ACE SECURITIES CORP.
Depositor
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
Master Servicer
and
FIRST UNION NATIONAL BANK
Trustee
--------------------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2001
--------------------------------------------------------------
ACE Securities Corp. Home Equity Loan Trust, Series 2001-HE1
Asset Backed Pass-Through Certificates
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.................................................-4-
Accepted Master Servicing Practices...........................-4-
Account ......................................................-4-
Accrued Certificate Interest..................................-4-
Adjustable Rate Mortgage Loan.................................-5-
Adjustment Date...............................................-5-
Administration Fees...........................................-5-
Administration Fee Rate.......................................-5-
Affiliate.....................................................-5-
Aggregate Loss Severity Percentage............................-5-
Agreement.....................................................-5-
Allocated Realized Loss Amount................................-5-
Assignment....................................................-5-
Assignment....................................................-6-
Available Distribution Amount.................................-6-
Bankruptcy Code...............................................-6-
Bankruptcy Loss...............................................-6-
Basis Risk Shortfall..........................................-6-
Book-Entry Certificate........................................-7-
Book-Entry Custodian..........................................-7-
Business Day..................................................-7-
Cash-Out Refinancing..........................................-7-
Certificate...................................................-7-
Certificate Factor............................................-7-
Certificate Margin............................................-7-
Certificateholder" or "Holder.................................-8-
Certificate Owner.............................................-8-
Certificate Principal Balance.................................-8-
Certificate Register..........................................-8-
Class ........................................................-9-
Class A Certificate...........................................-9-
Class A Principal Distribution Amount.........................-9-
Class A-IO Certificate........................................-9-
Class A-IO Pass-Through Rate..................................-9-
Class CE Certificate..........................................-9-
Class M-1 Certificate.........................................-9-
Class M-1 Principal Distribution Amount.......................-9-
Class M-2 Certificate........................................-10-
-ii-
Class M-2 Principal Distribution Amount......................-10-
Class M-3 Certificate........................................-10-
Class M-3 Principal Distribution Amount......................-10-
Class P Certificate..........................................-11-
Class R-I Certificates.......................................-11-
Class R-II Certificates......................................-11-
Class R-III Certificates.....................................-11-
Closing Date.................................................-11-
Code ........................................................-11-
Commission...................................................-11-
Corporate Trust Office.......................................-11-
Corresponding Certificate....................................-11-
Credit Enhancement Percentage................................-11-
Custodial Agreement..........................................-11-
Custodian....................................................-11-
Cut-off Date.................................................-12-
Debt Service Reduction.......................................-12-
Deficient Valuation..........................................-12-
Definitive Certificates......................................-12-
Deleted Mortgage Loan........................................-12-
Delinquency Percentage.......................................-12-
Depositor....................................................-12-
Depository...................................................-12-
Depository Institution.......................................-12-
Depository Participant.......................................-13-
Determination Date...........................................-13-
Disqualified Organization....................................-13-
Distribution Account.........................................-13-
Distribution Account Deposit Date............................-13-
Distribution Date............................................-13-
Due Date ....................................................-13-
Due Period...................................................-13-
Eligible Account.............................................-13-
ERISA .......................................................-14-
Estate in Real Property......................................-14-
Excess Liquidation Proceeds..................................-14-
Expense Adjusted Mortgage Rate...............................-14-
Extra Principal Distribution Amount..........................-14-
Xxxxxx Mae...................................................-14-
FDIC ........................................................-14-
Final Recovery Determination.................................-14-
First Union..................................................-14-
First Union Custodial Agreement..............................-14-
-iii-
Fitch .......................................................-14-
Xxxxxxx Mac..................................................-15-
Gross Margin.................................................-15-
HomeStar ....................................................-15-
HomeStar MLPA................................................-15-
Independent..................................................-15-
Index .......................................................-15-
Insurance Proceeds...........................................-15-
Interest Accrual Period......................................-15-
Interest Carry Forward Amount................................-16-
Interest Determination Date..................................-16-
Interest Distribution Amount.................................-16-
Interest Remittance Amount...................................-16-
Late Collections.............................................-16-
Liquidation Event............................................-16-
Liquidation Proceeds.........................................-16-
Loan-to-Value Ratio..........................................-17-
London Business Day..........................................-17-
Loss Mitigation Advisor......................................-17-
Loss Mitigation Advisory Agreement...........................-17-
Loss Mitigation Fee..........................................-17-
Loss Mitigation Fee Rate.....................................-17-
Loss Severity Percentage.....................................-17-
Master Servicer..............................................-17-
Master Servicer Collection Account...........................-17-
Master Servicer Event of Default.............................-17-
Master Servicer Fee Rate.....................................-17-
Master Servicing Fee.........................................-17-
Marker Rate..................................................-18-
Maximum II-LTZZ Uncertificated Interest Deferral Amount......-18-
Maximum Mortgage Rate........................................-18-
Meritech Servicing Agreement.................................-18-
Mezzanine Certificate........................................-18-
MGIC ........................................................-18-
MGIC Fee ....................................................-18-
MGIC Fee Rate................................................-19-
MGIC PMI Mortgage Loans......................................-19-
MGIC PMI Policy..............................................-19-
Minimum Mortgage Rate........................................-19-
Monthly Payment..............................................-19-
Xxxxx'x .....................................................-19-
Mortgage ....................................................-19-
Mortgage File................................................-19-
-iv-
Mortgage Loan................................................-19-
Mortgage Loan Documents......................................-19-
Mortgage Loan Purchase Agreement.............................-19-
Mortgage Loan Schedule.......................................-19-
Mortgage Note................................................-22-
Mortgage Rate................................................-22-
Mortgaged Property...........................................-22-
Mortgagor....................................................-22-
NC Capital...................................................-22-
NC Capital MLPA..............................................-22-
Net Monthly Excess Cashflow..................................-22-
Net Mortgage Rate............................................-22-
Net WAC Pass-Through Rate....................................-22-
Nonrecoverable P&I Advance...................................-23-
Nonrecoverable Servicing Advance.............................-23-
Non-United States Person.....................................-23-
Notional Amount..............................................-23-
Offered Certificates.........................................-24-
Officers' Certificate........................................-24-
One-Month LIBOR..............................................-24-
One-Month LIBOR Pass-Through Rate............................-25-
Opinion of Counsel...........................................-25-
Overcollateralization Amount.................................-25-
Overcollateralization Increase Amount........................-25-
Overcollateralization Reduction Amount.......................-25-
Ownership Interest...........................................-25-
Pass-Through Rate............................................-25-
Percentage Interest..........................................-26-
Periodic Rate Cap............................................-27-
Permitted Investments........................................-27-
Permitted Transferee.........................................-28-
Person ......................................................-28-
P&I Advance..................................................-28-
Plan ........................................................-28-
Prepayment Assumption........................................-28-
Prepayment Charge............................................-28-
Prepayment Interest Shortfall................................-28-
Prepayment Period............................................-29-
Principal Distribution Amount................................-29-
Principal Prepayment.........................................-29-
Principal Remittance Amount..................................-29-
Protected Account............................................-29-
Purchase Price...............................................-29-
-v-
Qualified Substitute Mortgage Loan...........................-30-
Rate/Term Refinancing........................................-30-
Rating Agency or Rating Agencies.............................-31-
Realized Loss................................................-31-
Record Date..................................................-31-
Reference Banks..............................................-32-
Refinanced Mortgage Loan.....................................-32-
Regular Certificate..........................................-32-
Regular Interest.............................................-32-
Relief Act...................................................-32-
Relief Act Interest Shortfall................................-32-
REMIC .......................................................-32-
REMIC I .....................................................-32-
REMIC I Regular Interest.....................................-33-
REMIC I Regular Interest I-LTA...............................-33-
REMIC I Regular Interest I-LTB...............................-33-
REMIC I Regular Interest I-LTC...............................-33-
REMIC I Regular Interest I-LT................................-33-
REMIC I Regular Interest I-LTE...............................-33-
REMIC I Regular Interest I-LTP...............................-33-
REMIC I Remittance Rate......................................-34-
REMIC II ....................................................-34-
REMIC II Interest Loss Allocation Amount.....................-34-
REMIC II Overcollateralization Amount........................-34-
REMIC II Principal Loss Allocation Amount....................-34-
REMIC II Regular Interest....................................-34-
REMIC II Regular Interest II-LTAA............................-35-
REMIC II Regular Interest II-LTA.............................-35-
REMIC II Regular Interest II-LTM1............................-35-
REMIC II Regular Interest II-LTM2............................-35-
REMIC II Regular Interest II-LTM3............................-35-
REMIC II Regular Interest II-LTZZ............................-35-
REMIC II Regular Interest II-LTIO............................-35-
REMIC II Regular Interest II-LTP.............................-36-
REMIC II Remittance Rate.....................................-36-
REMIC II Required Overcollateralization Amount...............-36-
REMIC III....................................................-36-
REMIC III Certificate........................................-36-
REMIC III Certificateholder..................................-36-
REMIC Provisions.............................................-36-
Remittance Report............................................-36-
Rents from Real Property.....................................-36-
REO Disposition..............................................-36-
-vi-
REO Imputed Interest.........................................-36-
REO Principal Amortization...................................-36-
REO Property.................................................-37-
Required Overcollateralization Amount........................-37-
Reserve Fund.................................................-37-
Reserve Interest Rate........................................-37-
Residential Dwelling.........................................-37-
Residual Certificate.........................................-37-
Residual Interest............................................-37-
Responsible Officer..........................................-37-
S&P .........................................................-38-
Scheduled Principal Balance..................................-38-
Seller ......................................................-38-
Senior Interest Distribution Amount..........................-38-
Servicer ....................................................-39-
Servicer Remittance Date.....................................-39-
Servicing Advances...........................................-39-
Servicing Agreement..........................................-39-
Servicing Fee................................................-39-
Servicing Fee Rate...........................................-39-
Servicing Officer............................................-39-
Single Certificate...........................................-39-
SouthStar....................................................-39-
Startup Day..................................................-39-
Stated Principal Balance.....................................-39-
Stayed Funds.................................................-40-
Stepdown Date................................................-40-
Substitution Shortfall Amount................................-40-
Tax Returns..................................................-40-
Telerate Page 3750...........................................-41-
Termination Price............................................-41-
Terminator...................................................-41-
Transfer ....................................................-41-
Transferee...................................................-41-
Transferor...................................................-41-
Trigger Event................................................-41-
Trust ....................................................-41-
Trust REMIC..................................................-41-
Trustee ....................................................-41-
Trust Fund...................................................-41-
Uncertificated Balance.......................................-41-
Uncertificated Interest......................................-42-
Uncertificated Notional Amount...............................-42-
-vii-
Uncertificated REMIC Regular Interest........................-42-
Uninsured Cause..............................................-42-
United States Person.........................................-42-
Unpaid Basis Risk Shortfall..................................-43-
U.S. Bank....................................................-43-
U.S. Bank Custodial Agreement................................-43-
Value ....................................................-43-
Voting Rights................................................-43-
SECTION 1.02. Allocation of Certain Interest Shortfalls....................-44-
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of the Mortgage Loans.............................-46-
SECTION 2.02. Acceptance of REMIC I by Trustee.............................-46-
SECTION 2.03. Repurchase or Substitution of Mortgage Loans.................-47-
SECTION 2.04. [Reserved]...................................................-51-
SECTION 2.05. Representations, Warranties and Covenants of the Master
Servicer.....................................................-51-
SECTION 2.06. Issuance of the REMIC I Regular Interests and the Class R-I
Certificates.................................................-53-
SECTION 2.07. Conveyance of the REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee......................................-53-
SECTION 2.08. Issuance of Class R-II Certificates..........................-53-
SECTION 2.09. Conveyance of the REMIC II Regular Interests; Acceptance of
REMIC III by the Trustee.....................................-53-
SECTION 2.10. Issuance of Class R-III Certificates.........................-54-
SECTION 2.11 Establishment of the Trust...................................-54-
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS; ACCOUNTS
SECTION 3.01. Master Servicer..............................................-55-
SECTION 3.02. REMIC-Related Covenants......................................-56-
SECTION 3.03. Monitoring of Servicers......................................-56-
SECTION 3.04. Fidelity Bond................................................-57-
SECTION 3.05. Power to Act; Procedures.....................................-57-
SECTION 3.06. Due-on-Sale Clauses; Assumption Agreements...................-58-
SECTION 3.07. Release of Mortgage Files....................................-58-
-viii-
SECTION 3.08. Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee..............................-59-
SECTION 3.09. Standard Hazard Insurance and Flood Insurance Policies.......-60-
SECTION 3.10. Presentment of Claims and Collection of Proceeds.............-60-
SECTION 3.11. Maintenance of the Primary Mortgage Insurance Policies.......-61-
SECTION 3.12. Trustee to Retain Possession of Certain Insurance Policies
and Documents................................................-61-
SECTION 3.13. Realization Upon Defaulted Mortgage Loans....................-61-
SECTION 3.14. Compensation for the Master Servicer.........................-62-
SECTION 3.15. REO Property.................................................-62-
SECTION 3.16. Annual Officer's Certificate as to Compliance................-63-
SECTION 3.17. Annual Independent Accountant's Servicing Report.............-63-
SECTION 3.18. Reports Filed with Securities and Exchange Commission........-64-
SECTION 3.19. UCC..........................................................-64-
SECTION 3.20. Obligation of the Master Servicer in respect of Prepayment
Interest Shortfalls..........................................-65-
SECTION 3.21. MGIC PMI Policy; Claims Under the MGIC PMI Policy............-65-
SECTION 3.22. Protected Accounts...........................................-65-
SECTION 3.23. Master Servicer Collection Account...........................-66-
SECTION 3.24. Permitted Withdrawals and Transfers from the Master Servicer
Collection Account...........................................-67-
SECTION 3.25. Distribution Account.........................................-68-
SECTION 3.26. Permitted Withdrawals and Transfers from the Distribution
Account......................................................-68-
SECTION 3.27 Reserve Fund.................................................-71-
SECTION 3.28 Duties of the Loss Mitigation Advisor........................-72-
SECTION 3.29 Limitation Upon Liability of the Loss Mitigation Advisor.....-72-
SECTION 3.30 Prepayment Penalty Verification..............................-73-
SECTION 3.31 Servicing Advance Facility...................................-74-
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Distributions................................................-74-
SECTION 4.02. Statements to Certificateholders.............................-83-
SECTION 4.03. Remittance Reports; P&I Advances.............................-87-
SECTION 4.04. Allocation of Realized Losses................................-87-
SECTION 4.05. Compliance with Withholding Requirements.....................-89-
-ix-
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.............................................-90-
SECTION 5.02. Registration of Transfer and Exchange of Certificates........-92-
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates............-96-
SECTION 5.04. Persons Deemed Owners........................................-96-
SECTION 5.05. Certain Available Information................................-96-
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Liability of the Depositor and the Master Servicer...........-98-
SECTION 6.02. Merger or Consolidation of the Depositor or the Master
Servicer.....................................................-98-
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicer and Others..........................................-98-
SECTION 6.04 Limitation on Resignation of the Master Servicer.............-99-
SECTION 6.05 Assignment of Master Servicing...............................-99-
SECTION 6.06 Rights of the Depositor in Respect of the Master Servicer...-100-
ARTICLE VII
DEFAULT
SECTION 7.01. Master Servicer Events of Default...........................-101-
SECTION 7.02. Trustee to Act; Appointment of Successor....................-102-
SECTION 7.03. Notification to Certificateholders..........................-104-
SECTION 7.04. Waiver of Master Servicer Events of Default.................-104-
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee...........................................-105-
SECTION 8.02. Certain Matters Affecting the Trustee.......................-106-
SECTION 8.03. Trustee not Liable for Certificates or Mortgage Loans.......-107-
SECTION 8.04. Trustee May Own Certificates................................-108-
SECTION 8.05. Trustee's Fees and Expenses.................................-108-
SECTION 8.06. Eligibility Requirements for Trustee and Trustee............-108-
SECTION 8.07. Resignation and Removal of the Trustee......................-108-
SECTION 8.08. Successor Trustee...........................................-109-
SECTION 8.09. Merger or Consolidation of Trustee..........................-110-
-x-
TABLE OF CONTENTS
SECTION PAGE
------- ----
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee...............-110-
SECTION 8.11. Appointment of Office or Agency.............................-111-
SECTION 8.12. Representations and Warranties..............................-111-
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans..............................................-113-
SECTION 9.02. Additional Termination Requirements.........................-115-
ARTICLE X
REMIC PROVISIONS
SECTION 10.01. REMIC Administration........................................-116-
SECTION 10.02. Prohibited Transactions and Activities......................-118-
SECTION 10.03. Master Servicer and Trustee Indemnification.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment...................................................-120-
SECTION 11.02. Recordation of Agreement; Counterparts......................-121-
SECTION 11.03. Limitation on Rights of Certificateholders..................-121-
SECTION 11.04. Governing Law...............................................-122-
SECTION 11.05. Notices.....................................................-122-
SECTION 11.06. Severability of Provisions..................................-123-
SECTION 11.07. Notice to Rating Agencies...................................-123-
SECTION 11.08. Article and Section References..............................-124-
SECTION 11.09. Grant of Security Interest..................................-124-
SECTION 11.10. Third Party Beneficiaries...................................-124-
-xi-
Exhibits
--------
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-IO Certificate
Exhibit A-3 Form of Class M-1 Certificate
Exhibit A-4 Form of Class M-2 Certificate
Exhibit A-5 Form of Class M-3 Certificate
Exhibit A-6 Form of Class P Certificate
Exhibit A-7 Form of Class CE Certificate
Exhibit A-8 Form of Class R-I Certificate
Exhibit A-9 Form of Class R-II Certificate
Exhibit A-10 Form of Class R-III Certificate
Exhibit B-1 Form of Transferor Representation Letter and Form of
Transferee Representation Letter in Connection with Transfer
of the Class P Certificates, Class CE Certificates and
Residual Certificates Pursuant to Rule 144A Under the 1933 Act
Exhibit B-2 Form of Transferor Representation Letter and Form of
Transferee Representation Letter in Connection with Transfer
of the Class P Certificates, Class CE Certificates and
Residual Certificates Pursuant to Rule 501 (a) Under the 1933
Act
Exhibit B-3 Form of Transfer Affidavit and Agreement and Form of Transferor
Affidavit in Connection with Transfer of Residual Certificates
Schedule 1 Mortgage Loan Schedule
Schedule 2 Prepayment Charge Schedule
Schedule 3 MGIC PMI Mortgage Loans
-xii-
This Pooling and Servicing Agreement, is dated and effective as of November
1, 2001, among ACE SECURITIES CORP. as Depositor, XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION as Master Servicer and FIRST UNION NATIONAL BANK as
Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell pass-through certificates to be issued
hereunder in multiple classes, which in the aggregate will evidence the entire
beneficial ownership interest of the Trust Fund created hereunder. The Trust
Fund will consist of a segregated pool of assets comprising of the Mortgage
Loans and certain other related assets subject to this Agreement.
REMIC I
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the Mortgage Loans and certain other related assets subject
to this Agreement (other than the Reserve Fund) as a REMIC for federal income
tax purposes, and such segregated pool of assets will be designated as "REMIC
I". The Class R-I Certificates will be the sole class of "residual interests" in
REMIC I for purposes of the REMIC Provisions (as defined herein). The following
table irrevocably sets forth the designation, the REMIC I Remittance Rate, the
initial Uncertificated Balance and, solely for purposes of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for
each of the REMIC I Regular Interests (as defined herein). None of the REMIC I
Regular Interests will be certificated.
REMIC I Initial Latest Possible
Designation Remittance Rate Uncertificated Balance Maturity Date(1)
----------- --------------- ---------------------- -----------------
I-LTA Variable(2) $511,228,411.95 November 20, 2031
I-LTB Variable(2) $ 31,515,417.85 November 20, 2031
I-LTC Variable(2) $ 72,365,000.00 November 20, 2031
I-LTD Variable(2) $ 50,660,000.00 November 20, 2031
I-LTE Variable(2) $ 57,890,000.00 November 20, 0000
X-XXX Variable(2) $ 100.00 November 20, 2031
----------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for each REMIC I Regular Interest.
(2) Calculated in accordance with the definition of "REMIC I Remittance Rate"
herein.
-1-
REMIC II
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the REMIC I Regular Interests as a REMIC for federal income
tax purposes, and such segregated pool of assets will be designated as "REMIC
II". The Class R-II Certificates will be the sole class of "residual interests"
in REMIC II for purposes of the REMIC Provisions. The following table
irrevocably sets forth the designation, the REMIC II Remittance Rate, the
initial Uncertificated Balance and, solely for purposes of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for
each of the REMIC II Regular Interests (as defined herein). None of the REMIC II
Regular Interests will be certificated.
Initial
REMIC II Uncertificated Latest Possible
Designation Remittance Rate Balance Maturity Date(1)
----------- --------------- -------------- -----------------
II-LTAA Variable(2) $709,185,653.20 November 20, 2031
II-LTA Variable(2) $6,802,380.00 November 20, 2031
II-LTM 1 Variable(2) $217,100.00 November 20, 2031
II-LTM 2 Variable(2) $108,550.00 November 20, 2031
II-LTM 3 Variable(2) $72,370.00 November 20, 2031
II-LTZZ Variable(2) $7,272,776.60 November 20, 2031
II-LTIO Variable(2) N/A(3) November 20, 2031
II-LTP Variable(2) $100.00 November 20, 2031
----------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for each REMIC II Regular Interest.
(2) Calculated in accordance with the definition of "REMIC II Remittance Rate"
herein.
(3) REMIC II Regular Interest II-LTIO will not have an Initial Uncertificated
Balance, but will accrue interest on its respective Uncertificated Notional
Amount outstanding from time to time, as defined herein.
REMIC III
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the REMIC II Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC III." The Class R-III Certificates will evidence the sole class of
"residual interests" in REMIC III for purposes of the REMIC Provisions. The
following table irrevocably sets forth the designation, the Pass-Through Rate,
the initial aggregate Certificate Principal Balance and, solely for purposes of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the "latest possible
maturity date" for the indicated Classes of Certificates.
-2-
Initial Aggregate
Pass Through Certificate Principal Latest Possible
Designation Rate Balance Maturity Date(1)
----------- ------------ --------------------- -----------------
Class A Variable(2) $680,238,000.00 November 20, 2031
Class A-IO 6.00% N/A November 20, 2031
Class M-1 Variable(2) $21,710,000.00 November 20, 2031
Class M-2 Variable(2) $10,855,000.00 November 20, 2031
Class M-3 Variable(2) $7,237,000.00 November 20, 2031
Class P N/A(4) $100.00 November 20, 2031
Class CE N/A(5) $3,618,829.80 November 20, 2031
----------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for each Class of Certificates.
(2) Calculated in accordance with the definition of "Pass-Through Rate" herein.
(3) The Class A-IO Certificates do not have a Certificate Principal Balance but
will receive all amounts distributed to REMIC II Regular Interest II-LTIO.
(4) The Class P Certificates will not accrue interest.
(5) The Class CE Certificates will accrue interest at their variable
Pass-Through Rate on the Notional Amount of the Class CE Certificates
outstanding from time to time which shall equal the Uncertificated Balance
of the REMIC II Regular Interests. The Class CE Certificates will not
accrue interest on their Certificate Principal Balance.
As of the Cut-off Date, the Mortgage Loans had an aggregate Scheduled
Principal Balance equal to $723,658,929.80.
In consideration of the mutual agreements herein contained, the Depositor,
the Master Servicer and the Trustee agree as follows:
-3-
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including, without limitation, in the
Preliminary Statement hereto, the following words and phrases, unless the
context otherwise requires, shall have the meanings specified in this Article.
Unless otherwise specified, all calculations described herein shall be made on
the basis of a 360-day year consisting of twelve 30-day months.
"Accepted Master Servicing Practices": With respect to any Mortgage Loan,
as applicable, either (x) those customary mortgage servicing practices of
prudent mortgage servicing institutions that master service mortgage loans of
the same type and quality as such Mortgage Loan in the jurisdiction where the
related Mortgaged Property is located, to the extent applicable to the Trustee
or the Master Servicer (except in its capacity as successor to a Servicer), or
(y) as provided in the applicable Servicing Agreement, to the extent applicable
to any Servicer, but in no event below the standard set forth in clause (x).
"Account": The Master Servicer Collection Account and the Protected Account
as the context may require.
"Accrued Certificate Interest": With respect to any Class A Certificate,
Class A-IO Certificate, Mezzanine Certificate or Class CE Certificate and each
Distribution Date, interest accrued during the related Interest Accrual Period
at the Pass-Through Rate for such Certificate for such Distribution Date on the
Certificate Principal Balance, in the case of the Class A Certificates and the
Mezzanine Certificates, or on the Notional Amount in the case of the Class A-IO
Certificates and the Class CE Certificates, of such Certificate immediately
prior to such Distribution Date. The Class P Certificates are not entitled to
distributions in respect of interest and, accordingly, will not accrue interest.
All distributions of interest on the Class A Certificates and the Mezzanine
Certificates will be calculated on the basis of a 360-day year and the actual
number of days in the applicable Interest Accrual Period. All distributions of
interest on the Class A-IO Certificates and the Class CE Certificates will be
based on a 360-day year consisting of twelve 30-day months. Accrued Certificate
Interest with respect to each Distribution Date, as to any Class A Certificate,
Class A-IO Certificate, Mezzanine Certificate or Class CE Certificate shall be
reduced by an amount equal to the portion allocable to such Certificate pursuant
to Section 1.02 hereof, if any, of the sum of (a) the aggregate Prepayment
Interest Shortfall, if any, for such Distribution Date to the extent not covered
by payments pursuant to Section 3.20 and (b) the aggregate amount of any Relief
Act Interest Shortfall, if any, for such Distribution Date. In addition, Accrued
Certificate Interest with respect to each Distribution Date, as to any Class CE
Certificate, shall be reduced by an amount equal to the portion allocable to
such Class CE Certificate of Realized Losses, if any, pursuant to Section 1.02
and Section 4.04 hereof. Notwithstanding the foregoing, for federal income tax
purposes and under the REMIC Provisions, the Accrued Certificate Interest for
the Class A-IO
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Certificates and any Distribution Date will be deemed to be 100% of the
Uncertificated Interest for REMIC II Regular Interest II-LTIO for such
Distribution Date.
"Adjustable Rate Mortgage Loan": Each of the Mortgage Loans identified in
the Mortgage Loan Schedule as having a Mortgage Rate that is subject to
adjustment.
"Adjustment Date": With respect to each Adjustable Rate Mortgage Loan, the
first day of the month in which the Mortgage Rate of an Adjustable Rate Mortgage
Loan changes pursuant to the related Mortgage Note. The first Adjustment Date
following the Cut-off Date as to each Adjustable Rate Mortgage Loan is set forth
in the Mortgage Loan Schedule.
"Administration Fees": The sum of (i) the Master Servicing Fee, (ii)
Servicing Fee, (iii) the MGIC Fee, (iv) the Loss Mitigation Fee and (v) the fee
payable to First Union under the First Union Custodial Agreement.
"Administration Fee Rate": The sum of (i) the Master Servicing Fee Rate,
(ii) the Loss Mitigation Fee Rate, (iii) the MGIC Fee Rate, (iv) the Servicing
Fee Rate and (iv) the rate at which the fee payable to U.S. Bank under the U.S.
Bank Custodial Agreement is calculated.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Aggregate Loss Severity Percentage": With respect to any Distribution
Date, the percentage equivalent of a fraction, the numerator of which is the
aggregate amount of Realized Losses incurred on any Mortgage Loans from the
Cut-off Date to the last day of the preceding calendar month and the denominator
of which is the aggregate principal balance of such Mortgage Loans immediately
prior to the liquidation of such Mortgage Loans.
"Agreement": This Pooling and Servicing Agreement and all amendments hereof
and supplements hereto.
"Allocated Realized Loss Amount": With respect to any Distribution Date and
any Class of Mezzanine Certificates, the sum of (i) any Realized Losses
allocated to such Class of Certificates on such Distribution Date and (ii) the
amount of any Allocated Realized Loss Amount for such Class of Certificates
remaining unpaid from the previous Distribution Date plus accrued interest on
such amount calculated at the related Pass-Through Rate for the most recently
ended Interest Accrual Period.
"Assignment": An assignment of Mortgage, notice of transfer or equivalent
instrument, in recordable form, which is sufficient under the laws of the
jurisdiction wherein the related Mortgaged
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Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages secured by Mortgaged
Properties located in the same county, if permitted by law.
"Assignment Agreements": Shall mean (i) the Assignment, Assumption and
Recognition Agreement, dated as November 20, 2001, among the Seller, the
Depositor and Meritech Mortgage Services, Inc. pursuant to which the Meritech
Servicing Agreement was assigned to the Depositor and (ii) the Assignment,
Assumption and Recognition Agreement, dated as of November 20, 2001, among the
Seller, the Depositor and Xxxxx Fargo Home Mortgage, Inc. pursuant to which the
Xxxxx Fargo Servicing Agreement was assigned to the Trust.
"Available Distribution Amount": With respect to any Distribution Date, an
amount equal to (1) the sum of (a) the aggregate of the amounts on deposit in
the Master Servicer Collection Account and Distribution Account as of the close
of business on the related Determination Date, (b) the aggregate of any amounts
deposited in the Distribution Account by the Master Servicer in respect of
Prepayment Interest Shortfalls for such Distribution Date pursuant to Section
3.20, (c) the aggregate of any P&I Advances for such Distribution Date made by
the applicable Servicer pursuant to the related Servicing Agreement or the
Master Servicer pursuant to Section 4.03 and (d) the aggregate of any advances
made by the Trustee for such Distribution Date pursuant to Section 7.02(b),
reduced (to not less than zero) by (2) the sum of (x) the portion of the amount
described in clause (1)(a) above that represents (i) Monthly Payments on the
Mortgage Loans received from a Mortgagor on or prior to the Determination Date
but due during any Due Period subsequent to the related Due Period, (ii)
Principal Prepayments on the Mortgage Loans received after the related
Prepayment Period (together with any interest payments received with such
Principal Prepayments to the extent they represent the payment of interest
accrued on the Mortgage Loans during a period subsequent to the related
Prepayment Period), (iii) Liquidation Proceeds and Insurance Proceeds received
in respect of the Mortgage Loans after the related Prepayment Period, (iv)
amounts reimbursable or payable to the Depositor, the Master Servicer, any
Servicer, the Trustee or any Custodian pursuant to Section 3.24 or Section 3.26
or otherwise payable in respect of extraordinary Trust Fund expenses, (v) Stayed
Funds, (vi) amounts deposited in the Master Servicer Collection Account or the
Distribution Account in error and (vii) the amount of any Prepayment Charges
collected or paid by the Servicer in connection with the Principal Prepayment of
any of the Mortgage Loans, and (y) amounts reimbursable to the Trustee or other
successor Master Servicer, as applicable, for an advance made pursuant to
Section 7.02(b) which advance the Trustee or other successor Master Servicer, as
applicable, has determined to be nonrecoverable from the Stayed Funds in respect
of which it was made.
"Bankruptcy Code": The Bankruptcy Reform Act of 1978 (Title 11 of the
United States Code), as amended.
"Bankruptcy Loss": With respect to any Mortgage Loan, a Realized Loss
resulting from a Deficient Valuation or Debt Service Reduction.
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"Basis Risk Shortfall": With respect to the Class A Certificates and any
Class of Mezzanine Certificates and any Distribution Date on which the
Pass-Through Rate thereon calculated pursuant to the definition thereof is
limited to the Net WAC Pass-Through Rate, an amount equal to the excess of the
amount of interest the Class A Certificates or the Mezzanine Certificates would
have been entitled to receive on such Distribution Date if the Net WAC Pass-
Through Rate would not have been applicable to such Certificates on such
Distribution Date over the amount of interest paid on such Distribution Date at
the Net WAC Pass-Through Rate.
"Book-Entry Certificate": The Class A Certificates, the Class A-IO
Certificates and the Mezzanine Certificates for so long as the Certificates of
such Class shall be registered in the name of the Depository or its nominee.
"Book-Entry Custodian": The custodian appointed pursuant to Section 5.01.
"Business Day": Any day other than a Saturday, a Sunday or a day on which
banking or savings and loan institutions in the States of New York, Maryland or
Minnesota, or in 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.
"Cash-Out Refinancing": A Refinanced Mortgage Loan the proceeds of which
are more than a nominal amount in excess of the principal balance of any
existing first mortgage or subordinate mortgage on the related Mortgaged
Property and related closing costs.
"Certificate": Any one of the Depositor's Asset Backed Pass-Through
Certificates, Series 2001-HE1, Class A, Class A-IO, Class M-1, Class M-2, Class
M-3, Class P, Class CE, Class R-I, Class R-II and Class R-III issued under this
Agreement.
"Certificate Factor":With respect to any Class of Certificates (other than
the Residual Certificates) as of any Distribution Date, a fraction, expressed as
a decimal carried to six places, the numerator of which is the aggregate
Certificate Principal Balance (or Notional Amount, in the case of the Class A-IO
Certificates and the Class CE Certificates) of such Class of Certificates on
such Distribution Date (after giving effect to any distributions of principal
and allocations of Realized Losses resulting in reduction of the Certificate
Principal Balance (or Notional Amount, in the case of the Class A-IO
Certificates and the Class CE Certificates) of such Class of Certificates to be
made on such Distribution Date), and the denominator of which is the initial
aggregate Certificate Principal Balance (or Notional Amount, in the case of the
Class A-IO Certificates and the Class CE Certificates) of such Class of
Certificates as of the Closing Date.
"Certificate Margin": With respect to the Class A Certificates and, for
purposes of the definition of "Marker Rate", REMIC II Regular Interest II-LTA,
0.370% in the case of each Distribution Date through and including the
Distribution Date on which the aggregate principal balance of the Mortgage Loans
(and properties acquired in respect thereof) remaining in the Trust Fund is
reduced to less than 10%
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of the aggregate principal balance of the Mortgage Loans as of the Cut-off Date
and 0.740% in the case of each Distribution Date thereafter.
With respect to the Class M-1 Certificates and, for purposes of the
definition of "Marker Rate", REMIC II Regular Interest II-LTM1, 1.000% in the
case of each Distribution Date through and including the Distribution Date on
which the aggregate principal balance of the Mortgage Loans (and properties
acquired in respect thereof) remaining in the Trust Fund is reduced to less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date and 1.500% in the case of each Distribution Date thereafter.
With respect to the Class M-2 Certificates and, for purposes of the
definition of "Marker Rate", REMIC II Regular Interest II-LTM2, 1.400% in the
case of each Distribution Date through and including the Distribution Date on
which the aggregate principal balance of the Mortgage Loans (and properties
acquired in respect thereof) remaining in the Trust Fund is reduced to less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date and 2.100% in the case of each Distribution Date thereafter.
With respect to the Class M-3 Certificates and, for purposes of the
definition of "Marker Rate", REMIC II Regular Interest II-LTM3, 2.250% in the
case of each Distribution Date through and including the Distribution Date on
which the aggregate principal balance of the Mortgage Loans (and properties
acquired in respect thereof) remaining in the Trust Fund is reduced to less than
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date and 3.375% in the case of each Distribution Date thereafter.
"Certificateholder" or "Holder": The Person in whose name a Certificate is
registered in the Certificate Register, except that a Disqualified Organization
or a Non-United States Person shall not be a Holder of a Residual Certificate
for any purposes hereof, and solely for the purposes of giving any consent
pursuant to this Agreement, any Certificate registered in the name of the
Depositor, the Seller, the Master Servicer, the Trustee or any Affiliate thereof
shall be deemed not to be outstanding and the Voting Rights to which it is
entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent has been
obtained, except as otherwise provided in Section 11.01. The Trustee may
conclusively rely upon a certificate of the Depositor, the Seller or the Master
Servicer in determining whether a Certificate is held by an Affiliate thereof.
All references herein to "Holders" or "Certificateholders" shall reflect the
rights of Certificate Owners as they may indirectly exercise such rights through
the Depository and participating members thereof, except as otherwise specified
herein; provided, however, that the Trustee shall be required to recognize as a
"Holder" or "Certificateholder" only the Person in whose name a Certificate is
registered in the Certificate Register.
"Certificate Owner": With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate as reflected on the books of the
Depository or on the books of a Depository Participant or on the books of an
indirect participating brokerage firm for which a Depository Participant acts as
agent.
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"Certificate Principal Balance": With respect to each Class A Certificate,
Mezzanine Certificate or Class P Certificate as of any date of determination,
the Certificate Principal Balance of such Certificate on the Distribution Date
immediately prior to such date of determination, minus all distributions
allocable to principal made thereon and Realized Losses allocated thereto, if
any, on such immediately prior Distribution Date (or, in the case of any date of
determination up to and including the first Distribution Date, the initial
Certificate Principal Balance of such Certificate, as stated on the face
thereof). With respect to each Class CE Certificates as of any date of
determination, an amount equal to the Percentage Interest evidenced by such
Certificate times the excess, if any, of (A) the then aggregate Uncertificated
Balances of the REMIC II Regular Interests over (B) the then aggregate
Certificate Principal Balances of the Class A Certificates, the Mezzanine
Certificates and the Class P Certificates then outstanding. The aggregate
initial Certificate Principal Balance of each Class of Regular Certificates is
set forth in the Preliminary Statement hereto.
"Certificate Register": The register maintained pursuant to Section 5.02.
"Class": Collectively, all of the Certificates bearing the same class
designation.
"Class A Certificate": Any one of the Class A Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-1 and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
"Class A Principal Distribution Amount": With respect to any Distribution
Date on or after the Stepdown Date and on which a Trigger Event is not in
effect, the excess of (x) the Certificate Principal Balance of the Class A
Certificates immediately prior to such Distribution Date over (y) the lesser of
(A) the product of (i) 88.00% and (ii) the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day of the related Due Period (after giving
effect to scheduled payments of principal due during the related Due Period, to
the extent received or advanced and unscheduled collections of principal
received during the related Prepayment Period) and (B) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced and unscheduled
collections of principal received during the related Prepayment Period) minus
$3,618,294.65.
"Class A-IO Certificate": Any one of the Class A-IO Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2 and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
"Class A-IO Pass-Through Rate": For each Distribution Date from and
including the Distribution Date in December 2001 to and including the
Distribution Date in August 2004, 6.00% per annum and for each Distribution Date
occurring thereafter, 0.00% per annum.
