EXECUTION VERSION
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
as Depositor and Master Servicer
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
and
CHRISTIANA BANK & TRUST COMPANY,
as Delaware Trustee
POOLING AND SERVICING AGREEMENT
$334,725,477.20
Washington Mutual Mortgage Securities Corp.
Washington Mutual MSC Mortgage Pass-Through Certificates
Series 2004-RA1
Cut-Off Date: April 1, 2004
Table of Contents
Page
ARTICLE I ...........................................................................................4
Section 1.01. Definitions.......................................................................4
Additional Collateral..........................................................................5
Additional Collateral Document.................................................................5
Additional Collateral Loan.....................................................................5
Aggregate Certificate Principal Balance........................................................5
Appraised Value................................................................................5
Assignment of Proprietary Lease................................................................5
Authenticating Agent...........................................................................5
Authorized Denomination........................................................................5
Balloon Loan...................................................................................5
Bankruptcy Coverage............................................................................5
Bankruptcy Loss................................................................................6
Beneficial Holder..............................................................................6
Benefit Plan Opinion...........................................................................6
Book-Entry Certificates........................................................................6
Business Day...................................................................................6
Buydown Agreement..............................................................................6
Buydown Fund...................................................................................6
Buydown Fund Account...........................................................................7
Buydown Loan...................................................................................7
Carry-Forward Subsequent Recoveries Amount.....................................................7
Certificate....................................................................................7
Certificate Account............................................................................7
Certificate Group..............................................................................7
Certificateholder or Holder....................................................................7
Certificate Interest Rate......................................................................8
Certificate of Trust...........................................................................8
Certificate Principal Balance..................................................................8
Certificate Register and Certificate Registrar.................................................8
Class ......................................................................................8
Class A Certificates...........................................................................8
Class C-B-1 Certificates.......................................................................8
Class C-B-2 Certificates.......................................................................8
Class C-B-3 Certificates.......................................................................8
Class C-B-4 Certificates.......................................................................9
Class C-B-5 Certificates.......................................................................9
Class C-B-6 Certificates.......................................................................9
Class C-Y Principal Reduction Amounts..........................................................9
Class C-Y Regular Interests....................................................................9
Class C-Y-1 Principal Distribution Amount......................................................9
Class C-Y-1 Regular Interest...................................................................9
i
Class C-Y-2 Principal Distribution Amount......................................................9
Class C-Y-2 Regular Interest...................................................................9
Class C-Z Principal Reduction Amounts..........................................................9
Class C-Z Regular Interests...................................................................10
Class C-Z-1 Principal Distribution Amount.....................................................10
Class C-Z-1 Regular Interest..................................................................10
Class C-Z-2 Principal Distribution Amount.....................................................10
Class C-Z-2 Regular Interest..................................................................10
Class I-A Certificates........................................................................10
Class I-P Certificates........................................................................10
Class I-P Fraction............................................................................10
Class I-P Mortgage Loan.......................................................................11
Class I-P-M Regular Interest..................................................................11
Class I-X Certificates........................................................................11
Class I-X Notional Amount.....................................................................11
Class I-X-M Regular Interest..................................................................11
Class II-A Certificates.......................................................................11
Class II-P Certificates.......................................................................11
Class II-P Fraction...........................................................................11
Class II-P Mortgage Loan......................................................................11
Class II-P-M Regular Interest.................................................................11
Class II-X Certificates.......................................................................11
Class II-X Notional Amount....................................................................11
Class II-X-M Regular Interest.................................................................12
Class Notional Amount.........................................................................12
Class P Certificates..........................................................................12
Class P Fraction..............................................................................12
Class P Mortgage Loan.........................................................................12
Class P-M Regular Interests...................................................................12
Class Principal Balance.......................................................................12
Class R Certificates..........................................................................13
Class R Residual Interests....................................................................13
Class R-1 Residual Interest...................................................................13
Class R-2 Residual Interest...................................................................13
Class X Certificates..........................................................................13
Class X-M Regular Interests...................................................................13
Clean-Up Call Percentage......................................................................13
Clearing Agency...............................................................................13
Closing Date..................................................................................14
Closing Date Loan-to-Value Ratio..............................................................14
Code .....................................................................................14
Company .....................................................................................14
Compensating Interest.........................................................................14
ii
Cooperative...................................................................................14
Cooperative Apartment.........................................................................14
Cooperative Lease.............................................................................14
Cooperative Loans.............................................................................14
Cooperative Stock.............................................................................14
Cooperative Stock Certificate.................................................................14
Corporate Trust Office........................................................................15
Corporation...................................................................................15
Cumulative Carry-Forward Subsequent Recoveries Amount.........................................15
Curtailment...................................................................................15
Curtailment Shortfall.........................................................................15
Custodial Account for P&I.....................................................................15
Custodial Account for Reserves................................................................15
Custodial Agreement...........................................................................16
Custodian.....................................................................................16
Cut-Off Date..................................................................................16
Definitive Certificates.......................................................................16
Delaware Trustee..............................................................................16
Depositary Agreement..........................................................................16
Destroyed Mortgage Note.......................................................................16
Determination Date............................................................................16
Disqualified Organization.....................................................................16
Distribution Date.............................................................................17
DTC .....................................................................................17
DTC Participant...............................................................................17
Due Date 17
Eligible Institution..........................................................................17
Eligible Investments..........................................................................17
ERISA .....................................................................................19
ERISA Restricted Certificate..................................................................19
Event of Default..............................................................................19
Excess Liquidation Proceeds...................................................................19
Excess Subsequent Recoveries..................................................................19
FDIC .....................................................................................19
FHA .....................................................................................19
Xxxxxx Xxx....................................................................................19
Final Maturity Date...........................................................................19
Fitch .....................................................................................19
Fraud Coverage................................................................................19
Fraud Loss....................................................................................20
Xxxxxxx Mac...................................................................................20
Group C-B Certificates........................................................................20
Group C-B Percentage..........................................................................20
iii
Group I Certificates..........................................................................20
Group I Loans.................................................................................20
Group I Premium Rate Mortgage Loans...........................................................20
Group I Senior Liquidation Amount.............................................................20
Group I Senior Percentage.....................................................................20
Group I Senior Prepayment Percentage or Group II Senior Prepayment Percentage.................20
Group I Senior Principal Distribution Amount..................................................22
Group I Subordinate Balance...................................................................22
Group I Subordinate Percentage................................................................22
Group I Subordinate Prepayment Percentage.....................................................22
Group II Certificates.........................................................................22
Group II Loans................................................................................23
Group II Premium Rate Mortgage Loans..........................................................23
Group II Senior Liquidation Amount............................................................23
Group II Senior Percentage....................................................................23
Group II Senior Prepayment Percentage.........................................................23
Group II Senior Principal Distribution Amount.................................................23
Group II Subordinate Balance..................................................................23
Group II Subordinate Percentage...............................................................23
Group II Subordinate Prepayment Percentage....................................................23
Indirect DTC Participants.....................................................................23
Initial Custodial Agreement...................................................................24
Initial Custodian.............................................................................24
Insurance Proceeds............................................................................24
Interest Distribution Amount..................................................................24
Interest Transfer Amount......................................................................24
Investment Account............................................................................24
Investment Depository.........................................................................24
Junior Subordinate Certificates...............................................................24
Last Scheduled Distribution Date..............................................................24
Lender .....................................................................................25
Liquidated Mortgage Loan......................................................................25
Liquidation Principal.........................................................................25
Liquidation Proceeds..........................................................................25
Loan Group....................................................................................25
Loan Group I..................................................................................25
Loan Group II.................................................................................25
Loan-to-Value Ratio...........................................................................25
Lowest Class B Owner..........................................................................25
Master Servicer...............................................................................25
Master Servicer Business Day..................................................................25
Master Servicing Fee..........................................................................26
iv
MERS .....................................................................................26
MERS Loan.....................................................................................26
MERS(R)System.................................................................................26
MIN .....................................................................................26
MOM Loan .....................................................................................26
Monthly P&I Advance...........................................................................26
Monthly Payment...............................................................................26
Mortgage .....................................................................................26
Mortgage File.................................................................................26
Mortgage Interest Rate........................................................................29
Mortgage Loan Schedule........................................................................29
Mortgage Loans................................................................................30
Mortgage Note.................................................................................30
Mortgage Pool.................................................................................30
Mortgage Pool Assets..........................................................................30
Mortgaged Property............................................................................30
Mortgagor.....................................................................................30
Nonrecoverable Advance........................................................................31
Non-U.S. Person...............................................................................31
Notice Addresses..............................................................................31
OTS .....................................................................................31
Officer's Certificate.........................................................................31
Opinion of Counsel............................................................................31
Original Trust Agreement......................................................................31
Original Value................................................................................31
Overcollateralized Group......................................................................32
Ownership Interest............................................................................32
Pass-Through Entity...........................................................................32
Pass-Through Rate.............................................................................32
Paying Agent..................................................................................32
Payoff .....................................................................................32
Payoff Earnings...............................................................................32
Payoff Interest...............................................................................32
Payoff Period.................................................................................33
Percentage Interest...........................................................................33
Permitted Transferee..........................................................................33
Person .....................................................................................34
Prepaid Monthly Payment.......................................................................34
Primary Insurance Policy......................................................................34
Principal Balance.............................................................................34
Principal Payment.............................................................................35
Principal Payment Amount......................................................................35
Principal Prepayment..........................................................................35
v
Principal Prepayment Amount...................................................................35
Principal Transfer Amount.....................................................................35
Prior Period..................................................................................35
Pro Rata Allocation...........................................................................35
Prospectus....................................................................................35
Purchase Obligation...........................................................................36
Purchase Price................................................................................36
Qualified Insurer.............................................................................36
Rating Agency.................................................................................36
Ratings .....................................................................................36
Realized Loss.................................................................................36
Recognition Agreement.........................................................................38
Record Date...................................................................................38
Regular Interests.............................................................................38
Relief Act Shortfall..........................................................................38
REMIC .....................................................................................39
REMIC Provisions..............................................................................39
REMIC I .....................................................................................39
REMIC I Assets................................................................................39
REMIC I Available Distribution Amount.........................................................39
REMIC I Distribution Amount...................................................................40
REMIC I Regular Interests.....................................................................42
REMIC II .....................................................................................42
REMIC II Assets...............................................................................42
REMIC II Available Distribution Amount........................................................42
REMIC II Distribution Amount..................................................................42
REMIC II Regular Interests....................................................................47
Residual Certificates.........................................................................47
Residual Distribution Amount..................................................................47
Responsible Officer...........................................................................48
S&P .....................................................................................48
Secretary of State............................................................................48
Securities Act................................................................................48
Security Agreement............................................................................48
Selling and Servicing Contract................................................................48
Senior Certificates...........................................................................48
Senior Subordinate Certificates...............................................................48
Servicer .....................................................................................48
Servicing Fee.................................................................................48
Servicing Officer.............................................................................49
Special Hazard Coverage.......................................................................49
Special Hazard Loss...........................................................................49
Special Primary Insurance Policy..............................................................49
vi
Special Primary Insurance Premium.............................................................50
Statutory Trust Statute.......................................................................50
Stripped Interest Rate........................................................................50
Subordinate Certificates......................................................................50
Subordinate Component Balance.................................................................50
Subordinate Liquidation Amount................................................................50
Subordinate Percentage........................................................................50
Subordinate Principal Distribution Amount.....................................................50
Subordinate Principal Prepayments Distribution Amount.........................................51
Subordination Level...........................................................................51
Subsequent Recoveries.........................................................................51
Substitute Mortgage Loan......................................................................52
Surety .....................................................................................52
Surety Bonds..................................................................................52
Tax Matters Person............................................................................52
Termination Date..............................................................................52
Termination Payment...........................................................................52
Total Transfer Amount.........................................................................52
Transfer .....................................................................................52
Transferee....................................................................................52
Transferee Affidavit and Agreement............................................................52
Trust .....................................................................................53
Trustee .....................................................................................53
Uncollected Interest..........................................................................53
Uncompensated Interest Shortfall..............................................................53
Undercollateralized Group.....................................................................53
Underwriter...................................................................................54
Underwriting Standards........................................................................54
Uninsured Cause...............................................................................54
U.S. Person...................................................................................54
VA .....................................................................................54
Withdrawal Date...............................................................................54
ARTICLE II Creation of the Trust; Conveyance of the Mortgage Pool Assets and
REMIC I Regular Interests; REMIC
Election and Designations; Original Issuance of Certificates..............................54
Section 2.01. Creation of the Trust............................................................54
Section 2.02. Restrictions on Activities of the Trust..........................................55
Section 2.03. Separateness Requirements........................................................56
Section 2.04. Conveyance of Mortgage Pool Assets; Security Interest............................57
vii
Section 2.05. Delivery of Mortgage Files.......................................................58
Section 2.06. REMIC Election for REMIC I.......................................................60
Section 2.07. Acceptance by Trustee............................................................61
Section 2.08. Representations and Warranties of the Company Concerning the Mortgage Loans......63
Section 2.09. Acknowledgment of Transfer of Mortgage Pool Assets...............................68
Section 2.10. Conveyance of REMIC II Assets; Security Interest.................................68
Section 2.11. REMIC Election for REMIC II......................................................70
Section 2.12. Acknowledgement of Transfer of REMIC II Assets; Authentication of Certificates...71
Section 2.13. Legal Title......................................................................71
Section 2.14. Compliance with ERISA Requirements...............................................71
Section 2.15. Additional Representation of the Company Concerning the Mortgage Loans...........71
ARTICLE III Administration and Servicing of Mortgage Loans............................................71
Section 3.01. The Company to Act as Master Servicer............................................71
Section 3.02. Custodial Accounts and Buydown Fund Accounts.....................................74
Section 3.03. The Investment Account; Eligible Investments.....................................75
Section 3.04. The Certificate Account..........................................................76
Section 3.05. Permitted Withdrawals from the Certificate Account, the Investment Account and Custodial
Accounts for P&I and of Buydown Funds from the Buydown Fund Accounts.............77
Section 3.06. Maintenance of Primary Insurance Policies; Collections Thereunder................79
Section 3.07. Maintenance of Hazard Insurance..................................................80
Section 3.08. Enforcement of Due-on-Sale Clauses; Assumption Agreements........................80
Section 3.09. Realization Upon Defaulted Mortgage Loans........................................81
Section 3.10. Trustee to Cooperate; Release of Mortgage Files..................................83
Section 3.11. Compensation to the Master Servicer and the Servicers............................84
Section 3.12. Reports to the Trustee; Certificate Account Statement............................84
Section 3.13. Annual Statement as to Compliance................................................85
viii
Section 3.14. Access to Certain Documentation and Information Regarding the Mortgage Loans.....85
Section 3.15. Annual Independent Public Accountants' Servicing Report..........................85
Section 3.16. [Reserved.]......................................................................86
Section 3.17. [Reserved.]......................................................................86
Section 3.18. Surety Bonds.....................................................................86
Section 3.19. [Reserved.]......................................................................86
Section 3.20. Assumption or Termination of Selling and Servicing Contracts by Trustee..........86
ARTICLE IV Payments to Certificateholders; Payment of Expenses.......................................86
Section 4.01. Distributions to Holders of REMIC I Regular Interests and Class R-1
Residual Interest................................................................86
Section 4.02. Advances by the Master Servicer; Distribution Reports to the Trustee.............87
Section 4.03. Nonrecoverable Advances..........................................................88
Section 4.04. Distributions to Certificateholders; Payment of Special
Primary Insurance Premiums.......................................................89
Section 4.05. Statements to Certificateholders.................................................90
ARTICLE V The Certificates..........................................................................91
Section 5.01. The Certificates.................................................................91
Section 5.02. Certificates Issuable in Classes; Distributions of
Principal and Interest; Authorized
Denominations....................................................................97
Section 5.03. Registration of Transfer and Exchange of Certificates............................97
Section 5.04. Mutilated, Destroyed, Lost or Stolen Certificates................................98
Section 5.05. Persons Deemed Owners............................................................98
Section 5.06. Temporary Certificates...........................................................98
Section 5.07. Book-Entry for Book-Entry Certificates...........................................99
Section 5.08. Notices to Clearing Agency......................................................100
Section 5.09. Definitive Certificates.........................................................100
Section 5.10. Office for Transfer of Certificates.............................................101
Section 5.11. Nature of Certificates..........................................................101
ix
ARTICLE VI The Company and the Master Servicer......................................................101
Section 6.01. Liability of the Company and the Master Servicer................................101
Section 6.02. Merger or Consolidation of the Company, or the Master Servicer..................101
Section 6.03. Limitation on Liability of the Company, the Master Servicer and Others..........101
Section 6.04. The Company and the Master Servicer not to Resign...............................102
Section 6.05. Trustee Access..................................................................102
ARTICLE VII Default..................................................................................103
Section 7.01. Events of Default...............................................................103
Section 7.02. Trustee to Act; Appointment of Successor........................................105
Section 7.03. Notification to Certificateholders..............................................106
ARTICLE VIII Concerning the Trustees..................................................................107
Section 8.01. Duties of Trustees..............................................................107
Section 8.02. Certain Matters Affecting the Trustees..........................................108
Section 8.03. Trustees Not Liable for Certificates or Mortgage Loans..........................109
Section 8.04. Trustees May Own Certificates...................................................110
Section 8.05. The Master Servicer to Pay Trustees' Fees and Expenses..........................110
Section 8.06. Eligibility Requirements for Trustees...........................................110
Section 8.07. Resignation and Removal of Trustees.............................................110
Section 8.08. Successor Trustee...............................................................111
Section 8.09. Merger or Consolidation of Trustee..............................................112
Section 8.10. Appointment of Co-Trustee or Separate Trustee...................................112
Section 8.11. Authenticating Agents...........................................................113
Section 8.12. Paying Agents...................................................................114
Section 8.13. Duties of Delaware Trustee......................................................115
Section 8.14. Amendment to Certificate of Trust...............................................115
Section 8.15. Limitation of Liability.........................................................115
ARTICLE IX Termination..............................................................................115
Section 9.01. Termination Upon Purchase by the Master Servicer or Liquidation of All
Mortgage Loans..................................................................115
x
Section 9.02. Additional Termination Requirements.............................................117
Section 9.03. Trust Irrevocable...............................................................118
ARTICLE X Miscellaneous Provisions.................................................................118
Section 10.01. Amendment.......................................................................118
Section 10.02. Recordation of Agreement........................................................120
Section 10.03. Limitation on Rights of Certificateholders......................................120
Section 10.04. Access to List of Certificateholders............................................121
Section 10.05. Governing Law...................................................................121
Section 10.06. Notices.........................................................................121
Section 10.07. Severability of Provisions......................................................121
Section 10.08. Counterpart Signatures..........................................................121
Section 10.09. Benefits of Agreement...........................................................122
Section 10.10. Notices and Copies to Rating Agencies...........................................122
Schedule 1........Exceptions to Section 2.08(iv) Representations
Appendix 1........Definition of "Class C-Y Principal Reduction Amounts"
Exhibit A.........Form of Certificates (other than Class R Certificates)
Exhibit B.........Form of Class R Certificates
Exhibit C.........[Reserved]
Exhibit D.........Mortgage Loan Schedule
Exhibit E.........Selling And Servicing Contract
Exhibit F.........Form of Transferor Certificate For Junior Subordinate Certificates
Exhibit G.........Form of Transferee's Agreement For Junior Subordinate Certificates
Exhibit H.........Form of Additional Matter Incorporated Into the Certificates
Exhibit I.........Transferor Certificate
Exhibit J.........Transferee Affidavit And Agreement
Exhibit K.........[Reserved]
Exhibit L.........Form of Investment Letter
Exhibit M.........Form of Trustee's Certification Pursuant to Section 2.02
Exhibit N.........Officer's Certificate With Respect to ERISA Matters Pursuant to Section 5.01(d)
Exhibit O.........Officer's Certificate With Respect to ERISA Matters Pursuant to Section 5.01(g)
xi
This Pooling and Servicing Agreement, dated and effective as of April
1, 2004 (this "Agreement"), is executed by and among Washington Mutual Mortgage
Securities Corp., as depositor and Master Servicer (the "Company"), U.S. Bank
National Association, a national banking association with a corporate trust
office at Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxx, XX 00000, as Trustee (the
"Trustee"), and Christiana Bank & Trust Company, as Delaware Trustee (the
"Delaware Trustee"). Capitalized terms used in this Agreement and not otherwise
defined have the meanings ascribed to such terms in Article I hereof.
PRELIMINARY STATEMENT
The Company at the Closing Date is the owner of the Mortgage Loans and
the other property being conveyed by it to the Trust. On the Closing Date, the
Company will acquire the REMIC I Regular Interests and the Class R-1 Residual
Interest from the Trust as consideration for its transfer to the Trust of the
Mortgage Loans and certain other assets and will be the owner of the REMIC I
Regular Interests and the Class R-1 Residual Interest. Thereafter on the Closing
Date, the Company will acquire the Certificates (other than the Class R
Certificates) and the Class R-2 Residual Interest from the Trust as
consideration for its transfer to the Trust of the REMIC I Regular Interests and
will be the owner of the Certificates. The Company has duly authorized the
execution and delivery of this Agreement to provide for (i) the conveyance to
the Trust of the Mortgage Loans and certain other assets, (ii) the issuance to
the Company of the REMIC I Regular Interests and the Class R-1 Residual Interest
representing in the aggregate the entire beneficial interest in REMIC I, (iii)
the conveyance to the Trust of the REMIC I Regular Interests and (iv) the
issuance to the Company of the Certificates, such Certificates (other than the
portion of the Class R Certificates representing ownership of the Class R-1
Residual Interest) representing in the aggregate the entire beneficial interest
in REMIC II. The Company is entering into this Agreement, and the Trustee and
the Delaware Trustee are each accepting the trust created hereby, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
The Certificates issued hereunder, other than the Junior Subordinate
Certificates, have been offered for sale pursuant to a Prospectus, dated
February 10, 2004, and a Prospectus Supplement, dated April 27, 2004, of the
Company (together, the "Prospectus"). The Junior Subordinate Certificates have
been offered for sale pursuant to a Private Placement Memorandum, dated April
29, 2004. The Trust created hereunder is intended to be the "Trust" described in
the Prospectus and the Private Placement Memorandum and the Certificates are
intended to be the "Certificates" described therein. The following tables set
forth the designation, type of interest, Certificate Interest Rate, initial
Class Principal Balance and Final Maturity Date for the REMIC I Regular
Interests, the Class R Residual Interests and the Certificates:
1
REMIC I Interests
Class Designation for
each REMIC I Regular
Interest and the Class Certificate Initial Class
R-1 Residual Interest Type of Interest Principal
Interest Rate (1) Balance Final Maturity Date*
---------------------- ------------ -------------------- -------------------- ------------------------
Class C-Y-1 Regular 6.500% $ 37,126.08 November 2018
Class C-Y-2 Regular 7.000% 127,439.21 March 2034
Class C-Z-1 Regular 6.500% 74,215,024.93 November 2018
Class C-Z-2 Regular 7.000% 255,201,391.98 March 2034
Class I-X-M Regular (2) ----- November 2018
Class II-X-M Regular (2) ----- March 2034
Class I-P-M Regular (3) 1,262,113.82 November 2018
Class II-P-M Regular (3) 3,882,282.99 March 2034
Class R-1+ Residual 6.500% 100.00 March 2034
* The Distribution Date in the specified month, which is the month
following the month the latest maturing Mortgage Loan in the related
Loan Group (or Loan Groups, as applicable) matures. For federal income
tax purposes, for each Class of REMIC I Regular and Residual Interests,
the "latest possible maturity date" shall be the Final Maturity Date.
+ The Class R-1 Residual Interest is entitled to receive the applicable
Residual Distribution Amount and any Excess Liquidation Proceeds.
(1) Interest distributed to the REMIC I Regular Interests (other than the
Class P-M Regular Interests, which shall not be entitled to receive any
distributions of interest) and the Class R-1 Residual Interest on each
Distribution Date will have accrued at the applicable per annum
Certificate Interest Rate on the applicable Class Principal Balance or
Class Notional Amount outstanding immediately before such Distribution
Date.
(2) Each Class of the Class X-M Regular Interests shall accrue interest on
the related Class Notional Amount. The Class X-M Regular Interests
shall not be entitled to receive any distributions of principal.
(3) The Class P-M Regular Interests shall not be entitled to receive any
distributions of interest.
As provided herein, with respect to REMIC I, the Company will cause an
election to be made on behalf of REMIC I to be treated for federal income tax
purposes as a REMIC. The REMIC I Regular Interests will be designated regular
interests in REMIC I and the Class R-1 Residual Interest will be designated the
sole class of residual interest in REMIC I, for purposes of the REMIC
Provisions.
2
REMIC II Interests
Class Designation for
each Class of Certificate Initial Class
Certificates and the Type of Interest Principal Final Maturity
Class R-2 Residual Interest Rate (1) Balance Date*
Interest
------------------------ ------------ -------------------- -------------------- ------------------------
Class I-A Regular 6.500% $ 71,609,148.00 March 2034
Class II-A Regular 7.000% 246,256,442.00 March 2034
Class I-X Regular 6.500%(2) ----- March 2034
Class II-X Regular 7.000%(2) ----- March 2034
Class I-P Regular (3) 1,262,113.82 March 2034
Class II-P Regular (3) 3,882,282.99 March 2034
Class C-B-1 Regular Variable(4) 9,707,000.00 March 2034
Class C-B-2 Regular Variable(4) 669,500.00 March 2034
Class C-B-3 Regular Variable(4) 502,100.00 March 2034
Class C-B-4 Regular Variable(4) 334,700.00 March 2034
Class C-B-5 Regular Variable(4) 334,700.00 March 2034
Class C-B-6 Regular Variable(4) 167,392.20 March 2034
Class R-2 (5) Residual ----- ----- March 2034
* The Distribution Date in the specified month, which is the month
following the month the latest maturing Mortgage Loan in the related
Loan Group (or Loan Groups, as applicable) matures. For federal income
tax purposes, for each Class of REMIC II Regular and Residual
Interests, the "latest possible maturity date" shall be the Final
Maturity Date.
(1) Interest distributed on each Distribution Date to the Certificates
(other than the Class P Certificates, which shall not be entitled to
receive any distributions of interest) will have accrued at the
applicable per annum Certificate Interest Rate on the applicable Class
Principal Balance or Class Notional Amount outstanding immediately
before such Distribution Date.
(2) The Class X Certificates shall accrue interest on the related Class
Notional Amount. The Class X Certificates shall not be entitled to
receive any distributions of principal.
(3) The Class P Certificates shall not be entitled to receive any
distributions of interest. (4) The Certificate Interest Rate for each
Class of the Group C-B Certificates shall equal, on any Distribution
Date, the weighted average of the Certificate Interest Rates for the
Class C-Y-1 and Class C-Y-2 Regular Interests.
(5) The Class R-2 Residual Interest shall be entitled to receive the
applicable Residual Distribution Amount. The Class R-2 Residual
Interest shall not be entitled to receive any distributions of interest
or principal.
As provided herein, with respect to REMIC II, the Company will cause an
election to be made on behalf of REMIC II to be treated for federal income tax
purposes as a REMIC. The Certificates (other than the Class R Certificates) will
be designated regular interests in REMIC II, and the Class R-2 Residual Interest
will be designated the sole class of residual interest in REMIC II, for purposes
of the REMIC Provisions. As of the Cut-Off Date, the Mortgage Loans have an
aggregate Principal Balance of $334,725,479.08 and the Certificates have an
Aggregate Certificate Principal Balance of $334,725,477.20.
In addition, the Trust will issue the Class R Certificates, which will
represent ownership of the Class R-1 and Class R-2 Residual Interests.
3
W I T N E S S E T H :
WHEREAS, the Company is a corporation duly organized and existing under
and by virtue of the laws of the State of Delaware and has full corporate power
and authority to enter into this Agreement and to undertake the obligations
undertaken by it herein;
WHEREAS, the Trustee is a national banking association duly organized
and existing under the laws of the United States of America and has full power
and authority to enter into this Agreement;
WHEREAS, the Delaware Trustee is a banking corporation duly organized
and existing under the laws of the State of Delaware and has full power and
authority to enter into this Agreement;
WHEREAS, prior to the execution and delivery hereof, the Company and
the Delaware Trustee have entered into the Original Trust Agreement, and the
Delaware Trustee has filed the Certificate of Trust;
WHEREAS, it is the intention of the Company, the Trustee and the
Delaware Trustee that the Trust created by this Agreement constitute a statutory
trust under the Statutory Trust Statute, that this Agreement constitute the
governing instrument of the Trust, and that this Agreement amend and restate the
Original Trust Agreement;
WHEREAS, the Company is the owner of the Mortgage Loans identified in
the Mortgage Loan Schedule hereto having unpaid Principal Balances on the
Cut-Off Date as stated therein; and
WHEREAS, the Company has been duly authorized to create the Trust to
(i) hold the Mortgage Loans and certain other property, (ii) issue the REMIC I
Regular Interests and the Class R-1 Residual Interest, (iii) hold the REMIC I
Regular Interests and (iv) issue the Certificates.
NOW, THEREFORE, in order to declare the terms and conditions upon which
the REMIC I Regular Interests, the Class R Residual Interests and the
Certificates are to be issued, and in consideration of the premises and of the
purchase and acceptance of the Certificates by the Holders thereof, the Company
covenants and agrees with the Trustee and the Delaware Trustee, for the equal
and proportionate benefit of the respective Holders from time to time of the
REMIC I Regular Interests and the Certificates, as applicable, as follows:
ARTICLE I
Section 1.01. Definitions.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
4
Additional Collateral: Any securities, cash, instruments, contracts,
documents and other real or personal property securing a Mortgage Loan (other
than the related Mortgaged Property).
Additional Collateral Document: (i) Each agreement, instrument, or
other document pursuant to which a security interest in or lien on Additional
Collateral is granted to secure obligations under an Additional Collateral Loan;
and (ii) each third-party guarantee (other than the Surety Bonds) of obligations
under an Additional Collateral Loan.
Additional Collateral Loan: A Mortgage Loan secured by, in addition to
the related Mortgaged Property, Additional Collateral.
Aggregate Certificate Principal Balance: At any given time, the sum of
the then current Class Principal Balances of the Certificates.
Appraised Value: The amount set forth in an appraisal made by or for
(a) the mortgage originator in connection with its origination of each Mortgage
Loan (including a Mortgage Loan originated to refinance mortgage debt), (b) with
respect to a Mortgage Loan originated to refinance mortgage debt, the originator
of the mortgage debt that was refinanced or (c) the Servicer, at any time, in
accordance with the Selling and Servicing Contract.
Assignment of Proprietary Lease: With respect to a Cooperative Loan,
the assignment or mortgage of the related Cooperative Lease from the Mortgagor
to the originator of the Cooperative Loan.
Authenticating Agent: Any authenticating agent appointed by the Trustee
pursuant to Section 8.11.
Authorized Denomination: With respect to the Certificates (other than
the Class X and Class R Certificates), an initial Certificate Principal Balance
equal to $25,000 and multiples of $1 in excess thereof, except that one
Certificate of each Class of the Junior Subordinate Certificates may be issued
in an amount that is not an integral multiple of $1. With respect to the Class X
Certificates, a Class Notional Amount as of the Cut-Off Date equal to $100,000
and multiples of $1 in excess thereof. With respect to the Class R Certificates,
one Certificate with a Percentage Interest equal to 0.01% and one Certificate
with a Percentage Interest equal to 99.99%.
Balloon Loan: Any Mortgage Loan which, by its terms, does not fully
amortize the principal balance thereof by its stated maturity and thus requires
a payment at the stated maturity larger than the monthly payments due
thereunder.
Bankruptcy Coverage: $100,000 less (a) any scheduled or permissible
reduction in the amount of Bankruptcy Coverage pursuant to the second paragraph
of this definition and (b) Bankruptcy Losses allocated to the Certificates.
5
The Bankruptcy Coverage may be reduced upon written confirmation from
the Rating Agencies that such reduction will not adversely affect the then
current ratings assigned to the Certificates by the Rating Agencies.
Bankruptcy Loss: A loss on a Mortgage Loan arising out of (i) a
reduction in the scheduled Monthly Payment for such Mortgage Loan by a court of
competent jurisdiction in a case under the United States Bankruptcy Code, other
than any such reduction that arises out of clause (ii) of this definition of
"Bankruptcy Loss," including, without limitation, any such reduction that
results in a permanent forgiveness of principal, or (ii) with respect to any
Mortgage Loan, a valuation, by a court of competent jurisdiction in a case under
such Bankruptcy Code, of the related Mortgaged Property in an amount less than
the then outstanding Principal Balance of such Mortgage Loan.
Beneficial Holder: A Person holding a beneficial interest in any
Book-Entry Certificate as or through a DTC Participant or an Indirect DTC
Participant or a Person holding a beneficial interest in any Definitive
Certificate.
Benefit Plan Opinion: With respect to any Certificate presented for
registration in the name of any Person, an Opinion of Counsel acceptable to and
in form and substance satisfactory to the Trustee and the Company to the effect
that the purchase or holding of such Certificate is permissible under applicable
law, will not constitute or result in a non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code, and will not subject the
Trust, the Trustee, the Delaware Trustee, the Master Servicer or the Company to
any obligation or liability (including obligations or liabilities under Section
406 of 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 Trust,
the Trustee, the Delaware Trustee, the Master Servicer or the Company.
Book-Entry Certificates: The Class A, Class X, Class P and Senior
Subordinate Certificates, beneficial ownership and transfers of which shall be
made through book entries as described in Section 5.07.
Business Day: Any day other than a Saturday, a Sunday, or a day on
which banking institutions in Stockton, California, Chicago, Illinois, New York,
New York, Seattle, Washington or St. Xxxx, Minnesota or any city in which the
Corporate Trust Office is located are authorized or obligated by law or
executive order to be closed.
Buydown Agreement: An agreement between a Person and a Mortgagor
pursuant to which such Person has provided a Buydown Fund.
Buydown Fund: A fund provided by the originator of a Mortgage Loan or
another Person with respect to a Buydown Loan which provides an amount
sufficient to subsidize regularly scheduled principal and interest payments due
on such Buydown Loan for a period. Buydown Funds may be (i) funded at the par
values of future payment subsidies, or (ii) funded in an amount less than the
par values of future payment subsidies, and determined by discounting such par
values in accordance with interest accruing on such amounts, in which event they
will be deposited in an account bearing interest. Buydown Funds may be held in a
separate Buydown Fund Account or may be held in a Custodial Account for P&I or a
Custodial Account for Reserves and monitored by a Servicer.
6
Buydown Fund Account: A separate account or accounts created and
maintained pursuant to Section 3.02 (a) with the corporate trust department of
the Trustee or another financial institution approved by the Master Servicer,
(b) within FDIC insured accounts (or other accounts with comparable insurance
coverage acceptable to the Rating Agencies) created, maintained and monitored by
a Servicer or (c) in a separate non-trust account without FDIC or other
insurance in an Eligible Institution. Such account or accounts may be
non-interest bearing or may bear interest. In the event that a Buydown Fund
Account is established pursuant to clause (b) of the preceding sentence, amounts
held in such Buydown Fund Account shall not exceed the level of deposit
insurance coverage on such account; accordingly, more than one Buydown Fund
Account may be established.
Buydown Loan: A Mortgage Loan for which the Mortgage Interest Rate has
been subsidized through a Buydown Fund provided at the time of origination of
such Mortgage Loan.
Carry-Forward Subsequent Recoveries Amount: For any Distribution Date
and any Loan Group, the excess, if any, of (i) the Subsequent Recoveries for
such Distribution Date for such Loan Group over (ii) the amount by which the
Class Principal Balance of the Class of Subordinate Certificates with the lowest
priority is increased in respect of Subsequent Recoveries for such Loan Group on
such Distribution Date pursuant to the definition of "Class Principal Balance"
herein.
Certificate: Any one of the Certificates issued pursuant to this
Agreement, executed by the Trustee and authenticated by or on behalf of the
Trustee hereunder in substantially one of the forms set forth in Exhibit A and B
hereto. The additional matter appearing in Exhibit H shall be deemed
incorporated into Exhibit A as though set forth at the end of such Exhibit.
Certificate Account: The separate trust account created and maintained
with the Trustee, the Investment Depository or any other bank or trust company
acceptable to the Rating Agencies which is incorporated under the laws of the
United States or any state thereof pursuant to Section 3.04, which account shall
bear a designation clearly indicating that the funds deposited therein are held
in trust for the benefit of the Trust or any other account serving a similar
function acceptable to the Rating Agencies. Funds in the Certificate Account in
respect of the Mortgage Loans in each of the Loan Groups and amounts withdrawn
from the Certificate Account attributable to each of such Loan Groups shall be
accounted for separately. Funds in the Certificate Account may be invested in
Eligible Investments pursuant to Section 3.04(b) and reinvestment earnings
thereon shall be paid to the Master Servicer as additional servicing
compensation. Funds deposited in the Certificate Account (exclusive of the
Master Servicing Fee) shall be held in trust for the Certificateholders and for
the uses and purposes set forth in Section 2.01, Section 3.04, Section 3.05,
Section 4.01 and Section 4.04.
Certificate Group: The Group I Certificates or Group II Certificates,
as applicable.
Certificateholder or Holder: With respect to the Certificates, the
person in whose name a Certificate is registered in the Certificate Register,
except that, solely for the purposes of giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Company, the Master
Servicer or any affiliate thereof shall be deemed not to be outstanding and the
Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite percentage of Percentage Interests necessary
to effect any such consent has been obtained; provided, that the Trustee may
conclusively rely upon an Officer's Certificate to determine whether any Person
is an affiliate of the Company or the Master Servicer. With respect to the REMIC
I Regular Interests, the owner of the REMIC I Regular Interests, which as of the
Closing Date shall be the Trust.
7
Certificate Interest Rate: For each Class of Certificates and REMIC I
Regular Interests, the per annum rate set forth as the Certificate Interest Rate
for such Class in the Preliminary Statement hereto.
Certificate of Trust: The certificate of trust filed with respect to
the Trust with the Secretary of State in accordance with Section 3810(a) of the
Statutory Trust Statute.
Certificate Principal Balance: For each Certificate of any Class, the
portion of the related Class Principal Balance, if any, represented by such
Certificate.
Certificate Register and Certificate Registrar: The register maintained
and the registrar appointed, respectively, pursuant to Section 5.03.
Class: All REMIC I Regular Interests or the Class R-1 Residual Interest
having the same priority and rights to payments on the Mortgage Loans from the
REMIC I Available Distribution Amount, and all REMIC II Regular Interests or the
Class R-2 Residual Interest having the same priority and rights to payments on
the REMIC I Regular Interests from the REMIC II Available Distribution Amount,
as applicable, which REMIC I Regular Interests, REMIC II Regular Interests and
Class R Residual Interests, as applicable, shall be designated as a separate
Class, and which, in the case of the Certificates (including the Class R
Certificates representing ownership of the Class R Residual Interests), shall be
set forth in the applicable forms of Certificates attached hereto as Exhibits A
and B. Each Class of REMIC I Regular Interests and the Class R-1 Residual
Interest shall be entitled to receive the amounts allocated to such Class
pursuant to the definition of "REMIC I Distribution Amount" only to the extent
of the REMIC I Available Distribution Amount for such Distribution Date
remaining after distributions in accordance with prior clauses of the definition
of "REMIC I Distribution Amount," and each Class of REMIC II Regular Interests
and the Class R-2 Residual Interest shall be entitled to receive the amounts
allocated to such Class pursuant to the definition of "REMIC II Distribution
Amount" only to the extent of the REMIC II Available Distribution Amount for
such Distribution Date remaining after distributions in accordance with prior
clauses of the definition of "REMIC II Distribution Amount."
Class A Certificates: The Class I-A and Class II-A Certificates.
Class C-B-1 Certificates: The Certificates designated as "Class C-B-1"
on the face thereof in substantially the form attached hereto as Exhibit A.
Class C-B-2 Certificates: The Certificates designated as "Class C-B-2"
on the face thereof in substantially the form attached hereto as Exhibit A.
Class C-B-3 Certificates: The Certificates designated as "Class C-B-3"
on the face thereof in substantially the form attached hereto as Exhibit A.
8
Class C-B-4 Certificates: The Certificates designated as "Class C-B-4"
on the face thereof in substantially the form attached hereto as Exhibit A.
Class C-B-5 Certificates: The Certificates designated as "Class C-B-5"
on the face thereof in substantially the form attached hereto as Exhibit A.
Class C-B-6 Certificates: The Certificates designated as "Class C-B-6"
on the face thereof in substantially the form attached hereto as Exhibit A.
Class C-Y Principal Reduction Amounts: For any Distribution Date, the
amounts by which the Class Principal Balances of the Class C-Y-1 and Class C-Y-2
Regular Interests, respectively, will be reduced on such Distribution Date by
the allocation of Realized Losses and the distribution of principal, determined
as described in Appendix 1.
Class C-Y Regular Interests: The Class C-Y-1 and Class C-Y-2 Regular
Interests.
Class C-Y-1 Principal Distribution Amount: For any Distribution Date,
the sum of (A) the excess, if any, of the Class C-Y-1 Principal Reduction Amount
for such Distribution Date over the principal portion of Realized Losses
allocated to the Class C-Y-1 Regular Interest on such Distribution Date and (B)
an amount equal to the lesser of (i) the portion, if any, of the Subsequent
Recoveries for Loan Group I for such Distribution Date not included in the Class
C-Z-1 Principal Distribution Amount pursuant to clause (B) of the definition
thereof and (ii) the amount of Realized Losses allocated to the Class C-Y-1
Regular Interest on previous Distribution Dates (the amount in this clause
(B)(ii) reduced by the amount, if any, calculated pursuant to this clause (B)
for prior Distribution Dates).
Class C-Y-1 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is entitled
to distributions as set forth herein.
Class C-Y-2 Principal Distribution Amount: For any Distribution Date,
the sum of (A) the excess, if any, of the Class C-Y-2 Principal Reduction Amount
for such Distribution Date over the principal portion of Realized Losses
allocated to the Class C-Y-2 Regular Interest on such Distribution Date and (B)
an amount equal to the lesser of (i) the portion, if any, of the Subsequent
Recoveries for Loan Group II for such Distribution Date not included in the
Class C-Z-2 Principal Distribution Amount pursuant to clause (B) of the
definition thereof and (ii) the amount of Realized Losses allocated to the Class
C-Y-2 Regular Interest on previous Distribution Dates (the amount in this clause
(B)(ii) reduced by the amount, if any, calculated pursuant to this clause (B)
for prior Distribution Dates).
Class C-Y-2 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is entitled
to distributions as set forth herein.
Class C-Z Principal Reduction Amounts: For any Distribution Date, the
amounts by which the Class Principal Balances of the Class C-Z-1 and Class C-Z-2
Regular Interests, respectively, will be reduced on such Distribution Date by
the allocation of Realized Losses and the distribution of principal, which shall
be in each case the excess of (A) the sum of (x) the excess of the REMIC I
Available Distribution Amount for the related Loan Group (i.e. the "related Loan
Group" for the Class C-Z-1 Regular Interest is Loan Group I and the "related
9
Loan Group" for the Class C-Z-2 Regular Interest is Loan Group II) over the sum
of the amounts thereof distributable (i) in the case of Loan Group I, to the
Class I-P-M Regular Interest and, in the case of Loan Group II, to the Class
II-P-M Regular Interest, (ii) in the case of Loan Group I, to the Class I-X-M
Regular Interest and, in the case of Loan Group II, to the Class II-X-M Regular
Interest, (iii) in respect of interest on such Class C-Z Regular Interest and
the related Class C-Y Regular Interest, (iv) to such Class C-Z Regular Interest
and the related Class C-Y Regular Interest pursuant to clause (c)(ii) of the
definition of "REMIC I Distribution Amount" and (v) in the case of Loan Group I,
to the Class R-1 Residual Interest and (y) the amount of Realized Losses
allocable to principal for the related Loan Group (reduced, in the case of Loan
Group I, by the portion of such amount allocable to the Class I-P-M Regular
Interest and, in the case of Loan Group II, by the portion of such amount
allocable to the Class II-P-M Regular Interest) over (B) the Class C-Y Principal
Reduction Amount for the related Loan Group.
Class C-Z Regular Interests: The Class C-Z-1 and Class C-Z-2 Regular
Interests.
Class C-Z-1 Principal Distribution Amount: For any Distribution Date,
the sum of (A) the excess, if any, of the Class C-Z-1 Principal Reduction Amount
for such Distribution Date over the principal portion of Realized Losses
allocated to the Class C-Z-1 Regular Interest on such Distribution Date and (B)
an amount equal to the lesser of (i) the Subsequent Recoveries for Loan Group I
for such Distribution Date and (ii) the amount of Realized Losses allocated to
the Class C-Z-1 Regular Interest on previous Distribution Dates (the amount in
this clause (B)(ii) reduced by the amount, if any, calculated pursuant to this
clause (B) for prior Distribution Dates).
Class C-Z-1 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is entitled
to distributions as set forth herein.
Class C-Z-2 Principal Distribution Amount: For any Distribution Date,
the sum of (A) the excess, if any, of the Class C-Z-2 Principal Reduction Amount
for such Distribution Date over the principal portion of Realized Losses
allocated to the Class C-Z-2 Regular Interest on such Distribution Date and (B)
an amount equal to the lesser of (i) the Subsequent Recoveries for Loan Group II
for such Distribution Date and (ii) the amount of Realized Losses allocated to
the Class C-Z-2 Regular Interest on previous Distribution Dates (the amount in
this clause (B)(ii) reduced by the amount, if any, calculated pursuant to this
clause (B) for prior Distribution Dates).
Class C-Z-2 Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is entitled
to distributions as set forth herein.
Class I-A Certificates: The Certificates designated as "Class I-A" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class I-P Certificates: The Certificates designated as "Class I-P" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class I-P Fraction: For each Class I-P Mortgage Loan, a fraction, the
numerator of which is 6.500% less the Pass-Through Rate on such Class I-P
Mortgage Loan and the denominator of which is 6.500%.
10
Class I-P Mortgage Loan: Any Group I Loan with a Pass-Through Rate of
less than 6.500% per annum.
Class I-P-M Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is entitled
to distributions as set forth herein.
Class I-X Certificates: The Certificates designated as "Class I-X" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class I-X Notional Amount: With respect to any Distribution Date, the
product of (x) the aggregate scheduled principal balance, as of the second
preceding Due Date after giving effect to payments scheduled to be received as
of such Due Date, whether or not received (and after giving effect to Principal
Prepayments, Monthly P&I Advances and the principal portion of Realized Losses
applied prior to such Due Date), or with respect to the initial Distribution
Date, as of the Cut-Off Date, of the Group I Premium Rate Mortgage Loans and (y)
a fraction, the numerator of which is the weighted average of the Stripped
Interest Rates for the Group I Premium Rate Mortgage Loans as of such Due Date
and the denominator of which is 6.500%.
Class I-X-M Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is entitled
to distributions as set forth herein.
Class II-A Certificates: The Certificates designated as "Class II-A" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class II-P Certificates: The Certificates designated as "Class II-P" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class II-P Fraction: For each Class II-P Mortgage Loan, a fraction, the
numerator of which is 7.000% less the Pass-Through Rate on such Class II-P
Mortgage Loan and the denominator of which is 7.000%.
Class II-P Mortgage Loan: Any Group II Loan with a Pass-Through Rate of
less than 7.000% per annum.
Class II-P-M Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is entitled
to distributions as set forth herein.
Class II-X Certificates: The Certificates designated as "Class II-X" on
the face thereof in substantially the form attached hereto as Exhibit A.
Class II-X Notional Amount: With respect to any Distribution Date, the
product of (x) the aggregate scheduled principal balance, as of the second
preceding Due Date after giving effect to payments scheduled to be received as
of such Due Date, whether or not received (and after giving effect to Principal
Prepayments, Monthly P&I Advances and the principal portion of Realized Losses
applied prior to such Due Date), or with respect to the initial Distribution
Date, as of the Cut-Off Date, of the Group II Premium Rate Mortgage Loans and
(y) a fraction, the numerator of which is the weighted average of the Stripped
Interest Rates for the Group II Premium Rate Mortgage Loans as of such Due Date
and the denominator of which is 7.000%.
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Class II-X-M Regular Interest: The uncertificated undivided beneficial
interest in REMIC I which constitutes a REMIC I Regular Interest and is entitled
to distributions as set forth herein.
Class Notional Amount: With respect to any of the Class X Certificates
and the Class X-M Regular Interests, the related notional amount for such Class,
as specified herein (e.g., the "Class Notional Amount" for the Class I-X
Certificates and the Class I-X-M Regular Interest is the Class I-X Notional
Amount).
Class P Certificates: The Class I-P and Class II-P Certificates. As
such term is used herein, the Class I-P Certificates are "related" to the Class
I-P Mortgage Loans and the Class II-P Certificates are "related" to the Class
II-P Mortgage Loans.
Class P Fraction: Any Class I-P or Class II-P Fraction, as applicable.
Class P Mortgage Loan: Any of the Class I-P or Class II-P Mortgage
Loans.
Class P-M Regular Interests: The Class I-P-M and Class II-P-M Regular
Interests. As such term is used herein, the Class I-P-M Regular Interest is
"related" to the Class I-P Mortgage Loans and the Class II-P-M Regular Interest
is "related" to the Class II-P Mortgage Loans.
Class Principal Balance: For any Class of Certificates, for any Class
of REMIC I Regular Interests and for the Class R-1 Residual Interest, the
applicable initial Class Principal Balance therefor set forth in the Preliminary
Statement hereto (or, in the case of the Class R Certificates, the Class
Principal Balance of the Class R-1 Residual Interest), corresponding to the
rights of such Class in payments of principal due to be passed through to the
Certificateholders or the Holders of the REMIC I Regular Interests from
principal payments on the Mortgage Loans or the REMIC I Regular Interests, as
applicable, as reduced from time to time by (x) distributions of principal to
the Certificateholders or the Holders of the REMIC I Regular Interests of such
Class and (y) the portion of Realized Losses allocated to the Class Principal
Balance of such Class pursuant to the definition of "Realized Loss" (including
amounts allocated as losses to the Group C-B Certificates pursuant to the fourth
paragraph of the definition of "Realized Loss") with respect to a given
Distribution Date. For any Distribution Date, the reduction of the Class
Principal Balance of any Class of Certificates and REMIC I Regular Interests
pursuant to the definition of "Realized Loss" shall be deemed effective after
the determination and distribution of principal on such Class pursuant to the
definitions of "REMIC I Distribution Amount" and "REMIC II Distribution Amount."
Notwithstanding the foregoing, (A) any amounts distributed in respect
of losses pursuant to paragraph (c)(i) or (c)(ii) of the definition of "REMIC II
Distribution Amount" shall not cause a reduction in the Class Principal Balance
of the Class P Certificates, (B) any amounts distributed in respect of principal
losses pursuant to paragraph (c)(xxi) of the definition of "REMIC II
Distribution Amount" shall not cause a reduction in the Class Principal Balances
of the REMIC II Regular Interests, (C) any amounts distributed in respect of
principal losses pursuant to clause (c)(i) of the definition of "REMIC I
Distribution Amount" shall not cause a reduction in the Class Principal Balances
of the Class P-M Regular Interests, (D) any amounts distributed in respect of
principal losses pursuant to clause (c)(ii) of the definition of "REMIC I
Distribution Amount" shall not cause a reduction in the Class Principal Balances
of the REMIC I Regular Interests and (E) any amounts distributed to the REMIC I
Regular Interests in respect of Subsequent Recoveries shall not cause a
reduction in the Class Principal Balances of the REMIC I Regular Interests.
12
In addition to the foregoing, on each Distribution Date, the Class
Principal Balance of the Class of Subordinate Certificates with the lowest
priority then outstanding shall be increased by an amount, for each Loan Group,
equal to the lesser of (i) the Subsequent Recoveries for such Distribution Date
for such Loan Group and (ii) the amount of Realized Losses for Mortgage Loans in
such Loan Group allocated to such Class on previous Distribution Dates (the
amount in this clause (ii) reduced by the amount, if any, by which such Class
Principal Balance has been increased on prior Distribution Dates pursuant to
this paragraph in respect of Subsequent Recoveries for such Loan Group).
The Class Principal Balance for the Class I-A Certificates shall be
referred to as the "Class I-A Principal Balance," the Class Principal Balance
for the Class II-A Certificates shall be referred to as the "Class II-A
Principal Balance" and so on. The Class Principal Balances for the Class X
Certificates and the Class X-M Regular Interests shall each be zero.
Class R Certificates: The Certificates designated as "Class R" on the
face thereof in substantially the form attached hereto as Exhibit B,
representing ownership of the Class R-1 and Class R-2 Residual Interests, each
of which Class of Residual Interests has been designated as the sole class of
"residual interest" in REMIC I and REMIC II, respectively, pursuant to Section
2.06 and Section 2.11, respectively, for purposes of Section 860G(a)(2) of the
Code.
Class R Residual Interests: The Class R-1 and Class R-2 Residual
Interests (which shall be transferable only as a unit evidenced by the Class R
Certificates, in accordance with the applicable provisions of Section 5.01).
Class R-1 Residual Interest: The uncertificated undivided beneficial
interest in REMIC I which has been designated as the single class of "residual
interest" in REMIC I pursuant to Section 2.06. The Class R-1 Residual Interest,
together with the REMIC I Regular Interests, shall be deemed to be a separate
series of beneficial interests in the assets of the Trust consisting of the
REMIC I Assets pursuant to Section 3806(b)(2) of the Statutory Trust Statute.
Class R-2 Residual Interest: The uncertificated undivided beneficial
interest in REMIC II which has been designated as the single class of "residual
interest" in REMIC II pursuant to Section 2.11. The Class R-2 Residual Interest,
together with the REMIC II Regular Interests, shall be deemed to be a separate
series of beneficial interests in the assets of the Trust consisting of the
REMIC II Assets pursuant to Section 3806(b)(2) of the Statutory Trust Statute.
Class X Certificates: The Class I-X and Class II-X Certificates.
Class X-M Regular Interests: The Class I-X-M and Class II-X-M Regular
Interests.
Clean-Up Call Percentage: 1%.
Clearing Agency: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended,
which initially shall be DTC.
13
Closing Date: April 29, 2004, which is the date of settlement of the
sale of the Certificates to the original purchasers thereof.
Closing Date Loan-to-Value Ratio: For each Mortgage Loan, the principal
balance of such Mortgage Loan as of the Cut-Off Date (after application of all
scheduled principal payments due on or before the Cut-Off Date) divided by the
value of the related Mortgaged Property as of the Closing Date.
Code: The Internal Revenue Code of 1986, as amended.
Company: Washington Mutual Mortgage Securities Corp., a Delaware
corporation, or its successor-in-interest.
