the Cut-off Date occurs), all
amounts paid by the related Mortgagor in
21
respect of interest on such Principal Prepayment. All Prepayment Interest Excess
shall be paid to the Master Servicer as additional master servicing
compensation.
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage
Loan and Principal Prepayment received (a) during the period from the sixteenth
day of the month preceding the month of such Distribution Date through the last
day of such month, in the case of a Principal Prepayment in full, or (b) during
the month preceding the month of such Distribution Date, in the case of a
partial Principal Prepayment, the amount, if any, by which one month's interest
at the related Adjusted Mortgage Rate on such Principal Prepayment exceeds the
amount of interest actually paid by the Mortgagor in connection with such
Principal Prepayment.
Prepayment Period: (a) With respect to any Principal Prepayments in
Full and any Distribution Date, the period from the sixteenth day of the month
preceding the month of such Distribution Date (or, in the case of the first
Distribution Date, from the Cut-off Date) through the fifteenth day of the month
of such Distribution Date, and (b) with respect to any other Principal
Prepayments and any Distribution Date, the month preceding the month of such
Distribution Date.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage Loan.
Primary Planned Principal Classes: Not applicable.
Principal Balance Schedules: Not applicable.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment. Partial
Principal Prepayments shall be applied by the Master Servicer in accordance with
the terms of the related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Private Certificate: As specified in the Preliminary Statement.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
PUD: Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by the Seller pursuant to Section 2.2 or 2.3 hereof or purchased at
the option of the Master Servicer pursuant to Section 3.11, an amount equal to
the sum of (i) 100% of the unpaid principal balance of the Mortgage Loan on the
date of such purchase, and (ii) accrued interest thereon at the applicable
Mortgage Rate (or at the applicable Adjusted Mortgage Rate if (x) the purchaser
is the Master Servicer or (y) if the purchaser is the Seller and the Seller is
the Master Servicer) from
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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.
Qualified Insurer: A mortgage guaranty insurance company duly qualified
as such under the laws of the state of its principal place of business and each
state having jurisdiction over such insurer in connection with the insurance
policy issued by such insurer, duly authorized and licensed in such states to
transact a mortgage guaranty insurance business in such states and to write the
insurance provided by the insurance policy issued by it, approved as a
FNMA-approved mortgage insurer and having a claims paying ability rating of at
least "AA" or equivalent rating by a nationally recognized statistical rating
organization. Any replacement insurer with respect to a Mortgage Loan must have
at least as high a claims paying ability rating as the insurer it replaces had
on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any such organization or a successor is no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating
organization, or other comparable Person, as is designated by the Depositor,
notice of which designation shall be given to the Trustee. References herein to
a given rating category of a Rating Agency shall mean such rating category
without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the 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 Adjusted Net Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Adjusted Net Mortgage Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan which has become
the subject of a Deficient Valuation, if the principal amount due under the
related Mortgage Note has been reduced, the difference between the principal
balance of the Mortgage Loan outstanding immediately prior to such Deficient
Valuation and the principal balance of the Mortgage Loan as reduced by the
Deficient Valuation.
Recognition Agreement: With respect to any Cooperative Loan, an
agreement between the Cooperative Corporation and the originator of such
Mortgage Loan which establishes the rights of such originator in the Cooperative
Property.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the month preceding the month in which such
Distribution Date occurs.
Reference Bank: A leading bank with an established place of business in
London engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, not controlled by, or under the common control with, the
Trustee.
23
Refinancing Mortgage Loan: Any Mortgage Loan originated in connection
with the refinancing of an existing mortgage loan.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
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 Relief Act, the amount, if any, by which interest
collectible on such Mortgage Loan for the most recently ended calendar month is
less than interest accrued thereon for such month pursuant to the Mortgage Note.
REMIC: A "real estate mortgage investment conduit" within the meaning
of section 860D of the Code.
REMIC Change of Law: Any proposed, temporary or final regulation,
revenue ruling, revenue procedure or other official announcement or
interpretation relating to REMICs and the REMIC Provisions issued after the
Closing Date.
REMIC Provisions: 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 promulgated thereunder, as the foregoing may be in effect from time
to time as well as provisions of applicable state laws.
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.
Request for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits L and M, as
appropriate.
Required Coupon: 6.50%.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under this
Agreement.
Required Recordation States: The states of Florida, Maryland and
Mississippi.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Vice
President, any Assistant Vice President, the Secretary, any Assistant Secretary,
any Trust Officer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
having direct responsibility for the administration of this Agreement and also
to whom, with respect to a particular matter, such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
Retail Certificates: Not applicable.
24
Retained Yield: As to each Mortgage Loan and any Distribution Date, an
amount payable to First Horizon Home Loan Corporation out of each full payment
of interest received on such Mortgage Loan and equal to one-twelfth of the
Retained Yield Rate multiplied by the Stated Principal Balance of such Mortgage
Loan as of the Due Date in the month of such Distribution Date (prior to giving
effect to any Scheduled Payments due on such Mortgage Loan on such Due Date).
Retained Yield Rate: For any Mortgage Loan, other than the Discount
Mortgage Loans, a per annum rate equal to the excess of (a) the applicable
Mortgage Rate over (b) the Required Coupon. For any Discount Mortgage Loan, 0%.
Scheduled Balances: Not applicable.
Scheduled Classes: Not applicable.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Scheduled Principal Classes: Not applicable.
Secondary Planned Principal Classes: Not applicable.
Securities Act: The Securities Act of 1933, as amended.
Security Agreement: The security agreement with respect to a
Cooperative Loan.
Seller: First Horizon Home Loan Corporation, a Kansas corporation, and
its successors and assigns, in its capacity as seller of the Mortgage Loans
hereunder.
Senior Certificates: As specified in the Preliminary Statement.
Senior Final Distribution Date: For any Class of Senior Certificates,
the Distribution Date on which the Class Certificate Balance of such Class of
Senior Certificates has been reduced to zero.
Senior Optimal Principal Amount: As to a Mortgage Pool and with respect
to each Distribution Date, an amount equal to the sum of:
(1) the Senior Percentage of all Scheduled Payments of principal
due on each Mortgage Loan on the first day of the month in which the
Distribution Date occurs, as specified in the amortization schedule at the time
applicable thereto after adjustment for previous principal prepayments and the
principal portion of Debt Service Reductions after the Bankruptcy Loss Coverage
Amount has been reduced to zero, but before any adjustment to such amortization
schedule by reason of any other bankruptcy or similar proceeding or any
moratorium or similar waiver or grace period;
25
(2) the Senior Prepayment Percentage of the Stated Principal
Balance of each Mortgage Loan which was the subject of a prepayment in full
received by the Master Servicer during the applicable Prepayment Period;
(3) the Senior Prepayment Percentage of all partial prepayments
of principal received during the applicable Prepayment Period;
(4) the lesser of:
(a) the Senior Prepayment Percentage of the sum of (x)
the net liquidation proceeds allocable to principal on each
Mortgage Loan which became a Liquidated Mortgage Loan during the
related Prepayment Period, other than Mortgage Loans described in
clause (y), and (y) the principal balance of each Mortgage Loan
that was purchased by a private mortgage insurer during the
related Prepayment Period as an alternative to paying a claim
under the related Insurance Policy; and
(b)(i) the Senior Percentage of the sum of (x) the Stated
Principal Balance of each Mortgage Loan which became a Liquidated
Mortgage Loan during the related Prepayment Period, other than
Mortgage Loans described in clause (y), and (y) the Stated
Principal Balance of each Mortgage Loan that was purchased by a
private mortgage insurer during the related Prepayment Period as
an alternative to paying a claim under the related Insurance
Policy minus (ii) the Senior Percentage of the principal portion
of Excess Losses (other than Debt Service Reductions) during the
related Prepayment Period; and
(5) the Senior Prepayment Percentage of the sum of (a) the
Stated Principal Balance of each Mortgage Loan which was repurchased by the
seller in connection with such Distribution Date and (b) the difference, if any,
between the Stated Principal Balance of a Mortgage Loan that has been replaced
by the seller with a Substitute Mortgage Loan pursuant to the agreement in
connection with such Distribution Date and the Stated Principal Balance of such
Substitute Mortgage Loan.
Senior Percentage: On any Distribution Date, the lesser of 100% and the
percentage (carried to six places rounded up) obtained by dividing the aggregate
Class Certificate Balances of all Classes of Senior Certificates immediately
preceding such Distribution Date by the aggregate Class Certificate Balances of
all Classes of the Certificates immediately preceding Distribution Date.
Senior Prepayment Percentage: On any Distribution Date occurring during
the periods set forth below, the Senior Prepayment Percentages, described below:
26
-----------------------------------------------------------------------------------------------------
Period (Dates Inclusive) Senior Prepayment Percentage
-----------------------------------------------------------------------------------------------------
September 2002 - August 2007 100%
-----------------------------------------------------------------------------------------------------
September 2007 - August 2008 Senior Percentage plus 70% of the Subordinated Percentage
-----------------------------------------------------------------------------------------------------
September 2008 - August 2009 Senior Percentage plus 60% of the Subordinated Percentage
-----------------------------------------------------------------------------------------------------
September 2009 - August 2010 Senior Percentage plus 40% of the Subordinated Percentage
-----------------------------------------------------------------------------------------------------
September 2010 - August 2011 Senior Percentage plus 20% of the Subordinated Percentage
-----------------------------------------------------------------------------------------------------
September 2011 and thereafter Senior Percentage
-----------------------------------------------------------------------------------------------------
Notwithstanding the foregoing, if the Senior Percentage on any
Distribution Date exceeds the initial Senior Percentage, the Senior Prepayment
Percentage for such Distribution Date will equal 100%.
In addition, no reduction of the Senior Prepayment Percentage below the
level in effect for the most recent prior period specified in the table above
shall be effective on any Distribution Date unless, as of the last day of the
month preceding such Distribution Date:
(1) the aggregate Stated Principal Balance of Mortgage Loans
delinquent 60 days or more (including for this purpose any Mortgage
Loans in foreclosure and Mortgage Loans with respect to which the
related Mortgaged Property has been acquired by the Trust) does not
exceed 50% of the aggregate Class Certificate Balance of the
Subordinated Certificates as of such date; and
(2) cumulative Realized Losses do not exceed:
(a) 30% of the Original Subordinated Principal Balance
if such Distribution Date occurs between and
including September 2007 - August 2008;
(b) 35% of the Original Subordinated Principal Balance
if such Distribution Date occurs between and
including September 2008 - August 2009;
(c) 40% of the Original Subordinated Principal Balance
if such Distribution Date occurs between and
including September 2009 - August 2010;
(d) 45% of the Original Subordinated Principal Balance
if such Distribution Date occurs between and
including September 2010 - August 2011; and
27
(e) 50% of the Original Subordinated Principal Balance
if such Distribution Date occurs during or after September
2011.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer of
its servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) any
expenses reimbursable to the Master Servicer pursuant to Section 3.11 and any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Section 3.9.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended.
Special Hazard Coverage Termination Date: The point in time at which
the Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss: Any Realized Loss suffered by a Mortgaged Property
on account of direct physical loss but not including (i) any loss of a type
covered by a hazard insurance policy or a flood insurance policy required to be
maintained with respect to such Mortgaged Property pursuant to Section 3.9 to
the extent of the amount of such loss covered thereby, or (ii) any loss caused
by or resulting from:
(1) normal wear and tear;
(2) fraud, conversion or other dishonest act on the part of
the Trustee, the Master Servicer or any of their agents or employees (without
regard to any portion of the loss not covered by any errors and omissions
policy);
(3) errors in design, faulty workmanship or faulty materials,
unless the collapse of the property or a part thereof ensues and then only for
the ensuing loss;
(4) nuclear or chemical reaction or nuclear radiation or
radioactive or chemical contamination, all whether controlled or uncontrolled,
and whether such loss be direct or indirect, proximate or remote or be in whole
or in part caused by, contributed to or aggravated by a peril covered by the
definition of the term "Special Hazard Loss";
(5) hostile or warlike action in time of peace and war,
including action in hindering, combating or defending against an actual,
impending or expected attack:
(i) by any government or sovereign power, de jure or
de facto, or by any authority maintaining or using military,
naval or air forces;
(ii) by military, naval or air forces; or
(iii) by an agent of any such government, power,
authority or forces;
28
(6) any weapon of war employing nuclear fission, fusion or other
radioactive force, whether in time of peace or war; or
(7) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or defending
against such an occurrence, seizure or destruction under quarantine or customs
regulations, confiscation by order of any government or public authority or
risks of contraband or illegal transportation or trade.
Special Hazard Loss Coverage Amount: Upon the initial issuance of the
Certificates, $4,560,876 Distribution Date, the Special Hazard Loss Coverage
Amount will equal the greater of
(a) 1.30% (or if greater than 1.30%, the highest percentage of
Mortgage Loans by principal balance secured by Mortgaged Properties in any
single California zip code) of the outstanding principal balance of all the
Mortgage Loans as of the related Determination Date; and
(b) twice the outstanding principal balance of the Mortgage Loan
which has the largest outstanding principal balance as of the related
Determination Date,
less, in each case, the aggregate amount of Special Hazard Losses that would
have been previously allocated to the subordinated certificates in the absence
of the Loss Allocation Limitation. As of any Distribution Date on or after the
Cross-over Date, the Special Hazard Loss Coverage Amount will be zero.
Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which a
Special Hazard Loss has occurred.
S&P: Standard & Poor's Corporation, a division of The XxXxxx-Xxxx
Companies, Inc. If S&P is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 11.5(b) the address for notices to S&P shall
be Standard & Poor's, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Mortgage Surveillance Monitoring, or such other address as S&P may
hereafter furnish to the Depositor and the Master Servicer.
Startup Day: The Closing Date.
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.
Streamlined Documentation Mortgage Loan: Any Mortgage Loan originated
pursuant to the Seller's Streamlined Loan Documentation Program then in effect.
Subordinated Certificates: As specified in the Preliminary Statement.
29
Subordinated Certificate Writedown Amount: As of any Distribution Date, the
amount by which (a) the sum of the Class Certificate Balances of all of the
Certificates, after giving effect to the distribution of principal and the
allocation of Realized Losses in reduction of the Class Certificate Balances of
all of the Certificates on such Distribution Date, exceeds (b) the Pool
Principal Balance on the first day of the month of such Distribution Date less
any Deficient Valuations occurring before the Bankruptcy Loss Coverage Amount
has been reduced to zero.
Subordinated Optimal Principal Amount: With respect to each Distribution
Date, an amount equal to the sum of the following (but in no event greater than
the aggregate Class Certificate Balances of the Subordinated Certificates
immediately prior to such Distribution Date):
(1) the Subordinated Percentage of all Scheduled Payments of
principal due on each outstanding Mortgage Loan on the first day of the month in
which the Distribution Date occurs, as specified in the amortization schedule at
the time applicable thereto, after adjustment for previous principal prepayments
and the principal portion of Debt Service Reductions after the Bankruptcy Loss
Coverage Amount has been reduced to zero, but before any adjustment to such
amortization schedule by reason of any other bankruptcy or similar proceeding or
any moratorium or similar waiver or grace period;
(2) the Subordinated Prepayment Percentage of the Stated Principal
Balance of each Mortgage Loan which was the subject of a prepayment in full
received by the Master Servicer during the related Prepayment Period;
(3) the Subordinated Prepayment Percentage of all partial prepayments
of principal received during the related Prepayment Period, plus, on the Senior
Final Distribution Date, 100% of any Senior Optimal Principal Amount remaining
undistributed on such date;
(4) the amount, if any, by which the sum of (a) the net Liquidation
Proceeds allocable to principal received during the related Prepayment Period in
respect of each Liquidated Mortgage Loan, other than Mortgage Loans described in
clause (b), and (b) the principal balance of each Mortgage Loan that was
purchased by a private mortgage insurer during the related Prepayment Period as
an alternative to paying a claim under the related Insurance Policy exceeds (c)
the sum of the amounts distributable to the Senior Certificateholders under
clause (4) of the definition of Senior Optimal Principal Amount on such
Distribution Date; and
(5) the Subordinated Prepayment Percentage of the sum of (a) the
Stated Principal Balance of each Mortgage Loan which was repurchased by the
seller in connection with such Distribution Date and (b) the difference, if any,
between the Stated Principal Balance of a Mortgage Loan that has been replaced
by the seller with a Substitute Mortgage Loan pursuant to the Agreement in
connection with such Distribution Date and the Stated Principal Balance of such
Substitute Mortgage Loan.
Subordinated Percentage: For any Distribution Date, 100% minus the Senior
Percentage.
30
Subordinated Prepayment Percentage: For any Distribution Date, 100% minus
the Senior Prepayment Percentage, except that on any Senior Final Distribution
Date, the related Subordinated Prepayment Percentage will equal 100%.
Subservicer: Any person to whom the Master Servicer has contracted for the
servicing of all or a portion of the Mortgage Loans pursuant to Section 3.2
hereof.
Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller for a
Deleted Mortgage Loan which must, on the date of such substitution, as confirmed
in a Request for Release, substantially in the form of Exhibit L, (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 an Adjusted Net Mortgage Rate not lower than the Required
Coupon, provided that the Master Servicing Fee for the Substitute Mortgage Loan
shall be equal to or greater than that of the Deleted Mortgage Loan; (iii) be
accruing interest at a rate no lower than and not more than 1% per annum higher
than, that of the Deleted Mortgage Loan; (iv) have a Loan-to-Value Ratio no
higher than that of the Deleted Mortgage Loan; (v) have a remaining term to
maturity no greater than (and not more than one year less than that of) the
Deleted Mortgage Loan; (vi) not be a Cooperative Loan unless the Deleted
Mortgage Loan was a Cooperative Loan and (vii) comply with each representation
and warranty set forth in Section 2.3 hereof.
Substitution Adjustment Amount: The meaning ascribed to such term pursuant
to Section 2.3.
Support Classes: Not applicable.
Targeted Balances: Not applicable.
Targeted Principal Classes: Not applicable.
Tax Matters Person: The person designated as "tax matters person" in the
manner provided under Treasury regulationss. 1.860F-4(d) and Treasury
regulationss.301.6231(a)(7)-1. Initially, the Tax Matters Person shall be the
Trustee.
Tax Matters Person Certificate: The Class A-RU and Class A-RL Certificate,
each with a Denomination of $0.01.
Transfer: Any direct or indirect transfer or sale of any Ownership Interest
in a Residual Certificate.
Trust Fund: The corpus of the trust created hereunder consisting of (i) the
Mortgage Loans and all interest and principal received on or with respect
thereto after the Cut-off Date to the extent not applied in computing the
Cut-off Date Principal Balance thereof; (ii) the Certificate Account and the
Distribution Account and all amounts deposited therein pursuant to the
applicable provisions of this Agreement; (iii) property that secured a Mortgage
Loan and has been acquired by foreclosure, deed-in-lieu of foreclosure or
otherwise; and (iv) all proceeds of
31
the conversion, voluntary or involuntary, of any of the foregoing; provided that
the Trust Fund shall exclude the Retained Yield.
Trustee: The Bank of New York and its successors and, if a successor
trustee is appointed hereunder, such successor.
Trustee Fee: As to any Distribution Date, an amount equal to one-twelfth of
the Trustee Fee Rate multiplied by the Pool Principal Balance with respect to
such Distribution Date.
Trustee Fee Rate: With respect to each Mortgage Loan, the per annum rate
agreed upon in writing on or prior to the Closing Date by the Trustee and the
Depositor.
Unanticipated Recovery: As defined in Section 4.2(f).
Underwriters: As specified in the Preliminary Statement.
Upper REMIC: The segregated pool of assets consisting of the Lower REMIC
Interests.
Voting Rights: The portion of the voting rights of all of the Certificates
which is allocated to any Certificate. As of any date of determination, (a) 98%
of all Voting Rights will be allocated among all Holders of the Certificates,
other than the Class A-3, Class A-RU and Class A-RL Certificates, in proportion
to their then outstanding Class Certificate Balances; (b) 1% of all Voting
Rights shall be allocated among the Holders of the Class A-3 Certificates in
proportion to their then outstanding Notional Amount; and (c) 0.50% of all
Voting Rights will be allocated among the Holders of each of the Class A-RU and
Class A-RL Certificates, in each case in proportion to their respective
outstanding Class Certificate Balances.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 Conveyance of Mortgage Loans.