"Class CE Certificate": Any one of the Class CE Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-7 and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
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"Class M-1 Certificate": Any one of the Class M-1 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-3 and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
"Class M-1 Principal Distribution Amount": With respect to any Distribution
Date on or after the Stepdown Date and on which a Trigger Event is not in
effect, the excess of (x) the sum of (i) the Certificate Principal Balance of
the Class A Certificates (after taking into account the payment of the Class A
Principal Distribution Amount on such Distribution Date) and (ii) the
Certificate Principal Balance of the Class M-1 Certificates immediately prior to
such Distribution Date over (y) the lesser of (A) the product of (i) 94.00% and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced and unscheduled collections of principal received during the related
Prepayment Period) minus $3,618,294.65.
"Class M-2 Certificate": Any one of the Class M-2 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-4 and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
"Class M-2 Principal Distribution Amount": With respect to any Distribution
Date on or after the Stepdown Date and on which a Trigger Event is not in
effect, the excess of (x) the sum of (i) the Certificate Principal Balance of
the Class A Certificates (after taking into account the payment of the Class A
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account the
payment of the Class M-1 Principal Distribution Amount on such Distribution
Date) and (iii) the Certificate Principal Balance of the Class M-2 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 97.00% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced and unscheduled collections of
principal received during the related Prepayment Period) minus $3,618,294.65.
"Class M-3 Certificate": Any one of the Class M-3 Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-5 and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
"Class M-3 Principal Distribution Amount": With respect to any Distribution
Date on or after the Stepdown Date and on which a Trigger Event is not in
effect, the excess of (x) the sum of (i) the Certificate Principal Balance of
the Class A Certificates (after taking into account the payment of the Class
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A Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account the
payment of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the payment of the Class M-2 Principal Distribution
Amount on such Distribution Date) and (iv) the Certificate Principal Balance of
the Class M-3 Certificates immediately prior to such Distribution Date over (y)
the lesser of (A) the product of (i) 99.00% and (ii) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced and unscheduled
collections of principal received during the related Prepayment Period) and (B)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced
and unscheduled collections of principal received during the related Prepayment
Period) minus $3,618,294.65.
"Class P Certificate": Any one of the Class P Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-6 and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
"Class R-I Certificates": Any one of the Class R-I Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-8, and evidencing the Residual Interest in REMIC I for
purposes of the REMIC Provisions.
"Class R-II Certificates": Any one of the Class R-II Certificates executed,
authenticated and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-9, and evidencing the Residual Interest in REMIC II for
purposes of the REMIC Provisions.
"Class R-III Certificates": Any one of the Class R-III Certificates
executed, authenticated and delivered by the Trustee, substantially in the form
annexed hereto as Exhibit A-10, and evidencing the Residual Interest in REMIC
III for purposes of the REMIC Provisions.
"Closing Date": November 20, 2001.
"Code": The Internal Revenue Code of 1986.
"Commission": The Securities and Exchange Commission.
"Corporate Trust Office": The principal corporate trust office of the
Trustee which office at the date of the execution of this instrument is located
at 000 Xxxxx Xxxxx Xxxxxx, XX 1179, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, or at
such other address as the Trustee may designate from time to time by notice to
the Certificateholders, the Depositor and the Master Servicer.
"Corresponding Certificate": With respect to REMIC II Regular Interest
II-LTA, REMIC II Regular Interest II-LTM1, REMIC II Regular Interest II-LTM2,
REMIC II Regular Interest II-LTM3
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and REMIC II Regular Interest II-LTP, the Class A Certificates, Class M-1
Certificates, Class M-2 Certificates, Class M-3 Certificates and Class P
Certificates, respectively.
"Credit Enhancement Percentage": For any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the sum of the aggregate
Certificate Principal Balances of the Mezzanine Certificates and the Class CE
Certificates, and the denominator of which is the aggregate Stated Principal
Balance of the Mortgage Loans, calculated after taking into account
distributions of principal on the Mortgage Loans and distribution of the
Principal Distribution Amount to the Certificates then entitled to distributions
of principal on such Distribution Date.
"Custodial Agreement" Shall mean either the U.S. Bank Custodial Agreement
or the First Union Custodial Agreement, as applicable.
"Custodian" Shall mean either U.S. Bank or First Union, as the case may be,
appointed pursuant to the applicable Custodial Agreement.
"Cut-off Date": With respect to each Mortgage Loan, November 1, 2001. With
respect to all Qualified Substitute Mortgage Loans, their respective dates of
substitution. References herein to the "Cut-off Date," when used with respect to
more than one Mortgage Loan, shall be to the respective Cut-off Dates for such
Mortgage Loans.
"Debt Service Reduction": With respect to any Mortgage Loan, a reduction in
the scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
resulting from a Deficient Valuation.
"Deficient Valuation": With respect to any Mortgage Loan, a valuation of
the related Mortgaged Property by a court of competent jurisdiction in an amount
less than the then outstanding principal balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificates": As defined in Section 5.01(b).
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be replaced by a
Qualified Substitute Mortgage Loan.
"Delinquency Percentage": As of the last day of the related Due Period, the
percentage equivalent of a fraction, the numerator of which is the aggregate
Stated Principal Balance of all Mortgage Loans that, as of the last day of the
previous calendar month, are 60 or more days delinquent, are in foreclosure,
have been converted to REO Properties or have been discharged by reason of
bankruptcy, and the denominator of which is the aggregate Stated Principal
Balance of the Mortgage Loans and REO Properties as of the last day of the
previous calendar month.
"Depositor": ACE Securities Corp., a Delaware corporation, or its successor
in interest.
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"Depository": The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository, for purposes of
registering those Certificates that are to be Book-Entry Certificates, is CEDE &
Co. The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(3) of the Uniform Commercial Code of the State of New York and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934, as amended.
"Depository Institution": Any depository institution or trust company,
including the Trustee, that (a) is incorporated under the laws of the United
States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations (or,
in the case of a depository institution that is the principal subsidiary of a
holding company, such holding company has unsecured commercial paper or other
short-term unsecured debt obligations) that are rated F-1 by Fitch, A-1 by S&P
and P-1 by Moody's (or, if such Rating Agencies are no longer rating the Offered
Certificates, comparable ratings by any other nationally recognized statistical
rating agency then rating the Offered Certificates).
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to each Distribution Date, the 18th day
of the calendar month in which such Distribution Date occurs or, if such 18th
day is not a Business Day, the Business Day immediately preceding such 18th day.
"Disqualified Organization": Any of the following: (i) the United States,
any State or political subdivision thereof, any possession of the United States,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for Xxxxxxx Mac, a majority of its board of directors is not
selected by such governmental unit), (ii) any foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (v) an "electing
large partnership" and (vi) any other Person so designated by the Trustee based
upon an Opinion of Counsel that the holding of an Ownership Interest in a
Residual Certificate by such Person may cause any Trust REMIC or any Person
having an Ownership Interest in any Class of Certificates (other than such
Person) to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the Transfer of an Ownership Interest in
a Residual Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Distribution Account": The trust account or accounts created and
maintained by the Trustee pursuant to Section 3.25, which shall be entitled
"First Union National Bank, as Trustee, in trust
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for the registered holders of ACE Securities Corp. Home Equity Loan Trust,
Series 2001- HE1" . The Distribution Account must be an Eligible Account.
"Distribution Account Deposit Date": The Business Day prior to such
Distribution Date.
"Distribution Date": The 20th day of any month, or if such 20th day is not
a Business Day, the Business Day immediately following such 20th day, commencing
in December 2001.
"Due Date": With respect to each Distribution Date, the day of the month on
which the Monthly Payment is due on a Mortgage Loan during the related Due
Period, exclusive of any days of grace.
"Due Period": With respect to any Distribution Date, the period commencing
on the second day of the month immediately preceding the month in which such
Distribution Date occurs and ending on the related Due Date.
"Eligible Account": Any of (i) an account or accounts maintained with a
Depository Institution, (ii) an account or accounts the deposits in which are
fully insured by the FDIC or (iii) a trust account or accounts maintained with
the corporate trust department of a federal or state chartered depository
institution or trust company acting in its fiduciary capacity. Eligible Accounts
may bear interest.
"ERISA": The Employee Retirement Income Security Act of 1974, as amended.
"Estate in Real Property": A fee simple estate in a parcel of land.
"Excess Liquidation Proceeds": To the extent that such amount is not
required by law to be paid to the related mortgagor, the amount, if any, by
which Liquidation Proceeds with respect to a liquidated Mortgage Loan exceed the
sum of (i) the outstanding principal balance of such Mortgage Loan and accrued
but unpaid interest at the related Net Mortgage Rate through the last day of the
month in which the related Liquidation Event occurs, plus (ii) related
liquidation expenses or other amounts to which the related Servicer is entitled
to be reimbursed from Liquidation Proceeds with respect to such liquidated
Mortgage Loan pursuant to the related Servicing Agreement or Section 3.26
hereof.
"Expense Adjusted Mortgage Rate": With respect to any Mortgage Loan or REO
Property, the then applicable Mortgage Rate thereon minus the Administration Fee
Rate.
"Extra Principal Distribution Amount": With respect to any Distribution
Date, the lesser of (i) the Net Monthly Excess Cashflow for such Distribution
Date and (ii) the Overcollateralization Increase Amount for such Distribution
Date.
"Xxxxxx Xxx": Xxxxxx Xxx, formerly known as the Federal National Mortgage
Association, or any successor thereto.
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"FDIC": Federal Deposit Insurance Corporation or any successor thereto.
"Final Recovery Determination": With respect to any defaulted Mortgage Loan
or any REO Property (other than a Mortgage Loan or REO Property purchased by the
applicable Originator, the Seller or the Terminator pursuant to or as
contemplated by Section 2.03 or Section 9.01), a determination made by the
applicable Servicer that all Insurance Proceeds, Liquidation Proceeds and other
payments or recoveries which such Servicer, in its reasonable good faith
judgment, expects to be finally recoverable in respect thereof have been so
recovered. The Master Servicer shall maintain records, based on information
provided by each Servicer, of each Final Recovery Determination made thereby.
"First Union": First Union National Bank or any successor thereto.
"First Union Custodial Agreement": Shall mean the Custodial Agreement dated
as of November 1, 2001, among the Trustee, First Union and Xxxxx Fargo Home
Mortgage, Inc., as such agreement may be amended or supplement from time to
time.
"Fitch": Fitch, Inc., or its successor in interest.
"Xxxxxxx Mac": Xxxxxxx Mac, formerly known as the Federal Home Loan
Mortgage Corporation, or any successor thereto.
"Gross Margin": With respect to each Adjustable Rate Mortgage Loan, the
fixed percentage set forth in the related Mortgage Note that is added to the
related Index on each Adjustment Date in accordance with the terms of the
related Mortgage Note used to determine the Mortgage Rate for such Adjustable
Rate Mortgage Loan.
"HomeStar": HomeStar Mortgage Services, LLC or its successor in interest.
"HomeStar MLPA": Shall mean the Mortgage Loan Purchase Agreement, dated
November 20, 2001 among the Seller, the Depositor, HomeStar and SouthStar, as
such agreement may be amended or supplement from time to time.
"Independent": When used with respect to any specified Person, any such
Person who (a) is in fact independent of the Depositor, the Master Servicer, the
Seller, the Originator and their respective Affiliates, (b) does not have any
direct financial interest in or any material indirect financial interest in the
Depositor, the Master Servicer, the Seller, the Originator or any Affiliate
thereof, and (c) is not connected with the Depositor, the Master Servicer, the
Seller, the Originator or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; provided, however, that a Person shall not fail to be Independent of
the Depositor, the Master Servicer, the Seller, the Originator or any Affiliate
thereof merely because such Person is the beneficial owner of 1% or less of any
class of securities issued by the Depositor, the Master Servicer, the Seller,
the Originator or any Affiliate thereof, as the case may be.
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"Index": With respect to each Adjustable Rate Mortgage Loan and each
related Adjustment Date, either (i) the average of the interbank offered rates
for six-month United States dollar deposits in the London market as published in
The Wall Street Journal and as most recently available either (a) as of the
first Business Day 45 days prior to such Adjustment Date or (b) as of the first
Business Day of the month preceding the month of such Adjustment Date, as
specified in the related Mortgage Note or (ii) the weekly average yield on
United States Treasury Securities adjusted to a constant maturity of one year,
as published in the Federal Reserve Statistical Release H.15(519) as most
recently announced as of a date 45 days prior to such Adjustment Date.
"Insurance Proceeds": Proceeds of any title policy, hazard policy or other
insurance policy covering a Mortgage Loan, to the extent such proceeds are not
to be applied to the restoration of the related Mortgaged Property or released
to the Mortgagor in accordance with the applicable Servicing Agreement.
"Interest Accrual Period": With respect to any Distribution Date and the
Class A Certificates and the Mezzanine Certificates, the period commencing on
the Distribution Date of the month immediately preceding the month in which such
Distribution Date occurs (or, in the case of the first Distribution Date,
commencing on the Closing Date) and ending on the day preceding such
Distribution Date. With respect to any Distribution Date and the Class A-IO
Certificates, the one-month period ending on the last day of the calendar month
immediately preceding the month in which such Distribution Date occurs.
"Interest Carry Forward Amount": With respect to any Distribution Date and
the Class A Certificates, the Class A-IO Certificates and the Mezzanine
Certificates, the sum of (i) the amount, if any, by which (a) the Interest
Distribution Amount for such Class of Certificates as of the immediately
preceding Distribution Date exceeded (b) the actual amount distributed on such
Class of Certificates in respect of interest on such immediately preceding
Distribution Date and (ii) the amount of any Interest Carry Forward Amount for
such Class of Certificates remaining unpaid from the previous Distribution Date,
plus accrued interest on such sum calculated at the related Pass-Through Rate
for the most recently ended Interest Accrual Period.
"Interest Determination Date": With respect to the Class A Certificates,
the Mezzanine Certificates, REMIC II Regular Interest II-LTA, REMIC II Regular
Interest II-LTM1 REMIC II Regular Interest II-LTM2 and REMIC II Regular Interest
II-LTM3, and any Interest Accrual Period therefor, the second London Business
Day preceding the commencement of such Interest Accrual Period.
"Interest Distribution Amount": With respect to any Distribution Date and
any Class A Certificates, any Mezzanine Certificates, any Class A-IO
Certificates and any Class CE Certificates, the aggregate Accrued Certificate
Interest on the Certificates of such Class for such Distribution Date.
"Interest Remittance Amount": With respect to any Distribution Date, that
portion of the Available Distribution Amount for such Distribution Date that
represents interest received or advanced on the Mortgage Loans.
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"Late Collections": With respect to any Mortgage Loan and any Due Period,
all amounts received subsequent to the Determination Date immediately following
such Due Period, whether as late payments of Monthly Payments or as Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late payments or
collections of principal and/or interest due (without regard to any acceleration
of payments under the related Mortgage and Mortgage Note) but delinquent for
such Due Period and not previously recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made as to such Mortgage Loan or (iii) such Mortgage Loan is
removed from REMIC I by reason of its being purchased, sold or replaced pursuant
to or as contemplated by Section 2.03 or Section 9.01. With respect to any REO
Property, either of the following events: (i) a Final Recovery Determination is
made as to such REO Property or (ii) such REO Property is removed from REMIC I
by reason of its being purchased pursuant to Section 9.01.
"Liquidation Proceeds": The amount (other than Insurance Proceeds or
amounts received in respect of the rental of any REO Property prior to REO
Disposition) received by the Master Servicer in connection with (i) the taking
of all or a part of a Mortgaged Property by exercise of the power of eminent
domain or condemnation, (ii) the liquidation of a defaulted Mortgage Loan
through a trustee's sale, foreclosure sale or otherwise, or (iii) the
repurchase, substitution or sale of a Mortgage Loan or an REO Property pursuant
to or as contemplated by Section 2.03 or Section 9.01.
"Loan-to-Value Ratio": As of 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 and the denominator of which is the Value
of the related Mortgaged Property.
"London Business Day": Any day on which banks in the City of London are
open and conducting transactions in United States dollars.
"Loss Mitigation Advisor": The Murrayhill Company, a Colorado corporation.
"Loss Mitigation Advisory Agreement": The agreement between the Master
Servicer the Loss Mitigation Advisor, and each Servicer, respectively, each
dated November 20, 2001.
"Loss Mitigation Fee": As to each Mortgage Loan and any Distribution Date,
an amount equal to one twelfth of the product of the Loss Mitigation Fee Rate
multiplied by the Scheduled Principal Balance of the Mortgage Loans as of the
Due Date in the preceding calendar month.
"Loss Mitigation Fee Rate": 0.015% per annum.
"Loss Severity Percentage": With respect to any Distribution Date, the
percentage equivalent of a fraction, the numerator of which is the amount of
Realized Losses incurred on a Mortgage Loan and the denominator of which is the
principal balance of such Mortgage Loan immediately prior to the liquidation of
such Mortgage Loan.
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"Master Servicer": As of the Closing Date, Xxxxx Fargo Bank Minnesota,
National Association and thereafter, its respective successors in interest who
meet the qualifications of this Agreement and the Servicing Agreements.
"Master Servicer Collection Account": The account or accounts created and
maintained, or caused to be created and maintained, by the Master Servicer
pursuant to Section 3.23, which shall be denominated "First Union National Bank,
as Trustee f/b/o holders of ACE Securities Corp. Home Equity Loan Trust, Series
2001-HE1 - Master Servicer Collection Account". The Collection Account must be
an Eligible Account.
"Master Servicer Event of Default": One or more of the events described in
Section 7.01 hereof.
"Master Servicer Fee Rate" 0.0125% per annum.
"Master Servicing Fee": With respect to each Mortgage Loan and for any
calendar month, an amount equal to one twelfth of the product of the Master
Servicer Fee Rate multiplied by the Scheduled Principal Balance of the Mortgage
Loans as of the Due Date in the preceding calendar month.
"Marker Rate": With respect to the Class CE Certificates and any
Distribution Date, a per annum rate equal to two (2) times the weighted average
of the REMIC II Remittance Rate for each of the REMIC II Regular Interests
(other than REMIC II Regular Interest II-LTAA, REMIC II Regular Interest II-LTP
and REMIC II Regular Interest II-LTIO), with the rate on each such REMIC II
Regular Interest (other than REMIC II Regular Interest II-LTZZ) subject to a cap
equal to the lesser of (i) the related One-Month LIBOR Pass-Through Rate and
(ii) the Net WAC Pass-Through Rate for the purpose of this calculation for such
Distribution Date and with the rate on REMIC II Regular Interest II-LTZZ subject
to a cap of zero for the purpose of this calculation; provided however, each
such cap shall be multiplied by a fraction the numerator of which is the actual
number of days in the related Interest Accrual Period and the denominator of
which is 30.
"Maximum II-LTZZ Uncertificated Interest Deferral Amount": With respect to
any Distribution Date, the excess of (i) accrued interest at the REMIC II
Remittance Rate applicable to REMIC II Regular Interest I-LTZZ for such
Distribution Date on a balance equal to the Uncertificated Balance of REMIC II
Regular Interest II-LTZZ minus the REMIC II Overcollateralization Amount, in
each case for such Distribution Date, over (ii) Uncertificated Interest on REMIC
II Regular Interest I-LTA, REMIC II Regular Interest II-LTM1, REMIC II Regular
Interest II-LTM2 and REMIC II Regular Interest II-LTM3 for such Distribution
Date, with the rate on each such REMIC II Regular Interest subject to a cap
equal to the lesser of (i) the related One-Month LIBOR Pass-Through Rate and
(ii) the Net WAC Pass-Through Rate for the purpose of this calculation for such
Distribution Date; provided however, each such cap shall be multiplied by a
fraction the numerator of which is the actual number of days in the related
Interest Accrual Period and the denominator of which is 30.
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"Maximum Mortgage Rate": With respect to each Adjustable Rate Mortgage
Loan, the percentage set forth in the related Mortgage Note as the maximum
Mortgage Rate thereunder.
"Meritech Servicing Agreement": Shall mean the Interim Servicing Agreement,
dated as of October 31, 2001, between the Seller and Meritech Mortgage Services,
Inc. (as modified pursuant to the related Assignment Agreement).
"Mezzanine Certificate": Any Class M-1 Certificate, Class M-2 Certificate
or Class M-3 Certificate.
"MGIC": Mortgage Guaranty Insurance Corporation, a monoline private
insurance company organized and created under the laws of the State of
Wisconsin, or its successor in interest.
"MGIC Fee": With respect to each MGIC PMI Mortgage Loan and each
Distribution Date, an amount equal to one twelfth of the product of the MGIC Fee
Rate multiplied by the aggregate Scheduled Principal Balance of such MGIC PMI
Mortgage Loan as of the Due Date in the preceding calendar month.
"MGIC Fee Rate": Shall be the per annum percentage set forth on the
Mortgage Loan Schedule.
"MGIC PMI Mortgage Loans": The list of Mortgage Loans insured by MGIC and
identified on Schedule 3 attached hereto.
"MGIC PMI Policy": The Master Primary Mortgage Insurance Policy
(No.32-110-4- 1483) with respect to the MGIC PMI Mortgage Loans and all
endorsements thereto dated the Closing Date, issued by MGIC.
"Minimum Mortgage Rate": With respect to each Adjustable Rate Mortgage
Loan, the percentage set forth in the related Mortgage Note as the minimum
Mortgage Rate thereunder.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled monthly
payment of principal and interest on such Mortgage Loan which is payable by the
related Mortgagor from time to time under the related Mortgage Note, determined:
(a) after giving effect to (i) any Deficient Valuation and/or Debt Service
Reduction with respect to such Mortgage Loan and (ii) any reduction in the
amount of interest collectible from the related Mortgagor pursuant to the Relief
Act; (b) without giving effect to any extension granted or agreed to by the
related Servicer under the applicable Servicing Agreement; and (c) on the
assumption that all other amounts, if any, due under such Mortgage Loan are paid
when due.
"Moody's:" Xxxxx'x Investors Service, Inc. or any successor interest.
"Mortgage": The mortgage, deed of trust or other instrument creating a
first lien on, or first priority security interest in, a Mortgaged Property
securing a Mortgage Note.
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"Mortgage File": The Mortgage Loan Documents pertaining to a particular
Mortgage Loan.
"Mortgage Loan": Each mortgage loan transferred and assigned to the Trustee
delivered to the applicable Custodian pursuant to Section 2.01 of this Agreement
and pursuant to the applicable Custodial Agreement, as held from time to time as
a part of the Trust Fund, the Mortgage Loans so held being identified in the
Mortgage Loan Schedule.
"Mortgage Loan Documents": The documents evidencing or relating to each
Mortgage Loan delivered to the Custodian under the applicable Custodial
Agreement on behalf of the Trustee.
"Mortgage Loan Purchase Agreement": Shall mean either the NC Capital MLPA
or the HomeStar MLPA as the case may be.
"Mortgage Loan Schedule": As of any date, the list of Mortgage Loans
included in REMIC I on such date, attached hereto as Schedule 1. The Mortgage
Loan Schedule shall set forth the following information with respect to each
Mortgage Loan:
(i) the Mortgage Loan identifying number;
(ii) the Mortgagor's name;
(iii) the street address of the Mortgaged Property including the state
and zip code;
(iv) a code indicating whether the Mortgaged Property is
owner-occupied;
(v) the type of Residential Dwelling constituting the Mortgaged
Property;
(vi) the original months to maturity;
(vii) the stated remaining months to maturity from the Cut-off Date
based on the original amortization schedule;
(viii) the Loan-to-Value Ratio at origination;
(ix) the Mortgage Rate in effect immediately following the Cut-off
Date;
(x) (A) the date on which the first Monthly Payment was due on the
Mortgage Loan and, (B) if such date is not consistent with the Due Date
currently in effect, such Due Date;
(xi) the stated maturity date;
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(xii) the amount of the Monthly Payment at origination;
(xiii) the amount of the Monthly Payment due on the first Due Date
after the Cut-off Date;
(xiv) the last Due Date on which a Monthly Payment was actually
applied to the unpaid Stated Principal Balance;
(xv) the original principal amount of the Mortgage Loan;
(xvi) the Scheduled Principal Balance of the Mortgage Loan as of the
close of business on the Cut-off Date;
(xvii) with respect to each Adjustable Rate Mortgage Loan, the
Adjustment Dates;
(xviii) with respect to each Adjustable Rate Mortgage Loan, the Gross
Margin;
(xix) a code indicating the purpose of the Mortgage Loan (i.e.,
purchase financing, Rate/Term Refinancing, Cash-Out Refinancing);
(xx) with respect to each Adjustable Rate Mortgage Loan, the Maximum
Mortgage Rate;
(xxi) with respect to each Adjustable Rate Mortgage Loan, the Minimum
Mortgage Rate;
(xxii) the Mortgage Rate at origination;
(xxiii) with respect to each Adjustable Rate Mortgage Loan, the
Periodic Rate Cap and the maximum first Adjustment Date Mortgage Rate
adjustment;
(xxiv) a code indicating the documentation program (i.e., Full
Documentation, Limited Documentation, Stated Income Documentation);
(xxv) the Index;
(xxvi) with respect to each Adjustable Rate Mortgage Loan, the first
Adjustment Date immediately following the Cut-off Date;
(xxvii) the risk grade;
(xxviii) the Value of the Mortgaged Property;
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(xxix) the sale price of the Mortgaged Property, if applicable;
(xxx) the actual unpaid principal balance of the Mortgage Loan as of
the Cut-off Date;
(xxxi) if the related Mortgage Loan has a Prepayment Charge and if so,
the type and term of the related Prepayment Charge;
(xxxii) the rounding code (i.e., nearest 0.125%, next highest 0.125%);
(xxxiii) whether such Mortgage Loan is a MGIC PMI Mortgage Loan; and
(xxxiv) the MGIC Fee.
The Mortgage Loan Schedule shall set forth the following information with
respect to the Mortgage Loans in the aggregate as of the Cut-off Date: (1) the
number of Mortgage Loans; (2) the current principal balance of the Mortgage
Loans; (3) the weighted average Mortgage Rate of the Mortgage Loans and (4) the
weighted average maturity of the Mortgage Loans. The Mortgage Loan Schedule
shall be amended from time to time by the Depositor in accordance with the
provisions of this Agreement. With respect to any Qualified Substitute Mortgage
Loan, the Cut-off Date shall refer to the related Cut-off Date for such Mortgage
Loan, determined in accordance with the definition of Cut-off Date herein.
"Mortgage Note": The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Rate": With respect to each Mortgage Loan, the annual rate at
which interest accrues on such Mortgage Loan from time to time in accordance
with the provisions of the related Mortgage Note, which rate with respect to
each Adjustable Rate Mortgage Loan (A) as of any date of determination until the
first Adjustment Date following the Cut-off Date shall be the rate set forth in
the Mortgage Loan Schedule as the Mortgage Rate in effect immediately following
the Cut-off Date and (B) as of any date of determination thereafter shall be the
rate as adjusted on the most recent Adjustment Date equal to the sum, rounded to
the nearest 0.125% as provided in the Mortgage Note, of the related Index, as
most recently available as of a date prior to the Adjustment Date as set forth
in the related Mortgage Note, plus the related Gross Margin; provided that the
Mortgage Rate on such Adjustable Rate Mortgage Loan on any Adjustment Date shall
never be more than the lesser of (i) the sum of the Mortgage Rate in effect
immediately prior to the Adjustment Date plus the related Periodic Rate Cap, if
any, and (ii) the related Maximum Mortgage Rate, and shall never be less than
the greater of (i) the Mortgage Rate in effect immediately prior to the
Adjustment Date less the Periodic Rate Cap, if any, and (ii) the related Minimum
Mortgage Rate. With respect to each Mortgage Loan that becomes an REO Property,
as of any date of determination, the annual rate determined in accordance with
the immediately preceding sentence as of the date such Mortgage Loan became an
REO Property.
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"Mortgaged Property": The underlying property securing a Mortgage Loan,
including any REO Property, consisting of an Estate in Real Property improved by
a Residential Dwelling.
"Mortgagor": The obligor on a Mortgage Note.
"NC Capital": NC Capital Corporation, or its successor in interest.
"NC Capital MLPA": Shall mean the Mortgage Loan Purchase Agreement dated
November 20, 2001 among the Seller, the Depositor and the NC Capital.
"Net Monthly Excess Cashflow": With respect to any Distribution Date, the
sum of (i) any Overcollateralization Reduction Amount for such Distribution Date
and (ii) the excess of (x) the Available Distribution Amount for such
Distribution Date over (y) the sum for such Distribution Date of (A) the
aggregate Senior Interest Distribution Amounts payable to the holders of the
Class A Certificates and the Class A-IO Certificates, (B) the Interest
Distribution Amounts payable to the holders of the Mezzanine Certificates and
(C) the Principal Remittance Amount.
"Net Mortgage Rate": With respect to any Mortgage Loan (or the related REO
Property) as of any date of determination, a per annum rate of interest equal to
the then applicable Mortgage Rate for such Mortgage Loan minus the
Administration Fee Rate.
"Net WAC Pass-Through Rate": For any Distribution Date is a rate per annum
(adjusted for the actual number of days elapsed in the Interest Accrual Period)
equal to the weighted average of the Expense Adjusted Mortgage Rates on the then
outstanding Mortgage Loans, weighted based on their Scheduled Principal Balances
as of the first day of the calendar month preceding the month in which the
Distribution Date occurs minus the Class A-IO Pass-Through Rate for such
Distribution Date multiplied by a fraction, the numerator of which is the
Notional Amount with respect to the Class A-IO Certificates immediately prior to
such Distribution Date and the denominator of which is the aggregate Stated
Principal Balance of the Mortgage Loans as of the first day of the month
preceding the month of such Distribution Date. For federal income tax purposes,
however, the equivalent of the foregoing, expressed as a per annum rate (but not
less than zero) is equal to the weighted average of (v) the REMIC I Remittance
Rate with respect to REMIC I Regular Interest I-LTA and REMIC I Regular Interest
I-LTP for such Distribution Date, (w) the REMIC I Remittance Rate with respect
to REMIC I Regular Interest I-LTB for such Distribution Date, (x) the excess, if
any, of (1) the REMIC I Remittance Rate with respect to REMIC I Regular Interest
I-LTC for such Distribution Date over (2) (A) in the case of each Distribution
Date from and including the first Distribution Date to and including the
Distribution Date in August 2004, 6.00% per annum and (B) in the case of any
Distribution Date thereafter, 0.00% per annum; (y) the excess, if any, of (1)
the REMIC I Remittance Rate with respect to REMIC I Regular Interest I-LTD for
such Distribution Date over (2) (A) in the case of each Distribution Date from
and including the first Distribution Date to and including the Distribution Date
in November 2003, 6.00% per annum and (B) in the case of any Distribution Date
thereafter, 0.00% per annum, and (z) the excess, if any, of (1) the REMIC I
Remittance Rate with respect to REMIC I Regular Interest I-LTE for such
Distribution Date over (2) (A) in the case of each Distribution Date from and
including the first Distribution Date to and including the Distribution Date in
November 2002, 6.00% per annum and (B) in the case of any Distribution Date
thereafter, 0.00% per annum; weighted, in
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the case of clause (v), on the basis of the aggregate Uncertificated Balances of
REMIC I Regular Interest I-LTA and REMIC I Regular Interest I-LTP, in the case
of clause (w), on the basis of the Uncertificated Balance of REMIC I Regular
Interest I-LTB in the case of clause (x), on the basis of the Uncertificated
Balances of REMIC I Regular Interest I-LTC, in the case of clause (y), on the
basis of the Uncertificated Balance of REMIC I Regular Interest I-LTD and in the
case of clause (z), on the basis of the Uncertificated Balances of REMIC I
Regular Interest I-LTE.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or proposed
to be made in respect of a Mortgage Loan or REO Property that, in the good faith
business judgment of the Master Servicer, the Trustee (as successor Master
Servicer) or the applicable Servicer will not or, in the case of a proposed P&I
Advance, would not be ultimately recoverable from related late payments,
Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan or REO Property
as provided herein.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property that, in
the good faith business judgment of the applicable Servicer, will not or, in the
case of a proposed Servicing Advance, would not be ultimately recoverable from
related late payments, Insurance Proceeds or Liquidation Proceeds on such
Mortgage Loan or REO Property as provided herein.
"Non-United States Person": Any Person other than a United States Person.
"Notional Amount": With respect to the Class CE Certificates and any
Distribution Date, the Uncertificated Balance of the REMIC II Regular Interests
for such Distribution Date. With respect to the Class A-IO Certificates an
amount equal to the lesser of (A)(i) $180,915,000 for each Distribution Date
from and including the first Distribution Date to and including the Distribution
Date in November 2002, (ii) $123,025,000 for each Distribution Date from and
including the Distribution Date in December 2002 to and including the
Distribution Date in November 2003, (iii) $72,365,000 for each Distribution Date
from and including the Distribution Date in December 2003 to and including the
Distribution Date in August 2004, and (iv) $0 for each Distribution Date after
the August 2004 Distribution Date and (B) the aggregate Stated Principal Balance
of the Mortgage Loans with Expense Adjusted Mortgage Rates in excess of 6.00% as
of the Cut-off Date per annum prior to giving effect to the scheduled payments
of principal due during the related Due Period, to the extent received or
advanced, and unscheduled collections or principal received during the prior
calendar month. For federal income tax purposes, however, the Class A-IO
Certificate will not have a notional amount but instead will be entitled to 100%
of the interest payable on REMIC II Regular Interest II-LTIO.
"Offered Certificates" shall mean the Class A Certificates, the Class A-IO
Certificates and the Mezzanine Certificates, collectively.
"Officers' Certificate": A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a vice president (however
denominated), and by the Treasurer, the Secretary, or one of the assistant
treasurers or assistant secretaries of the applicable Servicer, the applicable
Originator, the Seller or the Depositor, as applicable.
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"One-Month LIBOR": With respect to the Class A Certificates, the Mezzanine
Certificates, REMIC II Regular Interest II-LTA, REMIC II Regular Interest
II-LTM1, REMIC II Regular Interest II-LTM2 and REMIC II Regular Interest II-LTM3
and any Interest Accrual Period therefor, the rate determined by the Master
Servicer on the related Interest Determination Date on the basis of the offered
rate for one-month U.S. dollar deposits, as such rate appears on Telerate Page
3750 as of 11:00 a.m. (London time) on such Interest Determination Date;
provided that if such rate does not appear on Telerate Page 3750, the rate for
such date will be determined on the basis of the offered rates of the Reference
Banks for one-month U.S. dollar deposits, as of 11:00 a.m. (London time) on such
Interest Determination Date. In such event, the Master Servicer will request the
principal London office of each of the Reference Banks to provide a quotation of
its rate. If on such Interest Determination Date, two or more Reference Banks
provide such offered quotations, One-Month LIBOR for the related Interest
Accrual Period shall be the arithmetic mean of such offered quotations (rounded
upwards if necessary to the nearest whole multiple of 1/16). If on such Interest
Determination Date, fewer than two Reference Banks provide such offered
quotations, One-Month LIBOR for the related Interest Accrual Period shall be the
higher of (i) LIBOR as determined on the previous Interest Determination Date
and (ii) the Reserve Interest Rate. Notwithstanding the foregoing, if, under the
priorities described above, LIBOR for an Interest Determination Date would be
based on LIBOR for the previous Interest Determination Date for the third
consecutive Interest Determination Date, the Master Servicer shall select an
alternative comparable index (over which the Master Servicer has no control),
used for determining one-month Eurodollar lending rates that is calculated and
published (or otherwise made available) by an independent party. The
establishment of One-Month LIBOR by the Master Servicer and the Master
Servicer's subsequent calculation of the One-Month LIBOR Pass-Through Rates for
the relevant Interest Accrual Period, shall, in the absence of manifest error,
be final and binding.
"One-Month LIBOR Pass-Through Rate": With respect to the Class A
Certificates and, for purposes of the definition of "Marker Rate", REMIC II
Regular Interest II-LTA, a per annum rate equal to One-Month LIBOR plus the
related Certificate Margin.
With respect to the Class M-1 Certificates and, for purposes of the
definition of "Marker Rate", REMIC II Regular Interest II-LTM1, a per annum rate
equal to One-Month LIBOR plus the related Certificate Margin.
With respect to the Class M-2 Certificates and, for purposes of the
definition of "Marker Rate", REMIC II Regular Interest II-LTM2, a per annum rate
equal to One-Month LIBOR plus the related Certificate Margin.
With respect to the Class M-3 Certificates and, for purposes of the
definition of "Marker Rate", REMIC II Regular Interest II-LTM3, a per annum rate
equal to One-Month LIBOR plus the related Certificate Margin.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, a Servicer or the Master
Servicer, acceptable to the Trustee, except that any
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opinion of counsel relating to (a) the qualification of any of any REMIC as a
REMIC or (b) compliance with the REMIC Provisions must be an opinion of
Independent counsel.
"Originator": Shall mean either NC Capital, HomeStar, SouthStar or Xxxxx
Fargo Home Mortgage, Inc.
"Overcollateralization Amount": With respect to any Distribution Date, the
excess, if any, of (a) the aggregate Stated Principal Balances of the Mortgage
Loans and REO Properties immediately following such Distribution Date over (b)
the sum of the aggregate Certificate Principal Balances of the Class A
Certificates, the Mezzanine Certificates and the Class P Certificates as of such
Distribution Date (after taking into account the payment of the Principal
Remittance Amount on such Distribution Date).
"Overcollateralization Increase Amount": With respect to the Class A
Certificates and the Mezzanine Certificates and any Distribution Date is any
amount of Net Monthly Excess Cashflow actually applied as an accelerated payment
of principal to the extent the Required Overcollateralization Amount exceeds the
Overcollateralization Amount.
"Overcollateralization Reduction Amount": With respect to any Distribution
Date, is the lesser of (i) the amount by which the Overcollateralization Amount
exceeds the Required Overcollateralization Amount and (ii) the Principal
Remittance Amount.
"Ownership Interest": As to any Certificate, any ownership or security
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, as owner or as pledgee.
"Pass-Through Rate": With respect to the Class A Certificates and the
Mezzanine Certificates and any Distribution Date, a rate per annum equal to the
lesser of (i) the related One-Month LIBOR Pass-Through Rate for such
Distribution Date and (ii) the Net WAC Pass-Through Rate for such Distribution
Date.