Compensating Interest: For any Distribution Date with respect to each
Loan Group and the Mortgage Loans contained therein, the lesser of (i) the sum
of (a) the aggregate Master Servicing Fee payable with respect to such Loan
Group on such Distribution Date, (b) the aggregate Payoff Earnings with respect
to such Loan Group for such Distribution Date and (c) the aggregate Payoff
Interest with respect to such Loan Group for such Distribution Date and (ii) the
aggregate Uncollected Interest with respect to such Loan Group for such
Distribution Date.
Cooperative: A private, cooperative housing corporation which owns or
leases land and all or part of a building or buildings, including apartments,
spaces used for commercial purposes and common areas therein and whose board of
directors authorizes, among other things, the sale of Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building
owned or leased by a Cooperative, which unit the Mortgagor has an exclusive
right to occupy pursuant to the terms of a proprietary lease or occupancy
agreement.
Cooperative Lease: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the Cooperative Apartment occupied
by the Mortgagor and relating to the related Cooperative Stock, which lease or
agreement confers an exclusive right to the holder of such Cooperative Stock to
occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate, (iii) an
assignment or mortgage of the Cooperative Lease, (iv) financing statements and
(v) a stock power (or other similar instrument), and ancillary thereto, a
Recognition Agreement, each of which was transferred and assigned to the Trust
pursuant to Section 2.04.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan, the
stock certificate or other instrument evidencing the related Cooperative Stock.
14
Corporate Trust Office: The corporate trust office of the Trustee, at
which at any particular time its corporate trust business with respect to this
Agreement shall be administered, which office at the date of the execution of
this Agreement is located at Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxx, XX 00000,
Attention: Corporate Trust Washington Mutual 2004-RA1.
Corporation: Any Person (other than an individual, partnership, joint
venture or unincorporated organization) incorporated, associated, organized,
chartered or existing under the laws of any state or under the federal laws of
the United States of America; provided, that such Person have indefinite
existence under the law of its domicile.
Cumulative Carry-Forward Subsequent Recoveries Amount: For any
Distribution Date and any Loan Group, the sum of (i) the Carry-Forward
Subsequent Recoveries Amount for such Distribution Date for such Loan Group and
(ii) the Carry-Forward Subsequent Recoveries Amounts for prior Distribution
Dates for such Loan Group to the extent such Carry-Forward Subsequent Recoveries
Amounts have not been applied in reduction of Realized Losses on prior
Distribution Dates pursuant to the first paragraph of the definition of
"Realized Loss" herein.
Curtailment: Any payment of principal on a Mortgage Loan, made by or on
behalf of the related Mortgagor, other than a Monthly Payment, a Prepaid Monthly
Payment or a Payoff, which is applied to reduce the outstanding principal
balance of the Mortgage Loan. (Prepayment penalties are not payments of
principal and hence Curtailments do not include prepayment penalties.)
Curtailment Shortfall: For any Distribution Date and for any
Curtailment applied with a Monthly Payment in the Prior Period other than a
Prepaid Monthly Payment, an amount equal to one month's interest on such
Curtailment at the applicable Pass-Through Rate on such Mortgage Loan.
Custodial Account for P&I: The Custodial Account for principal and
interest established and maintained by each Servicer pursuant to its Selling and
Servicing Contract and caused by the Master Servicer to be established and
maintained pursuant to Section 3.02 (a) with the corporate trust department of
the Trustee or another financial institution approved by the Master Servicer
such that the rights of the Master Servicer, the Trustee, the Trust, the
Delaware Trustee and the Certificateholders thereto shall be fully protected
against the claims of any creditors of the applicable Servicer and of any
creditors or depositors of the institution in which such account is maintained,
(b) within FDIC insured accounts (or other accounts with comparable insurance
coverage acceptable to the Rating Agencies) created, maintained and monitored by
a Servicer or (c) in a separate non-trust account without FDIC or other
insurance in an Eligible Institution. In the event that a Custodial Account for
P&I is established pursuant to clause (b) of the preceding sentence, amounts
held in such Custodial Account for P&I shall not exceed the level of deposit
insurance coverage on such account; accordingly, more than one Custodial Account
for P&I may be established. Any amount that is at any time not protected or
insured in accordance with the first sentence of this definition of "Custodial
Account for P&I" shall promptly be withdrawn from such Custodial Account for P&I
and be remitted to the Investment Account.
Custodial Account for Reserves: The Custodial Account for Reserves
established and maintained by each Servicer pursuant to its Selling and
Servicing Contract and caused by the Master Servicer to be established and
15
maintained pursuant to Section 3.02 (a) with the corporate trust department of
the Trustee or another financial institution approved by the Master Servicer
such that the rights of the Master Servicer, the Trustee, the Trust, the
Delaware Trustee and the Certificateholders thereto shall be fully protected
against the claims of any creditors of the applicable Servicer and of any
creditors or depositors of the institution in which such account is maintained,
(b) within FDIC insured accounts (or other accounts with comparable insurance
coverage acceptable to the Rating Agencies) created, maintained and monitored by
a Servicer or (c) in a separate non-trust account without FDIC or other
insurance in an Eligible Institution. In the event that a Custodial Account for
Reserves is established pursuant to clause (b) of the preceding sentence,
amounts held in such Custodial Account for Reserves shall not exceed the level
of deposit insurance coverage on such account; accordingly, more than one
Custodial Account for Reserves may be established. Any amount that is at any
time not protected or insured in accordance with the first sentence of this
definition of "Custodial Account for Reserves" shall promptly be withdrawn from
such Custodial Account for Reserves and be remitted to the Investment Account.
Custodial Agreement: The agreement, if any, between the Trustee and a
Custodian (or the Trustee, a Custodian and the Master Servicer) providing for
the safekeeping of the Mortgage Files on behalf of the Trust.
Custodian: A custodian which is appointed by the Trustee with the
consent of the Master Servicer, as provided in Article II hereof, pursuant to a
Custodial Agreement. Any Custodian so appointed shall act as agent on behalf of
the Trustee. The reasonable fees and expenses of the Custodian shall be paid by
the Master Servicer. The Trustee shall remain at all times responsible under the
terms of this Agreement, notwithstanding the fact that certain duties have been
assigned to a Custodian.
Cut-Off Date: April 1, 2004.
Definitive Certificates: Certificates in definitive, fully registered
and certificated form.
Delaware Trustee: Christiana Bank & Trust Company, or its
successor-in-interest as provided in Section 8.09, or any successor trustee
appointed as herein provided.
Depositary Agreement: The Letter of Representations, dated April 28,
2004 by and among DTC, the Trust and the Trustee. The Trustee is authorized to
enter into the Depositary Agreement on behalf of the Trust.
Destroyed Mortgage Note: A Mortgage Note the original of which (or a
portion of the original of which) was permanently lost or destroyed and has not
been replaced.
Determination Date: A day not later than the 10th day preceding a
related Distribution Date, as determined by the Master Servicer.
Disqualified Organization: Any Person which is not a Permitted
Transferee, but does not include any Pass-Through Entity which owns or holds a
Residual Certificate and of which a Disqualified Organization, directly or
indirectly, may be a stockholder, partner or beneficiary.
16
Distribution Date: With respect to distributions on the REMIC I Regular
Interests and the Certificates, the 25th day (or, if such 25th day is not a
Business Day, the Business Day immediately succeeding such 25th day) of each
month, with the first such date being May 25, 2004. The "related Due Date" for
any Distribution Date is the Due Date immediately preceding such Distribution
Date.
DTC: The Depository Trust Company.
DTC Participant: A broker, dealer, bank, other financial institution or
other Person for whom DTC effects book-entry transfers and pledges of securities
deposited with DTC.
Due Date: The day on which the Monthly Payment for each Mortgage Loan
is due.
Eligible Institution: An institution having (i) the highest short-term
debt rating, and one of the two highest long-term debt ratings of the Rating
Agencies, (ii) with respect to any Custodial Account for P&I and special
Custodial Account for Reserves, an unsecured long-term debt rating of at least
one of the two highest unsecured long-term debt ratings of the Rating Agencies,
(iii) with respect to any Buydown Fund Account or Custodial Account which also
serves as a Buydown Fund Account, the highest unsecured long-term debt rating by
the Rating Agencies, or (iv) the approval of the Rating Agencies. Such
institution may be the Servicer if the applicable Selling and Servicing Contract
requires the Servicer to provide the Master Servicer with written notice on the
Business Day following the date on which the Servicer determines that such
Servicer's short-term debt and unsecured long-term debt ratings fail to meet the
requirements of the prior sentence. Notwithstanding the foregoing, Washington
Mutual Bank, FA shall be an "Eligible Institution" if the following conditions
are satisfied: (i) Washington Mutual Bank, FA is acting as Servicer, (ii) if S&P
is a Rating Agency as defined herein, the long-term unsecured debt obligations
of Washington Mutual Bank, FA are rated no lower than "A-" by S&P and the
short-term unsecured debt obligations of Washington Mutual Bank, FA are rated no
lower than "A-2" by S&P, (iii) if Fitch is a Rating Agency as defined herein,
the long-term unsecured debt obligations of Washington Mutual Bank, FA are rated
no lower than "A" by Fitch and the short-term unsecured debt obligations of
Washington Mutual Bank, FA are rated no lower than "F1" by Fitch and (iv) if
Xxxxx'x is a Rating Agency as defined herein, the long-term unsecured debt
obligations of Washington Mutual Bank, FA are rated no lower than "A2" by
Moody's and the short-term unsecured debt obligations of Washington Mutual Bank,
FA are rated no lower than "P-1" by Moody's; provided, that if the long-term or
short-term unsecured debt obligations of Washington Mutual Bank, FA are
downgraded by any of the Rating Agencies to a rating lower than the applicable
rating specified in this sentence, Washington Mutual Bank, FA shall cease to be
an "Eligible Institution" ten Business Days after notification of such
downgrade.
Eligible Investments: Any one or more of the obligations or securities
listed below in which funds deposited in the Investment Account, the Certificate
Account, the Custodial Account for P&I and the Custodial Account for Reserves
may be invested:
(i) Obligations of, or guaranteed as to principal and interest by, the United
States or any agency or instrumentality thereof when such obligations are backed
by the full faith and credit of the United States;
17
(ii) Repurchase agreements on obligations described in clause (i) of this
definition of "Eligible Investments," provided that the unsecured obligations of
the party (including the Trustee in its commercial capacity) agreeing to
repurchase such obligations have at the time one of the two highest short term
debt ratings of the Rating Agencies and provided that such repurchaser's
unsecured long term debt has one of the two highest unsecured long term debt
ratings of the Rating Agencies;
(iii) Federal funds, certificates of deposit, time deposits and bankers'
acceptances of any U.S. bank or trust company incorporated under the laws of the
United States or any state (including the Trustee in its commercial capacity),
provided that the debt obligations of such bank or trust company (or, in the
case of the principal bank in a bank holding company system, debt obligations of
the bank holding company) at the date of acquisition thereof have one of the two
highest short term debt ratings of the Rating Agencies and unsecured long term
debt has one of the two highest unsecured long term debt ratings of the Rating
Agencies;
(iv) Obligations of, or obligations guaranteed by, any state of the United
States or the District of Columbia, provided that such obligations at the date
of acquisition thereof shall have the highest long-term debt ratings available
for such securities from the Rating Agencies;
(v) Commercial paper of any corporation incorporated under the laws of the
United States or any state thereof, which on the date of acquisition has the
highest commercial paper rating of the Rating Agencies, provided that the
corporation has unsecured long term debt that has one of the two highest
unsecured long term debt ratings of the Rating Agencies;
(vi) Securities (other than stripped bonds or stripped coupons) bearing interest
or sold at a discount that are issued by any corporation incorporated under the
laws of the United States or any state thereof and have the highest long-term
unsecured rating available for such securities from the Rating Agencies;
provided, however, that securities issued by any such corporation will not be
investments to the extent that investment therein would cause the outstanding
principal amount of securities issued by such corporation that are then held as
part of the Investment Account or the Certificate Account to exceed 20% of the
aggregate principal amount of all Eligible Investments then held in the
Investment Account and the Certificate Account; and
(vii) Units of taxable money market funds (which may be 12b-1 funds, as
contemplated under the rules promulgated by the Securities and Exchange
Commission under the Investment Company Act of 1940), which funds have the
highest rating available for such securities from the Rating Agencies or which
have been designated in writing by the Rating Agencies as Eligible Investments;
provided, however, that such obligation or security is held for a
temporary period pursuant to Section 1.860G-2(g)(1) of the Treasury Regulations,
and that such period can in no event exceed thirteen months.
18
In no event shall an instrument be an Eligible Investment if such
instrument (a) evidences a right to receive only interest payments with respect
to the obligations underlying such instrument or (b) has been purchased at a
price greater than the outstanding principal balance of such instrument.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA Restricted Certificate: Any Senior Subordinate Certificate.
Event of Default: Any event of default as specified in Section 7.01.
Excess Liquidation Proceeds: With respect to any Distribution Date, the
sum of (i) the excess, if any, of aggregate Liquidation Proceeds received during
the Prior Period over the amount that would have been received if Payoffs had
been made with respect to such Mortgage Loans on the date such Liquidation
Proceeds were received and (ii) any Excess Subsequent Recoveries for any Loan
Group for such Distribution Date.
Excess Subsequent Recoveries: For any Distribution Date and any Loan
Group, the excess, if any, of (i) amounts received by the Master Servicer during
the Prior Period (after deduction of amounts reimbursable under Section
3.05(a)(i) and (ii)) in connection with the liquidation of defaulted Mortgage
Loans in such Loan Group after such Mortgage Loans became Liquidated Mortgage
Loans over (ii) the Subsequent Recoveries for such Distribution Date for such
Loan Group.
FDIC: Federal Deposit Insurance Corporation, or any successor thereto.
FHA: Federal Housing Administration, or any successor thereto.
Xxxxxx Mae: The entity formerly known as the Federal National Mortgage
Association, or any successor thereto.
Final Maturity Date: With respect to each Class of the REMIC I Regular
Interests and the Certificates, the date set forth in the applicable table
contained in the Preliminary Statement hereto.
Fitch: Fitch Ratings, provided that at any time it be a Rating Agency.
Fraud Coverage: During the period prior to the first anniversary of the
Cut-Off Date, 1.00% of the aggregate principal balance of the Mortgage Loans as
of the Cut-Off Date (the "Initial Fraud Coverage"), reduced by Fraud Losses
allocated to the Certificates since the Cut-Off Date; during the period from the
first anniversary of the Cut-Off Date to (but not including) the fifth
anniversary of the Cut-Off Date, the amount of the Fraud Coverage on the most
recent previous anniversary of the Cut-Off Date (calculated in accordance with
the second sentence of this paragraph) reduced by Fraud Losses allocated to the
Certificates since such anniversary; and during the period on and after the
fifth anniversary of the Cut-Off Date, zero. On each anniversary of the Cut-Off
Date, the Fraud Coverage shall be reduced to the lesser of (i) on the first and
second anniversaries of the Cut-Off Date, 1.00%, and on the third and fourth
anniversaries of the Cut-Off Date, 0.50%, of the aggregate principal balance of
the Mortgage Loans as of the Due Date in the preceding month and (ii) the excess
of the Initial Fraud Coverage over cumulative Fraud Losses allocated to the
Certificates since the Cut-Off Date.
19
The Fraud Coverage may be reduced upon written confirmation from the
Rating Agencies that such reduction will not adversely affect the then current
ratings assigned to the Certificates by the Rating Agencies.
Fraud Loss: A Realized Loss (or portion thereof) with respect to a
Mortgage Loan arising from any action, event or state of facts with respect to
such Mortgage Loan which, because it involved or arose out of any dishonest,
fraudulent, criminal, negligent or knowingly wrongful act, error or omission by
the Mortgagor, originator (or assignee thereof) of such Mortgage Loan, Lender, a
Servicer or the Master Servicer, would result in an exclusion from, denial of,
or defense to coverage which otherwise would be provided by a Primary Insurance
Policy previously issued with respect to such Mortgage Loan.
Xxxxxxx Mac: The entity formerly known as the Federal Home Loan
Mortgage Corporation, or any successor thereto.
Group C-B Certificates: The Class C-B-1, Class C-B-2, Class C-B-3,
Class C-B-4, Class C-B-5 and Class C-B-6 Certificates.
Group C-B Percentage: For any date of determination, the aggregate
Class Principal Balance of the Group C-B Certificates divided by the then
outstanding aggregate Principal Balance of the Mortgage Loans.
Group I Certificates: The Class I-A, Class I-P and Class I-X
Certificates.
Group I Loans: The Mortgage Loans designated on the Mortgage Loan
Schedule as Group I Loans.
Group I Premium Rate Mortgage Loans: The Group I Loans having
Pass-Through Rates greater than or equal to 6.500% per annum.
Group I Senior Liquidation Amount: For any Distribution Date, the sum
of (A) the aggregate, for each Group I Loan which became a Liquidated Mortgage
Loan during the Prior Period, of the lesser of: (i) the Group I Senior
Percentage of the Principal Balance of such Mortgage Loan (exclusive of the
Class I-P Fraction thereof, with respect to any Class I-P Mortgage Loan) and
(ii) the Group I Senior Prepayment Percentage of the Liquidation Principal with
respect to such Mortgage Loan and (B) the Group I Senior Prepayment Percentage
of any Subsequent Recoveries for Loan Group I for such Distribution Date.
Group I Senior Percentage: For any Distribution Date, the lesser of (i)
100% and (ii) the aggregate Class Principal Balance of the Class I-A and
Residual Certificates divided by the aggregate Principal Balance of the Group I
Loans (exclusive of the Class I-P Fraction thereof with respect to any Class I-P
Mortgage Loan), in each case immediately before such Distribution Date.
Group I Senior Prepayment Percentage or Group II Senior Prepayment
Percentage: For any Distribution Date, each of the Group I Senior Prepayment
20
Percentage and the Group II Senior Prepayment Percentage shall equal 100%,
unless (i) the Group I Senior Percentage for such Distribution Date is less than
or equal to the Group I Senior Percentage as of the Closing Date and the Group
II Senior Percentage for such Distribution Date is less than or equal to the
Group II Senior Percentage as of the Closing Date, (ii) such Distribution Date
occurs on or after the fifth anniversary of the first Distribution Date and
(iii) the following tests specified in clauses (a) through (d) are met with
respect to each of Loan Group I and Loan Group II:
(a) the mean aggregate Principal Balance as of the Distribution Date in
each of the immediately preceding six calendar months of the Group I Loans which
were 60 or more days delinquent as of such date (including Mortgage Loans in
bankruptcy or foreclosure and Mortgaged Properties held by REMIC I) is less than
or equal to 50% of the Subordinate Component Balance for Loan Group I as of the
current Distribution Date,
(b) the mean aggregate Principal Balance as of the Distribution Date in
each of the immediately preceding six calendar months of the Group II Loans
which were 60 or more days delinquent as of such date (including Mortgage Loans
in bankruptcy or foreclosure and Mortgaged Properties held by REMIC I) is less
than or equal to 50% of the Subordinate Component Balance for Loan Group II as
of the current Distribution Date,
(c) cumulative Realized Losses on the Group I Loans allocated to the
Group C-B Certificates, as a percentage of the Subordinate Component Balance for
Loan Group I as of the Closing Date, are less than or equal to, for any
Distribution Date (1) before the sixth anniversary of the first Distribution
Date, 30%, (2) on or after the sixth anniversary but before the seventh
anniversary of the first Distribution Date, 35%, (3) on or after the seventh
anniversary but before the eighth anniversary of the first Distribution Date,
40%, (4) on or after the eighth anniversary but before the ninth anniversary of
the first Distribution Date, 45%, and (5) on or after the ninth anniversary of
the first Distribution Date, 50%, and
(d) cumulative Realized Losses on the Group II Loans allocated to the
Group C-B Certificates, as a percentage of the Subordinate Component Balance for
Loan Group II as of the Closing Date, are less than or equal to, for any
Distribution Date (1) before the sixth anniversary of the first Distribution
Date, 30%, (2) on or after the sixth anniversary but before the seventh
anniversary of the first Distribution Date, 35%, (3) on or after the seventh
anniversary but before the eighth anniversary of the first Distribution Date,
40%, (4) on or after the eighth anniversary but before the ninth anniversary of
the first Distribution Date, 45%, and (5) on or after the ninth anniversary of
the first Distribution Date, 50%,
in which case the Group I Senior Prepayment Percentage and the Group II
Senior Prepayment Percentage shall be calculated as follows: (1) for any such
Distribution Date on or after the fifth anniversary but before the sixth
anniversary of the first Distribution Date, the Group I Senior Percentage or the
Group II Senior Percentage, as applicable, for such Distribution Date plus 70%
of the Subordinate Percentage for the related Loan Group for such Distribution
21
Date; (2) for any such Distribution Date on or after the sixth anniversary but
before the seventh anniversary of the first Distribution Date, the Group I
Senior Percentage or the Group II Senior Percentage, as applicable, for such
Distribution Date plus 60% of the Subordinate Percentage for the related Loan
Group for such Distribution Date; (3) for any such Distribution Date on or after
the seventh anniversary but before the eighth anniversary of the first
Distribution Date, the Group I Senior Percentage or the Group II Senior
Percentage, as applicable, for such Distribution Date plus 40% of the
Subordinate Percentage for the related Loan Group for such Distribution Date;
(4) for any such Distribution Date on or after the eighth anniversary but before
the ninth anniversary of the first Distribution Date, the Group I Senior
Percentage or the Group II Senior Percentage, as applicable, for such
Distribution Date plus 20% of the Subordinate Percentage for the related Loan
Group for such Distribution Date; and (5) for any such Distribution Date
thereafter, the Group I Senior Percentage or the Group II Senior Percentage, as
applicable, for such Distribution Date.
If on any Distribution Date the allocation to the Group I or Group II
Certificates of Principal Prepayments in the percentage required would reduce
the Class Principal Balance of such Certificates below zero, the Group I Senior
Prepayment Percentage or the Group II Senior Prepayment Percentage, as
applicable, for such Distribution Date shall be limited to the percentage
necessary to reduce such Class Principal Balance to zero. Notwithstanding the
foregoing, however, on each Distribution Date, the Class I-P Certificates shall
receive the applicable Class P Fraction of all principal payments, including,
without limitation, Principal Prepayments, received in respect of Class I-P
Mortgage Loans, and the Class II-P Certificates shall receive the applicable
Class P Fraction of all principal payments, including, without limitation,
Principal Prepayments, received in respect of Class II-P Mortgage Loans.
Group I Senior Principal Distribution Amount: For any Distribution
Date, an amount equal to the sum of (a) the Group I Senior Percentage of the
Principal Payment Amount for Loan Group I (exclusive of the portion thereof
attributable to principal distributions to the Class I-P Certificates pursuant
to clause (a)(i) of the definition of "REMIC II Distribution Amount"), (b) the
Group I Senior Prepayment Percentage of the Principal Prepayment Amount for Loan
Group I (exclusive of the portion thereof attributable to principal
distributions to the Class I-P Certificates pursuant to clauses (a)(i) of the
definition of "REMIC II Distribution Amount") and (c) the Group I Senior
Liquidation Amount.
Group I Subordinate Balance: For any date of determination, an amount
equal to the then outstanding aggregate Principal Balance of the Group I Loans
reduced by the aggregate Class Principal Balance of the Class I-A, Class I-P and
Residual Certificates.
Group I Subordinate Percentage: For any Distribution Date, the excess
of 100% over the Group I Senior Percentage for such date.
Group I Subordinate Prepayment Percentage: For any Distribution Date,
the excess of 100% over the Group I Senior Prepayment Percentage for such
Distribution Date; provided, however, that if the aggregate Class Principal
Balance of the Class I-A and Residual Certificates has been reduced to zero,
then the Group I Subordinate Prepayment Percentage shall equal 100%.
Group II Certificates: The Class II-A, Class II-P and Class II-X
Certificates.
22
Group II Loans: The Mortgage Loans designated on the Mortgage Loan
Schedule as Group II Loans.
Group II Premium Rate Mortgage Loans: The Group II Loans having
Pass-Through Rates greater than or equal to 7.000% per annum.
Group II Senior Liquidation Amount: For any Distribution Date, the sum
of (A) the aggregate, for each Group II Loan which became a Liquidated Mortgage
Loan during the Prior Period, of the lesser of: (i) the Group II Senior
Percentage of the Principal Balance of such Mortgage Loan (exclusive of the
Class II-P Fraction thereof, with respect to any Class II-P Mortgage Loan) and
(ii) the Group II Senior Prepayment Percentage of the Liquidation Principal with
respect to such Mortgage Loan and (B) the Group II Senior Prepayment Percentage
of any Subsequent Recoveries for Loan Group II for such Distribution Date.
Group II Senior Percentage: For any Distribution Date, the lesser of
(i) 100% and (ii) the Class Principal Balance of the Class II-A Certificates
divided by the aggregate Class Principal Balance of the Group II Loans
(exclusive of the Class II-P Fraction thereof, with respect to any Class II-P
Mortgage Loan), in each case immediately before such Distribution Date.
Group II Senior Prepayment Percentage: See the definition of "Group I
Senior Prepayment Percentage or Group II Senior Prepayment Percentage."
Group II Senior Principal Distribution Amount: For any Distribution
Date, an amount equal to the sum of (a) the Group II Senior Percentage of the
Principal Payment Amount for Loan Group II (exclusive of the portion thereof
attributable to principal distributions to the Class II-P Certificates pursuant
to clause (b)(i) of the definition of "REMIC II Distribution Amount"), (b) the
Group II Senior Prepayment Percentage of the Principal Prepayment Amount for
Loan Group II (exclusive of the portion thereof attributable to principal
distributions to the Class II-P Certificates pursuant to clause (b)(i) of the
definition of "REMIC II Distribution Amount") and (c) the Group II Senior
Liquidation Amount.
Group II Subordinate Balance: For any date of determination, an amount
equal to the then outstanding aggregate Principal Balance of the Group II Loans
reduced by the aggregate Class Principal Balance of the Class II-A and Class
II-P Certificates.
Group II Subordinate Percentage: For any Distribution Date, the excess
of 100% over the Group II Senior Percentage for such date.
Group II Subordinate Prepayment Percentage: For any Distribution Date,
the excess of 100% over the Group II Senior Prepayment Percentage for such
Distribution Date; provided, however, that if the Class Principal Balance of the
Class II-A Certificates has been reduced to zero, then the Group II Subordinate
Prepayment Percentage shall equal 100%.
Indirect DTC Participants: Entities such as banks, brokers, dealers or
trust companies, that clear through or maintain a custodial relationship with a
DTC Participant, either directly or indirectly.
23
Initial Custodial Agreement: The Custodial Agreement, dated the date
hereof, among the Trustee, the Master Servicer and the Initial Custodian.
Initial Custodian: Washington Mutual Bank fsb, which has been
designated by the Company to be appointed by the Trustee to act as Custodian,
and whose appointment has been approved by the Master Servicer.
Insurance Proceeds: Amounts paid or payable by the insurer under the
Surety Bonds (with respect to any Additional Collateral Loan), any Primary
Insurance Policy or any other insurance policy (including any replacement policy
permitted under this Agreement) covering any Mortgage Loan or Mortgaged
Property, including, without limitation, any hazard insurance policy required
pursuant to Section 3.07, any title insurance policy required pursuant to
Section 2.08 and any FHA insurance policy or VA guaranty.
Interest Distribution Amount: For any Distribution Date, for any Class
of REMIC I Regular Interests or Certificates and for the Class R-1 Residual
Interest, the amount of interest accrued during the Prior Period, at the related
Certificate Interest Rate for such Class for such Distribution Date, on the
respective Class Principal Balance or Class Notional Amount immediately before
such Distribution Date, reduced by Uncompensated Interest Shortfall and the
interest portion of Realized Losses allocated to such Class on such Distribution
Date pursuant to the definitions of "Uncompensated Interest Shortfall" and
"Realized Loss," respectively. The computation of interest accrued shall be made
on the basis of a 360-day year of twelve 30-day months. The Interest
Distribution Amounts for the Class P-M Regular Interests and the Class P
Certificates shall equal zero.
Interest Transfer Amount: On any Distribution Date for an
Undercollateralized Group, an amount equal to one month's interest on the
applicable Principal Transfer Amount at 6.500% per annum if the
Undercollateralized Group is Loan Group I and at 7.000% per annum if the
Undercollateralized Group is Loan Group II, plus any interest accrued on the
Senior Certificates related to such Undercollateralized Group remaining unpaid
from prior Distribution Dates.
Investment Account: The commingled account (which shall be commingled
only with investment accounts related to series of pass-through certificates
with a class of certificates which has a rating equal to the highest of the
Ratings of the Certificates) maintained by the Master Servicer in the trust
department of the Investment Depository pursuant to Section 3.03 and which bears
a designation acceptable to the Rating Agencies.
Investment Depository: JPMorgan Chase Bank, or another bank or trust
company designated from time to time by the Master Servicer. The Investment
Depository shall at all times be an Eligible Institution.
Junior Subordinate Certificates: The Class C-B-4, Class C-B-5 and Class
C-B-6 Certificates.
Last Scheduled Distribution Date: With respect to any Class of
Certificates, the Final Maturity Date for such Class; provided, however, that
with respect to the Group I Certificates, the "Last Scheduled Distribution Date"
shall be the Distribution Date in November 2018.
24
Lender: An institution from which the Company purchased any Mortgage
Loans pursuant to a Selling and Servicing Contract.
Liquidated Mortgage Loan: A Mortgage Loan (other than a Mortgage Loan
with respect to which a Payoff has been made) for which the Master Servicer or
the applicable Servicer has determined in accordance with its customary
servicing practices that it has received all amounts which it expects to recover
from or on account of such Mortgage Loan, whether from Insurance Proceeds,
Liquidation Proceeds or otherwise, including, in the case of Additional
Collateral Loans, any proceeds realized with respect to any Additional
Collateral, including any payment under the Surety Bonds. For purposes of this
definition, acquisition of a Mortgaged Property by the Trust shall not
constitute final liquidation of the related Mortgage Loan.
Liquidation Principal: The principal portion of Liquidation Proceeds
received (exclusive of the portion thereof attributable to distributions to the
Class P Certificates pursuant to clauses (a)(i) and (b)(i) of the definition of
"REMIC II Distribution Amount") with respect to each Mortgage Loan which became
a Liquidated Mortgage Loan (but not in excess of the principal balance thereof)
during the Prior Period.
Liquidation Proceeds: Amounts after deduction of amounts reimbursable
under Section 3.05(a)(i) and (ii) received and retained in connection with the
liquidation of defaulted Mortgage Loans, whether through foreclosure or
otherwise (including, in the case of Additional Collateral Loans, any proceeds
realized with respect to any Additional Collateral), other than any Subsequent
Recoveries.
Loan Group: Loan Group I or Loan Group II, as applicable.
Loan Group I: The group of Mortgage Loans comprised of the Group I
Loans.
Loan Group II: The group of Mortgage Loans comprised of the Group II
Loans.
Loan-to-Value Ratio: The original principal amount of a Mortgage Loan
divided by the Original Value; provided, however, that references to "current
Loan-to-Value Ratio" or "Loan-to-Value Ratio as of the Cut-Off Date" in Section
2.08 shall be deemed to mean the then current Principal Balance of a Mortgage
Loan divided by the Original Value.
Lowest Class B Owner: An owner unaffiliated with the Company or the
Master Servicer of (i) a 100% interest in the Class of Group C-B Certificates
with the lowest priority or (ii) a 100% interest in a class of securities
representing such interest in such Class specified in clause (i) above.
Master Servicer: The Company, or any successor thereto appointed as
provided pursuant to Section 7.02, acting to service and administer the Mortgage
Loans pursuant to Section 3.01.
Master Servicer Business Day: Any day other than a Saturday, a Sunday,
or a day on which banking institutions in Chicago, Illinois are authorized or
obligated by law or executive order to be closed.
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Master Servicing Fee: The fee charged by the Master Servicer for
supervising the mortgage servicing and advancing certain expenses, equal to a
per annum rate set forth for each Mortgage Loan in Exhibit D on the outstanding
Principal Balance of such Mortgage Loan, payable monthly from the Certificate
Account, the Investment Account or the Custodial Account for P&I.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor thereto.
MERS Loan: Any Mortgage Loan registered on the MERS(R) System for which
MERS appears as the mortgagee of record on the Mortgage or on an assignment
thereof.
MERS(R) System: The system of electronically recording transfers of
Mortgages maintained by MERS.
MIN: The Mortgage Identification Number for a MERS Loan.
MOM Loan: A Mortgage Loan that was registered on the MERS(R) System at
the time of origination thereof and for which MERS appears as the mortgagee of
record on the Mortgage.
Monthly P&I Advance: An advance of funds by the Master Servicer
pursuant to Section 4.02 or a Servicer pursuant to its Selling and Servicing
Contract to cover delinquent principal and interest installments.
Monthly Payment: The scheduled payment of principal and interest on a
Mortgage Loan (including any amounts due from a Buydown Fund, if any) which is
due on the related Due Date for such Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note.
Mortgage File: The following documents or instruments with respect to
each Mortgage Loan transferred and assigned by the Company pursuant to Section
2.04, (X) with respect to each Mortgage Loan that is not a Cooperative Loan:
(i) The original Mortgage Note endorsed (A) in blank, without recourse, or (B)
to "U.S. Bank National Association, as Custodian/Trustee, without recourse" or
to "Washington Mutual MSC Mortgage Pass-Through Certificates Series 2004-RA1
Trust, without recourse" and all intervening endorsements evidencing a complete
chain of endorsements from the originator to the Trustee or the Trust, as
applicable, or, in the event of any Destroyed Mortgage Note, a copy or a
duplicate original of the Mortgage Note (or portion thereof, as applicable),
together with an original lost note affidavit from the originator of the
Mortgage Loan or the Company (or any affiliate of the Company from which the
Company acquired the Mortgage Loan), as applicable, stating that the original
Mortgage Note (or portion thereof, as applicable) was lost, misplaced or
destroyed, together with a copy of the Mortgage Note (or portion thereof, as
applicable); provided, however, that in the event the Company acquired the
Mortgage Loan from an affiliate of the Company, then the Mortgage Note (or
portion thereof, as applicable) need not be endorsed in blank or to U.S. Bank
National Association or the Trust as provided above (but, if not so endorsed,
shall be made payable to, or endorsed by the mortgagee named therein to, such
affiliate of the Company);
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(ii) The Buydown Agreement, if applicable;
(iii) A Mortgage that is either
(1) (x) the original recorded Mortgage with evidence of recording
thereon for the jurisdiction in which the Mortgaged Property is located (which
original recorded Mortgage, in the case of a MOM Loan, shall set forth the MIN
and shall indicate that the Mortgage Loan is a MOM Loan), (y) unless the
Mortgage Loan is a MERS Loan, an original Mortgage assignment thereof duly
executed and acknowledged in recordable form (A) in blank or (B) to "U.S. Bank
National Association, as Custodian/Trustee," or to "Washington Mutual MSC
Mortgage Pass-Through Certificates Series 2004-RA1 Trust," and (z) unless the
Mortgage Loan is a MOM Loan, recorded originals of all intervening assignments
evidencing a complete chain of assignment, from the originator to the name
holder or the payee endorsing the related Mortgage Note (or, in the case of a
MERS Loan other than a MOM Loan, from the originator to MERS); or
(2) (x) a copy (which may be in electronic form) of the Mortgage (which
Mortgage, in the case of a MOM Loan, shall set forth the MIN and shall indicate
that the Mortgage Loan is a MOM Loan) which represents a true and correct
reproduction of the original Mortgage and which has either been certified (i) on
the face thereof by the public recording office in the appropriate jurisdiction
in which the Mortgaged Property is located, or (ii) by the originator, the
related Lender or the escrow or title company which provided closing services in
connection with such Mortgage Loan as a true and correct copy the original of
which has been sent for recordation, (y) unless the Mortgage Loan is a MERS
Loan, an original Mortgage assignment thereof duly executed and acknowledged in
recordable form (A) in blank or (B) to "U.S. Bank National Association, as
Custodian/Trustee," or to "Washington Mutual MSC Mortgage Pass-Through
Certificates Series 2004-RA1 Trust," and (z) unless the Mortgage Loan is a MOM
Loan, true and correct copies, certified by the applicable county recorder or by
the originator or Lender as described above, of all intervening assignments
evidencing a complete chain of assignment from the originator to the name holder
or the payee endorsing the related Mortgage Note (or, in the case of a MERS Loan
other than a MOM Loan, from the originator to MERS);
provided, however, that in the event the Company acquired the Mortgage
Loan from an affiliate of the Company, then the Mortgage File need not include a
Mortgage assignment executed in blank or to U.S. Bank National Association or
the Trust as provided in clause (X)(iii)(1)(y) or (X)(iii)(2)(y) above, as
applicable (but the Mortgage File shall, unless the Mortgage Loan was originated
by such affiliate of the Company, include an intervening Mortgage assignment to
such affiliate as provided in clause (X)(iii)(1)(z) or (X)(iii)(2)(z) above, as
applicable);
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(iv) For any Mortgage Loan that has been modified or amended, the original
instrument or instruments effecting such modification or amendment; and
(v) For each Additional Collateral Loan, a copy of the security
agreement or guaranty constituting part of the related Additional Collateral;
and (Y) with respect to each Cooperative Loan:
(i) the original Mortgage Note endorsed (A) in blank, without recourse, or (B)
to "U.S. Bank National Association, as Custodian/Trustee, without recourse" or
to "Washington Mutual MSC Mortgage Pass-Through Certificates Series 2004-RA1
Trust, without recourse" and all intervening endorsements evidencing a complete
chain of endorsements, from the originator to the Trustee or the Trust, as
applicable, or, in the event of any Destroyed Mortgage Note, a copy or a
duplicate original of the Mortgage Note (or portion thereof, as applicable),
together with an original lost note affidavit from the originator of the
Cooperative Loan or the Company (or any affiliate of the Company from which the
Company acquired the Mortgage Loan), as applicable, stating that the original
Mortgage Note (or portion thereof, as applicable) was lost, misplaced or
destroyed, together with a copy of the Mortgage Note (or portion thereof, as
applicable); provided, however, that in the event the Company acquired the
Cooperative Loan from an affiliate of the Company, then the Mortgage Note need
not be endorsed in blank or to U.S. Bank National Association or the Trust as
provided above (but, if not so endorsed, shall be made payable to, or endorsed
by the originator or successor lender named therein to, such affiliate of the
Company);
(ii) A counterpart of the Cooperative Lease and the Assignment of Proprietary
Lease to the originator of the Cooperative Loan;
(iii) The related Cooperative Stock Certificate, representing the related
Cooperative Stock pledged with respect to such Cooperative Loan, together with
an undated stock power (or other similar instrument) executed in blank;
(iv) The Recognition Agreement;
(v) The Security Agreement;
(vi) Copies of the original UCC financing statement, and any continuation
statements, filed by the originator of such Cooperative Loan as secured party,
each with evidence of recording thereof, evidencing the interest of the
originator under the Security Agreement and the Assignment of Proprietary Lease;
(vii) Copies of the filed UCC assignments or amendments of the security interest
referenced in clause (vi) above showing an unbroken chain of title from the
originator to the Trust, each with evidence of recording thereof, evidencing the
interest of the assignee under the Security Agreement and the Assignment of
Proprietary Lease;
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(viii) An executed assignment of the interest of the originator in the Security
Agreement, the Assignment of Proprietary Lease and the Recognition Agreement,
showing an unbroken chain of title from the originator to the Trust;
(ix) For any Cooperative Loan that has been modified or amended, the original
instrument or instruments effecting such modification or amendment; and
(x) For each Additional Collateral Loan, a copy of the security agreement or
guaranty constituting part of the related Additional Collateral.
provided, however, that in the event the Company acquired the
Cooperative Loan from an affiliate of the Company, then the Mortgage File need
not include (1) a UCC assignment or amendment of the security interest
referenced in clause (Y)(vi) above to the Trust as provided in clause (Y)(vii)
above (but the Mortgage File shall, unless the Cooperative Loan was originated
by such affiliate of the Company, include a UCC assignment or amendment of such
security interest to such affiliate) or (2) an assignment of the interest of the
originator in the Security Agreement, the Assignment of Proprietary Lease and
the Recognition Agreement to the Trust as provided in clause (Y)(viii) above
(but the Mortgage File shall, unless the Cooperative Loan was originated by such
affiliate of the Company, include an assignment of such interest to such
affiliate).
Mortgage Interest Rate: For any Mortgage Loan, the per annum rate at
which interest accrues on such Mortgage Loan pursuant to the terms of the
related Mortgage Note.
Mortgage Loan Schedule: The schedule, as amended from time to time, of
Mortgage Loans attached hereto as Exhibit D, which shall set forth as to each
Mortgage Loan the following, among other things:
(i) its loan number,
(ii) the address of the Mortgaged Property,
(iii) the name of the Mortgagor,
(iv) the Original Value of the property subject to the Mortgage,
(v) the Principal Balance as of the Cut-Off Date,
(vi) the Mortgage Interest Rate borne by the Mortgage Note,
(vii) whether a Primary Insurance Policy is in effect as of the Cut-Off Date,
and, if so, whether such Primary Insurance Policy is a Special Primary Insurance
Policy,
(viii) the maturity of the Mortgage Note,
(ix) the Servicing Fee and the Master Servicing Fee,
(x) its Loan Group, and
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(xi) whether it imposes penalties for early prepayments.
In addition, the Mortgage Loan Schedule will identify any Mortgage
Loans that are Additional Collateral Loans.
Mortgage Loans: The mortgage loans and cooperative loans (if any)
listed on the Mortgage Loan Schedule and transferred and assigned to the Trust
pursuant hereto. With respect to each Mortgage Loan that is a Cooperative Loan,
"Mortgage Loan" shall include, but not be limited to, the Mortgage Note,
Security Agreement, Assignment of Proprietary Lease, Recognition Agreement,
Cooperative Stock Certificate and Cooperative Lease and (with respect to each
Additional Collateral Loan) each Additional Collateral Document, and, with
respect to each Mortgage Loan other than a Cooperative Loan, "Mortgage Loan"
shall include, but not be limited to the Mortgage Note and the related Mortgage
and (with respect to each Additional Collateral Loan) each Additional Collateral
Document.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
Mortgage Pool: All of the Mortgage Loans.
Mortgage Pool Assets: (i) The Mortgage Loans (including all Substitute
Mortgage Loans) identified on the Mortgage Loan Schedule, and all rights
pertaining thereto, including the related Mortgage Notes, Mortgages, Additional
Collateral Documents, Cooperative Stock Certificates, Cooperative Leases,
Security Agreements, Assignments of Proprietary Lease, and Recognition
Agreements, and all payments and distributions with respect to the Mortgage
Loans payable on and after the Cut-Off Date; (ii) the Certificate Account, the
Investment Account, and all money, instruments, investment property, and other
property credited thereto, carried therein, or deposited therein (except amounts
constituting the Master Servicing Fee or the Servicing Fee); (iii) the Custodial
Accounts for P&I, the Custodial Accounts for Reserves, any Buydown Fund Account
(to the extent of the amounts on deposit or other property therein attributable
to the Mortgage Loans), and all money, instruments, investment property, and
other property credited thereto, carried therein, or deposited therein (except
amounts constituting the Master Servicing Fee or the Servicing Fee); (iv) all
property that secured a Mortgage Loan and that has been acquired by foreclosure
or deed in lieu of foreclosure or, in the case of a Cooperative Loan, a similar
form of conversion, after the Cut-Off Date; and (v) each Surety Bond (with
respect to the Additional Collateral Loans), FHA insurance policy, Primary
Insurance Policy, VA guaranty, and other insurance policy related to any
Mortgage Loan, and all amounts paid or payable thereunder and all proceeds
thereof.
Mortgaged Property: With respect to any Mortgage Loan, other than a
Cooperative Loan, the real property, together with improvements thereto, and,
with respect to any Cooperative Loan, the related Cooperative Stock and
Cooperative Lease, securing the indebtedness of the Mortgagor under the related
Mortgage Loan. "Mortgaged Property" shall also refer to property which once
secured the indebtedness of a Mortgagor under the related Mortgage Loan but
which was acquired by the Trust upon foreclosure or other liquidation of such
Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
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Nonrecoverable Advance: With respect to any Mortgage Loan, any advance
which the Master Servicer shall determine to be a Nonrecoverable Advance
pursuant to Section 4.03 and which was, or is proposed to be, made by (i) the
Master Servicer or (ii) a Servicer pursuant to its Selling and Servicing
Contract.
Non-U.S. Person: A Person that is not a U.S. Person.
Notice Addresses: (a) In the case of the Company, 00 Xxxxx Xxxxxxx
Xxxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000, Attention: Master Servicing Department,
with a copy to: Washington Mutual Legal Department, 1201 Third Avenue, WMT 1706,
Xxxxxxx, XX 00000, Attention: WMMSC, or such other address as may hereafter be
furnished to the Trustee in writing by the Company, (b) in the case of the
Trustee, at its Corporate Trust Office, or such other address as may hereafter
be furnished to the Master Servicer in writing by the Trustee, (c) in the case
of the Delaware Trustee, 0000 Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000, or such other
address as may hereafter be furnished to the Master Servicer in writing by the
Delaware Trustee, (d) in the case of the Trust, c/o U.S. Bank National
Association, at the Corporate Trust Office, or such other address as may
hereafter be furnished to the Master Servicer in writing by the Trustee, (e) in
the case of the Certificate Registrar, at its Corporate Trust Office, or such
other address as may hereafter be furnished to the Trustee in writing by the
Certificate Registrar, (f) in the case of S&P, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 10041-0003, Attention: Xxxxx Xxxxxx, or such other address as may
hereafter be furnished to the Trustee and Master Servicer in writing by S&P and
(g) in the case of Fitch, 0 Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx Xxxxxxxx, or such other address as may hereafter be furnished
to the Trustee and Master Servicer in writing by Fitch.
OTS: The Office of Thrift Supervision, or any successor thereto.
Officer's Certificate: A certificate signed by the Chairman of the
Board, the President, a Vice President, or the Treasurer of the Master Servicer
and delivered to the Trustee or the Delaware Trustee, as applicable.
Opinion of Counsel: A written opinion of counsel, who shall be
reasonably acceptable to the Trustee or the Delaware Trustee, as applicable, and
who may be counsel (including in-house counsel) for the Company or the Master
Servicer.
Original Trust Agreement: The Trust Agreement, dated as of April 1,
2004, between the Company and the Delaware Trustee, providing for the creation
of the Trust.
Original Value: With respect to any Mortgage Loan other than a Mortgage
Loan originated for the purpose of refinancing an existing mortgage debt, the
lesser of (a) the Appraised Value (if any) of the Mortgaged Property at the time
the Mortgage Loan was originated or (b) the purchase price paid for the
Mortgaged Property by the Mortgagor. With respect to a Mortgage Loan originated
for the purpose of refinancing existing mortgage debt, the Original Value shall
be equal to the Appraised Value of the Mortgaged Property. "Original Value"
shall exclude the value of any Additional Collateral.
31
Overcollateralized Group: Either of Loan Group I or Loan Group II, if
on any Distribution Date such Loan Group is not an Undercollateralized Group and
the other Loan Group is an Undercollateralized Group.
Ownership Interest: With respect to any Residual Certificate, any
ownership or security interest in such Residual Certificate, including any
interest in a Residual Certificate as the Holder thereof and any other interest
therein whether direct or indirect, legal or beneficial, as owner or as pledgee.
Pass-Through Entity: Any regulated investment company, real estate
investment trust, common trust fund, partnership, trust or estate, and any
organization to which Section 1381 of the Code applies.
Pass-Through Rate: For each Mortgage Loan, a per annum rate equal to
the Mortgage Interest Rate for such Mortgage Loan less the per annum percentage
rates related to each of (i) the Servicing Fee for such Mortgage Loan, (ii) the
Master Servicing Fee for such Mortgage Loan and (iii) if such Mortgage Loan was
covered by a Special Primary Insurance Policy on the Closing Date (even if no
longer so covered), the applicable Special Primary Insurance Premium. For each
Mortgage Loan, any calculation of monthly interest at such rate shall be based
upon annual interest at such rate (computed on the basis of a 360-day year of
twelve 30-day months) on the unpaid Principal Balance of such Mortgage Loan
divided by twelve, and any calculation of interest at such rate by reason of a
Payoff shall be based upon annual interest at such rate on the outstanding
Principal Balance of such Mortgage Loan multiplied by a fraction, the numerator
of which is the number of days elapsed from the Due Date of the last scheduled
payment of principal and interest to, but not including, the date of such
Payoff, and the denominator of which is (a) for Payoffs received on a Due Date,
360, and (b) for all other Payoffs, 365.
Paying Agent: Any paying agent appointed by the Trustee pursuant to
Section 8.12.
Payoff: Any Mortgagor payment of principal on a Mortgage Loan equal to
the entire outstanding Principal Balance of such Mortgage Loan, if received in
advance of the last scheduled Due Date for such Mortgage Loan and accompanied by
an amount of interest equal to accrued unpaid interest on the Mortgage Loan to
the date of such payment-in-full. (Prepayment penalties are not payments of
principal and hence Payoffs do not include prepayment penalties.)
Payoff Earnings: For any Distribution Date with respect to each
Mortgage Loan on which a Payoff was received by the Master Servicer during the
Payoff Period, the aggregate of the interest earned by the Master Servicer from
investment of each such Payoff from the date of receipt of such Payoff until the
Business Day immediately preceding the related Distribution Date (net of
investment losses).
Payoff Interest: For any Distribution Date with respect to a Mortgage
Loan for which a Payoff was received on or after the first calendar day of the
month of such Distribution Date and before the 15th calendar day of such month,
an amount of interest thereon at the applicable Pass-Through Rate from the first
day of the month of distribution through the day of receipt thereof; to the
extent (together with Payoff Earnings and the aggregate Master Servicing Fee)
32
not required to be distributed as Compensating Interest on such Distribution
Date, Payoff Interest shall be payable to the Master Servicer as additional
servicing compensation.
Payoff Period: For the first Distribution Date, the period from the
Cut-Off Date through May 14, 2004, inclusive; and for any Distribution Date
thereafter, the period from the 15th day of the Prior Period through the 14th
day of the month of such Distribution Date, inclusive.
Percentage Interest: (a) With respect to the right of each Certificate
of a particular Class in the distributions allocated to such Class, "Percentage
Interest" shall mean the percentage equal to:
(i) with respect to any Certificate (other than the Residual and Class X
Certificates), its Certificate Principal Balance divided by the applicable Class
Principal Balance;
(ii) with respect to any Class X Certificate, the portion of the respective
Class X Notional Amount evidenced by such Certificate divided by the respective
Class X Notional Amount; and
(iii) with respect to any Residual Certificate, the percentage set forth on the
face of such Certificate.
(b) With respect to the rights of each Certificate in connection with
Sections 5.09, 7.01, 8.01(c), 8.02, 8.07, 10.01 and 10.03, "Percentage Interest"
shall mean the percentage equal to:
(i) with respect to any Certificate (other than the Residual and the Class X
Certificates), the product of (x) ninety-eight percent (98%) and (y) its
Certificate Principal Balance divided by the Aggregate Certificate Principal
Balance of the Certificates; provided, however, that the percentage in clause
(x) above shall be increased by one percent (1%) upon the retirement of each
Class of Class X Certificates.
(ii) with respect to any Class X Certificate, one percent (1%) of such
Certificate's Percentage Interest as calculated by paragraph (a)(ii) of this
definition; and
(iii) with respect to any Residual Certificate, zero.
Permitted Transferee: With respect to the holding or ownership of any
Residual Certificate, any Person other than (i) the United States, a State or
any political subdivision thereof, or any agency or instrumentality of any of
the foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Code Section 521) which is
exempt from the taxes imposed by Chapter 1 of the Code (unless such organization
is subject to the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Code Section 1381(a)(2)(C), (v) any "electing large partnership" as defined in
Section 775(a) of the Code, (vi) any Person from whom the Trustee has not
received an affidavit to the effect that it is not a "disqualified organization"
within the meaning of Section 860E(e)(5) of the Code, and (vii) any other Person
so designated by the Company based upon an Opinion of Counsel that the transfer
of an Ownership Interest in a Residual Certificate to such Person may cause
REMIC I or REMIC II to fail to qualify as a REMIC at any time that the
Certificates are outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in Code Section
33
7701 or successor provisions. A corporation shall not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax, and, with the exception of
the Xxxxxxx Mac, a majority of its board of directors is not selected by such
governmental unit.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Prepaid Monthly Payment: Any Monthly Payment received prior to its
scheduled Due Date, which is intended to be applied to a Mortgage Loan on its
scheduled Due Date and held in the related Custodial Account for P&I until the
Withdrawal Date following its scheduled Due Date.
Primary Insurance Policy: A policy of mortgage guaranty insurance, if
any, on an individual Mortgage Loan or on pools of mortgage loans that include
an individual Mortgage Loan, providing coverage as required by Section 2.08(xi)
(including any Special Primary Insurance Policy).
Principal Balance: Except as used in Sections 2.07, 3.09 and 9.01 and
for purposes of the definition of Purchase Price, at the time of any
determination, the principal balance of a Mortgage Loan remaining to be paid at
the close of business on the Cut-Off Date, after application of all scheduled
principal payments due on or before the Cut-Off Date, whether or not received,
reduced by all amounts distributed or (except when such determination occurs
earlier in the month than the Distribution Date) to be distributed to
Certificateholders through the Distribution Date in the month of determination
that are reported as allocable to principal of such Mortgage Loan.
For purposes of the definition of Purchase Price and as used in
Sections 2.07, 3.09 and 9.01, at the time of any determination, the principal
balance of a Mortgage Loan remaining to be paid at the close of business on the
Cut-Off Date, after deduction of all scheduled principal payments due on or
before the Cut-Off Date, whether or not received, reduced by all amounts
distributed or to be distributed to Certificateholders through the Distribution
Date in the month of determination that are reported as allocable to principal
of such Mortgage Loan.
In the case of a Substitute Mortgage Loan, "Principal Balance" shall
mean, at the time of any determination, the principal balance of such Substitute
Mortgage Loan transferred to the Trust, on the date of substitution, reduced by
all amounts distributed or to be distributed to Certificateholders through the
Distribution Date in the month of determination that are reported as allocable
to principal of such Substitute Mortgage Loan.
The Principal Balance of a Mortgage Loan (including a Substitute
Mortgage Loan) shall not be adjusted solely by reason of any bankruptcy or
34
similar proceeding or any moratorium or similar waiver or grace period. Whenever
a Realized Loss has been incurred with respect to a Mortgage Loan during a
calendar month, the Principal Balance of such Mortgage Loan shall be reduced by
the amount of such Realized Loss as of the Due Date next following the end of
such calendar month.
Principal Payment: Any payment of principal on a Mortgage Loan other
than a Principal Prepayment.
