Exhibit 4.1
EXECUTION COPY
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
Depositor
XXXXX FARGO BANK, N.A.
Master Servicer and Securities Administrator
and
HSBC BANK USA, NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2006
----------
Mortgage Pass-Through Certificates, MLMI Series 2006-A1
EXECUTION COPY
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.................................................... 5
Section 1.02 Accounting.............................................. 40
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES.................................................. 41
Section 2.01 Conveyance of Mortgage Loans to Trustee................. 41
Section 2.02 Acceptance of Mortgage Loans by Trustee................. 44
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase
Agreement............................................... 47
Section 2.04 Substitution of Mortgage Loans.......................... 48
Section 2.05 Issuance of Certificates................................ 49
Section 2.06 Representations and Warranties Concerning the
Depositor............................................... 49
Section 2.07 Representations and Warranties Concerning the Master
Servicer and Securities Administrator................... 51
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS............... 53
Section 3.01 Master Servicer......................................... 53
Section 3.02 REMIC-Related Covenants................................. 54
Section 3.03 Monitoring of Servicers................................. 54
Section 3.04 Fidelity Bond........................................... 55
Section 3.05 Power to Act; Procedures................................ 55
Section 3.06 Due-on-Sale Clauses; Assumption Agreements.............. 56
Section 3.07 Release of Mortgage Files............................... 56
Section 3.08 Documents, Records and Funds in Possession of Master
Servicer To Be Held for Trustee......................... 57
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies.. 58
Section 3.10 Presentment of Claims and Collection of Proceeds........ 58
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies.. 59
Section 3.12 Trustee to Retain Possession of Certain Insurance
Policies and Documents.................................. 59
Section 3.13 Realization Upon Defaulted Mortgage Loans............... 60
Section 3.14 Compensation for the Master Servicer.................... 60
Section 3.15 REO Property............................................ 60
Section 3.16 Annual Statement as to Compliance....................... 61
Section 3.17 Reports on Assessment of Compliance and Attestation..... 62
Section 3.18 Periodic Filings........................................ 64
Section 3.19 Compliance with Regulation AB........................... 71
ARTICLE IV ACCOUNTS...................................................... 72
Section 4.01 Protected Accounts...................................... 72
Section 4.02 Master Servicer Collection Account...................... 73
Section 4.03 Permitted Withdrawals and Transfers from the Master
Servicer Collection Account............................. 74
Section 4.04 Distribution Account.................................... 75
Section 4.05 Permitted Withdrawals and Transfers from the
Distribution Account.................................... 75
ARTICLE V CERTIFICATES................................................... 78
Section 5.01 The Certificates........................................ 78
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates................................ 78
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates....... 82
Section 5.04 Persons Deemed Owners................................... 83
Section 5.05 Access to List of Certificateholders' Names and
Addresses............................................... 83
Section 5.06 Book-Entry Certificates................................. 83
Section 5.07 Notices to Depository................................... 84
Section 5.08 Definitive Certificates................................. 84
Section 5.09 Maintenance of Office or Agency......................... 85
ARTICLE VI PAYMENTS TO CERTIFICATEHOLDERS................................ 86
Section 6.01 Distributions on the Certificates....................... 86
Section 6.02 Allocation of Losses.................................... 89
Section 6.03 Payments................................................ 90
Section 6.04 Statements to Certificateholders........................ 90
Section 6.05 Monthly Advances........................................ 92
Section 6.06 Compensating Interest Payments.......................... 93
ARTICLE VII THE MASTER SERVICER AND THE DEPOSITOR........................ 94
Section 7.01 Liabilities of the Master Servicer...................... 94
Section 7.02 Merger or Consolidation of the Master Servicer.......... 94
Section 7.03 Indemnification from the Master Servicer and the
Depositor............................................... 94
Section 7.04 Limitations on Liability of the Master Servicer and
Others.................................................. 95
Section 7.05 Master Servicer Not to Resign........................... 96
Section 7.06 Successor Master Servicer............................... 96
Section 7.07 Sale and Assignment of Master Servicing................. 96
ARTICLE VIII DEFAULT..................................................... 98
Section 8.01 Events of Default....................................... 98
Section 8.02 Trustee to Act; Appointment of Successor................ 99
Section 8.03 Notification to Certificateholders...................... 100
Section 8.04 Waiver of Defaults...................................... 100
Section 8.05 List of Certificateholders.............................. 101
ARTICLE IX CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR....... 102
Section 9.01 Duties of Trustee....................................... 102
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Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator........................................... 104
Section 9.03 Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans.......................... 106
Section 9.04 Trustee and Securities Administrator May Own
Certificates............................................ 106
Section 9.05 Trustee's and Securities Administrator's Fees and
Expenses................................................ 106
Section 9.06 Eligibility Requirements for Trustee and Securities
Administrator........................................... 107
Section 9.07 Insurance............................................... 108
Section 9.08 Resignation and Removal of the Trustee and Securities
Administrator........................................... 108
Section 9.09 Successor Trustee and Successor Securities
Administrator........................................... 109
Section 9.10 Merger or Consolidation of Trustee or Securities
Administrator........................................... 109
Section 9.11 Appointment of Co-Trustee or Separate Trustee........... 110
Section 9.12 Federal Information Returns and Reports to
Certificateholders; REMIC Administration................ 111
ARTICLE X TERMINATION.................................................... 115
Section 10.01 Termination upon Liquidation or Repurchase of all
Mortgage Loans.......................................... 115
Section 10.02 Final Distribution on the Certificates.................. 116
Section 10.03 Additional Termination Requirements..................... 117
ARTICLE XI MISCELLANEOUS PROVISIONS...................................... 119
Section 11.01 Intent of Parties....................................... 119
Section 11.02 Amendment............................................... 119
Section 11.03 Recordation of Agreement................................ 121
Section 11.04 Limitation on Rights of Certificateholders.............. 121
Section 11.05 Acts of Certificateholders.............................. 121
Section 11.06 Governing Law........................................... 123
Section 11.07 Notices................................................. 123
Section 11.08 Severability of Provisions.............................. 124
Section 11.09 Successors and Assigns.................................. 124
Section 11.10 Article and Section Headings............................ 124
Section 11.11 Counterparts............................................ 124
Section 11.12 Notice to Rating Agencies............................... 124
ARTICLE XII REMIC ADMINISTRATION......................................... 125
Section 12.01 REMIC Administration.................................... 125
Section 12.02 Prohibited Transactions and Activities.................. 127
Section 12.03 Indemnification with Respect to Prohibited Transactions
or Loss of REMIC Status................................. 127
Section 12.04 REO Property............................................ 128
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EXHIBITS
Exhibit A-1 - Form of Class A and Class M Certificates
Exhibit A-2 - Form of Class B Certificates
Exhibit A-3 - Form of Class A-R Certificates
Exhibit A-4 - Form of Class P Certificate
Exhibit B - Mortgage Loan Schedule
Exhibit C - [Reserved]
Exhibit D - Request for Release of Documents
Exhibit E-1 - Form of Transferee's Letter and Affidavit
Exhibit E-2 - Form of Transferor Certificate
Exhibit F-1 - Form of Transferor Representation Letter
Exhibit F-2 - Form of Investor Representation Letter
Exhibit F-3 - Form of Rule 144A Letter
Exhibit G - Form of Custodial Agreement
Exhibit H-1 to H-3 - Servicing Agreements
Exhibit I-1 to I-3 - Assignment Agreements
Exhibit J - Mortgage Loan Purchase Agreement
Exhibit K - Servicing Criteria To Be Addressed in Assessment of
Compliance
Exhibit L - Form of Xxxxxxxx-Xxxxx Certification
Exhibit M - Form of Back-up Xxxxxxxx-Xxxxx Certification
Exhibit N - [Reserved]
Exhibit O - Additional Disclosure Notification
Exhibit P - Form of Item 1123 Certification of Servicer
Exhibit Q-1 - Additional Form 10-D Disclosure
Exhibit Q-2 - Additional Form 10-K Disclosure
Exhibit Q-3 - Form 8-K Disclosure Information
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POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement is dated as of March 1, 2006 (the
"Agreement"), among XXXXXXX XXXXX MORTGAGE INVESTORS, INC., as depositor (the
"Depositor"), XXXXX FARGO BANK, N.A., as master servicer (in such capacity, the
"Master Servicer") and as securities administrator (in such capacity, the
"Securities Administrator") and HSBC BANK USA, NATIONAL ASSOCIATION, as trustee
(the "Trustee").