(a) The Seller, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to
the Depositor, without recourse, all the right, title and interest of
the Seller in and to the Mortgage Loans, including all interest and
principal received or receivable by the Seller on or with respect to
the Mortgage Loans after the Cut-off Date and all interest and
principal payments on the Mortgage Loans received on or prior to the
Cut-off Date in respect of installments of interest and principal due
thereafter, but not including payments of principal and interest due
and payable on the Mortgage Loans on or before the Cut-off Date or
amounts attributable to Retained Yield. On or prior to the Closing
Date, the Seller shall deliver to the Depositor or, at the
Depositor's direction, to the Trustee or the Custodian, the Mortgage
File for each Mortgage Loan listed in the Mortgage Loan Schedule
(except that, in the case of the Delay Delivery Mortgage Loans, such
delivery may take place within thirty (30) days following the Closing
Date). Such delivery of the Mortgage Files shall be made against
payment by the Depositor of the purchase price, previously agreed to
by
32
the Seller and the Depositor, for the Mortgage Loans. With respect to
any Mortgage Loan that does not have a first payment date on or before
the Due Date in the month of the first Distribution Date, the Seller
shall deposit into the Distribution Account on or before the
Distribution Account Deposit Date relating to the first Distribution
Date, an amount equal to one month's interest at the related Adjusted
Mortgage Rate on the Cut-off Date Principal Balance of such Mortgage
Loan.
(b) The Depositor, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to
the Trustee for the benefit of the Certificateholders, without
recourse, all the right, title and interest of the Depositor in and to
the Trust Fund together with the Depositor's right to require the
Seller to cure any breach of a representation or warranty made herein
by the Seller or to repurchase or substitute for any affected Mortgage
Loan in accordance herewith.
(c) In connection with the transfer and assignment set forth in clause (b)
above, the Depositor has delivered or caused to be delivered to the
Trustee or the Custodian on its behalf (or, in the case of the Delay
Delivery Mortgage Loans, will deliver or cause to be delivered to the
Trustee or the Custodian on its behalf within thirty (30) days
following the Closing Date) for the benefit of the Certificateholders
the following documents or instruments with respect to each Mortgage
Loan so assigned:
(i) (A) the original Mortgage Note endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of
________________, without recourse," with all intervening
endorsements showing a complete chain of endorsement from the
originator to the Person endorsing the Mortgage Note (each such
endorsement being sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note); or
(B) with respect to any Lost Mortgage Note, a lost note
affidavit from the Seller stating that the original Mortgage
Note was lost or destroyed, together with a copy of such
Mortgage Note;
(ii) except as provided below, the original recorded Mortgage or a
copy of such Mortgage certified by the Seller as being a true
and complete copy of the Mortgage;
(iii) a duly executed assignment of the Mortgage in blank (which may
be included in a blanket assignment or assignments), together
with, except as provided below, all interim recorded assignments
of such mortgage (each such assignment, when duly and validly
completed, to be in recordable form and sufficient to effect the
assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates); provided that, if the
related Mortgage has not been returned from the applicable
33
public recording office, such assignment of the Mortgage may
exclude the information to be provided by the recording office;
(iv) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any;
(v) either the original or duplicate original title policy
(including all riders thereto) with respect to the related
mortgaged property, if available, provided that the title policy
(including all riders thereto) will be delivered as soon as it
becomes available, and if the title policy is not available, and
to the extent required pursuant to the second paragraph below or
otherwise in connection with the rating of the Certificates, a
written commitment or interim binder or preliminary report of
the title issued by the title insurance or escrow company with
respect to the mortgaged property, and
(vi) in the case of a Cooperative Loan, the originals of the
following documents or instruments:
(A) The Coop Shares, together with a stock power in blank;
(B) The executed Security Agreement;
(C) The executed Proprietary Lease;
(D) The executed Recognition Agreement;
(E) The executed UCC-1 financing statement with evidence of
recording thereon which have been filed in all places
required to perfect the Seller's interest in the Coop Shares
and the Proprietary Lease; and
(F) Executed UCC-3 financing statements or other appropriate UCC
financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee
with evidence of recording thereon (or in a form suitable
for recordation).
In the event that in connection with any Mortgage Loan the Depositor cannot
deliver (a) the original recorded Mortgage or (b) all interim recorded
assignments satisfying the requirements of clause (ii) or (iii) above,
respectively, concurrently with the execution and delivery hereof because such
document or documents have not been returned from the applicable public
recording office, the Depositor shall promptly deliver to the Trustee or the
Custodian on its behalf such original Mortgage or such interim assignment, as
the case may be, with evidence of recording indicated thereon upon receipt
thereof from the public recording office, or a copy thereof, certified, if
appropriate, by the relevant recording office, but in no event shall any such
delivery of the original Mortgage and each such interim assignment or a copy
thereof, certified, if appropriate, by the relevant recording office, be made
later than one year following the Closing Date; provided, however, in the event
the Depositor is unable to deliver by such date each Mortgage and each such
interim assignment by reason of the fact that any such documents
34
have not been returned by the appropriate recording office, or, in the case of
each such interim assignment, because the related Mortgage has not been returned
by the appropriate recording office, the Depositor shall deliver such documents
to the Trustee or the Custodian on its behalf as promptly as possible upon
receipt thereof and, in any event, within 720 days following the Closing Date.
The Depositor shall forward or cause to be forwarded to the Trustee or the
Custodian on its behalf (a) from time to time additional original documents
evidencing an assumption or modification of a Mortgage Loan and (b) any other
documents required to be delivered by the Depositor or the Master Servicer to
the Trustee. In the event that the original Mortgage is not delivered and in
connection with the payment in full of the related Mortgage Loan and the public
recording office requires the presentation of a "lost instruments affidavit and
indemnity" or any equivalent document, because only a copy of the Mortgage can
be delivered with the instrument of satisfaction or reconveyance, the Master
Servicer shall execute and deliver or cause to be executed and delivered such a
document to the public recording office. In the case where a public recording
office retains the original recorded Mortgage or in the case where a Mortgage is
lost after recordation in a public recording office, the Seller shall deliver to
the Trustee a copy of such Mortgage certified by such public recording office to
be a true and complete copy of the original recorded Mortgage.
In addition, in the event that in connection with any Mortgage Loan the
Depositor cannot deliver the original or duplicate original lender's title
policy (together with all riders thereto), satisfying the requirements of clause
(v) above, concurrently with the execution and delivery hereof because the
related Mortgage has not been returned from the applicable public recording
office, the Depositor shall promptly deliver to the Trustee or the Custodian on
its behalf such original or duplicate original lender's title policy (together
with all riders thereto) upon receipt thereof from the applicable title insurer,
but in no event shall any such delivery of the original or duplicate original
lender's title policy be made later than one year following the Closing Date;
provided, however, in the event the Depositor is unable to deliver by such date
the original or duplicate original lender's title policy (together with all
riders thereto) because the related Mortgage has not been returned by the
appropriate recording office, the Depositor shall deliver such documents to the
Trustee or the Custodian on its behalf as promptly as possible upon receipt
thereof and, in any event, within 720 days following the Closing Date.
Notwithstanding the preceding, in connection with any Mortgage Loan for which
either the original or duplicate original title policy has not been delivered to
the Trust, if at any time during the term of this Agreement the parent company
of the Seller does not have a long term senior debt rating of A- or higher from
S&P and A- or higher from Fitch (if rated by Fitch), then the Depositor shall
within 30 days deliver to the Trustee or the Custodian on its behalf (if it has
not previously done so) a written commitment or interim binder or preliminary
report of the title issued by the title insurance or escrow company with respect
to the mortgaged property.
Subject to the immediately following sentence, as promptly as
practicable subsequent to such transfer and assignment, and in any event, within
thirty (30) days thereafter, the Master Servicer shall (i) complete each
assignment of Mortgage, as follows: "First Horizon Mortgage Pass-Through
Certificates, Series 2002-5, The Bank of New York, as trustee for the holders of
the Certificates", (ii) cause such assignment to be in proper form for recording
in the appropriate public office for real property records and (iii) cause to be
delivered for recording in the appropriate public office for real property
records the assignments of the Mortgages to the Trustee, except that, with
respect to any assignments of Mortgage as to which the Master
35
Servicer has not received the information required to prepare such assignment in
recordable form, the Master Servicer's obligation to do so and to deliver the
same for such recording shall be as soon as practicable after receipt of such
information and in any event within thirty (30) days after receipt thereof.
Notwithstanding the foregoing, the Master Servicer need not cause to be recorded
any assignment which relates to a Mortgage Loan in any state other than the
Required Recordation States.
In the case of Mortgage Loans that have been prepaid in full as of the
Closing Date, the Depositor, in lieu of delivering the above documents to the
Trustee or the Custodian on its behalf, will deposit in the Certificate Account
the portion of such payment that is required to be deposited in the Certificate
Account pursuant to Section 3.8 hereof.
Notwithstanding anything to the contrary in this Agreement, within
thirty days after the Closing Date, the Seller shall either (i) deliver to the
Trustee or the Custodian on its behalf the Mortgage File as required pursuant to
this Section 2.1 for each Delay Delivery Mortgage Loan or (ii) (A) substitute a
Substitute Mortgage Loan for the Delay Delivery Mortgage Loan or (B) repurchase
the Delay Delivery Mortgage Loan, which substitution or repurchase shall be
accomplished in the manner and subject to the conditions set forth in Section
2.3 (treating each Delay Delivery Mortgage Loan as a Deleted Mortgage Loan for
purposes of such Section 2.3), provided, however, that if the Seller fails to
deliver a Mortgage File for any Delay Delivery Mortgage Loan within the
thirty-day period provided in the prior sentence, the Seller shall use its best
reasonable efforts to effect a substitution, rather than a repurchase of, such
Deleted Mortgage Loan and provided further that the cure period provided for in
Section 2.2 or in Section 2.3 shall not apply to the initial delivery of the
Mortgage File for such Delay Delivery Mortgage Loan, but rather the Seller shall
have five (5) Business Days to cure such failure to deliver. At the end of such
thirty-day period, the Trustee or the Custodian, on behalf of the Trustee shall
send a Delay Delivery Certification for the Delay Delivery Mortgage Loans
delivered during such thirty-day period in accordance with the provisions of
Section 2.2. Notwithstanding anything to the contrary contained in this
Agreement, none of the Mortgage Loans in the Trust Fund is or will be Delay
Delivery Mortgage Loans.
SECTION 2.2 Acceptance by Trustee of the Mortgage Loans.
The Trustee or the Custodian, on behalf of the Trustee acknowledges
receipt of the documents identified in the Initial Certification in the form
annexed hereto as Exhibit E and declares that it or the Custodian holds and will
hold such documents and the other documents delivered to it constituting the
Mortgage Files, and that it or the Custodian holds or will hold such other
assets as are included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders. The Trustee acknowledges
that the Custodian will maintain possession of the Mortgage Notes in the State
of Illinois, unless otherwise permitted by the Rating Agencies.
The Trustee agrees to execute and deliver or to cause the Custodian to
execute and deliver on the Closing Date to the Depositor, the Master Servicer
and the Seller an Initial Certification in the form annexed hereto as Exhibit E.
Based on its or the Custodian's review and examination, and only as to the
documents identified in such Initial Certification, the Custodian, on behalf of
the Trustee acknowledges that such documents appear regular on their
36
face and relate to such Mortgage Loan. Neither the Trustee nor the Custodian
shall be under any duty or obligation to inspect, review or examine said
documents, instruments, certificates or other papers to determine that the same
are genuine, enforceable or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
On or about the thirtieth (30th) day after the Closing Date, the Trustee
shall deliver or shall cause the Custodian to deliver to the Depositor, the
Master Servicer and the Seller a Delay Delivery Certification in the form
annexed hereto as Exhibit F, with any applicable exceptions noted thereon.
Notwithstanding anything to the contrary contained in this Agreement, none of
the Mortgage Loans in the Trust Fund is or will be Delay Delivery Mortgage
Loans.
Not later than 90 days after the Closing Date, the Trustee shall deliver or
shall cause the Custodian to deliver to the Depositor, the Master Servicer and
the Seller a Final Certification in the form annexed hereto as Exhibit G, with
any applicable exceptions noted thereon.
If, in the course of such review, the Trustee or the Custodian, on behalf
of the Trustee finds any document constituting a part of a Mortgage File which
does not meet the requirements of Section 2.1, the Trustee shall list or shall
cause the Custodian to list such as an exception in the Final Certification;
provided, however that neither the Trustee nor the Custodian shall make any
determination as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note or (ii) any assignment is in recordable
form or is sufficient to effect the assignment of and transfer to the assignee
thereof under the mortgage to which the assignment relates. The Seller shall
promptly correct or cure such defect within 90 days from the date it was so
notified of such defect and, if the Seller does not correct or cure such defect
within such period, the Seller shall either (a) substitute for the related
Mortgage Loan a Substitute Mortgage Loan, which substitution shall be
accomplished in the manner and subject to the conditions set forth in Section
2.3, or (b) purchase such Mortgage Loan from the Trustee within 90 days from the
date the Seller was notified of such defect in writing at the Purchase Price of
such Mortgage Loan; provided, however, that in no event shall such substitution
or purchase occur more than 540 days from the Closing Date, except that if the
substitution or purchase of a Mortgage Loan pursuant to this provision is
required by reason of a delay in delivery of any documents by the appropriate
recording office, and there is a dispute between either the Master Servicer or
the Seller and the Trustee over the location or status of the recorded document,
then such substitution or purchase shall occur within 720 days from the Closing
Date. The Trustee shall deliver written notice to each Rating Agency within 270
days from the Closing Date indicating each Mortgage Loan (a) which has not been
returned by the appropriate recording office or (b) as to which there is a
dispute as to location or status of such Mortgage Loan. Such notice shall be
delivered every 90 days thereafter until the related Mortgage Loan is returned
to the Trustee or the Custodian on its behalf. Any such substitution pursuant to
(a) above or purchase pursuant to (b) above shall not be effected prior to the
delivery to the Trustee of the Opinion of Counsel required by Section 2.5
hereof, if any, and any substitution pursuant to (a) above shall not be effected
prior to the additional delivery to the Trustee of a Request for Release
substantially in the form of Exhibit L. No substitution is permitted to be made
in any calendar month after the Determination Date for such month. The Purchase
Price for any such Mortgage Loan shall be deposited by the Seller in the
Certificate Account on or prior to the Distribution Account Deposit Date for the
Distribution
37
Date in the month following the month of repurchase and, upon receipt of such
deposit and certification with respect thereto in the form of Exhibit M hereto,
the Trustee shall cause the Custodian to release the related Mortgage File to
the Seller and shall execute and deliver at the Seller's request such
instruments of transfer or assignment prepared by the Seller, in each case
without recourse, as shall be necessary to vest in the Seller, or a designee,
the Trustee's interest in any Mortgage Loan released pursuant hereto.
The Trustee shall retain or shall cause the Custodian to retain possession
and custody of each Mortgage File in accordance with and subject to the terms
and conditions set forth herein. The Master Servicer shall promptly deliver to
the Trustee or the Custodian on its behalf, upon the execution or receipt
thereof, the originals of such other documents or instruments constituting the
Mortgage File as come into the possession of the Master Servicer from time to
time.
It is understood and agreed that the obligation of the Seller to substitute
for or to purchase any Mortgage Loan which does not meet the requirements of
Section 2.1 above shall constitute the sole remedy respecting such defect
available to the Trustee, the Depositor and any Certificateholder against the
Seller.
SECTION 2.3 Representations, Warranties and Covenants of the Seller and
Master Servicer.
(a) First Horizon Home Loan Corporation, in its capacities as Seller and
Master Servicer, hereby makes the representations and warranties set
forth in Schedule II hereto, respectively, and by this reference
incorporated herein, to the Depositor and the Trustee, as of the
Closing Date, or if so specified therein, as of the Cut-off Date.
(b) The Seller, in its capacity as Seller, hereby makes the
representations and warranties set forth in Schedule III hereto, and
by this reference incorporated herein, to the Depositor and the
Trustee, as of the Closing Date, or if so specified therein, as of the
Cut-off Date.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.3(b) that
materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the party discovering such
breach shall give prompt notice thereof to the other parties. The
Seller hereby covenants that within 90 days of the earlier of its
discovery or its receipt of written notice from any party of a breach
of any representation or warranty made pursuant to Section 2.3(b)
which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, it shall cure such breach in
all material respects, and if such breach is not so cured, shall, (i)
if such 90-day period expires prior to the second anniversary of the
Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan")
from the Trust Fund and substitute in its place a Substitute Mortgage
Loan, in the manner and subject to the conditions set forth in this
Section; or (ii) repurchase the affected Mortgage Loan or Mortgage
Loans from the Trustee at the Purchase Price in the manner set forth
below; provided, however, that any such substitution pursuant to (i)
above shall
38
not be effected prior to the delivery to the Trustee of the Opinion of
Counsel required by Section 2.5 hereof, if any, and any such
substitution pursuant to (i) above shall not be effected prior to the
additional delivery to the Trustee or the Custodian on its behalf of a
Request for Release substantially in the form of Exhibit M and the
Mortgage File for any such Substitute Mortgage Loan. The Seller shall
promptly reimburse the Master Servicer and the Trustee for any
expenses reasonably incurred by the Master Servicer or the Trustee in
respect of enforcing the remedies for such breach. With respect to the
representations and warranties described in this Section which are
made to the best of the Seller's knowledge, if it is discovered by
either the Depositor, the Seller or the Trustee that the substance of
such representation and warranty is inaccurate and such inaccuracy
materially and adversely affects the value of the related Mortgage
Loan or the interests of the Certificateholders therein,
notwithstanding the Seller's lack of knowledge with respect to the
substance of such representation or warranty, such inaccuracy shall be
deemed a breach of the applicable representation or warranty.
With respect to any Substitute Mortgage Loan or Loans, the Seller shall
deliver to the Trustee or the Custodian on its behalf for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment of
the Mortgage, and such other documents and agreements as are required by Section
2.1, with the Mortgage Note endorsed and the Mortgage assigned as required by
Section 2.1. No substitution is permitted to be made in any calendar month after
the Determination Date for such month. Scheduled Payments due with respect to
Substitute Mortgage Loans in the month of substitution shall not be part of the
Trust Fund and will be retained by the Seller on the next succeeding
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the monthly payment due on any Deleted Mortgage
Loan for such month and thereafter the Seller shall be entitled to retain all
amounts received in respect of such Deleted Mortgage Loan. The Master Servicer
shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders
to reflect the removal of such Deleted Mortgage Loan and the substitution of the
Substitute Mortgage Loan or Loans and the Master Servicer shall deliver the
amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the
Substitute Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all respects, and the Seller shall be deemed to have made with
respect to such Substitute Mortgage Loan or Loans, as of the date of
substitution, the representations and warranties made pursuant to Section 2.3(b)
with respect to such Mortgage Loan. Upon any such substitution and the deposit
to the Certificate Account of the amount required to be deposited therein in
connection with such substitution as described in the following paragraph, the
Trustee shall release or shall cause the Custodian to release the Mortgage File
held for the benefit of the Certificateholders relating to such Deleted Mortgage
Loan to the Seller and shall execute and deliver at the Seller's direction such
instruments of transfer or assignment prepared by the Seller, in each case
without recourse, as shall be necessary to vest title in the Seller, or its
designee, the Trustee's interest in any Deleted Mortgage Loan substituted for
pursuant to this Section 2.3.
For any month in which the Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will
determine the amount (if any) by which the aggregate principal balance of all
such Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage
39
Loans (after application of the scheduled principal portion of the monthly
payments due in the month of substitution). The amount of such shortage (the
"Substitution Adjustment Amount") plus an amount equal to the aggregate of any
unreimbursed Advances with respect to such Deleted Mortgage Loans shall be
deposited in the Certificate Account by the Seller on or before the Distribution
Account Deposit Date for the Distribution Date in the month succeeding the
calendar month during which the related Mortgage Loan became required to be
purchased or replaced hereunder.
In the event that the Seller shall have repurchased a Mortgage Loan, the
Purchase Price therefor shall be deposited in the Certificate Account pursuant
to Section 3.5 on or before the Distribution Account Deposit Date for the
Distribution Date in the month following the month during which the Seller
became obligated hereunder to repurchase or replace such Mortgage Loan and upon
such deposit of the Purchase Price, the delivery of the Opinion of Counsel
required by Section 2.5 and receipt of a Request for Release in the form of
Exhibit M hereto, the Trustee shall release or shall cause the Custodian to
release the related Mortgage File held for the benefit of the Certificateholders
to such Person, and the Trustee shall execute and deliver or shall cause the
Custodian to execute and deliver at such Person's direction such instruments of
transfer or assignment prepared by such Person, in each case without recourse,
as shall be necessary to transfer title from the Trustee. It is understood and
agreed that the obligation under this Agreement of the Seller to cure,
repurchase or replace any Mortgage Loan as to which a breach has occurred and is
continuing shall constitute the sole remedy against the Seller respecting such
breach available to Certificateholders, the Depositor or the Trustee on their
behalf.