With respect to the Class CE Certificates and any Distribution Date, a rate
per annum equal to the percentage equivalent of a fraction, the numerator of
which is the sum of the amounts calculated pursuant to clauses (i) through (vii)
below, and the denominator of which is the aggregate Uncertificated Balances of
the REMIC II Regular Interests. For purposes of calculating the Pass-Through
Rate for the Class CE Certificates, the numerator is equal to the sum of the
following components:
(i) the REMIC II Remittance Rate for REMIC II Regular Interest II-LTAA
minus the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC II Regular Interest II-LTAA;
(ii) the REMIC II Remittance Rate for REMIC II Regular Interest II-LTA
minus the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC II Regular Interest II-LTA;
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(iii) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTM1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTM1;
(iv) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTM2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTM2;
(v) the REMIC II Remittance Rate for REMIC II Regular Interest II-LTM3
minus the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC II Regular Interest II-LTM3;
(vi) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTZZ minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC II Regular Interest II-LTZZ; and
(vii) 100% of the interest on REMIC II Regular Interest II-LTP.
"Percentage Interest": With respect to any Class of Certificates (other
than the Residual Certificates), the undivided percentage ownership in such
Class evidenced by such Certificate, expressed as a percentage, the numerator of
which is the initial Certificate Principal Balance represented by such
Certificate and the denominator of which is the aggregate initial Certificate
Principal Balance or Notional of all of the Certificates of such Class. The
Class A Certificates and the Mezzanine Certificates are issuable only in minimum
Percentage Interests corresponding to minimum initial Certificate Principal
Balances of $25,000 and integral multiples of $1,000 in excess thereof. The
Class A-IO Certificates are issuable only in minimum Percentage Interests
corresponding to minimum initial Notional Amounts of $10,000 and integral
multiples of $1.00 in excess thereof. The Class P Certificates are issuable only
in Percentage Interests corresponding to initial Certificate Principal Balances
of $20 and integral multiples thereof. The Class CE Certificates are issuable
only in minimum Percentage Interests corresponding to minimum initial
Certificate Principal Balances of $10,000 and integral multiples of $1.00 in
excess thereof; provided, however, that a single Certificate of each such Class
of Certificates may be issued having a Percentage Interest corresponding to the
remainder of the aggregate initial Certificate Principal Balance of such Class
or to an otherwise authorized denomination for such Class plus such remainder.
With respect to any Residual Certificate, the undivided percentage ownership in
such Class evidenced by such Certificate, as set forth on the face of such
Certificate. The Residual Certificates are issuable in Percentage Interests of
20% and integral multiples of 5% in excess thereof.
"Periodic Rate Cap": With respect to each Adjustable Rate Mortgage Loan and
any Adjustment Date therefor, the fixed percentage set forth in the related
Mortgage Note, which is the maximum amount by which the Mortgage Rate for such
Adjustable Rate Mortgage Loan may increase or decrease (without regard to the
Maximum Mortgage Rate or the Minimum Mortgage Rate) on such Adjustment Date from
the Mortgage Rate in effect immediately prior to such Adjustment Date.
"Permitted Investments": Any one or more of the following obligations or
securities acquired at a purchase price of not greater than par, regardless of
whether issued by the Depositor, the Master Servicer, the Trustee or any of
their respective Affiliates:
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(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances issued by, any Depository Institution;
(iii) repurchase obligations with respect to any security described in
clause (i) above entered into with a Depository Institution (acting as
principal);
(iv) securities bearing interest or sold at a discount that are issued
by any corporation incorporated under the laws of the United States of
America or any state thereof and that are rated by each Rating Agency that
rates such securities in its highest long-term unsecured rating categories
at the time of such investment or contractual commitment providing for such
investment;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 30 days after the date of acquisition thereof)
that is rated by each Rating Agency that rates such securities in its
highest short-term unsecured debt rating available at the time of such
investment;
(vi) units of money market funds that have been rated "AAA" by Fitch
(if rated by Fitch), "AAA" by S&P and "Aaa" by Xxxxx'x (or, if such Rating
Agencies are no longer rating the Offered Certificates, comparable ratings
by any other nationally recognized statistical rating agency then rating
the Offered Certificates); and
(vii) if previously confirmed in writing to the Trustee, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to the Rating Agencies as a permitted
investment of funds backing securities having ratings equivalent to its
highest initial rating of the Class A Certificates;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
"Permitted Transferee": Any Transferee of a Residual Certificate other than
a Disqualified Organization or Non-United States Person.
"Person": Any individual, limited liability company, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
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"P&I Advance": As to any Mortgage Loan or REO Property, any advance made by
the Servicer in respect of any Distribution Date pursuant to the related
Servicing Agreement or by the Master Servicer pursuant to Section 4.03 (which
advances shall not include interest shortfalls due to bankruptcy proceedings or
application of the Relief Act.)
"Plan": Any employee benefit plan or certain other retirement plans and
arrangements, including individual retirement accounts and annuities, Xxxxx
plans and bank collective investment funds and insurance company general or
separate accounts in which such plans, accounts or arrangements are invested,
that are subject to ERISA and Section 4975 of the Code.
"Prepayment Assumption": A prepayment rate for the Mortgage Loans of 28%
CPR. The Prepayment Assumption is used solely for determining the accrual of
original issue discount on the Certificates for federal income tax purposes. A
CPR (or Constant Prepayment Rate) represents an annualized constant assumed rate
of prepayment each month of a pool of mortgage loans relative to its outstanding
principal balance for the life of such pool.
"Prepayment Charge": With respect to any Principal Prepayment, any
prepayment premium, penalty or charge payable by a Mortgagor in connection with
any Principal Prepayment on a Mortgage Loan pursuant to the terms of the related
Mortgage Note, as set forth in Schedule 2 attached hereto.
"Prepayment Interest Shortfall": With respect to any Distribution Date, for
each Mortgage Loan that was during the related Prepayment Period the subject of
a Principal Prepayment that was applied by the applicable Servicer to reduce the
outstanding principal balance of such Mortgage Loan on a date preceding the Due
Date in the succeeding Prepayment Period, an amount equal to interest at the
applicable Net Mortgage Rate on the amount of such Principal Prepayment for the
number of days commencing on the date on which the prepayment is applied and
ending on the last day of the related Prepayment Period.
"Prepayment Period": With respect to any Distribution Date, the calendar
month preceding the calendar month in which such Distribution Date occurs.
"Principal Distribution Amount": With respect to any Distribution Date will
be the lesser of: (A) the excess of the Available Distribution Amount over the
sum of (i) the Senior Interest Distribution Amount for the Class A Certificates
and Class A-IO Certificates and (ii) the Interest Distribution Amount for the
Mezzanine Certificates; and (B) the sum of: (i) the Principal Remittance Amount;
plus (ii)the Overcollateralization Increase Amount for such Distribution Date;
minus (iii) the Overcollateralization Reduction Amount for such Distribution
Date.
"Principal Prepayment": Any payment of principal made by the Mortgagor on a
Mortgage Loan which is received in advance of its scheduled Due Date and which
is not accompanied by an amount of interest representing the full amount of
scheduled interest due on any Due Date in any month or months subsequent to the
month of prepayment.
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"Principal Remittance Amount": With respect to any Distribution Date is the
sum of (i) the principal portion of all scheduled Monthly Payments on the
Mortgage Loans actually received or advanced on or prior to the related
Determination Date; (ii) the principal portion of all proceeds received in
respect of the repurchase of a Mortgage Loan, or, in the case of a substitution,
amounts representing a principal adjustment, during the related Prepayment
Period as required by Section 2.03 hereof; (iii) the principal portion of all
other unscheduled collections, including insurance proceeds, liquidation
proceeds and all full and partial principal prepayments, received during the
related Prepayment Period to the extent applied as recoveries of principal on
the Mortgage Loans, net in each case of reimbursements to the Trustee, the
Master Servicer and the applicable Servicer and (iv) the principal portion of
any Realized Losses incurred or deemed to have been incurred on any Mortgage
Loans in the calendar month preceding the Distribution Date.
"Protected Account": An account established and maintained for the benefit
of the Certificateholders by each Servicer with respect to the related Mortgage
Loans and with respect to REO Property pursuant to the applicable Servicing
Agreement.
"Purchase Price": With respect to any Mortgage Loan or REO Property to be
purchased pursuant to or as contemplated by Section 2.03 or Section 9.01, and as
confirmed by an officers' certificate from the Master Servicer to the Trustee,
an amount equal to the sum of (i) 100% of the Stated Principal Balance thereof
as of the date of purchase (or such other price as provided in Section 9.01),
(ii) in the case of (x) a Mortgage Loan, accrued interest on such Stated
Principal Balance at the applicable Net Mortgage Rate in effect from time to
time from the Due Date as to which interest was last covered by a payment by the
Mortgagor or a P&I Advance by the applicable Servicer or the Master Servicer,
which payment or P&I Advance had as of the date of purchase been distributed
pursuant to Section 4.01, through the end of the calendar month in which the
purchase is to be effected and (y) an REO Property, the sum of (1) accrued
interest on such Stated Principal Balance at the applicable Net Mortgage Rate in
effect from time to time from the Due Date as to which interest was last covered
by a payment by the Mortgagor or a P&I Advance by the applicable Servicer or the
Master Servicer through the end of the calendar month immediately preceding the
calendar month in which such REO Property was acquired, plus (2) REO Imputed
Interest for such REO Property for each calendar month commencing with the
calendar month in which such REO Property was acquired and ending with the
calendar month in which such purchase is to be effected, net of the total of all
net rental income, Insurance Proceeds, Liquidation Proceeds and P&I Advances
that as of the date of purchase had been distributed as or to cover REO Imputed
Interest in accordance with the applicable Servicing Agreement, (iii) any
unreimbursed Servicing Advances and P&I Advances (including Nonrecoverable P&I
Advances and Nonrecoverable Servicing Advances) and any unpaid Servicing Fees or
Master Servicing Fees allocable to such Mortgage Loan or REO Property and (iv)
in the case of a Mortgage Loan required to be purchased pursuant to Section
2.03, expenses reasonably incurred or to be incurred by the Master Servicer or
the Trustee in respect of the breach or defect giving rise to the purchase
obligation.
"Qualified Substitute Mortgage Loan": A mortgage loan substituted for a
Deleted Mortgage Loan pursuant to the terms of this Agreement which must, on the
date of such substitution, (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior
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to the month of substitution, not in excess of the Scheduled Principal Balance
of the Deleted Mortgage Loan as of the Due Date in the calendar month during
which the substitution occurs, (ii) have a Mortgage Rate not less than (and not
more than one percentage point in excess of) the Mortgage Rate of the Deleted
Mortgage Loan, (iii) have a Maximum Mortgage Rate not less than the Maximum
Mortgage Rate on the Deleted Mortgage Loan, (iv) have a Minimum Mortgage Rate
not less than the Minimum Mortgage Rate of the Deleted Mortgage Loan, (v) have a
Gross Margin equal to the Gross Margin of the Deleted Mortgage Loan, (vi) have a
next Adjustment Date not more than two months later than the next Adjustment
Date on the Deleted Mortgage Loan, (vii) have a remaining term to maturity not
greater than (and not more than one year less than) that of the Deleted Mortgage
Loan, (viii) have the same Due Date as the Due Date on the Deleted Mortgage
Loan, (ix) have a Loan-to-Value Ratio as of the date of substitution equal to or
lower than the Loan-to-Value Ratio of the Deleted Mortgage Loan as of such date,
(x) have a risk grading at least equal to the risk grading assigned on the
Deleted Mortgage Loan, (xi) is a "qualified mortgage" as defined in the REMIC
Provisions and (xii) conform to each representation and warranty set forth in
Section 6 of the applicable Mortgage Loan Purchase Agreement or Section 4 of the
applicable Assignment Agreement applicable to the Deleted Mortgage Loan. In the
event that one or more mortgage loans are substituted for one or more Deleted
Mortgage Loans, the amounts described in clause (i) hereof shall be determined
on the basis of aggregate principal balances, the Mortgage Rates described in
clause (ii) hereof shall be determined on the basis of weighted average Mortgage
Rates, the terms described in clause (vii) hereof shall be determined on the
basis of weighted average remaining term to maturity, the Loan-to-Value Ratios
described in clause (ix) hereof shall be satisfied as to each such mortgage
loan, the risk gradings described in clause (x) hereof shall be satisfied as to
each such mortgage loan and, except to the extent otherwise provided in this
sentence, the representations and warranties described in clause (xii) hereof
must be satisfied as to each Qualified Substitute Mortgage Loan or in the
aggregate, as the case may be.
"Rate/Term Refinancing": A Refinanced Mortgage Loan, the proceeds of which
are not more than a nominal amount in excess of the existing first mortgage loan
and any subordinate mortgage loan on the related Mortgaged Property and related
closing costs, and were used exclusively (except for such nominal amount) to
satisfy the then existing first mortgage loan and any subordinate mortgage loan
of the Mortgagor on the related Mortgaged Property and to pay related closing
costs.
"Rating Agency or Rating Agencies": Fitch, Xxxxx'x and S&P or their
successors. If such agencies or their successors are no longer in existence,
"Rating Agencies" shall be such nationally recognized statistical rating
agencies, or other comparable Persons, designated by the Depositor, notice of
which designation shall be given to the Trustee and the Master Servicer.
"Realized Loss": With respect to each Mortgage Loan as to which a Final
Recovery Determination has been made, an amount (not less than zero) equal to
(i) the unpaid principal balance of such Mortgage Loan as of the commencement of
the calendar month in which the Final Recovery Determination was made, plus (ii)
accrued interest from the Due Date as to which interest was last paid by the
Mortgagor through the end of the calendar month in which such Final Recovery
Determination was made, calculated in the case of each calendar month during
such period (A) at an annual rate equal to the annual rate at which interest was
then accruing on such Mortgage Loan and (B) on a principal amount equal to the
Stated Principal Balance of such Mortgage Loan as of the close of business on
the Distribution Date during such calendar
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month, minus (v) the proceeds, if any, received in respect of such Mortgage Loan
during the calendar month in which such Final Recovery Determination was made,
net of amounts that are payable therefrom to the Servicer with respect to such
Mortgage Loan pursuant to Section 3.26(a).
With respect to any REO Property as to which a Final Recovery Determination
has been made, an amount (not less than zero) equal to (i) the unpaid principal
balance of the related Mortgage Loan as of the date of acquisition of such REO
Property on behalf of REMIC I, plus (ii) accrued interest from the Due Date as
to which interest was last paid by the Mortgagor in respect of the related
Mortgage Loan through the end of the calendar month immediately preceding the
calendar month in which such REO Property was acquired, calculated in the case
of each calendar month during such period (A) at an annual rate equal to the
annual rate at which interest was then accruing on the related Mortgage Loan and
(B) on a principal amount equal to the Stated Principal Balance of the related
Mortgage Loan as of the close of business on the Distribution Date during such
calendar month, plus (iii) REO Imputed Interest for such REO Property for each
calendar month commencing with the calendar month in which such REO Property was
acquired and ending with the calendar month in which such Final Recovery
Determination was made, minus (iv) the aggregate of all xxxxxxxxxxxx X&X
Advances and Servicing Advances.
With respect to each Mortgage Loan which has become the subject of a
Deficient Valuation, the difference between the principal balance of the
Mortgage Loan outstanding immediately prior to such Deficient Valuation and the
principal balance of the Mortgage Loan as reduced by the Deficient Valuation.
With respect to each Mortgage Loan which has become the subject of a Debt
Service Reduction, the portion, if any, of the reduction in each affected
Monthly Payment attributable to a reduction in the Mortgage Rate imposed by a
court of competent jurisdiction. Each such Realized Loss shall be deemed to have
been incurred on the Due Date for each affected Monthly Payment.
"Record Date": With respect to each Distribution Date and the Class A
Certificates and the Mezzanine Certificates, the Business Day immediately
preceding such Distribution Date for so long as such Certificates are Book-Entry
Certificates. With respect to each Distribution Date and any other Class of
Certificates, including any Definitive Certificates, the last Business Day of
the month immediately preceding the month in which such Distribution Date
occurs.
"Reference Banks": Bankers Trust Company, Xxxxxxx'x Bank PLC, The Tokyo
Mitsubishi Bank and National Westminster Bank PLC and their successors in
interest; provided, however, that if any of the foregoing banks are not suitable
to serve as a Reference Bank, then any leading banks selected by the Master
Servicer which are engaged in transactions in Eurodollar deposits in the
International Eurocurrency market (i) with an established place of business in
London, (ii) not controlling, under the control of or under common control with
the Depositor or any Affiliate thereof and (iii) which have been designated as
such by the Master Servicer.
"Refinanced Mortgage Loan": A Mortgage Loan the proceeds of which were not
used to purchase the related Mortgaged Property.
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"Regular Certificate": Any Class A Certificate, Class A-IO Certificate,
Mezzanine Certificate, Class CE Certificate or Class P Certificate.
"Regular Interest": A "regular interest" in a REMIC within the meaning of
Section 860G(a)(1) of the Code.
"Relief Act": The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
"Relief Act Interest Shortfall": With respect to any Distribution Date and
any Mortgage Loan, any reduction in the amount of interest collectible on such
Mortgage Loan for the most recently ended calendar month as a result of the
application of the Relief Act.
"REMIC": A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
"REMIC I": The segregated pool of assets subject hereto, constituting the
primary trust created hereby and to be administered hereunder, with respect to
which a REMIC election is to be made, consisting of: (i) such Mortgage Loans and
Prepayment Charges as from time to time are subject to this Agreement, together
with the Mortgage Files relating thereto, and together with all collections
thereon and proceeds thereof; (ii) any REO Property, together with all
collections thereon and proceeds thereof; (iii) the Trustee's rights with
respect to the Mortgage Loans under all insurance policies required to be
maintained pursuant to this Agreement and any proceeds thereof; (iv) the
Depositor's rights under the Mortgage Loan Purchase Agreements and the
Assignment Agreements (including any security interest created thereby); (v) the
Master Servicer Collection Account and the Distribution Account, and such assets
that are deposited therein from time to time and any investments thereof,
together with any and all income, proceeds and payments with respect thereto.
Notwithstanding the foregoing, however, REMIC I specifically excludes (i) all
payments and other collections of principal and interest due on the Mortgage
Loans on or before the Cut-off Date and all Prepayment Charges payable in
connection with Principal Prepayments made before the Cut-off Date and (ii) the
Reserve Fund and any amounts on deposit therein from time to time and any
proceeds thereof.
"REMIC I Regular Interest": Any of the six separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I. Each REMIC I Regular Interest shall accrue
interest at the related REMIC I Remittance Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto. The designations for
the respective REMIC I Regular Interests are set forth in the Preliminary
Statement hereto.
"REMIC I Regular Interest I-LTA": One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest I-LTA shall accrue
interest at the related REMIC I Remittance Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
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"REMIC I Regular Interest I-LTB": One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest I-LTB shall accrue
interest at the related REMIC I Remittance Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTC": One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest I-LTC shall accrue
interest at the related REMIC I Remittance Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTD": One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest I-LTD shall accrue
interest at the related REMIC I Remittance Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTE": One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest I-LTE shall accrue
interest at the related REMIC I Remittance Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
"REMIC I Regular Interest I-LTP": One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest I-LTP shall be entitled to
the Prepayment Charges collected by the applicable Servicer, shall accrue
interest at the related REMIC I Remittance Rate in effect from time to time, and
shall be entitled to a distribution of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to each REMIC I Regular Interest
(other than REMIC I Regular Interest I-LTB) and any Distribution Date, a per
annum rate equal to the weighted average of the Expense Adjusted Mortgage Rates
of those Mortgage Loans with an Expense Adjusted Mortgage Rate as of the Cut-off
Date of 6.00% or greater. With respect to REMIC I Regular Interest I-LTB and any
Distribution Date, a per annum rate equal to the weighted average of the Expense
Adjusted Mortgage Rates of those Mortgage Loans with an Expense Adjusted
Mortgage Rate as of the Cut-off Date of less than 6.00%.
"REMIC II": The segregated pool of assets consisting of all of the REMIC I
Regular Interests conveyed in trust to the Trustee, for the benefit of REMIC
III, as holder of the REMIC III Regular
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Interests, and the Class R-III Certificateholders pursuant to Section 2.07, and
all amounts deposited therein, with respect to which a separate REMIC election
is to be made.
"REMIC II Interest Loss Allocation Amount": With respect to any
Distribution Date, an amount equal to (a) the product of (i) the aggregate
Stated Principal Balance of the Mortgage Loans and REO Properties then
outstanding and (ii) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAA minus the Marker Rate, divided by (b) 12.
"REMIC II Overcollateralization Amount": With respect to any date of
determination, (i) 1% of the aggregate Uncertificated Balances of the REMIC II
Regular Interests minus (ii) the aggregate of the Uncertificated Balances of
REMIC II Regular Interest II-LTA, REMIC II Regular Interest II-LTM1, REMIC II
Regular Interest II-LTM2, REMIC II Regular Interest II-LTM3 and REMIC Regular
Interest II-LTP, in each case as of such date of determination.
"REMIC II Principal Loss Allocation Amount": With respect to any
Distribution Date, an amount equal to (a) the product of (i) the aggregate
Stated Principal Balance of the Mortgage Loans and REO Properties then
outstanding and (ii) 1 minus a fraction, the numerator of which is two times the
aggregate of the Uncertificated Balances of REMIC II Regular Interest II-LTA,
REMIC II Regular Interest II-LTM1, REMIC II Regular Interest II-LTM2 and REMIC
II Regular Interest II-LTM3 and the denominator of which is the aggregate of the
Uncertificated Balances of REMIC II Regular Interest II-LTA, REMIC II Regular
Interest II-LTM1, REMIC II Regular Interest II-LTM2, REMIC II Regular Interest
II-LTM3 and REMIC II Regular Interest II-LTZZ.
"REMIC II Regular Interest": Any of the eight separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
"regular interest" in REMIC II. Each REMIC II Regular Interest shall accrue
interest at the related REMIC II Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance or Uncertificated Notional Amount, as applicable, as set forth in the
Preliminary Statement hereto. The designations for the respective REMIC II
Regular Interests are set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTAA": One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest II-LTAA shall accrue
interest at the related REMIC II Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTA": One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II . REMIC II Regular Interest II-LTA shall accrue
interest at the related REMIC II Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
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"REMIC II Regular Interest II-LTM1": One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest II-LTM1 shall accrue
interest at the related REMIC II Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTM2": One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest II-LTM2 shall accrue
interest at the related REMIC II Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTM3": One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest II-LTM3 shall accrue
interest at the related REMIC II Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTZZ": One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest II-LTZZ shall accrue
interest at the related REMIC II Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
"REMIC II Regular Interest II-LTIO": One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest II-LTIO shall accrue
interest at the related REMIC II Remittance Rate in effect from time to time,
and shall not be entitled to distributions of principal.
"REMIC II Regular Interest II-LTP": One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest II-LTP shall accrue
interest at the related REMIC II Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto.
"REMIC II Remittance Rate": With respect to the REMIC II Regular Interests
(other than REMIC II Regular Interest II-LTIO), a per annum rate equal to the
Net WAC Pass-Through Rate. With respect to REMIC II Regular Interest II-LTIO, a
per annum rate equal to 6.00% for each Distribution Date through the
Distribution Date in August 2004, and 0.00% per annum thereafter.
"REMIC II Required Overcollateralization Amount": 1% of the Required
Overcollateralization Amount.
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"REMIC III": The segregated pool of assets consisting of all of the REMIC
II Regular Interests conveyed in trust to the Trustee, for the benefit of the
REMIC III Certificateholders pursuant to Section 2.09, and all amounts deposited
therein, with respect to which a separate REMIC election is to be made.
"REMIC III Certificate": Any Regular Certificate or Class R-III
Certificate.
"REMIC III Certificateholder": The Holder of any REMIC III Certificate.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Section 860A through
860G of the Code, and related provisions, and proposed, temporary and final
regulations and published rulings, notices and announcements promulgated
thereunder, as the foregoing may be in effect from time to time.
"Remittance Report": A report by the Master Servicer pursuant to Section
4.02.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code as being included in
the term "rents from real property."
"REO Disposition": The sale or other disposition of an REO Property on
behalf of REMIC I.
"REO Imputed Interest": As to any REO Property, for any calendar month
during which such REO Property was at any time part of REMIC I, one month's
interest at the applicable Net Mortgage Rate on the Stated Principal Balance of
such REO Property (or, in the case of the first such calendar month, of the
related Mortgage Loan, if appropriate) as of the close of business on the
Distribution Date in such calendar month.
"REO Principal Amortization": With respect to any REO Property, for any
calendar month, the excess, if any, of (a) the aggregate of all amounts received
in respect of such REO Property during such calendar month, whether in the form
of rental income, sale proceeds (including, without limitation, that portion of
the Termination Price paid in connection with a purchase of all of the Mortgage
Loans and REO Properties pursuant to Section 9.01 that is allocable to such REO
Property) or otherwise, net of any portion of such amounts (i) payable in
respect of the proper operation, management and maintenance of such REO Property
or (ii) payable or reimbursable to the Servicer for unpaid Servicing Fees in
respect of the related Mortgage Loan and unreimbursed Servicing Advances and P&I
Advances in respect of such REO Property or the related Mortgage Loan, over (b)
the REO Imputed Interest in respect of such REO Property for such calendar
month.
"REO Property": A Mortgaged Property acquired by a Servicer on behalf of
REMIC I through foreclosure or deed-in-lieu of foreclosure, as described in the
applicable Servicing Agreement.
"Required Overcollateralization Amount": With respect to any Distribution
Date (i) prior to the Stepdown Date, $3,618,294.65, (ii) on or after the
Stepdown Date provided a Trigger Event is not in effect, the greater of (x)
1.00% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
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last day of the related Due Period and (y) $3,618,294.65, and (iii) on or after
the Stepdown Date and a Trigger Event is in effect, the Required
Overcollateralization Amount for the immediately preceding Distribution Date.
"Reserve Fund": A fund created pursuant to Section 3.27 of this Agreement
which shall be an asset of the Trust Fund but which shall not be an asset of any
Trust REMIC.
"Reserve Interest Rate": With respect to any Interest Determination Date,
the rate per annum that the Master Servicer determines to be either (i) the
arithmetic mean (rounded upwards if necessary to the nearest whole multiple of
1/16%) of the one-month U.S. dollar lending rates which New York City banks
selected by the Master Servicer are quoting on the relevant Interest
Determination Date to the principal London offices of leading banks in the
London interbank market or (ii) in the event that the Master Servicer can
determine no such arithmetic mean, the lowest one-month U.S. dollar lending rate
which New York City banks selected by the Master Servicer are quoting on such
Interest Determination Date to leading European banks.
"Residential Dwelling": Any one of the following: (i) an attached, detached
or semi-detached one-family dwelling, (ii) an attached, detached or
semi-detached two- to four-family dwelling, (iii) a one-family dwelling unit in
a Xxxxxx Xxx eligible condominium project, or (iv) an attached, detached or
semi-detached one-family dwelling in a planned unit development, none of which
is a co-operative, mobile or manufactured home (as defined in 00 Xxxxxx Xxxxxx
Code, Section 5402(6)).
"Residual Certificate": Any one of the Class R-I Certificates, Class R-II
Certificates or the Class R-III Certificates.
"Residual Interest": The sole class of "residual interests" in a REMIC
within the meaning of Section 860G(a)(2) of the Code.
"Responsible Officer": When used with respect to the Trustee, the Chairman
or Vice Chairman of the Board of Directors or Trustees, the Chairman or Vice
Chairman of the Executive or Standing Committee of the Board of Directors or
Trustees, the President, the Chairman of the Committee on Trust Matters, any
vice president, any assistant vice president, the Secretary, any assistant
secretary, the Treasurer, any assistant treasurer, the Cashier, any assistant
cashier, any trust officer or assistant trust officer, the Controller and any
assistant controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
in each case having direct responsibility for the administration of this
Agreement and, with respect to a particular matter, to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"S&P": Standard and Poor's, a division of the XxXxxx-Xxxx Companies, Inc.
"Scheduled Principal Balance": With respect to any Mortgage Loan: (a) as of
the Cut-off Date, the outstanding principal balance of such Mortgage Loan as of
such date, net of the principal portion of all unpaid Monthly Payments, if any,
due on or before such date; (b) as of any Due Date subsequent to the
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Cut-off Date up to and including the Due Date in the calendar month in which a
Liquidation Event occurs with respect to such Mortgage Loan, the Scheduled
Principal Balance of such Mortgage Loan as of the Cut-off Date, minus the sum of
(i) the principal portion of each Monthly Payment due on or before such Due Date
but subsequent to the Cut-off Date, whether or not received, (ii) all Principal
Prepayments received before such Due Date but after the Cut-off Date, (iii) the
principal portion of all Liquidation Proceeds and Insurance Proceeds received
before such Due Date but after the Cut-off Date, net of any portion thereof that
represents principal due (without regard to any acceleration of payments under
the related Mortgage and Mortgage Note) on a Due Date occurring on or before the
date on which such proceeds were received and (iv) any Realized Loss incurred
with respect thereto as a result of a Deficient Valuation occurring before such
Due Date, but only to the extent such Realized Loss represents a reduction in
the portion of principal of such Mortgage Loan not yet due (without regard to
any acceleration of payments under the related Mortgage and Mortgage Note) as of
the date of such Deficient Valuation; and (c) as of any Due Date subsequent to
the occurrence of a Liquidation Event with respect to such Mortgage Loan, zero.
With respect to any REO Property: (a) as of any Due Date subsequent to the date
of its acquisition on behalf of the Trust Fund up to and including the Due Date
in the calendar month in which a Liquidation Event occurs with respect to such
REO Property, an amount (not less than zero) equal to the Scheduled Principal
Balance of the related Mortgage Loan as of the Due Date in the calendar month in
which such REO Property was acquired, minus the aggregate amount of REO
Principal Amortization, if any, in respect of such REO Property for all
previously ended calendar months; and (b) as of any Due Date subsequent to the
occurrence of a Liquidation Event with respect to such REO Property, zero.
"Seller": Deutsche Bank AG New York Branch or its successor in interest, in
its capacity as seller under the Mortgage Loan Purchase Agreements and in its
capacity as assignor under the Assignment Agreements.
"Senior Interest Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of (i) the Interest Distribution Amount for
such Distribution Date for the Class A Certificates and the Class A-IO
Certificates and (ii) the Interest Carry Forward Amount, if any, for such
Distribution Date for the Class A Certificates and the Class A-IO Certificates.
"Servicer": Either Meritech Mortgage Services, Inc. or Xxxxx Fargo Home
Mortgage, Inc., as applicable, or any successor appointed under the applicable
Servicing Agreement.
"Servicer Remittance Date": The second Business Day immediately preceding
the Distribution Account Deposit Date.
"Servicing Advances": The reasonable "out-of-pocket" costs and expenses
incurred by the applicable Servicer in connection with a default, delinquency or
other unanticipated event by the Servicer in the performance of its servicing
obligations, including, but not limited to, the cost of (i) the preservation,
restoration and protection of a Mortgaged Property, (ii) any enforcement or
judicial proceedings, including foreclosures, in respect of a particular
Mortgage Loan and (iii) the management (including reasonable fees in connection
therewith) and liquidation of any REO Property. The Servicer shall not be
required to make any Servicing Advance in respect of a Mortgage Loan or REO
Property that, in the good faith business
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judgment of the Servicer, would not be ultimately recoverable from related
Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan or REO Property
as provided herein.
"Servicing Agreement:" Shall mean either the Meritech Servicing Agreement
or the Xxxxx Fargo Servicing Agreement.
"Servicing Fee": With respect to each Mortgage Loan and for any calendar
month, an amount equal to one twelfth of the product of the Servicing Fee Rate
multiplied by the Scheduled Principal Balance of the Mortgage Loans as of the
Due Date in the preceding calendar month. The Servicing Fee is payable solely
from collections of interest on the Mortgage Loans.
"Servicing Fee Rate": 0.50% per annum.
"Servicing Officer": Any officer of the applicable Servicer or Master
Servicer involved in, or responsible for, the administration and servicing or
master servicing of Mortgage Loans, whose name and specimen signature appear on
a list of Servicing Officers furnished by the Servicer and the Master Servicer
to the Trustee and the Depositor on the Closing Date, as such list may from time
to time be amended.
"Single Certificate": With respect to any Class of Certificates (other than
the Residual Certificates), a hypothetical Certificate of such Class evidencing
a Percentage Interest for such Class corresponding to an initial Certificate
Principal Balance of $1,000. With respect to the Residual Certificates, a
hypothetical Certificate of such Class evidencing a 100% Percentage Interest in
such Class.
"SouthStar": SouthStar Funding, LLC or its successor in interest.
"Startup Day": With respect to each Trust REMIC, the day designated as such
pursuant to Section 10.01(b) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan: (a) as of
any date of determination up to but not including the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, the Scheduled Principal Balance of such Mortgage Loan as
of the Cut-off Date, as shown in the Mortgage Loan Schedule, minus the sum of
(i) the principal portion of each Monthly Payment due on a Due Date subsequent
to the Cut-off Date, to the extent received from the Mortgagor or advanced by
the Servicer and distributed pursuant to Section 4.01 on or before such date of
determination, (ii) all Principal Prepayments received after the Cut-off Date,
to the extent distributed pursuant to Section 4.01 on or before such date of
determination, (iii) all Liquidation Proceeds and Insurance Proceeds applied by
the Servicer as recoveries of principal in accordance with the provisions of
Section 3.16, to the extent distributed pursuant to Section 4.01 on or before
such date of determination, and (iv) any Realized Loss incurred with respect
thereto as a result of a Deficient Valuation made during or prior to the
Prepayment Period for the most recent Distribution Date coinciding with or
preceding such date of determination; and (b) as of any date of determination
coinciding with or subsequent to the Distribution Date on which the proceeds, if
any, of a Liquidation Event with respect to such Mortgage Loan would be
distributed, zero. With respect to any REO Property: (a) as of any date of
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determination up to but not including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such REO Property would
be distributed, an amount (not less than zero) equal to the Stated Principal
Balance of the related Mortgage Loan as of the date on which such REO Property
was acquired on behalf of REMIC I, minus the sum of (i) if such REO Property was
acquired before the Distribution Date in any calendar month, the principal
portion of the Monthly Payment due on the Due Date in the calendar month of
acquisition, to the extent advanced by the Servicer and distributed pursuant to
Section 4.01 on or before such date of determination, and (ii) the aggregate
amount of REO Principal Amortization in respect of such REO Property for all
previously ended calendar months, to the extent distributed pursuant to Section
4.01 on or before such date of determination; and (b) as of any date of
determination coinciding with or subsequent to the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such REO Property
would be distributed, zero.
"Stayed Funds": If the Master Servicer is the subject of a proceeding under
the federal Bankruptcy Code and the making of a Remittance (as defined in
Section 7.02(b)) is prohibited by Section 362 of the federal Bankruptcy Code,
funds that are in the custody of the Servicer, a trustee in bankruptcy or a
federal bankruptcy court and should have been the subject of such Remittance
absent such prohibition.
"Stepdown Date": The earlier to occur of (i) the later to occur of (a) the
Distribution Date occurring in December 2004 and (b) the first Distribution Date
on which the Credit Enhancement Percentage (calculated for this purpose only
after taking into account distributions of principal on the Mortgage Loans but
prior to any distribution of the Principal Distribution Amount to the
Certificates then entitled to distributions of principal on such Distribution
Date) is equal to or greater than 12.00% and (ii) the first Distribution Date on
which the aggregate Certificate Principal Balance of the Class A Certificates
has been reduced to zero.
"Substitution Shortfall Amount": As defined in Section 2.03(d).
"Tax Returns": The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of the Trust REMICs under the REMIC Provisions, together with any and
all other information reports or returns that may be required to be furnished to
the Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
"Telerate Page 3750": The display designated as page "3750" on the Dow
Xxxxx Telerate Capital Markets Report (or such other page as may replace page
3750 on that report for the purpose of displaying London interbank offered rates
of major banks).
"Termination Price": As defined in Section 9.01.
"Terminator": As defined in Section 9.01.
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"Transfer": Any direct or indirect transfer, sale, pledge, hypothecation,
or other form of assignment of any Ownership Interest in a Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer of any Ownership
Interest in a Certificate.
"Trigger Event": A Trigger Event has occurred with respect to a
Distribution Date if the Delinquency Percentage exceeds the lesser of (i) 50% of
the Credit Enhancement Percentage or (ii) 6.00%.
"Trust": ACE Securities Corp., Home Equity Loan Trust, Series 2001-HE1, the
trust created hereunder.
"Trust REMIC": REMIC I, REMIC II or REMIC III.
"Trustee": First Union National Bank, a national banking association, or
its successor in interest, or any successor trustee appointed as herein
provided.
"Trust Fund": Collectively, all of the assets of REMIC I, REMIC II, REMIC
III and the Reserve Fund, and any amounts on deposit therein and any proceeds
thereof.
"Uncertificated Balance": The amount of the Uncertificated REMIC Regular
Interests outstanding as of any date of determination. As of the Closing Date,
the Uncertificated Balance of each Uncertificated REMIC Regular Interest shall
equal the amount set forth in the Preliminary Statement hereto as its initial
uncertificated balance. On each Distribution Date, the Uncertificated Balance of
the Uncertificated REMIC Regular Interest shall be reduced by all distributions
of principal made on such Uncertificated REMIC Regular Interest on such
Distribution Date pursuant to Section 4.01 and, if and to the extent necessary
and appropriate, shall be further reduced on such Distribution Date by Realized
Losses as provided in Section 4.04 and the Uncertificated Balance of REMIC II
Regular Interest II-LTZZ shall be increased by interest deferrals as provided in
Section 4.01(a)(1)(A)(i). The Uncertificated Balance of each Uncertificated
REMIC Regular Interest shall never be less than zero.
"Uncertificated Interest": With respect to any REMIC II Regular Interest
for any Distribution Date, one month's interest at the REMIC II Remittance Rate
applicable to such REMIC II Regular Interest for such Distribution Date, accrued
on the Uncertificated Balance or Uncertificated Notional Amount, as applicable,
thereof immediately prior to such Distribution Date. Uncertificated Interest in
respect of the REMIC II Regular Interests shall accrue on the basis of a 360-day
year consisting of twelve 30-day months. Uncertificated Interest with respect to
each Distribution Date, as to any Uncertificated REMIC Regular Interest, shall
be reduced by an amount equal to the sum of (a) the aggregate Prepayment
Interest Shortfall, if any, for such Distribution Date to the extent not covered
by payments pursuant to Section 3.24 and (b) the aggregate amount of any Relief
Act Interest Shortfall, if any allocated, in each case, to such REMIC I Regular
Interest or REMIC II Regular Interest pursuant to Section 1.02. In addition,
Uncertificated Interest with respect to each Distribution Date, as to any
Uncertificated REMIC Regular
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Interest, shall be reduced by Realized Losses, if any, allocated to such
Uncertificated REMIC Regular Interest pursuant to Section 1.02 and Section 4.04.