PRELIMINARY STATEMENT
The Depositor has acquired the Mortgage Loans from the Seller and at the
Closing Date is the owner of the Mortgage Loans and the other property being
conveyed by the Depositor to the Trustee hereunder for inclusion in the Trust
Fund. On the Closing Date, the Depositor will acquire the Certificates from the
Securities Administrator as consideration for the Depositor's transfer to the
Trust Fund of the Mortgage Loans and the other property constituting the Trust
Fund. The Depositor has duly authorized the execution and delivery of this
Agreement to provide for the conveyance to the Trustee of the Mortgage Loans and
the other property constituting the Trust Fund. All covenants and agreements
made by the Seller in the Mortgage Loan Purchase Agreement and in this Agreement
and all covenants and agreements made by the Depositor, the Trustee, the
Securities Administrator and the Master Servicer herein with respect to the
Mortgage Loans and the other property constituting the Trust Fund are for the
benefit of the Holders from time to time of the Certificates. The Depositor, the
Trustee, the Securities Administrator and the Master Servicer are entering into
this Agreement, and the Trustee is accepting the Trust Fund created hereby, for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
As provided herein, the Trustee shall elect that the Trust Fund be treated
for federal income tax purposes as comprising two real estate mortgage
investment conduits (each a "REMIC" or, in the alternative, "REMIC 1" and the
"Upper Tier REMIC," respectively) in a tiered structure. The Certificates, other
than the Class A-R Certificate and the Class P Certificate, shall represent
ownership of regular interests in the Upper Tier REMIC. The Class A-R
Certificate represents the sole class of residual interest in each of REMIC 1
and the Upper Tier REMIC.
The Upper Tier REMIC shall hold as its assets the several classes of
uncertificated REMIC 1 Regular Interests. REMIC 1 shall hold as its assets the
property of the Trust Fund other than the REMIC 1 Interests and other than the
amounts payable to the Class P Certificates.
Each Upper Tier REMIC Regular Interest is hereby designated as a regular
interest in the Upper Tier REMIC for purposes of the REMIC Provisions. Each
REMIC 1 Regular Interest is hereby designated as a regular interest in REMIC 1
for purposes of the REMIC Provisions.
The Class LT1-R Interest is hereby designated as the sole class of residual
interest in REMIC 1 for purposes of the REMIC Provisions. The Class A-R
Certificate, other than the portion thereof representing the right to receive
payments in respect of the Class LT1-R Interest is hereby designated as the sole
class of residual interest in the Upper Tier REMIC for purposes of the REMIC
provisions and will also represent the Class LT1-R Interest.
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THE REMIC 1 INTERESTS
The following table sets forth (or describes) the class designation,
interest rate, initial principal balance, and related group of Mortgage Loans
for each class of REMIC 1 Interests:
Principal Interest Related Loan Groups
Class Designation Balance Rate or Loan Group
----------------- ----------------- -------- -------------------
LT11A $ 298,265.2066 (2) Loan Group I
LT11B $ 3,873,506.2066 (3) Loan Group I
LT12A $ 216,545.9191 (2) Loan Group II
LT12B $ 2,812,155.9191 (4) Loan Group II
LT1Z $661,365,739.3186 (2) Loan Group I and Loan Group II
LT1-R (1) (1) N/A
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(1) The Class LT1-R Interest represents the sole class of residual interest in
REMIC 1 and has neither a principal amount nor an interest rate. The Class
LT1-R Interest shall be represented by the Class A-R Certificate.
(2) The Class LT11A Interest, the Class LT12A Interest, and the Class LT1Z
Interest shall have an interest rate for each Distribution Date (and the
related Interest Accrual Period) equal to the Net WAC.
(3) The Class LT11B Interest shall have an interest rate for any Distribution
Date (and the related Interest Accrual Period) equal to the Loan Group I
Net WAC.
(4) The Class LT12B Interest shall have an interest rate for any Distribution
Date (and the related Interest Accrual Period) equal to the Loan Group II
Net WAC.
On each Distribution Date, the Securities Administrator shall first pay or
charge as an expense of REMIC 1 all expenses of the Issuing Entity for such
Distribution Date.
Principal distributions shall be deemed to be made on the REMIC 1 Interests
first, so as to keep the uncertificated principal balance of each REMIC 1
Interest ending with the designation "A" equal to 1% of the excess of (x) the
aggregate Stated Principal Balance of the Mortgage Loans in the related Loan
Group over (y) the aggregate class principal amounts of the Certificates in the
Certificate Group related to such Loan Group (except that if 1% of any such
excess is greater than the principal amount of the corresponding REMIC 1
Interest ending with the designation "A", the least amount of principal shall be
distributed to such REMIC 1 Interests such that the REMIC 1 Subordinate Balance
Ratio is maintained); second, to each REMIC 1 Interest ending with the
designation "B" so as to keep the uncertificated principal balance of each such
REMIC 1 Interest equal to 1% of the aggregate Stated Principal Balance of the
Mortgage Loans in the related Loan Group and finally, all remaining principal
amounts shall be distributed in respect of the Class LT1Z Interest. Realized
Losses with respect to principal shall be allocated among the REMIC 1 Interests
first, so as to keep the uncertificated principal balance of each REMIC 1
Interest ending with the designation "A" equal to 1% of the excess of (x) the
aggregate Stated Principal Balance of the Mortgage Loans in the related Loan
Group over (y) the aggregate class principal amounts of the Certificates in the
Certificate Group related to such Loan Group (except that if 1% of any such
excess is greater than the principal amount of the corresponding REMIC 1
Interest ending with the designation "A", the least amount of losses
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shall be allocated to such REMIC 1 Interests such that the REMIC 1 Subordinate
Balance Ratio is maintained); second, to each REMIC 1 Interest ending with the
designation "B" so as to keep the uncertificated principal balance of each such
REMIC 1 Interest equal to 1% of the aggregate Principal Balance of the Mortgage
Loans in the related Loan Group and finally, all remaining Realized Losses with
respect to principal shall be distributed in respect of the Class LT1Z Interest.