The representations and warranties made pursuant to this Section 2.3 shall
survive delivery of the respective Mortgage Files to the Trustee or the
Custodian for the benefit of the Certificateholders.
SECTION 2.4 Representations and Warranties of the Depositor as to the
Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee with respect to
each Mortgage Loan as of the date hereof or such other date set forth herein
that as of the Closing Date, and following the transfer of the Mortgage Loans to
it by the Seller, the Depositor had good title to the Mortgage Loans and the
Mortgage Notes were subject to no offsets, defenses or counterclaims.
The Depositor hereby assigns, transfers and conveys to the Trustee all of
its rights with respect to the Mortgage Loans including, without limitation, the
representations and warranties of the Seller made pursuant to Section 2.3(b)
hereof, together with all rights of the Depositor to require the Seller to cure
any breach thereof or to repurchase or substitute for any affected Mortgage Loan
in accordance with this Agreement.
It is understood and agreed that the representations and warranties set
forth in this Section 2.4 shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of
the foregoing representations and warranties set forth in this Section 2.4
(referred to herein as a "breach"), which breach materially and adversely
affects the
40
interest of the Certificateholders, the party discovering such breach shall give
prompt written notice to the others and to each Rating Agency.
SECTION 2.5 Delivery of Opinion of Counsel in Connection with
Substitutions.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.2 or Section 2.3 shall be
made more than 90 days after the Closing Date unless the Seller
delivers to the Trustee an Opinion of Counsel, which Opinion of
Counsel shall not be at the expense of either the Trustee or the
Trust Fund, addressed to the Trustee, to the effect that such
substitution will not (i) result in the imposition of the tax on
"prohibited transactions" on the Trust Fund or contributions
after the Startup Date, as defined in Sections 860F(a)(2) and
860G(d) of the Code, respectively, or (ii) cause any REMIC
created hereunder to fail to qualify as a REMIC at any time that
any Certificates are outstanding.
(b) Upon discovery by the Depositor, the Seller, the Master Servicer
or the Trustee that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code, the party discovering such fact shall promptly (and in
any event within five (5) Business Days of discovery) give
written notice thereof to the other parties. In connection
therewith, the Trustee shall require the Seller, at the Seller's
option, to either (i) substitute, if the conditions in Section
2.3(c) with respect to substitutions are satisfied, a Substitute
Mortgage Loan for the affected Mortgage Loan, or (ii) repurchase
the affected Mortgage Loan within 90 days of such discovery in
the same manner as it would a Mortgage Loan for a breach of
representation or warranty made pursuant to Section 2.3. The
Trustee shall reconvey or shall cause the Custodian to reconvey
to the Seller the Mortgage Loan to be released pursuant hereto
in the same manner, and on the same terms and conditions, as it
would a Mortgage Loan repurchased for breach of a representation
or warranty contained in Section 2.3.
SECTION 2.6 Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, has executed and
delivered to or upon the order of the Depositor, the Certificates in authorized
denominations evidencing directly or indirectly the entire ownership of the
Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the rights
referred to above for the benefit of all present and future Holders of the
Certificates and to perform the duties set forth in this Agreement to the best
of its ability, to the end that the interests of the Holders of the Certificates
may be adequately and effectively protected.
SECTION 2.7 REMIC Matters.
The Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income tax purposes of all interests created
hereby in the Upper REMIC. Each interest identified in the table below by a
designation beginning with "L" shall be a "regular interest" in the Lower REMIC
and the Class A-RL Certificates shall be the sole class of residual
41
interest in the Lower REMIC. The Lower REMIC Interests shall be
uncertificated and shall be held by the Trustee as assets of the Upper
REMIC. The assets of the Lower REMIC shall be as set forth in the
definition thereof. The assets of the Upper REMIC shall be as set forth in
the definition thereof. The "Startup Day" for purposes of the REMIC
Provisions shall be the Closing Date. The Tax Matters Person with respect
to each REMIC hereunder shall be the Trustee and the Trustee shall hold the
Tax Matters Person Certificate. Each REMIC's taxable year shall be the
calendar year and its accounts shall be maintained using the accrual
method.
-----------------------------------------------------------------------------------------------------------------------
Lower Corresponding Class of Certificates
-----------------------------------
Lower REMIC REMIC Latest Possible
Interest or Lower REMIC Interest Maturity Date
Certificate Interest Balance Rate Interest Principal (Payment Date in)
-----------------------------------------------------------------------------------------------------------------------
LTA-1 $ 186,234,000 5.500% X-0 X-0 September 25, 2035
-----------------------------------------------------------------------------------------------------------------------
LTA-2 $ 62,077,000 8.500% A-2/(1)/ A-2 September 25, 2035
A-3/(2)(3)/
-----------------------------------------------------------------------------------------------------------------------
LTA-4 $ 36,500,000 6.250% X-0 X-0 September 25, 2035
-----------------------------------------------------------------------------------------------------------------------
LTA-5 $ 20,260,000 6.250% X-0 X-0 September 25, 2035
-----------------------------------------------------------------------------------------------------------------------
LTA-6 $ 35,000,000 6.250% X-0 X-0 September 25, 2035
-----------------------------------------------------------------------------------------------------------------------
LTA-RU $ 50 6.250% A-RU A-RU September 25, 2035
-----------------------------------------------------------------------------------------------------------------------
A-RL $ 50 6.250% N/A N/A September 25, 2035
-----------------------------------------------------------------------------------------------------------------------
LTB-1 $ 4,551,000 6.250% B-1 B-1 September 25, 2035
-----------------------------------------------------------------------------------------------------------------------
LTB-2 $ 1,750,000 6.250% B-2 B-2 September 25, 2035
-----------------------------------------------------------------------------------------------------------------------
LTB-3 $ 1,400,000 6.250% B-3 B-3 September 25, 2035
-----------------------------------------------------------------------------------------------------------------------
LTB-4 $ 525,000 6.250% B-4 B-4 September 25, 2035
-----------------------------------------------------------------------------------------------------------------------
LTB-5 $ 700,000 6.250% B-5 B-5 September 25, 2035
-----------------------------------------------------------------------------------------------------------------------
LTB-6 $ 525,317 6.250% B-6 B-6 September 25, 2035
-----------------------------------------------------------------------------------------------------------------------
(1) The Pass-Through Rate with respect to any Distribution Date (and the
related Interest Accrual Period) for the Class A-2 Certificates is the per
annum rate equal to (a) 2.35% with respect to the first Distribution Date,
and (b) thereafter, the lesser of (i) LIBOR plus 0.55% and (ii) 8.50%,
subject to a minimum rate of 0.55%.
(2) The Notional Amount with respect to any Distribution Date (and the
related Interest Accrual Period) of the Class A-3 Certificates will equal
the Class Certificate Balance of the Class A-2 Certificates immediately
preceding such Distribution Date.
(3) The Pass-Through Rate with respect to any Distribution Date (and the
related Interest Accrual Period) for the Class A-3 Certificates is the per
annum rate equal to (a) 6.15% with respect to the first Distribution Date,
and (b) thereafter, 7.95% minus LIBOR, subject to a minimum rate of 0.00%
On each Distribution Date Available Funds shall be distributed with
respect to the Lower REMIC Interests and the Class A-RL Certificate in a
manner such that:
(i) interest accrued on each Lower REMIC Interest is distributed
with respect to each such Lower REMIC Interest in the same
manner that Accrued Certificate Interest is distributed with
respect to the Corresponding Class or Classes of
Certificates pursuant to Section 4.2(a)(i) and (ii);
42
(ii) interest accrued on the Class A-RU and Class A-RL
Certificates is distributed in the manner provided in
Section 4.2(a)(i) and (ii);
(iii) principal is distributed on each Lower REMIC Interest, such
that the principal balance of each such Lower REMIC
Interest always equals the principal balance of its
Corresponding Class of Certificates; and
(iv) principal is distributed on the Class A-RU and Class A-RL
Certificates as provided in Section 4.2(b)(i).
Losses allocated to the Certificates pursuant to Section 4.4 shall be
allocated to the corresponding class of Lower REMIC Interest as set forth in the
above table.
SECTION 2.8 Covenants of the Master Servicer.
The Master Servicer hereby covenants to the Depositor and the Trustee as
follows:
(a) the Master Servicer shall comply in the performance of its
obligations under this Agreement with all reasonable rules and
requirements of the insurer under each Required Insurance Policy;
and
(b) no written information, certificate of an officer, statement
furnished in writing or written report delivered to the Depositor,
any affiliate of the Depositor or the Trustee and prepared by the
Master Servicer pursuant to this Agreement will contain any untrue
statement of a material fact or omit to state a material fact
necessary to make such information, certificate, statement or
report not misleading.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.1 Master Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer shall
service and administer the Mortgage Loans in accordance with the terms of this
Agreement and customary and usual standards of practice of prudent mortgage loan
servicers. In connection with such servicing and administration, the Master
Servicer shall have full power and authority, acting alone and/or through
Subservicers as provided in Section 3.2 hereof, to do or cause to be done any
and all things that it may deem necessary or desirable in connection with such
servicing and administration, including but not limited to, the power and
authority, subject to the terms hereof (i) to execute and deliver, on behalf of
the Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages (but only
in the manner provided in this Agreement), (iii) to collect any Insurance
Proceeds and other Liquidation Proceeds, and (iv) to effectuate foreclosure or
other conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan; provided that the Master Servicer shall not take any action that
is inconsistent with or prejudices the interests of the Trust Fund or the
Certificateholders in any Mortgage Loan or the rights and interests of the
Depositor, the Trustee
43
and the Certificateholders under this Agreement. The Master Servicer shall
represent and protect the interests of the Trust Fund in the same manner as it
protects its own interests in mortgage loans in its own portfolio in any claim,
proceeding or litigation regarding a Mortgage Loan, and shall not make or permit
any modification, waiver or amendment of any Mortgage Loan which would cause any
REMIC created hereunder to fail to qualify as a REMIC or result in the
imposition of any tax under Section 860F(a) or Section 860G(d) of the Code.
Without limiting the generality of the foregoing, the Master Servicer, in its
own name or in the name of the Depositor and the Trustee, is hereby authorized
and empowered by the Depositor and the Trustee, when the Master Servicer
believes it appropriate in its reasonable judgment, to execute and deliver, on
behalf of the Trustee, the Depositor, the Certificateholders or any of them, any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge and all other comparable instruments, with respect to the
Mortgage Loans, and with respect to the Mortgaged Properties held for the
benefit of the Certificateholders. The Master Servicer shall prepare and deliver
to the Depositor and/or the Trustee such documents requiring execution and
delivery by either or both of them as are necessary or appropriate to enable the
Master Servicer to service and administer the Mortgage Loans to the extent that
the Master Servicer is not permitted to execute and deliver such documents
pursuant to the preceding sentence. Upon receipt of such documents, the
Depositor and/or the Trustee shall execute such documents and deliver them to
the Master Servicer.
In accordance with the standards of the preceding paragraph, the Master
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties, which advances shall be reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 3.6, and further as
provided in Section 3.8. The costs incurred by the Master Servicer, if any, in
effecting the timely payments of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit.
SECTION 3.2 Subservicing; Enforcement of the Obligations of Servicers.
(a) The Master Servicer may arrange for the subservicing of any
Mortgage Loan by a Subservicer pursuant to a subservicing
agreement; provided, however, that such subservicing arrangement
and the terms of the related subservicing agreement must provide
for the servicing of such Mortgage Loans in a manner consistent
with the servicing arrangements contemplated hereunder. Unless the
context otherwise requires, references in this Agreement to
actions taken or to be taken by the Master Servicer in servicing
the Mortgage Loans include actions taken or to be taken by a
Subservicer on behalf of the Master Servicer. Notwithstanding the
provisions of any subservicing agreement, any of the provisions of
this Agreement relating to agreements or arrangements between the
Master Servicer and a Subservicer or reference to actions taken
through a Subservicer or otherwise, the Master Servicer shall
remain obligated and liable to the Depositor, the Trustee and the
Certificateholders for the servicing and administration of the
Mortgage Loans in accordance with the provisions of this Agreement
without diminution of such obligation or liability by virtue of
such subservicing
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agreements or arrangements or by virtue of indemnification from
the Subservicer and to the same extent and under the same terms
and conditions as if the Master Servicer alone were servicing and
administering the Mortgage Loans. All actions of each Subservicer
performed pursuant to the related subservicing agreement shall be
performed as an agent of the Master Servicer with the same force
and effect as if performed directly by the Master Servicer.
(b) For purposes of this Agreement, the Master Servicer shall be
deemed to have received any collections, recoveries or payments
with respect to the Mortgage Loans that are received by a
Subservicer regardless of whether such payments are remitted by
the Subservicer to the Master Servicer.
SECTION 3.3 Rights of the Depositor and the Trustee in Respect of the
Master Servicer.
The Depositor may, but is not obligated to, enforce the obligations of
the Master Servicer hereunder and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer
hereunder and in connection with any such defaulted obligation to exercise the
related rights of the Master Servicer hereunder; provided that the Master
Servicer shall not be relieved of any of its obligations hereunder by virtue of
such performance by the Depositor or its designee. Neither the Trustee nor the
Depositor shall have any responsibility or liability for any action or failure
to act by the Master Servicer nor shall the Trustee or the Depositor be
obligated to supervise the performance of the Master Servicer hereunder or
otherwise.
SECTION 3.4 Trustee to Act as Master Servicer.
In the event that the Master Servicer shall for any reason no longer be
the Master Servicer hereunder (including by reason of an Event of Default), the
Trustee or its successor shall thereupon assume all of the rights and
obligations of the Master Servicer hereunder arising thereafter (except that the
Trustee shall not be (i) liable for losses of the Master Servicer pursuant to
Section 3.9 hereof or any acts or omissions of the predecessor Master Servicer
hereunder), (ii) obligated to make Advances if it is prohibited from doing so by
applicable law, (iii) obligated to effectuate repurchases or substitutions of
Mortgage Loans hereunder including, but not limited to, repurchases or
substitutions of Mortgage Loans pursuant to Section 2.2 or 2.3 hereof, (iv)
responsible for expenses of the Master Servicer pursuant to Section 2.3 or (v)
deemed to have made any representations and warranties of the Master Servicer
hereunder). Any such assumption shall be subject to Section 7.2 hereof. If the
Master Servicer shall for any reason no longer be the Master Servicer (including
by reason of any Event of Default), the Trustee or its successor shall succeed
to any rights and obligations of the Master Servicer under each subservicing
agreement.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party all documents and
records relating to each subservicing agreement or substitute subservicing
agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected or held by it and otherwise use its best efforts
to effect the orderly and efficient transfer of the substitute subservicing
agreement to the assuming party.
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SECTION 3.5 Collection of Mortgage Loan Payments; Certificate Account;
Distribution Account.
(a) The Master Servicer shall make reasonable efforts in accordance
with the customary and usual standards of practice of prudent
mortgage servicers to collect all payments called for under the
terms and provisions of the Mortgage Loans to the extent such
procedures shall be consistent with this Agreement and the terms
and provisions of any related Required Insurance Policy.
Consistent with the foregoing, the Master Servicer may in its
discretion (i) waive any late payment charge or any prepayment
charge or penalty interest in connection with the prepayment of a
Mortgage Loan and (ii) extend the due dates for payments due on a
Mortgage Note for a period not greater than 180 days; provided,
however, that the Master Servicer cannot extend the maturity of
any such Mortgage Loan past the date on which the final payment is
due on the latest maturing Mortgage Loan as of the Cut-off Date.
In the event of any such arrangement, the Master Servicer shall
make Advances on the related Mortgage Loan in accordance with the
provisions of Section 4.1 during the scheduled period in
accordance with the amortization schedule of such Mortgage Loan
without modification thereof by reason of such arrangements. The
Master Servicer shall not be required to institute or join in
litigation with respect to collection of any payment (whether
under a Mortgage, Mortgage Note or otherwise or against any public
or governmental authority with respect to a taking or
condemnation) if it reasonably believes that enforcing the
provision of the Mortgage or other instrument pursuant to which
such payment is required is prohibited by applicable law.
(b) The Master Servicer shall establish and maintain the Certificate
Account into which the Master Servicer shall deposit or cause to
be deposited no later than two Business Days after receipt, except
as otherwise specifically provided herein, the following payments
and collections remitted by Subservicers or received by it in
respect of the Mortgage Loans subsequent to the Cut-off Date
(other than in respect of principal and interest due on the
Mortgage Loans on or before the Cut-off Date) and the following
amounts required to be deposited hereunder:
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
net of the related Master Servicing Fee, any Prepayment
Interest Excess and, for so long as First Horizon is the
Master Servicer, any Retained Yield;
(iii) all Insurance Proceeds and Liquidation Proceeds, other than
proceeds to be applied to the restoration or repair of the
Mortgaged Property or released to the Mortgagor in
accordance with the Master Servicer's normal servicing
procedures;
(iv) any amount required to be deposited by the Master Servicer
pursuant to Section 3.5(c) in connection with any losses on
Permitted Investments;
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(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.9(b), 3.9(d), and in respect of net
monthly rental income from REO Property pursuant to Section
3.11 hereof;
(vi) all Substitution Adjustment Amounts;
(vii) all Advances made by the Master Servicer pursuant to
Section 4.1; and
(viii) any other amounts required to be deposited hereunder.
In addition, with respect to any Mortgage Loan that is subject to
a buydown agreement, on each Due Date for such Mortgage Loan, in addition
to the monthly payment remitted by the Mortgagor, the Master Servicer
shall cause funds to be deposited into the Certificate Account in an
amount required to cause an amount of interest to be paid with respect to
such Mortgage Loan equal to the amount of interest that has accrued on
such Mortgage Loan from the preceding Due Date at the related Adjusted
Mortgage Rate on such date.
The foregoing requirements for remittance by the Master Servicer
shall be exclusive, it being understood and agreed that, without limiting
the generality of the foregoing, payments in the nature of prepayment
penalties, late payment charges, assumption fees or amounts attributable
to reimbursements of Advances, if collected, need not be remitted by the
Master Servicer. In the event that the Master Servicer shall remit any
amount not required to be remitted, it may at any time withdraw or direct
the institution maintaining the Certificate Account to withdraw such
amount from the Certificate Account, any provision herein to the contrary
notwithstanding. Such withdrawal or direction may be accomplished by
delivering written notice thereof to the Trustee or such other
institution maintaining the Certificate Account which describes the
amounts deposited in error in the Certificate Account. The Master
Servicer shall maintain adequate records with respect to all withdrawals
made pursuant to this Section. All funds deposited in the Certificate
Account shall be held in trust for the Certificateholders until withdrawn
in accordance with Section 3.8.
(c) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Distribution Account. The Trustee shall,
promptly upon receipt, deposit in the Distribution Account and
retain therein the following:
(i) the aggregate amount remitted by the Master Servicer to the
Trustee pursuant to Section 3.8(a)(ix);
(ii) any amount deposited by the Master Servicer pursuant to
this Section 3.5(c) in connection with any losses on
Permitted Investments; and
(iii) any other amounts deposited hereunder which are required to
be deposited in the Distribution Account.
In the event that the Master Servicer shall remit any amount not
required to be remitted, it may at any time direct the Trustee to
withdraw such amount from the
47
Distribution Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering an
Officer's Certificate to the Trustee which describes the amounts
deposited in error in the Distribution Account. All funds deposited in
the Distribution Account shall be held by the Trustee in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 3.8. In no event shall the Trustee
incur liability for withdrawals from the Distribution Account at the
direction of the Master Servicer.
(d) The institutions at which the Certificate Account and the
Distribution Account are maintained shall invest funds as directed
by the Master Servicer in Permitted Investments which in both
cases shall mature not later than (i) in the case of the
Certificate Account, the second Business Day next preceding the
related Distribution Account Deposit Date (except that if such
Permitted Investment is an obligation of the institution that
maintains such account, then such Permitted Investment shall
mature not later than the Business Day next preceding such
Distribution Account Deposit Date) and (ii) in the case of the
Distribution Account, the Business Day next preceding the
Distribution Date (except that if such Permitted Investment is an
obligation of the institution that maintains such fund or account,
then such Permitted Investment shall mature not later than such
Distribution Date) and, in each case, shall not be sold or
disposed of prior to its maturity. All such Permitted Investments
shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All income and gain net of any losses realized
from any such investment of funds on deposit in the Certificate
Account shall be for the benefit of the Master Servicer as
servicing compensation and all income and gain net of any losses
realized from any such investment of funds on deposit in the
Distribution Account shall be for the benefit of the Trustee. The
amount of any Realized Losses in the Certificate Account in
respect of any such investments shall promptly be deposited by the
Master Servicer in the Certificate Account and the amount of any
Realized Losses in the Distribution Account in respect of any such
investments shall promptly be deposited by the Trustee into the
Distribution Account. All reinvestment income earned on amounts on
deposit in the Distribution Account shall be for the benefit of
the Trustee. The Trustee in its fiduciary capacity shall not be
liable for the amount of any loss incurred in respect of any
investment or lack of investment of funds held in the Certificate
Account and made in accordance with this Section 3.5.