"Uncertificated Notional Amount:" With respect to REMIC II Regular Interest
II-LTIO, an amount equal to: (i) with respect to each Distribution Date from and
including the first Distribution Date to and including the Distribution Date in
November 2002, the aggregate Uncertificated Balances of REMIC I Regular Interest
I-LTC, REMIC I Regular Interest I-LTD and REMIC I Regular Interest I-LTE; (ii)
with respect to each Distribution Date from and including the Distribution Date
beginning in December 2002 to and including the Distribution Date in November
2003, the aggregate Uncertificated Balances of REMIC I Regular Interest I-LTC
and REMIC I Regular Interest I-LTD; and (iii) with respect to each Distribution
Date from and including the Distribution Date beginning in December 2003 to and
including the Distribution Date in August 2004, the Uncertificated Balance of
REMIC I Regular Interest I-LTC.
"Uncertificated REMIC Regular Interest": A REMIC I Regular Interest or a
REMIC II Regular Interest.
"Uninsured Cause": Any cause of damage to a Mortgaged Property such that
the complete restoration of such property is not fully reimbursable by the
hazard insurance policies required to be maintained pursuant to Section 3.09.
"United States Person": A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof (except, in the
case of a partnership, to the extent provided in regulations) provided that, for
purposes solely of the restrictions on the transfer of any Class R Certificate,
no partnership or other entity treated as a partnership for United States
federal income tax purposes shall be treated as a United States Person unless
all persons that own an interest in such partnership either directly or through
any entity that is not a corporation for United States federal income tax
purposes are required to be United States Persons, or an estate whose income is
subject to United States federal income tax regardless of its source, or a trust
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust. To the extent
prescribed in regulations by the Secretary of the Treasury, which have not yet
been issued, a trust which was in existence on August 20, 1996 (other than a
trust treated as owned by the grantor under subpart E of part I of subchapter J
of chapter I of the Code), and which was treated as a United States person on
August 20, 1996 may elect to continue to be treated as a United States person
notwithstanding the previous sentence. The term "United States" shall have the
meaning set forth in Section 7701 of the Code.
"Unpaid Basis Risk Shortfall": With respect to the Class A Certificates and
the Mezzanine Certificates and any Distribution Date, an amount equal to (i) the
Basis Risk Shortfall for the previous Distribution Date, plus (ii) the unpaid
Basis Risk Shortfall for the previous Distribution Date, to the extent not paid
on the previous Distribution Date, plus (iii) interest accrued on the unpaid
amount for the most recently ended Interest Accrual Period at the applicable
Pass-Through Rate.
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"U.S. Bank": U.S. Bank Trust National Association as custodian under the
U.S. Bank Custodial Agreement, or any successor in interest thereto.
"U.S. Bank Custodial Agreement": Shall mean the Custodial Agreement dated
as of November 1, 2001, among the Trustee, U.S. Bank and Meritech Mortgage
Services, Inc. as the same may be amended or supplemented from time to time.
"Value": With respect to any Mortgaged Property, the lesser of (i) the
lesser of (a) the value thereof as determined by an appraisal made for the
originator of the Mortgage Loan at the time of origination of the Mortgage Loan
by an appraiser who met the minimum requirements of Xxxxxx Mae and Xxxxxxx Mac
and (b) the value thereof as determined by a review appraisal conducted by the
originator of the Mortgage Loan in accordance with such originator's
underwriting guidelines, and (ii) the purchase price paid for the related
Mortgaged Property by the Mortgagor with the proceeds of the Mortgage Loan;
provided, however, (A) in the case of a Refinanced Mortgage Loan, such value of
the Mortgaged Property is based solely upon the lesser of (1) the value
determined by an appraisal made for the originator of the Mortgage Loan of such
Refinanced Mortgage Loan at the time of origination of such Refinanced Mortgage
Loan by an appraiser who met the minimum requirements of Xxxxxx Mae and Xxxxxxx
Mac and (2) the value thereof as determined by a review appraisal conducted by
the originator of the Mortgage Loan in accordance with such originator's
underwriting guidelines, and (B) in the case of a Mortgage Loan originated in
connection with a "lease-option purchase," such value of the Mortgaged Property
is based on the lower of the value determined by an appraisal made for the
originator of such Mortgage Loan at the time of origination or the sale price of
such Mortgaged Property if the "lease option purchase price" was set less than
12 months prior to origination, and is based on the value determined by an
appraisal made for the originator of such Mortgage Loan at the time of
origination if the "lease option purchase price" was set 12 months or more prior
to origination.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any such Certificate. With respect to any
date of determination, 97% of all Voting Rights will be allocated among the
holders of the Class A Certificates, the Mezzanine Certificates and the Class CE
Certificates in proportion to the then outstanding Certificate Principal
Balances of their respective Certificates, 1% of all Voting Rights will be
allocated to the holders of the Class A-IO Certificates in proportion to the
then outstanding Notional Amount of their Certificates, 1% of all Voting Rights
will be allocated to the holders of the Class P Certificates and 1/3 of 1% of
all Voting Rights will be allocated among the holders of each Class of Residual
Certificates. The Voting Rights allocated to each Class of Certificate shall be
allocated among Holders of each such Class in accordance with their respective
Percentage Interests as of the most recent Record Date.
"Xxxxx Fargo Servicing Agreement": The Warranties and Servicing Agreement,
dated June 1, 2001 between the Seller and Xxxxx Fargo Home Mortgage, Inc. (as
modified pursuant to the related Assignment Agreement) as the same may be
amended.
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SECTION 1.02. Allocation of Certain Interest Shortfalls.
For purposes of calculating the amount of Accrued Certificate Interest and
the amount of the Interest Distribution Amount for the Class A Certificates, the
Mezzanine Certificates, the Class A-IO Certificates and the Class CE
Certificates for any Distribution Date, (1) the aggregate amount of any
Prepayment Interest Shortfalls (to the extent not covered by payments by the
applicable Servicer under the related Servicing Agreement or by the Master
Servicer pursuant to Section 3.20 and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated first, to the Class CE Certificates based on, and to the extent of,
one month's interest at the then applicable respective Pass-Through Rate on the
Notional Amount thereof and, thereafter, among the Class M-3 Certificates, the
Class M-2 Certificates, the Class M-1 Certificates and the Class A Certificates,
in that order, in each case on a pro rata basis based on, and to the extent of,
one month's interest at the then applicable respective Pass-Through Rate on the
respective Certificate Principal Balance or Notional Amount, as applicable of
each such Certificate and (2) the aggregate amount of any Realized Losses
allocated to the Mezzanine Certificates and Basis Risk Shortfall amounts paid to
the Class A Certificates and the Mezzanine Certificates incurred for any
Distribution Date shall be allocated to the Class CE Certificates on a pro rata
basis based on, and to the extent of, one month's interest at the then
applicable respective Pass-Through Rate on the respective Notional Amount
thereof.
For purposes of calculating the amount of Uncertificated Interest for the
REMIC I Regular Interests for any Distribution Date, the aggregate amount of any
Prepayment Interest Shortfalls (to the extent not covered by payments by the
applicable Servicer pursuant to the related Servicing Agreement or the Master
Servicer pursuant to Section 3.20) and any Relief Act Interest Shortfalls
incurred (i) in respect of the Mortgage Loans with an Expense Adjusted Mortgage
Rate as of the Cut- off Date of less than 6.00% for any Distribution Date shall
be allocated to REMIC I Regular Interest I-LTB and (ii) in respect of the
Mortgage Loans with an Expense Adjusted Mortgage Rate as of the Cut-off Date of
6.00% or greater for any Distribution Date shall be allocated to first,
Uncertificated Interest payable to REMIC I Regular Interest I-LTA, second, to
REMIC I Regular Interest I-LTE, third, to REMIC I Regular Interest I-LTD and
fourth, to REMIC I Regular Interest I-LTC, based on, and to the extent of, one
month's interest at the then applicable respective REMIC I Remittance Rate on
the respective Uncertificated Balance of each such REMIC I Regular Interest.
For purposes of calculating the amount of Uncertificated Interest for the
REMIC II Regular Interests for any Distribution Date, the aggregate amount of
any Prepayment Interest Shortfalls (to the extent not covered by payments by the
applicable Servicer pursuant to the related Servicing Agreement or the Master
Servicer pursuant to Section 3.20) and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated first, to Uncertificated Interest payable to REMIC II Regular Interest
II-LTAA and REMIC II Regular Interest II-LTZZ up to an aggregate amount equal to
the REMIC II Interest Loss Allocation Amount, 98% and 2%, respectively, and
thereafter among REMIC II Regular Interest II-LTAA, REMIC II Regular Interest
II-LTA, REMIC II Regular Interest II-LTM1, REMIC II Regular Interest II-LTM2,
REMIC II Regular Interest II-LTM3, REMIC II Regular Interest LT-IO and REMIC II
Regular Interest II-LTZZ, pro rata based on, and to the extent of, one month's
interest at the then applicable respective REMIC I Remittance Rate on the
respective Uncertificated Balance of each such REMIC II Regular Interest.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of the Mortgage Loans.
The Depositor, concurrently with the execution and delivery hereof, does
hereby transfer, assign, set over and otherwise convey to the Trustee, on behalf
of the Trust, without recourse, for the benefit of the Certificateholders, all
the right, title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in and to the Mortgage Loans
identified on the Mortgage Loan Schedule, the rights of the Depositor under the
Mortgage Loan Purchase Agreements and the Assignment Agreements (including,
without limitation the right to enforce the obligations of the other parties
thereto thereunder) , and all other assets included or to be included in REMIC
I. Such assignment includes all interest and principal received by the Depositor
or the applicable Servicer on or with respect to the Mortgage Loans (other than
payments of principal and interest due on such Mortgage Loans on or before the
Cut-off Date). The Depositor herewith delivers to the Trustee executed copies of
the Mortgage Loan Purchase Agreements, and Assignment Agreements and the MGIC
PMI Policy.
In connection with such transfer and assignment, the Depositor does hereby
deliver to, and deposit with the applicable Custodian pursuant to the related
Custodial Agreement the documents with respect to each Mortgage Loan as
described under Section 2.1 of the First Union Custodial Agreement and Section 2
of the U.S. Bank Custodial Agreement (the "Mortgage Loan Documents"). In
connection with such delivery and as further described in the First Union
Custodial Agreement and the U.S. Bank Custodial Agreement, the applicable
Custodian will be required to review such Mortgage Loan Documents and deliver to
the Trustee certifications (in the forms attached to the Custodial Agreements)
with respect to such review with exceptions noted thereon. In addition, each of
the Depositor and Xxxxx Fargo Home Mortgage, Inc. under the First Union
Custodial Agreement and the Depositor and U.S. Bank under the U.S. Bank
Custodial Agreement will have to cure certain defects with respect to the
Mortgage Loan Documents for the related Mortgage Loans after the delivery
thereof by the Depositor to the applicable Custodian as more particularly set
forth therein.
SECTION 2.02. Acceptance of REMIC I by Trustee.
The Trustee acknowledges receipt, subject to the provisions of Section 2.01
hereof, Section 2.1 of the First Union Custodial Agreement and Section 2 of the
U.S. Bank Custodial Agreement, of the Mortgage Loan Documents and all other
assets included in the definition of "REMIC I" under clauses (i), (iii), (iv)
and (v) (to the extent of amounts deposited into the Distribution Account) and
declares that it holds (or the applicable Custodian on its behalf holds) and
will hold such documents and the other documents delivered to it constituting a
Mortgage Loan Document, and that it holds (or the applicable Custodian on its
behalf holds) or will hold all such assets and such other assets included in the
definition of "REMIC I" in trust for the exclusive use and benefit of all
present and future Certificateholders.
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SECTION 2.03. Repurchase or Substitution of Mortgage Loans.
(a) Upon discovery or receipt of notice of any materially defective
document in, or that a document is missing from, a Mortgage File or of the
breach by the Seller of any representation, warranty or covenant under the
Xxxxx Fargo Home Mortgage, Inc. Assignment Agreement in respect of any
Mortgage Loan subject to such agreement that materially and adversely
affects the value of such Mortgage Loan or the interest therein of the
Certificateholders, the Trustee shall promptly notify the Seller and the
Master Servicer of such defect, missing document or breach and request that
the Seller deliver such missing document or cure such defect or breach
within 60 days from the date the Seller was notified of such missing
document, defect or breach, and if the Seller does not deliver such missing
document or cure such defect or breach in all material respects during such
period, the Trustee shall enforce the obligations of the Seller under the
Xxxxx Fargo Home Mortgage, Inc. Assignment Agreement to repurchase such
Mortgage Loan from REMIC I at the Purchase Price within 90 days after the
date on which the Seller was notified of such missing document, defect or
breach, if and to the extent that the Seller is obligated to do so under
the Xxxxx Fargo Home Mortgage, Inc. Assignment Agreement. The Purchase
Price for the repurchased Mortgage Loan shall be deposited in the
Collection Account and the Trustee, upon receipt of written certification
from the Master Servicer of such deposit, shall release or cause the
applicable Custodian to release to the Seller the related Mortgage File and
the Trustee shall execute and deliver or cause the applicable Custodian to
execute and deliver such instruments of transfer or assignment, in each
case without recourse, as the Seller shall furnish to it and as shall be
necessary to vest in the Seller any Mortgage Loan released pursuant hereto,
and the Trustee shall not have any further responsibility with regard to
such Mortgage File. In lieu of repurchasing any such Mortgage Loan as
provided above, if so provided in the Xxxxx Fargo Home Mortgage, Inc.
Assignment Agreement, the Seller may cause such Mortgage Loan to be removed
from REMIC I (in which case it shall become a Deleted Mortgage Loan) and
substitute one or more Qualified Substitute Mortgage Loans in the manner
and subject to the limitations set forth in Section 2.03(d). It is
understood and agreed that the obligation of the Seller to cure or to
repurchase (or to substitute for) any Mortgage Loan as to which a document
is missing, a material defect in a constituent document exists or as to
which such a breach has occurred and is continuing shall constitute the
sole remedy respecting such omission, defect or breach available to the
Trustee and the Certificateholders.
(b) Upon discovery or receipt of notice of any materially defective
document in, or that a document is missing from, a Mortgage File or of the
breach by NC Capital of any representation, warranty or covenant under the
NC Capital MLPA in respect of any Mortgage Loan subject to such agreement
that materially and adversely affects the value of such Mortgage Loan or
the interest therein of the Certificateholders, the Trustee shall promptly
notify NC Capital, the Seller and the Master Servicer of such defect,
missing document or breach and request that NC Capital deliver such missing
document or cure such defect or breach within 60 days from the date NC
Capital was notified of such missing document, defect or breach, and if NC
Capital does not deliver such missing document or cure such defect or
breach in all material respects during such period, the Trustee shall
enforce the obligations of NC Capital under the NC Capital MLPA to
repurchase such Mortgage Loan from REMIC I at the Purchase Price within 90
days after the date on which NC Capital was notified (subject to Section
2.03(f)) of such missing document, defect or breach, if and to the extent
that NC Capital is obligated to do so under the NC Capital MLPA. The
Purchase Price for the repurchased Mortgage Loan shall be deposited in the
Collection
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Account and the Trustee, upon receipt of written certification from the
Master Servicer of such deposit, shall release or cause the applicable
Custodian to release to NC Capital the related Mortgage File and the
Trustee shall execute and deliver or cause the applicable Custodian to
execute and deliver such instruments of transfer or assignment, in each
case without recourse, as NC Capital shall furnish to it and as shall be
necessary to vest in NC Capital any Mortgage Loan released pursuant hereto,
and the Trustee shall not have any further responsibility with regard to
such Mortgage File. In lieu of repurchasing any such Mortgage Loan as
provided above, if so provided in the NC Capital MLPA, NC Capital may cause
such Mortgage Loan to be removed from REMIC I (in which case it shall
become a Deleted Mortgage Loan) and substitute one or more Qualified
Substitute Mortgage Loans in the manner and subject to the limitations set
forth in Section 2.03(d). It is understood and agreed that the obligation
of NC Capital to cure or to repurchase (or to substitute for) any Mortgage
Loan as to which a document is missing, a material defect in a constituent
document exists or as to which such a breach has occurred and is continuing
and the obligation to provide indemnification as set forth in Section 12 of
the NC Capital MLPA shall constitute the sole remedy respecting such
omission, defect or breach available to the Trustee and the
Certificateholders.
In addition, promptly upon the earlier of discovery by the Master
Servicer or receipt of notice by the Master Servicer of the breach of the
representation or covenant of NC Capital set forth in Section 5(b)(xiii) of
the NC Capital MLPA which materially and adversely affects the interests of
the Holders of the Class P Certificates in any Prepayment Charge, the
Master Servicer shall promptly notify NC Capital, the Seller and the
Trustee of such breach. The Trustee shall enforce the obligations of NC
Capital under the NC Capital MLPA to remedy such breach to the extent and
in the manner set forth in the NC Capital MLPA.
(c) Upon discovery or receipt of notice of any materially defective
document in, or that a document is missing from, a Mortgage File or of the
breach by HomeStar or SouthStar, as applicable, of any representation,
warranty or covenant under the HomeStar MLPA in respect of any Mortgage
Loan subject to such Agreement that materially and adversely affects the
value of such Mortgage Loan or the interest therein of the
Certificateholders, the Trustee shall promptly notify HomeStar, SouthStar,
the Seller and the Master Servicer of such defect, missing document or
breach and request that HomeStar or SouthStar, as applicable, deliver such
missing document or cure such defect or breach within 60 days from the date
HomeStar and SouthStar were notified of such missing document, defect or
breach, and if HomeStar and SouthStar do not deliver such missing document
or cure such defect or breach in all material respects during such period,
the Trustee shall enforce the obligations of HomeStar and SouthStar under
the HomeStar MLPA to repurchase such Mortgage Loan from REMIC I at the
Purchase Price within 90 days after the date on which HomeStar and
SouthStar were notified (subject to Section 2.03(f)) of such missing
document, defect or breach, if and to the extent that HomeStar or
SouthStar, as applicable, is obligated to do so under HomeStar MLPA. The
Purchase Price for the repurchased Mortgage Loan shall be deposited in the
Collection Account and the Trustee, upon receipt of written certification
from the Master Servicer of such deposit, shall release or cause the
applicable Custodian to release to HomeStar or SouthStar, as applicable,
the related Mortgage File and the Trustee shall execute and deliver or
cause the applicable Custodian to execute and deliver such instruments of
transfer or assignment, in each case without recourse, as HomeStar or
SouthStar, as applicable, shall furnish to it and as shall be necessary to
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vest in HomeStar or SouthStar, as applicable, any Mortgage Loan released
pursuant hereto, and the Trustee shall not have any further responsibility
with regard to such Mortgage File.
In lieu of repurchasing any such Mortgage Loan as provided above, if
so provided in the HomeStar MLPA, HomeStar or SouthStar, as applicable, may
cause such Mortgage Loan to be removed from REMIC I (in which case it shall
become a Deleted Mortgage Loan) and substitute one or more Qualified
Substitute Mortgage Loans in the manner and subject to the limitations set
forth in Section 2.03(d). It is understood and agreed that the obligation
of HomeStar and SouthStar to cure or to repurchase (or to substitute for)
any Mortgage Loan as to which a document is missing, a material defect in a
constituent document exists or as to which such a breach has occurred and
is continuing and the obligation to provide indemnification as set forth in
Section 12 of the HomeStar MLPA shall constitute the sole remedy respecting
such omission, defect or breach available to the Trustee and the
Certificateholders.
In addition, promptly upon the earlier of discovery by the Master
Servicer or receipt of notice by the Master Servicer of the breach of the
representation or covenant of HomeStar or SouthStar, as applicable, set
forth in Section 5(b)(xiii) of the HomeStar MLPA which materially and
adversely affects the interests of the Holders of the Class P Certificates
in any Prepayment Charge, the Master Servicer shall promptly notify
HomeStar, SouthStar, the Seller and the Trustee of such breach. The Trustee
shall enforce the obligations of HomeStar and SouthStar under the HomeStar
MLPA to remedy such breach to the extent and in the manner set forth in the
HomeStar MLPA.
(d) Any substitution of Qualified Substitute Mortgage Loans for
Deleted Mortgage Loans made pursuant to Section 2.03(a), (b) or (c) must be
effected prior to the date which is two years after the Startup Day for
REMIC I.
As to any Deleted Mortgage Loan for which the Seller, NC Capital,
HomeStar or SouthStar, as applicable, substitutes a Qualified Substitute
Mortgage Loan or Loans, such substitution shall be effected by the Seller,
NC Capital, HomeStar or SouthStar, as applicable, delivering to the Trustee
or the applicable Custodian on behalf of the Trustee, for such Qualified
Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the
Assignment to the Trustee, and such other documents and agreements, with
all necessary endorsements thereon, as are required by Section 2.1 of the
First Union Custodial Agreement or Section 2 of the U.S. Bank Custodial
Agreement, as applicable, together with an Officers' Certificate providing
that each such Qualified Substitute Mortgage Loan satisfies the definition
thereof and specifying the Substitution Shortfall Amount (as described
below), if any, in connection with such substitution. The applicable
Custodian on behalf of the Trustee shall acknowledge receipt of such
Qualified Substitute Mortgage Loan or Loans and, within ten Business Days
thereafter, review such documents and deliver to the Depositor, the Trustee
and the Master Servicer, with respect to such Qualified Substitute Mortgage
Loan or Loans, an initial certification pursuant to the applicable
Custodial Agreement, with any applicable exceptions noted thereon. Within
one year of the date of substitution, the applicable Custodian on behalf of
the Trustee shall deliver to the Depositor, the Trustee and the Master
Servicer a final certification pursuant to the applicable Custodial
Agreement with respect to such Qualified Substitute Mortgage Loan or Loans,
with any applicable exceptions noted thereon. Monthly Payments due with
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respect to Qualified Substitute Mortgage Loans in the month of substitution
are not part of REMIC I and will be retained by the Seller, NC Capital,
HomeStar or SouthStar, as applicable. For the month of substitution,
distributions to Certificateholders will reflect the Monthly Payment due on
such Deleted Mortgage Loan on or before the Due Date in the month of
substitution, and the Seller, NC Capital, HomeStar or SouthStar, as
applicable, shall thereafter be entitled to retain all amounts subsequently
received in respect of such Deleted Mortgage Loan. The Depositor shall give
or cause to be given written notice to the Certificateholders that such
substitution has taken place, shall amend the Mortgage Loan Schedule to
reflect the removal of such Deleted Mortgage Loan from the terms of this
Agreement and the substitution of the Qualified Substitute Mortgage Loan or
Loans and shall deliver a copy of such amended Mortgage Loan Schedule to
the Trustee. Upon such substitution, such Qualified Substitute Mortgage
Loan or Loans shall constitute part of the Trust Fund and shall be subject
in all respects to the terms of this Agreement and the Xxxxx Fargo Home
Mortgage, Inc. Assignment Agreement, the NC Capital MLPA or the HomeStar
MLPA, as applicable, including all applicable representations and
warranties thereof included in the applicable agreement.
For any month in which the Seller, NC Capital, HomeStar or SouthStar,
as applicable, substitutes one or more Qualified Substitute Mortgage Loans
for one or more Deleted Mortgage Loans, the Master Servicer will determine
the amount (the "Substitution Shortfall Amount"), if any, by which the
aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the
aggregate of, as to each such Qualified Substitute Mortgage Loan, the
Scheduled Principal Balance thereof as of the date of substitution,
together with one month's interest on such Scheduled Principal Balance at
the applicable Net Mortgage Rate, plus all outstanding P&I Advances and
Servicing Advances (including Nonrecoverable P&I Advances and
Nonrecoverable Servicing Advances) related thereto. On the date of such
substitution, the Seller, NC Capital, HomeStar or SouthStar, as applicable,
will deliver or cause to be delivered to the Master Servicer for deposit in
the Collection Account an amount equal to the Substitution Shortfall
Amount, if any, and the Trustee or the applicable Custodian on behalf of
the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan
or Loans and certification by the Master Servicer of such deposit, shall
release to the Seller, NC Capital, HomeStar or SouthStar, as applicable,
the related Mortgage File or Files and the Trustee or the Custodian on
behalf of the Trustee shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as the Seller, NC
Capital, HomeStar or SouthStar, as applicable, shall deliver to it and as
shall be necessary to vest therein any Deleted Mortgage Loan released
pursuant hereto.
In addition, the Seller, NC Capital, HomeStar or SouthStar, as
applicable, shall obtain at its own expense and deliver to the Trustee an
Opinion of Counsel to the effect that such substitution will not cause (a)
any federal tax to be imposed on any Trust REMIC, including without
limitation, any federal tax imposed on "prohibited transactions" under
Section 860F(a)(1) of the Code or on "contributions after the startup date"
under Section 860G(d)(1) of the Code, or (b) any Trust REMIC to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
(e) Upon discovery by the Depositor, the Seller, NC Capital, HomeStar,
SouthStar, 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 within two
Business
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Days give written notice thereof to the other parties. In connection
therewith, the Seller, NC Capital, HomeStar or SouthStar, as applicable,
shall repurchase or, subject to the limitations set forth in Section
2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the
affected Mortgage Loan within 90 days of the earlier of discovery or
receipt of such notice with respect to such affected Mortgage Loan. Such
repurchase or substitution shall be made by (i) the Seller, NC Capital,
HomeStar or SouthStar, as applicable, if the affected Mortgage Loan's
status as a non-qualified mortgage is or results from a breach of any
representation, warranty or covenant made by the Seller, NC Capital,
HomeStar or SouthStar, as applicable, under the Xxxxx Fargo Home Mortgage,
Inc. Assignment Agreement, the NC Capital MLPA or the HomeStar MLPA, as
applicable, or (ii) the Depositor, if the affected Mortgage Loan's status
as a non-qualified mortgage is a breach of no representation or warranty.
Any such repurchase or substitution shall be made in the same manner as set
forth in Section 2.03(a), (b) or (c), as applicable. The Trustee shall
reconvey to the Seller, NC Capital, HomeStar or SouthStar, as applicable,
the Mortgage Loan to be released pursuant hereto in the same manner, and on
the same terms and conditions, as it would a Mortgage Loan repurchased for
breach of a representation or warranty.
(f) With respect to a breach of the representations made pursuant to
Section 5(a)(viii) or (xiv) of the NC Capital MLPA or the HomeStar MLPA or
Section 2(i) of the Xxxxx Fargo Home Mortgage, Inc. Assignment Agreement
that materially and adversely affects the value of such Mortgage Loan or
the interest therein of the Certificateholders, the Seller shall be
required to take the actions set forth in this Section 2.03.
(g) Within 90 days of the earlier of discovery by the Master Servicer
or receipt of notice by the Master Servicer of the breach of any
representation, warranty or covenant of the Master Servicer set forth in
Section 2.05 which materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan or Prepayment Charge, the Master
Servicer shall cure such breach in all material respects.
SECTION 2.04. [Reserved].
SECTION 2.05. Representations, Warranties and Covenants of the Master
Servicer.
The Master Servicer hereby represents, warrants and covenants to the
Trustee, for the benefit of each of the Trustee, the Certificateholders and the
Depositor that as of the Closing Date or as of such date specifically provided
herein:
(i) The Master Servicer is a national banking association duly formed,
validly existing and in good standing under the laws of the United States
of America and is duly authorized and qualified to transact any and all
business contemplated by this Agreement to be conducted by the Master
Servicer;
(ii) The Master Servicer has the full power and authority to conduct
its business as presently conducted by it and to execute, deliver and
perform, and to enter into and consummate, all transactions contemplated by
this Agreement. The Master Servicer has duly authorized the execution,
delivery and performance of this Agreement, has duly executed and delivered
this
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Agreement, and this Agreement, assuming due authorization, execution and
delivery by the Depositor and the Trustee, constitutes a legal, valid and
binding obligation of the Servicer, enforceable against it in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity;
(iii) The execution and delivery of this Agreement by the Master
Servicer, the consummation by the Master Servicer of any other of the
transactions herein contemplated, and the fulfillment of or compliance with
the terms hereof are in the ordinary course of business of the Master
Servicer and will not (A) result in a breach of any term or provision of
charter and by-laws of the Master Servicer or (B) conflict with, result in
a breach, violation or acceleration of, or result in a default under, the
terms of any other material agreement or instrument to which the Master
Servicer is a party or by which it may be bound, or any statute, order or
regulation applicable to the Master Servicer of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Master Servicer; and the Master Servicer is not a party to, bound by, or in
breach or violation of any indenture or other agreement or instrument, or
subject to or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to the
Master Servicer's knowledge, would in the future materially and adversely
affect, (x) the ability of the Master Servicer to perform its obligations
under this Agreement or (y) the business, operations, financial condition,
properties or assets of the Master Servicer taken as a whole;
(iv) [Reserved];
(v) The Master Servicer does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant made by
it and contained in this Agreement;
(vi) [Reserved];
(vii) No litigation is pending against the Master Servicer that would
materially and adversely affect the execution, delivery or enforceability
of this Agreement or the ability of the Master Servicer to perform any of
its other obligations hereunder in accordance with the terms hereof,
(viii) There are no actions or proceedings against, or investigations
known to it of, the Master Servicer before any court, administrative or
other tribunal (A) that might prohibit its entering into this Agreement,
(B) seeking to prevent the consummation of the transactions contemplated by
this Agreement or (C) that might prohibit or materially and adversely
affect the performance by the Master Servicer of its obligations under, or
validity or enforceability of, this Agreement; and
(ix) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of, or
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compliance by the Master Servicer with, this Agreement or the consummation
by it of the transactions contemplated by this Agreement, except for such
consents, approvals, authorizations or orders, if any, that have been
obtained prior to the Closing Date.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.05 shall inure to the benefit of the
Trustee, the Depositor and the Certificateholders.
SECTION 2.06. Issuance of the REMIC I Regular Interests and the Class R-I
Certificates.
The Trustee acknowledges the assignment to it of the Mortgage Loans and the
delivery to the Custodians on its behalf of the Mortgage Loan Documents, subject
to the provisions of Section 2.01 and Section 2.02 hereof and Sections 2.1 and 2
of the First Union Custodial Agreement and the U.S. Bank Custodial Agreement,
respectively, together with the assignment to it of all other assets included in
REMIC I, the receipt of which is hereby acknowledged. Concurrently with such
assignment and delivery and in exchange therefor, the Trustee, pursuant to the
written request of the Depositor executed by an officer of the Depositor, has
executed, authenticated and delivered to or upon the order of the Depositor, the
Class R-I Certificates in authorized denominations. The interests evidenced by
the Class R-I Certificates, together with the REMIC I Regular Interests,
constitute the entire beneficial ownership interest in REMIC I. The rights of
the Class R-I Certificateholders and REMIC II (as holder of the REMIC I Regular
Interests) to receive distributions from the proceeds of REMIC I in respect of
the Class R-I Certificates and the REMIC I Regular Interests, respectively, and
all ownership interests evidenced or constituted by the Class R-I Certificates
and the REMIC I Regular Interests, shall be as set forth in this Agreement.
SECTION 2.07. Conveyance of the REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee.
The Depositor, concurrently with the execution and delivery hereof, does
hereby transfer, assign, set over and otherwise convey to the Trustee, without
recourse all the right, title and interest of the Depositor in and to the REMIC
I Regular Interests for the benefit of the Class R-II Certificateholders and
REMIC II (as holder of the REMIC I Regular Interests). The Trustee acknowledges
receipt of the REMIC I Regular Interests and declares that it holds and will
hold the same in trust for the exclusive use and benefit of all present and
future Class R-II Certificateholders and REMIC II (as holder of the REMIC I
Regular Interests). The rights of the Class R-II Certificateholders and REMIC II
(as holder of the REMIC I Regular Interests) to receive distributions from the
proceeds of REMIC II in respect of the Class R-II Certificates and REMIC II
Regular Interests, respectively, and all ownership interests evidenced or
constituted by the Class R-II Certificates and the REMIC II Regular Interests,
shall be as set forth in this Agreement.
SECTION 2.08. Issuance of Class R-II Certificates.
The Trustee acknowledges the assignment to it of the REMIC I Regular
Interests and, concurrently therewith and in exchange therefor, pursuant to the
written request of the Depositor executed by an officer of the Depositor, the
Trustee has executed, authenticated and delivered to or upon the order of the
Depositor, the Class R-II Certificates in authorized denominations. The
interests evidenced by the Class
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R-II Certificates, together with the REMIC II Regular Interests, constitute the
entire beneficial ownership interest in REMIC II.
SECTION 2.09. Conveyance of the REMIC II Regular Interests; Acceptance of
REMIC III by the Trustee.
The Depositor, concurrently with the execution and delivery hereof, does
hereby transfer, assign, set over and otherwise convey to the Trustee, without
recourse all the right, title and interest of the Depositor in and to the REMIC
II Regular Interests for the benefit of the Class R-III Certificateholders and
REMIC III (as holder of the REMIC II Regular Interests). The Trustee
acknowledges receipt of the REMIC II Regular Interests and declares that it
holds and will hold the same in trust for the exclusive use and benefit of all
present and future Class R-III Certificateholders and REMIC III (as holder of
the REMIC II Regular Interests). The rights of the Class R-III
Certificateholders and REMIC III (as holder of the REMIC II Regular Interests)
to receive distributions from the proceeds of REMIC III in respect of the Class
R-III Certificates and REMIC III Regular Interests, respectively, and all
ownership interests evidenced or constituted by the Class R-III Certificates and
the REMIC III Regular Interests, shall be as set forth in this Agreement.
SECTION 2.10. Issuance of Class R-III Certificates.
The Trustee acknowledges the assignment to it of the REMIC II Regular
Interests and, concurrently therewith and in exchange therefor, pursuant to the
written request of the Depositor executed by an officer of the Depositor, the
Trustee has executed, authenticated and delivered to or upon the order of the
Depositor, the Class R-III Certificates in authorized denominations. The
interests evidenced by the Class R-III Certificates, together with the REMIC III
Regular Interests, constitute the entire beneficial ownership interest in REMIC
III.
SECTION 2.11 Establishment of the Trust.
The Depositor does hereby establish, pursuant to the further provisions of
this Agreement and the laws of the State of New York, an express trust to be
known, for convenience, as "ACE Securities Corp., Home Equity Loan Trust, Series
2001-HEl" and does hereby appoint First Union National Bank, as Trustee in
accordance with the provisions of this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS; ACCOUNTS
SECTION 3.01. Master Servicer. The Master Servicer shall supervise, monitor
and oversee the obligation of the Servicers to service and administer their
respective Mortgage Loans in accordance with the terms of the applicable
Servicing Agreement and shall have full power and authority to do any and all
things which it may deem necessary or desirable in connection with such master
servicing and administration. In performing its obligations hereunder, the
Master Servicer shall act in a manner consistent with Accepted Master Servicing
Practices. Furthermore, the Master Servicer shall oversee and consult with each
Servicer as necessary from time-to-time to carry out the Master Servicer's
obligations hereunder, shall receive, review and evaluate all reports,
information and other data provided to the Master Servicer by each Servicer and
shall cause each Servicer to perform and observe the covenants, obligations and
conditions to be performed or observed by such Servicer under the applicable
Servicing Agreement. The Master Servicer shall independently and separately
monitor each Servicer's servicing activities with respect to each related
Mortgage Loan, reconcile the results of such monitoring with such information
provided in the previous sentence on a monthly basis and coordinate corrective
adjustments to the Servicers' and Master Servicer's records, and based on such
reconciled and corrected information, prepare the statements specified in
Section 4.02 and any other information and statements required to be provided by
the Master Servicer hereunder. The Master Servicer shall reconcile the results
of its Mortgage Loan monitoring with the actual remittances of the Servicers to
the Master Servicer Collection Account pursuant to the applicable Servicing
Agreements.
Notwithstanding anything in this Agreement, any Servicing Agreement or any
Loss Mitigation Advisory Agreement to the contrary, neither the Master Servicer
nor the applicable Servicer shall have any duty or obligation to enforce any
Loss Mitigation Advisory Agreement or to supervise, monitor or oversee the
activities of the Loss Mitigation Advisor under its Loss Mitigation Advisory
Agreement with respect to any action taken or not taken by the applicable
Servicer or the Master Servicer pursuant to a recommendation of the Loss
Mitigation Advisor
The Trustee shall furnish the Servicers and the Master Servicer with any
powers of attorney and other documents in form as provided to it necessary or
appropriate to enable the Servicers and the Master Servicer to service and
administer the related Mortgage Loans and REO Property.
The Trustee shall provide access to the records and documentation in
possession of the Trustee regarding the related Mortgage Loans and REO Property
and the servicing thereof to the Certificateholders, the FDIC, and the
supervisory agents and examiners of the FDIC, such access being afforded only
upon reasonable prior written request and during normal business hours at the
office of the Trustee; provided, however, that, unless otherwise required by
law, the Trustee shall not be required to provide access to such records and
documentation if the provision thereof would violate the legal right to privacy
of any Mortgagor. The Trustee shall allow representatives of the above entities
to photocopy any
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of the records and documentation and shall provide equipment for that purpose at
a charge that covers the Trustee's actual costs.
The Trustee shall execute and deliver to the related Servicer and the
Master Servicer any court pleadings, requests for trustee's sale or other
documents necessary or desirable to (i) the foreclosure or trustee's sale with
respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or any other Mortgage Loan
Document; (iii) obtain a deficiency judgment against the Mortgagor; or (iv)
enforce any other rights or remedies provided by the Mortgage Note or any other
Mortgage Loan Document or otherwise available at law or equity.
SECTION 3.02. REMIC-Related Covenants. For as long as each REMIC shall
exist, the Trustee shall act in accordance herewith to assure continuing
treatment of such REMIC as a REMIC, and the Trustee shall comply with any
directions of the Seller, the related Servicer or the Master Servicer to assure
such continuing treatment. In particular, the Trustee shall not (a) sell or
permit the sale of all or any portion of the Mortgage Loans or of any investment
of deposits in an Account unless such sale is as a result of a repurchase of the
Mortgage Loans pursuant to this Agreement or the Trustee has received a REMIC
Opinion prepared at the expense of the Trust Fund; and (b) other than with
respect to a substitution pursuant to the Mortgage Loan Purchase Agreements or
the Assignment Agreements or Section 2.03 of this Agreement, as applicable,
accept any contribution to any REMIC after the Startup Day without receipt of a
Opinion of Counsel stating that such contribution will not result in an Adverse
REMIC Event as deferred in Section 10.01(f) hereof.