If on any Distribution Date the Class Certificate Balance of any Class of
Certificates is increased pursuant to the definition of "Class Certificate
Balance", then there shall be an equivalent aggregate increase in the principal
amounts of the REMIC 1 Regular Interests, with such increase allocated (before
the making of distributions and the allocation of losses on the REMIC 1 Regular
Interests on such Distribution Date) among the REMIC 1 Regular Interests as
follows: (i) first, to each REMIC 1 Interest ending with the designation "B" so
as to keep the uncertificated principal balance of each such REMIC 1 Interest
equal to 1% of the aggregate Stated Principal Balance of the Mortgage Loans in
the related Loan Group, (ii) second, to each REMIC 1 Regular Interest ending
with the designation "A", so that the uncertificated principal balance of each
REMIC 1 Regular Interest ending with the designation "A" is as close as possible
to (but does not exceed) 1% of the excess of (x) the aggregate Stated Principal
Balance of the Mortgage Loans in related Loan Group over (y) the aggregate class
principal balance of the Certificates in the Certificate Group related to such
Loan Group; provided, however, that (a) the REMIC 1 Subordinate Balance Ratio is
maintained and (b) amounts allocated to any REMIC 1 Regular Interest pursuant to
this clause (ii) shall not exceed the amount of any previous realized losses
allocated to such REMIC 1 Regular Interest not previously offset by
distributions or increases in the principal amount of such REMIC 1 Regular
Interest and (iii) finally, all remaining amounts to the Class LT1Z Interest.
All computations with respect to the REMIC 1 Interests shall be computed to
eight decimal places.
THE CERTIFICATES
The following table sets forth (or describes) the Class designation,
Pass-Through Rate, initial Class Certificate Balance, and minimum denomination
for each Class of Certificates comprising interests in the Trust Fund created
hereunder.
Related Class or
Classes of interests
Class in the Upper Tier Certificate Initial Class Minimum Denominations
Designation REMIC Interest Rate Principal Amount or Percentage Interest
----------- -------------------- ------------- ---------------- ----------------------
Class I-A1 Class I-A1 (1) $321,745,367 $ 25,000.00
Class I-A2 Class I-A2 (1) $ 35,752,000
Class II-A1 Class II-A1 (2) $233,605,000 $ 25,000.00
Class II-A2 Class II-A2 (2) $ 25,956,000 $ 25,000.00
Class A-R Class A-R (1) $ 100 100%
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Related Class or
Classes of interests
Class in the Upper Tier Certificate Initial Class Minimum Denominations
Designation REMIC Interest Rate Principal Amount or Percentage Interest
----------- -------------------- ------------- ---------------- ----------------------
Class M-1 Class M-1 (3) $ 25,407,000 $ 25,000.00
Class M-2 Class M-2 (3) $ 8,691,000 $ 25,000.00
Class M-3 Class M-3 (3) $ 5,348,000 $ 25,000.00
Class B-1 Class B-1 (3) $ 5,015,000 $100,000.00
Class B-2 Class B-2 (3) $ 4,011,000 $100,000.00
Class B-3 Class B-3 (3) $ 3,009,112 $100,000.00
(1) The Pass-Through Rate with respect to any Distribution Date (and the
related Interest Accrual Period) for the Class I-A1, Class I-A2 and Class
A-R Certificates will be the Loan Group I Net WAC.
(2) The Pass-Through Rate with respect to any Distribution Date (and the
related Interest Accrual Period) for the Class II-A1 and Class II-A2
Certificates will be the Loan Group II Net WAC.
(3) The Pass-Through Rates with respect to any Distribution Date (and the
related Interest Accrual Period) for the Class M-1, Class M-2, Class M-3,
Class B-1, Class B-2 and Class B-3 Certificates will be equal to the
Subordinate Net WAC.
As of the Cut-off Date, the Mortgage Loans had an aggregate Stated
Principal Balance of $668,566,212.57.
In consideration of the mutual agreements herein contained, the Depositor,
the Trustee, Securities Administrator and the Master Servicer hereby agree as
follows:
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ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
otherwise expressly provided or unless the context otherwise requires, shall
have the meanings specified in this Article.
Accepted Master Servicing Practices: With respect to any Mortgage Loan, as
applicable, either (x) those customary mortgage master servicing practices of
prudent mortgage servicing institutions that master service mortgage loans of
the same type and quality as such Mortgage Loan in the jurisdiction where the
related Mortgaged Property is located, to the extent applicable to the Trustee
or the Master Servicer (except in its capacity as successor to a Servicer), or
(y) as provided in the applicable Servicing Agreement, to the extent applicable
to any Servicer, but in no event below the standard set forth in clause (x).
Account: The Master Servicer Collection Account, Distribution Account and
any Protected Account as the context may require.
Accountant's Attestation: As defined in Section 3.17.
Accrued Certificate Interest: With respect to each Class of Certificates,
an amount equal to the interest accrued during the related Interest Accrual
Period on the Class Certificate Balance thereof at the then-applicable
Pass-Through Rate. Accrued Certificate Interest on any Class of Certificates
will be reduced by the amount of (i) Prepayment Interest Shortfalls (to the
extent not offset by the related Servicer or Master Servicer with a payment of
Compensating Interest as provided in Section 6.06), (ii) the interest portion of
Realized Losses allocated to such Class of Certificates pursuant to Section 6.02
and (iii) any other interest shortfalls not covered by the subordination
provided by the Class M Certificates and Class B Certificates, including
shortfalls as a result of the Relief Act or similar legislation or regulations,
with all such reductions allocated among all of the Certificates in proportion
to their respective amounts of Accrued Certificate Interest payable on such
Distribution Date which would have resulted absent such reductions.
Additional Disclosure Notification: As defined in Section 3.18(b).
Additional Form 10-D Disclosure: As defined in Section 3.18(e).
Additional Form 10-K Disclosure: As defined in Section 3.18(h).
Adverse REMIC Event: As defined in Section 9.12(g).
Affiliate: As to any Person, any other Person controlling, controlled by or
under common control with such Person. "Control" means the power to direct the
management and policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise. "Controlled" and
"Controlling" have meanings correlative to the foregoing. The Master Servicer
may conclusively presume that a Person is not an Affiliate of another Person
unless a Responsible Officer of the Master Servicer has actual knowledge to the
contrary.
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Agreement: This Pooling and Servicing Agreement, including the exhibits
hereto, and all amendments hereof and supplements hereto.
Applicable Credit Rating: For any long-term deposit or security, a credit
rating of AAA in the case of S&P or Aaa in the case of Xxxxx'x. For any
short-term deposit or security, a rating of A-l+ in the case of S&P or P-1 in
the case of Xxxxx'x.
Applicable Credit Support Percentage: With respect to any Class of
Subordinate Certificates, the sum of the related Class Subordination Percentages
of such Class and all Classes of Subordinate Certificates which have a lower
relative priority of payment than such Class.
Appraised Value: For any Mortgaged Property related to a Mortgage Loan, the
amount set forth as the appraised value of such Mortgaged Property in an
appraisal made for the mortgage originator in connection with its origination of
the related Mortgage Loan.
Assessment of Compliance: As defined in Section 3.17.
Assignment: An assignment of the Mortgage, notice of transfer or equivalent
instrument, in recordable form, sufficient under the laws of the jurisdiction
wherein the related Mortgaged Property is located to reflect of record the sale
of the Mortgage Loan to the Trustee for the benefit of Certificateholders, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages secured by Mortgaged
Properties located in the same county, if permitted by law and accompanied by an
Opinion of Counsel to that effect.
Assignment Agreements: The Countrywide Assignment Agreement, the GreenPoint
Assignment Agreement and the Washington Mutual Assignment Agreement, which are
attached hereto as Exhibits I-1, I-2 and I-3, respectively.
Assumed Final Distribution Date: For all Classes of Certificates, March 25,
2036, or if such day is not a Business Day, the next succeeding Business Day.
Auction: The one-time auction conducted by the Securities Administrator, as
described in Section 10.01(b) hereof.
Auction date: The date on which the Auction occurs.
Available Funds: For any Distribution Date, the sum of the Group I
Available Funds and the Group II Available Funds.