(e) The Master Servicer shall give notice to the Trustee, the Seller,
each Rating Agency and the Depositor of any proposed change of the
location of the Certificate Account prior to any change thereof.
The Trustee shall give notice to the Master Servicer, the Seller,
each Rating Agency and the Depositor of any proposed change of the
location of the Distribution Account prior to any change thereof.
SECTION 3.6 Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.
(a) To the extent required by the related Mortgage Note and not
violative of current law, the Master Servicer shall establish and
maintain one or more accounts (each,
48
an "Escrow Account") and deposit and retain therein all
collections from the Mortgagors (or advances by the Master
Servicer) for the payment of taxes, assessments, hazard insurance
premiums or comparable items for the account of the Mortgagors.
Nothing herein shall require the Master Servicer to compel a
Mortgagor to establish an Escrow Account in violation of
applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may
be made only to effect timely payment of taxes, assessments,
hazard insurance premiums, condominium or PUD association dues, or
comparable items, to reimburse the Master Servicer out of related
collections for any payments made pursuant to Sections 3.1 hereof
(with respect to taxes and assessments and insurance premiums) and
3.9 hereof (with respect to hazard insurance), to refund to any
Mortgagors any sums determined to be overages, to pay interest, if
required by law or the terms of the related Mortgage or Mortgage
Note, to Mortgagors on balances in the Escrow Account or to clear
and terminate the Escrow Account at the termination of this
Agreement in accordance with Section 9.1 hereof. The Escrow
Accounts shall not be a part of the Trust Fund.
(c) The Master Servicer shall advance any payments referred to in
Section 3.6(a) that are not timely paid by the Mortgagors on the
date when the tax, premium or other cost for which such payment is
intended is due, but the Master Servicer shall be required so to
advance only to the extent that such advances, in the good faith
judgment of the Master Servicer, will be recoverable by the Master
Servicer out of Insurance Proceeds, Liquidation Proceeds or
otherwise.
SECTION 3.7 Access to Certain Documentation and Information Regarding the
Mortgage Loans.
The Master Servicer shall afford the Depositor and the Trustee reasonable
access to all records and documentation regarding the Mortgage Loans and all
accounts, insurance information and other matters relating to this Agreement,
such access being afforded without charge, but only upon reasonable request and
during normal business hours at the office designated by the Master Servicer.
Upon reasonable advance notice in writing, the Master Servicer will
provide to each Certificateholder which is a savings and loan association, bank
or insurance company certain reports and reasonable access to information and
documentation regarding the Mortgage Loans sufficient to permit such
Certificateholder to comply with applicable regulations of the OTS or other
regulatory authorities with respect to investment in the Certificates; provided
that the Master Servicer shall be entitled to be reimbursed by each such
Certificateholder for actual expenses incurred by the Master Servicer in
providing such reports and access.
SECTION 3.8 Permitted Withdrawals from the Certificate Account and
Distribution Account.
(a) The Master Servicer may from time to time make withdrawals from
Certificate Account for the following purposes:
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(i) to the extent not previously retained by the Master Servicer, to
pay to First Horizon the Retained Yield and to pay to the Master
Servicer the master servicing compensation to which it is entitled
pursuant to Section 3.14, and earnings on or investment income
with respect to funds in or credited to the Certificate Account as
additional master servicing compensation;
(ii) to the extent not previously retained by the Master Servicer, to
reimburse the Master Servicer for unreimbursed Advances made by
it, such right of reimbursement pursuant to this subclause (ii)
being limited to amounts received on the Mortgage Loan(s) in
respect of which any such Advance was made;
(iii) to reimburse the Master Servicer for any Nonrecoverable Advance
previously made;
(iv) to reimburse the Master Servicer for Insured Expenses from the
related Insurance Proceeds;
(v) to reimburse the Master Servicer for (a) unreimbursed Servicing
Advances, the Master Servicer's right to reimbursement pursuant to
this clause (a) with respect to any Mortgage Loan being limited to
amounts received on such Mortgage Loan(s) which represent late
recoveries of the payments for which such advances were made
pursuant to Section 3.1 or Section 3.6 and (b) for unpaid Master
Servicing Fees as provided in Section 3.11 hereof;
(vi) to pay to the Seller, with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased
pursuant to Section 2.2, 2.3 or 3.11, all amounts received thereon
after the date of such purchase;
(vii) to reimburse the Seller, the Master Servicer or the Depositor for
expenses incurred by any of them and reimbursable pursuant to
Section 6.3 hereof;
(viii) to withdraw any amount deposited in the Certificate Account and
not required to be deposited therein;
(ix) on or prior to the Distribution Account Deposit Date, to withdraw
an amount equal to the related Available Funds and the Trustee Fee
for such Distribution Date and remit such amount to the Trustee
for deposit in the Distribution Account; and
(x) to clear and terminate the Certificate Account upon termination of
this Agreement pursuant to Section 9.1 hereof.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Certificate Account pursuant to such subclauses (i), (ii),
(iv), (v) and (vi). Prior to making
50
any withdrawal from the Certificate Account pursuant to subclause (iii),
the Master Servicer shall deliver to the Trustee an Officer's Certificate
of a Servicing Officer indicating the amount of any previous Advance
determined by the Master Servicer to be a Nonrecoverable Advance and
identifying the related Mortgage Loans(s), and their respective portions
of such Nonrecoverable Advance.
The Master Servicer shall distribute the Retained Yield, if any,
to First Horizon on each Distribution Account Deposit Date during the
term of this Agreement.
(b) The Trustee shall withdraw funds from the Distribution Account for
distributions to Certificateholders in the manner specified in
this Agreement (and to withhold from the amounts so withdrawn, the
amount of any taxes that it is authorized to withhold pursuant to
the last paragraph of Section 8.11). In addition, the Trustee may
prior to making the distribution pursuant to Section 4.2 from time
to time make withdrawals from the Distribution Account for the
following purposes:
(i) to pay to itself the Trustee Fee for the related
Distribution Date;
(ii) to pay to itself earnings on or investment income with
respect to funds in the Distribution Account;
(iii) to withdraw and return to the Master Servicer any amount
deposited in the Distribution Account and not required to
be deposited therein; and
(iv) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.1
hereof.
SECTION 3.9 Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) The Master Servicer shall cause to be maintained, for each
Mortgage Loan, hazard insurance with extended coverage in an
amount that is at least equal to the lesser of (i) the maximum
insurable value of the improvements securing such Mortgage Loan or
(ii) the greater of (y) the outstanding principal balance of the
Mortgage Loan and (z) an amount such that the proceeds of such
policy shall be sufficient to prevent the Mortgagor and/or the
mortgagee from becoming a co-insurer. Each such policy of standard
hazard insurance shall contain, or have an accompanying
endorsement that contains, a standard mortgagee clause. Any
amounts collected by the Master Servicer under any such policies
(other than the amounts to be applied to the restoration or repair
of the related Mortgaged Property or amounts released to the
Mortgagor in accordance with the Master Servicer's normal
servicing procedures) shall be deposited in the Certificate
Account. Any cost incurred by the Master Servicer in maintaining
any such insurance shall not, for the purpose of calculating
monthly distributions to the Certificateholders or remittances to
the Trustee for their benefit, be added to the principal balance
of the Mortgage Loan, notwithstanding that the terms of the
Mortgage Loan so permit. Such costs shall be recoverable by the
Master Servicer out of late payments by the related Mortgagor or
out of Liquidation Proceeds to
51
the extent permitted by Section 3.8 hereof. It is understood and
agreed that no earthquake or other additional insurance is to be
required of any Mortgagor or maintained on property acquired in
respect of a Mortgage other than pursuant to such applicable laws
and regulations as shall at any time be in force and as shall
require such additional insurance. If the Mortgaged Property is
located at the time of origination of the Mortgage Loan in a
federally designated special flood hazard area and such area is
participating in the national flood insurance program, the Master
Servicer shall cause flood insurance to be maintained with respect
to such Mortgage Loan. Such flood insurance shall be in an amount
equal to the least of (i) the original principal balance of the
related Mortgage Loan, (ii) the replacement value of the
improvements which are part of such Mortgaged Property, and (iii)
the maximum amount of such insurance available for the related
Mortgaged Property under the national flood insurance program.
(b) In the event that the Master Servicer shall obtain and maintain a
blanket policy insuring against hazard losses on all of the
Mortgage Loans, it shall conclusively be deemed to have satisfied
its obligations as set forth in the first sentence of this
Section, it being understood and agreed that such policy may
contain a deductible clause on terms substantially equivalent to
those commercially available and maintained by comparable
servicers. If such policy contains a deductible clause, the Master
Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property a policy complying
with the first sentence of this Section, and there shall have been
a loss that would have been covered by such policy, deposit in the
Certificate Account the amount not otherwise payable under the
blanket policy because of such deductible clause. In connection
with its activities as Master Servicer of the Mortgage Loans, the
Master Servicer agrees to present, on behalf of itself, the
Depositor, and the Trustee for the benefit of the
Certificateholders, claims under any such blanket policy.
(c) The Master Servicer shall not take any action which would result
in non-coverage under any applicable Primary Insurance Policy of
any loss which, but for the actions of the Master Servicer, would
have been covered thereunder. The Master Servicer shall not cancel
or refuse to renew any such Primary Insurance Policy that is in
effect at the date of the initial issuance of the Certificates and
is required to be kept in force hereunder unless the replacement
Primary Insurance Policy for such canceled or non-renewed policy
is maintained with a Qualified Insurer.
The Master Servicer shall not be required to maintain any
Primary Insurance Policy (i) with respect to any Mortgage Loan
with a Loan-to-Value Ratio less than or equal to 80% as of any
date of determination or, based on a new appraisal, the principal
balance of such Mortgage Loan represents 80% or less of the new
appraised value or (ii) if maintaining such Primary Insurance
Policy is prohibited by applicable law.
The Master Servicer agrees to effect the timely payment of
the premiums on each Primary Insurance Policy, and such costs not
otherwise recoverable shall be recoverable by the Master Servicer
from the related liquidation proceeds.
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(d) In connection with its activities as Master Servicer of the
Mortgage Loans, the Master Servicer agrees to present on behalf of
itself, the Trustee and Certificateholders, claims to the insurer
under any Primary Insurance Policies and, in this regard, to take
such reasonable action as shall be necessary to permit recovery
under any Primary Insurance Policies respecting defaulted Mortgage
Loans. Any amounts collected by the Master Servicer under any
Primary Insurance Policies shall be deposited in the Certificate
Account.
SECTION 3.10 Enforcement of Due-on-Sale Clauses; Assumption Agreements.
(a) Except as otherwise provided in this Section, when any property
subject to a Mortgage has been conveyed by the Mortgagor, the
Master Servicer shall to the extent that it has knowledge of such
conveyance, enforce any due-on-sale clause contained in any
Mortgage Note or Mortgage, to the extent permitted under
applicable law and governmental regulations, but only to the
extent that such enforcement will not adversely affect or
jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing, the Master Servicer is not required
to exercise such rights with respect to a Mortgage Loan if the
Person to whom the related Mortgaged Property has been conveyed or
is proposed to be conveyed satisfies the terms and conditions
contained in the Mortgage Note and Mortgage related thereto and
the consent of the mortgagee under such Mortgage Note or Mortgage
is not otherwise so required under such Mortgage Note or Mortgage
as a condition to such transfer. In the event that the Master
Servicer is prohibited by law from enforcing any such due-on-sale
clause, or if coverage under any Required Insurance Policy would
be adversely affected, or if nonenforcement is otherwise permitted
hereunder, the Master Servicer is authorized, subject to Section
3.10(b), to take or enter into an assumption and modification
agreement from or with the person to whom such property has been
or is about to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, unless prohibited by
applicable state law, the Mortgagor remains liable thereon,
provided that the Mortgage Loan shall continue to be covered (if
so covered before the Master Servicer enters such agreement) by
the applicable Required Insurance Policies. The Master Servicer,
subject to Section 3.10(b), is also authorized with the prior
approval of the insurers under any Required Insurance Policies to
enter into a substitution of liability agreement with such Person,
pursuant to which the original Mortgagor is released from
liability and such Person is substituted as Mortgagor and becomes
liable under the Mortgage Note. Notwithstanding the foregoing, the
Master Servicer shall not be deemed to be in default under this
Section by reason of any transfer or assumption which the Master
Servicer reasonably believes it is restricted by law from
preventing, for any reason whatsoever.
(b) Subject to the Master Servicer's duty to enforce any due-on-sale
clause to the extent set forth in Section 3.10(a) hereof, in any
case in which a Mortgaged Property has been conveyed to a Person
by a Mortgagor, and such Person is to enter into an assumption
agreement or modification agreement or supplement to the Mortgage
Note or Mortgage that requires the signature of the Trustee, or if
an
53
instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the Master Servicer
shall prepare and deliver or cause to be prepared and delivered to the
Trustee for signature and shall direct, in writing, the Trustee to
execute the assumption agreement with the Person to whom the Mortgaged
Property is to be conveyed and such modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments as
are reasonable or necessary to carry out the terms of the Mortgage
Note or Mortgage or otherwise to comply with any applicable laws
regarding assumptions or the transfer of the Mortgaged Property to
such Person. In connection with any such assumption, no material term
of the Mortgage Note may be changed. In addition, the substitute
Mortgagor and the Mortgaged Property must be acceptable to the Master
Servicer in accordance with its underwriting standards as then in
effect. Together with each such substitution, assumption or other
agreement or instrument delivered to the Trustee for execution by it,
the Master Servicer shall deliver an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this subsection
have been met in connection therewith. The Master Servicer shall
notify the Trustee that any such substitution or assumption agreement
has been completed by forwarding to the Trustee the original of such
substitution or assumption agreement, which in the case of the
original shall be added to the related Mortgage File and shall, for
all purposes, be considered a part of such Mortgage File to the same
extent as all other documents and instruments constituting a part
thereof. Any fee collected by the Master Servicer for entering into an
assumption or substitution of liability agreement will be retained by
the Master Servicer as additional servicing compensation.
SECTION 3.11 Realization Upon Defaulted Mortgage Loans; Repurchase of
Certain Mortgage Loans.
The Master Servicer shall use reasonable efforts to foreclose upon or
otherwise comparably convert the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments. In
connection with such foreclosure or other conversion, the Master Servicer shall
follow such practices and procedures as it shall deem necessary or advisable and
as shall be normal and usual in its general mortgage servicing activities and
meet the requirements of the insurer under any Required Insurance Policy;
provided, however, that the Master Servicer shall not be required to expend its
own funds in connection with any foreclosure or towards the restoration of any
property unless it shall determine (i) that such restoration and/or foreclosure
will increase the proceeds of liquidation of the Mortgage Loan after
reimbursement to itself of such expenses and (ii) that such expenses will be
recoverable to it through Liquidation Proceeds (respecting which it shall have
priority for purposes of withdrawals from the Certificate Account). The Master
Servicer shall be responsible for all other costs and expenses incurred by it in
any such proceedings; provided, however, that it shall be entitled to
reimbursement thereof from the liquidation proceeds with respect to the related
Mortgaged Property, as provided in the definition of Liquidation Proceeds. If
the Master Servicer has knowledge that a Mortgaged Property which the Master
Servicer is contemplating acquiring in foreclosure or by deed in lieu of
foreclosure is located within a 1 mile radius of any site listed in the
Expenditure Plan for the Hazardous Substance Clean Up Bond Act of 1984 or other
site with environmental or hazardous
54
waste risks known to the Master Servicer, the Master Servicer will, prior to
acquiring the Mortgaged Property, consider such risks and only take action in
accordance with its established environmental review procedures.
With respect to any REO Property, the deed or certificate of sale shall be
taken in the name of the Trust Fund for the benefit of the Certificateholders,
or its nominee, on behalf of the Certificateholders. The Master Servicer shall
ensure that the title to such REO Property references the Pooling and Servicing
Agreement and the Trust Fund's capacity thereunder. Pursuant to its efforts to
sell such REO Property, the Master Servicer shall either itself or through an
agent selected by the Master Servicer protect and conserve such REO Property in
the same manner and to such extent as is customary in the locality where such
REO Property is located and may, incident to its conservation and protection of
the interests of the Certificateholders, rent the same, or any part thereof, as
the Master Servicer deems to be in the best interest of the Certificateholders
for the period prior to the sale of such REO Property. The Master Servicer shall
prepare for and deliver to the Trustee a statement with respect to each REO
Property that has been rented showing the aggregate rental income received and
all expenses incurred in connection with the management and maintenance of such
REO Property at such times as is necessary to enable the Trustee to comply with
the reporting requirements of the REMIC Provisions. The net monthly rental
income, if any, from such REO Property shall be deposited in the Certificate
Account no later than the close of business on each Determination Date. The
Master Servicer shall perform the tax reporting and withholding required by
Sections 1445 and 6050J of the Code with respect to foreclosures and
abandonments, the tax reporting required by Section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and any tax
reporting required by Section 6050P of the Code with respect to the cancellation
of indebtedness by certain financial entities, by preparing such tax and
information returns as may be required, in the form required, and delivering the
same to the Trustee for filing.
In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall dispose of such Mortgaged Property
prior to the close of the third taxable year after the taxable year of its
acquisition by the Trust Fund unless the Trustee shall have been supplied with
an Opinion of Counsel to the effect that the holding by the Trust Fund of such
Mortgaged Property subsequent to such three-year period will not result in the
imposition of taxes on "prohibited transactions" of the REMIC hereunder as
defined in Section 860F of the Code or cause any REMIC created hereunder to fail
to qualify as a REMIC at any time that any Certificates are outstanding, in
which case the Trust Fund may continue to hold such Mortgaged Property (subject
to any conditions contained in such Opinion of Counsel). Notwithstanding any
other provision of this Agreement, no Mortgaged Property acquired by the Trust
Fund shall be rented (or allowed to continue to be rented) or otherwise used for
the production of income by or on behalf of the Trust Fund in such a manner or
pursuant to any terms that would (i) cause such Mortgaged Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or (ii) subject the REMIC hereunder to the imposition of any federal,
state or local income taxes on the income earned from such Mortgaged Property
under Section 860G(c) of the Code or otherwise, unless the Master Servicer has
agreed to indemnify and hold harmless the Trust Fund with respect to the
imposition of any such taxes.
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In the event of a default on a Mortgage Loan one or more of whose
obligor is not a United States Person, as that term is defined in Section
7701(a)(30) of the Code, in connection with any foreclosure or acquisition of a
deed in lieu of foreclosure (together, "foreclosure") in respect of such
Mortgage Loan, the Master Servicer will cause compliance with the provisions of
Treasury Regulation Section 1.1445-2(d)(3) (or any successor thereto) necessary
to assure that no withholding tax obligation arises with respect to the proceeds
of such foreclosure except to the extent, if any, that proceeds of such
foreclosure are required to be remitted to the obligors on such Mortgage Loan.
The decision of the Master Servicer to foreclose on a defaulted
Mortgage Loan shall be subject to a determination by the Master Servicer that
the proceeds of such foreclosure would exceed the costs and expenses of bringing
such a proceeding. The income earned from the management of any REO Properties,
net of reimbursement to the Master Servicer for expenses incurred (including any
property or other taxes) in connection with such management and net of
unreimbursed Master Servicing Fees, Advances and Servicing Advances, shall be
applied to the payment of principal of and interest on the related defaulted
Mortgage Loans (with interest accruing as though such Mortgage Loans were still
current) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the Certificate Account. To the
extent the net income received during any calendar month is in excess of the
amount attributable to amortizing principal and accrued interest at the related
Mortgage Rate on the related Mortgage Loan for such calendar month, such excess
shall be considered to be a partial prepayment of principal of the related
Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
income from an REO Property, will be applied in the following order of priority:
first, to reimburse the Master Servicer for any related unreimbursed Servicing
Advances and Master Servicing Fees; second, to reimburse the Master Servicer for
any unreimbursed Advances; third, to reimburse the Certificate Account for any
Nonrecoverable Advances (or portions thereof) that were previously withdrawn by
the Master Servicer pursuant to Section 3.8(a)(iii) that related to such
Mortgage Loan; fourth, to accrued and unpaid interest (to the extent no Advance
has been made for such amount or any such Advance has been reimbursed) on the
Mortgage Loan or related REO Property, at the Adjusted Net Mortgage Rate to the
Due Date occurring in the month in which such amounts are required to be
distributed; and fifth, as a recovery of principal of the Mortgage Loan. Excess
Proceeds, if any, from the liquidation of a Liquidated Mortgage Loan will be
retained by the Master Servicer as additional servicing compensation pursuant to
Section 3.14.