Principal Payment Amount: For any Distribution Date and for any Loan
Group, the sum with respect to the Mortgage Loans in such Loan Group of (i) the
scheduled principal payments on the Mortgage Loans due on the related Due Date,
(ii) the principal portion of proceeds received with respect to any Mortgage
Loan which was purchased or repurchased pursuant to a Purchase Obligation or as
permitted by this Agreement during the Prior Period and (iii) any other
unscheduled payments of principal which were received with respect to any
Mortgage Loan during the Prior Period, other than Payoffs, Curtailments,
Liquidation Principal and Subsequent Recoveries.
Principal Prepayment: Any payment of principal on a Mortgage Loan which
constitutes a Payoff or a Curtailment.
Principal Prepayment Amount: For any Distribution Date and for any Loan
Group, the sum of (a) with respect to the Mortgage Loans in such Loan Group (i)
Curtailments received during the Prior Period from such Mortgage Loans and (ii)
Payoffs received during the Payoff Period from such Mortgage Loans and (b) for
Loan Group II for the first Distribution Date, the Group II Initial Deposit
Amount.
Principal Transfer Amount: For any Distribution Date for an
Undercollateralized Group, the excess, if any, of the Class Principal Balance of
the Class A Certificates related to such Undercollateralized Group over the
aggregate Principal Balance of the Mortgage Loans in such Loan Group (less the
applicable Class P Fraction thereof with respect to any Class P Mortgage Loans
in such Loan Group), in each case immediately prior to such Distribution Date.
Prior Period: With respect to any Distribution Date, the calendar month
immediately preceding such Distribution Date.
Pro Rata Allocation: The allocation of the principal portion of
Realized Losses to all Classes of Certificates (other than the Class R and Class
P Certificates) pro rata according to their respective Class Principal Balances
in reduction thereof (except if the loss is recognized with respect to a Class P
Mortgage Loan, in which case the applicable Class P Fraction of such loss shall
first be allocated to the Class P Certificates, and the remainder of such loss
shall be allocated as set forth above), and the allocation of the interest
portion of Realized Losses to all Classes of Certificates (other than the Class
R and Class P Certificates) pro rata according to the amount of interest accrued
but unpaid on each such Class, in reduction thereof, and then to such Classes
(other than the Class R, Class P and Class X Certificates) pro rata according to
their respective Class Principal Balances in reduction thereof.
Prospectus: The Prospectus, dated February 10, 2004, and the Prospectus
Supplement, dated April 27, 2004, of the Company.
35
Purchase Obligation: An obligation of the Company to repurchase
Mortgage Loans under the circumstances and in the manner provided in Section
2.07 or Section 2.08.
Purchase Price: With respect to any Mortgage Loan to be purchased
pursuant to a Purchase Obligation or pursuant to Section 3.01, an amount equal
to the sum of (i) the Principal Balance thereof, (ii) unpaid accrued interest
thereon, if any, during the calendar month in which the date of purchase occurs
to the last day of such month at a rate equal to the applicable Pass-Through
Rate and (iii) with respect to any Mortgage Loan to be purchased pursuant to
Section 2.08, any costs and damages incurred by the Trust in connection with any
violation by such Mortgage Loan of any predatory and abusive lending laws, to
the extent such costs and damages result from a breach of the representation and
warranty made by the Company pursuant to clause (viii) of Section 2.08;
provided, however, that to the extent that such costs and damages constitute a
set-off against the principal balance of the Mortgage Loan, such costs and
damages will not be paid pursuant to this clause (iii), and the amount paid
pursuant to clause (i) above will be calculated without regard to such set-off;
provided, further, that no Mortgage Loan shall be purchased or required to be
purchased pursuant to Section 2.08, or more than two years after the Closing
Date under Section 2.07, unless (a) the Mortgage Loan to be purchased is in
default, or default is in the judgment of the Company reasonably imminent, or
(b) the Company, at its expense, delivers to the Trustee an Opinion of Counsel
addressed to the Trust and the Trustee to the effect that the purchase of such
Mortgage Loan will not give rise to a tax on a prohibited transaction, as
defined in Section 860F(a) of the Code.
Qualified Insurer: A mortgage guaranty insurance company duly qualified
as such under the laws of the states in which the Mortgaged Properties are
located if such qualification is necessary to issue the applicable insurance
policy or bond, duly authorized and licensed in such states to transact the
applicable insurance business and to write the insurance provided by the Primary
Insurance Policies and approved as an insurer by the Master Servicer. A
Qualified Insurer must have the rating required by the Rating Agencies.
Rating Agency: Initially, each of S&P and Fitch and thereafter, each
nationally recognized statistical rating organization that has rated the
Certificates at the request of the Company, or their respective successors in
interest.
Ratings: As of any date of determination, the ratings, if any, of the
Certificates as assigned by the applicable Rating Agencies.
Realized Loss: For any Distribution Date, with respect to any Mortgage
Loan which became a Liquidated Mortgage Loan during the related Prior Period,
the sum of (i) the principal balance of such Mortgage Loan remaining outstanding
and the principal portion of Nonrecoverable Advances actually reimbursed with
respect to such Mortgage Loan (the principal portion of such Realized Loss), and
(ii) the accrued interest on such Mortgage Loan remaining unpaid and the
interest portion of Nonrecoverable Advances actually reimbursed with respect to
such Mortgage Loan (the interest portion of such Realized Loss); provided,
however, that for purposes of allocating Realized Losses to the Certificates
pursuant to this definition of "Realized Loss," the aggregate principal portion
of Realized Losses for any Distribution Date for any Loan Group shall be reduced
by the Cumulative Carry-Forward Subsequent Recoveries Amount for such
Distribution Date for such Loan Group. For any Distribution Date, with respect
to any Mortgage Loan which is not a Liquidated Mortgage Loan, the amount of the
Bankruptcy Loss incurred with respect to such Mortgage Loan as of the related
Due Date.
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Realized Losses on Group I and Group II Loans shall be allocated to the
REMIC I Regular Interests as follows: (1) The interest portion of Realized
Losses on Group I Loans, if any, shall be allocated among the Class I-X-M, Class
C-Y-1 and Class C-Z-1 Regular Interests pro rata according to the amount of
interest accrued but unpaid thereon, in reduction thereof; and (2) the interest
portion of Realized Losses on Group II Loans, if any, shall be allocated among
the Class II-X-M, Class C-Y-2 and Class C-Z-2 Regular Interests pro rata
according to the amount of interest accrued but unpaid thereon, in reduction
thereof. Any interest portion of such Realized Losses in excess of the amount
allocated pursuant to the preceding sentence shall be treated as a principal
portion of Realized Losses not attributable to any specific Mortgage Loan in
such Loan Group and allocated pursuant to the succeeding sentences. The
applicable Class P Fraction of any principal portion of Realized Losses
attributable to a Class P Mortgage Loan shall be allocated to the related Class
P-M Regular Interest in reduction of the Class Principal Balance thereof. The
remainder of the principal portion of Realized Losses with respect to Loan Group
I and Loan Group II shall be allocated to the REMIC I Regular Interests as
follows: (1) The principal portion of Realized Losses on Group I Loans shall be
allocated, first, to the Class C-Y-1 Regular Interest to the extent of the Class
C-Y-1 Principal Reduction Amount in reduction of the Class Principal Balance of
such Regular Interest and, second, the remainder, if any, of such principal
portion of such Realized Losses shall be allocated to the Class C-Z-1 Regular
Interest in reduction of the Class Principal Balance thereof; and (2) the
principal portion of Realized Losses on Group II Loans shall be allocated,
first, to the Class C-Y-2 Regular Interest to the extent of the Class C-Y-2
Principal Reduction Amount in reduction of the Class Principal Balance of such
Regular Interest and, second, the remainder, if any, of such principal portion
of such Realized Losses shall be allocated to the Class C-Z-2 Regular Interest
in reduction of the Class Principal Balance thereof.
Except for Special Hazard Losses in excess of the Special Hazard
Coverage, Fraud Losses in excess of the Fraud Coverage and Bankruptcy Losses in
excess of the Bankruptcy Coverage, Realized Losses on Mortgage Loans in a Loan
Group shall be allocated among the Certificates (i) for Realized Losses
allocable to principal (a) first, to the Class C-B-6 Certificates, until the
Class C-B-6 Principal Balance has been reduced to zero, (b) second, to the Class
C-B-5 Certificates, until the Class C-B-5 Principal Balance has been reduced to
zero, (c) third, to the Class C-B-4 Certificates, until the Class C-B-4
Principal Balance has been reduced to zero, (d) fourth, to the Class C-B-3
Certificates, until the Class C-B-3 Principal Balance has been reduced to zero,
(e) fifth, to the Class C-B-2 Certificates, until the Class C-B-2 Principal
Balance has been reduced to zero, (f) sixth, to the Class C-B-1 Certificates,
until the Class C-B-1 Principal Balance has been reduced to zero, and (g)
seventh, to the Class A Certificates related to such Loan Group, in reduction of
the Class Principal Balance thereof; provided, however, that if the loss is
recognized with respect to a Class P Mortgage Loan, the applicable Class P
Fraction of such loss shall first be allocated to the related Class P
Certificates and the remainder of such loss shall be allocated as set forth
above in this clause (i); and (ii) for Realized Losses allocable to interest (a)
first, to the Class C-B-6 Certificates, in reduction of accrued but unpaid
interest thereon and then in reduction of the Class C-B-6 Principal Balance, (b)
second, to the Class C-B-5 Certificates, in reduction of accrued but unpaid
interest thereon and then in reduction of the Class C-B-5 Principal Balance, (c)
third, to the Class C-B-4 Certificates, in reduction of accrued but unpaid
interest thereon and then in reduction of the Class C-B-4 Principal Balance, (d)
fourth, to the Class C-B-3 Certificates, in reduction of accrued but unpaid
interest thereon and then in reduction of the Class C-B-3 Principal Balance, (e)
fifth, to the Class C-B-2 Certificates, in reduction of accrued but unpaid
37
interest thereon and then in reduction of the Class C-B-2 Principal Balance, (f)
sixth, to the Class C-B-1 Certificates, in reduction of accrued but unpaid
interest thereon and then in reduction of the Class C-B-1 Principal Balance, and
(g) seventh, to the Class A Certificates and Class X Certificates related to
such Loan Group, pro rata according to accrued but unpaid interest on such
Classes, in reduction thereof, and then to those related Class A Certificates,
in reduction of the Class Principal Balances thereof.
For any Distribution Date, any amounts distributed to the Class P
Certificates pursuant to clauses (c)(i) and (c)(ii) of the definition of "REMIC
II Distribution Amount" shall be allocated as a loss to the most junior Class
(or Classes) of Group C-B Certificates, until the Class Principal Balance
thereof has been reduced to zero.
Special Hazard Losses in excess of the Special Hazard Coverage, Fraud
Losses in excess of the Fraud Coverage and Bankruptcy Losses in excess of the
Bankruptcy Coverage shall be allocated among the REMIC II Regular Interests by
Pro Rata Allocation.
On each Distribution Date, after giving effect to the principal
distributions and allocations of losses as provided in this Agreement (without
regard to this paragraph), if the aggregate Class Principal Balance of all
outstanding Classes of Certificates (plus any Cumulative Carry-Forward
Subsequent Recoveries Amount for such Distribution Date for any Loan Group)
exceeds the aggregate principal balance of the Mortgage Loans remaining to be
paid at the close of business on the Cut-Off Date, after deduction of (i) all
principal payments due on or before the Cut-Off Date in respect of each such
Mortgage Loan whether or not paid, and (ii) all amounts of principal in respect
of each Mortgage Loan that have been received or advanced and included in the
REMIC II Available Distribution Amount for the Group I and Group II Certificates
and all losses in respect of each Mortgage Loan that have been allocated to the
Certificates on such Distribution Date or prior Distribution Dates, then such
excess will be deemed a principal loss and will be allocated to the most junior
Class of Group C-B Certificates, in reduction of the Class Principal Balance
thereof.
Recognition Agreement: With respect to a Cooperative Loan, the
recognition agreement between the Cooperative and the originator of such
Cooperative Loan.
Record Date: The last Business Day of the month immediately preceding
the month of the related Distribution Date.
Regular Interests: (i) With respect to REMIC I, the REMIC I Regular
Interests and (ii) with respect to REMIC II, the REMIC II Regular Interests.
Relief Act Shortfall: With respect to a Loan Group, for any
Distribution Date for any Mortgage Loan in such Loan Group with respect to which
the Servicemembers Civil Relief Act, formerly known as the Soldiers' and
Sailors' Civil Relief Act of 1940, or any comparable state legislation
(collectively, the "Relief Act"), limits the amount of interest payable by the
related Mortgagor, an amount equal to one month's interest on such Mortgage Loan
at an annual interest rate equal to the excess, if any, of (i) the annual
38
interest rate otherwise payable by the Mortgagor on the related Due Date under
the terms of the related Mortgage Note over (ii) the annual interest rate
payable by the Mortgagor on the related Due Date by application of the Relief
Act.
REMIC: A real estate mortgage investment conduit, as such term is
defined in the Code.
REMIC Provisions: Sections 860A through 860G of the Code, related Code
provisions and regulations promulgated thereunder, as the foregoing may be in
effect from time to time.
REMIC I: The segregated pool of assets of the Trust consisting of the
REMIC I Assets, which shall be a REMIC pursuant to the Code, with respect to
which a separate REMIC election is to be made and the beneficial interests in
which shall be the REMIC I Regular Interests and the Class R-1 Residual
Interest.
REMIC I Assets: All of the Mortgage Pool Assets.
REMIC I Available Distribution Amount: For each Loan Group for any
Distribution Date, the sum of the following amounts with respect to the Mortgage
Loans in such Loan Group:
(1) the total amount of all cash received by or on behalf of the Master
Servicer with respect to such Mortgage Loans by the Determination Date for such
Distribution Date and not previously distributed, including Monthly P&I Advances
made by Servicers, Liquidation Proceeds and scheduled amounts of distributions
from Buydown Funds respecting Buydown Loans, if any, except:
(a) all scheduled payments of principal and interest collected but due
subsequent to such Distribution Date;
(b) all Curtailments received after the Prior Period;
(c) all Payoffs received after the Payoff Period immediately preceding
such Distribution Date (together with any interest payment received with such
Payoffs to the extent that it represents the payment of interest accrued on the
Mortgage Loans for the period subsequent to the Prior Period), and interest
which was accrued and received on Payoffs received during the period from the
1st to the 14th day of the month of such Distribution Date, which interest shall
not be included in the calculation of the REMIC I Available Distribution Amount
for any Distribution Date;
(d) Insurance Proceeds, Liquidation Proceeds and Subsequent Recoveries
received on such Mortgage Loans after the Prior Period;
(e) all amounts in the Certificate Account which are due and
reimbursable to a Servicer or the Master Servicer pursuant to the terms of this
Agreement;
(f) the sum of the Master Servicing Fee and the Servicing Fee for each
such Mortgage Loan, and any Special Primary Insurance Premium payable on such
Distribution Date with respect to such Mortgage Loan; and
(g) Excess Liquidation Proceeds;
39
(2) the sum, to the extent not previously distributed, of the following
amounts, to the extent advanced or received, as applicable, by the Master
Servicer:
(a) any Monthly P&I Advance made by the Master Servicer to the Trustee
with respect to such Distribution Date relating to such Mortgage Loans; and
(b) Compensating Interest; and
(3) the total amount of any cash received during the Prior Period by
the Trustee or the Master Servicer in respect of a Purchase Obligation under
Section 2.07 and Section 2.08 or any permitted purchase of such a Mortgage Loan.
REMIC I Distribution Amount: For any Distribution Date, the REMIC I
Available Distribution Amount shall be distributed to the REMIC I Regular
Interests and the Class R-1 Residual Interest in the following amounts and
priority:
(a) To the extent of the REMIC I Available Distribution Amount for Loan
Group I:
(i) first, to the Class I-P-M Regular Interest, the sum of (A) the aggregate for
all of the Class I-P Mortgage Loans of the product for each Class I-P Mortgage
Loan of the applicable Class I-P Fraction and the sum of (x) scheduled payments
of principal on such Class I-P Mortgage Loan due on or before the related Due
Date in respect of which no distribution has been made on any previous
Distribution Date and which were received by the Determination Date, or which
have been advanced as part of a Monthly P&I Advance with respect to such
Distribution Date, (y) the principal portion received in respect of such Class
I-P Mortgage Loan during the Prior Period of (1) Curtailments, (2) Insurance
Proceeds, (3) the amount, if any, of the principal portion of the Purchase Price
paid pursuant to a Purchase Obligation or any purchase of a Mortgage Loan
permitted hereunder and (4) Liquidation Proceeds and (z) the principal portion
of Payoffs received in respect of such Class I-P Mortgage Loan during the Payoff
Period and (B) the portion, if any, of the Subsequent Recoveries for Loan Group
I for such Distribution Date not included in the Class C-Y-1 Principal
Distribution Amount or the Class C-Z-1 Principal Distribution Amount pursuant to
clause (B) of the respective definitions thereof;
(ii) second, to the Class I-X-M, Class C-Y-1 and Class C-Z-1 Regular Interests
and the Class R-1 Residual Interest, concurrently, the sum of the Interest
Distribution Amounts for the Class I-X-M, Class C-Y-1 and Class C-Z-1 Regular
Interests and the Class R-1 Residual Interest remaining unpaid from previous
Distribution Dates, pro rata according to their respective shares of such unpaid
amounts;
(iii) third, to the Class I-X-M, Class C-Y-1 and Class C-Z-1 Regular Interests
and the Class R-1 Residual Interest, concurrently, the sum of the Interest
Distribution Amounts for the Class I-X-M, Class C-Y-1 and Class C-Z-1 Regular
Interests and the Class R-1 Residual Interest for the current Distribution Date,
pro rata according to their respective Interest Distribution Amounts;
(iv) fourth, to the Class R-1 Residual Interest, until the Class
Principal Balance thereof has been reduced to zero; and
40
(v) fifth, to the Class C-Y-1 and Class C-Z-1 Regular Interests, the
Class C-Y-1 Principal Distribution Amount and the Class C-Z-1 Principal
Distribution Amount, respectively.
(b) To the extent of the REMIC I Available Distribution Amount for Loan
Group II:
(i) first, to the Class II-P-M Regular Interest, the aggregate for all
of the Class II-P Mortgage Loans of the product for each Class II-P Mortgage
Loan of the applicable Class II-P Fraction and the sum of (x) scheduled payments
of principal on such Class II-P Mortgage Loan due on or before the related Due
Date in respect of which no distribution has been made on any previous
Distribution Date and which were received by the Determination Date, or which
have been advanced as part of a Monthly P&I Advance with respect to such
Distribution Date, (y) the principal portion received in respect of such Class
II-P Mortgage Loan during the Prior Period of (1) Curtailments, (2) Insurance
Proceeds, (3) the amount, if any, of the principal portion of the Purchase Price
paid pursuant to a Purchase Obligation or any purchase of a Mortgage Loan
permitted hereunder and (4) Liquidation Proceeds and (z) the principal portion
of Payoffs received in respect of such Class II-P Mortgage Loan during the
Payoff Period;
(ii) second, to the Class II-X-M, Class C-Y-2 and Class C-Z-2 Regular
Interests, concurrently, the sum of (x) the Interest Distribution Amounts for
the Class C-Y-2 and Class C-Z-2 Regular Interests and (y) the portion of the
Interest Distribution Amount for the Class II-X-M Regular Interest derived from
the Group II Loans, in each case remaining unpaid from previous Distribution
Dates, pro rata according to their respective shares of such unpaid amounts;
(iii) third, to the Class II-X-M, Class C-Y-2 and Class C-Z-2 Regular
Interests, concurrently, the sum of (x) the Interest Distribution Amounts for
the Class C-Y-2 and Class C-Z-2 Regular Interests and (y) the portion of the
Interest Distribution Amount for the Class II-X-M Regular Interest derived from
the Group II Loans, in each case for the current Distribution Date, pro rata
according to their respective Interest Distribution Amounts (or portion thereof,
as applicable); and
(iv) fourth, to the Class C-Y-2 and Class C-Z-2 Regular Interests, the Class
C-Y-2 Principal Distribution Amount and the Class C-Z-2 Principal Distribution
Amount, respectively.
(c) To the extent of the REMIC I Available Distribution Amounts for
Loan Group I and Loan Group II for such Distribution Date remaining after
payment of the amounts pursuant to paragraphs (a) and (b) of this definition of
"REMIC I Distribution Amount":
(i) first, to the Class P-M Regular Interests, the aggregate amount of
any distributions to the related Class P Certificates pursuant to paragraphs
(c)(i) and (c)(ii) of the definition of "REMIC II Distribution Amount" on such
Distribution Date; provided, however, that any amounts distributed pursuant to
this paragraph (c)(i) of this definition of "REMIC I Distribution Amount" shall
not cause a reduction in the Class Principal Balances of the Class P-M Regular
Interests;
41
(ii) second, to each Class of Class C-Y and Class C-Z Regular
Interests, pro rata according to the amount of unreimbursed Realized Losses
allocable to principal previously allocated to each such Class, the aggregate
amount of any distributions to the Certificates pursuant to paragraph (c)(xxi)
of the definition of "REMIC II Distribution Amount" on such Distribution Date;
provided, however, that any amounts distributed pursuant to this paragraph
(c)(ii) of this definition of "REMIC I Distribution Amount" shall not cause a
reduction in the Class Principal Balances of any of the Class C-Y and Class C-Z
Regular Interests; and
(iii) third, to the Class R-1 Residual Interest, the Residual
Distribution Amount for the Class R-1 Residual Interest for such Distribution
Date.
REMIC I Regular Interests: The Classes of undivided beneficial
interests in REMIC I designated as "regular interests" in the table titled
"REMIC I Interests" in the Preliminary Statement hereto. The REMIC I Regular
Interests, together with the Class R-1 Residual Interest, shall be deemed to be
a separate series of beneficial interests in the assets of the Trust consisting
of the REMIC I Assets pursuant to Section 3806(b)(2) of the Statutory Trust
Statute.
REMIC II: The segregated pool of assets of the Trust consisting of the
REMIC II Assets, which shall be a REMIC pursuant to the Code, with respect to
which a separate REMIC election is to be made, and the beneficial interests in
which shall be the REMIC II Regular Interests and the Class R-2 Residual
Interest.
REMIC II Assets: The REMIC I Regular Interests.
REMIC II Available Distribution Amount: With respect to the Group I
Certificates, on any Distribution Date, the aggregate of all distributions to
the Class I-P-M, Class I-X-M, Class C-Y-1 and Class C-Z-1 Regular Interests
(which amount shall be available for distributions to the Group I and Group C-B
Certificates and the Class R-2 Residual Interest as provided herein). With
respect to the Group II Certificates, on any Distribution Date, the aggregate of
all distributions to the Class II-P-M, Class II-X-M, Class C-Y-2 and Class C-Z-2
Regular Interests (which amount shall be available for distributions to the
Group II and Group C-B Certificates and the Class R-2 Residual Interest as
provided herein).
REMIC II Distribution Amount: For any Distribution Date, the REMIC II
Available Distribution Amount for such Distribution Date shall be distributed to
the Certificates and the Class R-2 Residual Interest in the following amounts
and priority:
(a) With respect to the Group I, on any Distribution Date, to the
extent of the REMIC II Available Distribution Amount for the Group I
Certificates for such Distribution Date:
(i) first, to the Class I-P Certificates, the aggregate for all Class I-P
Mortgage Loans of the product for each Class I-P Mortgage Loan of the applicable
Class I-P Fraction and the sum of (x) scheduled payments of principal on such
Class I-P Mortgage Loan due on or before the related Due Date in respect of
which no distribution has been made on any previous Distribution Date and which
were received by the Determination Date, or which have been advanced as part of
a Monthly P&I Advance with respect to such Distribution Date, (y) the principal
portion received in respect of such Class I-P Mortgage Loan during the Prior
Period of (1) Curtailments, (2) Insurance Proceeds, (3) the amount, if any, of
the principal portion of the Purchase Price paid pursuant to a Purchase
Obligation or any purchase of a Mortgage Loan permitted hereunder and (4)
Liquidation Proceeds and (z) the principal portion of Payoffs received in
respect of such Class I-P Mortgage Loan during the Payoff Period;
42
(ii) second, to the Class I-A and Class I-X Certificates, concurrently, the sum
of the Interest Distribution Amounts for such Classes of Certificates remaining
unpaid from previous Distribution Dates, pro rata according to their respective
shares of such unpaid amounts;
(iii) third, to the Class I-A and Class I-X Certificates, concurrently, the sum
of the Interest Distribution Amounts for such Classes of Certificates for the
current Distribution Date, pro rata according to their respective Interest
Distribution Amounts; and
(iv) fourth, to the Class I-A Certificates, as principal, the Group I Senior
Principal Distribution Amount (reduced, on the first Distribution Date, by $100)
until the Class I-A Principal Balance has been reduced to zero; and
(b) With respect to the Group II Certificates, on any Distribution
Date, to the extent of the REMIC II Available Distribution Amount for the Group
II Certificates for such Distribution Date:
(i) first, to the Class II-P Certificates, the aggregate for all Class II-P
Mortgage Loans of the product for each Class II-P Mortgage Loan of the
applicable Class II-P Fraction and the sum of (x) scheduled payments of
principal on such Class II-P Mortgage Loan due on or before the related Due Date
in respect of which no distribution has been made on any previous Distribution
Date and which were received by the Determination Date, or which have been
advanced as part of a Monthly P&I Advance with respect to such Distribution
Date, (y) the principal portion received in respect of such Class II-P Mortgage
Loan during the Prior Period of (1) Curtailments, (2) Insurance Proceeds, (3)
the amount, if any, of the principal portion of the Purchase Price paid pursuant
to a Purchase Obligation or any purchase of a Mortgage Loan permitted hereunder
and (4) Liquidation Proceeds and (z) the principal portion of Payoffs received
in respect of such Class II-P Mortgage Loan during the Payoff Period;
(ii) second, to the Class II-A and Class II-X Certificates, concurrently, the
sum of the Interest Distribution Amounts for such Classes of Certificates
remaining unpaid from previous Distribution Dates, pro rata according to their
respective shares of such unpaid amounts;
(iii) third, to the Class II-A and Class II-X Certificates, concurrently, the
sum of the Interest Distribution Amounts for such Classes of Certificates for
the current Distribution Date, pro rata according to their respective Interest
Distribution Amounts; and
43
(iv) fourth, to the Class II-A Certificates, as principal, the Group II Senior
Principal Distribution Amount, until the Class II-A Principal Balance has been
reduced to zero; and
(c) With respect to the Group I, Group II and Group C-B Certificates
and the Class R-2 Residual Interest, on any Distribution Date, to the extent of
the REMIC II Available Distribution Amounts for the Group I and Group II
Certificates for such Distribution Date remaining after the payment of the
amounts pursuant to paragraphs (a) and (b) of this definition of "REMIC II
Distribution Amount":
(i) first, to the Class I-P and Class II-P Certificates, to the extent of
amounts otherwise available to pay the Subordinate Principal Distribution Amount
(without regard to clause (B)(x) of the definition thereof) on such Distribution
Date and to the extent not paid to such Classes of Certificates on previous
Distribution Dates pursuant to clause (c)(ii) of this definition of "REMIC II
Distribution Amount," principal in an amount equal to the applicable Class P
Fraction of any Realized Loss on a Class P Mortgage Loan incurred prior to the
Prior Period (other than a Realized Loss which, pursuant to the definition of
"Realized Loss," is allocated by Pro Rata Allocation);
(ii) second, to the Class I-P and Class II-P Certificates, to the extent of
amounts otherwise available to pay the Subordinate Principal Distribution Amount
(without regard to clause (B)(x) of the definition thereof) on such Distribution
Date, principal in an amount equal to the applicable Class I-P or Class II-P
Fraction of any Realized Loss on a Class I-P or Class II-P Mortgage Loan
incurred in the Prior Period (other than a Realized Loss which, pursuant to the
definition of "Realized Loss," is allocated by Pro Rata Allocation); provided,
that any amounts distributed in respect of losses pursuant to paragraph (c)(i)
or this paragraph (c)(ii) of this definition of "REMIC II Distribution Amount"
shall not cause a reduction in either of the Class I-P Principal Balance or the
Class II-P Principal Balance; provided, further, that if the amounts otherwise
available to pay the Subordinate Principal Distribution Amount (without regard
to clause (B)(x) of the definition thereof) for any such Distribution Date are
insufficient to cover such outstanding principal losses for the Class I-P and
Class II-P Certificates as provided in paragraph (c)(i) or this paragraph
(c)(ii) of this definition of "REMIC II Distribution Amount," then such amounts
will be allocated pro rata to the Class I-P and Class II-P Certificates based on
the amount such Certificates are entitled to receive pursuant to paragraph
(c)(i) or this paragraph (c)(ii) of this definition of "REMIC II Distribution
Amount";
(iii) third, to the Class C-B-1 Certificates, the Interest Distribution Amount
for such Class of Certificates remaining unpaid from previous Distribution
Dates;
(iv) fourth, to the Class C-B-1 Certificates, the Interest Distribution Amount
for such Class of Certificates for the current Distribution Date;
(v) fifth, to the Class C-B-1 Certificates, the portion of the Subordinate
Principal Distribution Amount allocable to such Class of Certificates pursuant
to the definition of "Subordinate Principal Distribution Amount," until the
Class C-B-1 Principal Balance has been reduced to zero;
44
(vi) sixth, to the Class C-B-2 Certificates, the Interest Distribution Amount
for such Class of Certificates remaining unpaid from previous Distribution
Dates;
(vii) seventh, to the Class C-B-2 Certificates, the Interest Distribution Amount
for such Class of Certificates for the current Distribution Date;
(viii) eighth, to the Class C-B-2 Certificates, the portion of the Subordinate
Principal Distribution Amount allocable to such Class of Certificates pursuant
to the definition of "Subordinate Principal Distribution Amount," until the
Class C-B-2 Principal Balance has been reduced to zero;
(ix) ninth, to the Class C-B-3 Certificates, the Interest Distribution Amount
for such Class of Certificates remaining unpaid from previous Distribution
Dates;
(x) tenth, to the Class C-B-3 Certificates, the Interest Distribution Amount for
such Class of Certificates for the current Distribution Date;
(xi) eleventh, to the Class C-B-3 Certificates, the portion of the Subordinate
Principal Distribution Amount allocable to such Class of Certificates pursuant
to the definition of "Subordinate Principal Distribution Amount," until the
Class C-B-3 Principal Balance has been reduced to zero;
(xii) twelfth, to the Class C-B-4 Certificates, the Interest Distribution Amount
for such Class of Certificates remaining unpaid from previous Distribution
Dates;
(xiii) thirteenth, to the Class C-B-4 Certificates, the Interest Distribution
Amount for such Class of Certificates for the current Distribution Date;
(xiv) fourteenth, to the Class C-B-4 Certificates, the portion of the
Subordinate Principal Distribution Amount allocable to such Class of
Certificates pursuant to the definition of "Subordinate Principal Distribution
Amount," until the Class C-B-4 Principal Balance has been reduced to zero;
(xv) fifteenth, to the Class C-B-5 Certificates, the Interest Distribution
Amount for such Class of Certificates remaining unpaid from previous
Distribution Dates;
(xvi) sixteenth, to the Class C-B-5 Certificates, the Interest Distribution
Amount for such Class of Certificates for the current Distribution Date;
(xvii) seventeenth, to the Class C-B-5 Certificates, the portion of the
Subordinate Principal Distribution Amount allocable to such Class of
Certificates pursuant to the definition of "Subordinate Principal Distribution
Amount," until the Class C-B-5 Principal Balance has been reduced to zero;
45
(xviii) eighteenth, to the Class C-B-6 Certificates, the Interest Distribution
Amount for such Class of Certificates remaining unpaid from previous
Distribution Dates;
(xix) nineteenth, to the Class C-B-6 Certificates, the Interest Distribution
Amount for such Class of Certificates for the current Distribution Date;
(xx) twentieth, to the Class C-B-6 Certificates, the portion of the Subordinate
Principal Distribution Amount allocable to such Class of Certificates pursuant
to the definition of "Subordinate Principal Distribution Amount," until the
Class C-B-6 Principal Balance has been reduced to zero;
(xxi) twenty-first, to each Class of Certificates in order of seniority (which,
from highest to lowest, shall be as follows: the Class I-P, Class II-P Class I-A
and Class II-A Certificates of equal seniority, and then Class C-B-1, Class
C-B-2, Class C-B-3, Class C-B-4, Class C-B-5 and Class C-B-6 of decreasing
seniority) the remaining portion, if any, of the REMIC II Available Distribution
Amounts for the Group I and Group II Certificates, up to the amount of
unreimbursed Realized Losses allocable to principal previously allocated or to
be allocated on such Distribution Date to such Class, if any; provided, however,
that in the case of Classes of Certificates of equal seniority, the amount
distributable to such Classes shall be allocated among such Classes according to
the amount of losses allocated thereto; provided, further, that any amounts
distributed pursuant to this paragraph (c)(xxi) of this definition of "REMIC II
Distribution Amount" shall not cause a reduction in the Class Principal Balances
of any of the Certificates; and
(xxii) twenty-second, to the Class R-2 Residual Interest, the Residual
Distribution Amounts for the Group I and Group II Certificates for such
Distribution Date.
Notwithstanding the foregoing paragraph (c) of this definition of
"REMIC II Distribution Amount,"
(X) on any Distribution Date on which both of the following conditions
specified in clauses (1) and (2) are met:
(1) the Class Principal Balance of either the Class I-A Certificates or
the Class II-A Certificates has been reduced to zero, and
(2) either (a) the Group C-B Percentage for such Distribution Date is
less than 200% of the Group C-B Percentage as of the Closing Date or (b) the
outstanding principal balance of the Mortgage Loans in either Loan Group I or
Loan Group II delinquent 60 days or more averaged over the last six months
(including Mortgage Loans in foreclosure and Mortgage Loans the Mortgaged
Property of which is held by REMIC I and acquired by foreclosure or deed in lieu
of foreclosure), as a percentage of the related Subordinate Component Balance,
is greater than or equal to 50%,
all principal received or advanced with respect to the Mortgage Loans in the
Loan Group related to the Class A Certificates that have been paid in full
(after distributions of principal to the Class P Certificates pursuant to
paragraph (a)(i), (b)(i), (c)(i) and (c)(ii) above, if applicable) shall be paid
46
as principal to the remaining Class A Certificates that have been not been paid
in full to the extent of and in reduction of the Class Principal Balance
thereof, prior to any distributions of principal to the Group C-B Certificates
pursuant to paragraph (c) above, and
(Y) if on any Distribution Date either Loan Group I or Loan Group II is
an Undercollateralized Group and the other such Loan Group is an
Overcollateralized Group, then the REMIC II Available Distribution Amount for
the Certificates related to the Overcollateralized Group, to the extent
remaining following distributions of interest and principal to the Group I and
Group II Certificates pursuant to paragraph (a) or (b) above, as applicable,
shall be paid in the following priority: (1) first, such remaining amount, up to
the Total Transfer Amount for the Undercollateralized Group, shall be
distributed (a) first, to the Class A Certificates related to the
Undercollateralized Group, in payment of any portion of the Interest
Distribution Amount for such Class of Certificates remaining unpaid from such
Distribution Date or previous Distribution Dates, and (b) second, to the Class A
Certificates related to such Undercollateralized Group, as principal, and (2)
second, any remaining amount shall be distributed pursuant to paragraph (c)
above.
REMIC II Regular Interests: The Classes of undivided beneficial
interests in REMIC II designated as "regular interests" in the table titled
"REMIC II Interests" in the Preliminary Statement hereto. The REMIC II Regular
Interests, together with the Class R-2 Residual Interest, shall be deemed to be
a separate series of beneficial interests in the assets of the Trust consisting
of the REMIC II Assets pursuant to Section 3806(b)(2) of the Statutory Trust
Statute.
Residual Certificates: The Class R Certificates.
Residual Distribution Amount: For any Distribution Date, with respect
to the Class R-1 Residual Interest, any portion of the REMIC I Available
Distribution Amounts for Loan Group I and Loan Group II remaining after all
distributions of such REMIC I Available Distribution Amounts pursuant to clauses
(a), (b) and (c) (other than the last subclause of clause (c)) of the definition
of "REMIC I Distribution Amount."
For any Distribution Date, with respect to the Class R-2 Residual
Interest and for the Group I and Group II Certificates, any portion of the REMIC
II Available Distribution Amount for the Group I and Group II Certificates,
respectively, remaining after all distributions of such REMIC II Available
Distribution Amount pursuant to clauses (a), (b) and (c), as applicable, of the
definition of "REMIC II Distribution Amount" (other than the distributions
pursuant to the last subclause of clause (c)).
Upon termination of the obligations created by this Agreement and
liquidation of REMIC I and REMIC II, the amounts which remain on deposit in the
Certificate Account after payment to the Holders of the REMIC I Regular
Interests of the amounts set forth in Section 9.01 of this Agreement, and
subject to the conditions set forth therein, shall be distributed to the Class
47
R-1 and Class R-2 Residual Interests in accordance with the preceding sentences
of this definition as if the date of such distribution were a Distribution Date.
Responsible Officer: When used with respect to the Trustee or the
Delaware Trustee, any officer assigned to and working in the Corporate Trust
Office (in the case of the Trustee) or its corporate trust office (in the case
of the Delaware Trustee) or, in each case, in a similar group and also, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
S&P: Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., provided that at any time it be a Rating Agency.
Secretary of State: The Secretary of State of the State of Delaware.
Securities Act: The Securities Act of 1933, as amended.
Security Agreement: With respect to a Cooperative Loan, the agreement
or mortgage creating a security interest in favor of the originator of the
Cooperative Loan in the related Cooperative Stock.
Selling and Servicing Contract: (a) The contract (including the
Washington Mutual Mortgage Securities Corp. Selling Guide and Washington Mutual
Mortgage Securities Corp. Servicing Guide to the extent incorporated by
reference therein) between the Company and a Person relating to the sale of the
Mortgage Loans to the Company and the servicing of such Mortgage Loans for the
benefit of the Certificateholders, which contract is substantially in the form
of Exhibit E hereto, as such contract may be amended or modified from time to
time; provided, however, that any such amendment or modification shall not
materially adversely affect the interests and rights of Certificateholders or
(b) any other similar contract, including any mortgage loan purchase and
servicing agreement or any assignment, assumption and recognition agreement
related to a mortgage loan purchase and sale agreement, providing substantially
similar rights and benefits as those provided by the forms of contract attached
as Exhibit E hereto.
Senior Certificates: The Group I, Group II and Residual Certificates.
Senior Subordinate Certificates: The Subordinate Certificates other
than the Junior Subordinate Certificates.
Servicer: A mortgage loan servicing institution to which the Master
Servicer has assigned servicing duties with respect to any Mortgage Loan under a
Selling and Servicing Contract; provided, however, the Master Servicer may
designate itself or one or more other mortgage loan servicing institutions as
Servicer upon termination of an initial Servicer's servicing duties.
Servicing Fee: For each Mortgage Loan, the fee paid to the Servicer
thereof to perform primary servicing functions for the Master Servicer with
respect to such Mortgage Loan, equal to the per annum rate set forth for each
Mortgage Loan in the Mortgage Loan Schedule on the outstanding Principal Balance
of such Mortgage Loan. In addition, any prepayment penalty received on a
Mortgage Loan will be paid as additional servicing compensation to the Master
Servicer or the related Servicer.
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Servicing Officer: Any officer of the Master Servicer (or of the
Servicer, but only with respect to the Custodial Agreement) involved in, or
responsible for, the administration and servicing of the Mortgage Loans or the
Certificates, as applicable, whose name and specimen signature appear on a list
of servicing officers furnished to the Trustee by the Master Servicer, as such
list may from time to time be amended.
Special Hazard Coverage: The Special Hazard Coverage on the most recent
anniversary of the Cut-Off Date (calculated in accordance with the second
sentence of this paragraph) or, if prior to the first such anniversary,
$3,820,844, in each case reduced by Special Hazard Losses allocated to the
Certificates since the most recent anniversary of the Cut-Off Date (or, if prior
to the first such anniversary, since the Cut-Off Date). On each anniversary of
the Cut-Off Date, the Special Hazard Coverage shall be reduced, but not
increased, to an amount equal to the lesser of (1) the greatest of (a) the
aggregate principal balance of the Mortgage Loans located in the single
California zip code area containing the largest aggregate principal balance of
Mortgage Loans, (b) 1.0% of the aggregate unpaid principal balance of the
Mortgage Loans and (c) twice the unpaid principal balance of the largest single
Mortgage Loan, in each case calculated as of the Due Date in the immediately
preceding month, and (2) $3,820,844 as reduced by the Special Hazard Losses
allocated to the Certificates since the Cut-Off Date.
The Special Hazard Coverage may be reduced upon written confirmation
from the Rating Agencies that such reduction will not adversely affect the then
current ratings assigned to the Certificates by the Rating Agencies.
Special Hazard Loss: A Realized Loss (or portion thereof) with respect
to a Mortgage Loan arising from any direct physical loss or damage to a
Mortgaged Property not covered by a standard hazard maintenance policy with
extended coverage which is caused by or results from any cause except: (i) fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, vandalism, aircraft, vehicles, smoke, sprinkler leakage, except to
the extent of that portion of the loss which was uninsured because of the
application of a co-insurance clause of any insurance policy covering these
perils; (ii) normal wear and tear, gradual deterioration, inherent vice or
inadequate maintenance of all or part thereof; (iii) errors in design, faulty
workmanship or materials, unless the collapse of the property or a part thereof
ensues and then only for the ensuing loss; (iv) nuclear reaction or nuclear
radiation or radioactive contamination, all whether controlled or uncontrolled
and whether such loss be direct or indirect, proximate or remote or be in whole
or in part caused by, contributed to or aggravated by a peril covered by this
definition of Special Hazard Loss; (v) hostile or warlike action in time of
peace or war, including action in hindering, combating or defending against an
actual, impending or expected attack (a) by any government of sovereign power
(de jure or de facto), or by an authority maintaining or using military, naval
or air forces, (b) by military, naval or air forces, or (c) by an agent of any
such government, power, authority or forces; (vi) any weapon of war employing
atomic fission or radioactive force whether in time of peace or war; (vii)
insurrection, rebellion, revolution, civil war, usurped power or action taken by
governmental authority in hindering, combating or defending against such
occurrence; or (viii) seizure or destruction under quarantine or customs
regulations, or confiscation by order of any government or public authority.
Special Primary Insurance Policy: Any Primary Insurance Policy covering
a Mortgage Loan the premium of which is payable by the Trustee pursuant to
Section 4.04(a), if so identified in the Mortgage Loan Schedule. There are no
Special Primary Insurance Policies with respect to any of the Mortgage Loans.
49
Special Primary Insurance Premium: With respect to any Special Primary
Insurance Policy, the monthly premium payable thereunder.
Statutory Trust Statute: Chapter 38 of Title 12 of the Delaware Code,
12 Del.C.ss.3801 et seq., as the same may be amended from time to time.
Stripped Interest Rate: For each Group I Loan, the excess, if any, of
the Pass-Through Rate for such Mortgage Loan over 6.500% per annum. For each
Group II Loan, the excess, if any, of the Pass-Through Rate for such Mortgage
Loan over 7.000% per annum.
Subordinate Certificates: The Group C-B Certificates.
Subordinate Component Balance: With respect to Loan Group I for any
date of determination, the then outstanding aggregate Principal Balance of the
Group I Loans (less the applicable Class I-P Fraction thereof with respect to
any Class I-P Mortgage Loan) minus the then outstanding aggregate Class
Principal Balance of the Class I-A and Residual Certificates. With respect to
Loan Group II for any date of determination, the then outstanding aggregate
Principal Balance of the Group II Loans (less the applicable Class II-P Fraction
thereof with respect to any Class II-P Mortgage Loan) minus the then outstanding
Class Principal Balance of the Class II-A Certificates.
Subordinate Liquidation Amount: For any Distribution Date, the excess,
if any, of the sum of (A) the aggregate of Liquidation Principal for all
Mortgage Loans which became Liquidated Mortgage Loans during the Prior Period
and (B) any Subsequent Recoveries for such Distribution Date for Loan Group I
and Loan Group II, over the sum of the Group I Senior Liquidation Amount and the
Group II Senior Liquidation Amount for such Distribution Date.
Subordinate Percentage: The Group I Subordinate Percentage or Group II
Subordinate Percentage, as applicable.
Subordinate Principal Distribution Amount: For any Distribution Date,
the excess of (A) the sum of (i) the Group I Subordinate Percentage of the
Principal Payment Amount for Loan Group I (exclusive of the portion thereof
attributable to principal distributions to the Class I-P Certificates pursuant
to clause (a)(i) of the definition of "REMIC II Distribution Amount"), (ii) the
Group II Subordinate Percentage of the Principal Payment Amount for Loan Group
II (exclusive of the portion thereof attributable to principal distributions to
the Class II-P Certificates pursuant to clause (b)(i) of the definition of
"REMIC II Distribution Amount"), (iii) the Subordinate Principal Prepayments
Distribution Amount (without regard to the proviso in the definition thereof)
and (iv) the Subordinate Liquidation Amount over (B) the sum of (x) the amounts
required to be distributed to the Class I-P and Class II-P Certificates pursuant
to clauses (c)(i) and (c)(ii) of the definition of "REMIC II Distribution
Amount" on such Distribution Date, (y) in the event that the Class Principal
Balance of any of the Class I-A or Class II-A Certificates has been reduced to
zero, principal paid from the REMIC II Available Distribution Amount related to
such Class A Certificates to the remaining Class A Certificates, as set forth in
50
clause (X) of the sentence immediately following paragraph (c) of the definition
of "REMIC II Distribution Amount," and (z) the amounts paid from the REMIC II
Available Distribution Amount for the Certificate Group related to an
Overcollateralized Group to the Class A Certificates related to an
Undercollateralized Group pursuant to clause (Y) of the sentence immediately
following paragraph (c) of the definition of "REMIC II Distribution Amount."
On any Distribution Date, the Subordinate Principal Distribution Amount
shall be allocated pro rata, by Class Principal Balance, among the Classes of
Group C-B Certificates and paid in the order of distribution to such Classes
pursuant to clause (c) of the definition of "REMIC II Distribution Amount"
except as otherwise stated in such definition. Notwithstanding the foregoing, on
any Distribution Date prior to distributions on such date, if the Subordination
Level for any Class of Group C-B Certificates is less than such Subordination
Level as of the Closing Date, the pro rata portion of the Subordinate Principal
Prepayments Distribution Amount otherwise allocable to the Class or Classes of
Group C-B Certificates junior to such Class will be distributed to the most
senior Class of Group C-B Certificates for which the Subordination Level is less
than the Subordination Level as of the Closing Date, and to the Class or Classes
of Group C-B Certificates senior thereto, pro rata according to the Class
Principal Balances of such Classes. For purposes of this definition and the
definition of "Subordination Level," the relative seniority, from highest to
lowest, of the Group C-B Certificates shall be as follows: Class C-B-1, Class
C-B-2, Class C-B-3, Class C-B-4, Class C-B-5 and Class C-B-6.
Subordinate Principal Prepayments Distribution Amount: For any
Distribution Date, the sum of (i) the Group I Subordinate Prepayment Percentage
of the Principal Prepayment Amount for Loan Group I (exclusive of the portion
thereof attributable to principal distributions to the Class I-P Certificates
pursuant to clause (a)(i) of the definition of "REMIC II Distribution Amount")
and (ii) the Group II Subordinate Prepayment Percentage of the Principal
Prepayment Amount for Loan Group II (exclusive of the portion thereof
attributable to principal distributions to the Class II-P Certificates pursuant
to clause (b)(i) of the definition of "REMIC II Distribution Amount"); provided,
however, that if the amount specified in clause (B) of the definition of
"Subordinate Principal Distribution Amount" is greater than the sum of the
amounts specified in clauses (A)(i), (A)(ii) and (A)(iv) of such definition,
then the Subordinate Principal Prepayments Distribution Amount shall be reduced
by the amount of such excess.
Subordination Level: On any specified date, with respect to any Class
of Group C-B Certificates, the percentage obtained by dividing the aggregate
Class Principal Balance of the Classes of Group C-B Certificates which are
subordinate in right of payment to such Class by the aggregate Class Principal
Balance of the Class I-P, Class II-P, Class I-A, Class II-A and Group C-B
Certificates and the Class R-1 Residual Interest as of such date prior to giving
effect to distributions of principal and interest and allocations of Realized
Losses on the Mortgage Loans on such date.
Subsequent Recoveries: For any Distribution Date and any Loan Group,
amounts received by the Master Servicer during the Prior Period (after deduction
of amounts reimbursable under Section 3.05(a)(i) and (ii)) in connection with
the liquidation of defaulted Mortgage Loans in such Loan Group after such
Mortgage Loans became Liquidated Mortgage Loans, for each such Mortgage Loan up
to the amount of Realized Losses, if any, previously allocated in respect of
such Mortgage Loan in reduction of the Class Principal Balance of any Class of
Certificates.
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Substitute Mortgage Loan: A Mortgage Loan which is substituted for
another Mortgage Loan pursuant to and in accordance with the provisions of
Section 2.07.
Surety: Ambac Assurance Corporation, or its successors in interest.
Surety Bonds: The Limited Purpose Surety Bonds, Policy No. AB0039BE and
Policy No. AB0240BE, issued by Ambac Assurance Corporation for the benefit of
certain beneficiaries, including, with respect to the Additional Collateral
Loans, the Trustee for the benefit of the Certificateholders.
Tax Matters Person: With respect to each of REMIC I and REMIC II, a
Holder of a Class R Certificate with a Percentage Interest of at least 0.01% or
any Permitted Transferee of such Class R Certificateholder designated as
succeeding to the position of Tax Matters Person in a notice to the Trustee
signed by authorized representatives of the transferor and transferee of such
Class R Certificate. The Company is hereby appointed to act as the Tax Matters
Person for REMIC I and REMIC II so long as it holds a Class R Certificate with a
Percentage Interest of at least 0.01%. The Company is hereby appointed to act as
agent for the Tax Matters Person for REMIC I and REMIC II, to perform the
functions of such Tax Matters Person as provided herein, so long as the Company
is the Master Servicer hereunder, in the event that the Company ceases to hold a
Class R Certificate with the required Percentage Interest. In the event that the
Company ceases to be the Master Servicer hereunder, the successor Master
Servicer is hereby appointed to act as agent for the Tax Matters Person for
REMIC I and REMIC II, to perform the functions of such Tax Matters Person as
provided herein. If the Tax Matters Person for REMIC I and REMIC II becomes a
Disqualified Organization, the last preceding Holder, that is not a Disqualified
Organization, of the Class R Certificate held by the Disqualified Organization
shall be Tax Matters Person pursuant to and as permitted by Section 5.01(c). If
any Person is appointed as tax matters person by the Internal Revenue Service
pursuant to the Code, such Person shall be Tax Matters Person.
Termination Date: The date upon which final payment of the Certificates
will be made pursuant to the procedures set forth in Section 9.01(b).
Termination Payment: The final payment delivered to the
Certificateholders on the Termination Date pursuant to the procedures set forth
in Section 9.01(b).
Total Transfer Amount: For any Distribution Date and for an
Undercollateralized Group, an amount equal to the sum of the Interest Transfer
Amount and the Principal Transfer Amount for such Undercollateralized Group.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transferee: Any Person who is acquiring by Transfer any Ownership
Interest in a Residual Certificate.
Transferee Affidavit and Agreement: An affidavit and agreement in the
form attached hereto as Exhibit J.
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Trust: Washington Mutual MSC Mortgage Pass-Through Certificates Series
2004-RA1 Trust, a Delaware statutory trust, created pursuant to this Agreement.
Trustee: U.S. Bank National Association, or its successor-in-interest
as provided in Section 8.09, or any successor trustee appointed as herein
provided.
Uncollected Interest: With respect to any Distribution Date for any
Mortgage Loan on which a Payoff was made by a Mortgagor during the related
Payoff Period, except for Payoffs received during the period from the first
through the 14th day of the month of such Distribution Date, an amount equal to
one month's interest at the applicable Pass-Through Rate on such Mortgage Loan
less the amount of interest actually paid by the Mortgagor with respect to such
Payoff.
Uncompensated Interest Shortfall: With respect to a Loan Group, for any
Distribution Date, the sum of (i) the aggregate Relief Act Shortfall for such
Distribution Date with respect to the Mortgage Loans in such Loan Group, (ii)
aggregate Curtailment Shortfall for such Distribution Date with respect to the
Mortgage Loans in such Loan Group and (iii) the excess, if any, of (a) aggregate
Uncollected Interest for such Distribution Date with respect to the Mortgage
Loans in such Loan Group over (b) Compensating Interest for such Distribution
Date with respect to the Mortgage Loans in such Loan Group.
Uncompensated Interest Shortfall for Loan Group I shall be allocated to
the Group I Certificates and the portions of the Group C-B Certificates that
derive their Interest Distribution Amounts from the Group I Loans, pro rata
according to the amount of interest accrued on each such Class or portion
thereof during the immediately preceding accrual period, in reduction thereof.
Uncompensated Interest Shortfall for Loan Group II shall be allocated
to the Group II Certificates and the portions of the Group C-B Certificates that
derive their Interest Distribution Amounts from the Group II Loans, pro rata
according to the amount of interest accrued on each such Class or portion
thereof during the immediately preceding accrual period, in reduction thereof.
Uncompensated Interest Shortfall for Loan Group I shall be allocated to
the Class I-X-M, Class C-Y-1 and Class C-Z-1 Regular Interests, pro rata
according to the amount of interest accrued on each such Class during the
immediately preceding accrual period, in reduction thereof.
Uncompensated Interest Shortfall for Loan Group II shall be allocated
to the Class II-X-M, Class C-Y-2 and Class C-Z-2 Regular Interests, pro rata
according to the amount of interest accrued on each such Class during the
immediately preceding accrual period, in reduction thereof.
Undercollateralized Group: For any Distribution Date, Loan Group I, if
immediately prior to such Distribution Date the aggregate Class Principal
Balance of the Class I-A and Residual Certificates is greater than the aggregate
Principal Balance of the Group I Loans (less the applicable Class I-P Fraction
thereof with respect to each Class I-P Mortgage Loan); and for any Distribution
Date, Loan Group II, if immediately prior to such Distribution Date the Class
53
Principal Balance of the Class II-A Certificates is greater than the aggregate
Principal Balance of the Group II Loans (less the applicable Class II-P Fraction
thereof with respect to each Class II-P Mortgage Loan).
Underwriter: WaMu Capital Corp.
Underwriting Standards: The published underwriting standards of the
Company, or, if the related Mortgage Loan was underwritten pursuant to
underwriting standards other than the published underwriting standards of the
Company, then such other underwriting standards.
Uninsured Cause: Any cause of damage to a Mortgaged Property, the cost
of the complete restoration of which is not fully reimbursable under the hazard
insurance policies required to be maintained pursuant to Section 3.07.