Average Loss Severity: With respect to any period and each Loan Group, the
fraction obtained by dividing (x) the aggregate amount of Realized Losses for
the related Mortgage Loans for such period by (y) the number of related Mortgage
Loans which had Realized Losses for such period.
Back-Up Certification: As defined in Section 3.18(k).
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Bankruptcy Code: The United States Bankruptcy Code, as amended as codified
in 11 U.S.C. Sections 101-1330.
Book-Entry Certificates: Any of the Certificates that shall be registered
in the name of the Depository or its nominee, the ownership of which is
reflected on the books of the Depository or on the books of a Person maintaining
an account with the Depository (directly, as a "Depository Participant", or
indirectly, as an indirect participant in accordance with the rules of the
Depository and as described in Section 5.02 hereof). On the Closing Date, the
Certificates (other than the Class A-R Certificate and the Private Certificates)
shall be Book-Entry Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a day
on which the New York Stock Exchange or Federal Reserve is closed or on which
banking institutions in the jurisdiction in which the Trustee, the Master
Servicer, any Servicer or the Securities Administrator are authorized or
obligated by law or executive order to be closed.
Certificate: Any mortgage pass-through certificate evidencing a beneficial
ownership interest in the Trust Fund signed and countersigned by the Securities
Administrator.
Certificate Group: Each of the Group I Certificates and the Group II
Certificates.
Certificateholder or Holder: The Person in whose name a Regular Certificate
is registered in the Certificate Register, except that a Disqualified
Organization or non-U.S. Person shall not be a Holder of the Class A-R
Certificate for any purpose hereof.
Certificate Owner: With respect to each Book-Entry Certificate, any
beneficial owner thereof.
Certificate Register: The register maintained pursuant to Section 5.02
hereof.
Certification Parties: As defined in Section 3.18(k).
Certifying Person: As defined in Section 3.18(k).
Class: Collectively, Certificates which have the same priority of payment
and bear the same class designation and the form of which is identical except
for variation in the Percentage Interest evidenced thereby.
Class I-A Certificate: Any of the Class I-A1 Certificates, Class I-A2
Certificates or Class A-R.
Class II-A Certificate: Any of the Class II-A1 Certificates or Class II-A2
Certificates.
Class A Certificate: Any of the Class I-A1, Class I-A2, Class II-A1, Class
II-A2 or Class A-R Certificates as designated on the face thereof substantially
in the form annexed (other than the Class A-R Certificate) hereto as Exhibit
A-1, executed by the Securities Administrator and authenticated and delivered by
the Securities Administrator, representing the right to distributions as set
forth herein and therein.
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Class A-R Certificate: The Class A-R Certificate executed, authenticated
and delivered by the Securities Administrator substantially in the form annexed
hereto as Exhibit A-3 and evidencing the ownership of the Class LT1-R Interest
and the residual interest in the Upper Tier REMIC.
Class A Certificateholder: Any Holder of a Class A Certificate.
Class B Certificate: Any one of the Class B-1, Class B-2 or Class B-3
Certificates as designated on the face thereof substantially in the form annexed
hereto as Exhibit A-2, executed by the Securities Administrator and
authenticated and delivered by the Securities Administrator, representing the
right to distributions as set forth herein and therein.
Class B Certificateholder: Any Holder of a Class B Certificate.
Class B Percentage: The Class B-1 Percentage, Class B-2 Percentage or Class
B-3 Percentage.
Class B-1 Percentage: With respect to any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class B-1 Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) immediately prior to such Distribution Date.
Class B-2 Percentage: With respect to any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class B-2 Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) immediately prior to such Distribution Date.
Class B-3 Percentage: With respect to any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class B-3 Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of all of the Mortgage Loans (or related REO
Properties) immediately prior to such Distribution Date.
Class Certificate Balance: With respect to any Certificate as of any date
of determination, the Class Certificate Balance of such Certificate on the
Distribution Date immediately prior to such date of determination, plus any
Subsequent Recoveries added to the Class Certificate Balance of such Certificate
pursuant to Section 6.01, and reduced by the aggregate of (a) all distributions
of principal made thereon on such immediately prior Distribution Date and (b)
without duplication of amounts described in clause (a) above, reductions in the
Class Certificate Balance thereof in connection with allocations thereto of
Realized Losses on the Mortgage Loans and Extraordinary Trust Fund Expenses on
such immediately prior Distribution Date (or, in the case of any date of
determination up to and including the initial Distribution Date, the initial
Class Certificate Balance of such Certificate, as stated on the face thereof);
provided, however, that the Class Certificate Balance of each Subordinate
Certificate of the Class of Subordinate Certificates outstanding with the
highest numerical designation at any given time shall be calculated to equal the
Percentage Interest
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evidenced by such Certificate multiplied by the excess, if any, of (A) the then
aggregate Stated Principal Balance of the Mortgage Loans over (B) the then
aggregate Class Certificate Balance of all other Classes of Certificates then
outstanding.
Class M Certificate: Any one of the Class M-1, Class M-2 or Class M-3
Certificates as designated on the face thereof substantially in the form annexed
hereto as Exhibit A-1, executed by the Securities Administrator and
authenticated and delivered by the Securities Administrator, representing the
right to distributions as set forth herein and therein.
Class M Certificateholder: Any Holder of a Class M Certificate.
Class M Percentage: The Class M-1 Percentage, Class M-2 Percentage or Class
M-3 Percentage.
Class M-1 Percentage: With respect to any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class M-1 Certificates immediately
prior to such date and the denominator of which is the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date.
Class M-2 Percentage: With respect to any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class M-2 Certificates immediately
prior to such date and the denominator of which is the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date.
Class M-3 Percentage: With respect to any Distribution Date, the lesser of
100% and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class M-3 Certificates immediately
prior to such date and the denominator of which is the aggregate Stated
Principal Balance of all of the Mortgage Loans (or related REO Properties)
immediately prior to such Distribution Date.
Class P Certificate: Any one of the Class P Certificates as designated on
the face thereof substantially in the forum of annexed hereto as Exhibit A-4,
executed by the Securities Administrator and authenticated and delivered by the
Securities Administrator representing the right to distributions of Prepayment
Penalties received on the GreenPoint Loans as set forth herein.
Class Subordination Percentage: With respect to any Distribution Date and
each Class of Subordinate Certificates, the fraction (expressed as a percentage)
the numerator of which is the Class Certificate Balance of such Class of
Subordinate Certificates immediately prior to such Distribution Date and the
denominator of which is the aggregate of the Class Certificate Balances of all
Classes of Certificates immediately prior to such Distribution Date.
Closing Date: March 31, 2006.
Code: The Internal Revenue Code of 1986, as amended.
-9-
Commission: The Securities and Exchange Commission.
Compensating Interest Payment: As defined in Section 6.06.
Cooperative: A corporation that has been formed for the purpose of
cooperative apartment ownership.
Cooperative Assets: Shares issued by Cooperatives, the related Cooperative
Lease and any other collateral securing the Cooperative Loans.
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 Assets, which lease or
agreement confers an exclusive right to the holder of such Cooperative Assets to
occupy such apartment.
Cooperative Loan: The indebtedness of a Mortgagor evidenced by a Mortgage
Note which is secured by Cooperative Assets and which is being sold to the
Depositor pursuant to this Agreement, the Mortgage Loans so sold being
identified in the Mortgage Loan Schedule.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
Corporate Trust Office: With respect to the Trustee, the principal
corporate trust office of the Trustee at which at any particular time its
corporate trust business in connection with this Agreement shall be
administered, which office at the date of the execution of this instrument is
located at HSBC Bank USA, National Association, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Issuer Services - Xxxxxxx Xxxxx Mortgage Investors, Inc.,
MLMI Series 2006-A1, or at such other address as the Trustee may designate from
time to time by notice to the Certificateholders, the Depositor and the Master
Servicer and with respect to the Securities Administrator, for Certificate
transfer purposes, Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attn: Corporate Trust Services - MLMI 2006-A1, and
for all other purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, 00000,
Attn: Corporate Trust Services - MLMI 2006-A1.