SECTION 3.03. Monitoring of Servicers. (a) The Master Servicer shall be
responsible for monitoring the compliance by each Servicer with its duties under
the related Servicing Agreement. In the review of each Servicer's activities,
the Master Servicer may rely upon an officer's certificate of the Servicer with
regard to such Servicer's compliance with the terms of its Servicing Agreement.
In the event that the Master Servicer, in its judgment, determines that a
Servicer should be terminated in accordance with its Servicing Agreement, or
that a notice should be sent pursuant to such Servicing Agreement with respect
to the occurrence of an event that, unless cured, would constitute grounds for
such termination, the Master Servicer shall notify the Seller and the Trustee
thereof and the Master Servicer shall issue such notice or take such other
action as it deems appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under
the related Servicing Agreement, and shall, in the event that a Servicer
fails to perform its obligations in accordance with the related Servicing
Agreement, subject to the preceding paragraph, terminate the rights and
obligations of such Servicer thereunder and act as servicer of the related
Mortgage Loans or to cause the Trustee to enter in to a new Servicing
Agreement with a successor Servicer selected by the Master Servicer;
provided, however, it is understood and acknowledged by the parties hereto
that there will be a period of transition (not to exceed 90 days) before
the actual servicing functions can be fully transferred to such successor
Servicer. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Servicing Agreements and the pursuit
of other appropriate remedies, shall be in such form and carried out to
such an extent and at such time as the Master Servicer, in its good faith
business judgment, would require were it the owner of the
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related Mortgage Loans. The Master Servicer shall pay the costs of such
enforcement at its own expense, provided that the Master Servicer shall not
be required to prosecute or defend any legal action except to the extent
that the Master Servicer shall have received reasonable indemnity for its
costs and expenses in pursuing such action.
(c) To the extent that the costs and expenses of the Master Servicer
related to any termination of a Servicer, appointment of a successor
Servicer or the transfer and assumption of servicing by the Master Servicer
with respect to any Servicing Agreement (including, without limitation, (i)
all legal costs and expenses and all due diligence costs and expenses
associated with an evaluation of the potential termination of the Servicer
as a result of an event of default by such Servicer and (ii) all costs and
expenses associated with the complete transfer of servicing, including all
servicing files and all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the successor
servicer to correct any errors or insufficiencies in the servicing data or
otherwise to enable the successor servicer to service the Mortgage Loans in
accordance with the related Servicing Agreement) are not fully and timely
reimbursed by the terminated Servicer, the Master Servicer shall be
entitled to reimbursement of such costs and expenses from the Master
Servicer Collection Account.
(d) The Master Servicer shall require each Servicer to comply with the
remittance requirements and other obligations set forth in the related
Servicing Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer, if any,
that it replaces.
SECTION 3.04. Fidelity Bond. The Master Servicer, at its expense, shall
maintain in effect a blanket fidelity bond and an errors and omissions insurance
policy, affording coverage with respect to all directors, officers, employees
and other Persons acting on such Master Servicer's behalf, and covering errors
and omissions in the performance of the Master Servicer's obligations hereunder.
The errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
SECTION 3.05. Power to Act; Procedures. The Master Servicer shall master
service the Mortgage Loans and shall have full power and authority, subject to
the REMIC Provisions and the provisions of Article X hereof, to do any and all
things that it may deem necessary or desirable in connection with the master
servicing and administration of the Mortgage Loans, including but not limited to
the power and authority (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, (iii) to
collect any Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan, in each case, in accordance with the provisions of
this Agreement and the related Servicing Agreement, as applicable; provided,
however, that the Master Servicer shall not (and, consistent with its
responsibilities under Section 3.03, shall not permit any Servicer to) knowingly
or intentionally take any action, or fail to take (or fail to cause to be taken)
any action reasonably within its control and the scope of duties more
specifically set forth herein, that, under
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the REMIC Provisions, if taken or not taken, as the case may be, would cause
REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC or result in the
imposition of a tax upon the Trust Fund (including but not limited to the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax
on contributions to a REMIC set forth in Section 860G(d) of the Code) unless the
Master Servicer has received an Opinion of Counsel (but not at the expense of
the Master Servicer) to the effect that the contemplated action will not would
cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC or result in
the imposition of a tax upon REMIC I, REMIC II or REMIC III, as the case may be.
The Trustee shall furnish the Master Servicer, upon written request from a
Servicing Officer, with any powers of attorney empowering the Master Servicer or
any Servicer to execute and deliver instruments of satisfaction or cancellation,
or of partial or full release or discharge, and to foreclose upon or otherwise
liquidate Mortgaged Property, and to appeal, prosecute or defend in any court
action relating to the Mortgage Loans or the Mortgaged Property, in accordance
with the applicable Servicing Agreement and this Agreement, and the Trustee
shall execute and deliver such other documents, as the Master Servicer may
request, to enable the Master Servicer to master service and administer the
Mortgage Loans and carry out its duties hereunder, in each case in accordance
with Accepted Master Servicing Practices (and the Trustee shall have no
liability for misuse of any such powers of attorney by the Master Servicer or
any Servicer). If the Master Servicer or the Trustee has been advised that it is
likely that the laws of the state in which action is to be taken prohibit such
action if taken in the name of the Trustee or that the Trustee would be
adversely affected under the "doing business" or tax laws of such state if such
action is taken in its name, the Master Servicer shall join with the Trustee in
the appointment of a co-trustee pursuant to Section 9.11 hereof. In the
performance of its duties hereunder, the Master Servicer shall be an independent
contractor and shall not, except in those instances where it is taking action in
the name of the Trustee, be deemed to be the agent of the Trustee.
SECTION 3.06. Due-on-Sale Clauses; Assumption Agreements. To the extent
provided in the applicable Servicing Agreement, to the extent Mortgage Loans
contain enforceable due-on- sale clauses, the Master Servicer shall cause the
Servicers to enforce such clauses in accordance with the applicable Servicing
Agreement. If applicable law prohibits the enforcement of a due-on-sale clause
or such clause is otherwise not enforced in accordance with the applicable
Servicing Agreement, and, as a consequence, a Mortgage Loan is assumed, the
original Mortgagor may be released from liability in accordance with the
applicable Servicing Agreement.
SECTION 3.07. Release of Mortgage Files. (a) Upon becoming aware of the
payment in full of any Mortgage Loan, or the receipt by any Servicer of a
notification that payment in full has been escrowed in a manner customary for
such purposes for payment to Certificateholders on the next Distribution Date,
the Servicer will, if required under the applicable Servicing Agreement,
promptly furnish to the Custodian, on behalf of the Trustee, two copies of a
request for release substantially in the form attached to the applicable
Custodial Agreement attached to the signed by a Servicing Officer or in a
mutually agreeable electronic format which will, in lieu of a signature on its
face, originate from a Servicing Officer (which certification shall include a
statement to the effect that all amounts received in connection with such
payment that are required to be deposited in the Protected Account maintained by
the applicable Servicer pursuant to Section 4.01 or by the applicable Servicer
pursuant to its Servicing Agreement have been or will be so deposited) and shall
request that the Custodian, on behalf of the Trustee, deliver to the
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applicable Servicer the related Mortgage File. Upon receipt of such
certification and request, the Custodian, on behalf of the Trustee, shall
promptly release the related Mortgage File to the applicable Servicer and the
Trustee and Custodian shall have no further responsibility with regard to such
Mortgage File. Upon any such payment in full, each Servicer is authorized, to
give, as agent for the Trustee, as the mortgagee under the Mortgage that secured
the Mortgage Loan, an instrument of satisfaction (or assignment of mortgage
without recourse) regarding the Mortgaged Property subject to the Mortgage,
which instrument of satisfaction or assignment, as the case may be, shall be
delivered to the Person or Persons entitled thereto against receipt therefor of
such payment, it being understood and agreed that no expenses incurred in
connection with such instrument of satisfaction or assignment, as the case may
be, shall be chargeable to the Master Servicer Collection Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan and in accordance with the applicable
Servicing Agreement, the Trustee shall execute such documents as shall be
prepared and furnished to the Trustee by a Servicer or the Master Servicer
(in form reasonably acceptable to the Trustee) and as are necessary to the
prosecution of any such proceedings. The Custodian, on behalf of the
Trustee, shall, upon the request of a Servicer or the Master Servicer, and
delivery to the Custodian, on behalf of the Trustee, of two copies of a
request for release signed by a Servicing Officer substantially in the form
attached to the applicable Custodial Agreement (or in a mutually agreeable
electronic format which will, in lieu of a signature on its face, originate
from a Servicing Officer), release the related Mortgage File held in its
possession or control to the Servicer or the Master Servicer, as
applicable. Such trust receipt shall obligate the Servicer or the Master
Servicer to return the Mortgage File to the Custodian on behalf of the
Trustee, when the need therefor by the Servicer or the Master Servicer no
longer exists unless the Mortgage Loan shall be liquidated, in which case,
upon receipt of a certificate of a Servicing Officer similar to that
hereinabove specified, the Mortgage File shall be released by the
Custodian, on behalf of the Trustee, to the Servicer or the Master
Servicer.
SECTION 3.08. Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee.
(a) The Master Servicer shall transmit and each Servicer (to the
extent required by the related Servicing Agreement) shall transmit to the
Trustee or Custodian such documents and instruments coming into the
possession of the Master Servicer or such Servicer from time to time as are
required by the terms hereof, or in the case of the Servicers, the
applicable Servicing Agreement, to be delivered to the Trustee or
Custodian. Any funds received by the Master Servicer or by a Servicer in
respect of any Mortgage Loan or which otherwise are collected by the Master
Servicer or by a Servicer as Liquidation Proceeds or Insurance Proceeds in
respect of any Mortgage Loan shall be held for the benefit of the Trustee
and the Certificateholders subject to the Master Servicer's right to retain
or withdraw from the Master Servicer Collection Account the Master
Servicing Compensation and other amounts provided in this Agreement, and to
the right of each Servicer to retain its Servicing Fee and other amounts as
provided in the applicable Servicing Agreement. The Master Servicer shall,
and (to the extent provided in the applicable Servicing Agreement) shall
cause each Servicer to, provide access to information and documentation
regarding the Mortgage Loans to the Trustee, its agents and accountants at
any time upon reasonable request and during normal business hours, and to
Certificateholders that are savings and loan
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associations, banks or insurance companies, the Office of Thrift
Supervision, the FDIC and the supervisory agents and examiners of such
Office and Corporation or examiners of any other federal or state banking
or insurance regulatory authority if so required by applicable regulations
of the Office of Thrift Supervision or other regulatory authority, such
access to be afforded without charge but only upon reasonable request in
writing and during normal business hours at the offices of the Master
Servicer designated by it. In fulfilling such a request the Master Servicer
shall not be responsible for determining the sufficiency of such
information.
(b) All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer, in respect of any Mortgage Loans, whether
from the collection of principal and interest payments or from Liquidation
Proceeds or Insurance Proceeds, shall be held by the Master Servicer for
and on behalf of the Trustee and the Certificateholders and shall be and
remain the sole and exclusive property of the Trustee; provided, however,
that the Master Servicer and each Servicer shall be entitled to setoff
against, and deduct from, any such funds any amounts that are properly due
and payable to the Master Servicer or such Servicer under this Agreement or
the applicable Servicing Agreement.
SECTION 3.09. Standard Hazard Insurance and Flood Insurance Policies.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the related Servicing Agreements to
maintain or cause to be maintained standard fire and casualty insurance
and, where applicable, flood insurance, all in accordance with the
provisions of the related Servicing Agreements. It is understood and agreed
that such insurance shall be with insurers meeting the eligibility
requirements set forth in the applicable Servicing Agreement and that no
earthquake or other additional insurance is to be required of any Mortgagor
or to be maintained on property acquired in respect of a defaulted loan,
other than pursuant to such applicable laws and regulations as shall at any
time be in force and as shall require such additional insurance.
(b) Pursuant to Sections 3.22 and 3.23, any amounts collected by the
Servicers or the Master Servicer, or by any Servicer, under any insurance
policies (other than amounts to be applied to the restoration or repair of
the property subject to the related Mortgage or released to the Mortgagor
in accordance with the applicable Servicing Agreement) shall be deposited
into the Master Servicer Collection Account, subject to withdrawal pursuant
to Sections 3.24 and 3.26. Any cost incurred by the Master Servicer or any
Servicer in maintaining any such insurance if the Mortgagor defaults in its
obligation to do so shall be added to the amount owing under the Mortgage
Loan where the terms of the Mortgage Loan so permit; provided, however,
that the addition of any such cost shall not be taken into account for
purposes of calculating the distributions to be made to Certificateholders
and shall be recoverable by the Master Servicer or such Servicer pursuant
to Sections 3.24 and 3.26.
SECTION 3.10. Presentment of Claims and Collection of Proceeds. The Master
Servicer shall (to the extent provided in the applicable Servicing Agreement)
cause the related Servicer to, prepare and present on behalf of the Trustee and
the Certificateholders all claims under the Insurance Policies and take such
actions (including the negotiation, settlement, compromise or enforcement of the
insured's claim) as shall be necessary to realize recovery under such policies.
Any proceeds disbursed to the Master
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Servicer (or disbursed to a Servicer and remitted to the Master Servicer) in
respect of such policies, bonds or contracts shall be promptly deposited in the
Master Servicer Collection Account upon receipt, except that any amounts
realized that are to be applied to the repair or restoration of the related
Mortgaged Property as a condition precedent to the presentation of claims on the
related Mortgage Loan to the insurer under any applicable Insurance Policy need
not be so deposited (or remitted).
SECTION 3.11. Maintenance of the Primary Mortgage Insurance Policies.
(a) The Master Servicer shall not take, or permit any Servicer (to the
extent such action is prohibited under the applicable Servicing Agreement)
to take, any action that would result in noncoverage under any primary
mortgage insurance policy of any loss which, but for the actions of such
Master Servicer or Servicer, would have been covered thereunder. The Master
Servicer shall use its best reasonable efforts to cause each Servicer (to
the extent required under the related Servicing Agreement) to keep in force
and effect (to the extent that the Mortgage Loan requires the Mortgagor to
maintain such insurance), primary mortgage insurance applicable to each
Mortgage Loan in accordance with the provisions of this Agreement and the
related Servicing Agreement, as applicable. The Master Servicer shall not,
and shall not permit any Servicer (to the extent required under the related
Servicing Agreement) to, cancel or refuse to renew any primary mortgage
insurance policy that is in effect at the date of the initial issuance of
the Mortgage Note and is required to be kept in force hereunder except in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable.
(b) The Master Servicer agrees to cause each Servicer (to the extent
required under the related Servicing Agreement) to present, on behalf of
the Trustee and the Certificateholders, claims to the insurer under any
primary mortgage insurance policies and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any
primary mortgage insurance policies respecting defaulted Mortgage Loans.
Pursuant to Sections 3.22 and 3.23, any amounts collected by the Master
Servicer or any Servicer under any primary mortgage insurance policies
shall be deposited in the Master Servicer Collection Account, subject to
withdrawal pursuant to Sections 3.24 and 3.26.
SECTION 3.12. Trustee to Retain Possession of Certain Insurance Policies
and Documents.
The Trustee (or the Custodian, as directed by the Trustee), shall retain
possession and custody of the originals (to the extent available) of the MGIC
PMI Policy and any other primary mortgage insurance policies, or certificate of
insurance if applicable, and any certificates of renewal as to the foregoing as
may be issued from time to time as contemplated by this Agreement. Until all
amounts distributable in respect of the Certificates have been distributed in
full and the Master Servicer otherwise has fulfilled its obligations under this
Agreement, the Trustee (or its Custodian, if any, as directed by the Trustee)
shall also retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions of this Agreement. The Master
Servicer shall promptly deliver or cause to be delivered to the Trustee (or the
Custodian, as directed by the Trustee), upon the execution or receipt thereof
the originals of the MGIC PMI Policy and any other primary mortgage insurance
policies, any certificates of renewal, and such other documents or instruments
that constitute Mortgage Loan Documents that come into the possession of the
Master Servicer from time to time.
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SECTION 3.13. Realization Upon Defaulted Mortgage Loans. The Master
Servicer shall cause each Servicer (to the extent required under the related
Servicing Agreement) to foreclose upon, repossess or otherwise comparably
convert the ownership of Mortgaged 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, all in
accordance with the applicable Servicing Agreement.
SECTION 3.14. Compensation for the Master Servicer.
(a) In addition to the Master Servicer's right to receive its Master
Servicing Fee, pursuant to Article IV all income and gain realized from any
investment of funds in the Master Servicer Collection Account shall be for
the benefit of the Master Servicer as compensation. Servicing compensation
in the form of assumption fees, if any, late payment charges, as collected,
if any, or otherwise (but not including any Prepayment Charges) shall be
retained by the applicable Servicer and shall not be deposited in the
Protected Account. The Master Servicer will be entitled to retain, as
additional compensation, any interest remitted by a Servicer in connection
with a Principal Prepayment in full or otherwise in excess of amounts
required to be remitted to the Master Servicer Collection Account. The
Master Servicer shall be required to pay all expenses incurred by it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as provided in this Agreement.
(b) The amount of the aggregate compensation payable as set forth in
Section 3.14(a) (the "Master Servicing Compensation") to the Master
Servicer in respect of any Distribution Date shall be reduced in accordance
with Section 3.20.
SECTION 3.15. REO Property.
(a) In the event the Trust Fund acquires ownership of any REO Property
in respect of any related Mortgage Loan, the deed or certificate of sale
shall be issued to the Trustee, or to its nominee, on behalf of the related
Certificateholders. The Master Servicer shall, to the extent provided in
the applicable Servicing Agreement, cause the applicable Servicer to sell,
any REO Property as expeditiously as possible and in accordance with the
provisions of this Agreement and the related Servicing Agreement, as
applicable. Further, the Master Servicer shall, to the extent provided in
the related Servicing Agreement, cause the applicable Servicer to sell any
REO Property prior to three years after the end of the calendar year of its
acquisition by REMIC I unless (i) the Trustee shall have been supplied with
an Opinion of Counsel to the effect that the holding by the Trust Fund of
such REO Property subsequent to such three-year period will not result in
the imposition of taxes on "prohibited transactions" of any REMIC hereunder
as defined in section 860F of the Code or cause any REMIC 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) or (ii)
the applicable Servicer shall have applied for, prior to the expiration of
such three-year period, an extension of such three-year period in the
manner contemplated by Section 856(e)(3) of the Code, in which case the
three-year period shall be extended by the applicable extension period. The
Master Servicer shall cause the applicable Servicer (to the extent provided
in the related Servicing Agreement) to protect and conserve, such REO
Property in the manner and to the extent required by the applicable
Servicing Agreement, in
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accordance with the REMIC Provisions and in a manner that does not result
in a tax on "net income from foreclosure property" or cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code.
(b) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property
in the Protected Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Monthly Advances and other unreimbursed advances as
well as any unpaid Servicing Fees from Liquidation Proceeds received in
connection with the final disposition of such REO Property; provided, that
any such unreimbursed Monthly Advances as well as any unpaid Servicing Fees
may be reimbursed or paid, as the case may be, prior to final disposition,
out of any net rental income or other net amounts derived from such REO
Property.
(d) To the extent provided in the related Servicing Agreement, the
Liquidation Proceeds from the final disposition of the REO Property, net of
any payment to the Master Servicer and the applicable Servicer as provided
above shall be deposited in the Protected Account on or prior to the
Determination Date in the month following receipt thereof and be remitted
by wire transfer in immediately available funds to the Master Servicer for
deposit into the related Master Servicer Collection Account on the next
succeeding Remittance Date.
SECTION 3.16. Annual Officer's Certificate as to Compliance.
(a) The Master Servicer shall deliver to the Trustee and the Rating
Agencies on or before May 31 of each year, commencing on May 31, 2002, an
officer's certificate, certifying that with respect to the period ending
December 31 of the prior year: (i) such Servicing Officer has reviewed the
activities of such Master Servicer during the preceding calendar year or
portion thereof and its performance under this Agreement, (ii) to the best
of such Servicing Officer's knowledge, based on such review, such Master
Servicer has performed and fulfilled its duties, responsibilities and
obligations under this Agreement in all material respects throughout such
year, or, if there has been a default in the fulfillment of any such
duties, responsibilities or obligations, specifying each such default known
to such Servicing Officer and the nature and status thereof, (iii) nothing
has come to the attention of such Servicing Officer to lead such Servicing
Officer to believe that any Servicer has failed to perform any of its
duties, responsibilities and obligations under its Servicing Agreement in
all material respects throughout such year, or, if there has been a
material default in the performance or fulfillment of any such duties,
responsibilities or obligations, specifying each such default known to such
Servicing Officer and the nature and status thereof.
(b) Copies of such statements shall be provided to any
Certificateholder upon request, by the Master Servicer or by the Trustee at
the Master Servicer's expense if the Master Servicer failed to provide such
copies (unless (i) the Master Servicer shall have failed to provide the
Trustee with such statement or (ii) the Trustee shall be unaware of the
Master Servicer's failure to provide such statement).
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SECTION 3.17. Annual Independent Accountant's Servicing Report. If the
Master Servicer has, during the course of any fiscal year, directly serviced any
of the Mortgage Loans, then the Master Servicer at its expense shall cause a
nationally recognized firm of independent certified public accountants to
furnish a statement to the Trustee, the Rating Agencies and the Seller on or
before May 31 of each year, commencing on May 31, 2002 to the effect that, with
respect to the most recently ended fiscal year, such firm has examined certain
records and documents relating to the Master Servicer's performance of its
servicing obligations under this Agreement and pooling and servicing and trust
agreements in material respects similar to this Agreement and to each other and
that, on the basis of such examination conducted substantially in compliance
with the audit program for mortgages serviced for Xxxxxxx Mac or the Uniform
Single Attestation Program for Mortgage Bankers, such firm is of the opinion
that the Master Servicer's activities have been conducted in compliance with
this Agreement, or that such examination has disclosed no material items of
noncompliance except for (i) such exceptions as such firm believes to be
immaterial, (ii) such other exceptions as are set forth in such statement and
(iii) such exceptions that the Uniform Single Attestation Program for Mortgage
Bankers or the Audit Program for Mortgages Serviced by Xxxxxxx Mac requires it
to report. Copies of such statements shall be provided to any Certificateholder
upon request by the Master Servicer, or by the Trustee at the expense of the
Master Servicer if the Master Servicer shall fail to provide such copies. If
such report discloses exceptions that are material, the Master Servicer shall
advise the Trustee whether such exceptions have been or are susceptible of cure,
and will take prompt action to do so.
SECTION 3.18. Reports Filed with Securities and Exchange Commission. Within
15 days after each Distribution Date, the Master Servicer shall, in accordance
with industry standards, file with the Commission via the Electronic Data
Gathering and Retrieval System ("XXXXX"), a Form 8-K with a copy of the
statement to be furnished by the Master Servicer to the Certificateholders for
such Distribution Date as an exhibit thereto. Prior to January 30, 2002, the
Master Servicer shall, in accordance with industry standards, file a Form 15
Suspension Notice with respect to the Trust Fund, if applicable. Prior to March
30, 2002, the Master Servicer shall file a Form 10-K, in substance conforming to
industry standards, with respect to the Trust Fund. The Depositor hereby grants
to the Master Servicer a limited power of attorney to execute and file each such
document on behalf of the Depositor. Such power of attorney shall continue until
either the earlier of (i) receipt by the Master Servicer from the Depositor of
written termination of such power of attorney and (ii) the termination of the
Trust Fund. The Depositor agrees to promptly furnish to the Master Servicer,
from time to time upon request, such further information, reports and financial
statements within its control related to this Agreement and the Mortgage Loans
as the Master Servicer reasonably deems appropriate to prepare and file all
necessary reports with the Commission. The Master Servicer shall have no
responsibility to file any items other than those specified in this Section
3.18; provided, however, the Master Servicer will cooperate with the Depositor
in connection with any additional filings with respect to the Trust Fund as the
Depositor deems necessary under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). Upon request, copies of all reports filed by the Master
Servicer under the Exchange Act shall be sent to the Depositor. Fees and
expenses incurred by the Master Servicer in connection with this Section 3.18
shall not be reimbursable from the Trust Fund.
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SECTION 3.19. UCC. The Depositor agrees to file continuation statements for
any Uniform Commercial Code financing statements which the Seller has informed
the Depositor were filed on the Closing Date in connection with the Trust. The
Depositor shall file any financing statements or amendments thereto required by
any change in the Uniform Commercial Code.
SECTION 3.20. Obligation of the Master Servicer in respect of Prepayment
Interest Shortfalls. The Master Servicer shall deposit in the Master Servicer
Collection Account not later than each Distribution Account Deposit Date an
amount equal to the lesser of (i) the aggregate amounts required to be paid by
the Servicers under the Servicing Agreements with respect to Prepayment Interest
Shortfalls attributable to Principal Prepayments on the related Mortgage Loans
for the related Distribution Date, and not so paid by the related Servicers and
(ii) the Master Servicing Compensation for such Distribution Date without
reimbursement therefor.
SECTION 3.21. MGIC PMI Policy; Claims Under the MGIC PMI Policy. Any amount
received from MGIC with respect to any such MGIC PMI Mortgage Loan shall be
deposited by the Master Servicer, no later than two Business Days following
receipt thereof, into the Master Servicer Collection Account.
SECTION 3.22. Protected Accounts. (a) The Master Servicer shall enforce the
obligation of each Servicer to establish and maintain a Protected Account in
accordance with the applicable Servicing Agreement, with records to be kept with
respect thereto on a Mortgage Loan by Mortgage Loan basis, into which accounts
shall be deposited within 48 hours (or as of such other time specified in the
related Servicing Agreement) of receipt all collections of principal and
interest on any Mortgage Loan and with respect to any REO Property received by a
Servicer, including Principal Prepayments, Insurance Proceeds, Liquidation
Proceeds, and advances made from the Servicer's own funds (less servicing
compensation as permitted by the applicable Servicing Agreement in the case of
any Servicer) and all other amounts to be deposited in the Protected Account.
Each Servicer is hereby authorized to make withdrawals from and deposits to the
related Protected Account for purposes required or permitted by the related
Servicing Agreement. To the extent provided in the related Servicing Agreement,
the Protected Account shall be held in a Designated Depository Institution and
segregated on the books of such institution in the name of the Trustee for the
benefit of Certificateholders.
(b) To the extent provided in the related Servicing Agreement, amounts
on deposit in a Protected Account may be invested in Permitted Investments
in the name of the Trustee for the benefit of Certificateholders and,
except as provided in the preceding paragraph, not commingled with any
other funds, such Permitted Investments to mature, or to be subject to
redemption or withdrawal, no later than the date on which such funds are
required to be withdrawn for deposit in the Master Servicer Collection
Account, and shall be held until required for such deposit. The income
earned from Permitted Investments made pursuant to this Section 3.22 shall
be paid to the related Servicer under the applicable Servicing Agreement,
and the risk of loss of moneys required to be distributed to the
Certificateholders resulting from such investments shall be borne by and be
the risk of the related Servicer. The related Servicer (to the extent
provided in the Servicing Agreement) shall deposit the amount of any such
loss in the Protected Account within two Business Days of receipt of
notification of such loss but not later than the second
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Business Day prior to the Distribution Date on which the moneys so invested
are required to be distributed to the Certificateholders.
(c) To the extent provided in the related Servicing Agreement and
subject to this Article III, on or before each Servicer Remittance Date,
the related Servicer shall withdraw or shall cause to be withdrawn from the
Protected Accounts and shall immediately deposit or cause to be deposited
in the Master Servicer Collection Account amounts representing the
following collections and payments (other than with respect to principal of
or interest on the Mortgage Loans due on or before the Cut-off Date):
(i) Monthly Payments on the Mortgage Loans received or any
related portion thereof advanced by the Servicers pursuant to the
Servicing Agreements which were due on or before the related Due Date,
net of the amount thereof comprising the Servicing Fees;
(ii) Principal Prepayments, Liquidation Proceeds received by the
Servicers with respect to such Mortgage Loans in the related
Prepayment Period, Compensating Interest and the amount of any related
Prepayment Charges; and
(iii) Any amount to be used as a P&I Advance.
(d) Withdrawals may be made from an Account only to make remittances
as provided in Section 3.22(c), 3.23 and 3.24 or as otherwise provided in
the Servicing Agreements; to reimburse the Master Servicer or a Servicer
for P&I Advances which have been recovered by subsequent collection from
the related Mortgagor; to remove amounts deposited in error; to remove
fees, charges or other such amounts deposited on a temporary basis; or to
clear and terminate the account at the termination of this Agreement in
accordance with Section 9.01. As provided in Sections 3.22(c) and 3.23(b)
or as otherwise provided in the Servicing Agreements certain amounts
otherwise due to the Servicers may be retained by them and need not be
deposited in the Master Servicer Collection Account.
SECTION 3.23. Master Servicer Collection Account. (a) The Master Servicer
shall establish and maintain in the name of the Trustee, for the benefit of the
Certificateholders, the Master Servicer Collection Account as a segregated trust
account or accounts. The Master Servicer will deposit in the Master Servicer
Collection Account as identified by the Master Servicer and as received by the
Master Servicer, the following amounts:
(i) Any amounts withdrawn from a Protected Account;
(ii) Any P&I Advance and any amounts in respect of Prepayment Interest
Shortfalls;
(iii) Any Insurance Proceeds or Liquidation Proceeds received by or on
behalf of the Master Servicer;
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(iv) The Repurchase Price with respect to any Mortgage Loans purchased
by the related Originator pursuant to Section 2.03 and all proceeds of any
Mortgage Loans or property acquired with respect thereto repurchased by the
Class CE Certificateholder or its designee pursuant to Section 9.01;
(v) Any amounts required to be deposited with respect to losses on
investments of deposits in an Account; and
(vi) Any other amounts received by or on behalf of the Master Servicer
and required to be deposited in the Master Servicer Collection Account
pursuant to this Agreement.
(c) All amounts deposited to the Master Servicer Collection Account
shall be held by the Master Servicer in the name of the Trustee in trust
for the benefit of the Certificateholders in accordance with the terms and
provisions of this Agreement. The requirements for crediting the Master
Servicer Collection Account or the Distribution Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges or assumption,
tax service, statement account or payoff, substitution, satisfaction,
release and other like fees and charges, need not be credited by the Master
Servicer or the related Servicer to the Distribution Account or the Master
Servicer Collection Account, as applicable. In the event that the Master
Servicer shall deposit or cause to be deposited to the Distribution Account
any amount not required to be credited thereto, the Trustee, upon receipt
of a written request therefor signed by a Servicing Officer of the Master
Servicer, shall promptly transfer such amount to the Master Servicer, any
provision herein to the contrary notwithstanding.
(d) The amount at any time credited to the Master Servicer Collection
Account shall be invested, in the name of the Trustee, or its nominee, for
the benefit of the Certificateholders, in Permitted Investments as directed
by Master Servicer. All Permitted Investments shall mature or be subject to
redemption or withdrawal on or before, and shall be held until, the
Business Day immediately preceding the Distribution Date. Any and all
investment earnings from the Master Servicer Collection Account shall be
paid to the Master Servicer. The risk of loss of moneys required to be
distributed to the Certificateholders resulting from such investments shall
be borne by and be the risk of the Master Servicer. The Master Servicer
shall deposit the amount of any such loss in the Master Servicer Collection
Account within two Business Days of receipt of notification of such loss
but not later than the Business Day prior to the Distribution Date on which
the moneys so invested are required to be remitted to the Trustee.
SECTION 3.24. Permitted Withdrawals and Transfers from the Master Servicer
Collection Account. (a) The Master Servicer will, from time to time, make or
cause to be made such withdrawals or transfers from the Master Servicer
Collection Account as the Master Servicer has designated for such transfer or
withdrawal pursuant to the Servicing Agreements. The Master Servicer may clear
and terminate the Master Servicer Collection Account pursuant to Section 9.01
and remove amounts from time to time deposited in error.
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(b) On an ongoing basis, the Master Servicer shall withdraw from the
Master Servicer Collection Account any expenses recoverable by the Trustee
or the Master Servicer pursuant to Sections 3.03, 6.03, 8.05 and 10.01.
(c) In addition, on the Distribution Account Deposit Date, the Master
Servicer shall deposit in the Distribution Account (or remit to the Trustee
for deposit therein) any Monthly Advances required to be made by the Master
Servicer with respect to the Mortgage Loans.
(d) No later than 3:00 p.m. New York time on each Distribution Account
Deposit Date, the Master Servicer will transfer to the Trustee in
immediately available funds for deposit in the Distribution Account on the
Business Day immediately preceding the Distribution Date, that portion of
the Available Distribution Amount (calculated without regard to the
references in clause (2) of the definition thereof to amounts that may be
withdrawn from the Distribution Account) for the related Distribution Date
then on deposit in the Master Servicer Collection Account.
SECTION 3.25. Distribution Account. (a) The Trustee shall establish and
maintain in the name of the Trustee, for the benefit of the Certificateholders,
the Distribution Account as a segregated trust account or accounts.
(b) All amounts deposited to the Distribution Account shall be held by
the Trustee in the name of the Trustee in trust for the benefit of the
Certificateholders in accordance with the terms and provisions of this
Agreement.
(c) The Distribution Account shall constitute a trust account of the
Trust Fund segregated on the books of the Trustee and held by the Trustee
in trust in its Corporate Trust Office, and the Distribution Account and
the funds deposited therein shall not be subject to, and shall be protected
from, all claims, liens, and encumbrances of any creditors or depositors of
the Trustee (whether made directly, or indirectly through a liquidator or
receiver of the Trustee). The amount at any time credited to the
Distribution Account shall be invested in the name of the Trustee, in such
Permitted Investments selected by the Trustee or deposited in demand
deposits with such depository institutions as selected by the Trustee,
provided that time deposits of such depository institutions would be a
Permitted Investment. All Permitted Investments shall mature or be subject
to redemption or withdrawal on or before, and shall be held until, the next
succeeding Distribution Date if the obligor for such Permitted Investment
is the Trustee or, if such obligor is any other Person, the Business Day
preceding such Distribution Date. All investment earnings on amounts on
deposit in the Distribution Account or benefit from funds uninvested
therein from time to time shall be for the account of the Trustee. The
Trustee shall be permitted to withdraw or receive distribution of any and
all investment earnings from the Distribution Account on each Distribution
Date. If there is any loss on a Permitted Investment or demand deposit, the
Trustee shall deposit such amount in the Distribution Account. With respect
to the Distribution Account and the funds deposited therein, the Trustee
shall take such action as may be necessary to ensure that the
Certificateholders shall be entitled to the priorities afforded to such a
trust account (in addition to a claim against the estate of the Trustee) as
provided by 12 U.S.C. ss. 92a(e), and applicable regulations pursuant
thereto, if applicable, or any applicable comparable state statute
applicable to state chartered banking corporations.
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SECTION 3.26. Permitted Withdrawals and Transfers from the Distribution
Account. (a) The Trustee will, from time to time on demand of the Master
Servicer or the Trustee make or cause to be made such withdrawals or transfers
from the Distribution Account as the Master Servicer or the Trustee has
designated for such transfer or withdrawal pursuant to the Servicing Agreements
for the following purposes, not in any order of priority, (limited in the case
of amounts due the Master Servicer to those not withdrawn from the Master
Servicer Collection Account in accordance with the terms of this Agreement):
(i) to reimburse the Master Servicer or any Servicer for any P&I
Advance of its own funds or any advance of such Servicer's own funds, the
right of the Master Servicer or a Servicer to reimbursement pursuant to
this subclause (i) being limited to amounts received on a particular
Mortgage Loan (including, for this purpose, the Repurchase Price therefor,
Insurance Proceeds and Liquidation Proceeds) which represent late payments
or recoveries of the principal of or interest on such Mortgage Loan
respecting which such Monthly Advance or advance was made;
(ii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds or Liquidation Proceeds relating to a particular Mortgage Loan for
amounts expended by the Master Servicer or such Servicer in good faith in
connection with the restoration of the related Mortgaged Property which was
damaged by an Uninsured Cause or in connection with the liquidation of such
Mortgage Loan;
(iii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds relating to a particular Mortgage Loan for insured expenses
incurred with respect to such Mortgage Loan and to reimburse the Master
Servicer or such Servicer from Liquidation Proceeds from a particular
Mortgage Loan for Liquidation Expenses incurred with respect to such
Mortgage Loan; provided that the Master Servicer shall not be entitled to
reimbursement for Liquidation Expenses with respect to a Mortgage Loan to
the extent that (i) any amounts with respect to such Mortgage Loan were
paid as Excess Liquidation Proceeds pursuant to clause (xi) of this
Subsection (a) to the Master Servicer; and (ii) such Liquidation Expenses
were not included in the computation of such Excess Liquidation Proceeds;
(iv) to pay the Master Servicer or any Servicer, as appropriate, from
Liquidation Proceeds or Insurance Proceeds received in connection with the
liquidation of any Mortgage Loan, the amount which it or such Servicer
would have been entitled to receive under subclause (ix) of this Subsection
3.24(a) as servicing compensation on account of each defaulted scheduled
payment on such Mortgage Loan if paid in a timely manner by the related
Mortgagor;
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(v) to pay the Master Servicer or any Servicer from the Repurchase
Price for any Mortgage Loan, the amount which it or such Servicer would
have been entitled to receive under subclause (ix) of this Subsection (a)
as servicing compensation;
(vi) to reimburse the Master Servicer or any Servicer for advances of
funds, and the right to reimbursement pursuant to this subclause being
limited to amounts received on the related Mortgage Loan (including, for
this purpose, the Repurchase Price therefor, Insurance Proceeds and
Liquidation Proceeds) which represent late recoveries of the payments for
which such advances were made;
(vii) to reimburse the Master Servicer or any Servicer for any
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, after a
Realized Loss has been allocated with respect to the related Mortgage Loan
if the P&I Advance or Servicing Advance has not been reimbursed pursuant to
clauses (i) and (vi);
(viii) to pay the MGIC Fee to MGIC, the Loss Mitigation Fee to the
Loss Mitigation Advisor and the fee payable to First Union under the First
Union Custodial Agreement;
(ix) to pay the Servicing Fee to the Servicers and the Master
Servicing Fee to the Master Servicer for such Distribution Date; to
reimburse the Master Servicer for expenses, costs and liabilities incurred
by and reimbursable to it pursuant to Sections 3.03, 6.03 and 10.01;
(x) to pay to the Master Servicer, as additional servicing
compensation, any Excess Liquidation Proceeds to the extent not retained by
the related Servicer;
(xi) to reimburse or pay any Servicer any such amounts as are due
thereto under the applicable Servicing Agreement and have not been retained
by or paid to the Servicer, to the extent provided in the related Servicing
Agreement, or to reimburse or pay any Advance Facility Counterparty to the
extent provided in Section 3.31 hereof;
(xii) to reimburse the Trustee for expenses, costs and liabilities
incurred by or reimbursable to it pursuant to this Agreement;
(xiii) to reimburse the Custodians for expenses, costs and liabilities
incurred or reimbursable to them pursuant to the Custodial Agreements;
(xiv) to remove amounts deposited in error; and
(xv) to clear and terminate the Distribution Account pursuant to
Section 9.01.