U.S. 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, any state thereof or the District of Columbia, or an estate or
trust that is subject to U.S. federal income tax regardless of the source of its
income.
VA: The Department of Veterans Affairs, formerly known as the Veterans
Administration, or any successor thereto.
Withdrawal Date: Any day during the period commencing on the 18th day
of the month of the related Distribution Date (or if such day is not a Business
Day, the immediately preceding Business Day) and ending on the last Business Day
prior to the 21st day of the month of such Distribution Date. The "related Due
Date" for any Withdrawal Date is the Due Date immediately preceding the related
Distribution Date.
ARTICLE II
Creation of the Trust; Conveyance of the Mortgage Pool Assets and REMIC
I Regular Interests; REMIC Election and Designations;
Original Issuance of Certificates
Section 2.01. Creation of the Trust. The Trust is hereby created and shall be
known as "Washington Mutual MSC Mortgage Pass-Through Certificates Series
2004-RA1 Trust". The purpose of the Trust is, and the Trust shall have the power
and authority, to engage in the following activities, all as provided by and
subject to the terms of this Agreement:
(i) to acquire, hold, lease, manage, administer, control, invest,
reinvest, operate and/or transfer the Mortgage Pool Assets and the REMIC II
Assets;
(ii) to issue the REMIC I Regular Interests, the Class R-1 and Class
R-2 Residual Interests and the Certificates;
(iii) to make distributions to the REMIC I Regular Interests and the
Certificates; and
(iv) to engage in such other activities, including entering into
agreements, as are described in or required by the terms of this Agreement or as
are necessary, suitable or convenient to accomplish the foregoing or incidental
thereto.
54
U.S. Bank National Association is hereby appointed as a trustee of the
Trust, to have all the rights, duties and obligations of the Trustee with
respect to the Trust expressly set forth hereunder, and U.S. Bank National
Association hereby accepts such appointment and the Trust created hereby.
Christiana Bank & Trust Company is hereby appointed as a Delaware trustee of the
Trust, to have all the rights, duties and obligations of the Delaware Trustee
with respect to the Trust hereunder, and Christiana Bank & Trust Company hereby
accepts such appointment and the Trust created hereby. It is the intention of
the Company, the Trustee and the Delaware Trustee that the Trust constitute a
statutory trust under the Statutory Trust Statute, that this Agreement
constitute the governing instrument of the Trust, and that this Agreement amend
and restate the Original Trust Agreement. The parties hereto acknowledge and
agree that, prior to the execution and delivery hereof, the Delaware Trustee has
filed the Certificate of Trust. The parties hereto acknowledge that the Trust
includes two separate pools of mortgage loans (referred to herein as "Loan
Groups") constituting subtrusts for ERISA purposes, and that the assets of each
Loan Group are available to make payments to the holders of Certificates as
provided in the definitions of "REMIC I Distribution Amount" and "REMIC II
Distribution Amount," Section 4.01 and Section 4.04 hereof.
The assets of the Trust shall remain in the custody of the Trustee, on
behalf of the Trust, and shall be owned by the Trust except as otherwise
expressly set forth herein. Moneys to the credit of the Trust shall be held by
the Trustee and invested as provided herein. All assets received and held in the
Trust will not be subject to any right, charge, security interest, lien or claim
of any kind in favor of either of U.S. Bank National Association or Christiana
Bank & Trust Company in its own right, or any Person claiming through it.
Neither the Trustee nor the Delaware Trustee, on behalf of the Trust, shall have
the power or authority to transfer, assign, hypothecate, pledge or otherwise
dispose of any of the assets of the Trust to any Person, except as permitted
herein. No creditor of a beneficiary of the Trust, of the Trustee, of the
Delaware Trustee, of the Master Servicer or of the Company shall have any right
to obtain possession of, or otherwise exercise legal or equitable remedies with
respect to, the property of the Trust, except in accordance with the terms of
this Agreement.
Section 2.02. Restrictions on Activities of the Trust. Notwithstanding any other
provision of this Agreement and any provision of law that otherwise so empowers
the Trust, so long as any Certificates are outstanding, the Trust shall not, and
none of the Trustee, the Delaware Trustee, the Company or the Master Servicer
shall knowingly cause the Trust to, do any of the following:
(i) engage in any business or activity other than those set forth in
Section 2.01;
(ii) incur or assume any indebtedness except for such indebtedness that
may be incurred by the Trust in connection with the execution or performance of
this Agreement or any other agreement contemplated hereby;
(iii) guarantee or otherwise assume liability for the debts of any
other party;
(iv) do any act in contravention of this Agreement or any other
agreement contemplated hereby to which the Trust is a party;
55
(v) do any act which would make it impossible to carry on the ordinary
business of the Trust;
(vi) confess a judgment against the Trust;
(vii) possess or assign the assets of the Trust for other than a Trust
purpose;
(viii) cause the Trust to lend any funds to any entity, except as
contemplated by this Agreement; or
(ix) change the purposes and powers of the Trust from those set forth
in this Agreement.
Section 2.03. Separateness Requirements. Notwithstanding any other provision of
this Agreement and any provision of law that otherwise so empowers the Trust, so
long as any Certificates are outstanding, the Trust shall perform the following:
(i) except as expressly permitted by this Agreement, maintain its
books, records, bank accounts and files separate from those of any other Person;
(ii) except as expressly permitted by this Agreement, maintain its
assets in its own separate name and in such a manner that it is not costly or
difficult to segregate, identify, or ascertain such assets;
(iii) consider the interests of the Trust's creditors in connection
with its actions;
(iv) hold itself out to creditors and the public as a legal entity
separate and distinct from any other Person and correct any known
misunderstanding regarding its separate identity and refrain from engaging in
any activity that compromises the separate legal identity of the Trust;
(v) prepare and maintain separate records, accounts and financial
statements in accordance with generally accepted accounting principles,
consistently applied, and susceptible to audit. To the extent it is included in
consolidated financial statements or consolidated tax returns, such financial
statements and tax returns will reflect the separateness of the respective
entities and indicate that the assets of the Trust will not be available to
satisfy the debts of any other Person;
(vi) allocate and charge fairly and reasonably any overhead shared with
any other Person;
(vii) transact all business with affiliates on an arm's-length basis
and pursuant to written, enforceable agreements;
(viii) conduct business solely in the name of the Trust. In that regard
all written and oral communications of the Trust, including, without limitation,
letters, invoices, purchase orders and contracts, shall be made solely in the
name of the Trust;
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(ix) maintain a separate office through which its business shall be
conducted, provided that such office may be an office of the Trustee, which
office shall not be shared with the Company or any affiliates of the Company;
(x) in the event that services have been or are in the future performed
or paid by any Person on behalf of the Trust (other than the Trustee, the
Delaware Trustee, the Master Servicer or the Tax Matters Person as permitted
herein), reimburse such Person, as applicable, for the commercially reasonable
value of such services or expenses provided or incurred by such Person.
Accordingly, (i) the Trust shall reimburse such Person, as applicable, for the
commercially reasonable value of such services or expenses provided or incurred
by such Person; (ii) to the extent invoices for such services are not allocated
and separately billed to the Trust, the amount thereof that was or is to be
allocated and separately billed to the Trust was or will be reasonably related
to the services provided to the Trust; and (iii) any other allocation of direct,
indirect or overhead expenses for items shared between the Trust and any other
Person, was or will be, to the extent practicable, allocated on the basis of
actual use or value of services rendered or otherwise on a basis reasonably
related to actual use or the value of services rendered;
(xi) except as expressly permitted by this Agreement, not commingle its
assets or funds with those of any other Person;
(xii) except as expressly permitted by this Agreement, not assume,
guarantee, or pay the debts or obligations of any other Person;
(xiii) except as expressly permitted by this Agreement, not pledge its
assets for the benefit of any other Person;
(xiv) not hold out its credit or assets as being available to satisfy
the obligations of others;
(xv) pay its liabilities only out of its funds;
(xvi) pay the salaries of its own employees, if any; and
(xvii) cause the agents and other representatives of the Trust, if any,
to act at all times with respect to the Trust consistently and in furtherance of
the foregoing.
None of the Trustee, the Delaware Trustee, the Company or the Master
Servicer shall take any action that is inconsistent with the purposes of the
Trust or Section 2.02 or Section 2.03. Neither the Company nor the Master
Servicer shall direct the Trustee or the Delaware Trustee to take any action
that is inconsistent with the purposes of the Trust or Section 2.02 or Section
2.03.
Section 2.04. Conveyance of Mortgage Pool Assets; Security Interest.
Concurrently with the execution and delivery hereof, the Company does
hereby irrevocably sell, transfer, assign, set over and otherwise convey to the
Trust, without recourse, all the Company's right, title and interest in and to
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the Mortgage Pool Assets (such transfer and assignment by the Company to be
referred to herein as the "Conveyance").
It is the express intent of the parties hereto that the Conveyance of
the Mortgage Pool Assets to the Trust by the Company as provided in this Section
2.04 be, and be construed as, an absolute sale of the Mortgage Pool Assets. It
is, further, not the intention of the parties that such Conveyance be deemed the
grant of a security interest in the Mortgage Pool Assets by the Company to the
Trust to secure a debt or other obligation of the Company. However, in the event
that, notwithstanding the intent of the parties, the Mortgage Pool Assets are
held to be the property of the Company, or if for any other reason this
Agreement is held or deemed to create a security interest in the Mortgage Pool
Assets, then
(a) this Agreement shall constitute a security agreement;
(b) the conveyance provided for in this Section 2.04 shall be deemed to
be a grant by the Company to the Trust of, and the Company hereby grants to the
Trust, to secure all of the Company's obligations hereunder, a security interest
in all of the Company's right, title, and interest, whether now owned or
hereafter acquired, in and to:
(I) The Mortgage Pool Assets;
(II) All accounts, chattel paper, deposit accounts, documents, general
intangibles, goods, instruments, investment property, letter-of-credit rights,
letters of credit, money, and oil, gas, and other minerals, consisting of,
arising from, or relating to, any of the foregoing; and
(III) All proceeds of the foregoing.
The Company shall file such financing statements, and the Company and
the Trustee acting on behalf of the Trust at the direction of the Company shall,
to the extent consistent with this Agreement, take such other actions as may be
necessary to ensure that, if this Agreement were found to create a security
interest in the Conveyed Assets, such security interest would be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement. In connection herewith, the Trust
shall have all of the rights and remedies of a secured party and creditor under
the Uniform Commercial Code as in force in the relevant jurisdiction.
Section 2.05. Delivery of Mortgage Files.
In connection with the sale, transfer and assignment referred to in
Section 2.04, the Company, concurrently with the execution and delivery hereof,
does deliver to, and deposit with, or cause to be delivered to and deposited
with, the Trustee or Custodian the Mortgage Files, which shall at all times be
identified in the records of the Trustee or the Custodian, as applicable, as
being held by or on behalf of the Trust.
Concurrently with the execution and delivery hereof, the Company shall
cause to be filed the UCC assignment or amendment referred to in clause (Y)(vii)
of the definition of "Mortgage File." In connection with its servicing of
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Cooperative Loans, the Master Servicer will use its best efforts to file timely
continuation statements, if necessary, with regard to each financing statement
and assignment relating to Cooperative Loans.
In instances where the original recorded Mortgage or any intervening
assignment thereof (recorded or in recordable form) required to be included in
the Mortgage File pursuant to the definition of "Mortgage File" relating to a
Mortgage Loan is not included in the Mortgage File delivered to the Trustee (or
the Custodian) prior to or concurrently with the execution and delivery hereof
(due to a delay on the part of the recording office), the Company shall deliver
to the Trustee (or the Custodian) a fully legible reproduction (which may be in
electronic form) of the original Mortgage or intervening assignment provided
that the originator, the related Lender or the escrow or title company which
provided closing services in connection with such Mortgage Loan certifies on the
face of such reproduction(s) or copy as follows: "Certified true and correct
copy of original which has been transmitted for recordation." For purposes
hereof, transmitted for recordation means having been mailed or otherwise
delivered for recordation to the appropriate authority. In all such instances,
the Company shall transmit the original recorded Mortgage and any intervening
assignments with evidence of recording thereon (or a copy of such original
Mortgage or intervening assignment certified by the applicable recording office)
(which may be in electronic form) (collectively, "Recording Documents") to the
Trustee (or the Custodian) within 270 days after the execution and delivery
hereof. In instances where, due to a delay on the part of the recording office
where any such Recording Documents have been delivered for recordation, the
Recording Documents cannot be delivered to the Trustee within 270 days after
execution and delivery hereof, the Company shall deliver to the Trustee within
such time period a certificate (a "Company Officer's Certificate") signed by the
Chairman of the Board, President, any Vice President or Treasurer of the Company
stating the date by which the Company expects to receive such Recording
Documents from the applicable recording office. In the event that Recording
Documents have still not been received by the Company and delivered to the
Trustee (or the Custodian) by the date specified in its previous Company
Officer's Certificate delivered to the Trustee, the Company shall deliver to the
Trustee by such date an additional Company Officer's Certificate stating a
revised date by which the Company expects to receive the applicable Recording
Documents. This procedure shall be repeated until the Recording Documents have
been received by the Company and delivered to the Trustee (or the Custodian).
For Mortgage Loans for which the Company has received a Payoff after
the Cut-Off Date and prior to the date of execution and delivery hereof, the
Company, in lieu of delivering the above documents, herewith delivers to the
Trustee a certification of a Servicing Officer of the nature set forth in
Section 3.10.
The Trustee is authorized, with the Master Servicer's consent, to
appoint any bank or trust company approved by each of the Company and the Master
Servicer as Custodian of the documents or instruments referred to above in this
Section 2.05, and to enter into a Custodial Agreement for such purpose,
provided, however, that the Trustee shall be and remain liable for the acts of
any such Custodian only to the extent that it is responsible for its own acts
hereunder. Any documents delivered by the Company or the Master Servicer to the
Custodian, if any, shall be deemed to have been delivered to the Trustee for all
purposes hereunder; and any documents held by the Custodian, if any, shall be
deemed to be held by the Trustee for all purposes hereunder. There shall be a
written Custodial Agreement between the Trustee and each Custodian. Each
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Custodial Agreement shall contain an acknowledgment by the Custodian that all
Mortgage Pool Assets, Mortgage Files, and related documents and property held by
it at any time are held by it for the benefit of the Trust. Pursuant to the
Initial Custodial Agreement, the Initial Custodian shall perform
responsibilities of the Trustee on the Trustee's behalf with respect to the
delivery, receipt, examination and custody of the Mortgage Files related to the
Mortgage Loans identified in the Initial Custodial Agreement, as provided
therein.
On or promptly after the Closing Date, the Master Servicer shall cause
the MERS(R) System to indicate that each MERS Loan, if any, has been assigned to
"U.S. Bank National Association, as Custodian/Trustee, without recourse" or to
"Washington Mutual MSC Mortgage Pass-Through Certificates Series 2004-RA1 Trust,
without recourse" by including in the MERS(R) System computer files (a) the code
necessary to identify the Trustee and (b) the code necessary to identify the
series of the Certificates issued in connection with such Mortgage Loans;
provided, however, that in the event the Company acquired such Mortgage Loans
from an affiliate of the Company, then the Master Servicer need not cause the
MERS(R) System to indicate such assignment. The Master Servicer shall not alter
the codes referenced in this paragraph with respect to any MERS Loan during the
term of this Agreement except in connection with an assignment of such MERS Loan
or de-registration thereof from the MERS(R) System in accordance with the terms
of this Agreement.
Section 2.06. REMIC Election for REMIC I.
The Tax Matters Person, shall, on behalf of REMIC I, elect to treat
REMIC I as a REMIC within the meaning of Section 860D of the Code and, if
necessary, under applicable state laws. Such election shall be included in the
Form 1066 and any appropriate state return to be filed on behalf of REMIC I for
its first taxable year.
The Closing Date is hereby designated as the "startup day" of REMIC I
within the meaning of Section 860G(a)(9) of the Code.
The regular interests (as set forth in the table contained in the
Preliminary Statement hereto) relating to REMIC I are hereby designated as
"regular interests" in REMIC I for purposes of Section 860G(a)(1) of the Code.
The Class R-1 Residual Interest is hereby designated as the sole class of
"residual interest" in REMIC I for purposes of Section 860G(a)(2) of the Code.
The REMIC I Regular Interests and the Class R-1 Residual Interest shall together
be deemed to be a separate series of beneficial interests in the assets of the
Trust consisting of the REMIC I Assets pursuant to Section 3806(b)(2) of the
Statutory Trust Statute.
The parties intend that the affairs of REMIC I shall constitute, and
that the affairs of REMIC I shall be conducted so as to qualify REMIC I as a
REMIC. In furtherance of such intention, the Tax Matters Person shall, on behalf
of REMIC I: (a) prepare and file, or cause to be prepared and filed, a federal
tax return using a calendar year as the taxable year and using an accrual method
of accounting for REMIC I when and as required by the REMIC Provisions and other
applicable federal income tax laws; (b) make an election, on behalf of the
trust, for REMIC I to be treated as a REMIC on the federal tax return of REMIC I
for its first taxable year, in accordance with the REMIC Provisions; (c) prepare
and forward, or cause to be prepared and forwarded, to the Holders of the REMIC
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I Regular Interests and the Class R-1 Residual Interest and the Trustee, all
information reports as and when required to be provided to them in accordance
with the REMIC Provisions, and make available the information necessary for the
application of Section 860E(e) of the Code; (d) conduct the affairs of REMIC I
at all times that any REMIC I Regular Interests are outstanding so as to
maintain the status of REMIC I as a REMIC under the REMIC Provisions; (e) not
knowingly or intentionally take any action or omit to take any action that would
cause the termination of the REMIC status of REMIC I; and (f) pay the amount of
any federal prohibited transaction penalty taxes imposed on REMIC I when and as
the same shall be due and payable (but such obligation shall not prevent the
Company or any other appropriate person from contesting any such tax in
appropriate proceedings and shall not prevent the Company from withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings); provided, that the Company shall be entitled to be indemnified by
REMIC I for any such prohibited transaction penalty taxes if the Company's
failure to exercise reasonable care was not the primary cause of the imposition
of such prohibited transaction penalty taxes.
The Trustee and the Master Servicer shall promptly provide the Company
with such information in the possession of the Trustee or the Master Servicer,
respectively, as the Company may from time to time request for the purpose of
enabling the Company to prepare tax returns. If so requested by the Tax Matters
Person, the Trustee shall sign tax returns on behalf of the REMICs.
In the event that a Mortgage Loan is discovered to have a defect which,
had such defect been discovered before the startup day, would have prevented
such Mortgage Loan from being a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code, and the Company does not repurchase such
Mortgage Loan within 90 days of such date, the Master Servicer, on behalf of the
Trustee, shall within 90 days of the date such defect is discovered sell such
Mortgage Loan at such price as the Master Servicer in its sole discretion,
determines to be the greatest price that will result in the purchase thereof
within 90 days of such date, unless the Master Servicer delivers to the Trustee
an Opinion of Counsel to the effect that continuing to hold such Mortgage Loan
will not adversely affect the status of the electing portion of REMIC I as a
REMIC for federal income tax purposes.
In the event that any tax is imposed on "prohibited transactions" of
REMIC I as defined in Section 860F of the Code and not paid by the Company
pursuant to clause (f) of the third preceding paragraph, such tax shall be
charged against amounts otherwise distributable to the Class R-1 Residual
Interest. Notwithstanding anything to the contrary contained herein, the Trustee
is hereby authorized to retain from amounts otherwise distributable to the Class
R-1 Residual Interest on any Distribution Date sufficient funds to reimburse the
Tax Matters Person (or any agent therefor appointed in accordance with the
definition of "Tax Matters Person" herein, if applicable), for the payment of
such tax (upon the written request of the Tax Matters Person or its agent, to
the extent reimbursable, and to the extent that the Tax Matters Person or its
agent has not been previously reimbursed therefor).
Section 2.07. Acceptance by Trustee. The Trustee acknowledges receipt (or with
respect to any Mortgage Loan subject to a Custodial Agreement, receipt by the
Custodian thereunder) on behalf of the Trust of the documents (or certified
copies thereof as specified in Section 2.05) referred to in Section 2.05 above,
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but without having made the review required to be made within 45 days pursuant
to this Section 2.07. The Trustee acknowledges that all Mortgage Pool Assets,
Mortgage Files, and related documents and property held by it at any time are
held by it as Trustee of the Trust for the benefit of the holders of the
Certificates. The Trustee agrees, for the benefit of the Trust, to review (or,
with respect to the Mortgage Loans identified in the Initial Custodial
Agreement, cause the Initial Custodian to review) each Mortgage File within 45
days after the Closing Date and deliver to the Company a certification (or, with
respect to the Mortgage Loans identified in the Initial Custodial Agreement,
cause the Initial Custodian to deliver to the Company a certification, which
satisfies the applicable requirements of this Agreement) in the form attached as
Exhibit M hereto, to the effect that, except as noted, all documents required
(in the case of instruments described in clauses (X)(iv) and (Y)(ix) of the
definition of "Mortgage File," known by the Trustee to be required) pursuant to
the definition of "Mortgage File" and Section 2.05 have been executed and
received, and that such documents relate to the Mortgage Loans identified in the
Mortgage Loan Schedule. In performing such review, the Trustee may rely upon the
purported genuineness and due execution of any such document, and on the
purported genuineness of any signature thereon. The Trustee shall not be
required to make any independent examination of any documents contained in each
Mortgage File beyond the review specifically required herein. The Trustee makes
no representations as to: (i) the validity, legality, enforceability or
genuineness of any of the Mortgage Loans identified on the Mortgage Loan
Schedule, or (ii) the collectability, insurability, effectiveness or suitability
of any Mortgage Loan. If the Trustee finds any document or documents
constituting a part of a Mortgage File not to have been executed or received, or
to be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule,
the Trustee shall promptly so notify the Company. The Company hereby covenants
and agrees that, if any such defect cannot be corrected or cured, the Company
shall, not later than 60 days after the Trustee's notice to it respecting such
defect, within the three-month period commencing on the Closing Date (or within
the two-year period commencing on the Closing Date if the related Mortgage Loan
is a "defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of
the Code and Treasury Regulation Section 1.860G-2(f)), either (i) repurchase the
related Mortgage Loan from the Trust at the Purchase Price, or (ii) substitute
for any Mortgage Loan to which such defect relates a different mortgage loan (a
"Substitute Mortgage Loan") which is a "qualified replacement mortgage" (as
defined in the Code) and, (iii) after such three-month or two-year period, as
applicable, the Company shall repurchase the Mortgage Loan from the Trust at the
Purchase Price but only if the Mortgage Loan is in default or default is, in the
judgment of the Company, reasonably imminent. If such defect would cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the Code),
then notwithstanding the previous sentence or any provision in the definition of
"Purchase Price", the repurchase or substitution must occur within the sooner of
(i) 90 days from the date the defect was discovered or (ii) in the case of
substitution, two years from the Closing Date.
Such Substitute Mortgage Loan shall mature no later than, and not more
than two years earlier than, have a principal balance and Loan-to-Value Ratio
equal to or less than, and have a Pass-Through Rate on the date of substitution
equal to or no more than 1 percentage point greater than the Mortgage Loan being
substituted for. If the aggregate of the principal balances of the Substitute
Mortgage Loans substituted for a Mortgage Loan is less than the Principal
Balance of such Mortgage Loan, the Company shall pay the difference in cash,
together with unpaid accrued interest, if any, on the difference between the
aggregate of the principal balances of the Substitute Mortgage Loans and the
Principal Balance of such Mortgage Loan during the calendar month in which the
substitution occurs to the last day of such month at a rate equal to the
applicable Pass-Through Rate, to the Trustee for deposit into the Certificate
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Account, and such payment by the Company shall be treated in the same manner as
proceeds of the repurchase by the Company of a Mortgage Loan pursuant to this
Section 2.07. Furthermore, such Substitute Mortgage Loan shall otherwise have
such characteristics so that the representations and warranties of the Company
set forth in Section 2.08 hereof would not have been incorrect had such
Substitute Mortgage Loan originally been a Mortgage Loan, and the Company shall
be deemed to have made such representations and warranties as to such Substitute
Mortgage Loan. A Substitute Mortgage Loan may be substituted for a defective
Mortgage Loan whether or not such defective Mortgage Loan is itself a Substitute
Mortgage Loan. Notwithstanding anything herein to the contrary, each Substitute
Mortgage Loan shall be deemed to have the same Pass-Through Rate as the Mortgage
Loan for which it was substituted.
The Purchase Price for each purchased or repurchased Mortgage Loan
shall be deposited by the Company in the Certificate Account and, upon receipt
by the Trustee of written notification of such deposit signed by a Servicing
Officer, the Trustee shall (or, if applicable, shall cause the Custodian to)
release to the Company the related Mortgage File and shall execute and deliver
(or, in the event that the Mortgage Files are held in the name of the Custodian,
shall cause the Custodian to execute and deliver) on behalf of the Trust such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest in the Company or its designee or assignee title to any
Mortgage Loan released pursuant hereto. In furtherance of the foregoing, if such
Mortgage Loan is a MERS Loan and as a result of the repurchase thereof such
Mortgage Loan shall cease to be serviced by a servicer that is a member of MERS
or if the Company or its assignee shall so request, the Master Servicer shall
cause MERS to execute and deliver an assignment of the Mortgage in recordable
form from MERS to the Company or its assignee and shall cause the Mortgage Loan
to be removed from registration on the MERS(R) System in accordance with MERS'
rules and procedures. The obligation of the Company to repurchase or substitute
any Mortgage Loan as to which such a defect in a constituent document exists
shall constitute the sole remedy respecting such defect available to the Trust
or the Holders of the REMIC I Regular Interests or the Class R-1 Residual
Interest.
Section 2.08. Representations and Warranties of the Company Concerning the
Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided
for in Section 2.04 herein, the Company hereby represents and warrants to the
Trust that as of the Cut-Off Date unless otherwise indicated:
(i) The information set forth in the Mortgage Loan Schedule was true and correct
in all material respects at the date or dates respecting which such information
is furnished;
(ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is
not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi))
first lien on an unencumbered estate in fee simple or (if the related Mortgage
Loan is secured by the interest of the Mortgagor as a lessee under a ground
lease) leasehold estate in the related Mortgaged Property subject only to (a)
liens for current real property taxes and special assessments; (b) covenants,
conditions and restrictions, rights of way, easements and other matters of
public record as of the date of recording such Mortgage, such exceptions
appearing of record being acceptable to mortgage lending institutions generally
or specifically reflected in the appraisal obtained in connection with the
origination of the Mortgage Loan; (c) exceptions set forth in the title
insurance policy relating to such Mortgage, such exceptions being acceptable to
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mortgage lending institutions generally; and (d) other matters to which like
properties are commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Mortgage;
(iii) Immediately upon the transfer and assignment contemplated herein, the
Trust shall have good title to, and will be the sole legal owner of, each
Mortgage Loan, free and clear of any encumbrance or lien (other than any lien
under this Agreement);
(iv) Except as set forth on Schedule 1 hereto, as of the day prior to the
Cut-Off Date, all payments due on each Mortgage Loan had been made and no
Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more
than once in the preceding 12 months and any such delinquency lasted for no more
than 30 days;
(v) As of the Closing Date, there is no late assessment for delinquent taxes
outstanding against any Mortgaged Property;
(vi) As of the Closing Date, there is no offset, defense or counterclaim to any
Mortgage Note, including the obligation of the Mortgagor to pay the unpaid
principal or interest on such Mortgage Note except to the extent that the
Buydown Agreement for a Buydown Loan forgives certain indebtedness of a
Mortgagor;
(vii) As of the Closing Date, each Mortgaged Property is free of damage and in
good repair, ordinary wear and tear excepted;
(viii) Each Mortgage Loan at the time it was made complied with all applicable
local, state and federal laws, including, without limitation, usury, equal
credit opportunity, disclosure and recording laws, and predatory and abusive
lending laws applicable to the originating lender;
(ix) Each Mortgage Loan was originated by a savings association, savings bank,
credit union, insurance company, or similar institution which is supervised and
examined by a federal or state authority or by a mortgagee approved by the FHA
and will be serviced by an institution which meets the servicer eligibility
requirements established by the Company;
(x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is
covered by an ALTA form or CLTA form of mortgagee title insurance policy or
other form of policy of insurance which has been issued by, and is the valid and
binding obligation of, a title insurer which, as of the origination date of such
Mortgage Loan, was qualified to do business in the state in which the related
Mortgaged Property is located. Such policy insures the originator of the
Mortgage Loan, its successors and assigns as to the first priority lien of the
Mortgage in the original principal amount of the Mortgage Loan subject to the
exceptions set forth in such policy. Such policy is in full force and effect and
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inures to the benefit of the Trust upon the consummation of the transactions
contemplated by this Agreement and no claims have been made under such policy,
and no prior holder of the related Mortgage, including the Company, has done, by
act or omission, anything which would impair the coverage of such policy;
(xi) Approximately 99.6% (by Principal Balance) of the Group I Loans either (i)
had Loan-to-Value Ratios as of the Cut-Off Date less than or equal to 80% or
(ii) had Loan-to-Value Ratios as of the Cut-Off Date in excess of 80% and were
covered by a Primary Insurance Policy or an FHA insurance policy or a VA
guaranty, and such policy or guaranty is valid and remains in full force and
effect; and approximately 99.0% (by Principal Balance) of the Group II Loans
either (i) had Loan-to-Value Ratios as of the Cut-Off Date less than or equal to
80% or (ii) had Loan-to-Value Ratios as of the Cut-Off Date in excess of 80% and
were covered by a Primary Insurance Policy or an FHA insurance policy or a VA
guaranty, and such policy or guaranty is valid and remains in full force and
effect;
(xii) As of the Closing Date, all policies of insurance required by this
Agreement or by a Selling and Servicing Contract have been validly issued and
remain in full force and effect, including such policies covering the Company,
the Master Servicer or any Servicer;
(xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy
holds a rating acceptable to the Rating Agencies;
(xiv) Each Mortgage (exclusive of any riders thereto) was documented by
appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of
origination, or other instruments approved by the Company;
(xv) As of the Closing Date, the Mortgaged Property securing each Mortgage
relating to a Mortgage Loan that is not a Cooperative Loan is improved with a
one- to four-family dwelling unit, including units in a duplex, triplex,
fourplex, condominium project, townhouse, a planned unit development or a de
minimis planned unit development;
(xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal,
valid and binding obligation of the maker thereof and is enforceable in
accordance with its terms, except only as such enforcement may be limited by
laws affecting the enforcement of creditors' rights generally and principles of
equity;
(xvii) As of the date of origination, as to Mortgaged Properties which are units
in condominiums or planned unit developments, all of such units met the
applicable Underwriting Standards, are located in a condominium or planned unit
development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or
are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by
the Company;
(xviii) None of the Mortgage Loans are Buydown Loans;
(xix) Based solely on representations of the Mortgagors obtained at the
origination of the related Mortgage Loans, approximately 93.44% (by Principal
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Balance) of the Group I Loans will be secured by owner occupied Mortgaged
Properties which are the primary residences of the related Mortgagors,
approximately 5.33% (by Principal Balance) of the Group I Loans will be secured
by owner occupied Mortgaged Properties which were second or vacation homes of
the Mortgagors and 1.23% (by Principal Balance) of the Group I Loans will be
secured by Mortgaged Properties which were investor properties of the related
Mortgagors; and approximately 94.85% (by Principal Balance) of the Group II
Loans will be secured by owner occupied Mortgaged Properties which are the
primary residences of the related Mortgagors, approximately 3.28% (by Principal
Balance) of the Group II Loans will be secured by owner occupied Mortgaged
Properties which were second or vacation homes of the Mortgagors and
approximately 1.87% (by Principal Balance) of the Group II Loans will be secured
by Mortgaged Properties which were investor properties of the related
Mortgagors;
(xx) Prior to origination or refinancing, an appraisal of each Mortgaged
Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or
Xxxxxxx Mac;
(xxi) The Mortgage Loans have been underwritten substantially in accordance with
the applicable Underwriting Standards;
(xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on
sale provisions may not be exercised at the time of a transfer if prohibited by
law;
(xxiii) The Company used no adverse selection procedures in selecting the
Mortgage Loans from among the outstanding fixed-rate conventional mortgage loans
purchased by it which were available for inclusion in the Mortgage Pool and as
to which the representations and warranties in this Section 2.08 could be made;
(xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is
pledged as security for the Cooperative Loan is held by a person as a
tenant-stockholder (as defined in Section 216 of the Code) in a cooperative
housing corporation (as defined in Section 216 of the Code);
(xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable
(except as such enforcement may be limited by laws affecting the enforcement of
creditors' rights generally and principles of equity) perfected first lien and
security interest in the related Cooperative Stock securing the related Mortgage
Note, subject only to (a) liens of the Cooperative for unpaid assessments
representing the Mortgagor's pro rata share of the Cooperative's payments for
its blanket mortgage, current and future real property taxes, insurance
premiums, maintenance fees and other assessments to which like collateral is
commonly subject, and (b) other matters to which like collateral is commonly
subject which do not materially interfere with the benefits of the security
intended to be provided by the Security Agreement;
(xxvi) With respect to any Mortgage Loan as to which an affidavit has been
delivered to the Trustee certifying that the original Mortgage Note is a
Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the
enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of
the Trust will not be materially adversely affected by the absence of the
original Mortgage Note (or portion thereof, as applicable);
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(xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage
Loan, approximately 99.64% (by Principal Balance) of the Group I Loans had a
current Loan-to-Value Ratio less than or equal to 80%, approximately 0.36% (by
Principal Balance) of the Group I Loans had a current Loan-to-Value Ratio
greater than 80% but less than or equal to 90% and no Group I Loan had a current
Loan-to-Value Ratio greater than 90%; and approximately 93.67% (by Principal
Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or
equal to 80%, approximately 5.73% (by Principal Balance) of the Group II Loans
had a current Loan-to-Value Ratio greater than 80% but less than or equal to 90%
and approximately 0.61% (by Principal Balance) of the Group II Loans had a
current Loan-to-Value Ratio greater than 90%;
(xxviii) Approximately 51.08% (by Principal Balance) of the Group I Loans and
approximately 49.72% (by Principal Balance) of the Group II Loans were
originated for the purpose of refinancing existing mortgage debt, including
cash-out refinancings; and approximately 22.86% (by Principal Balance) of the
Group I Loans and approximately 41.71% (by Principal Balance) of the Group II
Loans were originated for the purpose of purchasing the Mortgaged Property;
(xxix) Not less than approximately 48.46% and 67.04% (by Principal Balance) of
the Group I Loans and Group II Loans, respectively, were originated under full
documentation programs;
(xxx) Each Mortgage Loan constitutes a qualified mortgage under Section
860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1);
(xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection
Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a
"predatory" loan as defined under any state or local law or regulation
applicable to the originator of such Mortgage Loan or which would result in
liability to the purchaser or assignee of such Mortgage Loan under any predatory
or abusive lending law, or, without limiting the generality of the foregoing, is
a "covered" loan under the laws of the states of California, Colorado or Ohio;
(xxxii) No Mortgage Loan has a Closing Date Loan-to-Value Ratio greater
than 100%;
(xxxiii) Each Additional Collateral Loan is covered by a Surety Bond;
and
(xxxiv) Each Additional Collateral Loan is secured solely by the
related Mortgaged Property and by a securities account owned by the related
Mortgagor or a guarantor.
It is understood and agreed that the representations and warranties set
forth in this Section 2.08 shall survive delivery of the respective Mortgage
Files to the Trustee or the Custodian, as the case may be, and shall continue
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throughout the term of this Agreement. Upon discovery by any of the Company, the
Master Servicer, the Trustee or the Custodian of a breach of any of the
foregoing representations and warranties (in the case of a breach of the
representation set forth in clause (xxxii) of this Section 2.08, as based on a
determination of the applicable Closing Date Loan-to-Value Ratio using such
evidence as is reasonably designed to approximate the value of the applicable
Mortgaged Property as of the Closing Date) which materially and adversely
affects the value of the related Mortgage Loans or the interests of the Trust in
the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the
Custodian, as the case may be, discovering such breach shall give prompt written
notice to the others. Any breach of the representation set forth in clause (xxx)
or clause (xxxii) of this Section 2.08 shall be deemed to materially and
adversely affect the value of the related Mortgage Loans or the interests of the
Trust in the related Mortgage Loans. Within 90 days of its discovery or its
receipt of notice of breach, the Company shall repurchase, subject to the
limitations set forth in the definition of "Purchase Price," or substitute for
the affected Mortgage Loan or Mortgage Loans or any property acquired in respect
thereof from the Trust, unless it has cured such breach in all material
respects; provided, however, that in the case of a breach of the representation
set forth in clause (xxxii) of this Section 2.08, any such substitution may be
made only within two years after the Closing Date. After the end of the
three-month period beginning on the "start-up day," any such substitution shall
be made only if the Company provides to the Trustee an Opinion of Counsel
addressed to the Trust and the Trustee reasonably satisfactory to the Trustee
that each Substitute Mortgage Loan will be a "qualified replacement mortgage"
within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be
made in the manner and within the time limits set forth in Section 2.07. Any
such repurchase by the Company shall be accomplished in the manner and at the
Purchase Price, if applicable, but shall not be subject to the time limits, set
forth in Section 2.07. It is understood and agreed that the obligation of the
Company to provide such substitution or to make such repurchase of any affected
Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as
to which a breach has occurred and is continuing shall constitute the sole
remedy respecting such breach available to the Holders of the REMIC I Regular
Interests and the Class R-1 Residual Interest or the Trustee on behalf of the
Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.
Section 2.09. Acknowledgment of Transfer of Mortgage Pool Assets. The Trustee
hereby acknowledges and accepts on behalf of the Trust the transfer and
assignment to the Trust of the Mortgage Pool Assets, but without having made the
review required to be made within 45 days pursuant to Section 2.07, and declares
that as of the Closing Date it (or, with respect to the Mortgage Loans
identified in the Initial Custodial Agreement, the Custodian on behalf of the
Trustee) holds and shall hold any documents constituting a part of the Mortgage
Pool Assets, and the Mortgage Pool Assets, as Trustee in trust, upon the trust
herein set forth, for the use and benefit of all present and future Holders of
the REMIC I Regular Interests and the Class R-1 Residual Interest. In connection
therewith, as of the Closing Date, in exchange for the Mortgage Pool Assets, the
Trust does hereby issue to the Company the REMIC I Regular Interests and the
Class R-1 Residual Interest.
Section 2.10. Conveyance of REMIC II Assets; Security Interest. Concurrently
with the execution and delivery hereof, the Company does hereby irrevocably
sell, transfer, assign, set over, and otherwise convey to the Trust, without
recourse, all the Company's right, title and interest in and to the REMIC II
Assets. Pursuant to Section 3818 of the Statutory Trust Statute, the REMIC I
Regular Interests shall not be cancelled and shall be held as treasury interests
owned by the Trust. The Trustee acknowledges that the REMIC II Assets are held
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by it as Trustee of the Trust for the benefit of the holders of the
Certificates. It is the express intent of the parties hereto that the conveyance
of the REMIC II Assets to the Trust by the Company as provided in this Section
2.10 be, and be construed as, an absolute sale of the REMIC II Assets. It is,
further, not the intention of the parties that such conveyance be deemed the
grant of a security interest in the REMIC II Assets by the Company to the Trust
to secure a debt or other obligation of the Company. However, in the event that,
notwithstanding the intent of the parties, the REMIC II Assets are held to be
the property of the Company, or if for any other reason this Agreement is held
or deemed to create a security interest in the REMIC II Assets, then
(a) this Agreement shall constitute a security agreement;
(b) the conveyance provided for in this Section 2.10 shall be deemed to
be a grant by the Company to the Trust of, and the Company hereby grants to the
Trust, to secure all of the Company's obligations hereunder, a security interest
in all of the Company's right, title, and interest, whether now owned or
hereafter acquired, in and to:
(I) The REMIC I Regular Interests, including without limitation all
rights represented thereby in and to the Mortgage Pool Assets and the proceeds
thereof;
(II) All accounts, chattel paper, deposit accounts, documents, general
intangibles, goods, instruments, investment property, letter-of-credit rights,
letters of credit, money, and oil, gas, and other minerals, consisting of,
arising from, or relating to, any of the foregoing; and
(III) All proceeds of the foregoing.
The Company shall file such financing statements, and the Company and
the Trustee acting on behalf of the Trust at the direction of the Company shall,
to the extent consistent with this Agreement, take such other actions as may be
necessary to ensure that, if this Agreement were found to create a security
interest in the REMIC II Assets, such security interest would be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of this Agreement. In connection herewith, the Trust
shall have all of the rights and remedies of a secured party and creditor under
the Uniform Commercial Code as in force in the relevant jurisdiction.
The Trustee is authorized, with the Master Servicer's consent, to
appoint any bank or trust company approved by each of the Company and the Master
Servicer as Custodian of the documents or instruments referred to above in this
Section 2.10, and to enter into a Custodial Agreement for such purpose;
provided, however, that the Trustee shall be and remain liable for actions of
any such Custodian only to the extent it would otherwise be responsible for such
acts hereunder. Any documents delivered by the Company or the Master Servicer to
the Custodian, if any, shall be deemed to have been delivered to the Trustee for
all purposes hereunder; and any documents held by the Custodian, if any, shall
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be deemed to be held by the Trustee for all purposes hereunder. There shall be a
written Custodial Agreement between the Trustee and each Custodian. Each
Custodial Agreement shall contain an acknowledgment by the Custodian that all
documents, instruments, and property held by it at any time are held by it for
the benefit of the Trust.
Section 2.11. REMIC Election for REMIC II.
The Tax Matters Person shall, on behalf of REMIC II, elect to treat
REMIC II as a REMIC within the meaning of Section 860D of the Code and, if
necessary, under applicable state laws. Such election shall be included in the
Form 1066 and any appropriate state return to be filed on behalf of REMIC II for
its first taxable year.
The Closing Date is hereby designated as the "startup day" of REMIC II
within the meaning of Section 860G(a)(9) of the Code.
The regular interests (as set forth in the table contained in the
Preliminary Statement hereto) relating to REMIC II are hereby designated as
"regular interests" in REMIC II for purposes of Section 860G(a)(1) of the Code.
The Class R-2 Residual Interest is hereby designated as the sole class of
"residual interest" in REMIC II for purposes of Section 860G(a)(2) of the Code.
The REMIC II Regular Interests and the Class R-2 Residual Interest shall
together be deemed to be a separate series of beneficial interests in the assets
of the Trust consisting of the REMIC II Assets pursuant to Section 3806(b)(2) of
the Statutory Trust Statute.
The parties intend that the affairs of REMIC II shall constitute, and
that the affairs of REMIC II shall be conducted so as to qualify it as, a REMIC.
In furtherance of such intention, the Tax Matters Person shall, on behalf of
REMIC II: (a) prepare and file, or cause to be prepared and filed, a federal tax
return using a calendar year as the taxable year for REMIC II when and as
required by the REMIC provisions and other applicable federal income tax laws;
(b) make an election, on behalf of REMIC II, to be treated as a REMIC on the
federal tax return of REMIC II for its first taxable year, in accordance with
the REMIC provisions; (c) prepare and forward, or cause to be prepared and
forwarded, to the Certificateholders and the Holders of the Class R-2 Residual
Interest all information reports as and when required to be provided to them in
accordance with the REMIC provisions; (d) conduct the affairs of REMIC II at all
times that any of the Certificates are outstanding so as to maintain the status
of REMIC II as a REMIC under the REMIC provisions; (e) not knowingly or
intentionally take any action or omit to take any action that would cause the
termination of the REMIC status of REMIC II; and (f) pay the amount of any
federal prohibited transaction penalty taxes imposed on REMIC II when and as the
same shall be due and payable (but such obligation shall not prevent the Company
or any other appropriate person from contesting any such tax in appropriate
proceedings and shall not prevent the Company from withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings); provided,
that the Company shall be entitled to be indemnified from REMIC II for any such
prohibited transaction penalty taxes if the Company's failure to exercise
reasonable care was not the primary cause of the imposition of such prohibited
transaction penalty taxes.
In the event that any tax is imposed on "prohibited transactions" of
REMIC II as defined in Section 860F of the Code and not paid by the Company
pursuant to clause (f) of the preceding paragraph, such tax shall be charged
against amounts otherwise distributable to the Holders of the Class R-2 Residual
Interest. Notwithstanding anything to the contrary contained herein, the Company
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is hereby authorized to retain from amounts otherwise distributable to the
Holders of the Class R-2 Residual Interest on any Distribution Date sufficient
funds to reimburse the Company for the payment of such tax (to the extent that
the Company has not been previously reimbursed therefor).
Section 2.12. Acknowledgement of Transfer of REMIC II Assets; Authentication of
Certificates. The Trustee hereby acknowledges and accepts on behalf of the Trust
the assignment to the Trust of the REMIC II Assets and declares that as of the
Closing Date it holds and shall hold any documents constituting a part of the
REMIC II Assets, and the REMIC II Assets, as Trustee in trust, upon the trust
herein set forth, for the use and benefit of all present and future Holders of
the Certificates (other than the Class R Certificates) and the Class R-2
Residual Interest. In connection therewith, as of the Closing Date, in exchange
for the REMIC II Assets, the Trustee on behalf of the Trust shall cause to be
authenticated and delivered, upon and pursuant to the order of the Company, the
Certificates in Authorized Denominations.
Section 2.13. Legal Title. Legal title to all assets of the Trust shall be
vested at all times in the Trust as a separate legal entity.
Section 2.14. Compliance with ERISA Requirements. For purposes of ensuring
compliance with the requirements of the "underwriter's exemption" (U.S.
Department of Labor Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487
(Aug. 22, 2002)), issued under ERISA, and for the avoidance of any doubt as to
the applicability of other provisions of this Agreement, to the fullest extent
permitted by applicable law and except as contemplated by this Agreement, (1)
the Trust shall not be a party to any merger, consolidation or reorganization,
or liquidate or sell its assets and (2) so long as any Certificates are
outstanding, none of the Company, the Trustee or the Delaware Trustee shall
institute against the Trust, or join in any institution against the Trust of,
any bankruptcy or insolvency proceedings under any federal or state bankruptcy,
insolvency or similar law.
Section 2.15. Additional Representation of the Company Concerning the Mortgage
Loans. The Company hereby represents and warrants to the Trust that it does not
intend for the Mortgage Pool to include any Mortgage Loan that is a "high-cost
home loan" as defined under the New Jersey Home Ownership Security Act of 2002
or the New Mexico Home Loan Protection Act. Based on the foregoing
representation and warranty and on the Company's obligation, pursuant to Section
2.08, to repurchase or substitute for the affected Mortgage Loan in the event of
a breach of the representation set forth in clause (xxxi) of Section 2.08, the
other parties hereto agree and understand that it is not intended for the
Mortgage Pool to include any Mortgage Loan that is a "high-cost home loan" as
defined under the New Jersey Home Ownership Security Act of 2002 or the New
Mexico Home Loan Protection Act.
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01. The Company to Act as Master Servicer. The Company shall act as
Master Servicer to service and administer the Mortgage Loans on behalf of the
Trust in accordance with the terms hereof, consistent with prudent mortgage loan
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servicing practices and (unless inconsistent with prudent mortgage loan
servicing practices) in the same manner in which, and with the same care, skill,
prudence and diligence with which, it services and administers similar mortgage
loans for other portfolios, and shall have full power and authority to do or
cause to be done any and all things in connection with such servicing and
administration which a prudent servicer of mortgage loans would do under similar
circumstances, including, without limitation, the power and authority to bring
actions and defend the Mortgage Pool Assets on behalf of the Trust in order to
enforce the terms of the Mortgage Notes. The Master Servicer may perform its
master servicing responsibilities through agents or independent contractors, but
shall not thereby be released from any of its responsibilities hereunder and the
Master Servicer shall diligently pursue all of its rights against such agents or
independent contractors.
The Master Servicer shall make reasonable efforts to collect or cause
to be collected all payments called for under the terms and provisions of the
Mortgage Loans and shall, to the extent such procedures shall be consistent with
this Agreement and the terms and provisions of any Primary Insurance Policy, any
FHA insurance policy or VA guaranty, any hazard insurance policy, and federal
flood insurance, cause to be followed such collection procedures as are followed
with respect to mortgage loans comparable to the Mortgage Loans and held in
portfolios of responsible mortgage lenders in the local areas where each
Mortgaged Property is located. The Master Servicer shall enforce "due-on-sale"
clauses with respect to the related Mortgage Loans, to the extent permitted by
law, subject to the provisions set forth in Section 3.08.
Consistent with the foregoing, the Master Servicer may, in accordance
with prudent mortgage loan servicing practices, (i) waive or cause to be waived
any assumption fee or late payment charge in connection with the prepayment of
any Mortgage Loan and (ii) only upon determining that the coverage of any
applicable insurance policy or guaranty related to a Mortgage Loan will not be
materially adversely affected, arrange a schedule, running for no more than 180
days after the first delinquent Due Date, for payment of any delinquent
installment on any Mortgage Note or for the liquidation of delinquent items.
Subject to the fourth sentence of this paragraph, the Master Servicer shall have
the right, but not the obligation, to purchase any Mortgage Loan delinquent 90
consecutive days or more for an amount equal to its Purchase Price; provided,
however, that the aggregate Purchase Price of Mortgage Loans so purchased
pursuant to this sentence shall not exceed one-half of one percent (0.50%) of
the aggregate Principal Balance, as of the Cut-Off Date, of all Mortgage Loans.
Subject to the fourth sentence of this paragraph, the Master Servicer shall also
have the right, but not the obligation, to purchase, for an amount equal to its
Purchase Price, any Mortgage Loan delinquent 90 consecutive days or more, for
the purpose of requiring the Person who sold such Mortgage Loan to the Company
to repurchase such Mortgage Loan based on a breach of a representation or
warranty made by such Person in connection with the Company's purchase or
acquisition of such Mortgage Loan. Notwithstanding the immediately preceding two
sentences, the Master Servicer's right to purchase any Mortgage Loan pursuant to
either of such preceding sentences shall be subject to the following additional
conditions: (x) if the date on which the Mortgage Loan first became 90-day
delinquent (the "Initial Delinquency Date") occurred during the first two
calendar months of a calendar quarter, the Master Servicer may exercise the
purchase right during the period commencing on the Initial Delinquency Date and
ending on the last Master Servicer Business Day of such calendar quarter, (y) if
the Initial Delinquency Date occurred during the third calendar month of a
calendar quarter, the Master Servicer may exercise the purchase right during the
period commencing on the first day of the immediately succeeding calendar
quarter and ending on the last Master Servicer Business Day of such succeeding
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calendar quarter and (z) if the Master Servicer does not exercise the purchase
right with respect to a Mortgage Loan during the period specified in clause (x)
or (y), as applicable, such Mortgage Loan shall thereafter again become eligible
for purchase pursuant to the preceding two sentences only after the Mortgage
Loan ceases to be 90-day delinquent and thereafter becomes 90-day delinquent
again. For purposes of this paragraph, a Mortgage Loan is considered delinquent
for 90 consecutive days if a Monthly Payment is not received by the first day of
the third month following the month during which such payment was due.
Consistent with the terms of this Section 3.01, the Master Servicer may
waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to any Mortgagor if it has determined, exercising its good faith
business judgment in the same manner as it would if it were the owner of the
related Mortgage Loan, that the security for, and the timely and full
collectability of, such Mortgage Loan would not be adversely affected by such
waiver, modification, postponement or indulgence; provided, however, that
(unless the Mortgagor is in default with respect to the Mortgage Loan or in the
reasonable judgment of the Master Servicer such default is imminent) the Master
Servicer shall not permit any modification with respect to any Mortgage Loan
that would (i) change the applicable Mortgage Interest Rate, defer or forgive
the payment of any principal or interest, reduce the outstanding principal
balance (except for actual payments of principal) or extend the final maturity
date with respect to such Mortgage Loan, or (ii) be inconsistent with the terms
of any applicable Primary Insurance Policy, FHA insurance policy, VA guaranty,
hazard insurance policy or federal flood insurance policy. Notwithstanding the
foregoing, the Master Servicer shall not permit any modification with respect to
any Mortgage Loan that would both constitute a sale or exchange of such Mortgage
Loan within the meaning of Section 1001 of the Code (including any proposed,
temporary or final regulations promulgated thereunder) (other than in connection
with a proposed conveyance or assumption of such Mortgage Loan that is treated
as a Principal Prepayment or in a default situation) and cause any REMIC to fail
to qualify as such under the Code. The Master Servicer shall be entitled to
approve a request from a Mortgagor for a partial release of the related
Mortgaged Property, the granting of an easement thereon in favor of another
Person, any alteration or demolition of the related Mortgaged Property or other
similar matters if it has determined, exercising its good faith business
judgment in the same manner as it would if it were the owner of the related
Mortgage Loan, that the security for, and the timely and full collectability of,
such Mortgage Loan would not be adversely affected thereby and that REMIC I and
REMIC II would not fail to continue to qualify as REMICs under the Code as a
result thereof and that no tax on "prohibited transactions" or "contributions"
after the startup day would be imposed on any REMIC as a result thereof.
The Master Servicer is hereby authorized and empowered by the Trust to
execute and deliver or cause to be executed and delivered on behalf of the
Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest,
and the Trust or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release, discharge or modification,
assignments of Mortgages and endorsements of Mortgage Notes in connection with
refinancings (in jurisdictions where such assignments are the customary and
73
usual standard of practice of mortgage lenders) and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Properties. The Master Servicer is hereby further authorized and
empowered by the Trust to execute and deliver or cause to be executed and
delivered on behalf of the Holders of the REMIC I Regular Interests and the
Class R-1 Residual Interest and the Trust, or any of them, such instruments of
assignment or other comparable instruments as the Master Servicer shall, in its
sole judgment, deem appropriate in order to register any Mortgage Loan on the
MERS(R) System or to cause the removal of any Mortgage Loan from registration
thereon. Any expenses incurred in connection with the actions described in the
preceding sentence shall be borne by the Master Servicer with no right of
reimbursement; provided, however, that any such expenses incurred as a result of
any termination by MERS of the MERS(R) System shall be reimbursable to the
Master Servicer. The Trustee on behalf of the Trust shall execute and furnish to
the Master Servicer, at the Master Servicer's direction, any powers of attorney
and other documents prepared by the Master Servicer and determined by the Master
Servicer to be necessary or appropriate to enable the Master Servicer to carry
out its supervisory, servicing and administrative duties under this Agreement.
The Master Servicer shall obtain and maintain, and shall cause each
Servicer to obtain and maintain (in each case, to the extent generally
commercially available), fidelity bond and errors and omissions coverage
acceptable to Xxxxxx Xxx or Xxxxxxx Mac with respect to its obligations under
this Agreement and the applicable Selling and Servicing Contract, respectively.