Corresponding Class or Classes of Certificates: With respect to each Lower
Tier REMIC Interest, the Class or Classes of Certificates appearing opposite
such Lower Tier REMIC Interest as described in the Preliminary Statement with
the corresponding designation.
Countrywide: Countrywide Home Loans Servicing LP or any successor thereto.
Countrywide Assignment Agreement: Shall mean the Assignment, Assumption and
Recognition Agreement, dated as of March 31, 2006, among MLBUSA, the Seller,
Countrywide Home Loans Servicing LP and Countrywide Home Loans, Inc., pursuant
to which the Countrywide Servicing Agreement (other than the rights to enforce
the representations and warranties with respect to the Countrywide Loans) were
assigned to the Depositor for the benefit of the Certificateholders.
-10-
Countrywide Loans: Shall mean those Mortgage Loans serviced by Countrywide
pursuant to the Countrywide Servicing Agreement.
Countrywide Servicing Agreement: Shall mean the Master Mortgage Loan
Purchase and Servicing Agreement dated as of November 1, 2004, between
Countrywide Home Loans Inc. as seller and MLBUSA as purchaser as any time
amended by Regulation AB.
Credit Support Depletion Date: The first Distribution Date on which the
Class Certificate Balances of the Subordinate Certificates are reduced to zero.
Curtailment: Any Principal Prepayment made by a Mortgagor which is not a
Principal Prepayment in Full.
Custodial Agreement: An agreement, dated as of the Closing Date among the
Depositor, the Master Servicer, the Securities Administrator, the Trustee and
the Custodian in substantially the form of Exhibit G hereto.
Custodian: Xxxxx Fargo Bank, N.A., or any successor custodian appointed
pursuant to the provisions hereof and of the Custodial Agreement.
Cut-off Date: March 1, 2006.
Debt Service Reduction: Any reduction of the Monthly Payments which a
Mortgagor is obligated to pay with respect to a Mortgage Loan as a result of any
proceeding under the Bankruptcy Code or any other similar state law or other
proceeding.
Defective Mortgage Loan: A Mortgage Loan replaced or to be replaced by one
or more Substitute Mortgage Loans.
Deficient Valuation: With respect to any Mortgage Loan, a valuation of the
related Mortgaged Property by a court of competent jurisdiction in an amount
less than the then outstanding principal balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy Code.
Definitive Certificates: As defined in Section 5.06.
Depositor: Xxxxxxx Xxxxx Mortgage Investors, Inc., a Delaware corporation,
or any successor in interest.
Depository: The Depository Trust Company, the nominee of which is Cede &
Co., or any successor thereto.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Designated Depository Institution: A depository institution (commercial
bank, federal savings bank, mutual savings bank or savings and loan association)
or trust company (which may
-11-
include the Trustee), the deposits of which are fully insured by the FDIC to the
extent provided by law.
Determination Date: With respect to each Mortgage Loan, the Determination
Date as defined in the related Servicing Agreement.
Disqualified Organization: A "disqualified organization" as defined in
Section 860 E(e)(5) of the Code.
Distribution Account: The trust account or accounts created and maintained
pursuant to Section 4.04, which shall be denominated "Xxxxx Fargo Bank, National
Association, as Securities Administrator for HSBC Bank USA, National
Association, as Trustee f/b/o holders of Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, MLMI Series 2006-A1 - Distribution Account."
The Distribution Account shall be an Eligible Account.
Distribution Account Deposit Date: The Business Day prior to each
Distribution Date.
Distribution Date: The 25th day of any month, beginning in April 2006, or,
if such 25th day is not a Business Day, the Business Day immediately following.
Due Date: With respect to each Mortgage Loan, the date in each month on
which its Monthly Payment is due if such due date is the first day of a month
and otherwise is deemed to be the first day of the following month or such other
date specified in the related Servicing Agreement.
Due Period: With respect to any Distribution Date and each Mortgage Loan,
the period commencing on the second day of the month preceding the month in
which the Distribution Date occurs and ending at the close of business on the
first day of the month in which the Distribution Date occurs.
Eligible Account: Any of (i) a segregated account maintained with a federal
or state chartered depository institution (A) the short-term obligations of
which are rated A-1 or better by S&P and P-1 by Xxxxx'x at the time of any
deposit therein or (B) insured by the FDIC (to the limits established by such
Corporation), the uninsured deposits in which account are otherwise secured such
that, as evidenced by an Opinion of Counsel (obtained by the Person requesting
that the account be held pursuant to this clause (i)) delivered to the
Securities Administrator prior to the establishment of such account, the
Certificateholders will have a claim with respect to the funds in such account
and a perfected first priority security interest against any collateral (which
shall be limited to Permitted Investments, each of which shall mature not later
than the Business Day immediately preceding the Distribution Date next following
the date of investment in such collateral or the Distribution Date if such
Permitted Investment is an obligation of the institution that maintains the
Distribution Account) securing such funds that is superior to claims of any
other depositors or general creditors of the depository institution with which
such account is maintained, (ii) a segregated trust account or accounts
maintained with a federal or state chartered depository institution or trust
company with trust powers acting in its fiduciary capacity or (iii) a segregated
account or accounts of a depository institution acceptable to the Rating
Agencies (as evidenced in writing by the Rating Agencies that use of any such
account as the Distribution Account will not have an adverse effect on the
then-current ratings assigned to
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the Classes of the Certificates then rated by the Rating Agencies). Eligible
Accounts may bear interest.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that would satisfy the requirements of
Prohibited Transaction Exemption 90-29, Exemption Application No. D-8012, 55
Fed. Reg. 21459 (1990), as amended, granted to the Underwriter by the United
States Department of Labor (or any other applicable underwriter's exemption
granted by the United States Department of Labor), except, in relevant part, for
the requirement that the certificates have received a rating at the time of
acquisition that is in one of the three (or four, in the case of a "designated
transaction") highest generic rating categories by at least one of the Rating
Agencies.
ERISA Restricted Certificates: Any of the Class B-1, Class B-2, Class B-3,
or Class P Certificates, and any other Certificate, as long as the acquisition
and holding of such Certificate is not covered by and exempt under an
underwriter's exemption.
Event of Default: An event of default described in Section 8.01.
Excess Liquidation Proceeds: To the extent that such amount is not required
by law to be paid to the related Mortgagor, the amount, if any, by which
Liquidation Proceeds with respect to a Liquidated Mortgage Loan exceed the sum
of (i) the Outstanding Principal Balance of such Mortgage Loan and accrued but
unpaid interest at the related Mortgage Interest Rate through the last day of
the month in which the related Liquidation Date occurs, plus (ii) related
Liquidation Expenses.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Extraordinary Loss: Any Realized Loss or portion thereof caused by or
resulting from:
(i) nuclear or chemical reaction or nuclear radiation or radioactive
or chemical contamination, all whether controlled or uncontrolled and
whether such loss be direct or indirect, proximate or remote;
(ii) hostile or warlike action in time of peace or war, including
action in hindering, combating or defending against an actual, impending or
expected attack by any government or sovereign power, de jure or de facto,
or by any authority maintaining or using military, naval or air forces, or
by military, naval or air forces, or by an agent of any such government,
power, authority or forces;
(iii) any weapon of war employing atomic fission or radioactive forces
whether in time of peace or war, and
(iv) insurrection, rebellion, revolution, civil war, usurped power or
action taken by governmental authority in hindering, combating or defending
against such an occurrence, seizure or destruction under quarantine or
customs regulations, confiscation
-13-
by order of any government or public authority, or risks of contraband or
illegal transactions or trade.