The Master Servicer, with the consent of the Trustee, shall have the
right to purchase for its own account from the Trust Fund any Mortgage Loan
which is 91 days or more delinquent at a price equal to the Purchase Price. The
Purchase Price for any Mortgage Loan purchased hereunder shall be deposited in
the Certificate Account and the Trustee, upon receipt of a certificate from the
Master Servicer in the form of Exhibit M hereto, shall release or cause to be
released to the purchaser of such Mortgage Loan the related Mortgage File and
shall execute and deliver such instruments of transfer or assignment prepared by
the purchaser of such Mortgage Loan, in each case without recourse, as shall be
necessary to vest in the purchaser of such Mortgage Loan any Mortgage Loan
released pursuant hereto and the purchaser of such Mortgage Loan shall succeed
to all the Trustee's right, title and interest in and to such Mortgage Loan and
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all security and documents related thereto. Such assignment shall be an
assignment outright and not for security. The purchaser of such Mortgage Loan
shall thereupon own such Mortgage Loan, and all security and documents, free of
any further obligation to the Trustee or the Certificateholders with respect
thereto.
SECTION 3.12 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Master Servicer will immediately notify
the Trustee by delivering, or causing to be delivered a "Request for Release"
substantially in the form of Exhibit M. Upon receipt of such request, the
Trustee shall or shall cause the Custodian to promptly release the related
Mortgage File to the Master Servicer, and the Trustee shall at the Master
Servicer's direction execute and deliver to the Master Servicer the request for
reconveyance, deed of reconveyance or release or satisfaction of mortgage or
such instrument releasing the lien of the Mortgage in each case provided by the
Master Servicer, together with the Mortgage Note with written evidence of
cancellation thereon. Expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the related
Mortgagor. From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose, collection under
any policy of flood insurance, any fidelity bond or errors or omissions policy,
or for the purposes of effecting a partial release of any Mortgaged Property
from the lien of the Mortgage or the making of any corrections to the Mortgage
Note or the Mortgage or any of the other documents included in the Mortgage
File, the Trustee shall, upon delivery to the Trustee of a Request for Release
in the form of Exhibit L signed by a Servicing Officer, release the Mortgage
File to the Master Servicer. Subject to the further limitations set forth below,
the Master Servicer shall cause the Mortgage File or documents so released to be
returned to the Trustee or its Custodian when the need therefor by the Master
Servicer no longer exists, unless the Mortgage Loan is liquidated and the
proceeds thereof are deposited in the Certificate Account, in which case the
Master Servicer shall deliver to the Trustee a Request for Release in the form
of Exhibit M, signed by a Servicing Officer.
If the Master Servicer at any time seeks to initiate a foreclosure
proceeding in respect of any Mortgaged Property as authorized by this Agreement,
the Master Servicer shall deliver or cause to be delivered to the Trustee, for
signature, as appropriate, any court pleadings, requests for trustee's sale or
other documents necessary to effectuate such foreclosure or any legal action
brought to obtain judgment against the Mortgagor on the Mortgage Note or the
Mortgage or to obtain a deficiency judgment or to enforce any other remedies or
rights provided by the Mortgage Note or the Mortgage or otherwise available at
law or in equity.
SECTION 3.13 Documents Records and Funds in Possession of Master Servicer
to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall transmit to the Trustee as required by this Agreement all
documents and instruments in respect of a Mortgage Loan coming into the
possession of the Master Servicer from time to time and shall account fully to
the Trustee for any funds received by the Master Servicer or which otherwise are
collected by the Master Servicer as Liquidation Proceeds or Insurance Proceeds
in respect of any
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Mortgage Loan. All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer in respect of any Mortgage Loans, whether from
the collection of principal and interest payments or from Liquidation Proceeds,
including but not limited to, any funds on deposit in the Certificate Account,
shall be held by the Master Servicer for and on behalf of the Trustee and shall
be and remain the sole and exclusive property of the Trustee, subject to the
applicable provisions of this Agreement. The Master Servicer also agrees that it
shall not create, incur or subject any Mortgage File or any funds that are
deposited in the Certificate Account, Distribution Account or any Escrow
Account, or any funds that otherwise are or may become due or payable to the
Trustee for the benefit of the Certificateholders, to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance, or assert by
legal action or otherwise any claim or right of setoff against any Mortgage File
or any funds collected on, or in connection with, a Mortgage Loan, except,
however, that the Master Servicer shall be entitled to set off against and
deduct from any such funds any amounts that are properly due and payable to the
Master Servicer under this Agreement.
SECTION 3.14 Master Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer shall
be entitled to retain or withdraw from the Certificate Account an amount equal
to the Master Servicing Fee for each Mortgage Loan, provided that the aggregate
Master Servicing Fee with respect to any Distribution Date shall be reduced (i)
by the amount of any Compensating Interest paid by the Master Servicer with
respect to such Distribution Date, and (ii) with respect to the first
Distribution Date, an amount equal to any amount to be deposited into the
Distribution Account by the Depositor pursuant to Section 2.1(a) and not so
deposited.
Additional servicing compensation in the form of (i) Retained Yield,
Excess Proceeds, Prepayment Interest Excess and all income and gain net of any
losses realized from Permitted Investments and (ii) prepayment penalties,
assumption fees and late payment charges in each case under the circumstances
and in the manner set forth in the applicable Mortgage Note or Mortgage shall be
retained by the Master Servicer to the extent not required to be deposited in
the Certificate Account pursuant to Section 3.5 hereof; provided that in the
event the Master Servicer is terminated pursuant to Section 7.1, the Retained
Yield shall be payable to First Horizon Home Loan Corporation in its individual
capacity and shall not be payable to the Trustee or any successor to the Master
Servicer. The Master Servicer shall be required to pay all expenses incurred by
it in connection with its master servicing activities hereunder (including
payment of any premiums for hazard insurance and any Primary Insurance Policy
and maintenance of the other forms of insurance coverage required by this
Agreement) and shall not be entitled to reimbursement therefor except as
specifically provided in this Agreement.
SECTION 3.15 Access to Certain Documentation.
The Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of Subordinated
Certificates and the examiners and supervisory agents of the OTS, the FDIC and
such other authorities, access to the documentation regarding the Mortgage Loans
required by applicable regulations of the OTS and the FDIC. Such access shall be
afforded without charge, but only upon reasonable and prior written request and
during normal business hours at the offices designated by the Master Servicer.
Nothing in this Section
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shall limit the obligation of the Master Servicer to observe any applicable law
prohibiting disclosure of information regarding the Mortgagors and the failure
of the Master Servicer to provide access as provided in this Section as a result
of such obligation shall not constitute a breach of this Section.
SECTION 3.16 Annual Statement as to Compliance.
The Master Servicer shall deliver to the Depositor and the Trustee on or
before 120 days after the end of the Master Servicer's fiscal year, commencing
with its 2003 fiscal year, an Officer's Certificate stating, as to the signer
thereof, that (i) a review of the activities of the Master Servicer during the
preceding calendar year and of the performance of the Master Servicer under this
Agreement has been made under such officer's supervision and (ii) to the best of
such officer's knowledge, based on such review, the Master Servicer has
fulfilled all its obligations under this Agreement throughout such year, or, if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof. The
Trustee shall forward a copy of each such statement to each Rating Agency.
SECTION 3.17 Annual Independent Public Accountants' Servicing Statement;
Financial Statements.
On or before 120 days after the end of the Master Servicer's fiscal year,
commencing with its 2003 fiscal year, the Master Servicer at its expense shall
cause a nationally or regionally recognized firm of independent public
accountants (who may also render other services to the Master Servicer, the
Seller or any affiliate thereof) which is a member of the American Institute of
Certified Public Accountants to furnish a statement to the Trustee and the
Depositor to the effect that-such firm has examined certain documents and
records relating to the servicing of the Mortgage Loans under this Agreement or
of mortgage loans under pooling and servicing agreements substantially similar
to this Agreement (such statement to have attached thereto a schedule setting
forth the pooling and servicing agreements covered thereby) and that, on the
basis of such examination, conducted substantially in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or the Audit Program for
Mortgages serviced for FNMA and FHLMC, such servicing has been conducted in
compliance with such pooling and servicing agreements except for such
significant exceptions or errors in records that, in the opinion of such firm,
the Uniform Single Attestation Program for Mortgage Bankers or the Audit Program
for Mortgages serviced for FNMA and FHLMC requires it to report. In rendering
such statement, such firm may rely, as to matters relating to direct servicing
of mortgage loans by Subservicers, upon comparable statements for examinations
conducted substantially in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Program for Mortgages serviced for
FNMA and FHLMC (rendered within one year of such statement) of independent
public accountants with respect to the related Subservicer. Copies of such
statement shall be provided by the Trustee to any Certificateholder upon request
at the Master Servicer's expense, provided such statement is delivered by the
Master Servicer to the Trustee.
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SECTION 3.18 Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall for so long as it acts as master servicer
under this Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations as
Master Servicer hereunder and (b) a fidelity bond in respect of its officers,
employees and agents. Each such policy or policies and bond shall, together,
comply with the requirements from time to time of FNMA or FHLMC for persons
performing servicing for mortgage loans purchased by FNMA or FHLMC. In the event
that any such policy or bond ceases to be in effect, the Master Servicer shall
obtain a comparable replacement policy or bond from an insurer or issuer,
meeting the requirements set forth above as of the date of such replacement.
ARTICLE IV
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
SECTION 4.1 Advances.
The Master Servicer shall determine on or before each Master Servicer
Advance Date whether it is required to make an Advance pursuant to the
definition thereof. If the Master Servicer determines it is required to make an
Advance, it shall, on or before the Master Servicer Advance Date, either (i)
deposit into the Certificate Account an amount equal to the Advance or (ii) make
an appropriate entry in its records relating to the Certificate Account that any
Amount Held for Future Distribution has been used by the Master Servicer in
discharge of its obligation to make any such Advance. Any funds so applied shall
be replaced by the Master Servicer by deposit in the Certificate Account no
later than the close of business on the next Master Servicer Advance Date. The
Master Servicer shall be entitled to be reimbursed from the Certificate Account
for all Advances of its own funds made pursuant to this Section as provided in
Section 3.8. The obligation to make Advances with respect to any Mortgage Loan
shall continue if such Mortgage Loan has been foreclosed or otherwise terminated
and the related Mortgaged Property has not been liquidated.
The Master Servicer shall deliver to the Trustee on the related Master
Servicer Advance Date an Officer's Certificate of a Servicing Officer indicating
the amount of any proposed Advance determined by the Master Servicer to be a
Nonrecoverable Advance.
SECTION 4.2 Priorities of Distribution.
(a) On each Distribution Date, the Trustee shall withdraw the
Available Funds from the Distribution Account and apply such
funds to distributions on the Certificates in the following order
and priority and, in each case, to the extent of Available Funds
remaining:
(i) to the Classes of Senior Certificates, the Accrued
Certificate Interest on each such Class for such
Distribution Date, any shortfall in available amounts being
allocated among such Classes in proportion to the amount of
Accrued Certificate Interest otherwise distributable
thereon;
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(ii) to the Classes of Senior Certificates, any Accrued
Certificate Interest thereon remaining undistributed from
previous Distribution Dates, to the extent of remaining
Available Funds, any shortfall in available amounts being
allocated among such Classes in proportion to the amount
of such Accrued Certificate Interest remaining
undistributed for each such Class for such Distribution
Date;
(iii) to the Classes of Senior Certificates, in reduction of the
Class Certificate Balances thereof, to the extent of
remaining Available Funds, the Senior Optimal Principal
Amount for such Distribution Date, in the order of
priority set forth below in Section 4.2(b), until the
respective Class Certificate Balances thereof have been
reduced to zero;
(iv) to the Class B-1 Certificates, to the extent of remaining
Available Funds, but subject to the prior payment of
amounts, in the following order: (1) the Accrued
Certificate Interest thereon for such Distribution Date,
(2) any Accrued Certificate Interest thereon remaining
undistributed from previous Distribution Dates and (3)
such Class' Allocable Share for such Distribution Date;
(v) to the Class B-2 Certificates, to the extent of remaining
Available Funds, in the following order: (1) the Accrued
Certificate Interest thereon for such Distribution Date,
(2) any Accrued Certificate Interest thereon remaining
undistributed from previous Distribution Dates and (3)
such Class' Allocable Share for such Distribution Date;
(vi) to the Class B-3 Certificates, to the extent of remaining
Available Funds, in the following order: (1) the Accrued
Certificate Interest thereon for such Distribution Date,
(2) any Accrued Certificate Interest thereon remaining
undistributed from previous Distribution Dates and (3)
such Class' Allocable Share for such Distribution Date;
(vii) to the Class B-4 Certificates, to the extent of remaining
Available Funds, in the following order: (1) the Accrued
Certificate Interest thereon for such Distribution Date,
(2) any Accrued Certificate Interest thereon remaining
undistributed from previous Distribution Dates and (3)
such Class' Allocable Share for such Distribution Date;
(viii) to the Class B-5 Certificates, to the extent of remaining
Available Funds, in the following order: (1) the Accrued
Certificate Interest thereon for such Distribution Date,
(2) any Accrued Certificate Interest thereon remaining
undistributed from previous Distribution Dates and (3)
such Class' Allocable Share for such Distribution Date;
and
(ix) to the Class B-6 Certificates, to the extent of remaining
Available Funds, in the following order: (1) the Accrued
Certificate Interest thereon for such Distribution Date,
(2) any Accrued Certificate Interest thereon
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remaining undistributed from previous Distribution Dates
and (3) such Class' Allocable Share for such Distribution
Date.
(b) Amounts allocated to the Senior Certificates pursuant to Section
4.2(a)(iii) above will be distributed in the following order of
priority:
(i) pro rata, to the Class A-RU and Class A-RL Certificates
until their respective Class Certificate Balances have each
been reduced to zero;
(ii) to the Class A-6 Certificates, an amount up to the Class
A-6 Principal Distribution Amount for such Distribution
Date, until the Class Certificate Balance thereof has been
reduced to zero;
(iii) pro rata, to the Class A-1 and Class A-2 Certificates,
until their respective Class Certificate Balances have each
been reduced to zero;
(iv) sequentially, to the Class A-4 and Class A-5 Certificates,
in that order, until their respective Class Certificate
Balances have been reduced to zero;
(v) to the Class A-6 Certificates until the outstanding Class
Certificate Balance thereof has been reduced to zero.
(c) On each Distribution Date, the Trustee shall distribute to the
Holders of the Class A-RU or Class A-RL Certificates any
Available Funds remaining in the related REMIC for such
Distribution Date after application of all amounts described in
clauses (a), (b) and (f) of this Section 4.2 on such Distribution
Date. Any distributions pursuant to this subsection (c) shall not
reduce the Class Certificate Balance of the Class A-RU and Class
A-RL Certificates.
(d) On and after the Cross-Over Date, the amount distributable to the
Senior Certificates pursuant to Section 4.2(a)(iii) for such
Distribution Date shall be allocated among the related Classes of
Senior Certificates, pro rata, on the basis of their respective
Class Certificate Balances immediately prior to such Distribution
Date, regardless of the priorities and amounts set forth in
Section 4.2.
(e) If on any Distribution Date (i) the Class Certificate Balance of
any Class of Subordinated Certificates (other than the Class of
Subordinated Certificates with the highest priority of
distribution) for which the related Class Prepayment Distribution
Trigger was satisfied on such Distribution Date is reduced to
zero and (ii) amounts distributable to such Class of Subordinated
Certificates pursuant to clauses (2), (3) and (5) of the
Subordinated Optimal Principal Amount remain undistributed on
such Distribution Date after all amounts otherwise distributable
on such date pursuant to clauses (iv) through (ix) of Section
4.2(a) have been distributed, such amounts, to the extent of such
Class' remaining Allocable Share, shall be distributed on such
Distribution Date to the remaining Classes of Subordinated
Certificates in order of priority, such that no such distribution
shall be made to any Class of Subordinated Certificates while a
Class of Subordinated Certificates having a distribution priority
higher than such Class is outstanding.
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(f) In the event that in any calendar month the Master Servicer
recovers an amount (an "Unanticipated Recovery") in respect of
principal of a Mortgage Loan which had previously been allocated
as a Realized Loss to any Class of Certificates pursuant to
Section 4.4, on the Distribution Date in the next succeeding
calendar month the Trustee, shall withdraw from the Distribution
Account and distribute to the Holders of each outstanding Class
to which such Realized Loss had previously been allocated its
share (determined as described in the succeeding paragraph) of
such Unanticipated Recovery in an amount not to exceed the amount
of such Realized Loss previously allocated to such Class. When
the Class Certificate Balance of a Class of Certificates has been
reduced to zero, the Holders of such Class shall not be entitled
to any share of an Unanticipated Recovery, and such Unanticipated
Recovery shall be allocated among all outstanding Classes of
Certificates entitled thereto in accordance with the preceding
sentence, subject to the remainder of this subsection (f). In the
event that (i) any Unanticipated Recovery remains undistributed
in accordance with the preceding sentence or (ii) the amount of
an Unanticipated Recovery exceeds the amount of the Realized Loss
previously allocated to any outstanding Classes with respect to
the related Mortgage Loan, on the applicable Distribution Date
the Trustee shall distribute to the Holders of all outstanding
Classes of the related Certificates to which Realized Losses had
previously been allocated and not reimbursed their pro rata share
(determined as described below) of such excess in an amount not
to exceed the aggregate amount of any Realized Loss previously
allocated to such Class with respect to any other Mortgage Loan
that has not been recovered in accordance with this subsection
(f). Any distributions made pursuant to this subsection (f) shall
not reduce the Class Certificate Balance of the related
Certificate.
For purposes of the preceding paragraph, the share of an
Unanticipated Recovery allocable to any Class of Certificates
with respect to a Mortgage Loan shall be based on its pro rata
share (in proportion to the Class Certificate Balances thereof
with respect to such Distribution Date) of the principal portion
of any such Realized Loss previously allocated with respect to
such Mortgage Loan (or Loans).
SECTION 4.3 Method of Distribution.
(a) All distributions with respect to each Class of Certificates on
each Distribution Date shall be made pro rata among the
outstanding Certificates of such Class, based on the Percentage
Interest in such Class represented by each Certificate. Payments
to the Certificateholders on each Distribution Date will be made
by the Trustee to the Certificateholders of record on the related
Record Date by check or money order mailed to a Certificateholder
at the address appearing in the Certificate Register, or upon
written request by such Certificateholder to the Trustee made not
later than the applicable Record Date, by wire transfer to a U.S.
depository institution acceptable to the Trustee, or by such
other means of payment as such Certificateholder and the Trustee
shall agree.
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(b) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, which shall credit the amount of such
distribution to the accounts of its Depository Participants in
accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution
to the Certificate Owners that it represents and to each
financial intermediary for which it acts as agent. Each such
financial intermediary shall be responsible for disbursing funds
to the Certificate Owners that it represents. All such credits
and disbursements with respect to a Book-Entry Certificate are to
be made by the Depository and the Depository Participants in
accordance with the provisions of the applicable Certificates.
Neither the Trustee nor the Master Servicer shall have any
responsibility therefor except as otherwise provided by
applicable law.
(c) The Trustee shall withhold or cause to be withheld such amounts
as it reasonably determines are required by the Code (giving full
effect to any exemptions from withholding and related
certifications required to be furnished by Certificateholders or
Certificate Owners and any reductions to withholding by virtue of
any bilateral tax treaties and any applicable certification
required to be furnished by Certificateholders or Certificate
Owners with respect thereto) from distributions to be made to
Non-U.S. Persons. If the Trustee reasonably determines that a
more accurate determination of the amount required to be withheld
for a distribution can be made within a reasonable period after
the scheduled date for such distribution, it may hold such
distribution in trust for a Holder of a Residual Certificate
until such determination can be made. For the purposes of this
paragraph, a "Non-U.S. Person" is (i) an individual other than a
citizen or resident of the United States, (ii) a partnership,
corporation or entity treated as a partnership or corporation for
U.S. federal income tax purposes not formed under the laws of the
United States, any state thereof or the District of Columbia
(unless, in the case of a partnership, Treasury regulations
provide otherwise), (iii) any estate, the income of which is not
subject to U.S. federal income taxation, regardless of source,
and (iv) any trust, other than a trust that a court within the
United States is able to exercise primary supervision over the
administration of the trust and one or more U.S. Persons have the
authority to control all substantial decisions of the trust.