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(b) The Master Servicer shall keep and maintain separate accounting,
on a Mortgage Loan by Mortgage Loan basis, for the purpose of accounting
for any reimbursement from the Distribution Account pursuant to subclauses
(i) through (vi), inclusive, and (viii) or with respect to any such amounts
which would have been covered by such subclauses had the amounts not been
retained by the Master Servicer without being deposited in the Distribution
Account under Section 3.23(b).
(c) On each Distribution Date, the Trustee shall distribute the
Available Distribution Amount to the Holders of the Certificates in
accordance with Section 4.01.
SECTION 3.27 Reserve Fund.
(a) No later than the Closing Date, the Trustee shall establish and
maintain a separate, segregated trust account titled, "Reserve Fund, First
Union National Bank, in trust for the registered holders of ACE Securities
Corp. Home Equity Loan Trust, Series 2001-HE1, Asset Backed Pass-Through
Certificates." On the Closing Date, the Depositor will deposit, or cause to
be deposited, into the Reserve Fund $1,000.
(b) On each Distribution Date as to which there is a Basis Risk
Shortfall amount or an Unpaid Basis Risk Shortfall amount payable to the
Class A Certificates or the Mezzanine Certificates, the Trustee has been
directed by the Class CE Certificateholders to, and therefore will, deposit
into the Reserve Fund the amounts described in Section 4.01(a)(4)(xii),
rather than distributing such amounts to the Class CE Certificateholders.
On each such Distribution Date, the Trustee shall hold all such amounts for
the benefit of the Holders of the Class A Certificates and the Mezzanine
Certificates, and will distribute such amounts to the Holders of the Class
A Certificates and the Mezzanine Certificates in the amounts and priorities
set forth in Section 4.01(a). If no Basis Risk Shortfall amounts or Unpaid
Basis Risk Shortfall amounts are payable on a Distribution Date, the
Trustee shall deposit into the Reserve Fund on behalf of the Class CE
Certificateholders, from amounts otherwise distributable to the Class CE
Certificateholders, an amount such that when added to other amounts already
on deposit in the Reserve Fund, the aggregate amount on deposit therein is
equal to $1,000.
(c) For federal and state income tax purposes, the Class CE
Certificateholders will be deemed to be the owners of the Reserve Fund and
all amounts deposited into the Reserve Fund (other than the initial deposit
therein of $1,000) shall be treated as amounts distributed by REMIC III to
the Holders of the Class CE Certificates. Upon the termination of the Trust
Fund, or the payment in full of the Class A Certificates and the Mezzanine
Certificates, all amounts remaining on deposit in the Reserve Fund will be
released by the Trust Fund and distributed to the Class CE
Certificateholders or their designees. The Reserve Fund will be part of the
Trust Fund but not part of any REMIC and any payments to the Holders of the
Class A Certificates or the Mezzanine Certificates of Basis Risk Shortfall
amounts or Unpaid Basis Risk Shortfall amounts will not be payments with
respect to a "regular interest" in a REMIC within the meaning of Code
Section 860(G)(a)(1).
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(d) By accepting a Class CE Certificate, each Class CE
Certificateholder hereby agrees to direct the Trustee, and the Trustee
hereby is directed, to deposit into the Reserve Fund the amounts described
above on each Distribution Date as to which there is any Basis Risk
Shortfall amount or Unpaid Basis Risk Shortfall amount rather than
distributing such amounts to the Class CE Certificateholders. By accepting
a Class CE Certificate, each Class CE Certificateholder further agrees that
such direction is given for good and valuable consideration, the receipt
and sufficiency of which is acknowledged by such acceptance.
(e) At the direction of the Holders of a majority in Percentage
Interest in the Class CE Certificates, the Trustee shall direct any
depository institution maintaining the Reserve Fund to invest the funds in
such account in one or more Permitted Investments bearing interest or sold
at a discount, and maturing, unless payable on demand, (i) no later than
the Business Day immediately preceding the date on which such funds are
required to be withdrawn from such account pursuant to this Agreement, if a
Person other than the Trustee or an Affiliate manages or advises such
investment, and (ii) no later than the date on which such funds are
required to be withdrawn from such account pursuant to this Agreement, if
the Trustee or an Affiliate manages or advises such investment. If no
investment direction of the Holders of a majority in Percentage Interest in
the Class CE Certificates with respect to the Reserve Fund is received by
the Trustee, the Trustee shall invest the funds in such account in
Permitted Investments managed by the Trustee or an Affiliate of the kind
described in clause (vi) of the definition of Permitted Investments. All
income and gain earned upon such investment shall be deposited into the
Reserve Fund.
(f) For federal tax return and information reporting, the right of the
Class A Certificateholders and the Mezzanine Certificateholders to receive
payments from the Reserve Fund in respect of any Basis Risk Shortfall
amount of Unpaid Basis Risk Shortfall amount shall be assigned a value of
zero.
SECTION 3.28 Duties of the Loss Mitigation Advisor.
The Depositor appoints The Murrayhill Company as Loss Mitigation Advisor.
For and on behalf of the Depositor, and the Trustee, the Loss Mitigation Advisor
will provide reports and recommendations concerning Mortgage Loans that are past
due, as to which there has been commencement of foreclosure, as to which there
has been forbearance in exercise of remedies which are in default, as to which
obligor is the subject of bankruptcy, receivership, or an arrangement of
creditors, or as to which have become REO Properties, and as to the collection
of any Prepayment Charges with respect to the Mortgage Loans. Such reports and
recommendations will be based upon information provided to the Loss Mitigation
Advisor pursuant to the Loss Mitigation Advisory Agreement and the Loss
Mitigation Advisor shall look solely to the related Servicer for all information
and data (including loss and delinquency information and data) and loan level
information and data relating to the servicing of the Mortgage Loans. If the
Loss Mitigation Advisor is no longer able to perform its duties hereunder, the
Depositor shall terminate the Loss Mitigation Advisor and cause the appointment
of a successor Loss Mitigation Advisor. Upon any termination of the Loss
Mitigation Advisor or the appointment of a successor Loss Mitigation Advisor,
the Depositor shall give written notice thereof to the Master Servicer, the
Servicers, the Trustee and each Rating Agency. Notwithstanding the foregoing,
the termination of the Loss
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Mitigation Advisor pursuant to this Section 3.28 shall not become effective
until the appointment of a successor Loss Mitigation Advisor.
SECTION 3.29 Limitation Upon Liability of the Loss Mitigation Advisor.
Neither the Loss Mitigation Advisor, nor any of the directors, officers,
employees or agents of the Loss Mitigation Advisor, shall be under any liability
to the Trustee, the Certificateholders or the Depositor for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, in reliance upon information provided by a Servicer under the Loss
Mitigation Advisory Agreement or of errors in judgment; provided, however, that
this provision shall not protect the Loss Mitigation Advisor or any such person
against liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or gross negligence in its performance of its duties
under this Agreement or the Loss Mitigation Advisory Agreement. The Loss
Mitigation Advisor and any director, officer, employee or agent of the Loss
Mitigation Advisor 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, and may rely in good faith upon the accuracy of information
furnished by any Servicer pursuant to the Loss Mitigation Advisory Agreements in
the performance of its duties thereunder and hereunder.
SECTION 3.30 Prepayment Penalty Verification.
On or prior to each Servicer Remittance Date, each Servicer shall, pursuant
to the respective Servicing Agreement provide in an electronic format acceptable
to the Master Servicer the data necessary for the Master Servicer to perform its
verification duties set forth in this Section 3.30. The Master Servicer or a
third party reasonably acceptable to the Master Servicer and the Depositor (the
"Verification Agent") will perform such verification duties and will use its
best efforts to issue its findings in a report (the "Verification Report")
delivered to the Master Servicer and the Depositor within ten (10) Business Days
following the related Distribution Date; provided, however, that if the
Verification Agent is unable to issue the Verification Report within ten (10)
Business Days following the Distribution Date, the Verification Agent may issue
and deliver to the Master Servicer and the Depositor the Verification Report
upon the completion of its verification duties. The Master Servicer shall
forward the Verification Report to the respective Servicer and shall notify the
Servicer if the Master Servicer has determined that the Servicer did not deliver
the appropriate Prepayment Charges to the Master Servicer in accordance with the
respective Servicing Agreement. Such written notification from the Master
Servicer shall include the loan number, prepayment penalty code and prepayment
penalty amount as calculated by the Master Servicer or the Verification Agent,
as applicable, of each Mortgage Loan for which there is a discrepancy. If the
Servicer agrees with the verified amounts, the Servicer shall adjust the
immediately succeeding Remittance Report and the amount remitted to the Master
Servicer with respect to prepayments accordingly. If the Servicer disagrees with
the determination of the Master Servicer, the Servicer shall, within five (5)
Business Days of its receipt of the Verification Report, notify the Master
Servicer of such disagreement and provide the Master Servicer with detailed
information to support the Servicer's position. The Servicer and the Master
Servicer shall cooperate to resolve any discrepancy on or prior to the
immediately succeeding Servicer Remittance Date, and the Servicer will indicate
the effect of such resolution on the related Remittance Report and shall adjust
the amount remitted with respect to prepayments on such Servicer Remittance Date
accordingly.
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During such time as the Servicer and the Master Servicer are resolving
discrepancies with respect to the Prepayment Charges, no payments in respect of
any disputed Prepayment Charges will be remitted to the Master Servicer
Collection Account and the Master Servicer shall not be obligated to remit such
payments, unless otherwise required pursuant to Section 7.01 hereof. In
connection with such duties, the Master Servicer shall be able to rely solely on
the information provided to it by the Servicer in accordance with this Section.
The Master Servicer shall not be responsible for verifying the accuracy of any
of the information provided to it by the Servicer.
SECTION 3.31 Servicing Advance Facility
(a) Each Servicer is hereby authorized to enter into any facility with
any Person (any such Person, an "Advance Facility Counterparty") which
provides that the Servicer may pledge or sell its rights to receive
reimbursement of Advances pursuant to this Agreement ("Advance
Reimbursement Rights") pursuant to credit facilities, repurchase
facilities, or similar facilities providing liquidity for the funding of
Servicing Advances or P&I Advances (collectively "Advances"), including
facilities providing that such Advance Facility Counterparty may make all
or a portion of the Advances (any such facility, an "Advance Facility"),
although no Advance Facility shall reduce or otherwise affect the
Servicer's obligations to fund such Advances. If so required pursuant to
the terms of an Advance Facility, to the extent that an Advance Facility
Counterparty makes all or a portion of any Advance, the Advance Facility
Counterparty and the Servicer shall provide the Master Servicer and the
Trustee with notice acknowledged by the Servicer that such Advance Facility
Counterparty is entitled to reimbursement, such Advance Facility
Counterpary shall be entitled to receive reimbursement pursuant to this
Agreement for such amount to the extent provided. Such notice from the
Advance Facility Counterparty and the Servicer must specify the amount of
the reimbursement. The Trustee shall be entitled to rely without
independent investigation on the Advance Facility Counterparty's statement
with respect to the amount of any reimbursement pursuant to this Section
3.31 and with respect to the Advance Facility Counterparty's statement with
respect to the Section of this Agreement which permits the Advance to be
reimbursed. An Advance Facility Counterparty whose obligations are limited
to the making of Advances will not be deemed to be a Subservicer under this
Agreement.
(b) If so required pursuant to the terms of an Advance Facility, the
Servicer may direct, and if so directed the Trustee and the Master Servicer
are hereby authorized to and shall pay or cause to be paid to the Advance
Facility Counterparty (i) reimbursements for Advances; and (ii) all or such
portion of the Servicing Fee as may be so specified in the Advance
Facility, that would otherwise be payable to the Servicer pursuant to this
Agreement or the Servicing Agreement.
(c) Upon request of the Servicer, the Trustee and the Master Servicer
agrees to execute such acknowledgments, certificates, and other documents
recognizing the interests of any Advance Facility Counterparty in such
Advance Reimbursement Rights as the Servicer may cause to be made subject
to Advance Facilities pursuant to this Section, and such other documents in
connection with such Advance Facilities as may be reasonably requested from
time to time by any Advance Facility Counterparty. The implementation of
the arrangement described in this Section shall not require the consent of
Certificateholders, Certificate Owners, the Master Servicer or the Trustee.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Distributions.
(a)(1)(A) On each Distribution Date, the following amounts, in the
following order of priority, shall be distributed by REMIC I to REMIC II on
account of the REMIC I Regular Interests or withdrawn from the Distribution
Account and distributed to the holders of the Class R-I Certificates, as
the case may be:
(i) first, with respect to the Mortgage Loans with an Expense
Adjusted Mortgage Rate as of the Cut-off Date of less than 6.00%, to
the Holders of REMIC I Regular Interest I-LTB, in an amount equal to
(A) the Uncertificated Interest for such Distribution Date, plus (B)
any amounts in respect thereof remaining unpaid from previous
Distribution Dates and with respect to the Mortgage Loans with an
Expense Adjusted Mortgage Rate as of the Cut- off Date of 6.00% or
greater, first to the Holders of REMIC I Regular Interest I-LTC, REMIC
I Regular Interest I-LTD and REMIC I Regular Interest LT-E, in an
amount equal to (A) the Uncertificated Interest for such Distribution
Date, plus (B) any amounts in respect thereof remaining unpaid from
previous Distribution Dates and second, to the Holders of REMIC I
Regular Interest I-LTA and I-LTP, in an amount equal to (A) the
Uncertificated Interest for such Distribution Date, plus (B) any
amounts in respect thereof remaining unpaid from previous Distribution
Dates;
(ii) to the Holders of the REMIC I Regular Interest I-LTP, on the
Distribution Date immediately following the expiration of the latest
Prepayment Charge term as identified on the Mortgage Loan Schedule or
any Distribution Date thereafter until $100 has been distributed
pursuant to this clause;
(iii) on each Distribution Date, the remainder of the Available
Distribution Amount for such Distribution Date after the distributions
made pursuant to clause (i) and clause (ii) above, with respect to the
Mortgage Loans with an Expense Adjusted Mortgage Rate as of the
Cut-off Date of less than 6.00%, to the Holders of REMIC I Regular
Interest I-LTB until the Uncertificated Balance of such REMIC I
Regular Interest is reduced to zero and with respect to the Mortgage
Loans with an Expense Adjusted Mortgage Rate as of the Cut-off Date of
6.00% or greater, in the following order, to the Holders of REMIC I
Regular Interest I-LTA, REMIC I Regular Interest I-LTE, REMIC I
Regular Interest I-LTD and REMIC I Regular Interest I-LTC until the
Uncertificated Balance of each such REMIC I Regular Interest is
reduced to zero until the Uncertificated Balance of such REMIC I
Regular Interest is reduced to zero; and
(iv) to the Holders of the Class R-I Certificates, any amounts
remaining after the distributions pursuant to clauses (i) through
(iii) above.
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On each Distribution Date, all amounts representing Prepayment Charges
in respect of the Mortgage Loans received during the related Prepayment
Period will be distributed by REMIC I to the Holders of REMIC I Regular
Interest I-LTP. The payment of the foregoing amounts to the Holders of
REMIC I Regular Interest I-LTP shall not reduce the Uncertificated Balance
thereof.
(B) On each Distribution Date, the following amounts, in the following
order of priority, shall be distributed by REMIC II to REMIC III on account
of the REMIC II Regular Interests or withdrawn from the Distribution
Account and distributed to the holders of the Class R-II Certificates, as
the case may be:
(i) first, to the Holders of REMIC II Regular Interest II-LTIO,
in an amount equal to (A) the Uncertificated Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining
unpaid from previous Distribution Dates and then to Holders of REMIC
II Regular Interest II-LTAA, REMIC Regular Interest II-LTA, REMIC II
Regular Interest II-LTM1, REMIC II Regular Interest II-LTM2, REMIC II
Regular Interest II-LTM3, REMIC II Regular Interest II-LTZZ and REMIC
II Regular Interest II-LTP, pro rata, in an amount equal to (A) the
Uncertificated Accrued Interest for such Distribution Date, plus (B)
any amounts in respect thereof remaining unpaid from previous
Distribution Dates. Amounts payable as Uncertificated Interest in
respect of REMIC II Regular Interest II-LTZZ shall be reduced when the
REMIC II Overcollateralization Amount is less than the REMIC II
Required Overcollateralization Amount, by the lesser of (x) the amount
of such difference and (y) the Maximum II-LTZZ Uncertificated Interest
Deferral Amount and such amount will be payable to the Holders of
REMIC II Regular Interest II-LTA, REMIC II Regular Interest II-LTM1,
REMIC II Regular Interest II-LTM2 and REMIC II Regular Interest II-
LTM3 in the same proportion as the Overcollateralization Increase
Amount is allocated to the Corresponding Certificates;
(ii) second, to the Holders of REMIC II Regular Interests, in an
amount equal to the remainder of the Available Funds for such
Distribution Date after the distributions made pursuant to clause (i)
above, allocated as follows:
(a) to the Holders of REMIC II Regular Interest II-LTAA,
98.00% of such remainder, until the Uncertificated Balance of
such Uncertificated REMIC II Regular Interest is reduced to zero;
(b) to the Holders of REMIC II Regular Interest II-LTA,
REMIC II Regular Interest II-LTM1, REMIC II Regular Interest
II-LTM2 and REMIC II Regular Interest II-LTM3, 1.00% of such
remainder, in the same proportion as principal payments are
allocated to the Corresponding Certificates, until the
Uncertificated Balances of such REMIC II Regular Interests are
reduced to zero;
(c) to the Holders of REMIC II Regular Interest II-LTZZ,
1.00% of such remainder, until the Uncertificated Balance of such
REMIC II Regular Interest is reduced to zero;
(d) to the Holders of REMIC II Regular Interest II-LTP, on
the Distribution Date immediately following the expiration of the
latest Prepayment
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Charge as identified on the Prepayment Charge Schedule or any
Distribution Date thereafter until $100 has been distributed
pursuant to this clause; then
(e) any remaining amount to the Holders of the Class R-II
Certificates; and
(iii) third, to REMIC II Regular Interest II-LTP, 100% of the
amount paid in respect of REMIC I Regular Interest I-LTP;
provided, however, that 98.00% and 2.00% of any principal payments that are
attributable to an Overcollateralization Reduction Amount shall be allocated to
Holders of REMIC II Regular Interest II-LTAA and REMIC II Regular Interest
II-LTZZ, respectively.
(2) On each Distribution Date, prior to making the distributions set
forth below, the Trustee shall withdraw the MGIC PMI Insurer Fee from the
Distribution Account and pay such amount to MGIC, based on information
received from the Master Servicer. On each Distribution Date, the Trustee
shall withdraw from the Distribution Account an amount equal to the
Interest Remittance Amount and make the following disbursements and
transfers in the order of priority described below, in each case to the
extent of the Interest Remittance Amount remaining for such Distribution
Date:
first, to the Holders of the Class A Certificates and the Class
A-IO Certificates, the Senior Interest Distribution Amount
allocable to each such class;
second, to the Holders of the Class M-1 Certificates, the
Interest Distribution Amount allocable to the Class M-1
Certificates;
third, to the Holders of the Class M-2 Certificates, the Interest
Distribution Amount allocable to the Class M-2 Certificates; and
fourth, to the Holders of the Class M-3 Certificates, the
Interest Distribution Amount allocable to the Class M-3
Certificates.
(3) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account an amount equal to the Principal Distribution Amount
and distribute to the Certificateholders the following amounts, in the
following order of priority:
(i) On each Distribution Date (a) prior to the Stepdown Date or
(b) on which a Trigger Event is in effect, the Principal Distribution
Amount shall be distributed in the following order of priority;
first, to the Holders of the Class A Certificates, until the
Certificate Principal Balance of such Class has been reduced to
zero;
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second, to the Holders of the Class M-1 Certificates, until the
Certificate Principal Balance of such Class has been reduced to
zero;
third, to the Holders of the Class M-2 Certificates, until the
Certificate Principal Balance of such Class has been reduced to
zero; and
fourth, to the Holders of the Class M-3 Certificates, until the
Certificate Principal Balance of such Class has been reduced to
zero.
(ii) On each Distribution Date (a) on or after the Stepdown Date
and (b) on which a Trigger Event is not in effect, the Principal
Distribution Amount shall be distributed in the following order of
priority;
first, to the Class A Certificates, the lesser of (x) the
Principal Distribution Amount and (y) the Class A Principal
Distribution Amount, until the Certificate Principal Balance of
the Class A Certificates has been reduced to zero;
second, to the Class M-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Holders of the Class A Certificates
pursuant to clause first above and (y) the Class M-1 Principal
Distribution Amount, until the Certificate Principal Balance of
such Class has been reduced to zero;
third, to the Class M-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the sum
of the amounts distributed to the Holders of the Class A
Certificates pursuant to clause first above and to the Holders of
the Class M-1 Certificates pursuant to clause second above and
(y) the Class M-2 Principal Distribution Amount until the
Certificate Principal Balance of such Class has been reduced to
zero; and
fourth, to the Class M-3 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the sum
of the amounts distributed to the Holders of the Class A
Certificates pursuant to clause first above, to the Holders of
the Class M-1 Certificates pursuant to clause second above and to
the Holders of the Class M-2 Certificates pursuant to clause
third above and (y) the Class M-3 Principal Distribution Amount,
until the Certificate Principal Balance of such Class has been
reduced to zero.
(4) On each Distribution Date, the Net Monthly Excess Cashflow (or, in
the case of clause (i) below, the Net Monthly Excess Cashflow exclusive of
any Overcollateralization Reduction Amount) shall be distributed as
follows:
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(i) to the Holders of the Class or Classes of Certificates then
entitled to receive distributions in respect of principal, in an
amount equal to any Extra Principal Distribution Amount, payable to
such Holders in accordance with the priorities set forth in (a) below;
(ii) to the Holders of the Class M-1 Certificates, in an amount
equal to the Interest Carry Forward Amount allocable to such Class of
Certificates;
(iii) to the Holders of the Class M-1 Certificates, in an amount
equal to the Allocated Realized Loss Amount allocable to such Class of
Certificates;
(iv) to the Holders of the Class M-2 Certificates, in an amount
equal to the Interest Carry Forward Amount allocable to such Class of
Certificates;
(v) to the Holders of the Class M-2 Certificates, in an amount
equal to the Allocated Realized Loss Amount allocable to such Class of
Certificates;
(vi) to the Holders of the Class M-3 Certificates, in an amount
equal to the Interest Carry Forward Amount allocable to such Class of
Certificates;
(vii) to the Holders of the Class M-3 Certificates, in an amount
equal to the Allocated Realized Loss Amount allocable to such Class of
Certificates;
(viii) to the Holders of the Class A Certificates and the Class
A-IO Certificates, in an amount equal to the aggregate of any
Prepayment Interest Shortfalls (to the extent not covered by payments
pursuant to Section 3.20) and any Relief Act Interest Shortfall, in
each case that were allocated to such Class for such Distribution Date
and for any prior Distribution Date, to the extent not previously
reimbursed pursuant to Section 1.02;
(ix) to the Holders of the Class M-1 Certificates, in an amount
equal to the aggregate of any Prepayment Interest Shortfalls (to the
extent not covered by payments pursuant to Section 3.20) and any
Relief Act Interest Shortfall, in each case that were allocated to
such Class for such Distribution Date and for any prior Distribution
Date, to the extent not previously reimbursed, pursuant to Section
1.02;
(x) to the Holders of the Class M-2 Certificates, in an amount
equal to the aggregate of any Prepayment Interest Shortfalls (to the
extent not covered by payments pursuant to Section 3.20) and any
Relief Act Interest Shortfall, in each case that were allocated to
such Class for such Distribution Date and for any prior Distribution
Date, to the extent not previously reimbursed pursuant to Section
1.02;
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(xi) to the Holders of the Class M-3 Certificates, in an amount
equal to the aggregate of any Prepayment Interest Shortfalls (to the
extent not covered by payments pursuant to Section 3.24) and any
Relief Act Interest Shortfall, in each case that were allocated to
such Class for such Distribution Date and for any prior Distribution
Date, to the extent not previously reimbursed pursuant to Section
1.02;
(xii) to the Reserve Fund from amounts otherwise payable to the
Class CE Certificates, and then from the Reserve Fund to the Class A,
Class M-1, Class M-2 and Class M-3 Certificates, in that order, in an
amount equal to the unpaid amount of any Basis Risk Shortfall for each
such Class for such Distribution Date and any Unpaid Basis Risk
Shortfall for each such Class for such Distribution Date;
(xiii) to the Reserve Fund, the amount required by Section
3.27(b);
(xiv) to the Holders of the Class CE Certificates, the Interest
Distribution Amount and any Overcollateralization Reduction Amount for
such Distribution Date; and
(xvi) to the Holders of the Class R-III Certificates, any
remaining amounts; provided that if such Distribution Date is the
Distribution Date immediately following the expiration of the latest
Prepayment Charge term as identified on the Mortgage Loan Schedule or
any Distribution Date thereafter, then any such remaining amounts will
be distributed first, to the Holders of the Class P Certificates,
until the Certificate Principal Balance thereof has been reduced to
zero; and second, to the Holders of the Class R-III Certificates.
On each Distribution Date, after making the distributions of the Available
Distribution Amount as set forth above, the Trustee will first, withdraw from
the Reserve Fund all income from the investment of funds in the Reserve Fund and
distribute such amount to the Holders of the Class CE Certificates, and second,
withdraw from the Reserve Fund, to the extent of amounts remaining on deposit
therein, the amount of any Basis Risk Shortfall or Unpaid Basis Risk Shortfall
for such Distribution Date and distribute such amount first, to the Class A
Certificates; second, to the Class M-1 Certificates, third, to the Class M-2
Certificates and fourth, to the Class M-3 Certificates, in each case to the
extent to the extent any Basis Risk Shortfall amount or Unpaid Basis Risk
Shortfall amount is allocable to each such Class.
(b) (i) On each Distribution Date (a) prior to the Stepdown Date or
(b) on which a Trigger Event is in effect, the Extra Principal Distribution
Amount shall be distributed in the following order of priority;
first, to the Holders of the Class A Certificates, until the
Certificate Principal Balance of such Class has been reduced to
zero;
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second, to the Holders of the Class M-1 Certificates, until the
Certificate Principal Balance of such Class has been reduced to
zero;
third, to the Holders of the Class M-2 Certificates, until the
Certificate Principal Balance of such Class has been reduced to
zero; and
fourth, to the Holders of the Class M-3 Certificates, until the
Certificate Principal Balance of such Class has been reduced to
zero.
(ii) On each Distribution Date (a) on or after the Stepdown Date
and (b) on which a Trigger Event is not in effect, the Extra Principal
Distribution Amount shall be distributed in the following order of
priority;
first, the lesser of (x) the Principal Distribution Amount and
(y) the Class A Principal Distribution Amount, shall be
distributed to the Holders of the Class A Certificates, until the
Certificate Principal Balance of such Class has been reduced to
zero;
second, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Holders of the Class A Certificates pursuant to clause first
above and (y) the Class M-1 Principal Distribution Amount, shall
be distributed to the Holders of the Class M-1 Certificates,
until the Certificate Principal Balance of such Class has been
reduced to zero;
third, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the sum of the amounts distributed
to the Holders of the Class A Certificates pursuant to clause
first above and to the Holders of the Class M-1 Certificates
pursuant to clause second above and (y) the Class M-2 Principal
Distribution Amount, shall be distributed to the Holders of the
Class M-2 Certificates, until the Certificate Principal Balance
of such Class has been reduced to zero; and
fourth, the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the sum of the amounts distributed
to the Holders of the Class A Certificates pursuant to clause
first above, to the Holders of the Class M-1 Certificates
pursuant to clause second above and to the Holders of the Class
M-2 Certificates pursuant to clause third above and (y) the Class
M-3 Principal Distribution Amount, shall be distributed to the
Holders of the Class M-3 Certificates, until the Certificate
Principal Balance of such Class has been reduced to zero.
(c) On each Distribution Date, the Trustee shall withdraw any amounts
then on deposit in the Distribution Account that represent Prepayment
Charges shall distribute such amounts to the Class P Certificateholders as
described above.
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(d) All distributions made with respect to each Class of Certificates
on each Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Payments in respect of each Class of Certificates on each Distribution Date
will be made to the Holders of the respective Class of record on the
related Record Date (except as otherwise provided in Section 4.01(e) or
Section 9.01 respecting the final distribution on such Class), based on the
aggregate Percentage Interest represented by their respective Certificates,
and shall be made by wire transfer of immediately available funds to the
account of any such Holder at a bank or other entity having appropriate
facilities therefor, if such Holder shall have so notified the Trustee in
writing at least five Business Days prior to the Record Date immediately
prior to such Distribution Date and is the registered owner of Certificates
having an initial aggregate Certificate Principal Balance that is in excess
of the lesser of (i) $5,000,000 or (ii) two-thirds of the initial
Certificate Principal Balance of such Class of Certificates, or otherwise
by check mailed by first class mail to the address of such Holder appearing
in the Certificate Register. The final distribution on each Certificate
will be made in like manner, but only upon presentment and surrender of
such Certificate at the Corporate Trust Office of the Trustee or such other
location specified in the notice to Certifcateholders of such final
distribution.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting 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
indirect participating brokerage firm (a "brokerage firm" or "indirect
participating firm") for which it acts as agent. Each brokerage firm shall
be responsible for disbursing funds to the Certificate Owners that it
represents. None of the Trustee, the Trustee, the Depositor or the Master
Servicer shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law.
(e) The rights of the Certificateholders to receive distributions in
respect of the Certificates, and all interests of the Certificateholders in
such distributions, shall be as set forth in this Agreement. None of the
Holders of any Class of Certificates, the Trustee or the Master Servicer
shall in any way be responsible or liable to the Holders of any other Class
of Certificates in respect of amounts properly previously distributed on
the Certificates.
(f) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of
Certificates will be made on the next Distribution Date, the Trustee shall,
no later than three (3) days before the related Distribution Date, mail to
each Holder on such date of such Class of Certificates a notice to the
effect that:
(i) the Trustee expects that the final distribution with respect
to such Class of Certificates will be made on such Distribution Date
but only upon presentation and surrender of such Certificates at the
office of the Trustee therein specified, and
(ii) no interest shall accrue on such Certificates from and after
the end of the related Interest Accrual Period.
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Any funds not distributed to any Holder or Holders of Certificates of
such Class on such Distribution Date because of the failure of such Holder
or Holders to tender their Certificates shall, on such date, be set aside
and held in trust by the Trustee and credited to the account of the
appropriate non-tendering Holder or Holders. If any Certificates as to
which notice has been given pursuant to this Section 4.01 (e) shall not
have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates
for cancellation in order to receive the final distribution with respect
thereto. If within one year after the second notice all such Certificates
shall not have been surrendered for cancellation, the Trustee shall,
directly or through an agent, mail a final notice to the remaining
non-tendering Certificateholders concerning surrender of their Certificates
but shall continue to hold any remaining funds for the benefit of
non-tendering Certificateholders. The costs and expenses of maintaining the
funds in trust and of contacting such Certificateholders shall be paid out
of the assets remaining in such trust fund. If within one year after the
final notice any such Certificates shall not have been surrendered for
cancellation, the Trustee shall pay to the Depositor all such amounts, and
all rights of non-tendering Certificateholders in or to such amounts shall
thereupon cease. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trustee as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with this Section 4.01(e). Any such amounts
held in trust by the Trustee shall be held in an Eligible Account and the
Trustee may direct any depository institution maintaining such account to
invest the funds in one or more Permitted Investments. All income and gain
realized from the investment of funds deposited in such accounts held in
trust by the Trustee shall be for the benefit of the Trustee; provided,
however, that the Trustee shall deposit in such account the amount of any
loss of principal incurred in respect of any such Permitted Investment made
with funds in such accounts immediately upon the realization of such loss.
(g) Notwithstanding anything to the contrary herein, in no event shall
the Certificate Principal Balance of a Class A Certificate or a Mezzanine
Certificate be reduced more than once in respect of any particular amount
both (a) allocated to such Certificate in respect of Realized Losses
pursuant to Section 4.04 and (b) distributed to the Holder of such
Certificate in reduction of the Certificate Principal Balance thereof
pursuant to this Section 4.01 from Net Monthly Excess Cashflow and (ii) in
no event shall the Uncertificated Balance of a REMIC Regular Interest be
reduced more than once in respect of any particular amount both (a)
allocated to such REMIC Regular Interest in respect of Realized Losses
pursuant to Section 4.04 and (b) distributed on such REMIC Regular Interest
in reduction of the Uncertificated Balance thereof pursuant to this Section
4.01.
SECTION 4.02. Statements to Certificateholders.
On each Distribution Date, the Trustee shall provide or make available,
upon request to each Holder of the Regular Certificates (upon receipt from the
Master Servicer), a statement as to the distributions made on such Distribution
Date setting forth:
(i) the amount of the distribution made on such Distribution Date to
the Holders of the Certificates of each Class allocable to principal, and
the amount of the distribution made on such Distribution Date to the
Holders of the Class P Certificates allocable to Prepayment Charges;
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(ii) the amount of the distribution made on such Distribution Date to
the Holders of the Certificates of each Class allocable to interest;
(iii) the aggregate Servicing Fee received by the Servicer and Master
Servicing Fee received by the Master Servicer during the related Due Period
and such other customary information as the Trustee deems necessary or
desirable, or which a Certificateholder reasonably requests, to enable
Certificateholders to prepare their tax returns;
(iv) the aggregate amount of P&I Advances for such Distribution Date;
(v) Reserved;
(vi) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Loans as of the related Due Date;
(vii) the number and aggregate unpaid principal balance of Mortgage
Loans (a) delinquent 30 to 59 days, (b) delinquent 60 to 89 days, (c)
delinquent 90 or more days, in each case, as of the last day of the
preceding calendar month, (d) as to which foreclosure proceedings have been
commenced and (e) with respect to which the related Mortgagor has filed for
protection under applicable bankruptcy laws, with respect to whom
bankruptcy proceedings are pending or with respect to whom bankruptcy
protection is in force;
(viii) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number of such Mortgage Loan,
the unpaid principal balance and the Scheduled Principal Balance of such
Mortgage Loan;
(ix) the book value of any REO Property as of the close of business on
the last Business Day of the calendar month preceding the Distribution
Date;
(x) the aggregate amount of Principal Prepayments made during the
related Prepayment Period and the aggregate amount of any Prepayment
Charges (or payments by the Servicers in respect of any waived Prepayment
Charges) received in respect thereof;
(xi) the aggregate amount of Realized Losses incurred during the
related Prepayment Period (or, in the case of Bankruptcy Losses allocable
to interest, during the related Due Period), separately identifying whether
such Realized Losses constituted Bankruptcy Losses and the aggregate amount
of Realized Losses incurred since the Closing Date;
(xii) the aggregate amount of extraordinary Trust Fund expenses
withdrawn from the Master Servicer Collection Account or the Distribution
Account for such Distribution Date;
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(xiii) the aggregate Certificate Principal Balance of each Class of
Certificates, after giving effect to the distributions, and allocations of
Realized Losses, made on such Distribution Date, separately identifying any
reduction thereof due to allocations of Realized Losses;
(xiv) the Certificate Factor for each such Class of Certificates
applicable to such Distribution Date;
(xv) the Interest Distribution Amount in respect of the Class A
Certificates, the Class A-IO Certificates, the Mezzanine Certificates and
the Class CE Certificates for such Distribution Date and the Interest Carry
Forward Amount, if any, with respect to the Class A Certificates, the Class
A-IO Certificates and the Mezzanine Certificates on such Distribution Date,
and in the case of the Class A Certificates, the Class A-IO Certificates
and the Mezzanine Certificates, separately identifying any reduction
thereof due to allocations of Realized Losses, Prepayment Interest
Shortfalls, Relief Act Interest Shortfalls and Basis Risk Shortfalls;
(xvi) the aggregate amount of any Prepayment Interest Shortfall for
such Distribution Date, to the extent not covered by payments by the Master
Servicer pursuant to Section 3.20;
(xvii) the Allocated Realized Loss Amount with respect to each Class
of Mezzanine Certificates for such Distribution Date and the aggregate
unpaid Allocated Realized Loss Amount with respect to each Class of
Mezzanine Certificates for all prior Distribution Dates;
(xviii) the aggregate amount of Relief Act Interest Shortfalls for
such Distribution Date;
(xix) the Required Overcollateralization Amount and the Credit
Enhancement Percentage for such Distribution Date;
(xx) the Overcollateralization Increase Amount, if any, for such
Distribution Date;
(xxi) the Overcollateralization Reduction Amount, if any, for such
Distribution Date;
(xxii) the Basis Risk Shortfall, if any, for such Distribution Date;
(xxiii) the Unpaid Basis Risk Shortfalls, if any, outstanding after
reimbursements therefor on such Distribution Date;
(xxiv) the respective Pass-Through Rates applicable to the Class A
Certificates, the Mezzanine Certificates and the Class CE Certificates for
such Distribution Date and the Pass-Through Rate applicable to the Class A
Certificates and the Mezzanine Certificates for the Distribution Date;
(xxv) the balance of the Reserve Fund prior to the deposit or
withdrawal of any amounts on such Distribution Date;
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(xxvi) the amount of any withdrawal from the Reserve Fund pursuant to
Section 4.01(a)(4)(xiii);
(xxvii) the balance of the Reserve Fund after all deposits and
withdrawals on such Distribution Date;
(xxviii) the Loss Severity Percentage with respect to each Mortgage
Loan;
(xxix) the Aggregate Loss Severity Percentage;
(xxx) (A) the dollar amount of payments received related to claims
under the MGIC PMI Policy during the related Prepayment Period (and the
number of Mortgage Loans to which such payments related) and (B) the
cumulative amount of payments received related to claims under the MGIC PMI
Policy since the Closing Date (and the number of Mortgage Loans to which
such payments related); and
(xxxi) (A) the dollar amount of claims made under the MGIC PMI Policy
that were denied during the Prepayment Period (and the number of Mortgage
Loans to which such denials related) and (B) the dollar amount of the
cumulative claims made under the MGIC PMI Policy that were denied since the
Closing Date (and the number of Mortgage Loans to which such denials
related).