Extraordinary Trust Fund Expenses: Any amounts reimbursable to the Master
Servicer or the Depositor pursuant to this Agreement, including but not limited
to Sections 4.03, 4.05 and 7.04, any amounts reimbursable to the Trustee and the
Securities Administrator from the Trust Fund pursuant to this Agreement,
including but not limited to Section 9.05, and any other costs, expenses,
liabilities and losses borne by the Trust Fund (exclusive of any cost, expense,
liability or loss that is specific to a particular Mortgage Loan or REO Property
and is taken into account in calculating a Realized Loss in respect thereof) for
which the Trust Fund has not and, in the reasonable good faith judgment of the
Securities Administrator, shall not, obtain reimbursement or indemnification
from any other Person.
Xxxxxx Xxx: Federal National Mortgage Association or any successor thereto.
FDIC: Federal Deposit Insurance Corporation or any successor thereto.
Final Certification: The certification substantially in the form of Exhibit
Two to the Custodial Agreement.
Fitch: Fitch Ratings or its successor in interest.
Form 8-K Disclosure Information: As defined in Section 3.18(a).
Xxxxxxx Mac: Xxxxxxx Mac, formerly the Federal Home Loan Mortgage
Corporation, or any successor thereto.
Global Certificate: Any Private Certificate registered in the name of the
Depository or its nominee, beneficial interests in which are reflected on the
books of the Depository or on the books of a Person maintaining an account with
such Depository (directly or as an indirect participant in accordance with the
rules of such depository).
GreenPoint: GreenPoint Mortgage Funding, Inc., or any successor thereto.
GreenPoint Assignment Agreement: Shall mean the Assignment, Assumption and
Recognition Agreement, dated as of March 31, 2006, among GreenPoint, the
Depositor and the Seller pursuant to which the GreenPoint Servicing Agreement
and the rights of the Seller thereunder (other than the rights to enforce the
representations and warranties with respect to the GreenPoint Loans) were
assigned to the Depositor for the benefit of the Certificateholders.
GreenPoint Loans: Shall mean those Mortgage Loans serviced by GreenPoint
pursuant to the GreenPoint Servicing Agreement.
GreenPoint Servicing Agreement: The Master Mortgage Loan Purchase and
Servicing Agreement, dated as of April 1, 2003, among Xxxxxxx Xxxxx Mortgage
Holdings Inc., Terwin Advisors LLC and GreenPoint, as amended.
-14-
Gross Margin: As to each Mortgage Loan, the fixed percentage set forth in
the related Mortgage Note and indicated on the Mortgage Loan Schedule which
percentage is added to the related Index on each Interest Adjustment Date to
determine (subject to rounding, the minimum and maximum Mortgage Interest Rate
and the Periodic Rate Cap) the Mortgage Interest Rate until the next Interest
Adjustment Date.
Group I Available Funds: With respect to any Distribution Date and the
Group I Mortgage Loans, an amount equal to the excess of (i) the sum of (a) the
aggregate of the related Monthly Payments received on or prior to the related
Determination Date, (b) Liquidation Proceeds, Insurance Proceeds, Principal
Prepayments, Subsequent Recoveries and other unscheduled recoveries of principal
and interest in respect of the Group I Mortgage Loans during the related
Prepayment Period, (c) the aggregate of any amounts received in respect of a
related REO Property withdrawn from any Protected Account and deposited in the
Master Servicer Collection Account for such Distribution Date, (d) the aggregate
of any amounts deposited in the Master Servicer Collection Account by the
related Servicer or the Master Servicer in respect of related Prepayment
Interest Shortfalls for such Distribution Date and (e) the aggregate of any
related Monthly Advances made by the related Servicer or the Master Servicer for
such Distribution Date, over (ii) the sum of (a) related amounts reimbursable or
payable to the related Servicer or the Master Servicer pursuant to Sections 4.03
and 4.05, (b) related amounts deposited in the Master Servicer Collection
Account or the Distribution Account, as the case may be, in error and (c) any
Extraordinary Trust Fund Expenses.
Group I Certificates: Shall mean the Class I-A Certificates.
Group I Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Group I Senior Accelerated Distribution Percentage: With respect to any
Distribution Date, the percentage indicated below:
Group I Senior Accelerated
Distribution Date Distribution Percentage
----------------- --------------------------
April 2006 through March 2013 100%
April 2013 through March 2014 Group I Senior Percentage, plus 70% of the
Group I Subordinate Percentage
April 2014 through March 2015 Group I Senior Percentage, plus 60% of the
Group I Subordinate Percentage
April 2015 through March 2016 Group I Senior Percentage, plus 40% of the
Group I Subordinate Percentage
April 2016 through March 2017 Group I Senior Percentage, plus 20% of the
Group I Subordinate Percentage
April 2017 and thereafter Group I Senior Percentage
-15-
provided, however, (i) that any scheduled reduction to the Group I Senior
Accelerated Distribution Percentage described above shall not occur as of any
Distribution Date unless either (a)(1)(x) the outstanding principal balance of
Mortgage Loans delinquent 60 days or more (including foreclosure and REO
Property) averaged over the last six months as a percentage of the aggregate
outstanding Class Certificate Balance of the Class M Certificates and the Class
B Certificates, is less than 50%, or (y) the outstanding principal balance of
Mortgage Loans delinquent 60 days or more (including foreclosure and REO
Property) averaged over the last six months, as a percentage of the aggregate
outstanding principal balance of all Mortgage Loans averaged over the last six
months, does not exceed 2% and (2) Realized Losses on the Mortgage Loans to date
for such Distribution Date if occurring during the eighth, ninth, tenth,
eleventh or twelfth year (or any year thereafter) after the Closing Date are
less than 30%, 35%, 40%, 45% or 50%, respectively, of the sum of the Initial
Class Certificate Balances of the Class M Certificates and Class B Certificates
or (b) (1) the aggregate outstanding principal balance of the Mortgage Loans
delinquent 60 days or more (including foreclosure and REO Property) averaged
over the last six months, as a percentage of the aggregate outstanding principal
balance of all Mortgage Loans averaged over the last six months, does not exceed
4% and (2) Realized Losses on the Mortgage Loans on or prior to such
Distribution Date if occurring during the eighth, ninth, tenth, eleventh or
twelfth year (or any year thereafter) after the Closing Date are less than 10%,
15%, 20%, 25% or 30%, respectively, of the sum of the Initial Class Certificate
Balances of the Class M Certificates and Class B Certificates and (ii) that for
any Distribution Date on which the Group I Senior Percentage is greater than the
Original Group I Senior Percentage, the Group I Senior Accelerated Distribution
Percentage for such Distribution Date shall be 100%. Notwithstanding the
foregoing, upon the reduction of the aggregate Class Certificate Balance of the
Class I-A Certificates to zero, the Group I Senior Accelerated Distribution
Percentage will equal 0%.