The Master Servicer shall establish or cause to be established escrow accounts
for, or pay or cause to be paid when due (by means of an advance), any tax liens
in connection with the Mortgaged Properties that are not paid by the Mortgagors
when due to the extent that any such payment would not constitute a
Nonrecoverable Advance when made.
In connection with the servicing and administering of each Mortgage
Loan, the Master Servicer and any affiliate of the Master Servicer (i) may
perform services such as appraisals, default management and (in the case of
affiliates only) brokerage services that are not customarily provided by
servicers of mortgage loans, and shall be entitled to reasonable compensation
therefor and (ii) may, at its own discretion and on behalf of the Trust, obtain
credit information in the form of a "credit score" from a credit repository.
Section 3.02. Custodial Accounts and Buydown Fund Accounts. The Master Servicer
shall cause to be established and maintained by each Servicer under the Master
Servicer's supervision the Custodial Account for P&I, Buydown Fund Accounts (if
any) and special Custodial Account for Reserves and shall deposit or cause to be
deposited therein daily the following amounts received or advanced by the
Servicer with respect to the Mortgage Loans:
(i) all scheduled payments of principal;
(ii) all scheduled payments of interest, net of the Servicing Fees due
the applicable Servicers;
(iii) all Curtailments and Payoffs; and
(iv) all Insurance Proceeds, Liquidation Proceeds, Excess Liquidation
Proceeds and Subsequent Recoveries;
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provided, however, that (x) proceeds received with respect to
individual Mortgage Loans from any title, hazard, or FHA insurance policy, VA
guaranty, Primary Insurance Policy or other insurance policy (other than any
Special Primary Insurance Policy) covering such Mortgage Loans, if required for
the restoration or repair of the related Mortgaged Property, may be deposited
either in the Custodial Account for Reserves or the Custodial Account for P&I
and (y) such proceeds (other than proceeds from any Special Primary Insurance
Policy), if not required for the restoration or repair of the related Mortgaged
Property, and if not released to the Mortgagor in accordance with prudent
mortgage loan servicing practices, shall be deposited in the Custodial Account
for P&I, and shall be applied to the balances of the related Mortgage Loans as
payments of interest and principal.
The Master Servicer is hereby authorized to make withdrawals from and
to issue drafts against the Custodial Accounts for P&I and the Custodial
Accounts for Reserves for the purposes required or permitted by this Agreement.
Each Custodial Account for P&I and each Custodial Account for Reserves shall
bear a designation clearly showing the respective interests of the applicable
Servicer, as trustee, and of the Master Servicer, in substantially one of the
following forms:
(a) With respect to the Custodial Account for P&I: (i) [Servicer's
Name], as agent, trustee and/or bailee of principal and interest custodial
account for Washington Mutual Mortgage Securities Corp., its successors and
assigns, for various owners of interests in Washington Mutual Mortgage
Securities Corp. mortgage-backed pools or (ii) [Servicer's Name] in trust for
Washington Mutual Mortgage Securities Corp.;
(b) With respect to the Custodial Account for Reserves: (i) [Servicer's
Name], as agent, trustee and/or bailee of taxes and insurance custodial account
for Washington Mutual Mortgage Securities Corp., its successors and assigns for
various mortgagors and/or various owners of interests in Washington Mutual
Mortgage Securities Corp. mortgage-backed pools or (ii) [Servicer's Name] in
trust for Washington Mutual Mortgage Securities Corp. and various Mortgagors.
The Master Servicer hereby undertakes to assure remittance to the
Certificate Account of all amounts relating to the Mortgage Loans that have been
collected by any Servicer and are due to the Certificate Account pursuant to
Section 4.01 of this Agreement.
Funds held in the Custodial Account for P&I and the Custodial Account
for Reserves may, at the Master Servicer's option, be invested in (i) one or
more Eligible Investments which shall in no event mature later than the Business
Day prior to the related Withdrawal Date (except if such Eligible Investments
are obligations of the Trustee, such Eligible Investments may mature on the
Withdrawal Date), or (ii) such other instruments as shall be required to
maintain the Ratings.
Section 3.03. The Investment Account; Eligible Investments.(a) Not later than
the Withdrawal Date, the Master Servicer shall withdraw or direct the withdrawal
of funds in the Custodial Accounts for P&I, for deposit in the Investment
Account, in an amount representing:
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(i) Scheduled installments of principal and interest on the Mortgage Loans
received or advanced by the applicable Servicers which were due on the related
Due Date, net of the Servicing Fees due the applicable Servicers and less any
amounts to be withdrawn later by the applicable Servicers from the applicable
Buydown Fund Accounts;
(ii) Payoffs and the proceeds of other types of liquidations of the Mortgage
Loans received by the applicable Servicer for such Mortgage Loans during the
applicable Payoff Period, with interest to the date of Payoff or liquidation
less any amounts to be withdrawn later by the applicable Servicers from the
applicable Buydown Fund Accounts; and
(iii) Curtailments received by the applicable Servicers in the Prior Period.
At its option, the Master Servicer may invest funds withdrawn from the
Custodial Accounts for P&I, as well as any Buydown Funds, Insurance Proceeds and
Liquidation Proceeds previously received by the Master Servicer (including
amounts paid by the Company in respect of any Purchase Obligation or its
substitution obligations set forth in Section 2.07 or Section 2.08 or in
connection with the exercise of the option to terminate this Agreement pursuant
to Section 9.01) for its own account and at its own risk, during any period
prior to their deposit in the Certificate Account. Such funds, as well as any
funds which were withdrawn from the Custodial Accounts for P&I on or before the
Withdrawal Date, but not yet deposited into the Certificate Account, shall
immediately be deposited by the Master Servicer with the Investment Depository
in an Investment Account in the name of the Master Servicer and the Trust for
investment only as set forth in this Section 3.03. The Master Servicer shall
bear any and all losses incurred on any investments made with such funds and
shall be entitled to retain all gains realized on such investments as additional
servicing compensation. Not later than the Business Day prior to the
Distribution Date, the Master Servicer shall deposit such funds, net of any
gains (except Payoff Earnings) earned thereon, in the Certificate Account.
(b) Funds held in the Investment Account shall be invested in (i) one
or more Eligible Investments which shall in no event mature later than the
Business Day prior to the related Distribution Date (except if such Eligible
Investments are obligations of the Trustee, such Eligible Investments may mature
on the Distribution Date), or (ii) such other instruments as shall be required
to maintain the Ratings.
Section 3.04. The Certificate Account.
(a) On or prior to the Closing Date, the Trustee shall establish the
Certificate Account, which shall be entitled "Washington Mutual Mortgage
Securities Corp. Certificate Account under the Pooling and Servicing Agreement,
dated as of April 1, 2004, among Washington Mutual Mortgage Securities Corp., as
Depositor and Master Servicer, and U.S. Bank National Association, as the
Trustee, and Christiana Bank & Trust Company, as the Delaware Trustee, for the
benefit of Washington Mutual MSC Mortgage Pass-Through Certificates Series
2004-RA1 Trust created pursuant thereto". Promptly after the Closing Date, the
Trustee shall communicate to the Master Servicer the account number and wiring
instructions for the Certificate Account.
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Not later than the Business Day prior to the related Distribution Date,
the Master Servicer shall direct the Investment Depository to deposit into the
Certificate Account the amounts previously deposited into the Investment Account
(which may include a deposit of Eligible Investments) to which the Holders of
the REMIC I Regular Interests and the Class R-1 Residual Interest are entitled
or which are necessary for payment of any Special Primary Insurance Premiums. In
addition, not later than the Business Day prior to the Distribution Date, the
Master Servicer shall deposit into the Certificate Account any Monthly P&I
Advances or other payments required to be made by the Master Servicer pursuant
to Section 4.02 of this Agreement and any Insurance Proceeds or Liquidation
Proceeds (including amounts paid by the Company in respect of any Purchase
Obligation) not previously deposited in the Custodial Accounts for P&I or the
Investment Account, and any amounts paid by the Master Servicer in connection
with the exercise of its option to terminate this Agreement pursuant to Section
9.01 or any other purchase of Mortgage Loans permitted by this Agreement.
(b) Funds held in the Certificate Account shall be invested at the
written direction of the Master Servicer in (i) one or more Eligible Investments
which shall in no event mature later than the Business Day prior to the related
Distribution Date (except if such Eligible Investments are obligations of the
Trustee, such Eligible Investments may mature on the Distribution Date), or (ii)
such other instruments as shall be required to maintain the Ratings. The Master
Servicer shall be entitled to receive any gains earned on such Eligible
Investments and shall bear any losses suffered in connection therewith. If the
Trustee has not received such written investment directions from the Master
Servicer, the Trustee shall not invest funds held in the Certificate Account.
The Trustee shall have no liability for any losses on investments of funds held
in the Certificate Account.
Section 3.05. Permitted Withdrawals from the Certificate Account, the Investment
Account and Custodial Accounts for P&I and of Buydown Funds from the Buydown
Fund Accounts.
(a) The Master Servicer is authorized to make withdrawals (or, in the
case of the Certificate Account, to direct the Trustee to make withdrawals),
from time to time, from the Investment Account, the Certificate Account or the
Custodial Accounts for P&I established by the Servicers of amounts deposited
therein in respect of the Certificates (and, to the extent applicable, to make
deposits of the amounts withdrawn), as follows:
(i) To reimburse itself or the applicable Servicer for Monthly P&I Advances made
pursuant to Section 4.02 or a Selling and Servicing Contract, such right to
reimbursement pursuant to this paragraph (i) being limited to amounts received
on particular Mortgage Loans (including, for this purpose, Insurance Proceeds
and Liquidation Proceeds) which represent late recoveries of principal and/or
interest respecting which any such Monthly P&I Advance was made;
(ii) To reimburse itself or the applicable Servicer for amounts expended by or
for the account of the Master Servicer pursuant to Section 3.09 or amounts
expended by such Servicer pursuant to the Selling and Servicing Contracts in
connection with the restoration of property damaged by an Uninsured Cause or in
connection with the liquidation of a Mortgage Loan;
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(iii) To pay to itself, with respect to the related Mortgage Loans, the Master
Servicing Fee (net of Compensating Interest reduced by Payoff Earnings and
Payoff Interest) as to which no prior withdrawals from funds deposited by the
Master Servicer have been made;
(iv) To reimburse itself or the applicable Servicer for advances made with
respect to related Mortgage Loans (except for Mortgage Loans purchased pursuant
to a Purchase Obligation or pursuant to the second or third sentence of the
third paragraph of Section 3.01) which the Master Servicer has determined to be
Nonrecoverable Advances;
(v) To pay to itself reinvestment earnings deposited or earned in the Investment
Account and the Certificate Account to which it is entitled and to reimburse
itself for expenses incurred by and reimbursable to it pursuant to Section 6.03;
(vi) To deposit to the Investment Account amounts in the Certificate Account not
required to be on deposit therein at the time of such withdrawal;
(vii) To deposit in the Certificate Account, not later than the Business Day
prior to the related Distribution Date, the amounts in the Investment Account
specified in Section 3.04(a);
(viii) To pay on behalf of the Trustee any Special Primary Insurance Premium
payable by the Trustee pursuant to Section 4.04(a); provided, the Master
Servicer shall give written notice thereof to the Trustee prior to noon New York
City time two Business Days prior to the applicable Distribution Date; and
after making or providing for the above withdrawals
(ix) To clear and terminate the Investment Account and the Certificate Account
following termination of this Agreement pursuant to Section 9.01.
Since, in connection with withdrawals pursuant to paragraphs (i) and
(ii), the Master Servicer's entitlement thereto is limited to collections or
other recoveries on the related Mortgage Loan, the Master Servicer shall keep
and maintain, or cause the applicable Servicer to keep and maintain, separate
accounting for each Mortgage Loan, for the purpose of justifying any such
withdrawals.
(b) The Master Servicer is authorized to make withdrawals (or to permit
the applicable Servicer, if such Servicer holds and maintains a Buydown Fund
Account, to make withdrawals), from time to time, of Buydown Funds from the
Buydown Fund Account or Custodial Account for P&I established by any Servicer
under its supervision (and, to the extent applicable, to make deposits of the
amounts withdrawn), as follows:
(i) To deposit each month in the Investment Account the amount necessary to
supplement payments received on Buydown Loans;
(ii) In the event of a Payoff of any Mortgage Loan having a related Buydown
Fund, to apply amounts remaining in Buydown Fund Accounts to reduce the required
amount of such principal Payoff (or, if the Mortgagor has made a Payoff, to
refund such remaining Buydown Fund amounts to the Person entitled thereto);
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(iii) In the event of foreclosure or liquidation of any Mortgage Loan having a
Buydown Fund, to deposit remaining Buydown Fund amounts in the Investment
Account as Liquidation Proceeds; and
(iv) To clear and terminate the portion of any account representing Buydown
Funds following termination of this Agreement pursuant to Section 9.01;
(c) The Trustee is authorized to make withdrawals from time to time
from the Certificate Account to reimburse itself for advances it has made
pursuant to Section 7.01(a) hereof that it has determined to be Nonrecoverable
Advances.
(d) The Master Servicer shall authorize each Servicer to retain from
funds deposited by such Servicer in, or to withdraw from, the related Custodial
Account for P&I the Servicing Fee payable to such Servicer with respect to the
related Mortgage Loans. With respect to each Servicer, the Master Servicer shall
(1) either (x) make withdrawals, from time to time, to reimburse such Servicer
for advances and expenses (other than Nonrecoverable Advances) pursuant to
clauses (i) and (ii) of Section 3.05(a) or (y) authorize such Servicer to make
such withdrawals, from time to time, from the related Custodial Account for P&I,
to the same extent that the Master Servicer is authorized to make such
withdrawals pursuant to clauses (i) and (ii) of Section 3.05(a) and (2) make
withdrawals, from time to time, to reimburse such Servicer for Nonrecoverable
Advances pursuant to clause (iv) of Section 3.05(a), in the case of each of
clause (1) and (2), to the extent no prior withdrawals of such amounts have been
made by the Servicer or the Master Servicer, as applicable.
Section 3.06. Maintenance of Primary Insurance Policies; Collections Thereunder.
The Master Servicer shall use commercially reasonable efforts to keep, or to
cause the Servicers to keep, in full force and effect each Primary Insurance
Policy (except any Special Primary Insurance Policy) required with respect to a
Mortgage Loan until no longer required, and the Master Servicer shall use
commercially reasonable efforts to keep in full force and effect each Special
Primary Insurance Policy, if any. Notwithstanding the foregoing, the Master
Servicer shall have no obligation to maintain any Primary Insurance Policy for a
Mortgage Loan for which the outstanding Principal Balance thereof at any time
subsequent to origination was 80% or less of the Appraised Value of the related
Mortgaged Property, unless required by applicable law.
Unless required by applicable law, the Master Servicer shall not cancel
or refuse to renew, or allow any Servicer under its supervision to cancel or
refuse to renew, any Primary Insurance Policy in effect at the date of the
initial issuance of the Certificates that is required to be kept in force
hereunder; provided, however, that neither the Master Servicer nor any Servicer
shall advance funds for the payment of any premium due under (i) any Primary
Insurance Policy (other than a Special Primary Insurance Policy) if it shall
determine that such an advance would be a Nonrecoverable Advance or (ii) any
Special Primary Insurance Policy.
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Section 3.07. Maintenance of Hazard Insurance. The Master Servicer shall cause
to be maintained for each Mortgage Loan (other than a Cooperative Loan) fire
insurance with extended coverage in an amount which is not less than the
original principal balance of such Mortgage Loan, except in cases approved by
the Master Servicer in which such amount exceeds the value of the improvements
to the Mortgaged Property. The Master Servicer shall also require fire insurance
with extended coverage in a comparable amount on property acquired upon
foreclosure, or deed in lieu of foreclosure, of any Mortgage Loan (other than a
Cooperative Loan). Any amounts collected under any such policies (other than
amounts to be applied to the restoration or repair of the related Mortgaged
Property) shall be deposited into the Custodial Account for P&I, subject to
withdrawal pursuant to the applicable Selling and Servicing Contract and
pursuant to Section 3.03 and Section 3.05. Any unreimbursed costs incurred in
maintaining any insurance described in this Section 3.07 shall be recoverable as
an advance by the Master Servicer or the applicable Servicer from the related
Custodial Account for P&I, the Investment Account or the Certificate Account.
Such insurance shall be with insurers approved by the Master Servicer and Xxxxxx
Xxx or Xxxxxxx Mac. Other additional insurance may be required of a Mortgagor,
in addition to that required pursuant to such applicable laws and regulations as
shall at any time be in force and as shall require such additional insurance.
Where any part of any improvement to the Mortgaged Property (other than a
Mortgaged Property secured by a Cooperative Loan) is located in a federally
designated special flood hazard area and in a community which participates in
the National Flood Insurance Program at the time of origination of the related
Mortgage Loan, the Master Servicer shall cause flood insurance to be provided.
The hazard insurance coverage required by this Section 3.07 may be met with
blanket policies providing protection equivalent to individual policies
otherwise required. The Master Servicer shall be responsible for paying, or
causing the applicable Servicer to pay, any deductible amount on any such
blanket policy. The Master Servicer agrees to present, or cause to be presented,
on behalf of and for the benefit of the Trust, claims under the hazard insurance
policy respecting any Mortgage Loan, and in this regard to take such reasonable
actions as shall be necessary to permit recovery under such policy.
Section 3.08. Enforcement of Due-on-Sale Clauses; Assumption Agreements. When
any Mortgaged Property is about to be conveyed by the Mortgagor, the Master
Servicer shall, to the extent it has knowledge of such prospective conveyance
and prior to the time of the consummation of such conveyance, exercise on behalf
of the Trust the Trust's rights to accelerate the maturity of such Mortgage
Loan, to the extent that such acceleration is permitted by the terms of the
related Mortgage Note, under any "due-on-sale" clause applicable thereto;
provided, however, that the Master Servicer shall not exercise any such right if
the due-on-sale clause, in the reasonable belief of the Master Servicer, is not
enforceable under applicable law or if such exercise would result in
non-coverage of any resulting loss that would otherwise be covered under any
insurance policy. In the event the Master Servicer is prohibited from exercising
such right, the Master Servicer is authorized to take or enter into an
assumption and modification agreement from or with the Person to whom a
Mortgaged Property has been or is about to be conveyed, pursuant to which such
Person becomes liable under the Mortgage Note and, unless prohibited by
applicable state law or unless the Mortgage Note contains a provision allowing a
qualified borrower to assume the Mortgage Note, the Mortgagor remains liable
thereon; provided that the Mortgage Loan shall continue to be covered (if so
covered before the Master Servicer enters such agreement) by any related Primary
Insurance Policy. The Master Servicer is also authorized to enter into a
substitution of liability agreement with such Person, pursuant to which the
original Mortgagor is released from liability and such Person is substituted as
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Mortgagor and becomes liable under the Mortgage Note. The Master Servicer shall
not enter into any substitution or assumption with respect to a Mortgage Loan if
such substitution or assumption shall (i) both constitute a "significant
modification" effecting an exchange or reissuance of such Mortgage Loan under
the Code (or Treasury regulations promulgated thereunder) and cause the REMICs
to fail to qualify as a REMIC under the REMIC Provisions or (ii) cause the
imposition of any tax on "prohibited transactions" or "contributions" after the
startup day under the REMIC Provisions. The Master Servicer shall notify the
Trustee that any such substitution or assumption agreement has been completed by
forwarding to the Trustee the original copy of such substitution or assumption
agreement and other documents and instruments constituting a part thereof. In
connection with any such assumption or substitution agreement, the terms of the
related Mortgage Note shall not be changed. Any fee collected by the applicable
Servicer for entering into an assumption or substitution of liability agreement
shall be retained by such Servicer as additional servicing compensation.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Master Servicer shall not be deemed to be in default, breach or
any other violation of its obligations hereunder by reason of any assumption of
a Mortgage Loan by operation of law or any assumption which the Master Servicer
may be restricted by law from preventing, for any reason whatsoever.
Section 3.09. Realization Upon Defaulted Mortgage Loans. The Master Servicer
shall foreclose upon or otherwise comparably convert, or cause to be foreclosed
upon or comparably converted, the ownership of any Mortgaged Property securing a
Mortgage Loan which comes into and continues in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.01. In lieu of such foreclosure or other conversion, and
taking into consideration the desirability of maximizing net Liquidation
Proceeds after taking into account the effect of Insurance Proceeds upon
Liquidation Proceeds, the Master Servicer may, to the extent consistent with
prudent mortgage loan servicing practices, accept a payment of less than the
outstanding Principal Balance of a delinquent Mortgage Loan in full satisfaction
of the indebtedness evidenced by the related Mortgage Note and release the lien
of the related Mortgage upon receipt of such payment. The Master Servicer shall
not foreclose upon or otherwise comparably convert a Mortgaged Property if the
Master Servicer is aware of evidence of toxic waste, other hazardous substances
or other evidence of environmental contamination thereon and the Master Servicer
determines that it would be imprudent to do so. In connection with such
foreclosure or other conversion, the Master Servicer shall cause to be followed
such practices and procedures as it shall deem necessary or advisable and as
shall be normal and usual in general mortgage servicing activities. The
foregoing is subject to the provision that, in the case of damage to a Mortgaged
Property from an Uninsured Cause, the Master Servicer shall not be required to
advance its own funds towards the restoration of the property unless it shall be
determined in the sole judgment of the Master Servicer, (i) that such
restoration will increase the proceeds of liquidation of the Mortgage Loan to
Certificateholders after reimbursement to itself for such expenses, and (ii)
that such expenses will be recoverable to it through Liquidation Proceeds. The
Master Servicer shall be responsible for all other costs and expenses incurred
by it in any such proceedings; provided, however, that it shall be entitled to
reimbursement thereof (as well as its normal servicing compensation) as an
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advance. The Master Servicer shall maintain information required for tax
reporting purposes regarding any Mortgaged Property which is abandoned or which
has been foreclosed or otherwise comparably converted. The Master Servicer shall
report such information to the Internal Revenue Service and the Mortgagor in the
manner required by applicable law.
In addition to the foregoing, the Master Servicer shall use its
reasonable efforts to realize upon, or to cause the Servicers to realize upon,
any Additional Collateral for such of the Additional Collateral Loans as come
into and continue in default and as to which no satisfactory arrangements can be
made for collection of delinquent payments pursuant to Section 3.01; provided,
however, that (i) the Master Servicer shall not proceed with respect to such
Additional Collateral in any manner that would impair the ability to recover
against the related Mortgaged Property and (ii) the Master Servicer shall
proceed with any acquisition of the related Mortgaged Property through
foreclosure, deed in lieu of foreclosure or otherwise in a manner that preserves
the ability to apply the proceeds of such Additional Collateral against amounts
owed under the defaulted Additional Collateral Loan.
The Master Servicer may enter into one or more special servicing
agreements with a Lowest Class B Owner, subject to each Rating Agency's
acknowledgment that the Ratings of the Certificates in effect immediately prior
to the entering into of such agreement would not be qualified, downgraded or
withdrawn and the Certificates would not be placed on credit review status
(except for possible upgrading) as a result of such agreement. Any such
agreement may contain provisions whereby such Lowest Class B Owner may (a)
instruct the Master Servicer to instruct a Servicer to the extent permitted
under the applicable Selling and Servicing Contract to commence or delay
foreclosure proceedings with respect to related delinquent Mortgage Loans,
provided that the Lowest Class B Owner deposits a specified amount of cash with
the Master Servicer that will be available for distribution to
Certificateholders if Liquidation Proceeds are less than they otherwise may have
been had the Servicer acted pursuant to its normal servicing procedures, (b)
purchase such delinquent Mortgage Loans from the Trust immediately prior to the
commencement of foreclosure proceedings at a price equal to the aggregate
outstanding Principal Balance of such Mortgage Loans plus accrued interest
thereon at the applicable Mortgage Interest Rate through the last day of the
month in which such Mortgage Loans are purchased and/or (c) assume all of the
servicing rights and obligations with respect to such delinquent Mortgage Loans
so long as (i) the Master Servicer has the right to transfer the servicing
rights and obligations of such Mortgage Loans to another servicer and (ii) such
Lowest Class B Owner will service such Mortgage Loans in accordance with the
applicable Selling and Servicing Contract.
REMIC I shall not acquire any real property (or personal property
incident to such real property) except in connection with a default or imminent
default of a Mortgage Loan. In the event that REMIC I acquires any real property
(or personal property incident to such real property) in connection with a
default or imminent default of a Mortgage Loan, such property shall be disposed
of by the Master Servicer as soon as practicable in a manner that, consistent
with prudent mortgage loan servicing practices, maximizes the net present value
of the recovery to the Trust, but in any event within three years after its
acquisition by the Master Servicer for REMIC I unless the Master Servicer
provides to the Trustee an Opinion of Counsel to the effect that the holding by
REMIC I of such Mortgaged Property subsequent to three years after its
acquisition will not result in the imposition of taxes on "prohibited
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transactions" of REMIC I as defined in Section 860F of the Code or under the law
of any state in which real property securing a Mortgage Loan owned by REMIC I is
located or cause REMIC I to fail to qualify as a REMIC for federal income tax
purposes or for state tax purposes under the laws of any state in which real
property securing a Mortgage Loan owned by REMIC I is located at any time that
any Certificates are outstanding. The Master Servicer shall conserve, protect
and operate each such property for the Certificateholders solely for the purpose
of its prompt disposition and sale in a manner which does not cause such
property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) or result in the receipt by the REMIC of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or
any "net income from foreclosure property" which is subject to taxation under
the REMIC Provisions. Pursuant to its efforts to sell such property, the Master
Servicer shall either itself or through an agent selected by the Master Servicer
protect and conserve such property in the same manner and to such extent as is
customary in the locality where such property is located and may, incident to
its conservation and protection of the assets of the Trust, rent the same, or
any part thereof, as the Master Servicer deems to be in the best interest of the
Master Servicer and the Trust for the period prior to the sale of such property.
Additionally, the Master Servicer shall perform the tax withholding and shall
file information returns with respect to the receipt of mortgage interests
received in a trade or business, the reports of foreclosures and abandonments of
any Mortgaged Property and the information returns relating to cancellation of
indebtedness income with respect to any Mortgaged Property required by Sections
6050H, 6050J and 6050P, respectively, of the Code, and deliver to the Trustee an
Officers' Certificate on or before March 31 of each year stating that such
reports have been filed. Such reports shall be in form and substance sufficient
to meet the reporting requirements imposed by Sections 6050H, 6050J and 6050P of
the Code.
Notwithstanding any other provision of this Agreement, the Master
Servicer and the Trustee, as applicable, shall comply with all federal
withholding requirements with respect to payments to Certificateholders of
interest or original issue discount that the Master Servicer or the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. Without
limiting the foregoing, the Master Servicer agrees that it will not withhold
with respect to payments of interest or original issue discount in the case of a
Certificateholder that has furnished or caused to be furnished an effective Form
W-8 or an acceptable substitute form or a successor form and who is not a "10
percent shareholder" within the meaning of Code Section 871(h)(3)(B) or a
"controlled foreign corporation" described in Code Section 881(c)(3)(C) with
respect to REMIC I, REMIC II or the depositor. In the event the Trustee
withholds 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
Certificateholder.
Section 3.10. Trustee to Cooperate; Release of Mortgage Files. Upon the Payoff
or scheduled maturity of any Mortgage Loan, the Master Servicer shall cause such
final payment to be immediately deposited in the related Custodial Account for
P&I or the Investment Account. The Master Servicer shall promptly notify the
Trustee thereof by a certification (which certification shall include a
statement to the effect that all amounts received in connection with such
payment which are required to be deposited in either such account have been so
deposited) of a Servicing Officer and shall request delivery to it of the
Mortgage File; provided, however, that such certification shall not be required
if the Mortgage File is held by a Custodian which is also the Servicer of the
Mortgage Loan. Upon receipt of such certification and request, the Trustee
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shall, not later than the fifth succeeding Business Day, release, or cause to be
released, the related Mortgage File to the Master Servicer or the applicable
Servicer indicated in such request. With any such Payoff or other final payment,
the Master Servicer is authorized (i) to prepare for and procure from the
trustee or mortgagee under the Mortgage which secured the Mortgage Note a deed
of full reconveyance or other form of satisfaction or assignment of Mortgage and
endorsement of Mortgage Note in connection with a refinancing covering the
Mortgaged Property, which satisfaction, endorsed Mortgage Note or assigning
document shall be delivered by the Master Servicer to the person or persons
entitled thereto, and (ii) with respect to any MERS Loan, to cause the removal
of such Mortgage Loan from registration on the MERS(R) System. No expenses
incurred in connection with such satisfaction or assignment shall be payable to
the Master Servicer by the Trustee or from the Certificate Account, the related
Investment Account or the related Custodial Account for P&I. From time to time
as appropriate for the servicing or foreclosure of any Mortgage Loan, including,
for this purpose, collection under any Primary Insurance Policy, the Trustee
shall, upon request of the Master Servicer and delivery to it of a trust receipt
signed by a Servicing Officer, release not later than the fifth Business Day
following the date of receipt of such request and trust receipt the related
Mortgage File to the Master Servicer or the related Servicer as indicated by the
Master Servicer and shall execute such documents as shall be necessary to the
prosecution of any such proceedings. Such trust receipt shall obligate the
Master Servicer to return the Mortgage File to the Trustee when the need
therefor by 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 herein above specified, the trust receipt shall be
released by the Trustee to the Master Servicer.
Section 3.11. Compensation to the Master Servicer and the Servicers. As
compensation for its activities hereunder, the Master Servicer shall be entitled
to receive from the Investment Account or the Certificate Account the amounts
provided for by Section 3.05(a)(iii). 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 specifically provided
herein.
As compensation for its activities under the applicable Selling and
Servicing Contract, the applicable Servicer shall be entitled to withhold or
withdraw from the related Custodial Account for P&I the amounts provided for in
such Selling and Servicing Contract to the extent not inconsistent with this
Agreement (including Section 3.05(d)). Each Servicer is required to pay all
expenses incurred by it in connection with its servicing activities under its
Selling and Servicing Contract (including payment of premiums for Primary
Insurance Policies, other than Special Primary Insurance Policies, if required)
and shall not be entitled to reimbursement therefor except as specifically
provided in such Selling and Servicing Contract and not inconsistent with this
Agreement.
Section 3.12. Reports to the Trustee; Certificate Account Statement. Not later
than 15 days after each Distribution Date, the Master Servicer shall forward a
statement, certified by a Servicing Officer, to the Trustee setting forth the
status of the Certificate Account as of the close of business on such
Distribution Date and showing, for the period covered by such statement, the
aggregate of deposits into and withdrawals from the Certificate Account for each
category of deposit specified in Section 3.04 and each category of withdrawal
specified in Section 3.05, and stating that all distributions required by this
Agreement have been made (or if any required distribution has not been made,
specifying the nature and amount thereof). The Trustee shall make available such
statements to any Certificateholder upon request at the expense of the Master
Servicer. Such statement shall also, to the extent available, include
information regarding delinquencies on the Mortgage Loans, indicating the number
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and aggregate Principal Balance of Mortgage Loans which are one, two, three or
more months delinquent, the number and aggregate Principal Balance of Mortgage
Loans with respect to which foreclosure proceedings have been initiated and the
book value of any Mortgaged Property acquired by the Trust through foreclosure,
deed in lieu of foreclosure or other exercise of the Trust's security interest
in the Mortgaged Property.
Section 3.13. Annual Statement as to Compliance. The Master Servicer shall
deliver to the Trustee, on or before April 30 of each year, beginning with the
first April 30 succeeding the Cut-Off Date by at least six months, an Officer's
Certificate stating as to the signer thereof, that (i) a review of the
activities of the Master Servicer during the preceding calendar year and
performance under this Agreement has been made under such officer's supervision,
and (ii) to the best of such officer's knowledge, based on such review, the
Master Servicer has fulfilled all its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof. Copies of such statement shall be provided by the
Master Servicer to Certificateholders upon request or by the Trustee (solely to
the extent that such copies are available to the Trustee) at the expense of the
Master Servicer, should the Master Servicer fail to so provide such copies.
Section 3.14. Access to Certain Documentation and Information Regarding the
Mortgage Loans. In the event that the Certificates are legal for investment by
federally-insured savings associations, the Master Servicer shall provide to the
OTS, the FDIC and the supervisory agents and examiners of the OTS and the FDIC
access to the documentation regarding the related Mortgage Loans required by
applicable regulations of the OTS or the FDIC, as applicable, and shall in any
event provide such access to the documentation regarding such Mortgage Loans to
the Trustee and its representatives, such access being afforded without charge,
but only upon reasonable request and during normal business hours at the offices
of the Master Servicer designated by it.
Section 3.15. Annual Independent Public Accountants' Servicing Report. On or
before April 30 of each year, beginning with the first April 30 succeeding the
Cut-Off Date by at least six months, the Master Servicer, at its expense, shall
furnish to the Trustee a copy of a report delivered to the Master Servicer by a
firm of independent public accountants (who may also render other services to
the Master Servicer or any affiliate thereof) to the effect that, on the basis
of an examination conducted by such firm in accordance with standards
established by the American Institute of Certified Public Accountants, the
Master Servicer has complied with certain minimum residential mortgage loan
servicing standards in its role as Master Servicer with respect to the servicing
of residential mortgage loans (including the Mortgage Loans) during the most
recently completed fiscal year. In rendering its report such firm may rely, (a)
as to matters relating to the Certificates, upon a statistical sampling of
series of mortgage-backed certificates which may include the Certificates and
(b) as to matters relating to the direct servicing of residential mortgage loans
by subservicers, upon comparable reports of firms of independent certified
public accountants rendered on the basis of examinations conducted in accordance
with the same standards (rendered within one year of such report) with respect
to those subservicers.
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Section 3.16. [Reserved.]
Section 3.17. [Reserved.]
Section 3.18. Surety Bonds. In connection with its activities hereunder, the
Master Servicer agrees to present, on behalf of the Trustee and the
Certificateholders, claims to the Surety under the Surety Bonds, and, in this
regard, to take such commercially reasonable actions as shall be necessary to
permit recovery under the Surety Bonds; provided, however, that nothing in this
Section 3.18 shall require the Master Servicer to make a Nonrecoverable Advance.
Promptly after the Closing Date, the Master Servicer shall make application to
the Surety to provide the Trustee with written confirmation from the Surety that
a beneficial interest in each Surety Bond with respect to the Additional
Collateral Loans has been assigned to the Trustee.
Section 3.19. [Reserved.]
Section 3.20. Assumption or Termination of Selling and Servicing Contracts by
Trustee. In the event the Master Servicer, or any successor Master Servicer,
shall for any reason no longer be the Master Servicer (including by reason of an
Event of Default), the Trustee as trustee hereunder or its designee shall
thereupon assume all of the rights and obligations of the Master Servicer under
the Selling and Servicing Contracts with respect to the related Mortgage Loans
unless the Trustee elects to terminate the Selling and Servicing Contracts with
respect to such Mortgage Loans in accordance with the terms thereof. The
Trustee, its designee or the successor servicer for the Trustee shall be deemed
to have assumed all of the Master Servicer's interest therein with respect to
the related Mortgage Loans and to have replaced the Master Servicer as a party
to the Selling and Servicing Contracts to the same extent as if the rights and
duties under the Selling and Servicing Contracts relating to such Mortgage Loans
had been assigned to the assuming party, except that the Master Servicer shall
not thereby be relieved of any liability or obligations under the Selling and
Servicing Contracts with respect to the Master Servicer's duties to be performed
prior to its termination hereunder.
The Master Servicer at its expense shall, upon request of the Trustee,
deliver to the assuming party all documents and records relating to the Selling
and Servicing Contracts and the Mortgage Loans then being master serviced by the
Master Servicer and an accounting of amounts collected and held by the Master
Servicer and otherwise use its best efforts to effect the orderly and efficient
transfer of the rights and duties under the related Selling and Servicing
Contracts relating to such Mortgage Loans to the assuming party.
ARTICLE IV
Payments to Certificateholders; Payment of Expenses
Section 4.01. Distributions to Holders of REMIC I Regular Interests and Class
R-1 Residual Interest. On each Distribution Date, the Trustee (or any duly
appointed paying agent) (i) shall be deemed to have distributed from the
Certificate Account the REMIC I Distribution Amount to the Holders of the REMIC
I Regular Interests and to have deposited such amount for their benefit into the
Certificate Account and (ii) from the Certificate Account shall distribute to
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the Class R Certificateholders, in accordance with the written statement
received from the Master Servicer pursuant to Section 4.02(b), the sum of (a)
the Excess Liquidation Proceeds and (b) the amounts to be distributed to the
Holders of the Class R-1 Residual Interest pursuant to the definition of "REMIC
I Distribution Amount" for such Distribution Date. Amounts distributed pursuant
to clause (ii) above shall be distributed by wire transfer in immediately
available funds for the account of each Class R Certificateholder, or by any
other means of payment acceptable to each Class R Certificateholder of record on
the immediately preceding Record Date (other than as provided in Section 9.01
respecting the final distribution), as specified by each such Certificateholder
and at the address of such Holder appearing in the Certificate Register.
Notwithstanding any other provision of this Agreement, no actual distributions
pursuant to clause (i) of this Section 4.01 shall be made on account of the
deemed distributions described in this paragraph except in the event of a
liquidation of REMIC II and not REMIC I.
Section 4.02. Advances by the Master Servicer; Distribution Reports to the
Trustee.
(a) To the extent described below, the Master Servicer is obligated to
advance its own funds to the Certificate Account to cover any shortfall between
(i) payments scheduled to be received in respect of Mortgage Loans, and (ii) the
amounts actually deposited in the Certificate Account on account of such
payments (including amounts advanced by a Servicer pursuant to a Selling and
Servicing Contract); provided that, with respect to any Balloon Loan that is
delinquent on its maturity date, the Master Servicer will not be required to
advance the related balloon payment but will be required to continue to make
advances in accordance with this Section 4.02 with respect to such Balloon Loan
in an amount equal to one month's interest on the unpaid principal balance at
the applicable Pass-Through Rate for each Distribution Date to the extent the
Master Servicer deems such amount to be recoverable. The Master Servicer's
obligation to make any advance or advances described in this Section 4.02 is
effective only to the extent that such advance is, in the good faith judgment of
the Master Servicer made on or before the second Business Day prior to each
Distribution Date, reimbursable from Insurance Proceeds or Liquidation Proceeds
of the related Mortgage Loans or recoverable as late Monthly Payments with
respect to the related Mortgage Loans or otherwise.
Prior to the close of business on the second Business Day prior to each
Distribution Date, the Master Servicer shall determine whether or not it will
make a Monthly P&I Advance on the Business Day prior to such Distribution Date
(in the event that the applicable Servicer fails to make such advances) and
shall furnish a written statement to the Trustee, the Paying Agent, if any, and
to any Certificateholder requesting the same, setting forth the aggregate amount
to be advanced on account of principal and interest in respect of the Mortgage
Loans, stated separately.
In the event that the Master Servicer shall be required to make a
Monthly P&I Advance, it shall on the Business Day prior to the related
Distribution Date either (i) deposit in the Certificate Account an amount equal
to such Monthly P&I Advance, (ii) make an appropriate entry in the records of
the Certificate Account that funds in such account being held for future
distribution or withdrawal have been, as permitted by this Section 4.02, used by
the Master Servicer to make such Monthly P&I Advance, or (iii) make advances in
the form of any combination of (i) and (ii) aggregating the amount of such
Monthly P&I Advance. Any funds being held for future distribution to
Certificateholders and so used shall be replaced by the Master Servicer by
deposit in the Certificate Account on the Business Day immediately preceding any
future Distribution Date to the extent that funds in the Certificate Account on
such Distribution Date with respect to the Mortgage Loans shall be less than
payments to Certificateholders required to be made on such date with respect to
the Mortgage Loans. Under each Selling and Servicing Contract, the Master
Servicer is entitled to receive from the Custodial Accounts for P&I established
by the Servicers amounts received by the applicable Servicers on particular
Mortgage Loans as late payments of principal and interest or as Liquidation or
Insurance Proceeds and respecting which the Master Servicer has made an
unreimbursed advance of principal and interest. The Master Servicer is also
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entitled to receive other amounts from the related Custodial Accounts for P&I
established by the Servicers to reimburse itself for prior Nonrecoverable
Advances respecting Mortgage Loans serviced by such Servicers. The Master
Servicer shall deposit these amounts in the Investment Account prior to
withdrawal pursuant to Section 3.05.
In accordance with Section 3.05, Monthly P&I Advances are reimbursable
to the Master Servicer from cash in the Investment Account or the Certificate
Account to the extent that the Master Servicer shall determine that any such
advances previously made are Nonrecoverable Advances pursuant to Section 4.03.
(b) Prior to noon New York City time two Business Days prior to each
Distribution Date, the Master Servicer shall provide (x) the Trustee and (y) the
Company (if the Company is no longer acting as Master Servicer) with a statement
in writing of (1) the amount, as applicable, of (i) interest, (ii) the interest
portion, if any, of Realized Losses, (iii) Uncompensated Interest Shortfall,
(iv) scheduled principal, (v) Principal Prepayments, (vi) Liquidation Principal,
(vii) Subsequent Recoveries, (viii) the principal portion of Realized Losses
(after giving effect to any reduction thereof by application of any Cumulative
Carry-Forward Subsequent Recoveries Amount), (ix) the Residual Distribution
Amount and (x) the Excess Liquidation Proceeds to be distributed or allocated,
as applicable, to each Class of Certificates on such Distribution Date (such
amounts to be determined in accordance with the definitions of "REMIC I
Distribution Amount" and "REMIC II Distribution Amount," Section 4.01 and
Section 4.04 hereof and other related definitions set forth in Article I
hereof); (2) the applicable Class Principal Balance after giving effect to such
distributions and allocations; (3) the Cumulative Carry-Forward Subsequent
Recoveries Amount for such Distribution Date and each Loan Group; and (4) the
amount of any Special Primary Insurance Premium payable on such Distribution
Date.
Section 4.03. Nonrecoverable Advances. Any advance previously made by a Servicer
pursuant to its Selling and Servicing Contract with respect to a Mortgage Loan
or by the Master Servicer that the Master Servicer shall determine in its good
faith judgment not to be ultimately recoverable from Insurance Proceeds or
Liquidation Proceeds or otherwise with respect to such Mortgage Loan or
recoverable as late Monthly Payments with respect to such Mortgage Loan shall be
a Nonrecoverable Advance. The determination by the Master Servicer that it or
the applicable Servicer has made a Nonrecoverable Advance or that any advance
would constitute a Nonrecoverable Advance, shall be evidenced by an Officer's
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Certificate of the Master Servicer delivered to the Trustee on the Determination
Date and detailing the reasons for such determination. Notwithstanding any other
provision of this Agreement, any insurance policy relating to the Mortgage
Loans, or any other agreement relating to the Mortgage Loans to which the
Company or the Master Servicer is a party, (a) the Master Servicer and each
Servicer shall not be obligated to, and shall not, make any advance that, after
reasonable inquiry and in its sole discretion, the Master Servicer or such
Servicer shall determine would be a Nonrecoverable Advance, and (b) the Master
Servicer and each Servicer shall be entitled to reimbursement for any advance as
provided in Section 3.05(a)(i), (ii) and (iv) and Section 3.05(d) of this
Agreement.
Section 4.04. Distributions to Certificateholders; Payment of Special Primary
Insurance Premiums.
(a) On each Distribution Date, the Trustee (or any duly appointed
paying agent) shall (i) subject to Section 3.05(a)(viii), withdraw from the
Certificate Account any Special Primary Insurance Premium payable on such
Distribution Date and pay such amount to the insurer under the applicable
Special Primary Insurance Policy and (ii) withdraw from the Certificate Account
the REMIC II Available Distribution Amount for such Distribution Date and
distribute, from the amount so withdrawn, to the extent of the REMIC II
Available Distribution Amount, the REMIC II Distribution Amount to the
Certificateholders (including the Class R Certificateholders with respect to any
distribution to the Holders of the Class R-2 Residual Interest), all in
accordance with the written statement received from the Master Servicer pursuant
to Section 4.02(b). Any Special Primary Insurance Premiums distributed pursuant
to clause (i) above shall be distributed by means of payment acceptable to the
insurer under the respective Special Primary Insurance Policy. Amounts
distributed to the Certificateholders pursuant to clause (ii) above shall be
distributed by wire transfer in immediately available funds for the account of,
or by check mailed to, each such Certificateholder of record on the immediately
preceding Record Date (other than as provided in Section 9.01 respecting the
final distribution), as specified by each such Certificateholder and at the
address of such Holder appearing in the Certificate Register.
(b) All reductions in the Certificate Principal Balance of a
Certificate effected by distributions of principal and all allocations of
Realized Losses made on any Distribution Date shall be binding upon all Holders
of such Certificate and of any Certificate issued upon the registration of
transfer or exchange therefor or in lieu thereof, whether or not such
distribution is noted on such Certificate. The final distribution of principal
of each Certificate (and the final distribution upon the Class R Certificates
upon (i) the termination of REMIC I and REMIC II and (ii) the payment, or making
provision for payment, of all liabilities of the Trust) shall be payable in the
manner provided above only upon presentation and surrender thereof on or after
the Distribution Date therefor at the office or agency of the Certificate
Registrar specified in the notice delivered pursuant to Section 4.04(c)(ii) and
Section 9.01(b).
(c) Whenever, on the basis of Curtailments, Payoffs and Monthly
Payments on the Mortgage Loans and Insurance Proceeds and Liquidation Proceeds
received and expected to be received during the Payoff Period, the Master
Servicer has notified the Trustee that it believes that the entire remaining
unpaid Class Principal Balance of any Class of Certificates will become
distributable on the next Distribution Date, the Trustee shall, no later than
the 18th day of the month of such Distribution Date, mail or cause to be mailed
to each Person in whose name a Certificate to be so retired is registered at the
close of business on the Record Date and to the Rating Agencies a notice to the
effect that:
(i) it is expected that funds sufficient to make such final distribution will be
available in the Certificate Account on such Distribution Date, and
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(ii) if such funds are available, (A) such final distribution will be payable on
such Distribution Date, but only upon presentation and surrender of such
Certificate at the office or agency of the Certificate Registrar maintained for
such purpose (the address of which shall be set forth in such notice), and (B)
no interest shall accrue on such Certificate after such Distribution Date.
Section 4.05. Statements to Certificateholders. With each distribution from the
Certificate Account on a Distribution Date, the Trustee shall make available to
each Rating Agency and Certificateholder the statement required by Section
4.02(b). The Trustee may make available such statement and certain other
information, including, without limitation, information required to be provided
by the Trustee pursuant to Sections 3.12 and 3.13, to Certificateholders through
the Trustee's Corporate Trust home page on the world wide web. Such web page is
currently located at "xxxxxxxxxxxxxxxxxxxxxx.xxxxxx.xxx." The location of such
web page and the procedures used therein are subject to change from time to time
at the Trustee's discretion.
Upon request by any Certificateholder or Rating Agency or the Trustee,
the Master Servicer shall forward to such Certificateholder or Rating Agency and
the Trustee and the Company (if the Company is no longer acting as Master
Servicer) an additional report which sets forth with respect to the Mortgage
Loans:
(a) The number and aggregate Principal Balance of the Mortgage Loans
delinquent one, two and three months or more, in each case, by Loan Group;
(b) The (i) number and aggregate Principal Balance of Mortgage Loans
with respect to which foreclosure proceedings have been initiated, and (ii) the
number and aggregate book value of Mortgaged Properties acquired through
foreclosure, deed in lieu of foreclosure or other exercise of rights respecting
the Trust's security interest in the Mortgage Loans, in each case, by Loan
Group;
(c) The amount of the Special Hazard Coverage available to the Senior
Certificates remaining as of the close of business on the applicable
Determination Date;
(d) The amount of the Bankruptcy Coverage available to the Senior
Certificates remaining as of the close of business on the applicable
Determination Date;
(e) The amount of the Fraud Coverage available to the Senior
Certificates remaining as of the close of business on the applicable
Determination Date; and
(f) The cumulative amount of Realized Losses incurred in respect of
each Loan Group allocated to the related Certificates since the Cut-Off Date.
Upon request by any Certificateholder, the Master Servicer, as soon as
reasonably practicable, shall provide the requesting Certificateholder with such
information as is necessary and appropriate, in the Master Servicer's sole
discretion, for purposes of satisfying applicable reporting requirements under
Rule 144A of the Securities Act.
The Company may make available any reports, statements or other
information to Certificateholders through the Company's home page on the world
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wide web. As of the Closing Date, such web page is located at "xxx.xxxxxxx.xxx"
and information is available by clicking on "Investor Information."
ARTICLE V
The Certificates
Section 5.01. The Certificates.
(a) The Certificates shall be substantially in the forms set forth in
Exhibit A and B with the additional insertion from Exhibit H attached hereto,
and shall be executed by the Trustee on behalf of the Trust, authenticated by
the Trustee (or any duly appointed Authenticating Agent) and delivered (i) upon
and pursuant to the order of the Company and (ii) upon receipt by the Trustee of
the documents specified in Section 2.01. The Certificates shall be issuable in
Authorized Denominations. Certificates shall be executed by manual or facsimile
signature on behalf of the Trust by authorized officers of the Trustee.
Certificates bearing the manual or facsimile signatures of individuals who were
at the time of execution the proper officers of the Trustee shall bind the
Trust, 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 for herein executed by the Trustee or any
Authenticating Agent by manual signature, and such certificate upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
(b) The following definitions apply for purposes of this Section 5.01:
"Disqualified Organization" means any Person which is not a Permitted
Transferee, but does not include any "Pass-Through Entity" which owns or holds a
Residual Certificate and of which a Disqualified Organization, directly or
indirectly, may be a stockholder, partner or beneficiary; "Pass-Through Entity"
means any regulated investment company, real estate investment trust, common
trust fund, partnership, trust or estate, and any organization to which Section
1381 of the Code applies; "Ownership Interest" means, with respect to any
Residual Certificate, any ownership or security interest in such Residual
Certificate, including any interest in a Residual Certificate as the Holder
thereof and any other interest therein whether direct or indirect, legal or
beneficial, as owner or as pledgee; "Transfer" means any direct or indirect
transfer or sale of, or directly or indirectly transferring or selling any
Ownership Interest in a Residual Certificate; and "Transferee" means any Person
who is acquiring by Transfer any Ownership Interest in a Residual Certificate.
(c) Restrictions on Transfers of the Residual Certificates to
Disqualified Organizations are set forth in this Section 5.01(c).
(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
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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 to a U.S. Person, the Trustee shall require delivery
to it, and shall not register the Transfer of any Residual Certificate until its
receipt of (1) an affidavit and agreement (a "Transferee Affidavit and
Agreement") attached hereto as Exhibit J from the proposed Transferee, in form
and substance satisfactory to the Company, representing and warranting, among
other things, that it is not a Non-U.S. Person, 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 who 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 5.01(c) and agrees to be bound by them, and (2) a
certificate, attached hereto as Exhibit I, from the Holder wishing to transfer
the Residual Certificate, in form and substance satisfactory to the Company,
representing and warranting, among other things, that no purpose of the proposed
Transfer is to allow such Holder to impede the assessment or collection of tax.
(C) Notwithstanding the delivery of a Transferee Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the Trustee 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 agrees by holding or acquiring such Ownership Interest (i)
to require a Transferee Affidavit and Agreement from any other Person to whom
such Person attempts to transfer its Ownership Interest and to provide a
certificate to the Trustee in the form attached hereto as Exhibit J; (ii) to
obtain the express written consent of the Company prior to any transfer of such
Ownership Interest, which consent may be withheld in the Company's sole
discretion; and (iii) to provide a certificate to the Trustee in the form
attached hereto as Exhibit I.
(ii) The Trustee shall register the Transfer of any Residual Certificate only if
it shall have received the Transferee Affidavit and Agreement, a certificate of
the Holder requesting such transfer in the form attached hereto as Exhibit J and
all of such other documents as shall have been reasonably required by the
Trustee as a condition to such registration.
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(iii) (A) If any "disqualified organization" (as defined in Section 860E(e)(5)
of the Code) shall become a holder of a Residual Certificate, then the last
preceding Permitted Transferee shall be restored, to the extent permitted by
law, to all rights and obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. If any Non-U.S.
Person shall become a holder of a Residual Certificate, then the last preceding
holder which is a U.S. Person shall be restored, to the extent permitted by law,
to all rights and obligations as Holder thereof retroactive to the date of
registration of the Transfer to such Non-U.S. Person of such Residual
Certificate. If a transfer of a Residual Certificate is disregarded pursuant to
the provisions of Treasury Regulations Section 1.860E-1 or Section 1.860G-3,
then the last preceding Permitted Transferee shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof retroactive to
the date of registration of such Transfer of such Residual Certificate. Neither
the Trust nor the Trustee shall be under any liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not permitted
by this Section 5.01(c) 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 5.01(c) 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 Company 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 Company on such terms as the
Company may choose. Such purported Transferee shall promptly endorse and deliver
each Residual Certificate in accordance with the instructions of the Company.
Such purchaser may be the Company itself or any affiliate of the Company. The
proceeds of such sale, net of the commissions (which may include commissions
payable to the Company or its affiliates), expenses and taxes due, if any, shall
be remitted by the Company 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 Company, and the Company shall not be liable to any
Person having an Ownership Interest in a Residual Certificate as a result of its
exercise of such discretion.
(iv) The Company, on behalf of the Trustee, shall make available, upon written
request from the Trustee, 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 not a Permitted Transferee, including the
information regarding "excess inclusions" of such Residual Certificates required
to be provided to the Internal Revenue Service and certain Persons as described
in Treasury Regulation Section 1.860D-1(b)(5), and (B) as a result of any
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regulated investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organizations described in Section 1381 of the
Code having as among its record holders at any time any Person who is not a
Permitted Transferee. Reasonable compensation for providing such information may
be required by the Company from such Person.
(v) The provisions of this Section 5.01 set forth prior to this Section (v) may
be modified, added to or eliminated by the Company and the Trustee, provided
that there shall have been delivered to the Trustee the following:
(A) written notification from each of the Rating Agencies 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 the
Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the
Company (as evidenced by a certificate of the Company), to the effect that such
modification, addition to or absence of such provisions will not cause REMIC I,
and REMIC II to cease to qualify as a REMIC and will not create a risk that (1)
REMIC I and REMIC II may be subject to an entity-level tax caused by the
Transfer of any Residual Certificate to a Person which is not a Permitted
Transferee or (2) a Certificateholder or another Person will be subject to a
REMIC-related tax caused by the Transfer of a Residual Certificate to a Person
which is not a Permitted Transferee.