SECTION 4.4 Allocation of Losses.
(a) On or prior to each Determination Date, the Master Servicer shall
determine the amount of any Realized Loss in respect of each
Mortgage Loan that occurred during the immediately preceding
calendar month.
(b) With respect to any Distribution Date, the principal portion of
each Realized Loss (other than any Excess Loss) shall be
allocated in the following order of priority:
(i) to the Class B-6 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
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(ii) to the Class B-5 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
(iii) to the Class B-4 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
(iv) to the Class B-3 Certificates until the Class Certificate
Balance thereof has been reduced to zero; (v) to the Class
B-2 Certificates until the Class Certificate Balance
thereof has been reduced to zero;
(vi) to the Class B-1 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
(vii) to the Classes of Senior Certificates, pro rata, in
accordance with their Class Certificate Balances.
(c) With respect to any Distribution Date, the principal portion of
any Excess Loss (other than Excess Bankruptcy Losses attributable
to Debt Service Reductions) shall be allocated pro rata to each
Class of Certificates based on their respective Class Certificate
Balances.
(d) Any Realized Losses allocated to a Class of Certificates pursuant
to Section 4.4(b) or (c) shall be allocated among the
Certificates of such Class in proportion to their respective
Certificate Principal Balances. Any allocation of Realized Losses
pursuant to this paragraph (d) shall be accomplished by reducing
the Certificate Principal Balances of the related Certificates on
the related Distribution Date in accordance with Section 4.4(e).
(e) Realized Losses allocated in accordance with this Section 4.4
shall be allocated on the Distribution Date in the month
following the month in which such loss was incurred and, in the
case of the principal portion thereof, after giving effect to the
distributions made on such Distribution Date.
(f) On each Distribution Date, the Master Servicer shall determine
the Subordinated Certificate Writedown Amount, if any. Any such
Subordinated Certificate Writedown Amount shall effect, without
duplication of any other provision in this Section 4.4 that
provides for a reduction in the Class Certificate Balance of the
Subordinated Certificates, a corresponding reduction in the Class
Certificate Balance of the Subordinated Certificates, which
reduction shall occur on such Distribution Date after giving
effect to distributions made on such Distribution Date.
(g) Notwithstanding the foregoing, no such allocation of any Realized
Loss shall be made on a Distribution Date to a Class of
Certificates to the extent that such allocation would result in
the reduction of the aggregate Certificate Principal Balances of
all the Certificates as of such Distribution Date, after giving
effect to
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all distributions and prior allocations of Realized Losses on such
date, to an amount less than the aggregate Scheduled Principal Balance
of the Mortgage Loans as of the first day of the month of such
Distribution Date, less any Deficient Valuations occurring on or prior
to the Bankruptcy Coverage Termination Date (such limitation, the
"Loss Allocation Limitation").
SECTION 4.5 Reserved.
SECTION 4.6 Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare and
cause to be forwarded by first class mail to each Certificateholder,
the Master Servicer, the Depositor and each Rating Agency a statement
setting forth with respect to the related distribution and may post
such statement on its website located at xxx.xxxxxxxxxxxx.xxx:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments
and Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, the amount of any
Compensating Interest included in such distribution and any
remaining Net Interest Shortfalls after giving effect to such
distribution;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be
distributable to such Holders if there were sufficient funds
available therefor, the amount of the shortfall and the
allocation thereof as between principal and interest;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such
Distribution Date;
(v) the Pool Principal Balance for the following Distribution Date;
(vi) the Senior Percentage and Subordinated Percentage for the
following Distribution Date;
(vii) the amount of the Master Servicing Fees paid to or retained by
the Master Servicer with respect to such Distribution Date;
(viii) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(ix) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances
outstanding as of the close of business on such Distribution
Date;
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(x) the number and aggregate principal amounts of Mortgage Loans
(A) delinquent (exclusive of Mortgage Loans in foreclosure) (1)
1 to 30 days (2) 31 to 60 days (3) 61 to 90 days and (4) 91 or
more days and (B) in foreclosure and delinquent (1) 1 to 30
days (2) 31 to 60 days (3) 61 to 90 days and (4) 91 or more
days, as of the close of business on the last day of the
calendar month preceding such Distribution Date;
(xi) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated
Principal Balance of such Mortgage Loan as of the close of
business on the Determination Date preceding such Distribution
Date and the date of acquisition thereof;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on
the Determination Date preceding such Distribution Date;
(xiii) the Senior Prepayment Percentage for the following Distribution
Date;
(xiv) the aggregate amount of Realized Losses incurred during the
preceding calendar month;
(xv) the cumulative amount of Realized Losses applied in reduction
of the principal balance of each class of Certificates since
the Closing Date;
(xvi) the Special Hazard Loss Coverage Amount, the Fraud Loss
Coverage Amount and the Bankruptcy Loss Coverage Amount, in
each case as of the related Determination Date; and
(xvii) with respect to the second Distribution Date, the number and
aggregate balance of any Delay Delivery Mortgage Loans not
delivered within thirty days after the Closing Date.
(b) The Trustee's responsibility for disbursing the above information to
the Certificateholders is limited to the availability, timeliness and
accuracy of the information provided by the Master Servicer.
(c) On or before the fifth Business Day following the end of each
Prepayment Period (but in no event later than the third Business Day
prior to the related Distribution Date), the Master Servicer shall
deliver to the Trustee (which delivery may be by electronic data
transmission) a report in substantially the form set forth as Schedule
IV hereto.
(d) Within a reasonable period of time after the end of each calendar
year, the Trustee shall cause to be furnished to each Person who at
any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i), (a)(ii) and
(a)(vii) of this Section 4.6 aggregated for such calendar year or
applicable portion thereof during which such Person was a
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Certificateholder. Such obligation of the Trustee shall be deemed to have
been satisfied to the extent that substantially comparable information
shall be provided by the Trustee pursuant to any requirements of the Code
as from time to time in effect.
SECTION 4.7 Determination of Pass-Through Rates for LIBOR Certificates.
(a) On each Interest Determination Date so long as any LIBOR Certificates are
outstanding, the Trustee will determine LIBOR on the basis of the British
Bankers' Association ("BBA") "Interest Settlement Rate" for one-month
deposits in U.S. dollars as found on Telerate page 3750 as of 11:00 a.m.
London time on each LIBOR Determination Date. Interest Settlement Rates
currently are based on rates quoted by sixteen BBA designated banks as
being, in the view of such banks, the offered rate at which deposits are
being quoted to prime banks in the London interbank market. Such Interest
Settlement Rates are calculated by eliminating the four highest rates and
the four lowest rates, averaging the eight remaining rates, carrying the
result (expressed as a percentage) out to six decimal places, and rounding
to five decimal places. "Telerate Page 3750" means the display page
currently so designated on the Bridge Telerate Service (formerly the Dow
Xxxxx Markets) (or such other page as may replace that page on that service
for the purpose of displaying comparable rates or prices.)
(b) If LIBOR cannot be determined as provided in paragraph (A) of this Section
4.7, the Trustee shall either (i) request each Reference Bank to inform the
Trustee of the quotation offered by its principal London office for making
one-month United States dollar deposits in leading banks in the London
interbank market, as of 11:00 a.m. (London time) on such Interest
Determination Date or (ii) in lieu of making any such request, rely on such
Reference Bank quotations that appear at such time on the Reuters Screen
LIBO Page (as defined in the International Swap Dealers Association Inc.
Code of Standard Wording, Assumptions and Provisions for Swaps, 1986
Edition), to the extent available. LIBOR for the next Interest Accrual
Period will be established by the Trustee on each interest Determination
Date as follows:
(i) If on any interest Determination Date two or more Reference Banks
provide such offered quotations, LIBOR for the next Interest Accrual
Period shall be the arithmetic mean of such offered quotations
(rounding such arithmetic mean upwards if necessary to the nearest
whole multiple of 1/32%).
(ii) If on any Interest Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Interest Accrual Period shall be whichever is the higher of (i) LIBOR
as determined on the previous Interest Determination Date or (ii) the
Reserve Interest Rate. The "Reserve Interest Rate" shall be the rate
per annum which the Trustee determines to be either (i) the arithmetic
mean (rounded upwards if necessary to the nearest whole multiple of
1/32%) of the one-
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month United States dollar lending rates that New York City banks
selected by the Trustee are quoting, on the relevant Interest
Determination Date, to the principal London offices of at least two
of the Reference Banks to which such quotations are, in the opinion
of the Trustee, being so made, or (ii) in the event that the Trustee
can determine no such arithmetic mean, the lowest one-month United
States dollar lending rate which New York City banks selected by the
Trustee are quoting on such Interest Determination Date to leading
European banks.
(iii) If on any interest Determination Date the trustee is required but is
unable to determine the Reserve Interest Rate in the manner provided
in paragraph (b) above, LIBOR shall be LIBOR as determined on the
preceding Interest Determination Date.
Until all of the LIBOR Certificates are paid in full, the Trustee
will at all times retain at least four Reference Banks for the purpose of
determining LIBOR with respect to each Interest Determination Date. The
Master Servicer initially shall designate the Reference Banks. Each
"Reference Bank" shall be a leading bank engaged in transactions in
Eurodollar deposits in the international Eurocurrency market, shall not
control, be controlled by, or be under common control with, the Trustee and
shall have an established place of business in London. If any such
Reference Bank should be unwilling or unable to act as such or if the
Master Servicer should terminate its appointment as Reference Bank, the
Trustee shall promptly appoint or cause to be appointed another Reference
Bank. The Trustee shall have no liability or responsibility to any Person
for (i) the selection of any Reference Bank for purposes of determining
LIBOR or (ii) any inability to retain at least four Reference Banks which
is caused by circumstances beyond its reasonable control.
(c) The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Trustee on each Interest
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement.
In determining LIBOR, any Pass-Through Rate for the LIBOR
Certificates, any Interest Settlement Rate, or any Reserve Interest Rate,
the Trustee may conclusively rely and shall be protected in relying upon
the offered quotations (whether written, oral or on the Dow Xxxxx Markets)
from the BBA designated banks, the Reference Banks or the New York City
banks as to LIBOR, the Interest Settlement Rate or the Reserve Interest
Rate, as appropriate, in effect from time to time. The Trustee shall not
have any liability or responsibility to any Person for (i) the Trustee's
selection of New York City banks for purposes of determining any Reserve
Interest Rate or (ii) its inability, following a good-faith reasonable
effort, to obtain such quotations from, the BBA designated banks, the
Reference Banks or the New York City banks or to determine such arithmetic
mean, all as provided for in this Section 4.7.
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The establishment of LIBOR and each Pass-Through Rate for the
LIBOR Certificates by the Trustee shall (in the absence of manifest
error) be final, conclusive and binding upon each Holder of a
Certificate and the Trustee.
ARTICLE V
THE CERTIFICATES
SECTION 5.1 The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples in excess thereof (except that one Certificate
in each Class may be issued in a different amount which must be in excess of the
applicable minimum denomination) and aggregate denominations per Class set forth
in the Preliminary Statement.
Subject to Section 9.2 hereof respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such Holder at a bank
or other entity having appropriate facilities therefor, if (i) such Holder has
so notified the Trustee at least five Business Days prior to the related Record
Date and (ii) such Holder shall hold (A) 100% of the Class Certificate Balance
of any Class of Certificates or (B) Certificates of any Class with aggregate
principal Denominations of not less than $1,000,000 or (y) by check mailed by
first class mail to such Certificateholder at the address of such Holder
appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer. Certificates bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the countersignature and delivery of such Certificates
or did not hold such offices at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their countersignature. On the
Closing Date, the Trustee shall countersign the Certificates to be issued at the
direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee on a
continuous basis, an adequate inventory of Certificates to facilitate transfers.
SECTION 5.2 Certificate Register; Registration of Transfer and Exchange of
Certificates.
(a) The Trustee shall maintain, or cause to be maintained in accordance
with the provisions of Section 5.6 hereof, a Certificate Register for
the Trust Fund in which, subject to the provisions of subsections (b)
and (c) below and to such reasonable regulations as it may prescribe,
the Trustee shall provide for the
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registration of Certificates and of transfers and exchanges of
Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest
upon surrender of the Certificates to be exchanged at the office or
agency of the Trustee. Whenever any Certificates are so surrendered
for exchange, the Trustee shall execute, authenticate, and deliver the
Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly
executed by the Holder thereof or his attorney duly authorized in
writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a
sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Certificates
may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Trustee
in accordance with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under
the Securities Act and any applicable state securities laws or is
exempt from the registration requirements under said Act and such
state securities laws. In the event that a transfer is to be made in
reliance upon an exemption from the Securities Act and such laws, in
order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the
Trustee in writing the facts surrounding the transfer in substantially
the forms set forth in Exhibit I (the "Transferor Certificate") and
(i) deliver a letter in substantially the form of either Exhibit J
(the "Investment Letter") or Exhibit K (the "Rule 144A Letter") or
(ii) there shall be delivered to the Trustee at the expense of the
transferor an Opinion of Counsel that such transfer may be made
pursuant to an exemption from the Securities Act. The Depositor shall
provide to any Holder of a Private Certificate and any prospective
transferee designated by any such Holder, information regarding the
related Certificates and the Mortgage Loans and such other information
as shall be necessary to satisfy the condition to eligibility set
forth in Rule 144A(d)(4) for transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A. The Trustee and the
Master Servicer shall cooperate with the Depositor in providing the
Rule 144A information referenced in the preceding sentence,
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including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund
as the Depositor shall reasonably request to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trustee and
the Depositor, the Seller and the Master Servicer against any liability
that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless
the Trustee shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trustee (in the event such Certificate is a Private
Certificate, such requirement is satisfied only by the Trustee's receipt of
a representation letter from the transferee substantially in the form of
Exhibit J or Exhibit K), to the effect that such transferee is not an
employee benefit plan or arrangement subject to Section 406 of ERISA or a
plan or arrangement subject to Section 4975 of the Code, nor a person
acting on behalf of any such plan or arrangement, nor using the assets of
any such plan or arrangement to effect such transfer, (ii) in the case of a
Private Certificate or a Residual Certificate, if the purchaser is an
insurance company, a representation that the purchaser is an insurance
company which is purchasing such Certificates with funds contained in an
"insurance company general account" (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and
that the purchase and holding of such Certificates are covered under PTCE
95-60 or (iii) in the case of any such ERISA-Restricted Certificate
presented for registration in the name of an employee benefit plan subject
to ERISA, or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments), or a trustee of any
such plan or any other person acting on behalf of any such plan or
arrangement, or using such plan's or arrangement's assets, an Opinion of
Counsel satisfactory to the Trustee, which Opinion of Counsel shall not be
an expense of either the Trustee or the Trust Fund, addressed to the
Trustee to the effect that the purchase or holding of such ERISA-Restricted
Certificate 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 and the Code and will not subject the Trustee to any obligation in
addition to those expressly undertaken in this Agreement or to any
liability. Notwithstanding anything else to the contrary herein, any
purported transfer of an ERISA-Restricted Certificate to or on behalf of an
employee benefit plan subject to ERISA or to the Code without the delivery
to the Trustee of an Opinion of Counsel satisfactory to the Trustee as
described above shall be void and of no effect.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Trustee shall be under no liability to any Person
for any registration of transfer of any ERISA-Restricted Certificate that
is in fact not permitted by this Section 5.2(b) or for making any payments
due on such Certificate to the Holder thereof or taking any other action
with respect to such Holder under the
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provisions of this Agreement so long as the transfer was registered by
the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition
of such Ownership Interest to have agreed to be bound by the following
provisions, and the rights of each Person acquiring any Ownership
Interest in a Residual Certificate are expressly subject to the
following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in
its status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and
the Trustee shall not register the Transfer of any Residual
Certificate unless, in addition to the certificates required to
be delivered to the Trustee under subparagraph (b) above, the
Trustee shall have been furnished with an affidavit (a "Transfer
Affidavit") of the initial owner or the proposed transferee in
the form attached hereto as Exhibit H.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer
Affidavit from any other Person to whom such Person attempts to
Transfer its Ownership Interest in a Residual Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such
Person is acting as nominee, trustee or agent in connection with
any Transfer of a Residual Certificate and (C) not to Transfer
its Ownership Interest in a Residual Certificate or to cause the
Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is
not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Residual Certificate in violation of the provisions of this
Section 5.2(c) shall be absolutely null and void and shall vest
no rights in the purported Transferee. If any purported
transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 5.2(c), then the
last preceding Permitted Transferee shall be restored to all
rights as Holder thereof retroactive to the date of registration
of Transfer of such Residual Certificate. 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 Section 5.2(b) and this Section 5.2(c) or for making any
payments due on such Certificate to the Holder thereof or taking
any other action with respect to such Holder under the
provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit,
Transferor Certificate and either the Rule 144A Letter or the
Investment Letter. The Trustee shall be entitled but not
obligated to
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recover from any Holder of a Residual Certificate that was in
fact not a Permitted Transferee at the time it became a Holder
or, at such subsequent time as it became other than a Permitted
Transferee, all payments made on such Residual Certificate at and
after either such time. Any such payments so recovered by the
Trustee shall be paid and delivered by the Trustee to the last
preceding Permitted Transferee of such Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information
necessary to compute any tax imposed under Section 860E(e) of the
Code as a result of a Transfer of an Ownership Interest in a
Residual Certificate to any Holder who is not a Permitted
Transferee.
The restrictions on Transfers of a Residual Certificate set forth
in this Section 5.2(c) shall cease to apply (and the applicable
portions of the legend on a Residual Certificate may be deleted) with
respect to Transfers occurring after delivery to the Trustee of an
Opinion of Counsel, which Opinion of Counsel shall not be an expense
of the Trust Fund, the Trustee, the Seller or the Master Servicer, to
the effect that the elimination of such restrictions will not cause
any REMIC created hereunder to fail to qualify as a REMIC at any time
that the Certificates are outstanding or result in the imposition of
any tax on the Trust Fund, a Certificateholder or another Person. Each
Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which,
based on an Opinion of Counsel furnished to the Trustee, is reasonably
necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee
and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted
Transferee to a Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions referred
to above in this Section 5.2 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee
and at all times: (i) registration of the Certificates may not be
transferred by the Trustee except to another Depository; (ii) the
Depository shall maintain book-entry records with respect to the
Certificate Owners and with respect to ownership and transfers of such
Book-Entry Certificates; (iii) ownership and transfers of registration
of the Book-Entry Certificates on the books of the Depository shall be
governed by applicable rules established by the Depository; (iv) the
Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal
with the Depository, Depository Participants and indirect
participating firms as representatives of the Certificate Owners of
the Book-Entry Certificates for purposes of exercising the rights of
holders under this Agreement, and requests and directions for and
votes of such representatives shall
74
not be deemed to be inconsistent if they are made with respect to
different Certificate Owners; and (vi) the Trustee may rely and shall
be fully protected in relying upon information furnished by the
Depository with respect to its Depository Participants and furnished
by the Depository Participants with respect to indirect participating
firms and persons shown on the books of such indirect participating
firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate
Owner. Each Depository Participant shall only transfer Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms
for which it acts as agent in accordance with the Depository's normal
procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository, and (ii) the Trustee or
the Depositor is unable to locate a qualified successor, (y) the
Depositor at its option advises the Trustee in writing that it elects
to terminate the book-entry system through the Depository or (z) after
the occurrence of an Event of Default, Certificate Owners representing
at least 51% of the Class Certificate Balance of the Book-Entry
Certificates together advise the Trustee and the Depository through
the Depository Participants in writing that the continuation of a
book-entry system through the Depository is no longer in the best
interests of the Certificate Owners, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any
such event and of the availability of definitive, fully-registered
Certificates (the "Definitive Certificates") to Certificate Owners
requesting the same. Upon surrender to the Trustee of the related
Class of Certificates by the Depository, accompanied by the
instructions from the Depository for registration, the Trustee shall
issue the Definitive Certificates. Neither the Master Servicer, the
Depositor nor the Trustee shall be liable for any delay in delivery of
such instruction and each may conclusively rely on, and shall be
protected in relying on, such instructions. The Master Servicer shall
provide the Trustee with an adequate inventory of certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon
the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Depository shall be
deemed to be imposed upon and performed by the Trustee, to the extent
applicable with respect to such Definitive Certificates and the
Trustee shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder; provided that the Trustee shall not by
virtue of its assumption of such obligations become liable to any
party for any act or failure to act of the Depository.