The Master Servicer will make such statement (and, at its option, any
additional files containing the same information in an alternative format)
available each month to the Certificateholders and the Rating Agencies via the
Master Servicer's internet website. The Master Servicer's internet website shall
initially be located at http:\\xxx.xxxxxxx.xxx and assistance in using the
website can be obtained by calling the Master Servicer's customer service desk
at 1-301-815- 6600. Parties that are unable to use the above distribution
options are entitled to have a paper copy mailed to them via first class mail by
calling the customer service desk and indicating such. The Master Servicer shall
have the right to change the way such statements are distributed in order to
make such distribution more convenient and/or more accessible to the above
parties and the Master Servicer shall provide timely and adequate notification
to all above parties regarding any such changes.
In the case of information furnished pursuant to subclauses (i) through
(iii) above, the amounts shall be expressed as a dollar amount per Single
Certificate of the relevant Class.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall furnish to each Person who at any time during the calendar year
was a Holder of a Regular Certificate a statement containing the information set
forth in subclauses (i) through (iii) above, aggregated for such calendar year
or applicable portion thereof during which such person was a Certificateholder.
Such obligation of the Trustee shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code as from time to time are in
force.
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Within a reasonable period of time after the end of each calendar year, the
Trustee shall furnish to each Person who at any time during the calendar year
was a Holder of a Residual Certificate a statement setting forth the amount, if
any, actually distributed with respect to the Residual Certificates, as
appropriate, aggregated for such calendar year or applicable portion thereof
during which such Person was a Certificateholder.
The Master Servicer shall, upon request, furnish to each Certificateholder,
during the term of this Agreement, such periodic, special, or other reports or
information, whether or not provided for herein, as shall be reasonable with
respect to the Certificateholder, or otherwise with respect to the purposes of
this Agreement, all such reports or information to be provided at the expense of
the Certificateholder in accordance with such reasonable and explicit
instructions and directions as the Certificateholder may provide.
On each Distribution Date the Trustee shall provide Bloomberg Financial
Markets, L.P. ("Bloomberg") CUSIP level factors for each class of Certificates
as of such Distribution Date, using a format and media mutually acceptable to
the Trustee and Bloomberg.
SECTION 4.03. Remittance Reports; P&I Advances.
(a) On the Business Day following each Determination Date, the Master
Servicer shall deliver to the Trustee by telecopy (or by such other means
as the Master Servicer and the Trustee may agree from time to time) a
Remittance Report with respect to the related Distribution Date. The
Trustee shall not be responsible (except with regard to any information
regarding the Prepayment Charges to the extent set forth below) to
recompute, recalculate or verify any information provided to it by the
Master Servicer. Notwithstanding the foregoing, in connection with any
Principal Prepayment on any Mortgage Loan listed on Schedule 1 hereto, the
Master Servicer shall verify that the related Prepayment Charge was
delivered to the Master Servicer for deposit in the Master Servicer
Collection Account in the amount set forth on such Schedule 1 in accordance
with Section 3.30.
(b) If the Monthly Payment on a Mortgage Loan that was due on a
related Due Date and is delinquent other than as a result of interest
shortfalls due to bankruptcy proceedings or application of the Relief Act
and for which the related Servicer was required to make an advance pursuant
to the related Servicing Agreement exceeds the amount deposited in the
Master Servicer Collection Account which will be used for an advance with
respect to such Mortgage Loan, the Master Servicer will deposit in the
Master Servicer Collection Account not later than the Distribution Account
Deposit Date immediately preceding the related Distribution Date an amount
equal to such deficiency, net of the Servicing Fee for such Mortgage Loan
except to the extent the Master Servicer determines any such advance to be
nonrecoverable from Liquidation Proceeds, Insurance Proceeds or future
payments on the Mortgage Loan for which such P&I Advance was made. Any
amounts held for future distribution and so used shall be appropriately
reflected in the Master Servicer's records and replaced by the Master
Servicer by deposit in the Master Servicer Collection Account on or before
any future Distribution Account Deposit Date to the extent that the
Available Distribution Amount for the related Distribution Date (determined
without regard to P&I Advances to be made on the Distribution Account
Deposit Date) shall be less than the total
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amount that would be distributed to the Classes of Certificateholders
pursuant to Section 4.01 on such Distribution Date if such amounts held for
future distributions had not been so used to make P&I Advances. Subject to
the foregoing, the Master Servicer shall continue to make such P&I Advances
through the date that the related Servicer is required to do so under its
Servicing Agreement. If applicable, on the Distribution Account Deposit
Date, the Master Servicer shall present an Officer's Certificate to the
Trustee (i) stating that the Master Servicer elects not to make a Monthly
Advance in a stated amount and (ii) detailing the reason it deems the
advance to be nonrecoverable. The Trustee will provide notice to the Master
Servicer by telecopy by the close of business on the Business Day prior to
the Distribution Date in the event that the amount remitted by the Master
Servicer to the Trustee on such date is less than the P&I Advances required
to be made by the Master Servicer for the related Distribution Date.
SECTION 4.04. Allocation of Realized Losses.
(a) Prior to each Determination Date, the Master Servicer shall
determine based solely on information provided by the related Servicer as
to each Mortgage Loan and REO Property: (i) the total amount of Realized
Losses, if any, incurred in connection with any Final Recovery
Determinations made during the related Prepayment Period; (ii) whether and
the extent to which such Realized Losses constituted Bankruptcy Losses; and
(iii) the respective portions of such Realized Losses allocable to interest
and allocable to principal. Prior to each Determination Date, the Master
Servicer shall also determine as to each Mortgage Loan: (i) the total
amount of Realized Losses, if any, incurred in connection with any
Deficient Valuations made during the related Prepayment Period; and (ii)
the total amount of Realized Losses, if any, incurred in connection with
Debt Service Reductions in respect of Monthly Payments due during the
related Due Period.
(b) All Realized Losses on the Mortgage Loans allocated to any REMIC I
Regular Interest pursuant to Section 4.04(c) on the Mortgage Loans shall be
allocated by the Master Servicer on each Distribution Date as follows:
first, to Net Monthly Excess Cashflow; second, to the Class CE
Certificates, until the Certificate Principal Balance thereof has been
reduced to zero, third, to the Class M-3 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; fourth, to
the Class M-2 Certificates, until the Certificate Principal Balance thereof
has been reduced to zero; and fifth, to the Class M-1 Certificates, until
the Certificate Principal Balance thereof has been reduced to zero. All
Realized Losses to be allocated to the Certificate Principal Balances of
all Classes on any Distribution Date shall be so allocated after the actual
distributions to be made on such date as provided above. All references
above to the Certificate Principal Balance of any Class of Certificates
shall be to the Certificate Principal Balance of such Class immediately
prior to the relevant Distribution Date, before reduction thereof by any
Realized Losses, in each case to be allocated to such Class of
Certificates, on such Distribution Date.
Any allocation of Realized Losses to a Mezzanine Certificate on any
Distribution Date shall be made by reducing the Certificate Principal
Balance thereof by the amount so allocated; any allocation of Realized
Losses to a Class CE Certificates shall be made by reducing the amount
otherwise payable in respect thereof pursuant to Section 4.01[(a)(4)(xvi)].
No allocations of any Realized Losses shall be made to the Certificate
Principal Balances of the Class A Certificates or the Class P Certificates.
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As used herein, an allocation of a Realized Loss on a "pro rata basis"
among two or more specified Classes of Certificates means an allocation on
a pro rata basis, among the various Classes so specified, to each such
Class of Certificates on the basis of their then outstanding Certificate
Principal Balances prior to giving effect to distributions to be made on
such Distribution Date. All Realized Losses and all other losses allocated
to a Class of Certificates hereunder will be allocated among the,
Certificates of such Class in proportion to the Percentage Interests
evidenced thereby.
(c) All Realized Losses on the Mortgage Loans shall be allocated by
the Trustee on each Distribution Date as follows: with respect to the
Mortgage Loans with an Expense Adjusted Mortgage Rate as of the Cut-off
Date of less than 6.00%, to the Holders of REMIC I Regular Interest I-LTB
until the Uncertificated Balance has been reduced to zero, and with respect
to the Mortgage Loans with an Expense Adjusted Mortgage Rate as of the
Cut-off Date of 6.00% or greater, first, to REMIC I Regular Interest I-LTA
until the Uncertificated Balance has been reduced to zero, second, to REMIC
I Regular Interest I-LTE until the Uncertificated Balance has been reduced
to zero, third, to REMIC I Regular Interest I-LTD until the Uncertificated
Balance has been reduced to zero, and fourth, to REMIC I Regular Interest
I-LTC until the Uncertificated Balance has been reduced to zero.
(d) All Realized Losses on the REMIC I Regular Interests shall be
allocated by the Trustee on each Distribution Date to the following REMIC
II Regular Interests in the specified percentages, as follows: first, to
Uncertificated Interest payable to the REMIC II Regular Interest II-LTAA
and REMIC II Regular Interest II-LTZZ up to an aggregate amount equal to
the REMIC II Interest Loss Allocation Amount, 98% and 2%, respectively;
second, to the Uncertificated Balances of the REMIC II Regular Interest
II-LTAA and REMIC II Regular Interest II-LTZZ up to an aggregate amount
equal to the REMIC II Principal Loss Allocation Amount, 98% and 2%,
respectively; third, to the Uncertificated Balances of REMIC II Regular
Interest II-LTAA, REMIC II Regular Interest II-LTM3 and REMIC II Regular
Interest II-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Balance of REMIC II Regular Interest II-LTM3 has been reduced to zero;
fourth to the Uncertificated Balances of REMIC II Regular Interest II-LTA,
REMIC II Regular Interest II-LTM2 and REMIC II Regular Interest II-LTZZ,
98%, 1% and 1%, respectively, until the Uncertificated Balance of REMIC II
Regular Interest II-LTM2 has been reduced to zero; and fifth to the
Uncertificated Balances of REMIC II Regular Interest II-LTAA, REMIC II
Regular Interest II-LTM1 and REMIC II Regular Interest II-LTZZ, 98%, 1% and
1%, respectively, until the Uncertificated Balance of REMIC II Regular
Interest II-LTM1 has been reduced to zero.
SECTION 4.05. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Trustee shall
comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to such
Certificateholders.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates in the aggregate will represent the entire
beneficial ownership interest in the Mortgage Loans and all other assets
included in REMIC I.
The Certificates will be substantially in the forms annexed hereto as
Exhibits A-1 through A-10. The Certificates of each Class will be issuable
in registered form only, in denominations of authorized Percentage
Interests as described in the definition thereof. Each Certificate will
share ratably in all rights of the related Class.
Upon original issue, the Certificates shall be executed, authenticated
and delivered by the Trustee to and upon the order of the Depositor. The
Certificates shall be executed by manual or facsimile signature on behalf
of the Trustee by an authorized signatory. Certificates bearing the manual
or facsimile signatures of individuals who were at any time the proper
officers of the Trustee shall bind the Trustee, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such
offices at the date of such Certificates. No Certificate shall be entitled
to any benefit under this Agreement or be valid for any purpose, unless
there appears on such Certificate a certificate of authentication
substantially in the form provided herein executed by the Trustee by manual
signature, and such certificate of authentication shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication.
(b) The Class A Certificates, the Class A-IO Certificates and the
Mezzanine Certificates shall initially be issued as one or more
Certificates held by the Book-Entry Custodian or, if appointed to hold such
Certificates as provided below, the Depository and registered in the name
of the Depository or its nominee and, except as provided below,
registration of such Certificates may not be transferred by the Trustee
except to another Depository that agrees to hold such Certificates for the
respective Certificate Owners with Ownership Interests therein. The
Certificate Owners shall hold their respective Ownership Interests in and
to such Certificates through the book-entry facilities of the Depository
and, except as provided below, shall not be entitled to definitive, fully
registered Certificates ("Definitive Certificates") in respect of such
Ownership Interests. All transfers by Certificate Owners of their
respective Ownership Interests in the 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 the Ownership Interests in the 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. The Trustee is hereby initially appointed as the Book-Entry
Custodian and hereby agrees to act as such in accordance herewith and in
accordance with the agreement that it has with the Depository authorizing
it to act as such. The Book-Entry Custodian may, and, if it is no longer
qualified to act as such, the Book-Entry Custodian shall, appoint, by a
written
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instrument delivered to the Depositor, the Master Servicer and, if the
Trustee is not the Book-Entry Custodian, the Trustee, any other transfer
agent (including the Depository or any successor Depository) to act as
Book-Entry Custodian under such conditions as the predecessor Book-Entry
Custodian and the Depository or any successor Depository may prescribe,
provided that the predecessor Book-Entry Custodian shall not be relieved of
any of its duties or responsibilities by reason of any such appointment of
other than the Depository. If the Trustee resigns or is removed in
accordance with the terms hereof, the successor Trustee or, if it so
elects, the Depository shall immediately succeed to its predecessor's
duties as Book-Entry Custodian. The Depositor shall have the right to
inspect, and to obtain copies of, any Certificates held as Book-Entry
Certificates by the Book-Entry Custodian.
The Trustee, the Master Servicer and the Depositor may for all
purposes (including the making of payments due on the Book-Entry
Certificates) deal with the Depository as the authorized representative of
the Certificate Owners with respect to the Book-Entry Certificates for the
purposes of exercising the rights of Certificateholders hereunder. The
rights of Certificate Owners with respect to the Book-Entry Certificates
shall be limited to those established by law and agreements between such
Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions
from, and votes of, the Depository as Holder of the Book-Entry Certificates
with respect to any particular matter shall not be deemed inconsistent if
they are made with respect to different Certificate Owners. The Trustee may
establish a reasonable record date in connection with solicitations of
consents from or voting by Certificateholders and shall give notice to the
Depository of such record date.
If (i)(A) the Depositor advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (B) the Depositor is unable to locate a
qualified successor, (ii) the Depositor at its option advises the Trustee
in writing that it elects to terminate the book-entry system through the
Depository or (iii) after the occurrence of a Master Servicer Event of
Default, Certificate Owners representing in the aggregate not less than 51%
of the Ownership Interests of the Book-Entry Certificates advise the
Trustee through the Depository, 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 Certificates to Certificate Owners requesting
the same. Upon surrender to the Trustee of the Book-Entry Certificates by
the Book-Entry Custodian or the Depository, as applicable, accompanied by
registration instructions from the Depository for registration of transfer,
the Trustee shall cause the Definitive Certificates to be issued. Such
Definitive Certificates will be issued in minimum denominations of $10,000
except that any beneficial ownership that was represented by a Book-Entry
Certificate in an amount less than $10,000 immediately prior to the
issuance of a Definitive Certificate shall be issued in a minimum
denomination equal to the amount represented by such Book-Entry
Certificate. None of the Depositor, the Master Servicer or the Trustee
shall be liable for any delay in the delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the 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.
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SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) The Trustee shall cause to be kept at one of the offices or
agencies to be appointed by the Trustee in accordance with the provisions
of Section 8.11, a Certificate Register for the Certificates in which,
subject to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided.
(b) No transfer of any Class CE Certificate, Class P Certificate or
Residual Certificate shall be made unless that transfer is made pursuant to
an effective registration statement under the Securities Act of 1933, as
amended (the "1933 Act"), and effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a
transfer of a Class CE Certificate, Class P Certificate or Residual
Certificate is to be made without registration or qualification (other than
in connection with the initial transfer of any such Certificate by the
Depositor), the Trustee shall require receipt of: (i) if such transfer is
purportedly being made in reliance upon Rule 144A under the 1933 Act,
written certifications from the Certificateholder desiring to effect the
transfer and from such Certificateholder's prospective transferee,
substantially in the form attached hereto as Exhibit F-1; (ii) if such
transfer is purportedly being made in reliance upon Rule 501(a) under the
1933 Act, written certifications from the Certificateholder desiring to
effect the transfer and from such Certificateholder's prospective
transferee, substantially in the form attached hereto as Exhibit F-2 and
(iii) in all other cases, an Opinion of Counsel satisfactory to it that
such transfer may be made without such registration or qualification (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Trustee, the Master Servicer in its capacity as such or any
Servicer), together with copies of the written certification(s) of the
Certificateholder desiring to effect the transfer and/or such
Certificateholder's prospective transferee upon which such Opinion of
Counsel is based, if any. Neither of the Depositor nor the Trustee is
obligated to register or qualify any such Certificates under the 1933 Act
or any other securities laws or to take any action not otherwise required
under this Agreement to permit the transfer of such Certificates without
registration or qualification. Any Certificateholder desiring to effect the
transfer of any such Certificate shall, and does hereby agree to, indemnify
the Trustee, the Depositor 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.
(c) No transfer of a Class CE Certificate, Class P Certificate or a
Residual Certificate or any interest therein shall be made to any Plan
subject to ERISA or Section 4975 of the Code, any Person acting, directly
or indirectly, on behalf of any such Plan or any Person acquiring such
Certificates with "Plan Assets" of a Plan within the meaning of the
Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101
("Plan Assets") unless the Depositor, the Trustee and the Master Servicer
are provided with an Opinion of Counsel which establishes to the
satisfaction of the Depositor, the Trustee and the Master Servicer that the
purchase of such Certificates is permissible under applicable law, will not
constitute or result in any prohibited transaction under ERISA or Section
4975 of the Code and will not subject the Depositor, the Master Servicer,
the Trustee or the Trust Fund to any obligation or liability (including
obligations or liabilities under ERISA or Section 4975 of the Code) in
addition to those undertaken in this Agreement, which Opinion of Counsel
shall not be an expense of the Depositor, the Master Servicer, the Trustee
or the Trust Fund. An Opinion of Counsel will not be required in connection
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with the initial transfer of any such Certificate by the Depositor to an
affiliate of the Depositor (in which case, the Depositor or any affiliate
thereof shall have deemed to have represented that such affiliate is not a
Plan or a Person investing Plan Assets) and the Trustee shall be entitled
to conclusively rely upon a representation (which, upon the request of the
Trustee, shall be a written representation) from the Depositor of the
status of such transferee as an affiliate of the Depositor.
(d) (i) 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 to have irrevocably authorized the Trustee or its designee
under clause (iii)(A) below to deliver payments to a Person other than such
Person and to negotiate the terms of any mandatory sale under clause
(iii)(B) below and to execute all instruments of Transfer and to do all
other things necessary in connection with any such sale. The rights of each
Person acquiring any Ownership Interest in a Residual Certificate are
expressly subject to the following provisions:
(A) 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.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Trustee shall require delivery
to it, and shall not register the Transfer of any Residual Certificate
until its receipt of, an affidavit and agreement (a "Transfer
Affidavit and Agreement," in the form attached hereto as Exhibit F-3)
from the proposed Transferee, in form and substance satisfactory to
the Trustee, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring
its Ownership Interest in the Residual Certificate that is the subject
of the proposed Transfer as a nominee, trustee or agent for any Person
that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in a Residual Certificate, it will endeavor to
remain a Permitted Transferee, and that it has reviewed the provisions
of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of the Trustee who is assigned to this transaction
has actual knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in a Residual
Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (x) to require a Transfer Affidavit
and Agreement from any other Person to whom such Person attempts to
transfer its Ownership Interest in a Residual Certificate and (Y) not
to transfer its Ownership Interest unless it provides a Transferor
Affidavit (in the form attached hereto as Exhibit
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F-2) to the Trustee stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary
Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon
acquiring an Ownership Interest in a Residual Certificate, if it is,
or is holding an Ownership Interest in a Residual Certificate on
behalf of, a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual
Certificate only if it shall have received the Transfer Affidavit and
Agreement and all of such other documents as shall have been
reasonably required by the Trustee as a condition to such
registration. In addition, no Transfer of a Residual Certificate shall
be made unless the Trustee shall have received a representation letter
from the Transferee of such Certificate to the effect that such
Transferee is a Permitted Transferee.
(iii) (A) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights as holder
thereof retroactive to the date of registration of such 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 this Section 5.02(d) or for making
any payments due on such Certificate to the holder thereof or for
taking any other action with respect to such holder under the
provisions of this Agreement.
(B) If any purported Transferee shall become a holder of a
Residual Certificate in violation of the restrictions in this
Section 5.02(d) and to the extent that the retroactive
restoration of the rights of the holder of such Residual
Certificate as described in clause (iii)(A) above shall be
invalid, illegal or unenforceable, then the Trustee shall have
the right, without notice to the holder or any prior holder of
such Residual Certificate, to sell such Residual Certificate to a
purchaser selected by the Trustee on such terms as the Trustee
may choose. Such purported Trustee shall promptly endorse and
deliver each Residual Certificate in accordance with the
instructions of the Trustee. Such purchaser may be the Trustee
itself or any Affiliate of the Trustee. The proceeds of such
sale, net of the commissions (which may include commissions
payable to the Trustee or its Affiliates), expenses and taxes
due, if any, will be remitted by the Trustee to such purported
Transferee. The terms and conditions of any sale under this
clause (iii)(B) shall be determined in the sole discretion of the
Trustee, and the Trustee shall not be liable to any Person having
an Ownership Interest in a Residual Certificate as a result of
its exercise of such discretion.
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(iv) The Trustee shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions all
information necessary to compute any tax imposed (A) as a result of
the Transfer of an Ownership Interest in a Residual Certificate to any
Person who is a Disqualified Organization, including the information
described in Treasury regulations sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such
Residual Certificate and (B) as a result of any regulated investment
company, real estate investment trust, common trust fund, partnership,
trust, estate or organization described in Section 1381 of the Code
that holds an Ownership Interest in a Residual Certificate having as
among its record holders at any time any Person which is a
Disqualified Organization. Reasonable compensation for providing such
information may be accepted by the Trustee.
(v) The provisions of this Section 5.02(d) set forth prior to
this subsection (v) may be modified, added to or eliminated, provided
that there shall have been delivered to the Trustee at the expense of
the party seeking to modify, add to or eliminate any such provision
the following:
(A) written notification from each Rating Agency to the
effect that the modification, addition to or elimination of such
provisions will not cause such Rating Agency to downgrade its
then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee, to the effect that such modification
of, addition to or elimination of such provisions will not cause
any Trust REMIC to cease to qualify as a REMIC and will not cause
any Trust REMIC, as the case may be, to be subject to an
entity-level tax caused by the Transfer of any Residual
Certificate to a Person that is not a Permitted Transferee or a
Person other than the prospective transferee to be subject to a
REMIC-tax caused by the Transfer of a Residual Certificate to a
Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for
registration of transfer of any Certificate at any office or agency of the
Trustee maintained for such purpose pursuant to Section 8.11, the Trustee
shall execute, authenticate and deliver, in the name of the designated
Transferee or Transferees, one or more new Certificates of the same Class
of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Certificate may be
exchanged for other Certificates of the same Class with authorized
denominations and a like aggregate Percentage Interest, upon surrender of
such Certificate to be exchanged at any office or agency of the Trustee
maintained for such purpose pursuant to Section 8.11. 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 transfer or exchange shall (if so required
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by the Trustee) be duly endorsed by, or be accompanied by a written
instrument of transfer in the form satisfactory to the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing.
(g) No service charge to the Certificateholders shall be made for any
transfer or exchange of Certificates, but the Trustee may require 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.
(h) All Certificates surrendered for transfer and exchange shall be
canceled and destroyed by the Trustee in accordance with its customary
procedures.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) 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 (ii) there is delivered to Trustee such security or
indemnity as may be required by it to save it harmless, then, in the absence of
actual knowledge by the Trustee that such Certificate has been acquired by a
bona fide purchaser, the Trustee, shall execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and of like denomination and
Percentage Interest. Upon the issuance of any new Certificate under this
Section, 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 shall
constitute complete and indefeasible evidence of ownership in the applicable
REMIC created hereunder, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
SECTION 5.04. Persons Deemed Owners.
The Depositor, the Master Servicer, the Trustee and any agent of any of
them may treat the Person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 4.01 and for all other purposes whatsoever, and none of the Depositor,
the Master Servicer, the Trustee or any agent of any of them shall be affected
by notice to the contrary.
SECTION 5.05. Certain Available Information.
On or prior to the date of the first sale of any Class CE Certificate,
Class P Certificate or Residual Certificate to an Independent third party, the
Depositor shall provide to the Trustee ten copies of any private placement
memorandum or other disclosure document used by the Depositor in connection with
the offer and sale of such Certificate. In addition, if any such private
placement memorandum or disclosure document is revised, amended or supplemented
at any time following the delivery thereof to the Trustee, the Depositor
promptly shall inform the Trustee of such event and shall deliver to the Trustee
ten copies of the private placement memorandum or disclosure document, as
revised, amended or supplemented. The Trustee shall maintain at its Corporate
Trust Office and shall make available free of charge during normal business
hours for review by any Holder of a Certificate or any Person identified to the
Trustee as a
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prospective transferee of a Certificate, originals or copies of the following
items: (i) in the case of a Holder or prospective transferee of a Class CE
Certificate, Class P Certificate or Residual Certificate, the related private
placement memorandum or other disclosure document relating to such Class of
Certificates, in the form most recently provided to the Trustee; and (ii) in all
cases, (A) this Agreement and any amendments hereof entered into pursuant to
Section 11.01, (B) all monthly statements required to be delivered to
Certificateholders of the relevant Class pursuant to Section 4.02 since the
Closing Date, and all other notices, reports, statements and written
communications delivered to the Certificateholders of the relevant Class
pursuant to this Agreement since the Closing Date, (C) all certifications
delivered by a Responsible Officer of the Trustee since the Closing Date
pursuant to Section 10.01(h) and (D) any and all officers' certificates
delivered to the Trustee by the Master Servicer or the Servicer since the
Closing Date to evidence such Person's determination that any P&I Advance or
Servicing Advance was, or if made, would be a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance. Copies and mailing of any and all of the
foregoing items will be available from the Trustee upon request at the expense
of the Person requesting the same.
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ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01. Liability of the Depositor and the Master Servicer.
The Depositor and the Master Servicer each shall be liable in accordance
herewith only to the extent of the obligations specifically imposed by this
Agreement upon them in their respective capacities as Depositor and Master
Servicer and undertaken hereunder by the Depositor and the Master Servicer
herein.
SECTION 6.02. Merger or Consolidation of the Depositor or the Master
Servicer.
Subject to the following paragraph, the Depositor will keep in full effect
its existence, rights and franchises as a corporation under the laws of the
jurisdiction of its incorporation. Subject to the following paragraph, the
Master Servicer will keep in full effect its existence, rights and franchises as
a corporation under the laws of the jurisdiction of its formation. The Depositor
and the Master Servicer each will 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, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
The Depositor or the Master Servicer may be merged or consolidated with or
into any Person, or transfer all or substantially all of its assets to any
Person, in which case 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, the Rating Agencies' ratings of the Class A
Certificates, the Class A-IO Certificates and the Mezzanine Certificates in
effect immediately prior to such merger or consolidation will not be qualified,
reduced or withdrawn as a result thereof (as evidenced by a letter to such
effect from the Rating Agencies).
SECTION 6.03. Limitation on Liability of the Depositor, the Master Servicer
and Others.
None of the Depositor, the Master Servicer or any of the directors,
officers, employees or agents of the Depositor or the Master Servicer shall be
under any liability to the Trust Fund or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer or any such
person against any breach of warranties, representations or covenants made
herein, or against any specific liability imposed on the Master Servicer
pursuant hereto, or against any liability which would otherwise be imposed by
reason 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 Master Servicer and any director, officer,
employee or agent of the
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Depositor or the Master Servicer may rely in good faith on any document of any
kind which, prima facie, is properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Master Servicer and
any director, officer, employee or agent of the Depositor or the Master Servicer
shall be indemnified and held harmless by the Trust Fund against any loss,
liability or expense incurred in connection with any legal action relating to
this Agreement, the Certificates or any Servicing Agreement, or 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. Neither the Depositor nor the
Master Servicer shall be under any obligation to appear in, prosecute or defend
any legal action unless such action is related to its respective duties under
this Agreement and, in its opinion, does not involve it in any expense or
liability; provided, however, that each of the Depositor and the Master Servicer
may in its discretion undertake any such action which it may deem necessary or
desirable with respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom (except 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) shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor and the Master Servicer shall be entitled to be reimbursed therefor
from the Master Servicer Collection Account as and to the extent provided in
Article III, any such right of reimbursement being prior to the rights of the
Certificateholders to receive any amount in the Master Servicer Collection
Account.
SECTION 6.04 Limitation on Resignation of the Master Servicer.
The Master Servicer shall not resign from the obligations and duties hereby
imposed on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination pursuant to the
preceding sentence permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect obtained at the expense of the
Master Servicer and delivered to the Trustee. No resignation of the Master
Servicer shall become effective until the Trustee or a successor Master Servicer
shall have assumed the Master Servicer's responsibilities, duties, liabilities
(other than those liabilities arising prior to the appointment of such
successor) and obligations under this Agreement.
SECTION 6.05 Assignment of Master Servicing.
The Master Servicer may sell and assign its rights and delegate its duties
and obligations in its entirety as Master Servicer under this Agreement;
provided, however, that: (i) the purchaser or transferee accepting such
assignment and delegation (a) shall be a Person which shall be qualified to
service mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac; (b) shall have a net worth
of not less than $15,000,000 (unless otherwise approved by each Rating Agency
pursuant to clause (ii) below); (c) shall be reasonably satisfactory to the
Trustee (as evidenced in a writing signed by the Trustee); and (d) shall execute
and deliver to the Trustee an agreement, in form and substance reasonably
satisfactory to the Trustee, which contains an assumption by such Person of the
due and punctual performance and observance of each covenant and condition to be
performed or observed by it as master servicer under this Agreement, any
custodial agreement from and after the effective date of such agreement; (ii)
each Rating Agency shall be
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given prior written notice of the identity of the proposed successor to the
Master Servicer and each Rating Agency's rating of the Certificates in effect
immediately prior to such assignment, sale and delegation will not be
downgraded, qualified or withdrawn as a result of such assignment, sale and
delegation, as evidenced by a letter to such effect delivered to the Master
Servicer and the Trustee; and (iii) the Master Servicer assigning and selling
the master servicing shall deliver to the Trustee an officer's certificate and
an Opinion of Independent counsel, each stating that all conditions precedent to
such action under this Agreement have been completed and such action is
permitted by and complies with the terms of this Agreement. No such assignment
or delegation shall affect any liability of the Master Servicer arising prior to
the effective date thereof.
SECTION 6.06 Rights of the Depositor in Respect of the Master Servicer.
The Master Servicer shall afford the Depositor and the Trustee, upon
reasonable notice, during normal business hours, access to all records
maintained by the Master Servicer in respect of the Master Servicer's rights and
obligations hereunder and access to officers of the Master Servicer responsible
for such obligations. Upon request, the Master Servicer shall furnish to the
Depositor and the Trustee the most recent financial statements of its parent and
such other information relating to the Master Servicer's capacity to perform its
obligations under this Agreement as it possesses. To the extent such information
is not otherwise available to the public, the Depositor and the Trustee shall
not disseminate any information obtained pursuant to the preceding two sentences
without the Master Servicer's written consent, except as required pursuant to
this Agreement or to the extent that it is appropriate to do so (i) in working
with legal counsel, auditors, taxing authorities or other governmental agencies
or (ii) pursuant to any law, rule, regulation, order, judgment, writ, injunction
or decree of any court or governmental authority having jurisdiction over the
Depositor, the Trustee or the Trust Fund, and in any case, the Depositor or the
Trustee, as the case may be, shall use its best efforts to assure the
confidentiality of any such disseminated non-public information. The Depositor
may, but is not obligated to, enforce the obligations of the Master Servicer
under this Agreement and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Master Servicer under this
Agreement or exercise the rights of the Master Servicer under this Agreement;
provided that the Master Servicer shall not be relieved of any of its
obligations under this Agreement by virtue of such performance by the Depositor
or its designee. The Depositor shall not have any responsibility or liability
for any action or failure to act by the Master Servicer and is not obligated to
supervise the performance of the Master Servicer under this Agreement or
otherwise.
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ARTICLE VII
DEFAULT
SECTION 7.01. Master Servicer Events of Default.
(a) "Master Servicer Event of Default," wherever used herein, means
any one of the following events:
(i) any failure by the Master Servicer to remit to the Trustee
for distribution to the Certificateholders any payment (other than a
P&I Advance required to be made from its own funds on any Distribution
Account Deposit Date pursuant to Section 4.03) required to be made
under the terms of the Certificates and this Agreement which continues
unremedied for a period of one Business Day after the date upon which
written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer by the Depositor or the
Trustee (in which case notice shall be provided by telecopy), or to
the Master Servicer, the Depositor, the Trustee and by the Holders of
Certificates entitled to at least 25% of the Voting Rights; or
(ii) any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the covenants
or agreements on the part of the Master Servicer contained in this
Agreement, or the breach by the Master Servicer of any representation
and warranty contained in Section 2.05, which continues unremedied for
a period of 30 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to
the Master Servicer by the Depositor or the Trustee or to the Master
Servicer, the Depositor and the Trustee by the Holders of Certificates
entitled to at least 25% of the Voting Rights; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law or the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceeding, 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 90 days; or
(iv) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to it or of or relating to all or substantially all of
its property; or
(v) the Master Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or
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reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(vi) any failure of the Master Servicer to make any P&I Advance
on any Distribution Account Deposit Date required to be made from its
own funds pursuant to Section 4.03 which continues unremedied until
3:00 p.m. New York time on the Business Day immediately following the
Distribution Account Deposit Date.
If a Master Servicer Event of Default described in clauses (i) through (vi) of
this Section shall occur, then, and in each and every such case, so long as such
Master Servicer Event of Default shall not have been remedied, the Depositor or
the Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 51% of Voting Rights, the Trustee shall, by notice in
writing to the Master Servicer (and to the Depositor if given by the Trustee or
to the Trustee if given by the Depositor), terminate all of the rights and
obligations of the Master Servicer in its capacity as Master Servicer under this
Agreement, to the extent permitted by law, and in and to the Mortgage Loans and
the proceeds thereof. If a Master Servicer Event of Default described in clause
(vi) hereof shall occur, the Trustee shall, by notice in writing to the Master
Servicer and the Depositor, terminate all of the rights and obligations of the
Master Servicer in its capacity as Master Servicer under this Agreement and in
and to the Mortgage Loans and the proceeds thereof. On or after the receipt by
the Master Servicer of such written notice, all authority and power of the
Master Servicer under this Agreement, whether with respect to the Certificates
(other than as a Holder of any Certificate) or the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee pursuant to and under this Section,
and, without limitation, the Trustee is hereby authorized and empowered, as
attorney-in-fact or otherwise, to execute and deliver, on behalf of and at the
expense of the Master Servicer, any and all documents and other instruments and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Master Servicer agrees promptly (and in any event no later than
ten Business Days subsequent to such notice) to provide the Trustee with all
documents and records requested by it to enable it to assume the Master
Servicer's functions under this Agreement, and to cooperate with the Trustee in
effecting the termination of the Master Servicer's responsibilities and rights
under this Agreement, including, without limitation, the transfer within one
Business Day to the Trustee for administration by it of all cash amounts which
at the time shall be or should have been credited by the Master Servicer to the
Master Servicer Collection Account held by or on behalf of the Master Servicer
or thereafter be received with respect to the Mortgage Loans or any REO Property
(provided, however, that the Master Servicer shall continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the date of such termination, whether in respect of P&I Advances or otherwise,
and shall continue to be entitled to the benefits of Section 6.03,
notwithstanding any such termination, with respect to events occurring prior to
such termination). For purposes of this Section 7.01, the Trustee shall not be
deemed to have knowledge of a Master Servicer Event of Default unless a
Responsible Officer of the Trustee assigned to and working in the Trustee's
Corporate Trust Office has actual knowledge thereof or unless written notice of
any event which is in fact such a Master Servicer Event of Default is received
by the Trustee and such notice references the Certificates, the Trust Fund or
this Agreement.
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SECTION 7.02. Trustee to Act; Appointment of Successor.
(a) (1) On and after the time the Master Servicer receives a notice of
termination, the Trustee shall be the successor in all respects to the
Master Servicer in its capacity as Master Servicer under this Agreement and
the transactions set forth or provided for herein, and all the
responsibilities, duties and liabilities relating thereto and arising
thereafter shall be assumed by the Trustee (except for any representations
or warranties of the Master Servicer under this Agreement, the
responsibilities, duties and liabilities contained in Section 2.03(c) and
the obligation to deposit amounts in respect of losses pursuant to Section
3.23(c)) by the terms and provisions hereof including, without limitation,
the Master Servicer's obligations to make P&I Advances pursuant to Section
4.03; provided, however, that if the Trustee is prohibited by law or
regulation from obligating itself to make advances regarding delinquent
mortgage loans, then the Trustee shall not be obligated to make P&I
Advances pursuant to Section 4.03; and provided further, that any failure
to perform such duties or responsibilities caused by the Master Servicer's
failure to provide information required by Section 7.01 shall not be
considered a default by the Trustee as successor to the Master Servicer
hereunder. As compensation therefor, the Trustee shall be entitled to the
Master Servicing Fee and all funds relating to the Mortgage Loans to which
the Master Servicer would have been entitled if it had continued to act
hereunder. Notwithstanding the above and subject to Section 7.02(a)(2)
below, the Trustee may, if it shall be unwilling to so act, or shall, if it
is unable to so act or if it is prohibited by law from making advances
regarding delinquent mortgage loans or if the Holders of Certificates
entitled to at least 51% of the Voting Rights so request in writing
promptly appoint or petition a court of competent jurisdiction to appoint,
an established mortgage loan servicing institution acceptable to each
Rating Agency and having a net worth of not less than $15,000,000, as the
successor to the Master Servicer under this Agreement in the assumption of
all or any part of the responsibilities, duties or liabilities of the
Master Servicer under this Agreement.