(vi) The following legend shall appear on all Residual Certificates:
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
COMPANY AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT EITHER (A) THE UNITED
STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING, (B) ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION
521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE
UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE
CODE, (C) ANY ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), OR (C) BEING
HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), OR (D) AN AGENT OF A
DISQUALIFIED ORGANIZATION AND (2) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE
TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. SUCH AFFIDAVIT SHALL
INCLUDE CERTAIN REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF THE CLASS R CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
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(vii) The Tax Matters Person for each of REMIC I and REMIC II, while not a
Disqualified Organization, shall be the tax matters person for the related REMIC
within the meaning of Section 6231(a)(7) of the Code and Treasury Regulation
Section 1.860F-4(d).
(d) In the case of any Junior Subordinate Certificate presented for
registration in the name of any Person, the Trustee shall require (i) an
officer's certificate substantially in the form of Exhibit N attached hereto
acceptable to and in form and substance satisfactory to the Trustee and the
Company, which officer's certificate shall not be an expense of the Trust, the
Trustee, the Master Servicer or the Company, and (ii) only if such officer's
certificate indicates that a Benefit Plan Opinion is delivered in connection
therewith, a Benefit Plan Opinion.
In the case of any Residual Certificate presented for registration in
the name of any Person, the Trustee shall require (i) a Transferee Affidavit and
Agreement which includes the representation set forth in paragraph 19 of the
form attached hereto as Exhibit J and (ii) only if the representation set forth
in such paragraph 19 indicates that a Benefit Plan Opinion is delivered in
connection therewith, a Benefit Plan Opinion.
(e) No transfer, sale, pledge or other disposition of a Junior
Subordinate Certificate shall be made unless such transfer, sale, pledge or
other disposition is made in accordance with this Section 5.01(e) or Section
5.01(f). Each Person who, at any time, acquires any ownership interest in any
Junior Subordinate Certificate shall be deemed by the acceptance or acquisition
of such ownership interest to have agreed to be bound by the following
provisions of this Section 5.01(e) and Section 5.01(f), as applicable. No
transfer of a Junior Subordinate Certificate shall be deemed to be made in
accordance with this Section 5.01(e) unless such transfer is made pursuant to an
effective registration statement under the Securities Act or unless the Trustee
is provided with the certificates and an Opinion of Counsel, if required, on
which the Trustee may conclusively rely, to the effect that such transfer is
exempt from the registration requirements under the Securities Act, as follows:
In the event that a transfer is to be made in reliance upon an exemption from
the Securities Act, the Trustee shall require, in order to assure compliance
with the Securities Act, that the Certificateholder desiring to effect such
transfer certify to the Trustee in writing, in substantially the form attached
hereto as Exhibit F, the facts surrounding the transfer, with such modifications
to such Exhibit F as may be appropriate to reflect the actual facts of the
proposed transfer, and that the Certificateholder's proposed transferee certify
to the Trustee in writing, in substantially the form attached hereto as Exhibit
G, the facts surrounding the transfer, with such modifications to such Exhibit G
as may be appropriate to reflect the actual facts of the proposed transfer. If
such certificate of the proposed transferee does not contain substantially the
substance of Exhibit G, the Trustee shall require an Opinion of Counsel that
such transfer may be made without registration, which Opinion of Counsel shall
not be obtained at the expense of the Trustee, the Trust or the Company. Such
Opinion of Counsel shall allow for the forwarding, and the Trustee shall
forward, a copy thereof to the Rating Agencies. Notwithstanding the foregoing,
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any Junior Subordinate Certificate may be transferred, sold, pledged or
otherwise disposed of in accordance with the requirements set forth in Section
5.01(f).
(f) To effectuate a Certificate transfer of a Junior Subordinate
Certificate in accordance with this Section 5.01(f), the proposed transferee of
such Certificate must provide the Trustee and the Company with an investment
letter substantially in the form of Exhibit L attached hereto, which investment
letter shall not be an expense of the Trust, the Trustee or the Company, and
which investment letter states that, among other things, such transferee (i) is
a "qualified institutional buyer" as defined under Rule 144A, acting for its own
account or the accounts of other "qualified institutional buyers" as defined
under Rule 144A, and (ii) is aware that the proposed transferor intends to rely
on the exemption from registration requirements under the Securities Act
provided by Rule 144A. Notwithstanding the foregoing, the proposed transferee of
such Certificate shall not be required to provide the Trustee or the Company
with Annex 1 or Annex 2 to the form of Exhibit L attached hereto if the Company
so consents prior to each such transfer. Such transfers shall be deemed to have
complied with the requirements of this Section 5.01(f). The Holder of a
Certificate desiring to effect such transfer does hereby agree to indemnify the
Trust, the Trustee, the Company, and the Certificate Registrar against any
liability that may result if transfer is not made in accordance with this
Agreement.
(g) (1) In the case of any ERISA Restricted Certificate presented for
registration in the name of any Person, the prospective transferee shall be
required to provide the Trustee and the Company (A) an officer's certificate
substantially in the form of Exhibit O attached hereto acceptable to and in form
and substance satisfactory to the Trustee and the Company, which officer's
certificate shall not be an expense of the Trust, the Trustee, the Master
Servicer or the Company, and (B) only if such officer's certificate indicates
that a Benefit Plan Opinion is delivered in connection therewith, a Benefit Plan
Opinion.
(2) Notwithstanding the foregoing, a certification (and, if applicable,
a Benefit Plan Opinion) as described in Section 5.01(g)(1) above will not be
required with respect to the transfer of any ERISA Restricted Certificate to a
Clearing Agency, or for any subsequent transfer of any interest in a ERISA
Restricted Certificate for so long as such Certificate is a Book-Entry
Certificate (each such ERISA Restricted Certificate, a "Book-Entry ERISA
Restricted Certificate"). Any transferee of a Book-Entry ERISA Restricted
Certificate will be deemed to have represented, by virtue of its acquisition or
holding of such Certificate (or interest therein), that either (i) such
transferee is not an employee benefit or other plan subject to the prohibited
transaction provisions of ERISA or Section 4975 of the Code, or any person
(including an investment manager, a named fiduciary or a trustee of any such
plan) acting, directly or indirectly, on behalf of or purchasing such
Certificate with "plan assets" of any such plan (a "Plan Investor"), (ii) such
transferee is an insurance company, the source of funds to be used by it to
acquire or hold such Certificate is an "insurance company general account"
(within the meaning of Department of Labor Prohibited Transaction Class
Exemption ("PTCE") 95-60), and the conditions in Section I and III of PTCE 95-60
have been satisfied (each entity that satisfies this clause (ii), a "Complying
Insurance Company") or (iii) such Certificate was rated "BBB-" or better (or its
equivalent) by at least one of the Rating Agencies at the time of such
transferee's acquisition of such Certificate (or interest therein).
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(3) If any Book-Entry ERISA Restricted Certificate (or any interest
therein) is acquired or held in violation of the provisions of Section
5.01(g)(2) above, then the last preceding transferee that either (i) is not a
Plan Investor, (ii) is a Complying Insurance Company or (iii) acquired such
Certificate at a time when such Certificate was rated "BBB-" or better (or its
equivalent) by at least one of the Rating Agencies shall be restored, to the
extent permitted by law, to all rights and obligations as Beneficial Holder
thereof retroactive to the date of transfer of such Certificate by such
preceding transferee. Neither the Trust nor the Trustee shall be under any
liability to any Person for making any payments due on such Certificate to such
preceding transferee.
(4) Any purported Beneficial Holder whose acquisition or holding of any
Book-Entry ERISA Restricted Certificate (or interest therein) was effected in
violation of the restrictions in this Section 5.01(g) shall indemnify and hold
harmless the Company, the Trustee, the Master Servicer, the Trust and the
Underwriter from and against any and all liabilities, claims, costs or expenses
incurred by such parties as a result of such acquisition or holding.
Section 5.02. Certificates Issuable in Classes; Distributions of Principal and
Interest; Authorized Denominations. The aggregate principal amount of the
Certificates that may be authenticated and delivered under this Agreement is
limited to the aggregate Principal Balance of the Mortgage Loans as of the
Cut-Off Date, as specified in the Preliminary Statement to this Agreement,
except for Certificates authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Certificates pursuant to
Section 5.03. Such aggregate principal amount shall be allocated among one or
more Classes having designations, types of interests, initial per annum
Certificate Interest Rates, initial Class Principal Balances and Final Maturity
Dates as specified in the Preliminary Statement to this Agreement. The aggregate
Percentage Interest of each Class of Certificates of which the Class Principal
Balance equals zero as of the Cut-Off Date that may be authenticated and
delivered under this Agreement is limited to 100%. Certificates shall be issued
in Authorized Denominations.
Section 5.03. Registration of Transfer and Exchange of Certificates. The Trustee
shall cause to be maintained at one of its offices or at its designated agent, a
Certificate Register in which there shall be recorded the name and address of
each Certificateholder. Subject to such reasonable rules and regulations as the
Trustee may prescribe, the Certificate Register shall be amended from time to
time by the Trustee or its agent to reflect notice of any changes received by
the Trustee or its agent pursuant to Section 10.06. The Trustee hereby appoints
itself as the initial Certificate Registrar.
Upon surrender for registration of transfer of any Certificate to the
Trustee at the Corporate Trust Office of the Trustee or at the office of U.S.
Bank National Association, U.S. Bank Trust New York, 000 Xxxx Xxxxxx, Xxxxx
0000, Xxx Xxxx, XX 00000, Attention: Corporate Trust Window, or such other
address or agency as may hereafter be provided to the Master Servicer in writing
by the Trustee, the Trustee shall execute, and the Trustee or any Authenticating
Agent shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Certificates of Authorized Denominations. At the
option of the Certificateholders, Certificates may be exchanged for other
Certificates in Authorized Denominations of like Certificate Principal Balance
or Percentage Interest, as applicable, upon surrender of the Certificates to be
exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Trustee on behalf of the Trust shall execute, and
the Trustee, or any Authenticating Agent, shall authenticate and deliver, the
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Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for transfer shall (if so
required by the Trustee or any Authenticating Agent) be duly endorsed by, or be
accompanied by a written instrument of transfer in form satisfactory to the
Trustee or any Authenticating Agent and duly executed by, the Holder thereof or
such Holder's attorney duly authorized in writing.
A reasonable service charge may be made for any such exchange or
transfer of Certificates, and the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any exchange or transfer of Certificates.
All Certificates surrendered for exchange or transfer shall be
cancelled by the Trustee or any Authenticating Agent.
Section 5.04. Mutilated, Destroyed, Lost or Stolen Certificates. If (i) any
mutilated Certificate is surrendered to the Trustee or any Authenticating Agent,
or (ii) the Trustee or any Authenticating Agent receives evidence to their
satisfaction of the destruction, loss or theft of any Certificate, and there is
delivered to the Trustee or any Authenticating Agent such security or indemnity
as may be required by them to save each of them and the Trust harmless, then, in
the absence of notice to the Trustee or any Authenticating Agent that such
Certificate has been acquired by a protected purchaser, the Trustee shall
execute and the Trustee or any Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like Certificate Principal Balance or
Percentage Interest as applicable. Upon the issuance of any new Certificate
under this Section 5.04, the Trustee or any Authenticating Agent 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 or any Authenticating Agent) connected therewith.
Any replacement Certificate issued pursuant to this Section 5.04 shall
constitute complete and indefeasible evidence of ownership in REMIC II (or with
respect to the Class R Certificates, the residual ownership interests in REMIC I
and REMIC II) as if originally issued, whether or not the lost or stolen
Certificate shall be found at any time.
Section 5.05. Persons Deemed Owners. The Company, the Master Servicer, the
Trust, the Trustee, the Delaware 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 Section 4.04 and for all other purposes whatsoever, and neither the Company,
the Master Servicer, the Trust, the Trustee, the Delaware Trustee, the
Certificate Registrar nor any agent of the Company, the Master Servicer, the
Trust, the Trustee or the Delaware Trustee shall be affected by notice to the
contrary.
Section 5.06. Temporary Certificates. Upon the initial issuance of the
Certificates, the Trustee on behalf of the Trust may execute, and the Trustee or
any Authenticating Agent shall authenticate and deliver, temporary Certificates
which are printed, lithographed, typewritten or otherwise produced, in any
Authorized Denomination, of the tenor of the definitive Certificates in lieu of
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which they are issued and with such variations in form from the forms of the
Certificates set forth as Exhibits A, B and H hereto as the Trustee's officers
executing such Certificates may determine, as evidenced by their execution of
the Certificates. Notwithstanding the foregoing, the Certificates may remain in
the form of temporary Certificates.
If temporary Certificates are issued, the Trustee shall cause
definitive Certificates to be prepared within ten Business Days after the
Closing Date or as soon as practicable thereafter. After preparation of
definitive Certificates, the temporary Certificates shall be exchangeable for
definitive Certificates upon surrender of the temporary Certificates at the
office or agency of the Trustee to be maintained as provided in Section 5.10
hereof, without charge to the holder. Any tax or governmental charge that may be
imposed in connection with any such exchange shall be borne by the Master
Servicer. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee on behalf of the Trust shall execute and the Trustee
or any Authenticating Agent shall authenticate and deliver in exchange therefor
a like principal amount of definitive Certificates of Authorized Denominations.
Until so exchanged, the temporary Certificates shall in all respects be entitled
to the same benefits under this Agreement as definitive Certificates.
Section 5.07. Book-Entry for Book-Entry Certificates. Notwithstanding the
foregoing, the Book-Entry Certificates, upon original issuance, shall be issued
in the form of one or more typewritten Certificates of Authorized Denomination
representing the Book-Entry Certificates, to be delivered to DTC, the initial
Clearing Agency, by, or on behalf of, the Company. The Book-Entry Certificates
shall initially be registered on the Certificate Register in the name of Cede &
Co., the nominee of DTC, as the initial Clearing Agency, and no Beneficial
Holder shall receive a definitive certificate representing such Beneficial
Holder's interest in any Class of Book-Entry Certificate, except as provided
above and in Section 5.09. Each Book-Entry Certificate shall bear the following
legend:
Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Company or
its agent for registration of transfer, exchange, or payment, and any
Certificate issued is registered in the name of Cede & Co. or such other name as
is requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Unless and until definitive, fully registered Book-Entry Certificates
(the "Definitive Certificates") have been issued to the Beneficial Holders
pursuant to Section 5.09:
(a) the provisions of this Section 5.07 shall be in full force and
effect with respect to the Book-Entry Certificates;
(b) the Master Servicer and the Trustee may deal with the Clearing
Agency for all purposes with respect to the Book-Entry Certificates (including
the making of distributions on the Book-Entry Certificates) as the sole
Certificateholder;
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(c) to the extent that the provisions of this Section 5.07 conflict
with any other provisions of this Agreement, the provisions of this Section 5.07
shall control; and
(d) the rights of the Beneficial Holders shall be exercised only
through the Clearing Agency and the DTC Participants and shall be limited to
those established by law and agreements between such Beneficial Holders and the
Clearing Agency and/or the DTC Participants. Pursuant to the Depositary
Agreement, unless and until Definitive Certificates are issued pursuant to
Section 5.09, the initial Clearing Agency will make book-entry transfers among
the DTC Participants and receive and transmit distributions of principal and
interest on the related Class of Book-Entry Certificates to such DTC
Participants.
For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Holders of Book-Entry
Certificates evidencing a specified Percentage Interest, such direction or
consent may be given by the Clearing Agency at the direction of Beneficial
Holders owning Book-Entry Certificates evidencing the requisite Percentage
Interest represented by the Book-Entry Certificates. The Clearing Agency may
take conflicting actions with respect to the Book-Entry Certificates to the
extent that such actions are taken on behalf of the Beneficial Holders.
Section 5.08. Notices to Clearing Agency. Whenever notice or other communication
to the Certificateholders is required under this Agreement, unless and until
Definitive Certificates shall have been issued to the related Certificateholders
pursuant to Section 5.09, the Trustee shall give all such notices and
communications specified herein to be given to Holders of the Book-Entry
Certificates to the Clearing Agency which shall give such notices and
communications to the related DTC Participants in accordance with its applicable
rules, regulations and procedures.
Section 5.09. Definitive Certificates. If (a) the Clearing Agency or the Master
Servicer notifies the Trustee in writing that the Clearing Agency is no longer
willing or able to discharge properly its responsibilities under the Depositary
Agreement with respect to the Book-Entry Certificates and the Trustee or the
Master Servicer is unable to locate a qualified successor, (b) the Master
Servicer, with the consent of the applicable DTC Participants, advises the
Trustee in writing that it elects to terminate the book-entry system with
respect to the Book-Entry Certificates through the Clearing Agency or (c) after
the occurrence of an Event of Default, Certificateholders holding Book-Entry
Certificates evidencing Percentage Interests aggregating not less than 66% of
the aggregate Class Principal Balance of such Certificates advise the Trustee
and the Clearing Agency through DTC Participants in writing that the
continuation of a book-entry system with respect to the Book-Entry Certificates
through the Clearing Agency is no longer in the best interests of the
Certificateholders with respect to such Certificates, the Trustee shall notify
all Certificateholders of Book-Entry Certificates of the occurrence of any such
event and of the availability of Definitive Certificates. Upon surrender to the
Trustee of the Book-Entry Certificates by the Clearing Agency, accompanied by
registration instructions from the Clearing Agency for registration, the Trustee
on behalf of the Trust shall execute and the Trustee or any Authenticating Agent
shall authenticate and deliver the Definitive Certificates. Neither the Company,
the Master Servicer, the Trust nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
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Certificates for all of the Certificates all references herein to obligations
imposed upon or to be performed by the Clearing Agency shall be deemed to be
imposed upon and performed by the Trustee, to the extent applicable with respect
to such Definitive Certificates, and the Trustee shall recognize the Holders of
Definitive Certificates as Certificateholders hereunder.
Section 5.10. Office for Transfer of Certificates. The Trustee shall maintain in
Massachusetts and in New York, New York, an office or agency where Certificates
may be surrendered for registration of transfer or exchange. The Corporate Trust
Office and U.S. Bank National Association, U.S. Bank Trust New York, 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000, Attention: Corporate Trust Window are
initially designated for said purposes.
Section 5.11. Nature of Certificates. The Certificates shall be personal
property giving only the rights specifically set forth therein and in this
Agreement. The Certificates shall have no preemptive or similar rights and when
issued and delivered to the Holders against payment of the purchase price
therefor will be fully paid and nonassessable by the Trust. The Holders of the
Certificates, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware. THE RECEIPT AND ACCEPTANCE OF A CERTIFICATE OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH CERTIFICATE OF
ALL THE TERMS AND PROVISIONS OF THIS AGREEMENT, AND SHALL CONSTITUTE THE
AGREEMENT OF THE TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND
PROVISIONS OF THIS AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS
BETWEEN THE TRUST AND SUCH HOLDER AND SUCH OTHERS.
ARTICLE VI
The Company and the Master Servicer
Section 6.01. Liability of the Company and the Master Servicer. The Company and
the Master Servicer shall be liable in accordance herewith only to the extent of
the obligations specifically imposed upon and undertaken by the Company or the
Master Servicer, as applicable, herein.
Section 6.02. Merger or Consolidation of the Company, or the Master Servicer.
Any Corporation into which the Company or the Master Servicer may be merged or
consolidated, or any Corporation resulting from any merger, conversion or
consolidation to which the Company or the Master Servicer shall be a party, or
any Corporation succeeding to the business of the Company or the Master
Servicer, shall be the successor of the Company or the Master Servicer
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 6.03. Limitation on Liability of the Company, the Master Servicer and
Others. Neither the Company nor the Master Servicer nor any of the directors,
officers, employees or agents of the Company or the Master Servicer shall be
under any liability to the Trust, the Holders of the REMIC I Regular Interests
or the Certificateholders for any action taken by such Person or by a Servicer
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or for such Person's or Servicer's 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 Company, the Master Servicer
or any such Person 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 duties and obligations
hereunder. The Company, the Master Servicer and any director, officer, employee
or agent of the Company or the Master Servicer may rely in good faith on any
document of any kind properly executed and submitted by any Person respecting
any matters arising hereunder. The Company, the Master Servicer and any
director, officer, employee or agent of the Company or the Master Servicer shall
be indemnified by the Trust and held harmless against any loss, liability or
expense incurred in connection with any legal action relating to this Agreement
or the Certificates, other than any loss, liability or expense relating to any
Mortgage Loan (other than as otherwise permitted in this Agreement) or 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. The Company and the Master Servicer shall not
be under any obligation to appear in, prosecute or defend any legal action which
is not incidental to its duties to service the Mortgage Loans in accordance with
this Agreement and which in its opinion may involve it in any expense or
liability; provided, however, that the Company or the Master Servicer may in its
discretion undertake any such action which it may deem necessary or desirable
with respect to the Mortgage Loans, this Agreement, the Certificates or the
rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust and the Company and the Master Servicer shall be
entitled to be reimbursed therefor out of the Certificate Account, as provided
by Section 3.05.
Section 6.04. The Company and the Master Servicer not to Resign. The Company
shall not resign from the obligations and duties (including, without limitation,
its obligations and duties as initial Master Servicer) hereby imposed on it
except upon determination that its duties hereunder are no longer permissible
under applicable law. Any successor 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 permitting the resignation of the Company or any successor Master
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered to
the Trustee. No such resignation shall become effective until the Trustee or a
successor Master Servicer shall have assumed the Master Servicer's
responsibilities and obligations in accordance with Section 7.02 hereof.
If the Company is no longer acting as Master Servicer, then the
successor Master Servicer shall give prompt written notice to the Company of any
information received by such successor Master Servicer which affects or relates
to an ongoing obligation or right of the Company under this Agreement.
Section 6.05. Trustee Access. The Master Servicer shall afford the Company and
the Trustee, upon reasonable notice, during normal business hours access to all
records maintained by the Master Servicer, in respect of the Mortgage Loans and
in respect of its rights and obligations hereunder and access to such of its
officers as are responsible for such obligations. Upon reasonable request, the
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Master Servicer, shall furnish the Company and the Trustee with its most recent
financial statements (or, for so long as the Company is the Master Servicer, the
most recent consolidated financial statements for the Company appearing in the
audited financial statements of Washington Mutual, Inc., or the entity with
whose financial statements the financial statements of the Company are
consolidated) and such other information as it possesses, and which it is not
prohibited by law or, to the extent applicable, binding obligations to third
parties with respect to confidentiality from disclosing, regarding its business,
affairs, property and condition, financial or otherwise.
ARTICLE VII
Default
Section 7.01. Events of Default. (a) In case one or more of the following Events
of Default by the Master Servicer or by a successor Master Servicer shall occur
and be continuing, that is to say:
(i) Any failure by the Master Servicer to deposit into the Certificate Account
any payment required to be deposited therein by the Master Servicer under the
terms of this Agreement which continues unremedied for a period of five Business
Days 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 Trustee
or to the Master Servicer and the Trustee by the Holders of Certificates
evidencing Percentage Interests aggregating not less than 25% of REMIC II; or
(ii) 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 the Certificates or in this Agreement which
continues unremedied for a period of 60 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Master Servicer by the Trustee, or to the Master Servicer and the Trustee
by the Holders of Certificates evidencing Percentage Interests aggregating not
less than 25% of REMIC II; or
(iii) A decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a trustee in bankruptcy,
conservator or receiver or liquidator in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Master Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or
(iv) The Master Servicer shall consent to the appointment of a trustee in
bankruptcy, conservator or receiver or liquidator in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Master Servicer or of or relating to all or
substantially all of its property; or
(v) The Master Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its
obligations; or
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(vi) Any failure of the Master Servicer to make any Monthly P&I Advance (other
than a Nonrecoverable Advance) which continues unremedied at the opening of
business on the Distribution Date in respect of which such Monthly P&I Advance
was to have been made;
then, and in each and every such case, so long as an Event of Default
shall not have been remedied, either the Trustee or the Holders of Certificates
evidencing Percentage Interests aggregating not less than 25% of REMIC II, by
notice in writing to the Company and the Master Servicer (and to the Trustee if
given by the Certificateholders, in which case such notice shall set forth
evidence reasonably satisfactory to the Trustee that such Event of Default has
occurred and shall not have been remedied) may terminate all of the rights
(other than its right to reimbursement for advances) and obligations of the
Master Servicer, including its right to the Master Servicing Fee, under this
Agreement and in and to the Mortgage Loans and the proceeds thereof, if any.
Such determination shall be final and binding. 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 or the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee pursuant
to and under this Section 7.01; and, without limitation, the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Master
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer agrees to cooperate with
the Trustee in effecting the termination of the Master Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to the Trustee for administration by it of all cash amounts which shall
at the time be credited by the Master Servicer to the Certificate Account or
thereafter be received with respect to the Mortgage Loans.
Notwithstanding the foregoing, if an Event of Default described in
clause (vi) of this Section 7.01(a) shall occur, the Trustee shall, by notice in
writing to the Master Servicer, which may be delivered by telecopy, immediately
suspend all of the rights and obligations of the Master Servicer thereafter
arising under this Agreement, but without prejudice to any rights it may have as
a Certificateholder or to reimbursement of Monthly P&I Advances and other
advances of its own funds, and the Trustee shall act as provided in Section 7.02
to carry out the duties of the Master Servicer, including the obligation to make
any Monthly P&I Advance the nonpayment of which was an Event of Default
described in clause (vi) of this Section 7.01(a). Any such action taken by the
Trustee must be prior to the distribution on the relevant Distribution Date. If
the Master Servicer shall within two Business Days following such suspension
remit to the Trustee the amount of any Monthly P&I Advance the nonpayment of
which by the Master Servicer was an Event of Default described in clause (vi) of
this Section 7.01(a), the Trustee, subject to the last sentence of this
paragraph, shall permit the Master Servicer to resume its rights and obligations
as Master Servicer hereunder. The Master Servicer agrees that it will reimburse
the Trustee for actual, necessary and reasonable costs incurred by the Trustee
because of action taken pursuant to clause (vi) of this Section 7.01(a). The
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Master Servicer agrees that if an Event of Default as described in clause (vi)
of this Section 7.01(a) shall occur more than two times in any twelve month
period, the Trustee shall be under no obligation to permit the Master Servicer
to resume its rights and obligations as Master Servicer hereunder.
(b) In case one or more of the following Events of Default by the
Company shall occur and be continuing, that is to say:
(i) Failure on the part of the Company duly to observe or perform in any
material respect any of the covenants or agreements on the part of the Company
contained in the Certificates or in this Agreement which continues unremedied
for a period of 60 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Company by the
Trustee, or to the Company and the Trustee by the Holders of Certificates
evidencing Percentage Interests aggregating not less than 25% of REMIC II; or
(ii) A decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a trustee in bankruptcy,
conservator or receiver or liquidator in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Company and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days; or
(iii) The Company shall consent to the appointment of a trustee in bankruptcy,
conservator or receiver or liquidator in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Company or of or relating to all or
substantially all of its property; or
(iv) The Company shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
bankruptcy, insolvency or reorganization statute, make an assignment for the
benefit of creditors, or voluntarily suspend payment of its obligations;
then, and in each and every such case, so long as such Event of Default
shall not have been remedied, the Holders of Certificates evidencing Percentage
Interests aggregating not less than 25% of REMIC II, by notice in writing to the
Company and the Trustee, may direct the Trustee in accordance with Section 10.03
to institute an action, suit or proceeding in its own name as Trustee hereunder
to enforce the Company's obligations hereunder.
(c) In any circumstances in which this Agreement states that
Certificateholders owning Certificates evidencing a certain Percentage Interest
in REMIC II may take certain action, such action shall be taken by the Trustee,
but only if the requisite percentage of Certificateholders required under this
Agreement for taking like action or giving like instruction to the Trustee under
this Agreement shall have so directed the Trustee in writing.
Section 7.02. Trustee to Act; Appointment of Successor.
(a) On and after the date on which the Master Servicer receives a
notice of termination pursuant to Section 7.01 or the Master Servicer resigns
pursuant to Section 6.04, the Trustee shall be the successor in all respects to
the Master Servicer under this Agreement and under the Selling and Servicing
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Contracts with respect to the Mortgage Loans in the Mortgage Pool and with
respect to the transactions set forth or provided for herein and shall have all
the rights and powers and be subject to all the responsibilities, duties and
liabilities relating thereto arising on or after such date of termination or
resignation placed on the Master Servicer by the terms and provisions hereof and
thereof, and shall have the same limitations on liability herein granted to the
Master Servicer; provided, that the Trustee shall not under any circumstances be
responsible for any representations and warranties or any Purchase Obligation of
the Company or any liability incurred by the Master Servicer prior to such date
of termination or resignation and the Trustee shall not be obligated to make a
Monthly P&I Advance if it is prohibited by law from so doing. As compensation
therefor, the Trustee shall be entitled to all funds relating to the Mortgage
Loans which the Master Servicer would have been entitled to retain or to
withdraw from the Certificate Account if the Master Servicer had continued to
act hereunder, except for those amounts due to the Master Servicer as
reimbursement for advances previously made or amounts previously expended and
are otherwise reimbursable hereunder. Notwithstanding the above, the Trustee
may, if it shall be unwilling to so act, or shall if it is unable to so act,
appoint, or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution having a net worth of not less
than $10,000,000 as the successor to the Master Servicer hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer hereunder. Pending any such appointment, the Trustee is
obligated to act in such capacity. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall, together with the
compensation to the Trustee, be in excess of that permitted the Master Servicer
hereunder. The Trustee and such successor shall take such actions, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
(b) In connection with any termination or resignation of the Master
Servicer hereunder, in the event that any of the Mortgage Loans are MERS Loans,
either (i) the successor Master Servicer (including the Trustee if the Trustee
is acting as successor Master Servicer) shall represent and warrant that it is a
member of MERS in good standing and shall agree to comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Loans, in which case the predecessor Master Servicer shall cooperate
with the successor Master Servicer in registering the transfer of servicing of
the MERS Loans to the successor Master Servicer on the MERS(R) System in
accordance with MERS' rules and procedures, or (ii) if the successor Master
Servicer is not a member of MERS, the predecessor Master Servicer shall
cooperate with the successor Master Servicer in (A) de-registering the MERS
Loans from the MERS(R) System and (B) causing MERS to execute and deliver an
assignment from MERS to the Trust of the Mortgage securing each MERS Loan in
recordable form and in the form otherwise provided under clause (X)(iii) of the
definition of "Mortgage File" herein and to execute and deliver such other
notices, documents and other instruments as may be necessary or desirable to
effect such de-registration and assignment. The predecessor Master Servicer
shall bear any and all fees of MERS and all fees and costs of preparing and
recording any assignments of Mortgages as required under this Section 7.02(b).
Section 7.03. Notification to Certificateholders. Upon any such termination or
appointment of a successor to the Master Servicer, the Trustee shall give prompt
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written notice thereof to the Certificateholders at their respective addresses
appearing in the Certificate Register.
ARTICLE VIII
Concerning the Trustees
Section 8.01. Duties of Trustees.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred (which has not been cured or
waived) the Trustee shall exercise such of the rights and powers vested in it by
this Agreement, and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to it which are specifically required to be furnished to it pursuant to any
provision of this Agreement, shall examine them to determine whether they are in
the form required by this Agreement; provided, however, that the Trustee shall
not be responsible for the accuracy or content of any such certificate,
statement, opinion, report, or other order or instrument furnished by the
Company or Master Servicer to the Trustee pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Delaware Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct; provided, however,
that:
(i) Prior to the occurrence of an Event of Default and after the curing of all
such 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,
(ii) Neither the Trustee nor the Delaware Trustee shall 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 or the Delaware Trustee, and, in the absence of bad faith on
the part of the Trustee or the Delaware Trustee, such 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 such trustee
and conforming to the requirements of this Agreement; and
(iii) Neither the Trustee nor the Delaware Trustee shall be personally liable
with respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Certificateholders holding Certificates
which evidence Percentage Interests aggregating not less than 25% of REMIC II
relating to the time, method and place of conducting any proceeding for any
remedy available to such trustee, or relating to the exercise of any trust or
power conferred upon such trustee under this Agreement.
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(d) Within ten Business Days after the occurrence of any Event of
Default known to the Trustee, the Trustee shall transmit by mail to the Rating
Agencies notice of each Event of Default. Within 90 days after the occurrence of
any Event of Default known to the Trustee, the Trustee shall transmit by mail to
all Certificateholders (with a copy to the Rating Agencies) notice of each Event
of Default, unless such Event of Default shall have been cured or waived;
provided, however, the Trustee shall be protected in withholding such notice if
and so long as a Responsible Officer of the Trustee in good faith determines
that the withholding of such notice is in the best interests of the
Certificateholders; and provided, further, that in the case of any Event of
Default of the character specified in Section 7.01(i) and Section 7.01(ii) no
such notice to Certificateholders or to the Rating Agencies shall be given until
at least 30 days after the occurrence thereof.
(e) The Trustee acknowledges that it is named as the "insured" under
the Surety Bonds and acknowledges that the Master Servicer has agreed, pursuant
to Section 3.18 hereof, to perform the obligations of the Trustee under the
Surety Bonds on behalf of the Trustee. Each of the Trustee and the Master
Servicer hereby covenants not to cancel the Surety Bonds until the Trust Fund is
terminated in accordance with the provisions hereof.
Section 8.02. Certain Matters Affecting the Trustees. Except as otherwise
provided in Section 8.01:
(i) Each of the Trustee and the Delaware Trustee may request and rely upon and
shall be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(ii) Each of the Trustee and the Delaware Trustee may consult with counsel and
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted by it hereunder in good
faith and in accordance with such Opinion of Counsel;
(iii) Neither the Trustee nor the Delaware Trustee shall be personally liable
for any action taken or omitted by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(iv) Prior to the occurrence of an Event of Default hereunder and after the
curing of all Events of Default which may have occurred, neither the Trustee nor
the Delaware Trustee shall be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by the Holders of Certificates
evidencing Percentage Interests aggregating not less than 25% of REMIC II;
provided, however, that if the payment within a reasonable time to the Trustee
or the Delaware Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of such
trustee, not reasonably assured to such trustee by the security, if any,
afforded to it by the terms of this Agreement, such trustee may require
reasonable indemnity against such expense or liability as a condition to
proceeding;
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(v) Each of the Trustee and the Delaware Trustee may execute the trust or any of
the powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys selected by it with reasonable care or designated by
the Company;
(vi) Neither the Trustee nor the Delaware Trustee shall be deemed to have
knowledge or notice of any matter, including without limitation an Event of
Default, unless actually known by a Responsible Officer, or unless written
notice thereof referencing this Agreement or the Certificates is received at the
Notice Address of such trustee;
(vii) In no event shall the Trustee or the Delaware Trustee be held liable for
acts or omissions of the Master Servicer or the other trustee (excepting the
Trustee's own actions as Master Servicer). No provision of this Agreement shall
require the Trustee or the Delaware Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder (except for the giving of required notices), or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it;
(viii) When the Trustee is acting as Master Servicer pursuant to Section 7.02,
and to the extent permitted under applicable law, the Trustee is hereby
authorized, in making or disposing of any investment permitted hereunder, to
deal with itself (in its individual capacity) or with any one or more of its
affiliates, whether it or its affiliate is acting as an agent of the Trustee or
of any third person or dealing as principal for its own account; and
(ix) Except as expressly provided in this Agreement, in no event shall the
Trustee be under any duty or obligation to monitor, determine, investigate or
compel compliance by the Trust with the requirements of the Statutory Trust
Statute.
Section 8.03. Trustees Not Liable for Certificates or Mortgage Loans. The
recitals contained herein (other than those relating to the due organization,
power and authority of the Trustee and the Delaware Trustee) and in the
Certificates (other than the execution of, and certificate of authentication on,
the Certificates) shall be taken as the statements of the Company or the Trust,
as applicable, and neither the Trustee nor the Delaware Trustee assumes any
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responsibility for their correctness. Neither the Trustee nor the Delaware
Trustee makes any representations as to the validity or sufficiency of this
Agreement or of the Certificates or any Mortgage Loan. Neither the Trustee nor
the Delaware Trustee shall be accountable for the use or application by the
Company or the Trust, as applicable, of any of the Certificates or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Master Servicer, the Servicers or the Company in respect of the Mortgage
Loans or deposited into the Custodial Accounts for P&I, any Buydown Fund
Account, or the Custodial Accounts for P&I by any Servicer or into the
Investment Account, or the Certificate Account by the Master Servicer or the
Company.
Section 8.04. Trustees May Own Certificates. The Trustee, the Delaware Trustee
or any agent or affiliate of such trustee, in its individual 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. The Master Servicer to Pay Trustees' Fees and Expenses. Subject to
separate written agreements with the Trustee and the Delaware Trustee, the
Master Servicer covenants and agrees to, and the Master Servicer shall, pay each
of the Trustee and the Delaware Trustee from time to time, and such trustee
shall be entitled to payment, for all services rendered by it in the execution
of the trust hereby created and in the exercise and performance of any of the
powers and duties hereunder of such trustee. Except as otherwise expressly
provided herein, the Master Servicer shall pay or reimburse each of the Trustee
and the Delaware Trustee upon such trustee's request for all reasonable expenses
and disbursements incurred or made by such trustee in accordance with any of the
provisions of this Agreement and indemnify such trustee from any loss, liability
or expense incurred by it hereunder (including the reasonable compensation and
the expenses and disbursements of its counsel and of all persons not regularly
in its employ and any expenses which arise out of or are imposed upon the
Trustee or the Delaware Trustee in connection with the creation, operation or
termination of the Trust) except any such expense or disbursement as may arise
from its own negligence or bad faith. Such obligation shall survive the
termination of this Agreement or resignation or removal of the Trustee or the
Delaware Trustee. The Tax Matters Person shall, at its expense, prepare or cause
to be prepared all federal and state income tax and franchise tax and
information returns relating to REMIC I or REMIC II required to be prepared or
filed by the Trustee or the Delaware Trustee and shall indemnify the Trustee and
the Delaware Trustee for any liability of such trustees arising from any error
in such returns.
Section 8.06. Eligibility Requirements for Trustees. The Trustee hereunder shall
at all times be (i) an institution insured by the FDIC, (ii) a Corporation
organized and doing business under the laws of the United States of America or
of any state, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by federal or state authority and (iii) acceptable
to the Rating Agencies. If such Corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of any aforementioned
supervising or examining authority, then for the purposes of this Section 8.06,
the combined capital and surplus of such Corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. The Delaware Trustee hereunder shall at all times have its
principal place of business in the State of Delaware and shall satisfy the
applicable requirements under the laws of the State of Delaware authorizing it
to act as the Delaware trustee of the Trust. In case at any time the Trustee or
the Delaware Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.06, such trustee shall resign immediately in the
manner and with the effect specified in Section 8.07.
Section 8.07. Resignation and Removal of Trustees. Each of the Trustee and the
Delaware Trustee may at any time resign and be discharged from the trust hereby
created by giving written notice thereof to the Master Servicer. Upon receiving
such notice of resignation, the Master Servicer shall promptly appoint a
successor trustee by written instrument, in duplicate, one copy of which
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instrument shall be delivered to the resigning trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and
shall have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee or the Delaware 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 Master Servicer, or if at any time
the Trustee or the Delaware Trustee shall become incapable of acting, or shall
be adjudged bankrupt or insolvent, or a receiver of such trustee or of its
property shall be appointed, or any public officer shall take charge or control
of such trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Master Servicer may remove such trustee
and appoint a successor trustee by written instrument, in duplicate, copies of
which instrument shall be delivered to the trustee so removed, the trustee
continuing in its capacity and the successor trustee.
The Holders of Certificates evidencing Percentage Interests aggregating
more than 50% of REMIC II may at any time remove the Trustee or the Delaware
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 Master Servicer,
one complete set to the Trustee so removed and one complete set to the successor
so appointed.
Any resignation or removal of the Trustee or the Delaware Trustee and
appointment of a successor trustee pursuant to any of the provisions of this
Section 8.07 shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 8.08. Any expenses associated with the
resignation of the Trustee or the Delaware Trustee shall be borne by such
trustee, and any expenses associated with the removal of the Trustee or the
Delaware Trustee shall be borne by the Master Servicer.
Section 8.08. Successor Trustee. Any successor trustee appointed as provided in
Section 8.07 shall execute, acknowledge and deliver to the Master Servicer and
to its predecessor trustee an instrument accepting such appointment hereunder,
and thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee or Delaware Trustee herein. The predecessor shall deliver to
the successor trustee all Mortgage Files, related documents, statements and all
other property held by it hereunder, and the Master Servicer and the predecessor
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for more fully and certainly vesting and confirming
in the successor trustee all such rights, powers, duties and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such appointment such successor trustee shall
be eligible under the provisions of Section 8.06.
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Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Master Servicer shall mail notice of the succession of
such trustee hereunder to (i) all Certificateholders at their addresses as shown
in the Certificate Register and (ii) the Rating Agencies. If the Master Servicer
fails to mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed.
Section 8.09. Merger or Consolidation of Trustee. Any Corporation into which the
Trustee or the Delaware Trustee may be merged or converted or with which it may
be consolidated, or any Corporation resulting from any merger, conversion or
consolidation to which the Trustee or the Delaware Trustee shall be a party, or
any Corporation succeeding to the corporate trust business of such trustee,
shall be the successor of such trustee hereunder, provided such resulting or
successor Corporation 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 assets of the Trust
may at the time be located, the Master Servicer and the Trustee or the Delaware
Trustee, as applicable, acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by such
trustee to act as co-trustee or co-trustees, jointly with such trustee, or
separate trustee or separate trustees, of all or any part of the assets of the
Trust and to vest in such Person or Persons, in such capacity, such title to the
assets of the Trust, or any part thereof, and, subject to the other provisions
of this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee or the Delaware Trustee, as applicable, may
consider necessary or desirable; provided, that the Trustee or the Delaware
Trustee, as applicable, shall remain liable for all of its obligations and
duties under this Agreement. If the Master Servicer shall not have joined in
such appointment within 15 days after the receipt by it of a request so to do,
or in case an Event of Default shall have occurred and be continuing, the
Trustee or the Delaware Trustee, as applicable, alone shall have the power to
make such appointment; provided, that such trustee shall remain liable for all
of its obligations and duties under this Agreement. 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
Certificateholders 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 or the Delaware Trustee, as applicable,
shall be conferred or imposed upon and exercised or performed by the Trustee or
the Delaware Trustee, as applicable, and such separate trustee or co-trustee
jointly and severally, 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 or the Delaware Trustee, as applicable (whether as Trustee or Delaware
Trustee hereunder or as successor to the Master Servicer hereunder), such
trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the assets of the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee or the Delaware Trustee, as
applicable.
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Any notice, request or other writing given to the Trustee or the
Delaware Trustee shall be deemed to have been given to each of the then related
separate trustee(s) and co-trustee(s), as effectively as if given to each of
them. Every instrument appointing any separate trustee(s) or co-trustee(s) shall
refer to this Agreement and the conditions of this Article VIII. Each separate
trustee and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of appointment,
either jointly with the Trustee or the Delaware Trustee, as applicable, 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 or the Delaware Trustee, as applicable. Every such instrument shall be
filed with the Trustee or the Delaware Trustee, as applicable.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee or the Delaware Trustee, as applicable, 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 the
trust shall vest in and be exercised by the Trustee or the Delaware Trustee, as
applicable, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11. Authenticating Agents. The Trustee may appoint one or more
Authenticating Agents which shall be authorized to act on behalf of the Trustee
in authenticating Certificates. Wherever reference is made in this Agreement to
the authentication of Certificates by the Trustee or the Trustee's certificate
of authentication, such reference shall be deemed to include authentication on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent must be acceptable to the Master Servicer and must be
a corporation, trust company or banking association organized and doing business
under the laws of the United States of America or of any state, having an office
and place of business in New York, New York, having a combined capital and
surplus of at least $15,000,000, authorized under such laws to do a trust
business and subject to supervision or examination by federal or state
authorities.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent so
long as it shall be eligible in accordance with the provisions of the first
paragraph of this Section 8.11 without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and the Master Servicer. The Trustee may,
upon prior written approval of the Master Servicer, at any time terminate the
agency of any Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Master Servicer. Upon receiving a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of the first paragraph of this Section 8.11, the Trustee may appoint,
upon prior written approval of the Master Servicer, a successor Authenticating
Agent, shall give written notice of such appointment to the Master Servicer and
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shall mail notice of such appointment to all Certificateholders. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent. Any reasonable compensation paid to an Authenticating Agent shall be a
reimbursable expense pursuant to Section 8.05 if paid by the Trustee.
Section 8.12. Paying Agents. The Trustee may appoint one or more Paying Agents
which shall be authorized to act on behalf of the Trustee in making withdrawals
from the Certificate Account, and distributions to Certificateholders as
provided in Section 4.01, Section 4.04(a) and Section 9.01(b) to the extent
directed to do so by the Master Servicer. Wherever reference is made in this
Agreement to the withdrawal from the Certificate Account by the Trustee, such
reference shall be deemed to include such a withdrawal on behalf of the Trustee
by a Paying Agent. Whenever reference is made in this Agreement to a
distribution by the Trustee or the furnishing of a statement to
Certificateholders by the Trustee, such reference shall be deemed to include
such a distribution or furnishing on behalf of the Trustee by a Paying Agent.
Each Paying Agent shall provide to the Trustee such information concerning the
Certificate Account as the Trustee shall request from time to time. Each Paying
Agent must be reasonably acceptable to the Master Servicer and must be a
corporation, trust company or banking association organized and doing business
under the laws of the United States of America or of any state, having an office
and place of business in New York, New York, having a combined capital and
surplus of at least $15,000,000, authorized under such laws to do a trust
business and subject to supervision or examination by federal or state
authorities.
Any corporation into which any Paying Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which any Paying Agent shall be a party,
or any corporation succeeding to the corporate agency business of any Paying
Agent, shall continue to be the Paying Agent provided that such corporation
after the consummation of such merger, conversion, consolidation or succession
meets the eligibility requirements of this Section 8.12.
Any Paying Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Master Servicer; provided, that the Paying
Agent has returned to the Certificate Account or otherwise accounted, to the
reasonable satisfaction of the Master Servicer, for all amounts it has withdrawn
from the Certificate Account. The Trustee may, upon prior written approval of
the Master Servicer, at any time terminate the agency of any Paying Agent by
giving written notice of termination to such Paying Agent and to the Master
Servicer. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any Paying Agent shall cease to be eligible in accordance
with the provisions of the first paragraph of this Section 8.12, the Trustee may
appoint, upon prior written approval of the Master Servicer, a successor Paying
Agent, shall give written notice of such appointment to the Master Servicer and
shall mail notice of such appointment to all Certificateholders. Any successor
Paying Agent upon acceptance of its appointment hereunder shall become vested
with all the rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Paying Agent. Any
reasonable compensation paid to any Paying Agent shall be a reimbursable expense
pursuant to Section 8.05 if paid by the Trustee.
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Section 8.13. Duties of Delaware Trustee.
(a) The Delaware Trustee is appointed to serve as the trustee of the
Trust in the State of Delaware for the sole purpose of satisfying the
requirement of Section 3807(a) of the Statutory Trust Statute that the Trust
have at least one trustee with a principal place of business in Delaware. It is
understood and agreed by the parties hereto that the Delaware Trustee shall have
none of the duties or liabilities of the Trustee.
(b) The duties of the Delaware Trustee shall be limited to (i)
accepting legal process served on the Trust in the State of Delaware, (ii) the
execution of any certificates with respect to the Trust required to be filed
with the Secretary of State which the Delaware Trustee is required to execute
under Section 3811 of the Statutory Trust Statute and (iii) such other duties as
are set forth in this Article VIII. To the extent that, at law or in equity, the
Delaware Trustee has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or the Holders of the REMIC I Regular Interests or
the Certificates, it is hereby understood and agreed by the parties hereto that
such duties and liabilities are replaced by the duties and liabilities of the
Delaware Trustee expressly set forth in this Agreement.
Section 8.14. Amendment to Certificate of Trust. If at any time required by
Section 3810 of the Statutory Trust Statute, the Trustee, the Delaware Trustee
and any other trustee of the Trust shall cause an amendment to the Certificate
of Trust to be filed with the Secretary of State in accordance with the
provisions of such Section 3810.
Section 8.15. Limitation of Liability. It is expressly understood and agreed by
the parties hereto that (a) each of the representations, undertakings and
agreements herein made on the part of the Trust is made and intended not as
personal representations, undertakings and agreements by the Trustee but is made
and intended for the purpose of binding only the Trust and (b) under no
circumstances shall the Trustee be personally liable for the payment of any
indebtedness or expenses of the Trust or be liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by the
Trust under this Agreement.
ARTICLE IX
Termination
Section 9.01. Termination Upon Purchase by the Master Servicer or Liquidation of
All Mortgage Loans.
(a) Except as otherwise set forth in this Article IX, including,
without limitation, the obligation of the Master Servicer to make payments to
Certificateholders as hereafter set forth, the Trust and the respective
obligations and responsibilities of the Company, the Master Servicer, the
Trustee and the Delaware Trustee created hereby shall terminate in accordance
with Section 3808 of the Statutory Trust Statute upon (i) the purchase by the
Master Servicer pursuant to the following paragraph of this Section 9.01(a) of
all Mortgage Loans (other than Liquidated Mortgage Loans), all property acquired
in respect of any Mortgage Loan remaining in the Trust and all other property
included in any REMIC formed under this Agreement at a price equal, after the
deduction of related advances, to the sum of (x) the excess of (A) 100% of the
aggregate outstanding Principal Balance of such Mortgage Loans (other than
Liquidated Mortgage Loans) plus accrued interest at the applicable Pass-Through
Rate with respect to such Mortgage Loan (other than a Liquidated Mortgage Loan)
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through the last day of the month of such purchase, over (B) with respect to any
Mortgage Loan which is not a Liquidated Mortgage Loan, the amount of the
Bankruptcy Loss incurred with respect to such Mortgage Loan as of the date of
such purchase by the Master Servicer to the extent that the Principal Balance of
such Mortgage Loan has not been previously reduced by such Bankruptcy Loss, and
(y) the appraised fair market value as of the effective date of the termination
of the Trust of (A) all property in the Trust which secured a Mortgage Loan and
which was acquired by foreclosure or deed in lieu of foreclosure after the
Cut-Off Date, including related Insurance Proceeds, and (B) all other property
included in any REMIC formed under this Agreement, any such appraisal to be
conducted by an appraiser mutually agreed upon by the Master Servicer and the
Trustee, or (ii) the later of the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan remaining in the Trust
or the disposition of all property acquired upon foreclosure in respect of any
Mortgage Loan, and the payment to the Certificateholders of all amounts required
to be paid to them hereunder; provided, however, that in no event shall the
Trust continue beyond the expiration of 21 years from the death of the survivor
of the issue of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
On any Distribution Date after the first date on which the aggregate
Principal Balance of the Mortgage Loans is less than the Clean-Up Call
Percentage of the aggregate Principal Balance of the Mortgage Loans as of the
Cut-Off Date, the Master Servicer may purchase the outstanding Mortgage Loans
(other than Liquidated Mortgage Loans), all property acquired in respect of any
Mortgage Loan remaining in the Trust and all other property included in any
REMIC formed under this Agreement at the price stated in clause (i) of the
preceding paragraph; provided, that the Master Servicer may not so purchase the
outstanding Mortgage Loans (other than Liquidated Mortgage Loans), all property
acquired in respect of any Mortgage Loan remaining in the Trust and all other
property included in any REMIC formed under this Agreement if the price stated
in clause (i) of the preceding paragraph exceeds the fair market value,
determined in accordance with prudent industry practices, of all outstanding
Mortgage Loans (other than Liquidated Mortgage Loans), all property acquired in
respect of any Mortgage Loan remaining in the Trust and all other property
included in any REMIC formed under this Agreement. If such right is exercised,
the Master Servicer shall provide to the Trustee (and to the Company, if the
Company is no longer acting as Master Servicer) the written certification of an
officer of the Master Servicer (which certification shall include a statement to
the effect that all amounts required to be paid in order to purchase the
Mortgage Loans have been deposited in the Certificate Account) and the Trustee
on behalf of the Trust shall promptly execute all instruments as may be
necessary to release and assign to the Master Servicer the Mortgage Files and
any foreclosed Mortgaged Property pertaining to the Trust.
In no event shall the Master Servicer be required to expend any amounts
other than those described in the first paragraph of this Section 9.01(a) in
order to terminate the Trust or purchase the Mortgage Loans under this Section
9.01, and in no event shall the Company be required to expend any amounts in
connection with such termination or purchase.
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In the event that the Master Servicer elects to exercise its purchase
option as provided in this Section 9.01(a), the Master Servicer shall provide to
the Trustee and the Delaware Trustee (and to the Company, if the Company is no
longer acting as Master Servicer) notice thereof not less than 40 days prior to
the date of the final distribution to Certificateholders.
(b) Notice of any termination, specifying the date upon which the
Certificateholders may surrender their Certificates to the Trustee for payment
and cancellation, shall be given promptly by letter from the Trustee to
Certificateholders mailed not less than 30 days prior to such final
distribution, specifying (i) the date upon which final payment of the
Certificates will be made upon presentation and surrender of Certificates at the
office of the Certificate Registrar therein designated (the "Termination Date"),
(ii) the amount of such final payment (the "Termination Payment") and (iii) that
the Record Date otherwise applicable to the Distribution Date upon which the
Termination Date occurs is not applicable, payments being made only upon
presentation and surrender of the Certificates at the office of the Certificate
Registrar therein specified. Upon any such notice, the Certificate Account shall
terminate subject to the Master Servicer's obligation to hold all amounts
payable to Certificateholders in trust without interest pending such payment.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the Termination
Date, the Master Servicer shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the Termination Payment with respect thereto. If within one year after the
second notice all the Certificates shall not have been surrendered for
cancellation, the Master Servicer may take appropriate steps to contact the
remaining Certificateholders concerning surrender of their Certificates, and the
cost thereof shall be paid out of the funds and other assets which remain in
trust hereunder.
Upon the completion of winding up of the Trust, including the payment
or the making reasonable provision for payment of all obligations of the Trust
in accordance with Section 3808(e) of the Statutory Trust Statute, the Delaware
Trustee shall prepare, the Trustee, the Delaware Trustee and any other trustee
hereunder shall sign, and the Delaware Trustee (upon the Trustee's consent
acting at the direction of the Master Servicer) shall file, a certificate of
cancellation with the Secretary of State in accordance with Section 3810 of the
Statutory Trust Statute, at which time the Trust and this Agreement shall
terminate. The Master Servicer shall act as the liquidator of the Trust and
shall be responsible for taking all actions in connection with winding up the
Trust, in accordance with the requirements of this Agreement (including this
Section 9.01 and Section 9.02) and applicable law.
Section 9.02. Additional Termination Requirements.