SECTION 5.3 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate and (b) there is delivered to the Master Servicer and the
Trustee such security or indemnity as may be required
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by them to save each of them harmless, then, in the absence of notice to the
Trustee that such Certificate has been acquired by a bona fide purchaser, the
Trustee shall execute, countersign and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of
like Class, tenor and Percentage Interest. In connection with the issuance of
any new Certificate under this Section 5.3, the Trustee may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. Any replacement Certificate issued
pursuant to this Section 5.3 shall constitute complete and indefeasible evidence
of ownership, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 5.4 Persons Deemed Owners.
The Master Servicer, the Trustee and any agent of the Master Servicer or
the Trustee may treat the Person in whose name any Certificate is registered as
the owner of such Certificate for the purpose of receiving distributions as
provided in this Agreement and for all other purposes whatsoever, and neither
the Master Servicer the Trustee nor any agent of the Master Servicer or the
Trustee shall be affected by any notice to the contrary.
SECTION 5.5 Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders (a) request such information in writing
from the Trustee, (b) state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, and (c) provide a copy of the communication which
such Certificateholders propose to transmit, or if the Depositor or Master
Servicer shall request such information in writing from the Trustee, then the
Trustee shall, within ten Business Days after the receipt of such request,
provide the Depositor, the Master Servicer or such Certificateholders at such
recipients' expense the most recent list of the Certificateholders of such Trust
Fund held by the Trustee, if any. The Depositor and every Certificateholder, by
receiving and holding a Certificate, agree that the Trustee shall not be held
accountable by reason of the disclosure of any such information as to the list
of the Certificateholders hereunder, regardless of the source from which such
information was derived.
SECTION 5.6 Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its expense an
office or offices or agency or agencies in New York City where Certificates may
be surrendered for registration of transfer or exchange. The Trustee initially
designates its Corporate Trust Office for such purposes. The Trustee will give
prompt written notice to the Certificateholders of any change in such location
of any such office or agency.
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ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.1 Respective Liabilities of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them herein.
SECTION 6.2 Merger or Consolidation of the Depositor or the Master
Servicer.
The Depositor and the Master Servicer will each keep in full effect its
existence, rights and franchises as a corporation under the laws of the United
States or under the laws of one of the states thereof and will each obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, or any of the Mortgage Loans and
to perform its respective duties under this Agreement.
Any Person into which the Depositor or the Master Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Depositor or the Master Servicer shall be a party, or any person succeeding
to the business of the Depositor or the Master Servicer, shall be the successor
of the Depositor or the Master Servicer, as the case may be, hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding; provided,
however, that the successor or surviving Person to the Master Servicer shall be
qualified to sell mortgage loans to, and to service mortgage loans on behalf of,
FNMA or FHLMC.
SECTION 6.3 Limitation on Liability of the Depositor, the Seller, the
Master Servicer and Others.
None of the Depositor, the Seller, the Master Servicer or any of the
directors, officers, employees or agents of the Depositor, the Seller or the
Master Servicer shall be under any liability to the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Seller, the Master Servicer
or any such Person against any breach of representations or warranties made by
it herein or protect the Depositor, the Seller, the Master Servicer or any such
Person from any liability which would otherwise be imposed by reasons of willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties hereunder. The Depositor,
the Seller, the Master Servicer and any director, officer, employee or agent of
the Depositor, the Seller or the Master Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Seller, the Master
Servicer and any director, officer, employee or agent of the Depositor, the
Seller or the Master Servicer shall be indemnified by the Trust Fund and held
harmless against any loss, liability or expense incurred in connection with any
audit, controversy or judicial proceeding relating to a governmental taxing
authority or any legal action relating to this Agreement or the Certificates,
other than any loss, liability or expense related to
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any specific Mortgage Loan or Mortgage Loans (except as any such loss, liability
or expense shall be otherwise reimbursable pursuant to this Agreement) and any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or gross negligence in the performance of duties hereunder or by reason of
reckless disregard of obligations and duties hereunder. None of the Depositor,
the Seller or the Master Servicer shall be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its respective
duties hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that any of the Depositor, the Seller or the
Master Servicer may in its discretion undertake any such action that it may deem
necessary or desirable in respect of this Agreement and the rights and duties of
the parties hereto and interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Seller and the Master Servicer shall be
entitled to be reimbursed therefor out of the Certificate Account.
SECTION 6.4 Limitation on Resignation of Master Servicer.
The Master Servicer shall not resign from the obligations and duties hereby
imposed on it except (a) upon appointment of a successor servicer and receipt by
the Trustee of a letter from each Rating Agency that such a resignation and
appointment will not result in a downgrading of the rating of any of the
Certificates, or (b) upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination under clause (b)
permitting the resignation of the Master Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Trustee. No such resignation
shall become effective until the Trustee or a successor master servicer shall
have assumed the Master Servicer's responsibilities, duties, liabilities and
obligations hereunder.
ARTICLE VII
DEFAULT
SECTION 7.1 Events of Default.
"Event of Default," wherever used herein, means any one of the following
events:
(i) any failure by the Master Servicer to deposit in the Certificate
Account or remit to the Trustee any payment required to be made
under the terms of this Agreement, which failure shall continue
unremedied for five days after the date upon which written notice
of such failure shall have been given to the Master Servicer by
the Trustee or the Depositor or to the Master Servicer and the
Trustee by the Holders of Certificates having not less than 25%
of the Voting Rights evidenced by the Certificates; or
(ii) any failure by the Master Servicer to observe or perform in any
material respect any other of the covenants or agreements on the
part of the Master Servicer contained in this Agreement, which
failure materially affects the rights of Certificateholders,
which failure continues unremedied for a period of 60 days after
the date on which written notice of such failure shall have been
given to the Master Servicer by the Trustee or the
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Depositor, or to the Master Servicer and the Trustee by the
Holders of Certificates evidencing not less than 25% of the
Voting Rights evidenced by the Certificates; provided, however,
that the 60-day cure period shall not apply to the initial
delivery of the Mortgage File for Delay Delivery Mortgage Loans
nor the failure to substitute or repurchase in lieu thereof; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or
for the winding-up or liquidation of its affairs, shall have been
entered against the Master Servicer and such decree or order
shall have remained in force undischarged or unstayed for a
period of 60 consecutive days; or
(iv) the Master Servicer shall consent to the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of
or relating to the Master Servicer or all or substantially all of
the property; or
(v) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take
advantage of, or commence a voluntary case under, any applicable
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its
obligations.
If an Event of Default described in clauses (i) to (v) of this Section
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, the Trustee may, or at the direction of
the Holders of Certificates evidencing not less than 66 2/3% of the Voting
Rights evidenced by the Certificates, the Trustee shall by notice in writing to
the Master Servicer (with a copy to each Rating Agency), terminate all of the
rights and obligations of the Master Servicer under this Agreement and in and to
the Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder. On and after the receipt by the Master Servicer of
such written notice, all authority and power of the Master Servicer hereunder,
whether with respect to the Mortgage Loans or otherwise, shall pass to and be
vested in the Trustee. The Trustee, in its capacity as successor to the Master
Servicer, shall thereupon make any Advance which the Master Servicer failed to
make subject to Section 4.1 hereof. The Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Master Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. Unless expressly provided in such written notice, no such termination
shall affect any obligation of the Master Servicer to pay amounts owed pursuant
to Article VIII. The Master Servicer agrees to cooperate with the Trustee in
effecting the termination of the Master Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer to the Trustee of all
cash amounts which shall at the time be credited to the Certificate Account, or
thereafter be received with respect to the
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Mortgage Loans. All expenses incurred in the transferring of the servicing
duties from the Master Servicer to a Successor Servicer shall be paid by the
Master Servicer, and if not paid by the Master Servicer, shall be paid from
amounts on deposit in the Certificate Account.
Notwithstanding any termination of the activities of the Master Servicer
hereunder, the Master Servicer shall be entitled to receive, out of any late
collection of a Scheduled Payment on a Mortgage Loan which was due prior to the
notice terminating such Master Servicer's rights and obligations as Master
Servicer hereunder and received after such notice, that portion thereof to which
such Master Servicer would have been entitled pursuant to Sections 3.8(a)(i)
through (viii),and any other amounts payable to such Master Servicer hereunder
the entitlement to which arose prior to the termination of its activities
hereunder.
SECTION 7.2 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of termination
pursuant to Section 7.1 hereof, the Trustee shall, subject to and to the extent
provided in Section 3.4, be the successor to the Master Servicer in its capacity
as master servicer under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Master Servicer by the terms and
provisions hereof and applicable law including the obligation to make Advances
pursuant to Section 4.1. As compensation therefor, the Trustee shall be entitled
to all funds relating to the Mortgage Loans that the Master Servicer would have
been entitled to charge to the Certificate Account or Distribution Account if
the Master Servicer had continued to act hereunder. Notwithstanding the
foregoing, if the Trustee has become the successor to the Master Servicer in
accordance with Section 7.1 hereof, the Trustee may, if it shall be unwilling to
so act, or shall, if it is prohibited by applicable law from making Advances
pursuant to Section 4.1 hereof or if it is otherwise unable to so act, appoint,
or petition a court of competent jurisdiction to appoint, any established
mortgage loan servicing institution the appointment of which does not adversely
affect the then current rating of the Certificates by each Rating Agency as the
successor to the Master Servicer hereunder in the assumption of all or any part
of the responsibilities, duties or liabilities of the Master Servicer hereunder.
Any successor to the Master Servicer shall be an institution which is a FNMA and
FHLMC approved seller/servicer in good standing, which has a net worth of at
least $10,000,000, and which is willing to service the Mortgage Loans and
executes and delivers to the Depositor and the Trustee an agreement accepting
such delegation and assignment, which contains an assumption by such Person of
the rights, powers, duties, responsibilities, obligations and liabilities of the
Master Servicer (other than liabilities of the Master Servicer under Section 6.3
hereof incurred prior to termination of the Master Servicer under Section 7.1),
with like effect as if originally named as a party to this Agreement; and
provided further that each Rating Agency acknowledges that its rating of the
Certificates in effect immediately prior to such assignment and delegation will
not be qualified or reduced, as a result of such assignment and delegation.
Pending appointment of a successor to the Master Servicer hereunder, the
Trustee, unless the Trustee is prohibited by law from so acting, shall, subject
to Section 3.4 hereof, act in such capacity as provided above. 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 the Master Servicing Fee permitted the Master Servicer
hereunder. The Trustee and such successor shall take such action, consistent
with this
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Agreement, as shall be necessary to effectuate any such succession. Neither the
Trustee nor any other successor master servicer shall be deemed to be in default
hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof or any failure to perform, or any
delay in performing, any duties or responsibilities hereunder, in either case
caused by the failure of the Master Servicer to deliver or provide, or any delay
in delivering or providing, any cash, information, documents or records to it.
Any successor to the Master Servicer as master servicer shall give notice
to the Mortgagors of such change of servicer and shall, during the term of its
service as master servicer maintain in force the policy or policies that the
Master Servicer is required to maintain pursuant to Section 6.5.
SECTION 7.3 Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the Master
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders notice of
each such Event of Default hereunder known to the Trustee, unless such
Event of Default shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.1 Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge and after the curing of
all Events of Default that may have occurred, shall undertake to perform such
duties and only such duties as are specifically set forth in this Agreement. In
case an Event of Default of which a Responsible Officer of the Trustee has
actual knowledge has occurred and remains uncured, the Trustee shall exercise
such of the rights and powers vested in it by this Agreement, and use the same
degree of care and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that 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. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Trustee shall notify the Certificateholders of such
instrument in the event that the Trustee, after so requesting, does not receive
a satisfactorily corrected instrument.
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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) unless an Event of Default of which a Responsible Officer of the
Trustee has actual knowledge shall have occurred and be
continuing, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement,
the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in
this Agreement, no implied covenants or obligations shall be
read into this Agreement against the Trustee and the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming
to the requirements of this Agreement which it believed in good
faith to be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
(ii) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be finally proven that the Trustee
was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be 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
evidencing not less than 25% of the Voting Rights of
Certificates relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee under this Agreement;
(iv) the Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in 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 repayment of such funds or adequate indemnity against
such risk or liability is not 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 Master Servicer
under this Agreement except during such time, if any, as the
Trustee shall be the successor to, and be vested with the
rights, duties, powers and privileges of, the Master Servicer;
and
(v) without limiting the generality of this Section 8.1, the Trustee
shall have no duty (A) to see to any recording, filing, or
depositing of this Agreement or any agreement referred to herein
or any financing statement or continuation statement evidencing
a security interest, or to see to the maintenance of any such
recording or filing or deposit or to any rerecording, refiling
or redepositing of any thereof, (B) to see to any
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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
leviedagainst, any part of the Trust Fund other than from funds
available in the Distribution Account (D) to confirm or verify
the contents of any reports or certificates of the Servicer
delivered to the Trustee pursuant to this Agreement believed by
the Trustee to be genuine and to have been signed or presented
by the proper party or parties.
SECTION 8.2 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.1:
(i) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Trustee shall
have no responsibility to ascertain or confirm the genuineness
of any signature of any such party or parties;
(ii) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial
advisers or accountants and any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good
faith and in accordance with such Opinion of Counsel;
(iii) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(iv) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document,
unless requested in writing so to do by Holders of Certificates
evidencing not less than 25% of the Voting Rights allocated to
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 assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require indemnity
satisfactory to the Trustee against such cost, expense or
liability as a condition to taking any such action. The
reasonable expense of every such examination shall be paid by
the Master Servicer or, if paid by the Trustee, shall be repaid
by the Master Servicer upon demand from the Servicer's own
funds.
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(v) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or
through agents, accountants or attorneys and the Trustee shall
not be responsible for any misconduct or negligence on the part
of such agent, accountant or attorney appointed by the Trustee
with due care;
(vi) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of
its rights or powers hereunder if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it;
(vii) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of
the investment security);
(viii) the Trustee shall not be deemed to have knowledge of an Event
of Default until a Responsible Officer of the Trustee shall
have received written notice thereof and in the absence of such
notice, the Trustee may conclusively assume that there is no
Event of Default;
(ix) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of
the Certificateholders, pursuant to the provisions of this
Agreement, unless such Certificateholders shall have offered to
the Trustee reasonable security or indemnity satisfactory to
the Trustee against the costs, expenses and liabilities which
may be incurred therein or thereby;
(x) 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
(xi) 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 8.3 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor or the Seller, as the case may be, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document other than with respect
to the Trustee's execution and counter-signature of the Certificates. The
Trustee shall not be accountable for the use or application by the Depositor or
the Master Servicer of any funds
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paid to the Depositor or the Master Servicer in respect of the Mortgage Loans or
deposited in or withdrawn from the Certificate Account by the Depositor or the
Master Servicer.
SECTION 8.4 Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates with the same rights as it would have if it were not the
Trustee.
SECTION 8.5 Trustee's Fees and Expenses.
The Trustee, as compensation for its activities prior to making the
distributions pursuant to Section 4.2 hereunder, shall be entitled to withdraw
from the Distribution Account on each Distribution Date an amount equal to the
Trustee Fee for such Distribution Date. The Trustee and any director, officer,
employee or agent of the Trustee shall be indemnified by the Master Servicer and
held harmless against any loss, liability or expense (including reasonable
attorney's fees) (i) incurred in connection with any claim or legal action
relating to (a) this Agreement, (b) the Certificates or (c) in connection with
the performance of any of the Trustee's duties hereunder, other than any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of any of the Trustee's duties hereunder or
incurred by reason of any action of the Trustee taken at the direction of the
Certificateholders and (ii) resulting from any error in any tax or information
return prepared by the Master Servicer. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of the Trustee
hereunder. Without limiting the foregoing, the Master Servicer covenants and
agrees, except as otherwise agreed upon in writing by the Depositor and the
Trustee, and except for any such expense, disbursement or advance as may arise
from the Trustee's negligence, bad faith or willful misconduct, to pay or
reimburse the Trustee, for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this
Agreement with respect to: (A) the reasonable compensation and the expenses and
disbursements of its counsel not associated with the closing of the issuance of
the Certificates, (B) the reasonable compensation, expenses and disbursements of
any accountant, engineer or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage such persons to perform acts
or services hereunder and (C) printing and engraving expenses in connection with
preparing any Definitive Certificates. Except as otherwise provided herein, the
Trustee shall not be entitled to payment or reimbursement for any routine
ongoing expenses incurred by the Trustee in the ordinary course of its duties as
Trustee, Registrar, Tax Matters Person or Paying Agent hereunder or for any
other expenses.
SECTION 8.6 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of a state or the United States of
America, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause either of the Rating Agencies to reduce their respective then current
ratings of the Certificates (or having provided such security from time to time
as is sufficient to avoid such reduction). If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or
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examining authority, then for the purposes of this Section 8.6 the combined
capital and surplus of such corporation or association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 8.6, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.7 hereof.
The entity serving as Trustee may have normal banking and trust relationships
with the Depositor and its affiliates or the Master Servicer and its affiliates;
provided, however, that such entity cannot be an affiliate of the Master
Servicer other than the Trustee in its role as successor to the Master Servicer.
SECTION 8.7 Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice of resignation to the Depositor and the Master
Servicer and each Rating Agency not less than 60 days before the date specified
in such notice when, subject to Section 8.8, such resignation is to take effect,
and acceptance by a successor trustee in accordance with Section 8.8 meeting the
qualifications set forth in Section 8.6. If no successor trustee meeting such
qualifications shall have been so appointed and have accepted appointment within
30 days after the giving of such notice or resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.6 hereof and shall fail to resign after written
request thereto by the Depositor, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or a tax
is imposed with respect to the Trust Fund by any state in which the Trustee or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different trustee, then the Depositor or the Master Servicer
may remove the Trustee and appoint a successor trustee by written instrument, in
triplicate, one copy of which instrument shall be delivered to the Trustee, one
copy of which shall be delivered to the Master Servicer and one copy to the
successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered by the successor Trustee to the Master Servicer, one complete set
to the Trustee so removed and one complete set to the successor so appointed.
Notice of any removal of the Trustee shall be given to each Rating Agency by the
Successor Trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 8.7 shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 8.8 hereof.
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SECTION 8.8 Successor Trustee.
Any successor trustee appointed as provided in Section 8.7 hereof shall
execute, acknowledge and deliver to the Depositor and to its predecessor trustee
and the Master Servicer an instrument accepting such appointment hereunder and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor, the Master Servicer and the predecessor
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for more fully and certainly vesting and confirming
in the successor trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this Section
8.8 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.6 hereof and its appointment shall
not adversely affect the then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.8, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates. If the Depositor fails to mail such
notice within 10 days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed at the expense of the
Depositor.
SECTION 8.9 Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such corporation shall be eligible under
the provisions of Section 8.6 hereof without the execution or filing of any
paper or further act on the part of any of the parties hereto, anything herein
to the contrary notwithstanding.
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the Master
Servicer and the Trustee may consider necessary or desirable. If the Master
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request to do so, or in
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the case an Event of Default shall have occurred and be continuing, the Trustee
alone shall have the power to make such appointment. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 8.6 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 8.8.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and such
separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act
separately without the Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the applicable
Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by reason
of any act or omission of any other trustee hereunder and such
appointment shall not, and shall not be deemed to, constitute
any such separate trustee or co-trustee as agent of the Trustee;
(iii) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(iv) The Master Servicer, and not the Trustee, shall be liable for
the payment of reasonable compensation, reimbursement and
indemnification to any such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Master Servicer and the Depositor.
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Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 8.11 Tax Matters.