In addition, on any Distribution Date on or after the Distribution Date
occurring in April 2009, if the current weighted average of the Subordinate
Percentages for the Certificates is equal to or greater than two times the
initial weighted average of the Subordinate Percentages for the Certificates,
and (a) the outstanding principal balance of the Mortgage Loans delinquent 60
days or more (including for this purpose any such Mortgage Loans in foreclosure
or bankruptcy and such Mortgage Loans with respect to which the related
Mortgaged Property has been acquired by the Issuing Entity), averaged over the
last six months, as a percentage of the Subordinate Percentage for that
Distribution Date times the aggregate Stated Principal Balance of the Mortgage
Loans, does not exceed 50% and (b) cumulative Realized Losses on the Mortgage
Loans do not exceed 20% of the initial Subordinate Percentage times the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date,
then, in each case, the Group I Senior Accelerated Distribution Percentage for
such Distribution Date will be equal to, prior to the Distribution Date
occurring in April 2009, the Group I Senior Percentage plus 50% of the
Subordinate Percentage and, on or after the Distribution Date occurring in April
2009, the Group I Senior Percentage (such test for Loan Group I, the "Loan Group
I Two Times Test").
Group I Senior Percentage: As of any Distribution Date, the lesser of 100%
and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class I-A Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of all of the Group I Mortgage Loans or related REO
Properties immediately prior to such Distribution Date.
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Group I Senior Principal Distribution Amount: As to any Distribution Date,
the lesser of (a) the balance of the Group I Available Funds remaining after the
distribution of all amounts required to be distributed pursuant to subclause
first and second of Section 6.01(A) and (b) the sum of the following:
(A) the Group I Senior Percentage for such Distribution Date
times the sum of the following:
(1) the principal portion of each Monthly Payment due during
the related Due Period on each Outstanding Mortgage Loan in Loan Group
I, whether or not received on or prior to the related Determination
Date, minus the principal portion of any Debt Service Reduction;
(2) the Stated Principal Balance of any Group I Mortgage
Loan repurchased during the related Prepayment Period pursuant to
Section 2.02 or 2.03 hereof or pursuant to the related Servicing
Agreement; and
(3) the principal portion of all other unscheduled
collections, including Subsequent Recoveries (other than Principal
Prepayments in Full and Curtailments and amounts received in
connection with the liquidation or disposition of a Group I Mortgage
Loan, including without limitation Insurance Proceeds, Liquidation
Proceeds and REO Proceeds) received during the related Prepayment
Period to the extent applied by the related Servicer as recoveries of
principal of the related Mortgage Loan pursuant to related Servicing
Agreement;
(B) with respect to the liquidation or other disposition of a
Group I Mortgage Loan which occurred during the related Prepayment Period
and did not result in any Extraordinary Losses, an amount equal to the
lesser of (a) the Group I Senior Percentage for such Distribution Date
times the Stated Principal Balance of such Group I Mortgage Loan and (b)
the Group I Senior Accelerated Distribution Percentage for such
Distribution Date times the related unscheduled collections (including
without limitation Insurance Proceeds, Liquidation Proceeds and REO
Proceeds) to the extent applied by the related Servicer or the Master
Servicer as recoveries of principal of the related Mortgage Loan pursuant
to the related Servicing Agreement or this Agreement;
(C) the Group I Senior Accelerated Distribution Percentage for
such Distribution Date times the aggregate of all Principal Prepayments in
Full and Curtailments received in the related Prepayment Period with
respect to the Group I Mortgage Loans;
(D) any amounts described in clauses (A), (B) or (C) of this
definition, as determined for any previous Distribution Date, which remain
unpaid after application of amounts previously distributed pursuant to this
clause (D) to the extent that such amounts are not attributable to Realized
Losses which have been allocated to the Class M Certificates or Class B
Certificates;
-17-
Group I Subordinate Amount: On any date of determination, the excess of the
aggregate Stated Principal Balance of the Group I Mortgage Loans as of such date
over the aggregate Class Certificate Balances of the Group I Certificates then
outstanding.
Group II Available Funds: With respect to any Distribution Date and the
Group II Mortgage Loans, an amount equal to the excess of (i) the sum of (a) the
aggregate of the related Monthly Payments received on or prior to the related
Determination Date, (b) Liquidation Proceeds, Insurance Proceeds, Principal
Prepayments, Subsequent Recoveries and other unscheduled recoveries of principal
and interest in respect of the Group II Mortgage Loans during the related
Prepayment Period, (c) the aggregate of any amounts received in respect of a
related REO Property withdrawn from any Protected Account and deposited in the
Master Servicer Collection Account for such Distribution Date, (d) the aggregate
of any amounts deposited in the Master Servicer Collection Account by the
related Servicer or the Master Servicer in respect of related Prepayment
Interest Shortfalls for such Distribution Date and (e) the aggregate of any
related Monthly Advances made by the related Servicer or the Master Servicer for
such Distribution Date, over (ii) the sum of (a) related amounts reimbursable or
payable to the related Servicer or the Master Servicer pursuant to Sections 4.03
and 4.05, (b) related amounts deposited in the Master Servicer Collection
Account or the Distribution Account, as the case may be, in error and (c) any
Extraordinary Trust Fund Expenses.
Group II Certificates: Shall mean the Class II-A Certificates.
Group II Mortgage Loans: The Mortgage Loans identified as such on the
Mortgage Loan Schedule.
Group II Senior Accelerated Distribution Percentage: With respect to any
Distribution Date, the percentage indicated below:
Group II Senior Accelerated
Distribution Date Distribution Percentage
----------------- ---------------------------
April 2006 through March 2013 100%
April 2013 through March 2014 Group II Senior Percentage, plus 70% of the
Group II Subordinate Percentage
April 2014 through March 2015 Group II Senior Percentage, plus 60% of the
Group II Subordinate Percentage
April 2015 through March 2016 Group II Senior Percentage, plus 40% of the
Group II Subordinate Percentage
April 2016 through March 2017 Group II Senior Percentage, plus 20% of the
Group II Subordinate Percentage
April 2017 and thereafter Group II Senior Percentage
provided, however, (i) that any scheduled reduction to the Group II Senior
Accelerated Distribution Percentage described above shall not occur as of any
Distribution Date unless either (a)(1)(x) the outstanding principal balance of
Mortgage Loans delinquent 60 days or more
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(including foreclosure and REO Property) averaged over the last six months as a
percentage of the aggregate outstanding Class Certificate Balance of the Class M
Certificates and the Class B Certificates, is less than 50%, or (y) the
outstanding principal balance of Mortgage Loans delinquent 60 days or more
(including foreclosure and REO Property) averaged over the last six months, as a
percentage of the aggregate outstanding principal balance of all Mortgage Loans
averaged over the last six months, does not exceed 2% and (2) Realized Losses on
the Mortgage Loans to date for such Distribution Date if occurring during the
eighth, ninth, tenth, eleventh or twelfth year (or any year thereafter) after
the Closing Date are less than 30%, 35%, 40%, 45% or 50%, respectively, of the
sum of the Initial Class Certificate Balances of the Class M Certificates and
Class B Certificates or (b) (1) the aggregate outstanding principal balance of
the Mortgage Loans delinquent 60 days or more (including foreclosure and REO
Property) averaged over the last six months, as a percentage of the aggregate
outstanding principal balance of all Mortgage Loans averaged over the last six
months, does not exceed 4% and (2) Realized Losses on the Mortgage Loans on or
prior to such Distribution Date if occurring during the eighth, ninth, tenth,
eleventh or twelfth year (or any year thereafter) after the Closing Date are
less than 10%, 15%, 20%, 25% or 30%, respectively, of the sum of the Initial
Class Certificate Balances of the Class M Certificates and Class B Certificates
and (ii) that for any Distribution Date on which the Group II Senior Percentage
is greater than the Original Group II Senior Percentage, the Group II Senior
Accelerated Distribution Percentage for such Distribution Date shall be 100%.
Notwithstanding the foregoing, upon the reduction of the aggregate Class
Certificate Balance of the Class II-A Certificates to zero, the Group II Senior
Accelerated Distribution Percentage will equal 0%.