(a) In the event the Master Servicer exercises its purchase option as
provided in Section 9.01, REMIC I and REMIC II shall be terminated in accordance
with the following additional requirements, unless the Master Servicer, at its
own expense, obtains for the Trustee an Opinion of Counsel to the effect that
the failure of REMIC I and REMIC II to comply with the requirements of this
Section 9.02 will not (i) result in the imposition of taxes on "prohibited
transactions" of REMIC I and REMIC II as described in Section 860F of the Code,
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or (ii) cause REMIC I or REMIC II to fail to qualify as a REMIC at any time that
any Certificates are outstanding:
(i) Within 90 days prior to the final Distribution Date set forth in the notice
given by the Trustee under Section 9.01, the Tax Matters Person shall prepare
the documentation required and the Tax Matters Person and the Trustee shall
adopt a plan of complete liquidation on behalf of REMIC I and REMIC II meeting
the requirements of a qualified liquidation under Section 860F of the Code and
any regulations thereunder, as evidenced by an Opinion of Counsel obtained at
the expense of the Master Servicer, on behalf of REMIC I and REMIC II; and
(ii) At or after the time of adoption of such a plan of complete liquidation and
at or prior to the final Distribution Date, the Master Servicer as agent of the
Trust shall sell all of the assets of REMIC I and REMIC II to the Master
Servicer for cash in the amount specified in Section 9.01.
(b) By its acceptance of any Residual Certificate, the Holder thereof
hereby agrees to authorize the Tax Matters Person and the Trustee to adopt such
a plan of complete liquidation upon the written request of the Tax Matters
Person and the Trustee and to take such other action in connection therewith as
may be reasonably requested by the Tax Matters Person or the Trustee.
Section 9.03. Trust Irrevocable. Except as expressly provided herein, the trust
created hereby is irrevocable.
ARTICLE X
Miscellaneous Provisions
Section 10.01. Amendment.
(a) This Agreement may be amended from time to time by the Master
Servicer, the Company and the Trustee, without the consent of any of the
Certificateholders:
(i) to cure any ambiguity;
(ii) to correct or supplement any provision herein which may be defective or
inconsistent with any other provisions herein;
(iii) to comply with any requirements imposed by the Code or any regulations
thereunder;
(iv) to correct the description of any property at any time included in REMIC I
or REMIC II, or to assure the conveyance to the Trust of any property included
in REMIC I or REMIC II;
(v) pursuant to Section 5.01(c)(v); and
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(vi) to add any provision to, or amend any provision in, this Agreement,
provided that such amendment or addition does not adversely affect in any
material respect the interests of any Certificateholder;
provided, however, that any such amendment which modifies the rights or
obligations of the Delaware Trustee hereunder shall require the consent of the
Delaware Trustee. No such amendment (other than one entered into pursuant to
clause (iii) of the preceding sentence) shall change the powers of the Master
Servicer. Prior to entering into any amendment (other than one entered into
pursuant to clause (iii) of the second preceding sentence) without the consent
of Certificateholders pursuant to this paragraph, the Trustee shall require an
Opinion of Counsel addressed to the Trust and the Trustee to the effect that
such amendment is permitted under this Agreement and has no material adverse
effect on the interests of the Certificateholders; provided, however, that no
such Opinion of Counsel shall be required if the Company obtains a letter from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates. Prior to entering into any amendment pursuant to clause (iii) of
the third preceding sentence without the consent of Certificateholders pursuant
to this paragraph, the Trustee shall require an Opinion of Counsel to the effect
that such action is necessary or helpful to comply with the requirements imposed
by the Code or any regulations thereunder and shall not cause any REMIC formed
under this Agreement to fail to qualify as such under the Code.
(b) This Agreement may also be amended from time to time by the Master
Servicer, the Company and the Trustee with the consent of the Holders of
Certificates evidencing Percentage Interests aggregating not less than 66% of
REMIC II 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 Certificateholders; provided, however, that no such
amendment shall, without the consent of the Holder of each Certificate affected
thereby (i) reduce in any manner the amount of, or delay the timing of,
distributions of principal or interest required to be made hereunder or reduce
the Certificateholder's Percentage Interest, the Certificate Interest Rate or
the Termination Payment with respect to any of the Certificates, (ii) reduce the
percentage of Percentage Interests specified in this Section 10.01 which are
required to amend this Agreement, (iii) create or permit the creation of any
lien against any part of REMIC I or REMIC II, or (iv) modify any provision in
any way which would permit an earlier retirement of the Certificates; provided,
further, that any such amendment which modifies the rights or obligations of the
Delaware Trustee hereunder shall require the consent of the Delaware Trustee.
Promptly after the execution of any such amendment, the Trustee shall
furnish written notification of the substance of such amendment to the Delaware
Trustee and each Certificateholder. Any failure to provide such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such amendment.
It shall not be necessary for the consent of Certificateholders under
this Section 10.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
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Section 10.02. Recordation of Agreement. 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 the comparable jurisdictions in
which any Mortgaged Property is situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by the Company
and at its expense on direction by the Trustee, but only upon direction
accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders.
Section 10.03. Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, 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, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No Certificateholder shall have any right to vote or in any manner
otherwise to control the operation and management of the Trust or the
obligations of the parties hereto (except as provided in Section 5.09, Section
7.01, Section 8.01, Section 8.02, Section 8.07, Section 10.01 and this Section
10.03), nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing of
any provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of default
and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of Certificates evidencing Percentage Interests aggregating not less
than 25% of REMIC II 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 60 days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding. However, the Trustee is under no obligation to
exercise any of the extraordinary trusts or powers vested in it by this
Agreement or to make any investigation of matters arising hereunder or to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Certificateholders unless such
Certificateholders have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein or
thereby. 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 whatever
by virtue or by availing of any provision of this Agreement to affect, disturb
or prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 10.03, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
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Section 10.04. Access to List of Certificateholders. The Certificate Registrar
shall furnish or cause to be furnished to the Trustee, within 30 days after
receipt of a request by the Trustee in writing, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date for payment of
distributions to such Certificateholders.
If three or more Certificateholders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and such application states that
the applicants desire to communicate with other Certificateholders with respect
to their rights under this Agreement or under the Certificates and is
accompanied by a copy of the communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such list from the Certificate Registrar, afford such applicants access during
normal business hours to the most recent list of Certificateholders held by the
Trustee. If such a list is as of a date more than 90 days prior to the date of
receipt of such applicants' request, the Trustee shall promptly request from the
Certificate Registrar a current list as provided above, and shall afford such
applicants access to such list promptly upon receipt.
Every Certificateholder, by receiving and holding the same, agrees with
the Master Servicer, the Trust, the Trustee and the Delaware Trustee that none
of the Master Servicer, the Trust, the Trustee or the Delaware Trustee shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Certificateholders hereunder, regardless of the
source from which such information was derived.
Section 10.05. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of Delaware without giving effect to its conflict of
laws provisions and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws without giving effect
to conflict of laws provisions.
Section 10.06. Notices. All demands, notices and communications hereunder shall
be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered or certified mail to the applicable Notice
Address. Notices to the Rating Agencies shall also be deemed to have been duly
given if mailed by first class mail, postage prepaid, to the above listed
addresses of the Rating Agencies. Any notice required or permitted to be mailed
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, whether or not the Certificateholder receives
such notice.
Section 10.07. Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 10.08. Counterpart Signatures. For the purpose of facilitating the
recordation of this Agreement as herein provided and for other purposes, this
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Agreement may be executed simultaneously in any number of counterparts, each of
which counterparts shall be deemed to be an original, and such counterparts
shall constitute but one and the same instrument.
Section 10.09. Benefits of Agreement. Nothing in this Agreement or in any
Certificate, expressed or implied, shall give to any Person, other than the
parties hereto and their respective successors hereunder, any separate trustee
or co-trustee appointed under Section 8.10 and the Certificateholders, any
benefit or any legal or equitable right, remedy or claim under this Agreement.
Section 10.10. Notices and Copies to Rating Agencies.
(a) The Trustee shall notify the Rating Agencies of the occurrence of
any of the following events, in the manner provided in Section 10.06:
(i) the occurrence of an Event of Default pursuant to Section 7.01, subject to
the provisions of Section 8.01(d); and
(ii) the appointment of a successor Master Servicer pursuant to Section 7.02;
(b) The Master Servicer shall notify the Rating Agencies of the
occurrence of any of the following events, or in the case of clauses (iii),
(iv), (vii) and (viii) promptly upon receiving notice thereof, in the manner
provided in Section 10.06:
(i) any amendment of this Agreement pursuant to Section 10.01;
(ii) the appointment of a successor Trustee or successor Delaware Trustee
pursuant to Section 8.08;
(iii) the filing of any claim under or the cancellation or modification of any
fidelity bond and errors and omissions coverage pursuant to Section 3.01 and
Section 3.06 with respect to the Master Servicer or any Servicer;
(iv) any change in the location of the Certificate Account, any Custodial
Account for P&I or any Custodial Account for Reserves;
(v) the purchase of any Mortgage Loan pursuant to a Purchase Obligation or as
permitted by this Agreement or the purchase of the outstanding Mortgage Loans
pursuant to Section 9.01;
(vi) the occurrence of the final Distribution Date or the termination of the
trust pursuant to Section 9.01(a)(ii);
(vii) the failure of the Master Servicer to make a Monthly P&I Advance following
a determination on the Determination Date that the Master Servicer would make
such advance pursuant to Section 4.02; and
(viii) the failure of the Master Servicer to make a determination on the
Determination Date regarding whether it would make a Monthly P&I Advance when a
shortfall exists between (x) payments scheduled to be received in respect of the
Mortgage Loans and (y) the amounts actually deposited in the Certificate Account
on account of such payments, pursuant to Section 4.02.
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The Master Servicer shall provide copies of the statements pursuant to
Section 4.02, Section 4.05, Section 3.12, Section 3.13 or Section 3.15 or any
other statements or reports to the Rating Agencies in such time and manner that
such statements or determinations are required to be provided to
Certificateholders. With respect to the reports described in the second
paragraph of Section 4.05, the Master Servicer shall provide such reports to the
Rating Agencies in respect of each Distribution Date, without regard to whether
any Certificateholder or the Trustee or the Delaware Trustee has requested such
report for such Distribution Date.
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IN WITNESS WHEREOF, the Company, the Trustee and the Delaware Trustee
have caused their names to be signed hereto by their respective officers,
thereunto duly authorized, all as of the day and year first above written.
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: FirstVice President
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxx X. X'Xxxxx
Name: Xxxxx X. X'Xxxxx
Title: Vice President
XXXXXXXXX BANK & TRUST COMPANY,
as Delaware Trustee
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx. X. Xxxxx
Title: Assistant Vice President
[Signature page to Pooling and Servicing Agreement for
Washington Mutual MSC Series 2004-RA1]
ACKNOWLEDGEMENT OF CORPORATION
STATE OF WASHINGTON )
) SS.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Xxxxxx X.
Xxxxxx is the person who appeared before me, and said person acknowledged that
he signed this instrument, on oath stated that. he was authorized to execute the
instrument and acknowledged it as the First Vice President of WASHINGTON MUTUAL
MORTGAGE SECURITIES CORP., to be the free and voluntary act of such party for
the uses and purposes mentioned therein.
Dated this 28th day of April, 2004.
/s/ Xxxxxxxxx Xxxxxx
Notary Public in and for the State of Washington,
residing at Seattle
My commission expires: 2/26/2007
ACKNOWLEDGEMENT
COMMONWEALTH OF MASSACHUSETTS )
) SS.
COUNTY OF SUFFOLK )
On this ___ day of April 2004 before me, a Notary Public in and for
said State, personally appeared Xxxxx X. X'Xxxxx personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacit(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ Xxxxx Xxx
(SEAL) Xxxxx Xxx
Notary Public
My Commission Expires April 21, 0000
XXXXXXXXXXXXXXX
XXXXX XX XXXXXXXX )
) SS.
COUNTY OF NEWCASTLE )
On this 22nd day of April 2004 before me, a Notary Public in and for
said State, personally appeared Xxxxx X. Xxxxx, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacit(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ Xxxxxxxx X. Xxxxx
(SEAL) Xxxxxxxx X. Xxxxx
Notary Public
State of Delaware
My Commission Expires May 29, 2005
Schedule 1 - Exceptions to Section 2.08(iv) Representations
1. As of the Cut-Off Date, four Group I Loans with the following loan
numbers were delinquent between 30 and 59 days:
Loan Numbers: 600117155, 600126217, 500055870, 601296221.
2. As of the Cut-Off Date, three Group I Loans with the following loan
numbers were delinquent between 60 and 89 days:
Loan Numbers: 600007672, 600117402, 600124334.
3. As of the Cut-Off Date, 37 Group I Loans with the following loan
numbers were current but had been 30 days delinquent once during the twelve
months preceding the Cut-Off Date:
Loan Numbers: 500098120, 500055614, 600145807, 600052043, 500055592,
600051750, 600051992, 601397604, 601397707, 601397834, 601397856, 601397891,
601397897, 600051828, 500056081, 600104595, 601397585, 601397587, 601397597,
601397603, 601397610, 601397641, 601397672, 601397687, 601397689, 601397758,
601397777, 601397779, 601397795, 601397811, 601397821, 601397826, 601397855,
601397857, 601397901, 601397910, 601397982.
4. As of the Cut-Off Date, 27 Group I Loans with the following loan
numbers were current but had been either (i) 30 days delinquent more than once
during the twelve months preceding the Cut-Off Date or (ii) more than 30 days
delinquent during the twelve months preceding the Cut-Off Date:
Loan Numbers: 600129361, 600129155, 500056342, 601397619, 601397745,
601397839, 601397886, 601397992, 500055965, 500068333, 600051866, 600051845,
601397833, 600125614, 500056537, 601397986, 600132316, 600275823, 600321488,
601227509, 601397802, 601397810, 600124335, 600886890, 600130242, 600377072,
600132576.
5. As of the Cut-Off Date, 37 Group II Loans with the following loan
numbers were delinquent between 30 and 59 days:
Loan Numbers: 600108509, 600149831, 601075369, 500068424, 600143249,
600149843, 600339935, 600290860, 600285756, 500055210, 500079385, 600147147,
600288768, 600287762, 600287864, 600378597, 601345933, 500083876, 600287803,
600380292, 600883027, 600287865, 600138135, 600103577, 600146151, 600225600,
600991757, 500079250, 600086190, 600103478, 600146986, 500090412, 600145391,
600381963, 600057312, 600895464, 500082154.
6. As of the Cut-Off Date, five Group II Loans with the following loan
numbers were delinquent between 60 and 89 days:
Loan Numbers: 600118775, 600288075, 600377101, 600895538, 600270508.
7. As of the Cut-Off Date, 67 Group II Loans with the following loan
numbers were current but had been 30 days delinquent once during the twelve
months preceding the Cut-Off Date:
Loan Numbers: 600147023, 600301051, 601069868, 600146682, 600146026,
600883164, 600115099, 601070178, 600149833, 600380497, 600275316, 601164007,
600145883, 600145356, 500079738, 600287590, 600345304, 600883325, 600288432,
601397616, 601397644, 601397711, 601397724, 601397731, 601397770, 601397796,
601397840, 601397937, 601397995, 601398008, 600041856, 600333305, 600380576,
600882517, 600337271, 500081452, 600145128, 500056732, 600896438, 500079510,
600147164, 600137056, 600275803, 600146970, 600376152, 600382711, 600287179,
600896168, 600288438, 500056020, 500079322, 600896001, 500080464, 600138129,
600280312, 600896760, 600378637, 500056500, 600138117, 600285319, 601397686,
601397841, 601397860, 601397929, 601397960, 601397974, 601397999.
8. As of the Cut-Off Date, 95 Group II Loans with the following loan
numbers were current but had been either (i) 30 days delinquent more than once
during the twelve months preceding the Cut-Off Date or (ii) more than 30 days
delinquent during the twelve months preceding the Cut-Off Date:
Loan Numbers: 600132508, 600146757, 600287488, 500076478, 600345294,
500079298, 600341733, 600146855, 600147085, 600337296, 500057058, 600896030,
600377225, 600991560, 600147361, 600146580, 600341201, 601345937, 500081991,
600119325, 600143626, 600377926, 600292006, 600884275, 600109097, 500079040,
600281297, 500079677, 600378829, 500076870, 600005362, 600333216, 500081200,
600286409, 601397684, 601397695, 601397757, 601397830, 601397846, 601397893,
601397896, 601397930, 601397946, 601398000, 600255318, 600138204, 601346000,
600991548, 500080928, 600145390, 500080519, 601346066, 601129915, 500067866,
600146968, 600269980, 600895703, 600271880, 600377386, 601346144, 600146862,
600132377, 600116237, 600291796, 600292011, 600005718, 600146783, 500058534,
600882624, 600377469, 600380092, 601071957, 600149824, 600896578, 600380538,
600378487, 601162624, 600380244, 601397596, 601397643, 601397704, 601397736,
601397774, 601397808, 601397815, 601397819, 601397838, 601397858, 601397932,
601397939, 601397943, 601397950, 601397952, 601397988, 601397994.
Appendix 1: Definition of Class C-Y Principal Reduction Amounts
Copies of Appendix 1 (which has been intentionally omitted from this
filing) may be obtained from Washington Mutual Mortgage Securities Corp. or U.S.
Bank National Association by contacting:
in the case of Washington Mutual Mortgage Securities Corp.,
Xxxxx Xxxxxx
Master Servicing Department
Washington Mutual Mortgage Securities Corp.
00 X. Xxxxxxx Xxxxx, XXX0X00
Xxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
in the case of U.S. Bank National Association,
Xxxxx X. X'Xxxxx
Corporate Trust Services
U.S. Bank National Association
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Exhibit A
CUSIP 939336 P72
WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATE
Class I-A
Evidencing a beneficial interest in a pool of assets consisting of beneficial
interests in another pool of assets consisting of, among other things,
conventional one- to four-family mortgage loans formed and administered by
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
This Certificate is issued by Washington Mutual MSC Mortgage Pass-Through
Certificates Series 2004-RA1 Trust. This Certificate represents ownership of a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined in Sections 860G and 860D, respectively, of the Internal
Revenue Code of 1986, as amended. The issue date of this Certificate is April
29, 2004.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange, or payment, and any Certificate
issued is registered in the name of Cede & Co. or such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Series 2004-RA1 Portion of the Class I-A Principal Balance as of
the Cut-Off Date Evidenced by this
Certificate: $71,609,148.00
Class I-A Certificate Interest Rate: 6.500%
Cut-Off Date: April 1, 2004
First Distribution Date: May 25, 2004
Last Scheduled Distribution Date: November 25, 2018
Class I-A Principal Balance
as of the Cut-Off Date: $71,609,148.00
Cede & Co.
Registered Owner
A-1
Exhibit A
CUSIP 939336 P80
WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATE
Class II-A
Evidencing a beneficial interest in a pool of assets consisting of beneficial
interests in another pool of assets consisting of, among other things,
conventional one- to four-family mortgage loans formed and administered by
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
This Certificate is issued by Washington Mutual MSC Mortgage Pass-Through
Certificates Series 2004-RA1 Trust. This Certificate represents ownership of a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined in Sections 860G and 860D, respectively, of the Internal
Revenue Code of 1986, as amended. The issue date of this Certificate is April
29, 2004.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange, or payment, and any Certificate
issued is registered in the name of Cede & Co. or such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Series 2004-RA1 Portion of the Class II-A Principal Balance as of the Cut-Off
Date Evidenced by this Certificate:
$246,256,442.00
Class II-A Certificate Interest Rate: 7.000%
Cut-Off Date: April 1, 2004
First Distribution Date: May 25, 2004
Last Scheduled Distribution Date: March 25, 2034
Class II-A Principal Balance
as of the Cut-Off Date: $246,256,442.00
Cede & Co.
Registered Owner
A-2
Exhibit A
CUSIP 939336 P98
WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATE
Class I-X
Evidencing a beneficial interest in a pool of assets consisting of beneficial
interests in another pool of assets consisting of, among other things,
conventional one- to four-family mortgage loans formed and administered by
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
This Certificate is issued by Washington Mutual MSC Mortgage Pass-Through
Certificates Series 2004-RA1 Trust. This Certificate represents ownership of a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined in Sections 860G and 860D, respectively, of the Internal
Revenue Code of 1986, as amended. The issue date of this Certificate is April
29, 2004.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange, or payment, and any Certificate
issued is registered in the name of Cede & Co. or such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Series 2004-RA1 Portion of the Class I-X Notional Amount as of the
Cut-Off Date Evidenced by this Certificate:
$3,263,399.00
Class I-X Certificate Interest Rate: 6.500% applied to the Class I-X Notional
Amount
Cut-Off Date: April 1, 2004
First Distribution Date: May 25, 2004
Last Scheduled Distribution Date: November 25, 2018
Class I-X Principal Balance
as of the Cut-Off Date: $0.00
Class I-X Notional Amount
as of the Cut-Off Date: $3,263,399.00
Cede & Co.
Registered Owner
A-3
Exhibit A
CUSIP 939336 Q22
WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATE
Class II-X
Evidencing a beneficial interest in a pool of assets consisting of beneficial
interests in another pool of assets consisting of, among other things,
conventional one- to four-family mortgage loans formed and administered by
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
This Certificate is issued by Washington Mutual MSC Mortgage Pass-Through
Certificates Series 2004-RA1 Trust. This Certificate represents ownership of a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined in Sections 860G and 860D, respectively, of the Internal
Revenue Code of 1986, as amended. The issue date of this Certificate is April
29, 2004.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange, or payment, and any Certificate
issued is registered in the name of Cede & Co. or such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Series 2004-RA1 Portion of the Class II-X Notional Amount as of the Cut-Off Date
Evidenced by this Certificate:
$12,338,898.89
Class II-X Certificate Interest Rate: 7.000% applied to the Class II-X Notional
Amount
Cut-Off Date: April 1, 2004
First Distribution Date: May 25, 2004
Last Scheduled Distribution Date: March 25, 2034
Class II-X Principal Balance
as of the Cut-Off Date: $0.00
Class II-X Notional Amount
as of the Cut-Off Date: $12,338,898.89
Cede & Co.
Registered Owner
A-4
Exhibit A
CUSIP 939336 Q30
WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATE
Class I-P
Evidencing a beneficial interest in a pool of assets consisting of beneficial
interests in another pool of assets consisting of, among other things,
conventional one- to four-family mortgage loans formed and administered by
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
This Certificate is issued by Washington Mutual MSC Mortgage Pass-Through
Certificates Series 2004-RA1 Trust. This Certificate represents ownership of a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined in Sections 860G and 860D, respectively, of the Internal
Revenue Code of 1986, as amended. The issue date of this Certificate is April
29, 2004. Interest is not payable with respect to this Certificate.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange, or payment, and any Certificate
issued is registered in the name of Cede & Co. or such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Series 2004-RA1 Portion of the Class I-P Principal Balance as of the Cut-Off
Date Evidenced by this Certificate:
$1,262,113.00
Class I-P Certificate Interest Rate: 0.00%
Cut-Off Date: April 1, 2004
First Distribution Date: May 25, 2004
Last Scheduled Distribution Date: November 25, 2018
Class I-P Principal Balance
as of the Cut-Off Date: $1,262,113.00
Cede & Co.
Registered Owner
A-5
Exhibit A
CUSIP 939336 Q48
WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATE
Class II-P
Evidencing a beneficial interest in a pool of assets consisting of beneficial
interests in another pool of assets consisting of, among other things,
conventional one- to four-family mortgage loans formed and administered by
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
This Certificate is issued by Washington Mutual MSC Mortgage Pass-Through
Certificates Series 2004-RA1 Trust. This Certificate represents ownership of a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined in Sections 860G and 860D, respectively, of the Internal
Revenue Code of 1986, as amended. The issue date of this Certificate is April
29, 2004. Interest is not payable with respect to this Certificate.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange, or payment, and any Certificate
issued is registered in the name of Cede & Co. or such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Series 2004-RA1 Portion of the Class II-P Principal Balance as of the Cut-Off
Date Evidenced by this Certificate:
$3,882,282.99
Class II-P Certificate Interest Rate: 0.00%
Cut-Off Date: April 1, 2004
First Distribution Date: May 25, 2004
Last Scheduled Distribution Date: March 25, 2034
Class II-P Principal Balance
as of the Cut-Off Date: $3,882,282.99
Cede & Co.
Registered Owner
A-6
Exhibit A
CUSIP 939336 Q55
WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATE
Class C-B-1
Evidencing a beneficial interest in a pool of assets consisting of beneficial
interests in another pool of assets consisting of, among other things,
conventional one- to four-family mortgage loans formed and administered by
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
This Certificate is issued by Washington Mutual MSC Mortgage Pass-Through
Certificates Series 2004-RA1 Trust. This Certificate represents ownership of a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined in Sections 860G and 860D, respectively, of the Internal
Revenue Code of 1986, as amended. The issue date of this Certificate is April
29, 2004.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange, or payment, and any Certificate
issued is registered in the name of Cede & Co. or such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
NO TRANSFER OF THIS CLASS C-B-1 CERTIFICATE WILL BE MADE UNLESS THE TRUSTEE HAS
RECEIVED (I) AN OFFICER'S CERTIFICATE IN THE FORM DESCRIBED IN SECTION 5.01(g)
OF THE POOLING AGREEMENT AND (II) IF SO INDICATED IN SUCH OFFICER'S CERTIFICATE,
AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO
THE TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE ARE PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT
IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE, AND WILL NOT SUBJECT THE TRUST, THE TRUSTEE, THE MASTER
SERVICER OR THE COMPANY TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE) IN ADDITION
TO THOSE UNDERTAKEN IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT
BE AN EXPENSE OF THE TRUST, THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
NOTWITHSTANDING THE FOREGOING PARAGRAPH, WITH RESPECT TO THE TRANSFER OF THIS
CLASS C-B-1 CERTIFICATE TO DTC OR ANY OTHER CLEARING AGENCY OR ANY SUBSEQUENT
TRANSFER OF ANY INTEREST IN THIS CERTIFICATE FOR SO LONG AS THIS CERTIFICATE IS
HELD BY DTC OR ANY OTHER CLEARING AGENCY, (I) AN OFFICER'S CERTIFICATE (AND, IF
APPLICABLE, A BENEFIT PLAN OPINION), AS DESCRIBED IN THE FOREGOING PARAGRAPH,
SHALL NOT BE REQUIRED, AND (II) THE FOLLOWING CONDITIONS SHALL APPLY:
1. ANY TRANSFEREE OF THIS CERTIFICATE WILL BE DEEMED TO HAVE REPRESENTED, BY
VIRTUE OF ITS ACQUISITION OR HOLDING OF THIS CERTIFICATE (OR INTEREST HEREIN),
THAT EITHER (A) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT
TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE,
OR ANY PERSON (INCLUDING AN INVESTMENT MANAGER, A NAMED FIDUCIARY OR A TRUSTEE
OF ANY SUCH PLAN) ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF OR PURCHASING
THIS CERTIFICATE WITH "PLAN ASSETS" OF ANY SUCH PLAN (A "PLAN INVESTOR"), (B)
SUCH TRANSFEREE IS AN INSURANCE COMPANY, THE SOURCE OF FUNDS TO BE USED BY IT TO
ACQUIRE OR HOLD THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT"
(WITHIN THE MEANING OF DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION ("PTCE") 95-60), AND THE CONDITIONS IN SECTION I AND III OF PTCE 95-60
HAVE BEEN SATISFIED (EACH ENTITY THAT SATISFIES THIS CLAUSE (B), A "COMPLYING
INSURANCE COMPANY") OR (C) THIS CERTIFICATE WAS RATED "BBB-" OR BETTER (OR ITS
EQUIVALENT) BY AT LEAST ONE OF THE RATING AGENCIES AT THE TIME OF SUCH
TRANSFEREE'S ACQUISITION OF THIS CERTIFICATE (OR INTEREST HEREIN); AND
2. IF THIS CERTIFICATE (OR ANY INTEREST HEREIN) IS ACQUIRED OR HELD IN VIOLATION
OF THE PROVISIONS OF THE PRECEDING PARAGRAPH, THEN THE LAST PRECEDING TRANSFEREE
THAT EITHER (I) IS NOT A PLAN INVESTOR, (II) IS A COMPLYING INSURANCE COMPANY OR
(III) ACQUIRED THIS CERTIFICATE AT A TIME WHEN THIS CERTIFICATE WAS RATED "BBB-"
OR BETTER (OR ITS EQUIVALENT) BY AT LEAST ONE OF THE RATING AGENCIES SHALL BE
A-7
RESTORED, TO THE EXTENT PERMITTED BY LAW, TO ALL RIGHTS AND OBLIGATIONS AS
BENEFICIAL HOLDER THEREOF RETROACTIVE TO THE DATE OF TRANSFER OF THIS
CERTIFICATE BY SUCH PRECEDING TRANSFEREE. NEITHER THE TRUST NOR THE TRUSTEE
SHALL BE UNDER ANY LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS DUE ON THIS
CERTIFICATE TO SUCH PRECEDING TRANSFEREE.
ANY PURPORTED BENEFICIAL HOLDER WHOSE ACQUISITION OR HOLDING OF THIS CERTIFICATE
(OR INTEREST HEREIN) WAS EFFECTED IN VIOLATION OF THE RESTRICTIONS IN SECTION
5.01(g) OF THE POOLING AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS THE COMPANY,
THE TRUSTEE, THE MASTER SERVICER, THE TRUST AND THE UNDERWRITER FROM AND AGAINST
ANY AND ALL LIABILITIES, CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH PARTIES AS A
RESULT OF SUCH ACQUISITION OR HOLDING.
The Class C-B-1 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in the
Pooling Agreement.
Series 2004-RA1 Portion of the Class C-B-1 Principal Balance as of the Cut-Off
Date Evidenced by this Certificate:
$9,707,000.00
Class C-B-1 Certificate Interest Rate: Variable
Cut-Off Date: April 1, 2004
First Distribution Date: May 25, 2004
Last Scheduled Distribution Date: March 25, 2034
Class C-B-1 Principal Balance
as of the Cut-Off Date: $9,707,000.00
Cede & Co.
Registered Owner
A-8
Exhibit A
CUSIP 939336 Q63
WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATE
Class C-B-2
Evidencing a beneficial interest in a pool of assets consisting of beneficial
interests in another pool of assets consisting of, among other things,
conventional one- to four-family mortgage loans formed and administered by
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
This Certificate is issued by Washington Mutual MSC Mortgage Pass-Through
Certificates Series 2004-RA1 Trust. This Certificate represents ownership of a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined in Sections 860G and 860D, respectively, of the Internal
Revenue Code of 1986, as amended. The issue date of this Certificate is April
29, 2004.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange, or payment, and any Certificate
issued is registered in the name of Cede & Co. or such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
NO TRANSFER OF THIS CLASS C-B-2 CERTIFICATE WILL BE MADE UNLESS THE TRUSTEE HAS
RECEIVED (I) AN OFFICER'S CERTIFICATE IN THE FORM DESCRIBED IN SECTION 5.01(g)
OF THE POOLING AGREEMENT AND (II) IF SO INDICATED IN SUCH OFFICER'S CERTIFICATE,
AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO
THE TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE ARE PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT
IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE, AND WILL NOT SUBJECT THE TRUST, THE TRUSTEE, THE MASTER
SERVICER OR THE COMPANY TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE) IN ADDITION
TO THOSE UNDERTAKEN IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT
BE AN EXPENSE OF THE TRUST, THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
NOTWITHSTANDING THE FOREGOING PARAGRAPH, WITH RESPECT TO THE TRANSFER OF THIS
CLASS C-B-2 CERTIFICATE TO DTC OR ANY OTHER CLEARING AGENCY OR ANY SUBSEQUENT
TRANSFER OF ANY INTEREST IN THIS CERTIFICATE FOR SO LONG AS THIS CERTIFICATE IS
HELD BY DTC OR ANY OTHER CLEARING AGENCY, (I) AN OFFICER'S CERTIFICATE (AND, IF
APPLICABLE, A BENEFIT PLAN OPINION), AS DESCRIBED IN THE FOREGOING PARAGRAPH,
SHALL NOT BE REQUIRED, AND (II) THE FOLLOWING CONDITIONS SHALL APPLY:
1. ANY TRANSFEREE OF THIS CERTIFICATE WILL BE DEEMED TO HAVE REPRESENTED, BY
VIRTUE OF ITS ACQUISITION OR HOLDING OF THIS CERTIFICATE (OR INTEREST HEREIN),
THAT EITHER (A) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT
TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE,
OR ANY PERSON (INCLUDING AN INVESTMENT MANAGER, A NAMED FIDUCIARY OR A TRUSTEE
OF ANY SUCH PLAN) ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF OR PURCHASING
THIS CERTIFICATE WITH "PLAN ASSETS" OF ANY SUCH PLAN (A "PLAN INVESTOR"), (B)
SUCH TRANSFEREE IS AN INSURANCE COMPANY, THE SOURCE OF FUNDS TO BE USED BY IT TO
ACQUIRE OR HOLD THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT"
(WITHIN THE MEANING OF DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION ("PTCE") 95-60), AND THE CONDITIONS IN SECTION I AND III OF PTCE 95-60
HAVE BEEN SATISFIED (EACH ENTITY THAT SATISFIES THIS CLAUSE (B), A "COMPLYING
INSURANCE COMPANY") OR (C) THIS CERTIFICATE WAS RATED "BBB-" OR BETTER (OR ITS
EQUIVALENT) BY AT LEAST ONE OF THE RATING AGENCIES AT THE TIME OF SUCH
TRANSFEREE'S ACQUISITION OF THIS CERTIFICATE (OR INTEREST HEREIN); AND
2. IF THIS CERTIFICATE (OR ANY INTEREST HEREIN) IS ACQUIRED OR HELD IN VIOLATION
OF THE PROVISIONS OF THE PRECEDING PARAGRAPH, THEN THE LAST PRECEDING TRANSFEREE
THAT EITHER (I) IS NOT A PLAN INVESTOR, (II) IS A COMPLYING INSURANCE COMPANY OR
(III) ACQUIRED THIS CERTIFICATE AT A TIME WHEN THIS CERTIFICATE WAS RATED "BBB-"
A-9
OR BETTER (OR ITS EQUIVALENT) BY AT LEAST ONE OF THE RATING AGENCIES SHALL BE
RESTORED, TO THE EXTENT PERMITTED BY LAW, TO ALL RIGHTS AND OBLIGATIONS AS
BENEFICIAL HOLDER THEREOF RETROACTIVE TO THE DATE OF TRANSFER OF THIS
CERTIFICATE BY SUCH PRECEDING TRANSFEREE. NEITHER THE TRUST NOR THE TRUSTEE
SHALL BE UNDER ANY LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS DUE ON THIS
CERTIFICATE TO SUCH PRECEDING TRANSFEREE.
ANY PURPORTED BENEFICIAL HOLDER WHOSE ACQUISITION OR HOLDING OF THIS CERTIFICATE
(OR INTEREST HEREIN) WAS EFFECTED IN VIOLATION OF THE RESTRICTIONS IN SECTION
5.01(g) OF THE POOLING AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS THE COMPANY,
THE TRUSTEE, THE MASTER SERVICER, THE TRUST AND THE UNDERWRITER FROM AND AGAINST
ANY AND ALL LIABILITIES, CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH PARTIES AS A
RESULT OF SUCH ACQUISITION OR HOLDING.
The Class C-B-2 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in the
Pooling Agreement.
Series 2004-RA1 Portion of the Class C-B-2 Principal Balance as of the Cut-Off
Date Evidenced by this Certificate:
$669,500.00
Class C-B-2 Certificate Interest Rate: Variable
Cut-Off Date: April 1, 2004
First Distribution Date: May 25, 2004
Last Scheduled Distribution Date: March 25, 2034
Class C-B-2 Principal Balance
as of the Cut-Off Date: $669,500.00
Cede & Co.
Registered Owner
A-10
Exhibit A
CUSIP 939336 Q71
WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATE
Class C-B-3
Evidencing a beneficial interest in a pool of assets consisting of beneficial
interests in another pool of assets consisting of, among other things,
conventional one- to four-family mortgage loans formed and administered by
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
This Certificate is issued by Washington Mutual MSC Mortgage Pass-Through
Certificates Series 2004-RA1 Trust. This Certificate represents ownership of a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined in Sections 860G and 860D, respectively, of the Internal
Revenue Code of 1986, as amended. The issue date of this Certificate is April
29, 2004.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or its
agent for registration of transfer, exchange, or payment, and any Certificate
issued is registered in the name of Cede & Co. or such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
NO TRANSFER OF THIS CLASS C-B-3 CERTIFICATE WILL BE MADE UNLESS THE TRUSTEE HAS
RECEIVED (I) AN OFFICER'S CERTIFICATE IN THE FORM DESCRIBED IN SECTION 5.01(g)
OF THE POOLING AGREEMENT AND (II) IF SO INDICATED IN SUCH OFFICER'S CERTIFICATE,
AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO
THE TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE ARE PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT
IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE, AND WILL NOT SUBJECT THE TRUST, THE TRUSTEE, THE MASTER
SERVICER OR THE COMPANY TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE) IN ADDITION
TO THOSE UNDERTAKEN IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT
BE AN EXPENSE OF THE TRUST, THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
NOTWITHSTANDING THE FOREGOING PARAGRAPH, WITH RESPECT TO THE TRANSFER OF THIS
CLASS C-B-3 CERTIFICATE TO DTC OR ANY OTHER CLEARING AGENCY OR ANY SUBSEQUENT
TRANSFER OF ANY INTEREST IN THIS CERTIFICATE FOR SO LONG AS THIS CERTIFICATE IS
HELD BY DTC OR ANY OTHER CLEARING AGENCY, (I) AN OFFICER'S CERTIFICATE (AND, IF
APPLICABLE, A BENEFIT PLAN OPINION), AS DESCRIBED IN THE FOREGOING PARAGRAPH,
SHALL NOT BE REQUIRED, AND (II) THE FOLLOWING CONDITIONS SHALL APPLY:
1. ANY TRANSFEREE OF THIS CERTIFICATE WILL BE DEEMED TO HAVE REPRESENTED, BY
VIRTUE OF ITS ACQUISITION OR HOLDING OF THIS CERTIFICATE (OR INTEREST HEREIN),
THAT EITHER (A) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT
TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE,
OR ANY PERSON (INCLUDING AN INVESTMENT MANAGER, A NAMED FIDUCIARY OR A TRUSTEE
OF ANY SUCH PLAN) ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF OR PURCHASING
THIS CERTIFICATE WITH "PLAN ASSETS" OF ANY SUCH PLAN (A "PLAN INVESTOR"), (B)
SUCH TRANSFEREE IS AN INSURANCE COMPANY, THE SOURCE OF FUNDS TO BE USED BY IT TO
ACQUIRE OR HOLD THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT"
(WITHIN THE MEANING OF DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION ("PTCE") 95-60), AND THE CONDITIONS IN SECTION I AND III OF PTCE 95-60
HAVE BEEN SATISFIED (EACH ENTITY THAT SATISFIES THIS CLAUSE (B), A "COMPLYING
INSURANCE COMPANY") OR (C) THIS CERTIFICATE WAS RATED "BBB-" OR BETTER (OR ITS
EQUIVALENT) BY AT LEAST ONE OF THE RATING AGENCIES AT THE TIME OF SUCH
TRANSFEREE'S ACQUISITION OF THIS CERTIFICATE (OR INTEREST HEREIN); AND
2. IF THIS CERTIFICATE (OR ANY INTEREST HEREIN) IS ACQUIRED OR HELD IN VIOLATION
OF THE PROVISIONS OF THE PRECEDING PARAGRAPH, THEN THE LAST PRECEDING TRANSFEREE
THAT EITHER (I) IS NOT A PLAN INVESTOR, (II) IS A COMPLYING INSURANCE COMPANY OR
(III) ACQUIRED THIS CERTIFICATE AT A TIME WHEN THIS CERTIFICATE WAS RATED "BBB-"
OR BETTER (OR ITS EQUIVALENT) BY AT LEAST ONE OF THE RATING AGENCIES SHALL BE
RESTORED, TO THE EXTENT PERMITTED BY LAW, TO ALL RIGHTS AND OBLIGATIONS AS
BENEFICIAL HOLDER THEREOF RETROACTIVE TO THE DATE OF TRANSFER OF THIS
A-11
CERTIFICATE BY SUCH PRECEDING TRANSFEREE. NEITHER THE TRUST NOR THE TRUSTEE
SHALL BE UNDER ANY LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS DUE ON THIS
CERTIFICATE TO SUCH PRECEDING TRANSFEREE.
ANY PURPORTED BENEFICIAL HOLDER WHOSE ACQUISITION OR HOLDING OF THIS CERTIFICATE
(OR INTEREST HEREIN) WAS EFFECTED IN VIOLATION OF THE RESTRICTIONS IN SECTION
5.01(g) OF THE POOLING AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS THE COMPANY,
THE TRUSTEE, THE MASTER SERVICER, THE TRUST AND THE UNDERWRITER FROM AND AGAINST
ANY AND ALL LIABILITIES, CLAIMS, COSTS OR EXPENSES INCURRED BY SUCH PARTIES AS A
RESULT OF SUCH ACQUISITION OR HOLDING.
The Class C-B-3 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in the
Pooling Agreement.
Series 2004-RA1 Portion of the Class C-B-3 Principal Balance as of the Cut-Off
Date Evidenced by this Certificate:
$502,100.00
Class C-B-3 Certificate Interest Rate: Variable
Cut-Off Date: April 1, 2004
First Distribution Date: May 25, 2004
Last Scheduled Distribution Date: March 25, 2034
Class C-B-3 Principal Balance
as of the Cut-Off Date: $502,100.00
Cede & Co.
Registered Owner
A-12
Exhibit A
CUSIP 939336 Q97
WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATE
Class C-B-4
Evidencing a beneficial interest in a pool of assets consisting of beneficial
interests in another pool of assets consisting of, among other things,
conventional one- to four-family mortgage loans formed and administered by
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
This Certificate is issued by Washington Mutual MSC Mortgage Pass-Through
Certificates Series 2004-RA1 Trust. This Certificate represents ownership of a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined in Sections 860G and 860D, respectively, of the Internal
Revenue Code of 1986, as amended. The issue date of this Certificate is April
29, 2004.
NO TRANSFER OF THIS CLASS C-B-4 CERTIFICATE WILL BE MADE UNLESS THE TRUSTEE HAS
RECEIVED (I) AN OFFICER'S CERTIFICATE IN THE FORM DESCRIBED IN SECTION 5.01(d)
OF THE POOLING AGREEMENT AND (II) IF SO INDICATED IN SUCH OFFICER'S CERTIFICATE,
AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO
THE TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE ARE PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT
IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE, AND WILL NOT SUBJECT THE TRUST, THE TRUSTEE, THE MASTER
SERVICER OR THE COMPANY TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE) IN ADDITION
TO THOSE UNDERTAKEN IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT
BE AN EXPENSE OF THE TRUST, THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THESE SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF REGISTRATION OR THE
AVAILABILITY OF AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933
AND EXCEPT IN ACCORDANCE WITH SECTION 5.01(e) OF THE POOLING AGREEMENT.
The Class C-B-4 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in the
Pooling Agreement.
Series 2004-RA1 Portion of the Class C-B-4 Principal Balance as of the Cut-Off
Date Evidenced by this Certificate:
$334,700.00
Class C-B-4 Certificate Interest Rate: Variable
Cut-Off Date: April 1, 2004
First Distribution Date: May 25, 2004
Last Scheduled Distribution Date: March 25, 2034
Class C-B-4 Principal Balance
as of the Cut-Off Date: $334,700.00
---------------------
Registered Owner
A-13
Exhibit A
CUSIP 939336 R21
WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATE
Class C-B-5
Evidencing a beneficial interest in a pool of assets consisting of beneficial
interests in another pool of assets consisting of, among other things,
conventional one- to four-family mortgage loans formed and administered by
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
This Certificate is issued by Washington Mutual MSC Mortgage Pass-Through
Certificates Series 2004-RA1 Trust. This Certificate represents ownership of a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined in Sections 860G and 860D, respectively, of the Internal
Revenue Code of 1986, as amended. The issue date of this Certificate is April
29, 2004.
NO TRANSFER OF THIS CLASS C-B-5 CERTIFICATE WILL BE MADE UNLESS THE TRUSTEE HAS
RECEIVED (I) AN OFFICER'S CERTIFICATE IN THE FORM DESCRIBED IN SECTION 5.01(d)
OF THE POOLING AGREEMENT AND (II) IF SO INDICATED IN SUCH OFFICER'S CERTIFICATE,
AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO
THE TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE ARE PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT
IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE, AND WILL NOT SUBJECT THE TRUST, THE TRUSTEE, THE MASTER
SERVICER OR THE COMPANY TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE) IN ADDITION
TO THOSE UNDERTAKEN IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT
BE AN EXPENSE OF THE TRUST, THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THESE SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF REGISTRATION OR THE
AVAILABILITY OF AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933
AND EXCEPT IN ACCORDANCE WITH SECTION 5.01(e) OF THE POOLING AGREEMENT.
The Class C-B-5 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in the
Pooling Agreement.
Series 2004-RA1 Portion of the Class C-B-5 Principal Balance as of the Cut-Off
Date Evidenced by this Certificate:
$334,700.00
Class C-B-5 Certificate Interest Rate: Variable
Cut-Off Date: April 1, 2004
First Distribution Date: May 25, 2004
Last Scheduled Distribution Date: March 25, 2034
Class C-B-5 Principal Balance
as of the Cut-Off Date: $334,700.00
---------------------
Registered Owner
A-14
Exhibit A
CUSIP 939336 R39
WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATE
Class C-B-6
Evidencing a beneficial interest in a pool of assets consisting of beneficial
interests in another pool of assets consisting of, among other things,
conventional one- to four-family mortgage loans formed and administered by
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
This Certificate is issued by Washington Mutual MSC Mortgage Pass-Through
Certificates Series 2004-RA1 Trust. This Certificate represents ownership of a
"regular interest" in a "real estate mortgage investment conduit," as those
terms are defined in Sections 860G and 860D, respectively, of the Internal
Revenue Code of 1986, as amended. The issue date of this Certificate is April
29, 2004.
NO TRANSFER OF THIS CLASS C-B-6 CERTIFICATE WILL BE MADE UNLESS THE TRUSTEE HAS
RECEIVED (I) AN OFFICER'S CERTIFICATE IN THE FORM DESCRIBED IN SECTION 5.01(d)
OF THE POOLING AGREEMENT AND (II) IF SO INDICATED IN SUCH OFFICER'S CERTIFICATE,
AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM AND SUBSTANCE SATISFACTORY TO
THE TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE ARE PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT
IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE, AND WILL NOT SUBJECT THE TRUST, THE TRUSTEE, THE MASTER
SERVICER OR THE COMPANY TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE) IN ADDITION
TO THOSE UNDERTAKEN IN THE POOLING AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT
BE AN EXPENSE OF THE TRUST, THE TRUSTEE, THE MASTER SERVICER OR THE COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THESE SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF REGISTRATION OR THE
AVAILABILITY OF AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933
AND EXCEPT IN ACCORDANCE WITH SECTION 5.01(e) OF THE POOLING AGREEMENT.
The Class C-B-6 Certificates will be subordinate in right of payment to and
provide credit support to certain Classes of Certificates, as described in the
Pooling Agreement.
Series 2004-RA1 Portion of the Class C-B-6 Principal Balance as of the Cut-Off
Date Evidenced by this Certificate:
$167,392.20
Class C-B-6 Certificate Interest Rate: Variable
Cut-Off Date: April 1, 2004
First Distribution Date: May 25, 2004
Last Scheduled Distribution Date: March 25, 2034
Class C-B-6 Principal Balance
as of the Cut-Off Date: $167,392.20
---------------------
Registered Owner
A-15
Exhibit B
CUSIP 939336 Q89
WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATE
Class R
Evidencing a Percentage Interest in certain distributions with respect to a pool
of conventional one- to four-family mortgage loans formed and administered by
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE COMPANY AND THE
TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT EITHER (A) THE UNITED STATES, ANY STATE
OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING, (B) ANY
ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE, (C) ANY
ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF THE CODE (ANY SUCH PERSON
DESCRIBED IN THE FOREGOING CLAUSES (A), (B), OR (C) BEING HEREINAFTER REFERRED
TO AS A "DISQUALIFIED ORGANIZATION"), OR (D) AN AGENT OF A DISQUALIFIED
ORGANIZATION AND (2) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFER TO
IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. SUCH AFFIDAVIT SHALL INCLUDE CERTAIN
REPRESENTATIONS AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CLASS R CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL
BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF
A CLASS R CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
IN THE CASE OF ANY CLASS R CERTIFICATE PRESENTED FOR REGISTRATION IN THE NAME OF
ANY PERSON, THE TRUSTEE SHALL REQUIRE (I) AN OFFICER'S CERTIFICATE IN THE FORM
DESCRIBED IN SECTION 5.01(d) OF THE POOLING AGREEMENT AND (II) IF SO INDICATED
IN SUCH OFFICER'S CERTIFICATE, AN OPINION OF COUNSEL ACCEPTABLE TO AND IN FORM
AND SUBSTANCE SATISFACTORY TO THE TRUSTEE AND THE COMPANY TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF A CLASS R CERTIFICATE ARE PERMISSIBLE UNDER APPLICABLE
LAW, WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE TRUST, THE
TRUSTEE, THE MASTER SERVICER OR THE COMPANY TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER SECTION 406 OF ERISA OR SECTION 4975
OF THE CODE) IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AGREEMENT, WHICH
OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUST, THE TRUSTEE, THE MASTER
SERVICER OR THE COMPANY.
This Certificate is issued by Washington Mutual MSC Mortgage Pass-Through
Certificates Series 2004-RA1 Trust. Solely for U.S. federal income tax purposes,
this Certificate represents "residual interests" in "real estate mortgage
investment conduits," as those terms are defined in Sections 860G and 860D,
respectively, of the Internal Revenue Code of 1986, as amended.
Series 2004-RA1 Percentage Interest evidenced by this Class R Certificate in the
distributions to be made with respect to the
Class R Certificates: __________________%
Class R Certificate Interest Rate: 6.500%. Additionally the Class R Certificates
are entitled to Excess Liquidation Proceeds and the Residual Distribution Amount
as defined in the Pooling Agreement.
Cut-Off Date: April 1, 2004
First Distribution Date: May 25, 2004
Last Scheduled Distribution Date: March 25, 2034
Class R Principal Balance as of the Cut-Off Date: $100.00
------------------
Registered Owner
Certificate No. _________
B-1
This Certificate does not represent an obligation of or interest in Washington
Mutual Mortgage Securities Corp. or any of its affiliates. Neither this
Certificate nor the underlying Mortgage Loans are guaranteed by any agency or
instrumentality of the United States.
This certifies that the above-named Registered Owner is the registered owner of
certain interests in (i) a pool of assets ("REMIC I") consisting of, among other
things, conventional one- to four-family mortgage loans (the "Mortgage Loans"),
formed and administered by Washington Mutual Mortgage Securities Corp. (the
"Company"), which term includes any successor entity under the Pooling Agreement
referred to below and (ii) a pool of assets ("REMIC II") consisting of interests
in REMIC I. REMIC I and REMIC II were created pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-Off Date stated above (the "Pooling
Agreement"), among the Company, U.S. Bank National Association, as Trustee (the
"Trustee"), and Christiana Bank & Trust Company, as Delaware Trustee, a summary
of certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling Agreement. Nothing herein shall be deemed inconsistent
with such meanings, and in the event of any conflict between the Pooling
Agreement and the terms of this Certificate, the Pooling Agreement shall
control. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling Agreement, to which Pooling Agreement
the Holder of this Certificate, by virtue of the acceptance hereof, assents and
by which such Holder is bound.
Distributions will be made, pursuant to the Pooling Agreement, on the 25th day
of each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last day (or if such last day is
not a Business Day, the Business Day immediately preceding such last day) of the
month immediately preceding the month of such distribution (the "Record Date"),
to the extent of such Certificateholder's Percentage Interest represented by
this Certificate in the portions (if any) then distributable on the Certificates
of this Class of (i) the REMIC I Available Distribution Amount for such
Distribution Date, as specified in Section 4.01 of the Pooling Agreement and
(ii) the REMIC II Available Distribution Amount for such Distribution Date, as
specified in Section 4.04 of the Pooling Agreement.
Distributions on this Certificate will be made by the Trustee by wire transfer
or check mailed to the address of the Person entitled thereto, as such name and
address shall appear on the Certificate Register. Notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate to the Certificate Registrar.
Reference is hereby made to the further provisions of this Certificate set forth
below, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling Agreement or be valid for any purpose.
B-2
IN WITNESS WHEREOF, the Trust has caused this Certificate to be duly executed.
WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-RA1 TRUST
By: U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
(TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
This is one of the Certificates referred to in the within-mentioned Pooling
Agreement.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
Dated:
B-3
WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATE
This Certificate is one of a duly authorized issue of Certificates designated as
Washington Mutual MSC Mortgage Pass-Through Certificates of the Series and Class
specified hereon (herein called the "Certificates") and representing certain
interests in REMIC I and REMIC II.
The Certificates do not represent an obligation of, or an interest in, the
Company or any of its affiliates and are not insured or guaranteed by any
governmental agency. The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Pooling Agreement. In the event funds
are advanced with respect to any Mortgage Loan, such advance is reimbursable to
the Master Servicer from the related recoveries on such Mortgage Loan or from
other cash deposited in the Certificate Account to the extent that such advance
is not otherwise recoverable.
As provided in the Pooling Agreement, withdrawals from the Certificate Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement to the Master Servicer
of advances made, or certain expenses incurred, by it.
The Pooling Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Certificateholders under the Pooling Agreement at
any time by the Company, the Master Servicer and the Trustee with the consent of
the Holders of the Certificates evidencing Percentage Interests aggregating not
less than 66% of REMIC II. The Pooling Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Pooling Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar or the office maintained by the Trustee in
the City and State of New York, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee or any Authenticating Agent duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of Authorized Denominations evidencing
the same Percentage Interest set forth hereinabove will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates without coupons in
Authorized Denominations specified in the Pooling Agreement. As provided in the
Pooling Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of Authorized Denominations
of like Certificate Principal Balance or Percentage Interest, as applicable, as
requested by the Holder surrendering the same.
A reasonable service charge may be made for any such registration of transfer or
exchange, and the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Trustee and the Certificate Registrar and any agent of the
Company, the Trustee or the Certificate Registrar may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Company, the Trustee, the Certificate Registrar nor any such agent
shall be affected by notice to the contrary.