It is intended that the assets with respect to which each REMIC election is
to be made, as set forth in the preliminary statement shall constitute, and that
the conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of any such REMIC and that in such
capacity it shall: (a) prepare and file, or cause to be prepared and filed, in a
timely manner, a U.S. Real Estate Mortgage Investment Conduit Income Tax Return
(Form 1066 or any successor form adopted by the Internal Revenue Service) and
prepare and file or cause to be prepared and filed with the Internal Revenue
Service and applicable state or local tax authorities income tax or information
returns for each taxable year with respect to any such REMIC, containing such
information and at the times and in the manner as may be required by the Code or
state or local tax laws, regulations, or rules, and furnish or cause to be
furnished to Certificateholders the schedules, statements or information at such
times and in such manner as may be required thereby; (b) within thirty days of
the Closing Date, furnish or cause to be furnished to the Internal Revenue
Service, on Forms 8811 or as otherwise may be required by the Code, the name,
title, address, and telephone number of the person that the Holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the Code; (c) make or
cause to be made elections that such assets be treated as a REMIC on the federal
tax return for its first taxable year (and, if necessary, under applicable state
law); (d) prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders and to the Internal Revenue Service and, if necessary, state
tax authorities, all information returns and reports as and when required to be
provided to them in accordance with the REMIC Provisions, including without
limitation, the calculation of any original issue discount using the prepayment
assumption; (e) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee, or an agent (including a broker, nominee or other middleman) of a
Non-Permitted Transferee, or a pass-through entity in which a Non-Permitted
Transferee is the record holder of an interest (the reasonable cost of computing
and furnishing such information may be charged to the Person liable for such
tax); (f) to the extent that they are under its control conduct matters relating
to such assets at all times that any Certificates are outstanding so as to
maintain the status as a REMIC under the REMIC Provisions; (g) not knowingly or
intentionally take any action or omit to take any action that would cause the
termination of the REMIC status; (h) pay, from the sources specified in the last
paragraph of this Section 8.11, the amount of any federal or state tax,
including prohibited transaction taxes as described below, imposed on any such
REMIC prior to its termination when and as the same shall be due and payable
(but such obligation shall not prevent the Trustee or any other appropriate
Person from contesting any such tax in appropriate proceedings and shall
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not prevent the Trustee from withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings); (i) ensure that federal, state or
local income tax or information returns shall be signed by the Trustee or such
other person as may be required to sign such returns by the Code or state or
local laws, regulations or rules; (j) maintain records relating to any such
REMIC, including but not limited to the income, expenses, assets and liabilities
thereof and the fair market value and adjusted basis of the assets determined at
such intervals as may be required by the Code, as may be necessary to prepare
the foregoing returns, schedules, statements or information; and (k) as and when
necessary and appropriate, represent any such REMIC in any administrative or
judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable year of
any such REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of any such
REMIC, and otherwise act on behalf of any such REMIC in relation to any tax
matter or controversy involving it.
In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Trustee
within ten (10) days after the Closing Date all information or data that the
Trustee requests in writing and determines to be relevant for tax purposes to
the valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows of
the Certificates and the Mortgage Loans. Thereafter, the Depositor shall provide
to the Trustee promptly upon written request therefor, any such additional
information or data that the Trustee may, from time to time, reasonably request
in order to enable the Trustee to perform its duties as set forth herein. The
Depositor hereby indemnifies the Trustee for any losses, liabilities, damages,
claims or expenses of the Trustee arising from any errors or miscalculations of
the Trustee that result from any failure of the Depositor to provide, or to
cause to be provided, accurate information or data to the Trustee on a timely
basis.
In the event that any tax is imposed on "prohibited transactions" of
any REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of any REMIC as defined in Section 860G(c) of the Code, on
any contribution to any REMIC after the Startup Day pursuant to Section 860G(d)
of the Code, or any other tax is imposed, if not paid as otherwise provided for
herein, such tax shall be paid by (i) the Trustee, if any such other tax arises
out of or results from a breach by the Trustee of any of its obligations under
this Agreement which breach was caused by its negligence or willful misconduct,
(ii) the Master Servicer, in the case of any such minimum tax, or if such tax
arises out of or results from a breach by the Master Servicer or Seller of any
of their obligations under this Agreement, (iii) the Seller, if any such tax
arises out of or results from the Seller's obligation to repurchase a Mortgage
Loan pursuant to Section 2.2 or 2.3 or (iv) in all other cases, or in the event
that the Trustee, the Master Servicer or the Seller fails to honor its
obligations under the preceding clauses (i), (ii) or (iii), any such tax will be
paid with amounts otherwise to be distributed to the Certificateholders, as
provided in Section 3.8(b).
SECTION 8.12 Periodic Filings.
Pursuant to written instructions from the Depositor, the Trustee shall
prepare, execute and file all periodic reports required under the Securities
Exchange Act of 1934 in conformity with the terms of the "no-action" relief
granted by the SEC to issuers of asset-backed securities such
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as the Certificates. In connection with the preparation and filing of such
periodic reports, the Depositor and the Master Servicer shall timely provide to
the Trustee all material information available to them which is required to be
included in such reports and not known to them to be in the possession of the
Trustee and such other information as the Trustee reasonably may request from
either of them and otherwise reasonably shall cooperate with the Trustee. The
Trustee shall have no liability with respect to any failure to properly prepare
or file such periodic reports resulting from or relating to the Trustee's
inability or failure to obtain any information not resulting from its own
negligence or willful misconduct.
ARTICLE IX
TERMINATION
SECTION 9.1 Termination upon Liquidation or Purchase of all Mortgage
Loans.
Subject to Section 9.3, the obligations and responsibilities of the
Depositor, the Master Servicer and the Trustee created hereby with respect to
the Trust Fund shall terminate upon the earlier of (a) the purchase by the
Master Servicer of all Mortgage Loans (and REO Properties) remaining in the
Trust Fund at the price equal to the sum of (i) 100% of the Stated Principal
Balance of each Mortgage Loan (other than a Mortgage Loan that has been
foreclosed and subject to clause (ii)) plus one month's accrued interest thereon
at the applicable Adjusted Mortgage Rate and (ii) the lesser of (x) the
appraised value of any REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the Master
Servicer at the expense of the Master Servicer and (y) the Stated Principal
Balance of each Mortgage Loan related to any REO Property, in each case plus
accrued and unpaid interest thereon at the applicable Adjusted Mortgage Rate and
(b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to this Agreement. In
no event shall the trusts created hereby continue beyond the earlier of (i) the
expiration of 21 years from the death of the survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof, and (ii) the Latest Possible Maturity Date.
The right to purchase all Mortgage Loans and REO Properties pursuant to clause
(a) above shall be conditioned upon the Pool Principal Balance, at the time of
any such repurchase, aggregating less than ten percent of the aggregate Cut-off
Date Principal Balance of the Mortgage Loans.
SECTION 9.2 Final Distribution on the Certificates.
If on any Determination Date, the Master Servicer determines that there
are no Outstanding Mortgage Loans and no other funds or assets in the Trust Fund
other than the funds in the Certificate Account, the Master Servicer shall
direct the Trustee promptly to send a final distribution notice to each
Certificateholder. If the Master Servicer elects to terminate the Trust Fund
pursuant to clause (a) of Section 9.1, at least 20 days prior to the date notice
is to be mailed to the affected Certificateholders, the Master Servicer shall
notify the Depositor and the Trustee of the date the Master Servicer intends to
terminate the Trust Fund and of the applicable repurchase price of the Mortgage
Loans and REO Properties.
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Notice of any termination of the Trust Fund, specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution and cancellation, shall be given promptly
by the Trustee by letter to Certificateholders mailed not earlier than the 10th
day and no later than the 15th day of the month next preceding the month of such
final distribution. Any such notice shall specify (a) the Distribution Date upon
which final distribution on the Certificates will be made upon presentation and
surrender of Certificates at the office therein designated, (b) the amount of
such final distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office therein
specified. The Master Servicer will give such notice to each Rating Agency at
the time such notice is given to Certificateholders.
In the event such notice is given, the Master Servicer shall cause all
funds in the Certificate Account to be remitted to the Trustee for deposit in
the Distribution Account on the Business Day prior to the applicable
Distribution Date in an amount equal to the final distribution in respect of the
Certificates. Upon such final deposit with respect to the Trust Fund and the
receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Master Servicer the Mortgage Files for the Mortgage
Loans.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class, in the order
set forth in Section 4.2 hereof, on the final Distribution Date, in the case of
the Certificateholders, in proportion to their respective Percentage Interests,
with respect to Certificateholders of the same Class, an amount equal to (i) as
to each Class of Regular Certificates, the Class Certificate Balance thereof
plus accrued interest thereon (or on their Notional Principal Amount, if
applicable) in the case of an interest bearing Certificate, and (ii) as to the
Residual Certificates, the amount, if any, which remains on deposit in the
Distribution Account (other than the amounts retained to meet claims) after
application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Trustee may take appropriate steps,
or may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain a part of
the Trust Fund. If within one year after the second notice all Certificates
shall not have been surrendered for cancellation, the Holders of each of the
Class A-RU and Class A-RL Certificates shall be entitled to all unclaimed funds
and other assets of the Trust Fund, held for distribution to such
Certificateholders, which remain subject hereto.
SECTION 9.3 Additional Termination Requirements.
(a) In the event the Master Servicer exercises its purchase option as
provided in Section 9.1, the Trust Fund and each REMIC created
hereunder shall be
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terminated in accordance with the following additional
requirements, unless the Trustee has been supplied with an
Opinion of Counsel, at the expense of the Master Servicer, to the
effect that the failure to comply with the requirements of this
Section 9.3 will not (i) result in the imposition of taxes on
"prohibited transactions" on the REMIC as defined in Section 860F
of the Code, or (ii) cause any REMIC to fail to qualify as a
REMIC at any time that any Certificates are outstanding:
(1) Within 90 days prior to the final Distribution
Date set forth in the notice given by the Master Servicer
under Section 9.2, the Master Servicer shall prepare and the
Trustee, at the expense of the "tax matters person," shall
adopt a plan of complete liquidation within the meaning of
Section 860F(a)(4) of the Code for each REMIC created
hereunder which, as evidenced by an Opinion of Counsel
addressed to the Trustee (which opinion shall not be an
expense of the Trustee or the Tax Matters Person), meets the
requirements of a qualified liquidation; and
(2) Within 90 days after the time of adoption of such
plans of complete liquidation, the Trustee shall sell all of
the assets of the Trust Fund to the Master Servicer for cash
in accordance with Section 9.1.
(b) The Trustee as agent for any REMIC established hereunder hereby
agrees to adopt and sign such a plan of complete liquidation upon
the written request of the Master Servicer, and the receipt of
the Opinion of Counsel referred to in Section 9.3(a)(1) and to
take such other action in connection therewith as may be
reasonably requested by the Master Servicer.
(c) By their acceptance of the Certificates, the Holders thereof
hereby authorize the Master Servicer to prepare and the Trustee
to adopt and sign plans of complete liquidation.
ARTICLE X
[RESERVED]
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 Amendment.
This Agreement may be amended from time to time by the Depositor, the
Master Servicer and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision herein or to supplement any provision herein which may be
inconsistent with any other provision herein, (iii) to add to the duties of the
Depositor, the Seller or the Master Servicer, (iv) to add any other provisions
with respect to matters or questions arising hereunder or (v) to modify, alter,
amend, add to or rescind any of the terms or provisions contained in this
Agreement; provided that any action pursuant to clauses (iv) or (v) above shall
not, as evidenced by an Opinion of Counsel delivered to the Trustee (which
Opinion of Counsel shall not be an expense of the Trustee or the Trust Fund),
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adversely affect in any material respect the interests of any Certificateholder;
provided, however, that the amendment shall not be deemed to adversely affect in
any material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency stating that
the amendment would not result in the downgrading or withdrawal of the
respective ratings then assigned to the Certificates; it being understood and
agreed that any such letter in and of itself will not represent a determination
as to the materiality of any such amendment and will represent a determination
only as to the credit issues affecting any such rating. The Trustee, the
Depositor and the Master Servicer also may at any time and from time to time
amend this Agreement without the consent of the Certificateholders to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
or helpful to (i) maintain the qualification of the REMIC as a REMIC under the
Code, (ii) avoid or minimize the risk of the imposition of any tax on the REMIC
pursuant to the Code that would be a claim at any time prior to the final
redemption of the Certificates or (iii) comply with any other requirements of
the Code, provided that the Trustee has been provided an Opinion of Counsel,
which opinion shall be an expense of the party requesting such opinion but in
any case shall not be an expense of the Trustee or the Trust Fund, to the effect
that such action is necessary or helpful to, as applicable, (i) maintain such
qualification, (ii) avoid or minimize the risk of the imposition of such a tax
or (iii) comply with any such requirements of the Code.
This Agreement may also be amended from time to time by the Depositor,
the Master Servicer and the Trustee with the consent of the Holders of a
Majority in 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 of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in (i),
without the consent of the Holders of Certificates of such Class evidencing, as
to such Class, Percentage Interests aggregating 66%, or (iii) reduce the
aforesaid percentages of Certificates the Holders of which are required to
consent to any such amendment, without the consent of the Holders of all such
Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel, which opinion shall not be an expense of the
Trustee or the Trust Fund, to the effect that such amendment will not cause the
imposition of any tax on the REMIC or the Certificateholders or cause the REMIC
to fail to qualify as a REMIC at any time that any Certificates are outstanding.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
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Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be an
expense of the Trustee or the Trust Fund), satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 11.1.
SECTION 11.2 Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Master Servicer at its expense, but only
upon direction a majority of the Certificateholders to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed (by
facsimile or otherwise) simultaneously in any number of counterparts, each of
which counterparts shall be deemed to be an original, and such counterparts
shall constitute but one and the same instrument.
SECTION 11.3 Governing Law.
THIS AGREEMENT (OTHER THAN SECTION 2.1 HEREOF) SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. SECTION 2.1
OF THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDER UNDER SUCH SECTION BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.4 Intention of Parties.
(a) It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans by the Seller to the Depositor
be, and be construed as, absolute sales thereof. It is, further,
not the intention of the parties that such conveyances be deemed
a pledge thereof by the Seller to the Depositor. However, in the
event that, notwithstanding the intent of the parties, the
Mortgage Loans are held to be the property of the Seller, or if
for any other reason this Agreement is held or deemed to create a
security interest in such assets, then (i) this Agreement shall
be deemed to be a security agreement within the meaning of the
Uniform
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Commercial Code of the State of New York and (ii) the conveyance
of the Mortgage Loans provided for in this Agreement shall be
deemed to be an assignment and a grant by the Seller to the
Depositor, for the benefit of the Certificateholders, of a
security interest in all of the Mortgage Loans, whether now owned
or hereafter acquired.
The Seller, for the benefit of the Certificateholders, shall, to
the extent consistent with this Agreement, take such actions as
may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as
such throughout the term of the Agreement. The Seller shall
arrange for filing any Uniform Commercial Code continuation
statements in connection with any security interest granted or
assigned to the Depositor for the benefit of the
Certificateholders.
(b) It is the express intent of the parties hereto that the
conveyance of the Trust Fund by the Depositor to the Trustee be,
and be construed as, absolute sales thereof to the Trustee. It
is, further, not the intention of the parties that such
conveyances be deemed a pledge thereof by the Depositor to the
Trustee. However, in the event that, notwithstanding the intent
of the parties, such assets are held to be the property of the
Depositor, or if for any other reason this Agreement is held or
deemed to create a security interest in such assets, then (i)
this Agreement shall be deemed to be a security agreement within
the meaning of the Uniform Commercial Code of the State of New
York and (ii) the conveyance provided for in this Agreement shall
be deemed to be an assignment and a grant by the Depositor to the
Trustee, for the benefit of the Certificateholders, of a security
interest in all of the assets that constitute the Trust Fund,
whether now owned or hereafter acquired.
The Depositor, for the benefit of the Certificateholders,
shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement
were deemed to create a security interest in the Trust Fund, such
security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement. The
Depositor shall arrange for filing any Uniform Commercial Code
continuation statements in connection with any security interest
granted or assigned to the Trustee for the benefit of the
Certificateholders.
SECTION 11.5 Notices.
(a) The Trustee shall use its best efforts to promptly provide notice
to each Rating Agency with respect to each of the following of
which it has actual knowledge:
(1) Any material change or amendment to this Agreement;
(2) The occurrence of any Event of Default that has not
been cured;
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(3) The resignation or termination of the Master Servicer
or the Trustee and the appointment of any successor;
(4) The repurchase or substitution of Mortgage Loans
pursuant to Section 2.3; and
(5) The final payment to Certificateholders.
(6) Any rating action involving the long-term credit
rating of the Master Servicer, which notice shall be
made by first-class mail within two Business Days
after the Trustee gains actual knowledge thereof.
In addition, the Trustee shall promptly furnish to each
Rating Agency copies of the following:
(i) Each report to Certificateholders described in
Section 4.6;
(ii) Each annual statement as to compliance described in
Section 3.16;
(iii) Each annual independent public accountants' servicing
report described in Section 3.17; and
(iv) Any notice of a purchase of a Mortgage Loan pursuant
to Section 2.2, 2.3 or 3.11.
(b) All directions, demands, authorizations, consents, waivers,
communications and notices hereunder shall be in writing and
shall be deemed to have been duly given when delivered to by
first class mail, facsimile or courier (a) in the case of the
Depositor, First Horizon Asset Securities Inc., 0000 Xxxxxxx Xxx,
Xxxxxx, Xxxxx 00000, Attention: Xxxx Xxxxxx; (b) in the case of
the Master Servicer, First Horizon Home Loan Corporation, 0000
Xxxxxxx Xxx, Xxxxxx, Xxxxx 00000, Attention: Xxxx Xxxxxx or such
other address as may be hereafter furnished to the Depositor and
the Trustee by the Master Servicer in writing; (c) in the case of
the Trustee, The Bank of New York, 000 Xxxxxxx Xxxxxx, 0X, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxx, or such other
address as the Trustee may hereafter furnish to the Depositor or
Master Servicer; and (d) in the case of the Rating Agencies, the
address specified therefor in the definition corresponding to the
name of such Rating Agency. Notices to Certificateholders shall
be deemed given when mailed, first class postage prepaid, to
their respective addresses appearing in the Certificate Register.
SECTION 11.6 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms
97
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 11.7 Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 6.2, this Agreement may not be assigned by the Master
Servicer without the prior written consent of the Trustee and Depositor.
SECTION 11.8 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
party by reason of any action taken by the parties to this Agreement pursuant to
any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 11.8, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.9 Inspection and Audit Rights.
The Master Servicer agrees that, on reasonable prior notice, it will
permit and will cause each Subservicer to permit any representative of the
Depositor or the Trustee during the Master
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Servicer's normal business hours, to examine all the books of account, records,
reports and other papers of the Master Servicer relating to the Mortgage Loans,
to make copies and extracts therefrom, to cause such books to be audited by
independent certified public accountants selected by the Depositor or the
Trustee and to discuss its affairs, finances and accounts relating to the
Mortgage Loans with its officers, employees and independent public accountants
(and by this provision the Master Servicer hereby authorizes said accountants to
discuss with such representative such affairs, finances and accounts), all at
such reasonable times and as often as may be reasonably requested. Any
out-of-pocket expense incident to the exercise by the Depositor or the Trustee
of any right under this Section 11.9 shall be borne by the party requesting such
inspection; all other such expenses shall be borne by the Master Servicer or the
related Subservicer.
SECTION 11.10 Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall not
be personally liable for obligations of the Trust Fund, that the interests in
the Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof by
the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
SECTION 11.11 Limitations on Actions; No Proceedings.
(a) Other than pursuant to this Agreement, or in connection with or
incidental to the provisions or purposes of this Agreement, the
trust created hereunder shall not (i) issue debt or otherwise
borrow money, (ii) merge or consolidate with any other entity
reorganize, liquidate or transfer all or substantially all of its
assets to any other entity, or (iii) otherwise engage in any
activity or exercise any power not provided for in this
Agreement.
(b) Notwithstanding any prior termination of this Agreement, the
Trustee, the Master Servicer and the Depositor shall not, prior
to the date which is one year and one day after the termination
of this Agreement, acquiesce, petition or otherwise invoke or
cause any Person to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case
against the Depositor or the Trust Fund under any federal or
state bankruptcy, insolvency or other similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Depositor or the Trust Fund or
any substantial part of their respective property, or ordering
the winding up or liquidation of the affairs of the Depositor or
the Trust Fund.
* * * * * *
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IN WITNESS WHEREOF, the Depositor, the Trustee, the Seller and the
Master Servicer have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
FIRST HORIZON ASSET SECURITIES INC.,
as Depositor
By:_______________________________________________
Xxxx Xxxxxx
Senior Vice President - Asset Securitization
THE BANK OF NEW YORK,
not in its individual capacity, but solely as
Trustee
By:_______________________________________________
Xxxxx Xxxxxx
Assistant Treasurer
FIRST HORIZON HOME LOAN
CORPORATION, as Seller and Master Servicer
By:_______________________________________________
Xxxx Xxxxxx
Senior Vice President - Asset Securitization