(2) No appointment of a successor to the Master Servicer under this
Agreement shall be effective until the assumption by the successor of all
of the Master Servicer's responsibilities, duties and liabilities
hereunder. In connection with such appointment and assumption described
herein, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of
that permitted the Master Servicer as such hereunder. The Depositor, the
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Pending
appointment of a successor to the Master Servicer under this Agreement, the
Trustee shall act in such capacity as hereinabove provided. The transition
costs and expenses incurred by the Trustee in connection with the
replacement of the Master Servicer shall be reimbursed out of the Trust
Fund.
(b) If the Master Servicer fails to remit to the Trustee for
distribution to the Certificateholders any payment required to be made
under the terms of this Agreement (for purposes of this Section 7.02(b), a
"Remittance") because the Master Servicer is the subject of a proceeding
under the federal Bankruptcy Code and the making of such Remittance is
prohibited by Section 362 of the federal Bankruptcy Code, the Trustee
shall, upon notice of such prohibition, immediately become the successor
Master Servicer, regardless of whether a notice of termination under
Section 7.01 has been given, and advance the amount of such Remittance by
depositing such amount in the Distribution Account on the
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related Distribution Date. The Trustee shall be obligated to make such
advance only if (i) such advance, in the good faith judgment of the Trustee
can reasonably be expected to be ultimately recoverable from Stayed Funds
and (ii) the Trustee is not prohibited by law from making such advance or
obligating itself to do so. Upon remittance of the Stayed Funds to the
Trustee or the deposit thereof in the Distribution Account by the Master
Servicer, a trustee in bankruptcy or a federal bankruptcy court, the
Trustee may recover the amount so advanced, without interest, by
withdrawing such amount from the Distribution Account; however, nothing in
this Agreement shall be deemed to affect the Trustee's rights to recover
from the Master Servicer's own funds interest on the amount of any such
advance. If the Trustee at any time makes an advance under this Subsection
which it later determines in its good faith judgment will not be ultimately
recoverable from the Stayed Funds with respect to which such advance was
made, the Trustee shall be entitled to reimburse itself for such advance,
without interest, by withdrawing from the Distribution Account, out of
amounts on deposit therein, an amount equal to the portion of such advance
attributable to the Stayed Funds. During such time as the Trustee acts as
the successor Master Servicer, it shall be entitled to the Master Servicing
Fee and all funds relating to the Mortgage Loans to which the Master
Servicer would have been entitled as set forth in Section 7.02(a).
SECTION 7.03. Notification to Certificateholders.
(a) Upon any termination of the Master Servicer pursuant to Section
7.01 above or any appointment of a successor to the Master Servicer
pursuant to Section 7.02 above, the Trustee shall give prompt written
notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register.
(b) Not later than the later of 60 days after the occurrence of any
event, which constitutes or which, with notice or lapse of time or both,
would constitute a Master Servicer Event of Default or five days after a
Responsible Officer of the Trustee becomes aware of the occurrence of such
an event, the Trustee shall transmit by mail to all Holders of Certificates
notice of each such occurrence, unless such default or Master Servicer
Event of Default shall have been cured or waived.
SECTION 7.04. Waiver of Master Servicer Events of Default.
The Holders representing at least 66% of the Voting Rights evidenced by all
Classes of Certificates affected by any default or Master Servicer Event of
Default hereunder may waive such default or Master Servicer Event of Default;
provided, however, that a default or Master Servicer Event of Default under
clause (i) or (vii) of Section 7.01 may be waived only by all of the Holders of
the Regular Certificates. Upon any such waiver of a default or Master Servicer
Event of Default, such default or Master Servicer Event of Default shall cease
to exist and shall be deemed to have been remedied for every purpose hereunder.
No such waiver shall extend to any subsequent or other default or Master
Servicer Event of Default or impair any right consequent thereon except to the
extent expressly so waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of a Master Servicer Event of Default
and after the curing of all Master Servicer Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. During a Master Servicer Event of
Default, 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 its exercise as
a prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs. Any permissive right of the Trustee enumerated in
this Agreement shall not be construed as a duty.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to it, which
are specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement. If any such instrument is found not to conform
to the requirements of this Agreement in a material manner, it shall take such
action as it deems appropriate to have the instrument corrected, and if the
instrument is not corrected to its satisfaction, it will provide notice thereof
to the Certificateholders.
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 misconduct; provided, however, that:
(i) Prior to the occurrence of a Master Servicer Event of Default, and
after the curing of all such Master Servicer Events of Default which may
have occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the Trustee
shall not be liable 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, in the absence of bad faith on the part of the Trustee, 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 that conform to the requirements of this
Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of it unless it shall be proved that it was negligent in
ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Certificates entitled to at
least 25% of the Voting Rights relating to the time, method and place of
conducting any proceeding for any remedy available to it or exercising any
trust or power conferred upon it under this Agreement.
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SECTION 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and rely upon and shall be protected
in acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably believed
by it to be genuine and to have been signed or presented by the proper
party or parties;
(ii) The Trustee may consult with counsel of its selection and
any advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(iii) The Trustee shall not be under any obligation to exercise
any of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation
hereto 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 it against the costs,
expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of a Master Servicer Event of Default
(which has not been cured or waived), to exercise such of the rights
and powers vested in it by this Agreement, and to 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;
(iv) The Trustee shall not be personally 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;
(v) Prior to the occurrence of a Master Servicer Event of Default
hereunder and after the curing of all Master Servicer Events of
Default which may have occurred, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by the Holders of
Certificates entitled to at least 25% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee not
reasonably assured to the Trustee by such Certificateholders, the
Trustee may require reasonable indemnity satisfactory to it against
such expense, or liability from such Certificateholders as a condition
to taking any such action;
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(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(vii) The Trustee shall not be personally liable for any loss
resulting from the investment of funds held in the Master Servicer
Collection Account at the direction of the Master Servicer pursuant to
Section 3.23(c), for any loss resulting from the investment of funds
held in the Reserve Fund at the direction of the Holder of the Class
CE Certificate or for any loss resulting from the redemption or sale
of any such investment as therein authorized;
(viii) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(ix) the Trustee shall not be deemed to have notice of any
default or Master Servicer Event of Default unless a Responsible
Officer of the Trustee has knowledge thereof or unless written notice
of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Certificates and this Agreement; and
(x) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, each agent,
custodian and other Person employed to act hereunder.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the
trial or other proceeding relating thereto, and any such suit, action or
proceeding instituted by the Trustee shall be brought in its name for the
benefit of all the Holders of such Certificates, subject to the provisions
of this Agreement.
SECTION 8.03. Trustee not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
signature of the Trustee, the authentication of the Trustee on the Certificates,
the acknowledgments of the Trustee contained in Article II and the
representations and warranties of the Trustee in Section 8.12) shall be taken as
the statements of the Depositor and the Trustee assumes no responsibility for
their correctness. Trustee makes no representations or warranties as to the
validity or sufficiency of this Agreement (other than as specifically set forth
in Section 8.12) or of the Certificates (other than the signature of the Trustee
and authentication of the Trustee on the Certificates) or of any Mortgage Loan
or related document. The Trustee shall not be accountable for the use or
application by the Depositor of any of the Certificates or of the proceeds of
such Certificates, or for the use or application of any funds paid to the
Depositor or the Master Servicer in
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respect of the Mortgage Loans or deposited in or withdrawn from the Master
Servicer Collection Account by the Master Servicer, other than any funds held by
or on behalf of the Trustee in accordance with Section 3.23 and 3.24.
SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual capacity or any other capacity may become the
owner or pledgee of Certificates with the same rights it would have if it were
not Trustee.
SECTION 8.05. Trustee's Fees and Expenses.
The Trustee and any director, officer, employee or agent of the Trustee
shall be indemnified by the Trust Fund and held harmless against any loss,
liability or expense (including reasonable attorney's fees and expenses)
incurred by the Trustee in connection with any claim or legal action or any
pending or threatened claim or legal action arising out of or in connection with
the acceptance or administration of its obligations and duties under this
Agreement, other than any loss, liability or expense (i) for which the Trustee
is indemnified by the Master Servicer, (ii) that constitutes a specific
liability of the Trustee pursuant to Section 10.01(g) or (iii) any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of duties hereunder by reason of reckless
disregard of obligations and duties hereunder. The Master Servicer agrees to
indemnify the Trustee, from, and hold the Trustee harmless against, any loss,
liability or expense (including reasonable attorney's fees and expenses)
incurred by the Trustee by reason of the Master Servicer's willful misfeasance,
bad faith or gross negligence in the performance of its duties under this
Agreement or by reason of the Master Servicer's reckless disregard of its
obligations and duties under this Agreement. Such indemnity shall survive the
termination or discharge of this Agreement and the resignation or removal of the
Trustee. Any payment hereunder made by the Master Servicer to the Trustee shall
be from the Master Servicer's own funds, without reimbursement from REMIC I
therefor.
SECTION 8.06. Eligibility Requirements for Trustee and Trustee.
The Trustee shall at all times be a corporation or an association (other
than the Depositor, any Originator, the Seller, the Master Servicer or any
Affiliate of the foregoing) organized and doing business under the laws of any
state or the United States of America, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000 (or a member of a bank holding company whose capital and surplus is
at least $50,000,000) and subject to supervision or examination by federal or
state authority. If such corporation or association publishes reports of
conditions at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of conditions so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07.
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SECTION 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trust hereby
created by giving written notice thereof to the Depositor, to the Master
Servicer and to the Certificateholders. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee by written
instrument, in duplicate, which instrument shall be delivered to the resigning
Trustee and to the successor trustee. A copy of such instrument shall be
delivered to the Certificateholders, the Trustee and the Master Servicer by the
Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may, at the expense of the Trust Fund,
petition any court of competent jurisdiction for the appointment of a successor
trustee or Trustee, as applicable.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of Section 8.06 and shall fail to resign after written request
therefor by the Depositor, or if at any time the Trustee shall become incapable
of acting, or shall be adjudged 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, then the Depositor may remove
the Trustee and appoint a successor trustee by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the
Certificateholders, the Trustee and the Master Servicer by the Depositor.
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 to the Depositor, one complete set to the Trustee so removed and
one complete set to the successor so appointed. A copy of such instrument shall
be delivered to the Certificateholders and the Master Servicer by the Depositor.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor trustee as provided
in Section 8.08.
SECTION 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to the successor trustee all Mortgage Loan
Documents and related documents and statements to the extent held by it
hereunder, as well as all moneys, held by it hereunder, and the Depositor and
the predecessor trustee shall execute and deliver such instruments and
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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
unless at the time of such acceptance such successor trustee shall be eligible
under the provisions of Section 8.06 and the appointment of such successor
trustee shall not result in a downgrading of any Class of Certificates by any
Rating Agency, as evidenced by a letter from each Rating Agency.
Upon acceptance of appointment by a successor trustee as provided in this
Section, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. 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 8.09. Merger or Consolidation of Trustee.
Any corporation or association into which the Trustee may be merged or
converted or with which it may be consolidated or any corporation or association
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation or association succeeding to the business
of the Trustee shall be the successor of the Trustee hereunder, provided such
corporation or association shall be eligible under the provisions of Section
8.06, 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.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for the purpose
of meeting any legal requirements of any jurisdiction in which any part of the
REMIC I or property securing the same may at the time be located, the Trustee
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 REMIC I, and to vest in such Person or Persons, in such capacity,
such title to REMIC I, or any part thereof, and, subject to the other provisions
of this Section 8.10, such powers, duties, obligations, rights and trusts as the
Trustee may consider necessary or desirable. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.06 hereunder and no notice to Holders of Certificates of
the appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 8.08 hereof.
In the case of any appointment of a co-trustee or separate trustee pursuant
to 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, except
to the extent that under any law of any jurisdiction in which any particular act
or acts are to be performed by the Trustee (whether as Trustee hereunder or as
successor to a defaulting 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 REMIC
I or any portion thereof in any such
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jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trust 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.
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 or co-trustee.
SECTION 8.11. Appointment of Office or Agency.
The Trustee will appoint an office or agency in the City of New York
located at 000 Xxxx 00xx Xxxxxx, Tower 00, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
where the Certificates may be surrendered for registration of transfer or
exchange, and presented for final distribution and where notices and demands to
or upon the Trustee in respect of the Certificates and this Agreement may be
served.
SECTION 8.12. Representations and Warranties.
The Trustee hereby represents and warrants to the Master Servicer and the
Depositor as applicable, as of the Closing Date, that:
(i) it is a national banking association duly organized, validly
existing and in good standing under the laws of the United States of
America.
(ii) The execution and delivery of this Agreement by it, and the
performance and compliance with the terms of this Agreement by it, will not
violate its articles of association or bylaws or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) It has the full power and authority to enter into and consummate
all transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
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(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of it, enforceable against it in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
receivership, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) It is not in violation of, and its execution and delivery of this
Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in
its good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of it to perform its obligations under this
Agreement or its financial condition.
(vi) No litigation is pending or, to the best of its knowledge,
threatened against it, which would prohibit it from entering into this
Agreement or, in its good faith reasonable judgment, is likely to
materially and adversely affect either the ability of it to perform its
obligations under this Agreement or its financial condition.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage
Loans.
(a) Subject to Section 9.02, the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer
and the Trustee (other than the obligations of the Master Servicer to the
Trustee pursuant to Section 8.05 and of the Master Servicer to make
remittances to the Trustee and the Trustee to make payments in respect of
the REMIC I Regular Interests, REMIC II Regular Interests or the Classes of
Certificates as hereinafter set forth) shall terminate upon payment to the
Certificateholders and the deposit of all amounts held by or on behalf of
the Trustee and required hereunder to be so paid or deposited on the
Distribution Date coinciding with or following the earlier to occur of (i)
the purchase by the Terminator (as defined below) of all Mortgage Loans and
each REO Property remaining in REMIC I and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
or REO Property remaining in REMIC I; provided, however, that in no event
shall the trust created hereby continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late ambassador of the United States to the Court of St.
Xxxxx, living on the date hereof. The purchase by the Terminator of all
Mortgage Loans and each REO Property remaining in REMIC I shall be at a
price (the "Termination Price") equal to the greater of (A) the aggregate
Purchase Price of all the Mortgage Loans included in REMIC I, plus the
appraised value of each REO Property, if any, included in REMIC I, such
appraisal to be conducted by an appraiser mutually agreed upon by the
Terminator and the Trustee in their reasonable discretion and (B) the
aggregate fair market value of all of the assets of REMIC I (as determined
by the Terminator and the Trustee, as of the close of business on the third
Business Day next preceding the date upon which notice of any such
termination is furnished to Certificateholders pursuant to the third
paragraph of this Section 9.01).
(b) The Class CE Certificateholder (so long as it is not an Affiliate
of the Seller) shall have the right (the party exercising such right, the
"Terminator"), to purchase all of the Mortgage Loans and each REO Property
remaining in REMIC I pursuant to clause (i) of the preceding paragraph no
later than the Determination Date in the month immediately preceding the
Distribution Date on which the Certificates will be retired; provided,
however, that the Terminator may elect to purchase all of the Mortgage
Loans and each REO Property remaining in REMIC I pursuant to clause (i)
above only if the aggregate Stated Principal Balance of the Mortgage Loans
and each REO Property remaining in the Trust Fund at the time of such
election is reduced to less than 10% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date. By acceptance of the
Residual Certificates, the Holder of the Residual Certificates agrees, in
connection with any termination hereunder, to assign and transfer any
amounts in excess of par, and to the extent received in respect of such
termination, to pay any such amounts to the Holders of the Class CE
Certificates and Class P Certificates.
(c) Notice of the liquidation of the Certificates shall be given
promptly by the Trustee by letter to Certificateholders mailed (a) in the
event such notice is given in connection with the purchase of the Mortgage
Loans and each REO Property by the Terminator, not earlier than the 15th
day and not
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later than the 25th day of the month next preceding the month of the final
distribution on the Certificates or (b) otherwise during the month of such
final distribution on or before the Determination Date in such month, in
each case specifying (i) the Distribution Date upon which the Trust Fund
will terminate and the final payment in respect of the REMIC I Regular
Interests, REMIC II Regular Interests or the Certificates will be made upon
presentation and surrender of the related Certificates at the office of the
Trustee therein designated, (ii) the amount of any such final payment,
(iii) that no interest shall accrue in respect of the REMIC I Regular
Interests, REMIC II Regular Interests or Certificates from and after the
Interest Accrual Period relating to the final Distribution Date therefor
and (iv) that the Record Date otherwise applicable to such Distribution
Date is not applicable, payments being made only upon presentation and
surrender of the Certificates at the office of the Trustee. In the event
such notice is given in connection with the purchase of all of the Mortgage
Loans and each REO Property remaining in REMIC I by the Terminator, the
Terminator shall deliver to the Trustee for deposit in the Distribution
Account not later than the last Business Day of the month next preceding
the month of the final distribution on the Certificates an amount in
immediately available funds equal to the above-described purchase price.
The Trustee shall remit to the Master Servicer from such funds deposited in
the Distribution Account (i) any amounts which the Master Servicer would be
permitted to withdraw and retain from the Master Servicer Collection
Account pursuant to Sections 3.24 and 3.26 and (ii) any other amounts
otherwise payable by the Trustee to the Master Servicer from amounts on
deposit in the Distribution Account pursuant to the terms of this
Agreement, in each case prior to making any final distributions pursuant to
Section 10.01(d) below. Upon certification to the Trustee by a Servicing
Officer of the making of such final deposit, the Trustee shall promptly
release to the Terminator the Mortgage Files for the remaining Mortgage
Loans, and Trustee shall execute all assignments, endorsements and other
instruments necessary to effectuate such transfer.
(d) Upon presentation of the Certificates by the Certificateholders on
the final Distribution Date, the Trustee shall distribute to each
Certificateholder so presenting and surrendering its Certificates the
amount otherwise distributable on such Distribution Date in accordance with
Section 4.01 in respect of the Certificates so presented and surrendered.
Any funds not distributed to any Holder or Holders of Certificates being
retired on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and
held in trust and credited to the account of the appropriate non-tendering
Holder or Holders. If any Certificates as to which notice has been given
pursuant to this Section 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in
order to receive the final distribution with respect thereto. If within one
year after the second notice all such Certificates shall not have been
surrendered for cancellation, the Trustee shall, directly or through an
agent, mail a final notice to the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs
and expenses of maintaining the funds in trust and of contacting such
Certificateholders shall be paid out of the assets remaining in the trust
funds. If within one year after the final notice any such Certificates
shall not have been surrendered for cancellation, the Trustee shall pay to
the Depositor all such amounts, and all rights of non-tendering
Certificateholders in or to such amounts shall thereupon cease. No interest
shall accrue or be payable to any Certificateholder on any amount held in
trust by the Trustee as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
this Section 9.01. Any such amounts held in trust by the Trustee shall be
held in an Eligible Account and the
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Trustee may direct any depository institution maintaining such account to
invest the funds in one or more Permitted Investments. All income and gain
realized from the investment of funds deposited in such accounts held in
trust by the Trustee shall be for the benefit of the Trustee; provided,
however, that the Trustee shall deposit in such account the amount of any
loss of principal incurred in respect of any such Permitted Investment made
with funds in such accounts immediately upon the realization of such loss.
Immediately following the deposit of funds in trust hereunder in
respect of the Certificates, the Trust Fund shall terminate.
SECTION 9.02. Additional Termination Requirements.
(a) In the event that the Terminator purchases all the Mortgage Loans
and each REO Property or the final payment on or other liquidation of the
last Mortgage Loan or REO Property remaining in REMIC I pursuant to Section
9.01, the Trust Fund shall be terminated in accordance with the following
additional requirements:
(i) The Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to each Trust REMIC's final
Tax Return pursuant to Treasury regulation Section 1.860F-1 and shall
satisfy all requirements of a qualified liquidation under Section 860F
of the Code and any regulations thereunder, as evidenced by an Opinion
of Counsel obtained by and at the expense of the Terminator;
(ii) During such 90-day liquidation period and, at or prior to
the time of making of the final payment on the Certificates, the
Trustee shall sell all of the assets of REMIC I to the Terminator for
cash; and
(iii) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Residual Certificates
all cash on hand in the Trust Fund (other than cash retained to meet
claims), and the Trust Fund shall terminate at that time.
(b) At the expense of the requesting Terminator (or, if the Trust Fund
is being terminated as a result of the occurrence of the event described in
clause (ii) of the first paragraph of Section 9.01, at the expense of the
Trust Fund), the Terminator shall prepare or cause to be prepared the
documentation required in connection with the adoption of a plan of
liquidation of each Trust REMIC pursuant to this Section 9.02.
(c) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Trustee to specify the 90-day liquidation period for
each Trust REMIC, which authorization shall be binding upon all successor
Certificateholders.
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ARTICLE X
REMIC PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The Trustee shall elect to treat each Trust REMIC under the Code
and, if necessary, under applicable state law. Each such election will be
made by the Master Servicer on Form 1066 or other appropriate federal tax
or information return or any appropriate state return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued. For the purposes of the REMIC election in respect of REMIC I, the
REMIC I Regular Interests shall be designated as the Regular Interests in
REMIC I and the Class R-I Certificates shall be designated as the Residual
Interests in REMIC I. The REMIC II Regular Interests shall be designated as
Regular Interests in REMIC II and the Class R-II Certificates shall be
designated as the Residual Interests in REMIC II. The Class A Certificates,
the Class A-IO Certificates, the Mezzanine Certificates, the Class P
Certificates and the Class CE Certificates shall be designated as the
Regular Interests in REMIC III and the Class R-III Certificates shall be
designated as the Residual Interests in REMIC III. The Trustee shall not
permit the creation of any "interests" in each Trust REMIC (within the
meaning of Section 860G of the Code) other than the REMIC I Regular
Interests, the REMIC II Regular Interests and the interests represented by
the Certificates.
(b) The Closing Date is hereby designated as the "Startup Day" of each
Trust REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Master Servicer shall be reimbursed for any and all expenses
relating to any tax audit of the Trust Fund (including, but not limited to,
any professional fees or any administrative or judicial proceedings with
respect to each Trust REMIC that involve the Internal Revenue Service or
state tax authorities), including the expense of obtaining any tax related
Opinion of Counsel except as specified herein. The Master Servicer, as
agent for each Trust REMIC's tax matters person shall (i) act on behalf of
the Trust Fund in relation to any tax matter or controversy involving any
Trust REMIC and (ii) represent the Trust Fund in any administrative or
judicial proceeding relating to an examination or audit by any governmental
taxing authority with respect thereto. The holder of the largest Percentage
Interest of each class of Residual Certificates shall be designated, in the
manner provided under Treasury regulations section 1.860F-4(d) and Treasury
regulations section 301.6231(a)(7)-1, as the tax matters person of the
related REMIC created hereunder. By their acceptance thereof, the holder of
the largest Percentage Interest of the Residual Certificates hereby agrees
to irrevocably appoint the Master Servicer or an Affiliate as its agent to
perform all of the duties of the tax matters person for the Trust Fund.
(d) The Master Servicer shall prepare and file and the Trustee shall
sign all of the Tax Returns in respect of each REMIC created hereunder. The
expenses of preparing and filing such returns shall be borne by the Master
Servicer without any right of reimbursement therefor.
(e) The Master Servicer shall perform on behalf of each Trust REMIC
all reporting and other tax compliance duties that are the responsibility
of such REMIC under the Code, the REMIC
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Provisions or other compliance guidance issued by the Internal Revenue
Service or any state or local taxing authority. Among its other duties, as
required by the Code, the REMIC Provisions or other such compliance
guidance, the Master Servicer shall provide (i) to any Transferor of a
Residual Certificate such information as is necessary for the application
of any tax relating to the transfer of a Residual Certificate to any Person
who is not a Permitted Transferee upon receipt of additional reasonable
compensation, (ii) to the Certificateholders such information or reports as
are required by the Code or the REMIC Provisions including reports relating
to interest, original issue discount and market discount or premium (using
the Prepayment Assumption as required) and (iii) to the Internal Revenue
Service the name, title, address and telephone number of the person who
will serve as the representative of each Trust REMIC. The Depositor shall
provide or cause to be provided to the Master Servicer, within ten (10)
days after the Closing Date, all information or data that the Master
Servicer reasonably determines to be relevant for tax purposes as to the
valuations and issue prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flow
of the Certificates.
(f) To the extent in the control of the Trustee or the Master
Servicer, each such Person (i) shall take such action and shall cause each
REMIC created hereunder to take such action as shall be necessary to create
or maintain the status thereof as a REMIC under the REMIC Provisions, (ii)
shall not take any action, cause the Trust Fund to take any action or fail
to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (A) endanger
the status of each Trust REMIC as a REMIC or (B) result in the imposition
of a tax upon the Trust Fund (including but not limited to the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and
the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) (either such event, an "Adverse REMIC Event") unless such action or
inaction is permitted under this Agreement or the Trustee have received an
Opinion of Counsel, addressed to the them (at the expense of the party
seeking to take such action but in no event at the expense of the Trustee
or the Master Servicer) to the effect that the contemplated action will
not, with respect to any Trust REMIC, endanger such status or result in the
imposition of such a tax, nor (iii) shall the Master Servicer take or fail
to take any action (whether or not authorized hereunder) as to which the
Trustee has advised it in writing that it has received an Opinion of
Counsel to the effect that an Adverse REMIC Event could occur with respect
to such action; provided that the Master Servicer may conclusively rely on
such Opinion of Counsel and shall incur no liability for its action or
failure to act in accordance with such Opinion of Counsel. In addition,
prior to taking any action with respect to any Trust REMIC or the
respective assets of each, or causing any Trust REMIC to take any action,
which is not contemplated under the terms of this Agreement, the Master
Servicer will consult with the Trustee or its designee, in writing, with
respect to whether such action could cause an Adverse REMIC Event to occur
with respect to any Trust REMIC, and the Master Servicer shall not take any
such action or cause any Trust REMIC to take any such action as to which
the Trustee has advised it in writing that an Adverse REMIC Event could
occur. The Trustee may consult with counsel to make such written advice,
and the cost of same shall be home by the party seeking to take the action
not permitted by this Agreement, but in no event shall such cost be an
expense of the Trustee.
(g) In the event that any tax is imposed on "prohibited transactions"
of any REMIC created hereunder as defined in Section 860F(a)(2) of the
Code, on the "net income from foreclosure property" of such REMIC as
defined in Section 860G(c) of the Code, on any contributions to any such
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REMIC after the Startup Day therefor pursuant to Section 860G(d) of the
Code, or any other tax is imposed by the Code or any applicable provisions
of state or local tax laws, such tax shall be charged (i) to the Trustee
pursuant to Section 10.03 hereof, if such tax arises out of or results from
a breach by the Trustee of any of its obligations under this Article X,
(ii) to the Master Servicer pursuant to Section 10.03 hereof, if such tax
arises out of or results from a breach by the Master Servicer of any of its
obligations under Article III or this Article X, or (iii) against amounts
on deposit in the Distribution Account and shall be paid by withdrawal
therefrom.
(h) The Trustee and the Master Servicer shall, for federal income tax
purposes, maintain books and records with respect to each Trust REMIC on a
calendar year and on an accrual basis.
(i) Following the Startup Day, the Trustee shall not accept any
contributions of assets to any Trust REMIC other than in connection with
any Qualified Substitute Mortgage Loan delivered in accordance with Section
2.03 unless it shall have received an Opinion of Counsel to the effect that
the inclusion of such assets in the Trust Fund will not cause the related
REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding or subject such REMIC to any tax under the REMIC Provisions or
other applicable provisions of federal, state and local law or ordinances.
(j) Neither the Trustee nor the Master Servicer shall knowingly enter
into any arrangement by which any Trust REMIC will receive a fee or other
compensation for services nor permit either REMIC to receive any income
from assets other than "qualified mortgages" as defined in Section
860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code.
(k) The Master Servicer shall apply for an employer identification
number with the Internal Revenue Service via a Form SS-4 or other
comparable method for each REMIC. In connection with the foregoing, the
Master Servicer shall provide the name and address of the person who can be
contacted to obtain information required to be reported to the holders of
Regular Interests in each REMIC as required by IRS Form 8811.
SECTION 10.02. Prohibited Transactions and Activities.
None of the Depositor, the Master Servicer or the Trustee shall sell,
dispose of or substitute for any of the Mortgage Loans (except in connection
with (i) the foreclosure of a Mortgage Loan, including but not limited to, the
acquisition or sale of a Mortgaged Property acquired by deed in lieu of
foreclosure, (ii) the bankruptcy of REMIC I, (iii) the termination of REMIC I
pursuant to Article IX of this Agreement, (iv) a substitution pursuant to
Article II of this Agreement or (v) a purchase of Mortgage Loans pursuant to
Article II of this Agreement), nor acquire any assets for any Trust REMIC (other
than REO Property acquired in respect of a defaulted Mortgage Loan), nor sell or
dispose of any investments in the Master Servicer Collection Account or the
Distribution Account for gain, nor accept any contributions to any Trust REMIC
after the Closing Date (other than a Qualified Substitute Mortgage Loan
delivered in accordance with Section 2.03), unless it has received an Opinion of
Counsel, addressed to the Trustee and the Trustee (at the expense of the party
seeking to cause such sale, disposition, substitution, acquisition or
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contribution but in no event at the expense of the Trustee) that such sale,
disposition, substitution, acquisition or contribution will not (a) affect
adversely the status of any Trust REMIC as a REMIC or (b) cause any Trust REMIC
to be subject to a tax on "prohibited transactions" or "contributions" pursuant
to the REMIC Provisions.
SECTION 10.03. Master Servicer and Trustee Indemnification.
(a) The Trustee agrees to be liable for any taxes and costs incurred
by the Trust Fund, the Depositor or the Master Servicer including, without
limitation, any reasonable attorneys fees imposed on or incurred by the
Trust Fund, the Depositor or the Master Servicer as a result of a breach of
the Trustee's covenants set forth in this Article X.
(b) The Master Servicer agrees to indemnify the Trust Fund, the
Depositor and the Trustee for any taxes and costs including, without
limitation, any reasonable attorneys' fees imposed on or incurred by the
Trust Fund, the Depositor or the Trustee, as a result of a breach of the
Master Servicer's covenants set forth in Article III or this Article X.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. 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 defect, (ii) to correct, modify
or supplement any provisions herein (including to give effect to the
expectations of Certificateholders), or (iii) to make any other provisions with
respect to matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel delivered to the Trustee,
adversely affect in any material respect the interests of any Certificateholder.
No amendment shall be deemed to adversely affect in any material respect the
interests of any Certificateholder who shall have consented thereto, and no
Opinion of Counsel shall be required to address the effect of any such amendment
on any such consenting Certificateholder.
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 Certificates
entitled to at least 66% of the Voting Rights 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 received on Mortgage
Loans which are 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 at least 66% of the Voting Rights
allocated to such Class, or (iii) modify the consents required by the
immediately preceding clauses (i) and (ii) without the consent of the Holders of
all Certificates then outstanding. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 11.01, Certificates registered in the name of the Depositor or the
Master Servicer or any Affiliate thereof shall be entitled to Voting Rights with
respect to matters affecting such Certificates.
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 to the effect that such amendment will not result
in the imposition of any tax on any Trust REMIC pursuant to the REMIC Provisions
or cause any Trust REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding and that such amendment is authorized or permitted
by this Agreement.
Promptly after the execution of any such amendment the Trustee shall
furnish a copy of such amendment to each Certificateholder.
It shall not be necessary for the consent of Certificateholders under this
Section 11.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the
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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.
The cost of any Opinion of Counsel to be delivered pursuant to this Section
11.01 shall be borne by the Person seeking the related amendment, but in no
event shall such Opinion of Counsel be an expense of the Trustee .
The Trustee may, but shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
SECTION 11.02. Recordation of Agreement; Counterparts.
To the extent permitted by applicable law, 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
Depositor at the expense of the Certificateholders, but only upon direction of
the Trustee accompanied by an Opinion of Counsel 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 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 11.03. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
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 expressly
provided for 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 any of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Agreement, unless such Holder previously
shall have given to the Trustee a written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
Certificates entitled to at least 25% of the
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Voting Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 15 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 is understood and intended, and 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
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section, each and every Certificateholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 11.04. Governing Law.
This Agreement shall be construed in accordance with the laws of the State
of New York and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
SECTION 11.05. Notices.
All directions, demands and notices hereunder shall be in writing and shall
be deemed to have been duly given when received if sent by facsimile, receipt
confirmed, if personally delivered at or mailed by first class mail, postage
prepaid, or by express delivery service or delivered in any other manner
specified herein, to (a) in the case of the Depositor, ACE Securities Corp.,
AMACAR GROUP, 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx
0000, Attention: Xxxxx Xxxxx (telecopy number:(000) 000-0000), or such other
address or telecopy number as may hereafter be furnished to the Master Servicer
and the Trustee in writing by the Depositor, (b) in the case of the Master
Servicer, 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Ace
Securities Corp., 2001-HE1 (telecopy number: (000) 000-0000), or such other
address or telecopy number as may hereafter be furnished to the Trustee and the
Depositor in writing by the Master Servicer and (c) in the case of the Trustee,
000 Xxxxx Xxxxx Xxxxxx, XX0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention:
Structured Finance Trust Services (telecopy number (704) 383- 6039), or such
other address or telecopy number as may hereafter be furnished to the Master
Servicer and the Depositor in writing by the Trustee. Any notice required or
permitted to be given to a Certificateholder shall be given by first class mail,
postage prepaid, at the address of such Holder as shown in the Certificate
Register. Any notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given when mailed, whether or
not the Certificateholder receives such notice. A copy of any notice required to
be telecopied hereunder also shall be mailed to the appropriate party in the
manner set forth above.
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SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. Notice to Rating Agencies.
The Trustee shall use its best efforts promptly to provide notice to the
Rating Agencies 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 Master Servicer Event of Default that has not
been cured or waived;
3. The resignation or termination of the Master Servicer, the Trustee;
4. The repurchase or substitution of Mortgage Loans pursuant to or as
contemplated by Section 2.03;
5. The final payment to the Holders of any Class of Certificates;
6. Any change in the location of the Master Servicer Collection Account
or the Distribution Account; and
7. Any event that would result in the inability of the Trustee to make
advances regarding delinquent Mortgage Loans.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of each report to Certificateholders described in Section 4.02.
The Master Servicer shall promptly furnish to each Rating Agency copies of
the following:
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1. Each annual statement as to compliance described in Section 3.16;
and
2. Each annual independent public accountants' servicing report
described in Section 3.17.
Any such notice pursuant to this Section 11.07 shall be in writing and
shall be deemed to have been duly given if personally delivered at or
mailed by first class mail, postage prepaid, or by express delivery service
Fitch. Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, to Standard
& Poor's, a division of the XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 and to Xxxxx'x Investors Service, Inc., 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other addresses as the Rating
Agencies may designate in writing to the parties hereto.
SECTION 11.08. Article and Section References.
All article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
SECTION 11.09. Grant of Security Interest.
It is the express intent of the parties hereto that the conveyance of the
Mortgage Loans by the Depositor to the Trustee, on behalf of the Trust and for
the benefit of the Certificateholders, be, and be construed as, a sale of the
Mortgage Loans by the Depositor and not a pledge of the Mortgage Loans to secure
a debt or other obligation of the Depositor. However, in the event that,
notwithstanding the aforementioned intent of the parties, the Mortgage Loans are
held to be property of the Depositor, then, (a) it is the express intent of the
parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Depositor to the Trustee, on behalf of the Trust and for the benefit of the
Certificateholders, to secure a debt or other obligation of the Depositor and
(b)(1) this Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the Uniform Commercial Code as in effect from
time to time in the State of New York; (2) the conveyance provided for in
Section 2.01 hereof shall be deemed to be a grant by the Depositor to the
Trustee, on behalf of the Trust and for the benefit of the Certificateholders,
of a security interest in all of the Depositor's right, title and interest in
and to the Mortgage Loans and all amounts payable to the holders of the Mortgage
Loans in accordance with the terms thereof and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including without limitation all amounts, other than investment
earnings, from time to time held or invested in the Master Servicer Collection
Account and the Distribution Account, whether in the form of cash, instruments,
securities or other property; (3) the obligations secured by such security
agreement shall be deemed to be all of the Depositor's obligations under this
Agreement, including the obligation to provide to the Certificateholders the
benefits of this Agreement relating to the Mortgage Loans and the Trust Fund;
and (4) notifications to persons holding such property, and
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acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the Trustee
for the purpose of perfecting such security interest under applicable law.
Accordingly, the Depositor hereby grants to the Trustee, on behalf of the Trust
and for the benefit of the Certificateholders, a security interest in the
Mortgage Loans and all other property described in clause (2) of the preceding
sentence, for the purpose of securing to the Trustee the performance by the
Depositor of the obligations described in clause (3) of the preceding sentence.
Notwithstanding the foregoing, the parties hereto intend the conveyance pursuant
to Section 2.01 to be a true, absolute and unconditional sale of the Mortgage
Loans and assets constituting the Trust Fund by the Depositor to the Trustee, on
behalf of the Trust and for the benefit of the Certificateholders.
SECTION 11.10. Third Party Beneficiaries.
For purposes of Section 3.26, the Servicers shall be third party
beneficiaries of this Agreement.
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IN WITNESS WHEREOF, the Depositor, the Master Servicer and the Trustee have
caused their names to be signed hereto by their respective officers thereunto
duly authorized, in each case as of the day and year first above written.
ACE SECURITIES CORP.,
as Depositor
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
By: /s/ Xxxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Master Servicer
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK,
not in its individual capacity but
solely as Trustee
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the ___th day of November, 2001, before me, a notary public in and for
said State, personally appeared _____________ known to me to be a ___________ of
ACE Securities Corp., one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal] My commission expires
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the __ th day of November, 2001, before me, a notary public in and for
said State, personally appeared ___________________ known to me to be a
_____________ of ACE Securities Corp., one of the corporations that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal] My commission expires
STATE OF __________ )
) ss.:
COUNTY OF _________ )
On the ___nd day of November, 2001, before me, a notary public in and for
said State, personally appeared _______________ known to me to be a
_______________ of ________________, Xxxxx Fargo Bank Minnesota, National
Association, one of the corporations that executed the within instrument, and
also known to me to be the person who executed it on behalf of said corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal] My commission expires
STATE OF _________ )
) ss.:
COUNTY OF _______ )
On the ___ day of November, 2001, before me, a notary public in and for
said State, personally appeared _____________, known to me to be a _____________
of First Union National Bank, one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
------------------------------
Notary Public
[Notarial Seal]