B-4
The obligations created by the Pooling Agreement and the Trust created thereby
shall terminate upon (i) the later of the maturity or other liquidation
(including purchase by the Master Servicer) of the last Mortgage Loan remaining
in the Trust or the disposition of all property acquired upon foreclosure or
deed in lieu of foreclosure of any Mortgage Loan, and (ii) the payment to
Certificateholders of all amounts held by the Trustee and required to be paid to
them pursuant to the Pooling Agreement. In the event that the Company or the
Master Servicer purchases any Mortgage Loan pursuant to the Pooling Agreement,
the Pooling Agreement generally requires that the Trustee distribute to the
Certificateholders in the aggregate an amount equal to 100% of the unpaid
Principal Balance of such Mortgage Loan, plus unpaid accrued interest thereon at
the applicable Pass-Through Rate to the last day of the month in which such
purchase occurs. The Pooling Agreement permits, but does not require, the Master
Servicer to purchase from the Trust all Mortgage Loans at the time subject
thereto and all property acquired in respect of any Mortgage Loan upon payment
to the Certificateholders of the amounts specified in the Pooling Agreement. The
exercise of such right will effect early retirement of the Certificates, the
Master Servicer's right to purchase being subject to the aggregate Principal
Balance of the Mortgage Loans at the time of purchase being less than the
Clean-Up Call Percentage of the aggregate Principal Balance of the Mortgage
Loans as of the Cut-Off Date.
B-5
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s) and assign(s) and
transfer(s) unto ____________________________________________________________
(Please print or typewrite name and address, including postal
zip code of assignee. Please insert social security or other identifying number
of assignee.) the within WaMu Mortgage Pass-Through Certificate and hereby
irrevocably constitutes and appoints _________________________________________
Attorney to transfer said Certificate on the Certificate Register, with
full power of substitution in the premises.
Dated: ______________________ ________________________________________
Signature Guaranteed
__________________________________________________________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within instrument in every
particular, without alteration or enlargement or any change
whatever. This Certificate does not represent an obligation of
or an interest in Washington Mutual Mortgage Securities Corp. or
any of its affiliates. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed by any agency or
instrumentality of the United States.
B-6
Exhibit C
[Reserved]
C-1
Exhibit D
Mortgage Loan Schedule
Copies of the Mortgage Loan Schedule (which has been intentionally omitted from
this filing) may be obtained from Washington Mutual Mortgage Securities Corp. or
Deutsche Bank National Trust Company by contacting:
in the case of Washington Mutual Mortgage Securities Corp.,
Xxxxx Xxxxxx
Master Servicing Department
Washington Mutual Mortgage Securities Corp.
00 X. Xxxxxxx Xxxxx, XXX0X00
Xxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
in the case of U.S. Bank National Association,
Xxxxx X. X'Xxxxx
Corporate Trust Services
U.S. Bank National Association
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
D-1
Exhibit E
SELLING AND SERVICING
CONTRACT
This Selling and Servicing Contract (this "Agreement") is made and entered into
by Washington Mutual Mortgage Securities Corp. and its successors and assigns
("Washington Mutual Mortgage") and the entity identified below and its
successors and assigns (the "Company").
WITNESSETH:
WHEREAS, this Company wishes to sell first lien residential mortgage
loans to, and service first lien residential mortgage loans on behalf of,
Washington Mutual Mortgage; and
WHEREAS, the Company has submitted a Seller Application to Washington
Mutual Mortgage and has been approved by Washington Mutual Mortgage for
participation in the Washington Mutual Mortgage Purchase Programs; and
WHEREAS, the Company has received and reviewed the Washington Mutual
Mortgage Purchase Programs Seller Guide (the "Seller Guide"), as well as the
Washington Mutual Mortgage Servicing Guide (the "Servicing Guide" and, together
with the Seller Guide, the "Guides"), and understands each and every provision
thereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, Washington Mutual Mortgage and the Company hereby
agree as follows:
1. Guides. The Guides, which set forth the terms and conditions under
which Washington Mutual Mortgage may elect to purchase mortgage loans from the
Company, and the Company shall service mortgage loans on behalf of Washington
Mutual Mortgage, are a supplement to this Agreement and such Guides, as may be
amended or supplemented from time to time by Washington Mutual Mortgage, are
incorporated into this Agreement in full by reference and made a part hereof as
fully as if set forth at length herein. All capitalized terms used and not
defined herein have the meanings ascribed to them in the Guides.
2. Company's Duties. The Company shall diligently perform all duties
incident to the origination, sale and servicing of the mortgage loans subject to
this Agreement. In the performance of its servicing duties, the Company shall
exercise the same degree of care it exercises when servicing mortgage loans for
its own account, but in no event shall the Company exercise less care than a
reasonable prudent servicer would exercise under similar circumstances. In
addition, the Company shall comply with all of the provisions of the Guides and
with all other requirements and instructions of Washington Mutual Mortgage. The
Company shall perform such duties at its sole expense, except as otherwise
expressly provided in the Guides.
3. Representations, Warranties and Covenants of the Company; Remedies
of Washington Mutual Mortgage. With respect to each mortgage loan sold by the
Company to Washington Mutual Mortgage pursuant to the terms of this Agreement,
the Company shall make all of the representations, warranties and covenants set
forth in the Guide and, in the event of the breach of any of such
representations, warranties and covenants, Washington Mutual Mortgage shall have
all of the remedies available at law or in equity, as well as all of the
remedies set forth in the Guide, including, but not limited to, repurchase and
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indemnification. The representations and warranties made by the Company with
respect to any mortgage loan subject to this Agreement, as well as the remedies
available to Washington Mutual Mortgage upon the breach thereof, shall survive:
(a) any investigation regarding the mortgage loan conducted by Washington Mutual
Mortgage, its assignees or designees, (b) the liquidation of the mortgage loan,
(c) the purchase of the mortgage loan by Washington Mutual Mortgage, its
assignee or designee, (d) the repurchase of the mortgage loan by the Company and
(e) the termination of this Agreement.
4. Compensation. The Company shall be compensated for its services
hereunder as specified in the Guides.
5. No Assignment. This Agreement may not be assigned by the Company
without the prior written consent of Washington Mutual Mortgage. The Company
hereby consents to the assignment by Washington Mutual Mortgage of all or any
part of its rights and obligations under this Agreement to any affiliate
designated by Washington Mutual Mortgage. Any other transfer by Washington
Mutual Mortgage will be allowed and be effective upon written notice by
Washington Mutual Mortgage to the Company.
6. Prior Agreements. This Agreement supersedes any prior agreements and
understandings between Washington Mutual Mortgage and the Company governing the
subject matter hereof; provided, however, the Company shall not be released from
any responsibility or liability that may have arisen under such agreements and
understanding.
7. Effective Date of Agreement. This Agreement is not effective until
it is executed and accepted by Washington Mutual Mortgage at its home office in
Illinois.
8. Notices. All notices, requests, demands or other communications that
are to be given under this Agreement shall be in writing, addressed to the
appropriate parties, and shall be sent by certified mail, return receipt
requested, postage prepaid, if to the Company, at the address below and, if to
Washington Mutual Mortgage, to the appropriate address or facsimile number
specified in the Guides. Any such notice, request, demand or other communication
shall be deemed effective upon receipt.
9. Independent Contractor. At no time shall the Company represent that
it is acting as an agent, partner or joint venturer of Washington Mutual
Mortgage. The Company shall at all times act as an independent contracting
party.
10. Amendment. This Agreement may not be amended or modified orally,
and no provision of this Agreement may be waived or amended, except in writing
signed by the party against whom enforcement is sought. Such a written waiver or
amendment must expressly reference this Agreement. However, by their terms the
Guides may be amended or supplemented by Washington Mutual Mortgage from time to
time. Any such amendment(s) to the Guides shall be in writing and be binding
upon the parties hereto on and after the effective date specified therein.
11. Miscellaneous. This Agreement, including all documents incorporated
by reference herein, constitutes the entire understanding between the parties
hereto and supersedes all other agreements, covenants, representations,
warranties, understandings and communications between the parties, whether
written or oral, with respect to the transactions contemplated by this
Agreement. All section headings contained herein are for convenience only and
shall not be construed as part of this Agreement. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall as to
such jurisdiction be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining portions hereof or affecting
the validity or enforceability of such provision in any other jurisdiction, and
to this end, the provisions hereof are severable. This Agreement shall be
E-2
governed by, and construed and enforced in accordance with, applicable federal
laws and laws of the State of Illinois, without reference to conflict of laws
principles. This Agreement may be executed in one or more counterparts, each of
which shall constitute an original and all of which shall constitute the same
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by proper
officials duly authorized on the dates hereinafter set forth. This Agreement
shall take effect as of the date of its execution in original or facsimile
signature by a duly authorized officer of Washington Mutual Mortgage.
------------------------------------------ ------------------------------
Name of the Company Company I.D. Number
------------------------------------------ ------------------------------
Type of organization Organized under laws of
--------------------------------------------------------------------------------
Principal place of business: xxxxxx xxxxxxx, xxxx, xxxxx, zip code
--------------------------------------------------------------------------------
Typed name and title of the Company's authorized officer
------------------------------------------------------- ------------------
Signature of the Company's authorized officer Date
Agreed to and accepted by Washington Mutual Mortgage Securities Corp.
--------------------------------------------------------------------------------
Typed name and title of authorized representative
------------------------------------------------------- -------------------
Signature of authorized representative Date
E-3
Exhibit F
FORM OF TRANSFEROR CERTIFICATE FOR
JUNIOR SUBORDINATE CERTIFICATES
[Date]
U.S. Bank National Association, as Trustee
Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Corporate Trust Department, Washington Mutual 2004-RA1
Re: Purchase of Washington Mutual MSC Mortgage Pass-Through Certificates Series
2004-RA1, Class [ ] (the "Certificates")
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we certify that (a)
we understand the Certificates have not been registered under the Securities Act
of 1933, as amended (the "Act") and are being disposed by us in a transaction
that is exempt from the registration requirements of the Act, and (b) we have
not offered or sold any certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, or taken any other action which would result in a
violation of Section 5 of the Act.
Very truly yours,
[Name of Transferor]
By:
Authorized Officer
F-1
Exhibit G
FORM OF TRANSFEREE'S AGREEMENT FOR
JUNIOR SUBORDINATE CERTIFICATES
[Date]
U.S. Bank National Association, as Trustee
Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Corporate Trust Department, Washington Mutual 2004-RA1
Washington Mutual Mortgage Securities Corp.
00 X. Xxxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
The undersigned (the "Purchaser") proposes to purchase Washington Mutual MSC
Mortgage Pass-Through Certificates, Series 2004-RA1, Class [ ] (the "Purchased
Certificates") in the principal amount of $______________. In doing so, the
Purchaser hereby acknowledges and agrees as follows:
Section 1. Definitions. Each capitalized term used herein and not otherwise
defined herein shall have the meaning ascribed to it in the Pooling and
Servicing Agreement, dated as of April 1, 2004 (the "Pooling Agreement"), by and
among Washington Mutual Mortgage Securities Corp. ("Washington Mutual"), U.S.
Bank National Association, as trustee (the "Trustee"), and Christiana Bank &
Trust Company, as Delaware trustee, of the Washington Mutual MSC Mortgage
Pass-Through Certificates, Series 2004-RA1.
Section 2. Representations and Warranties of the Purchaser. In connection with
the proposed transfer, the Purchaser represents and warrants to Washington
Mutual, the Trustee and the Trust that:
(a) The Purchaser is duly organized, validly existing and in good standing under
the laws of the jurisdiction in which the Purchaser is organized, is authorized
to invest in the Purchased Certificates, and to enter into this Agreement, and
duly executed and delivered this Agreement;
(b) The Purchaser is acquiring the Purchased Certificates for its own account as
principal and not with a view to the distribution thereof, in whole or in part;
(c) The Purchaser is an "accredited investor" as such term is defined in
paragraph (a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) of Section 501 of Regulation
D under the Securities Act of 1933, as amended (the "Act"), has knowledge of
financial and business matters and is capable of evaluating the merits and risks
of an investment in the Purchased Certificates; the Purchaser has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Purchaser is able to bear the economic
risk of an investment in the Purchased Certificates and can afford a complete
loss of such investment;
(d) The Purchaser is not affiliated with the Trustee;
(e) The Purchaser confirms that Washington Mutual has made available to the
Purchaser the opportunity to ask questions of, and receive answers from
Washington Mutual concerning the trust created pursuant to the Pooling Agreement
(the "Trust"), the purchase by the Purchaser of the Purchased Certificates and
all matters relating thereto that Washington Mutual possesses or can acquire
without unreasonable effort or expense; and
(f) If applicable, the Purchaser has complied, and will continue to comply, with
the guidelines established by Thrift Bulletin 13a issued April 23, 1998, by the
Office of Regulatory Activities of the Federal Home Loan Bank System.
Section 3.Transfer of Purchased Certificates.
(a) The Purchaser understands that the Purchased Certificates have not been
registered under the Act, or any state securities laws and that no transfer may
be made unless the Purchased Certificates are registered under the Act and under
applicable state law or unless an exemption from registration is available. The
Purchaser further understands that neither Washington Mutual nor the Trust is
under any obligation to register the Purchased Certificates or make an exemption
available. In the event that such a transfer is to be made within two years from
the Closing Date without registration under the Act or applicable state
securities laws, (i) the Trustee shall require, in order to assure compliance
with such laws, that the Certificateholder's prospective transferee each certify
to Washington Mutual, the Trustee and the Trust as to the factual basis for the
registration or qualification exemption relied upon, and (ii) the Trustee or
Washington Mutual may require an Opinion of Counsel that such transfer may be
made pursuant to an exemption from the Act and state securities laws, which
Opinion of Counsel shall not be an expense of the Trust, the Trustee or
Washington Mutual. Any such Certificateholder desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trust, the Trustee and Washington
Mutual 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.
(b) No transfer of a Purchased Certificate shall be made unless the transferee
provides Washington Mutual and the Trustee with (i) a Transferee's Agreement,
substantially in the form of this Agreement, (ii) an affidavit substantially in
the form of Exhibit N to the Pooling Agreement and (iii) if so indicated in such
affidavit, a Benefit Plan Opinion (as defined in Section 1.01 of the Pooling
Agreement).
(c) The Purchaser acknowledges that its Purchased Certificates bear a legend
setting forth the applicable restrictions on transfer.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be validly
executed by its duly authorized representative as of the day and the year first
above written.
[Purchaser]
By:___________________________
Its:
Exhibit H
FORM OF ADDITIONAL MATTER INCORPORATED INTO
THE FORM OF THE CERTIFICATES (OTHER THAN THE CLASS R CERTIFICATES)
This Certificate does not represent an obligation of or interest in Washington
Mutual Mortgage Securities Corp. or any of its affiliates. Neither this
Certificate nor the underlying Mortgage Loans are guaranteed by any agency or
instrumentality of the United States.
This certifies that the above-named Registered Owner is the registered owner of
certain interests in a pool of assets ("REMIC II") consisting of interests in
another pool of assets ("REMIC I") consisting of, among other things,
conventional one- to four-family mortgage loans (the "Mortgage Loans"), formed
and administered by Washington Mutual Mortgage Securities Corp. (the "Company"),
which term includes any successor entity under the Pooling Agreement referred to
below. REMIC I and REMIC II were created pursuant to a Pooling and Servicing
Agreement, dated as of the Cut-Off Date stated above (the "Pooling Agreement"),
among the Company, U.S. Bank National Association, as Trustee (the "Trustee"),
and Christiana Bank & Trust Company, as Delaware Trustee, a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Pooling Agreement. Nothing herein shall be deemed inconsistent with such
meanings, and in the event of any conflict between the Pooling Agreement and the
terms of this Certificate, the Pooling Agreement shall control. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling Agreement, to which Pooling Agreement the Holder of this Certificate, by
virtue of the acceptance hereof, assents and by which such Holder is bound.
Distributions will be made, pursuant to the Pooling Agreement, on the 25th day
of each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last day (or if such last day is
not a Business Day, the Business Day immediately preceding such last day) of the
month immediately preceding the month of such distribution (the "Record Date"),
to the extent of such Certificateholder's Percentage Interest represented by
this Certificate in the portion of the REMIC II Available Distribution Amount
for such Distribution Date then distributable on the Certificates of this Class,
as specified in Section 4.04 of the Pooling Agreement.
Distributions on this Certificate will be made by the Trustee by wire transfer
or check mailed to the address of the Person entitled thereto, as such name and
address shall appear on the Certificate Register. Notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate to the Certificate Registrar.
Reference is hereby made to the further provisions of this Certificate set forth
below, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Trust has caused this Certificate to be duly executed.
WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2004-RA1 TRUST
By: U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
(TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
This is one of the Certificates referred to in the within-mentioned Pooling
Agreement.
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
Dated:
H-2
WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATE
This Certificate is one of a duly authorized issue of Certificates designated as
Washington Mutual MSC Mortgage Pass-Through Certificates of the Series and Class
specified hereon (herein called the "Certificates") and representing certain
interests in REMIC II.
The Certificates do not represent an obligation of, or an interest in, the
Company or any of its affiliates and are not insured or guaranteed by any
governmental agency. The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Pooling Agreement. In the event funds
are advanced with respect to any Mortgage Loan, such advance is reimbursable to
the Master Servicer from the related recoveries on such Mortgage Loan or from
other cash deposited in the Certificate Account to the extent that such advance
is not otherwise recoverable.
As provided in the Pooling Agreement, withdrawals from the Certificate Account
may be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement to the Master Servicer
of advances made, or certain expenses incurred, by it.
The Pooling Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Certificateholders under the Pooling Agreement at
any time by the Company, the Master Servicer and the Trustee with the consent of
the Holders of the Certificates evidencing Percentage Interests aggregating not
less than 66% of REMIC II. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Pooling Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Pooling Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar or the office maintained by the Trustee in
the City and State of New York, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Trustee or any Authenticating Agent duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of Authorized Denominations evidencing
the same Percentage Interest set forth hereinabove will be issued to the
designated transferee or transferees.
[to be used only in the case of the Junior Subordinate Certificates:] [No
transfer of a Certificate will be made unless such transfer is exempt from or is
made in accordance with the registration requirements of the Securities Act of
1933, as amended (the "Securities Act") and any applicable state securities
laws. In the event that a transfer is to be made without registration or
qualification under applicable laws, (i) in the event such transfer is made
pursuant to Rule 144A under the Securities Act, the Company and the Trustee
shall require the transferee to execute an investment letter in substantially
the form attached as Exhibit L to the Pooling Agreement, which investment letter
shall not be an expense of the Company, the Master Servicer, the Trust or the
Trustee and (ii) in the event that such a transfer is not made pursuant to Rule
H-3
144A under the Securities Act, the Trustee may require an Opinion of Counsel
satisfactory to the Trustee that such transfer may be made without such
registration or qualification, which Opinion of Counsel shall not be an expense
of the Company, the Master Servicer, the Trust or the Trustee. Neither the
Company nor the Trust will register the Certificate under the Securities Act,
qualify the Certificate under any state securities law or provide registration
rights to any purchaser. Any Holder desiring to effect such transfer shall, and
does hereby agree to, indemnify the Trust, the Trustee, the Company 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.]
The Certificates are issuable only as registered Certificates without coupons in
Authorized Denominations specified in the Pooling Agreement. As provided in the
Pooling Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of Authorized Denominations
of like Certificate Principal Balance or Percentage Interest, as applicable, as
requested by the Holder surrendering the same.
A reasonable service charge may be made for any such registration of transfer or
exchange, and the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Trustee and the Certificate Registrar and any agent of the
Company, the Trustee or the Certificate Registrar may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Company, the Trustee, the Certificate Registrar nor any such agent
shall be affected by notice to the contrary.
The obligations created by the Pooling Agreement and the Trust created thereby
shall terminate upon (i) the later of the maturity or other liquidation
(including purchase by the Master Servicer) of the last Mortgage Loan remaining
in the Trust or the disposition of all property acquired upon foreclosure or
deed in lieu of foreclosure of any Mortgage Loan, and (ii) the payment to
Certificateholders of all amounts held by the Trustee and required to be paid to
them pursuant to the Pooling Agreement. In the event that the Company or the
Master Servicer purchases any Mortgage Loan pursuant to the Pooling Agreement,
the Pooling Agreement generally requires that the Trustee distribute to the
Certificateholders in the aggregate an amount equal to 100% of the unpaid
Principal Balance of such Mortgage Loan, plus unpaid accrued interest thereon at
the applicable Pass-Through Rate to the last day of the month in which such
purchase occurs. The Pooling Agreement permits, but does not require, the Master
Servicer to purchase from the Trust all Mortgage Loans at the time subject
thereto and all property acquired in respect of any Mortgage Loan upon payment
to the Certificateholders of the amounts specified in the Pooling Agreement. The
exercise of such right will effect early retirement of the Certificates, the
Master Servicer's right to purchase being subject to the aggregate Principal
Balance of the Mortgage Loans at the time of purchase being less than the
Clean-Up Call Percentage of the aggregate Principal Balance of the Mortgage
Loans as of the Cut-Off Date.
H-4
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s) and assign(s) and
transfer(s) unto ____________________________________________________________
(Please print or typewrite name and address, including postal
zip code of assignee. Please insert social security or other identifying number
of assignee.) the within WaMu Mortgage Pass-Through Certificate and hereby
irrevocably constitutes and appoints _________________________________________
Attorney to transfer said Certificate on the Certificate Register, with
full power of substitution in the premises.
Dated: ______________________ ________________________________________
Signature Guaranteed
__________________________________________________________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within instrument in every
particular, without alteration or enlargement or any change
whatever. This Certificate does not represent an obligation of
or an interest in Washington Mutual Mortgage Securities Corp. or
any of its affiliates. Neither this Certificate nor the
underlying Mortgage Loans are guaranteed by any agency or
instrumentality of the United States.
H-5
Exhibit I
TRANSFEROR CERTIFICATE
[Date]
U.S. Bank National Association, as Trustee
Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Corporate Trust Department, Washington Mutual 2004-RA1
Re: Washington Mutual MSC Mortgage Pass-Through Certificates, Series 2004-RA1,
Class R
Ladies and Gentlemen:
This letter is delivered to you in connection with the sale from (the "Seller")
to (the "Purchaser") of $____________________ initial Certificate Principal
Balance of Washington Mutual MSC Mortgage Pass-Through Certificates, Series
2004-RA1, Class R (the "Certificate"), pursuant to Section 5.01 of the Pooling
and Servicing Agreement (the "Pooling Agreement"), dated as of April 1, 2004
among Washington Mutual Mortgage Securities Corp., as depositor and master
servicer (the "Company"), U.S. Bank National Association, as trustee (the
"Trustee"), and Christiana Bank & Trust Company, as Delaware trustee. All terms
used herein and not otherwise defined shall have the meanings set forth in the
Pooling Agreement. The Seller hereby certifies, represents and warrants to, and
covenants with, the Company, the Trustee and the Trust that:
1. No purpose of the Seller relating to the sale of the Certificate by the
Seller to the Purchaser is or will be to enable the Seller to impede the
assessment or collection of tax.
2. The Seller understands that the Purchaser has delivered to the Trustee and
the Company a transferee affidavit and agreement in the form attached to the
Pooling Agreement as Exhibit J. The Seller does not know or believe that any
representation contained therein is false.
3. The Seller has no actual knowledge that the proposed Transferee is not a
Permitted Transferee.
4. The Seller has no actual knowledge that the Purchaser would be unwilling or
unable to pay taxes due on its share of the taxable income attributable to the
Certificates.
5. The Seller has conducted a reasonable investigation of the financial
condition of the Purchaser and, as a result of the investigation, found that the
Purchaser has historically paid its debts as they came due, and found no
significant evidence to indicate that the Purchaser will not continue to pay its
debts as they come due in the future.
I-1
6. The Purchaser has represented to the Seller that, if the Certificates
constitute a noneconomic residual interest, it (i) understands that as holder of
a noneconomic residual interest it may incur tax liabilities in excess of any
cash flows generated by the interest, and (ii) intends to pay taxes associated
with its holding of the Certificates as they become due.
Very truly yours,
[Seller]
By:
Name:
Title:
I-2
Exhibit J
TRANSFEREE AFFIDAVIT AND AGREEMENT
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Owner] (record or beneficial owner
of the Class R Certificate (the "Owner")), a [savings institution] [corporation]
duly organized and existing under the laws of [the State of
] [the United States], on behalf of which he makes this
affidavit and agreement.
2. That the Owner (i) is not and will not be a "disqualified organization" as of
[date of transfer] within the meaning of Section 860E(e)(5) of the Internal
Revenue Code of 1986, as amended (the "Code") and will endeavor to remain other
than a disqualified organization for so long as it retains its ownership
interest in the Class R Certificates, and (ii) is acquiring the Class R
Certificates for its own account or for the account of another Owner from which
it has received an affidavit and agreement in substantially the same form as
this affidavit and agreement. (For this purpose, a disqualified organization"
means the United States, any state or political subdivision thereof, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
all of the activities of which are subject to tax and, except for the Federal
Home Loan Mortgage Corporation, a majority of whose board of directors is not
selected by any such governmental entity), or any foreign government or
international organization, or any agency or instrumentality of such foreign
government or organization, any rural electric or telephone cooperative, or any
organization (other than certain farmers' cooperatives) that is generally exempt
from federal income tax unless such organization is subject to the tax on
unrelated business taxable income).
3. That the Owner is aware (i) of the tax that would be imposed on transfers of
the Class R Certificates after March 31, 1988; (ii) that such tax would be on
the transferor, or, if such transfer is through an agent (which person includes
a broker, nominee or middle-man) for a disqualified organization, on the agent;
(iii) that the person otherwise liable for the tax shall be relieved of
liability for the tax if the transferee furnishes to such person an affidavit
that the transferee is not a disqualified organization and, at the time of
transfer, such person does not have actual knowledge that the affidavit is
false; and (iv) that the Class R Certificates may be a "noneconomic residual
interest" within the meaning of Treasury regulations promulgated pursuant to the
Code and that the transferor of a noneconomic residual interest will remain
liable for any taxes due with respect to the income on such residual interest,
if a significant purpose of the transfer was to enable the transferor to impede
the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through entity" holding
the Class R Certificates if at any time during the taxable year of the
pass-through entity a disqualified organization is the record holder of an
interest in such entity. (For this purpose, a "pass through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
J-1
5. That the Owner is aware that the Trustee will not register the Transfer of
the Class R Certificates unless the transferee, or the transferees' agent,
delivers to it an affidavit and agreement, among other things, in substantially
the same form as this affidavit and agreement. The Owner expressly agrees that
it will not consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are false.
6. That the Owner has reviewed the restrictions set forth on the face of the
Class R Certificates and the provisions of Section 5.01 of the Pooling Agreement
under which the Class R Certificates were issued (in particular, clauses
(iii)(A) and (iii)(B) of Section 5.01(c) which authorize the Trustee to deliver
payments to a person other than the Owner and negotiate a mandatory sale by the
Trustee in the event the Owner holds such Certificates in violation of Section
5.01). The Owner expressly agrees to be bound by and to comply with such
restrictions and provisions.
7. That the Owner consents to any additional restrictions or arrangements that
shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Class R Certificates will only be owned, directly
or indirectly, by an Owner that is not a disqualified organization.
8. The Owner's Taxpayer Identification Number is .
9. That no purpose of the Owner relating to the purchase of the Class R
Certificates by the Owner is or will be to enable the transferor to impede the
assessment or collection of tax and that in making this representation, the
Owner warrants that the Owner is familiar with Treasury Regulation 1.860E-1(c)
and with the preamble to the adoption of amendments to that regulation as of
July 19, 2002, attached hereto as Exhibit 1.
10. That the Owner anticipates that it will, so long as it holds the Class R
Certificates, have sufficient assets to pay any taxes owed by the holder of such
Certificates, and hereby represents to and for the benefit of the person from
whom it acquired the Class R Certificates that the Owner intends to pay taxes
associated with holding such Certificates as they become due, fully
understanding that it may incur tax liabilities in excess of any cash flows
generated by the Class R Certificates. That the Owner has provided financial
statements or other financial information requested by the transferor in
connection with the transfer of the Class R Certificates to permit the
transferor to assess the financial capability of the Owner to pay such taxes.
11. That the Owner has no present knowledge or expectation that it will be
unable to pay any United States taxes owed by it so long as any of the Class R
Certificates remain outstanding.
12. That the Owner has no present knowledge or expectation that it will become
insolvent or subject to a bankruptcy proceeding for so long as any of the Class
R Certificates remain outstanding.
13. That the Owner is familiar with Treasury Regulation 1.860E-1(c) and with the
preamble to the adoption of amendments to that regulation as of July 19, 2002,
attached hereto as Exhibit 1, and that no purpose of the Owner relating to any
sale of the Class R Certificates by the Owner will be to impede the assessment
or collection of tax.
14. The Owner is a citizen or resident of the United States, a corporation,
partnership or other entity treated as a partnership or corporation for U.S.
federal income tax purposes created or organized in, or under the laws of, the
United States or any state thereof or the District of Columbia, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
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15. The Owner hereby agrees that it will not cause income from the Class R
Certificates to be attributable to a foreign permanent establishment or fixed
base (within the meaning of an applicable income tax treaty) of the Owner or
another United States taxpayer.
16. The Owner hereby agrees to cooperate with the Company and to take any action
required of it by the Code or Treasury regulations thereunder (whether now or
hereafter promulgated) in order to create or maintain the REMIC status of REMIC
I and REMIC II (the "REMICs").
17. The Owner hereby agrees that it will not take any action that could endanger
the REMIC status of the REMICs or result in the imposition of tax on the REMICs
unless counsel for, or acceptable to, the Company has provided an opinion that
such action will not result in the loss of such REMIC status or the imposition
of such tax, as applicable.
18. The Owner as transferee of the Class R Certificates has represented to the
transferor that, if the Class R Certificates constitute a noneconomic residual
interest, the Owner (i) understands that as holder of a noneconomic residual
interest it may incur tax liabilities in excess of any cash flows generated by
the interest, and (ii) intends to pay taxes associated with its holding of the
Class R Certificates as they become due.
19. That the Owner satisfies the condition in the paragraph marked below [xxxx
one paragraph only]:
___ The Owner is not an employee benefit or other plan subject to the prohibited
transaction provisions of the Employee Retirement Income Security Act of 1974,
as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended (a
"Plan"), or any other person (including an investment manager, a named fiduciary
or a trustee of any Plan) acting, directly or indirectly, on behalf of, or
purchasing the Class R Certificates with "plan assets" of, any Plan within the
meaning of the Department of Labor ("DOL") regulation at 29 C.F.R. Section
2510.3-101.
___ The Owner has delivered a Benefit Plan Opinion (as defined in Section 1.01
of the Pooling Agreement under which the Class R Certificates were issued).
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Title of
Officer] and its corporate seal to be hereunto attached, attested by its
[Assistant] Secretary, this day of , 20 __ .
[Name of Owner]
By:
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
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[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known or proved
to me to be the same person who executed the foregoing instrument and to be the
[Title of Officer] of the Owner, and Acknowledged to me that he executed the
same as his free act and deed and the free act and deed of the Owner.
Subscribed and sworn before me this ___ day of __________________, 20__.
NOTARY PUBLIC
COUNTY OF
STATE OF
My Commission expires the day
of , 20
J-4
Exhibit 1 to Transferee Affidavit
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 602
[TD 9004]
RIN 1545-AW98
Real Estate Mortgage Investment Conduits
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains final regulations relating to safe harbor
transfers of noneconomic residual interests in real estate mortgage investment
conduits (REMICs). The final regulations provide additional limitations on the
circumstances under which transferors may claim safe harbor treatment.
DATES: Effective Date: These regulations are effective July 19, 2002.
Applicability Date: For dates of applicability, see Sec. 1.860E-
(1)(c)(10).
FOR FURTHER INFORMATION CONTACT: Xxxxxxxx Xxxxxxxxxx at (000) 000-0000 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information in this final rule has been reviewed and, pending
receipt and evaluation of public comments, approved by the Office of Management
and Budget (OMB) under 44 U.S.C. 3507 and assigned control number 1545-1675. The
collection of information in this regulation is in Sec. 1.860E-1(c)(5)(ii). This
information is required to enable the IRS to verify that a taxpayer is complying
with the conditions of this regulation. The collection of information is
mandatory and is required. Otherwise, the taxpayer will not receive the benefit
of safe harbor treatment as provided in the regulation. The likely respondents
are businesses and other for-profit institutions.
Comments on the collection of information should be sent to the Office of
Management and Budget, Attn: Desk Officer for the Department of the Treasury,
Office of Information and Regulatory Affairs, Xxxxxxxxxx, XX, 00000, with copies
to the Internal Revenue Service, Attn: IRS Reports Clearance Officer,
W:CAR:MP:FP:S, Xxxxxxxxxx, XX 00000. Comments on the collection of information
should be received by September 17, 2002. Comments are specifically requested
concerning:
Whether the collection of information is necessary for the proper performance of
the functions of the Internal Revenue Service, including whether the information
will have practical utility;
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The accuracy of the estimated burden associated with the collection
of information (see below);
How the quality, utility, and clarity of the information to be collected may be
enhanced;
How the burden of complying with the collection of information may be minimized,
including through the application of automated collection techniques or other
forms of information technology; and
Estimates of capital or start-up costs and costs of operation, maintenance, and
purchase of service to provide information.
An agency may not conduct or sponsor, and a person is not required to respond
to, a collection of information unless it displays a valid control number
assigned by the Office of Management and Budget.
The estimated total annual reporting burden is 470 hours, based on an estimated
number of respondents of 470 and an estimated average annual burden hours per
respondent of one hour.
Books or records relating to a collection of information must be retained as
long as their contents may become material in the administration of any internal
revenue law. Generally, tax returns and tax return information are confidential,
as required by 26 U.S.C. 6103.
Background
This document contains final regulations regarding the proposed amendments to 26
CFR part 1 under section 860E of the Internal Revenue Code (Code). The
regulations provide the circumstances under which a transferor of a noneconomic
REMIC residual interest meeting the investigation and representation
requirements may avail itself of the safe harbor by satisfying either the
formula test or the asset test.
Final regulations governing REMICs, issued in 1992, contain rules governing the
transfer of noneconomic REMIC residual interests. In general, a transfer of a
noneconomic residual interest is disregarded for all tax purposes if a
significant purpose of the transfer is to enable the transferor to impede the
assessment or collection of tax. A purpose to impede the assessment or
collection of tax (a wrongful purpose) exists if the transferor, at the time of
the transfer, either knew or should have known that the transferee would be
unwilling or unable to pay taxes due on its share of the REMIC's taxable income.
Under a safe harbor, the transferor of a REMIC noneconomic residual interest is
presumed not to have a wrongful purpose if two requirements are satisfied: (1)
the transferor conducts a reasonable investigation of the transferee's financial
condition (the investigation requirement); and (2) the transferor secures a
representation from the transferee to the effect that the transferee understands
the tax obligations associated with holding a residual interest and intends to
pay those taxes (the representation requirement).
The IRS and Treasury have been concerned that some transferors of noneconomic
residual interests claim they satisfy the safe harbor even in situations where
the economics of the transfer clearly indicate the transferee is unwilling or
unable to pay the tax associated with holding the interest. For this reason, on
February 7, 2000, the IRS published in the Federal Register (65 FR 5807) a
notice of proposed rulemaking (REG-100276-97; REG-122450-98) designed to clarify
the safe harbor by adding the "formula test," an economic test. The proposed
regulation provides that the safe harbor is unavailable unless the present value
of the anticipated tax liabilities associated with holding the residual interest
J-6
does not exceed the sum of: (1) The present value of any consideration given to
the transferee to acquire the interest; (2) the present value of the expected
future distributions on the interest; and (3) the present value of the
anticipated tax savings associated with holding the interest as the REMIC
generates losses.
The notice of proposed rulemaking also contained rules for FASITs. Section
1.860H-6(g) of the proposed regulations provides requirements for transfers of
FASIT ownership interests and adopts a safe harbor by reference to the safe
harbor provisions of the REMIC regulations.
In January 2001, the IRS published Rev. Proc. 2001-12 (2001-3 I.R.B. 335) to set
forth an alternative safe harbor that taxpayers could use while the IRS and the
Treasury considered comments on the proposed regulations. Under the alternative
safe harbor, if a transferor meets the investigation requirement and the
representation requirement but the transfer fails to meet the formula test, the
transferor may invoke the safe harbor if the transferee meets a two-prong test
(the asset test). A transferee generally meets the first prong of this test if,
at the time of the transfer, and in each of the two years preceding the year of
transfer, the transferee's gross assets exceed $100 million and its net assets
exceed $10 million. A transferee generally meets the second prong of this test
if it is a domestic, taxable corporation and agrees in writing not to transfer
the interest to any person other than another domestic, taxable corporation that
also satisfies the requirements of the asset test. A transferor cannot rely on
the asset test if the transferor knows, or has reason to know, that the
transferee will not comply with its written agreement to limit the restrictions
on subsequent transfers of the residual interest.
Rev. Proc. 2001-12 provides that the asset test fails to be satisfied in the
case of a transfer or assignment of a noneconomic residual interest to a foreign
branch of an otherwise eligible transferee. If such a transfer or assignment
were permitted, a corporate taxpayer might seek to claim that the provisions of
an applicable income tax treaty would resource excess inclusion income as
foreign source income, and that, as a consequence, any U.S. tax liability
attributable to the excess inclusion income could be offset by foreign tax
credits. Such a claim would impede the assessment or collection of U.S. tax on
excess inclusion income, contrary to the congressional purpose of assuring that
such income will be taxable in all events. See, e.g., sections 860E(a)(1), (b),
(e) and 860G(b) of the Code.
The Treasury and the IRS have learned that certain taxpayers transferring
noneconomic residual interests to foreign branches have attempted to rely on the
formula test to obtain safe harbor treatment in an effort to impede the
assessment or collection of U.S. tax on excess inclusion income. Accordingly,
the final regulations provide that if a noneconomic residual interest is
transferred to a foreign permanent establishment or fixed base of a U.S.
taxpayer, the transfer is not eligible for safe harbor treatment under either
the asset test or the formula test. The final regulations also require a
transferee to represent that it will not cause income from the noneconomic
residual interest to be attributable to a foreign permanent establishment or
fixed base.
Section 1.860E-1(c)(8) provides computational rules that a taxpayer may use to
qualify for safe harbor status under the formula test. Section 1.860E-1(c)(8)(i)
provides that the transferee is presumed to pay tax at a rate equal to the
highest rate of tax specified in section 11(b). Some commentators were concerned
that this presumed rate of taxation was too high because it does not take into
consideration taxpayers subject to the alternative minimum tax rate. In light of
the comments received, this provision has been amended in the final regulations
to allow certain transferees that compute their taxable income using the
alternative minimum tax rate to use the alternative minimum tax rate applicable
to corporations.
Additionally, Sec. 1.860E-1(c)(8)(iii) provides that the present values in the
formula test are to be computed using a discount rate equal to the applicable
Federal short-term rate prescribed by section 1274(d). This is a change from the
proposed regulation and Rev. Proc. 2001-12. In those publications the provision
stated that "present values are computed using a discount rate equal to the
applicable Federal rate prescribed in section 1274(d) compounded semiannually"
and that "[a] lower discount rate may be used if the transferee can demonstrate
that it regularly borrows, in the course of its trade or business, substantial
J-7
funds at such lower rate from an unrelated third party." The IRS and the
Treasury Department have learned that, based on this provision, certain
taxpayers have been attempting to use unrealistically low or zero interest rates
to satisfy the formula test, frustrating the intent of the test. Furthermore,
the Treasury Department and the IRS believe that a rule allowing for a rate
other than a rate based on an objective index would add unnecessary complexity
to the safe harbor. As a result, the rule in the proposed regulations that
permits a transferee to use a lower discount rate, if the transferee can
demonstrate that it regularly borrows substantial funds at such lower rate, is
not included in the final regulations; and the Federal short-term rate has been
substituted for the applicable Federal rate. To simplify taxpayers'
computations, the final regulations allow use of any of the published short-term
rates, provided that the present values are computed with a corresponding period
of compounding. With the exception of the provisions relating to transfers to
foreign branches, these changes generally have the proposed applicability date
of February 4, 2000, but taxpayers may choose to apply the interest rate formula
set forth in the proposed regulation and Rev. Proc. 2001-12 for transfers
occurring before August 19, 2002.
It is anticipated that when final regulations are adopted with respect to
FASITs, Sec. 1.860H-6(g) of the proposed regulations will be adopted in
substantially its present form, with the result that the final regulations
contained in this document will also govern transfers of FASIT ownership
interests with substantially the same applicability date as is contained in this
document.
Effect on Other Documents
Rev. Proc. 2001-12 (2001-3 I.R.B. 335) is obsolete for transfers of noneconomic
residual interests in REMICs occurring on or after August 19, 2002.
Special Analyses
It is hereby certified that these regulations will not have a significant
economic impact on a substantial number of small entities. This certification is
based on the fact that it is unlikely that a substantial number of small
entities will hold REMIC residual interests. Therefore, a Regulatory Flexibility
Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not
required. It has been determined that this Treasury decision is not a
significant regulatory action as defined in Executive Order 12866. Therefore, a
regulatory assessment is not required. It also has been determined that sections
553(b) and 553(d) of the Administrative Procedure Act (5 U.S.C. chapter 5) do
not apply to these regulations.
Drafting Information
The principal author of these regulations is Xxxxxxxx Xxxxxxxxxx. However, other
personnel from the IRS and Treasury Department participated in their
development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting and record keeping requirements.
26 CFR Part 602
Reporting and record keeping requirements.
Adoption of Amendments to the Regulations
J-8
Accordingly, 26 CFR parts 1 and 602 are amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in part as
follows:
Authority: 26 U.S.C. 7805 * * *
J-9
Exhibit K
[Reserved]
K-1
Exhibit L
[FORM OF RULE 144A INVESTMENT REPRESENTATION]
Description of Rule 144A Securities, including numbers:
_______________________
_______________________
_______________________
_______________________
The undersigned seller, as registered holder (the "Seller"), intends to transfer
the Rule 144A Securities described above to the undersigned buyer (the "Buyer").
1. In connection with such transfer and in accordance with the agreements
pursuant to which the Rule 144A Securities were issued, the Seller hereby
certifies the following facts: Neither the Seller nor anyone acting on its
behalf has offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any interest in the Rule 144A Securities or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached or
negotiated with respect to the Rule 144A Securities, any interest in the Rule
144A Securities or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Rule 144A Securities under the Securities Act of 1933, as amended (the "1933
Act"), or that would render the disposition of the Rule 144A Securities a
violation of Section 5 of the 1933 Act or require registration pursuant thereto,
and that the Seller has not offered the Rule 144A Securities to any person other
than the Buyer or another "qualified institutional buyer" as defined in Rule
144A under the 0000 Xxx.
2. The Buyer warrants and represents to, and covenants with, the Seller, the
Trustee, the Trust and the Master Servicer (as defined in Section 1.01 of the
Pooling and Servicing Agreement (the "Agreement") dated as of April 1, 2004
among Washington Mutual Mortgage Securities Corp., as Depositor and Master
Servicer, U.S. Bank National Association, as Trustee, and Christiana Bank &
Trust Company, as Delaware trustee) pursuant to Section 5.01(f) of the
Agreement, as follows:
a. The Buyer understands that the Rule 144A Securities have not been registered
under the 1933 Act or the securities laws of any state.
b. The Buyer considers itself a substantial, sophisticated institutional
investor having such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of investment in the Rule
144A Securities.
c. The Buyer has received and reviewed the Private Placement Memorandum dated as
of April 29, 2004 relating to the Rule 144A Securities and has been furnished
with all information regarding the Rule 144A Securities that it has requested
from the Seller, the Trustee, the Company or the Master Servicer.
L-1
d. Neither the Buyer nor anyone acting on its behalf has offered, transferred,
pledged, sold or otherwise disposed of the Rule 144A Securities, any interest in
the Rule 144A Securities or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the Rule 144A
Securities, any interest in the Rule 144A Securities or any other similar
security from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities or any other similar
security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other action,
that would constitute a distribution of the Rule 144A Securities under the 1933
Act or that would render the disposition of the Rule 144A Securities a violation
of Section 5 of the 1933 Act or require registration pursuant thereto, nor will
it act, nor has it authorized or will it authorize any person to act, in such
manner with respect to the Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as that term is defined in
Rule 144A under the 1933 Act and has (1) completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2, or (2)
obtained the waiver of the Company with respect to Annex 1 and Annex 2 pursuant
to Section 5.01(f) of the Agreement. The Buyer is aware that the sale to it is
being made in reliance on Rule 144A. The Buyer is acquiring the Rule 144A
Securities for its own account or the accounts of other qualified institutional
buyers, understands that such Rule 144A Securities may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the 1933 Act.
f. The Buyer is not affiliated with (i) the Trustee or (ii) any Rating Agency
that rated the Rule 144A Securities.
g. If applicable, the Buyer has complied, and will continue to comply, with the
guidelines established by Thrift Bulletin 13a issued April 23, 1998, by the
Office of Regulatory Activities of the Federal Home Loan Bank System.
3. This document may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has executed this document as of the
date set forth below.
__________________________ ___________________________
Print Name of Seller Print Name of Buyer
By: By:
Name: Name:
Title: Title:
L-2
Taxpayer Identification: Taxpayer Identification:
No.: No.:
Date: Date:
L-3
Annex 1 to Exhibit L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested on a
discretionary basis $______________________ (the Buyer must own and/or invest on
a discretionary basis at least $100,000,000 in securities unless the Buyer is a
dealer, and, in that case, the Buyer must own and/or invest on a discretionary
basis at least $10,000,000 in securities) in securities (except for the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A) and (ii) the
Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank, savings and
loan association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in Section 501(c)(3) of
the Internal Revenue Code.
___ Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the business
of which is substantially confined to banking and is supervised by the State or
territorial banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan association, building
and loan association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal authority
having supervision over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial statements.
___ Broker-Dealer. The Buyer is a dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of a State or
territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained by a
State, its political subdivisions, or any agency or instrumentality of the State
or its political subdivisions, for the benefit of its employees.
L-1-1
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") and is subject to the fiduciary responsibility provisions of ERISA.
___ Investment Adviser. The Buyer is an investment adviser registered under the
Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
___ Business Development Company. The Buyer is a business development company as
defined in Section 202(a)(22) of the Investment Advisers Act of 1940.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit of
its employees, or (b) employee benefit plans within the meaning of Title I of
the Employee Retirement Income Security Act of 1974, but is not a trust fund
that includes as participants individual retirement accounts or H.R. 10 plans.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred to in
the preceding paragraph. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Buyer's direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934.
5. The Buyer acknowledges that it is familiar with Rule 144A and understands
that the seller to it and other parties related to the Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Buyer may be in reliance on Rule 144A.
L-1-2
Will the Buyer be purchasing the Rule 144A
________ ________
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer agrees that, in
connection with any purchase of securities sold to the Buyer for the account of
a third party (including any separate account) in reliance on Rule 144A, the
Buyer will only purchase for the account of a third party that at the time is a
"qualified institutional buyer" within the meaning of Rule 144A. In addition,
the Buyer agrees that the Buyer will not purchase securities for a third party
unless the Buyer has obtained a current representation letter from such third
party or taken other appropriate steps contemplated by Rule 144A to conclude
that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice is
given, the Buyer's purchase of Rule 144A Securities will constitute a
reaffirmation of this certification as of the date of such purchase.
______________________________________
Print Name of Buyer
By:
Name:
Title:
Date:
L-1-3
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief Financial Officer
or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933 ("Rule 144A") because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, and (ii)
as marked below, the Buyer alone, or the Buyer's Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such securities was used.
____ The Buyer owned $___________________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned in the
aggregate $______________ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of
Investment Companies, (ii) bank deposit notes and certificates of deposit, (iii)
loan participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and commodity
swaps.
5. The Buyer is familiar with Rule 144A and understands that each of the parties
to which this certification is made are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will be in
reliance on Rule 144A. In addition, the Buyer will only purchase for the Buyer's
own account.
6. The undersigned will notify each of the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Buyer's purchase of Rule 144A Securities will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
L-2-1
Print Name of Buyer
By:
Name:
Title:
Date:
IF AN ADVISER:
Print Name of Buyer
By:
Name:
Title:
Date:
(SEAL)
L-2-2
Exhibit M
[Date]
[Company]
Re: Pooling and Servicing Agreement dated as of April 1, 2004 by and among
Washington Mutual Mortgage Securities Corp., as Depositor and Master
Servicer, U.S. Bank National Association, as Trustee, and Christiana Bank &
Trust Company, as Delaware trustee, relating to Washington Mutual MSC
Mortgage Pass-Through Certificates, Series 2004-RA1
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement, the undersigned, as [Trustee] [Initial Custodian], hereby certifies
that, except as noted on the attachment hereto, as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or
listed on the attachment hereto) it has reviewed the documents delivered to it
pursuant to Section 2.01 of the Pooling and Servicing Agreement and has
determined that (i) all documents required (in the case of instruments described
in clauses (X)(iv) and (Y)(ix) of the definition of "Mortgage File," known by it
to be required) pursuant to the definition of "Mortgage File" and Section 2.01
of the Pooling and Servicing Agreement to have been executed and received as of
the date hereof are in its possession and (ii) all such documents have been
executed and relate to the Mortgage Loans identified in the Mortgage Loan
Schedule. The [Trustee] [Initial Custodian] has made no independent examination
of such documents beyond the review specifically required in the above
referenced Pooling and Servicing Agreement and has relied upon the purported
genuineness and due execution of any such documents and upon the purported
genuineness of any signature thereon. The [Trustee] [Initial Custodian] makes no
representations as to: (i) the validity, legality, enforceability or genuineness
of any of the documents contained in each Mortgage File or any of the Mortgage
Loans identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective meanings
assigned to them in the above-captioned Pooling and Servicing Agreement.
___________________________________
as [Trustee] [Initial Custodian]
By:
Name:
Title:
M-1
EXHIBIT N
BENEFIT PLAN AFFIDAVIT
U.S. Bank National Association, as Trustee (the "Trustee") Xxx Xxxxxxx Xxxxxx,
Xxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Corporate Trust Department, Washington Mutual 2004-RA1
Washington Mutual Mortgage Securities Corp. ("Washington Mutual")
00 Xxxxx Xxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
RE: CLASS [C-B-4] [C-B-5] [C-B-6] CERTIFICATES (THE "PURCHASED CERTIFICATES")
ISSUED BY WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATES SERIES
2004-RA1 TRUST (THE "TRUST")
Under penalties of perjury, I, _____________________, declare that, to the best
of my knowledge and belief, the following representations are true, correct and
complete; and
1. That I am the _______________ of __________________ (the "Purchaser"), whose
taxpayer identification number is ___________, and on behalf of which I have the
authority to make this affidavit.
2. That the Purchaser is acquiring a Purchased Certificate representing an
interest in the assets of the Trust.
3. That the Purchaser satisfies the condition in the paragraph marked below
[xxxx one paragraph only]:
___ The Purchaser is not an employee benefit plan or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income Security Act
of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as
amended (a "Plan"), or any other person (including an investment manager, a
named fiduciary or a trustee of any Plan) acting, directly or indirectly, on
behalf of, or purchasing any of the Purchased Certificates with "plan assets"
of, any Plan within the meaning of the Department of Labor ("DOL") regulation at
29 C.F.R. Section 2510.3-101.
___ The Purchaser is an insurance company, the source of funds to be used by it
to acquire or hold the Purchased Certificate is an "insurance company general
account" (within the meaning of DOL Prohibited Transaction Class Exemption
("PTCE") 95-60), and the conditions in Sections I and III of PTCE 95-60 have
been satisfied.
___ The Purchaser has delivered to Washington Mutual and the Trustee a Benefit
Plan Opinion (as defined in Section 1.01 of the Pooling and Servicing Agreement,
dated as of April 1, 2004, by and among Washington Mutual, the Trustee and the
Delaware Trustee thereunder, and relating to the Trust).
N-1
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly executed
on its behalf, by its duly authorized officer this _____ day of
__________________, 20__.
[Purchaser]
By:
Its:
N-2
Personally appeared before me ______________________, known or proved to me to
be the same person who executed the foregoing instrument and to be a
________________ of the Purchaser, and acknowledged to me that (s)he executed
the same as his/her free act and deed and as the free act and deed of the
Purchaser.
SUBSCRIBED and SWORN to before me this day of ____________, 20__.
________________________________
Notary Public
N-3
Exhibit O
BENEFIT PLAN AFFIDAVIT
U.S. Bank National Association, as Trustee (the "Trustee")
Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Corporate Trust Department, Washington Mutual 2004-RA1
Washington Mutual Mortgage Securities Corp. ("Washington Mutual")
00 Xxxxx Xxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
RE: CLASS [C-B-1] [C-B-2] [C-B-3] CERTIFICATES (THE "PURCHASED CERTIFICATES")
ISSUED BY WASHINGTON MUTUAL MSC MORTGAGE PASS-THROUGH CERTIFICATES SERIES
2004-RA1 TRUST (THE "TRUST")
Under penalties of perjury, I, _____________________, declare that, to the best
of my knowledge and belief, the following representations are true, correct and
complete; and
1. That I am the _______________ of __________________ (the "Purchaser"), whose
taxpayer identification number is ___________, and on behalf of which I have the
authority to make this affidavit.
2. That the Purchaser is acquiring a Purchased Certificate representing an
interest in the assets of the Trust.
3. That the Purchaser satisfies the condition in the paragraph marked below
[xxxx one paragraph only]:
___ The Purchaser is not an employee benefit or other plan subject to the
prohibited transaction provisions of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of
1986, as amended (a "Plan"), or any other person (including an investment
manager, a named fiduciary or a trustee of any such Plan) acting, directly or
indirectly, on behalf of or purchasing the Purchased Certificate with "plan
assets" of, any Plan within the meaning of the Department of Labor ("DOL")
regulation at 29 C.F.R. Section 2510.3-101.
___ The Purchaser is an insurance company, the source of funds to be used by it
to acquire or hold the Purchased Certificate is an "insurance company general
account" (within the meaning of DOL Prohibited Transaction Class Exemption
("PTCE") 95-60), and the conditions in Sections I and III of PTCE 95-60 have
been satisfied.
___ The Purchased Certificate was rated "BBB-" or better (or its equivalent) by
at least one of the Rating Agencies (as defined in Section 1.01 of the Pooling
and Servicing Agreement (the "the Pooling and Servicing Agreement"), dated as of
April 1, 2004, by and among Washington Mutual, the Trustee and the Delaware
Trustee thereunder, and relating to the Trust) at the time of Purchaser's
acquisition of the Purchased Certificate (or interest therein).
___ The Purchaser has delivered to Washington Mutual and the Trustee a Benefit
Plan Opinion (as defined in Section 1.01 of the Pooling and Servicing
Agreement).
O-1
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be duly executed
on its behalf, by its duly authorized officer this _____ day of
__________________, 20__.
[Purchaser]
By:
Its:
O-2
Personally appeared before me ______________________, known or proved to me to
be the same person who executed the foregoing instrument and to be a
________________ of the Purchaser, and acknowledged to me that (s)he executed
the same as his/her free act and deed and as the free act and deed of the
Purchaser.
SUBSCRIBED and SWORN to before me this day of ____________, 20__.
_____________________________________
Notary Public
O-3