In addition, on any Distribution Date on or after the Distribution Date
occurring in April 2009, if the current weighted average of the Subordinate
Percentages for the Certificates is equal to or greater than two times the
initial weighted average of the Subordinate Percentages for the Certificates,
and (a) the outstanding principal balance of the Mortgage Loans delinquent 60
days or more (including for this purpose any such Mortgage Loans in foreclosure
or bankruptcy and such Mortgage Loans with respect to which the related
Mortgaged Property has been acquired by the Trust), averaged over the last six
months, as a percentage of the Subordinate Percentage for that Distribution Date
times the aggregate Stated Principal Balance of the Mortgage Loans, does not
exceed 50% and (b) cumulative Realized Losses on the Mortgage Loans do not
exceed 20% of the initial Subordinate Percentage times the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date, then, in each
case, the Group II Senior Accelerated Distribution Percentage for such
Distribution Date will be equal to, prior to the Distribution Date occurring in
April 2009, the Group II Senior Percentage plus 50% of the Subordinate
Percentage and, on or after the Distribution Date occurring in April 2009, the
Group II Senior Percentage (such test for Loan Group II, the "Loan Group II Two
Times Test").
Group II Senior Percentage: As of any Distribution Date, the lesser of 100%
and a fraction, expressed as a percentage, the numerator of which is the
aggregate Class Certificate Balance of the Class II-A Certificates immediately
prior to such Distribution Date and the denominator of which is the aggregate
Stated Principal Balance of all of the Group II Mortgage Loans or related REO
Properties immediately prior to such Distribution Date.
-19-
Group II Senior Principal Distribution Amount: As to any Distribution Date,
the lesser of (a) the balance of the Group II Available Funds remaining after
the distribution of all amounts required to be distributed pursuant to Section
6.01(B) and (b) the sum of the following:
(A) the Group II Senior Percentage for such Distribution Date
times the sum of the following:
(1) the principal portion of each Monthly Payment due during
the related Due Period on each Outstanding Mortgage Loan in Loan Group
II, whether or not received on or prior to the related Determination
Date, minus the principal portion of any Debt Service Reduction;
(2) the Stated Principal Balance of any Group II Mortgage
Loan repurchased during the related Prepayment Period pursuant to
Section 2.02 or 2.03 hereof or the related Servicing Agreement; and
(3) the principal portion of all other unscheduled
collections, including Subsequent Recoveries (other than Principal
Prepayments in Full and Curtailments and amounts received in
connection with the liquidation or disposition of a Group II Mortgage
Loan, including without limitation Insurance Proceeds, Liquidation
Proceeds and REO Proceeds) received during the related Prepayment
Period to the extent applied by the related Servicer as recoveries of
principal of the related Mortgage Loan pursuant to related Servicing
Agreement;
(B) with respect to the liquidation or other disposition of a
Group II Mortgage Loan which occurred during the related Prepayment Period
and did not result in any Extraordinary Losses, an amount equal to the
lesser of (a) the Group II Senior Percentage for such Distribution Date
times the Stated Principal Balance of such Group II Mortgage Loan and (b)
the Group II Senior Accelerated Distribution Percentage for such
Distribution Date times the related unscheduled collections (including
without limitation Insurance Proceeds, Liquidation Proceeds and REO
Proceeds) to the extent applied by the related Servicer or the Master
Servicer as recoveries of principal of the related Mortgage Loan pursuant
to the related Servicing Agreement or this Agreement;
(C) the Group II Senior Accelerated Distribution Percentage for
such Distribution Date times the aggregate of all Principal Prepayments in
Full and Curtailments received in the related Prepayment Period with
respect to the Group II Mortgage Loans;
(D) any amounts described in clauses (A), (B) or (C) of this
definition, as determined for any previous Distribution Date, which remain
unpaid after application of amounts previously distributed pursuant to this
clause (D) to the extent that such amounts are not attributable to Realized
Losses which have been allocated to the Class M Certificates or Class B
Certificates;
Group II Subordinate Amount: On any date of determination, the excess of
the aggregate Stated Principal Balance of the Group II Mortgage Loans as of such
date over the aggregate Class Certificate Balances of the Group II Certificates
then outstanding.
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Highest Priority: As of any date of determination, the Class of Subordinate
Certificates then outstanding with the earliest priority for payments pursuant
to Section 6.01, in the following order: Class M-1, Class M-2, Class M-3, Class
B-1, Class B-2 and Class B-3 Certificates.
Indemnified Persons: The Trustee, the Master Servicer, the Depositor and
the Securities Administrator and their officers, directors, agents and employees
and, with respect to the Trustee, any separate co-trustee and its officers,
directors, agents and employees.
Independent: When used with respect to any specified Person, any such
Person who (a) is in fact independent of the Depositor, the Master Servicer and
their respective Affiliates, (b) does not have any direct financial interest in
or any material indirect financial interest in the Depositor or the Master
Servicer or any Affiliate thereof, and (c) is not connected with the Depositor
or the Master Servicer or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; provided, however, that a Person shall not fail to be Independent of
the Depositor or the Master Servicer or any Affiliate thereof merely because
such Person is the beneficial owner of 1% or less of any class of securities
issued by the Depositor or the Master Servicer or any Affiliate thereof, as the
case may be.
Index: The index, if any, specified in a Mortgage Note by reference to
which the related Mortgage Interest Rate will be adjusted from time to time.
Individual Certificate: Any Private Certificate registered in the name of
the Holder other than the Depository or its nominee.
Initial Certification: The certification substantially in the form of
Exhibit One to the Custodial Agreement.
Initial Class Certificate Balance: With respect to any Regular Certificate,
the amount designated "Initial Class Certificate Balance" on the face thereof.
Initial Optional Termination Date: The first Distribution Date following
the date on which the aggregate Stated Principal Balance of the Mortgage Loans
is less than 5% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date.
Initial Subordinate Class Percentage: With respect to each Class of
Subordinate Certificates, an amount which is equal to the initial aggregate
Class Certificate Balance of such Class of Subordinate Certificates divided by
the aggregate Stated Principal Balance of all the Mortgage Loans as of the
Cut-off Date as follows:
Class M-1: 3.80%
Class M-2: 1.30%
Class M-3: 0.80%
Class B-1: 0.75%
Class B-2: 0.60%
Class B-3: 0.45%
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Insurance Policy: With respect to any Mortgage Loan, any standard hazard
insurance policy, flood insurance policy or title insurance policy.
Insurance Proceeds: Amounts paid by the insurer under any Insurance Policy
covering any Mortgage Loan or Mortgaged Property other than amounts required to
be paid over to the Mortgagor pursuant to law or the related Mortgage Note or
Security Instrument and other than amounts used to repair or restore the
Mortgaged Property or to reimburse insured expenses.
Interest Accrual Period: With respect to each Distribution Date, for each
Class of Certificates, the calendar month preceding the month in which such
Distribution Date occurs.
Interest Adjustment Date: With respect to a Mortgage Loan, the date, if
any, specified in the related Mortgage Note on which the Mortgage Interest Rate
is subject to adjustment.
Investor Representation Letter: As defined in Section 5.02(b).
Issuing Entity: Xxxxxxx Xxxxx Mortgage Investors Trust, Series 2006-A1.
Latest Possible Maturity Date: The Distribution Date in March 2036.
Liquidated Mortgage Loan: Any defaulted Mortgage Loan (including any REO
Property) as to which the related Servicer has determined that all amounts it
expects to recover from or on account of such Mortgage Loan have been recovered.
Liquidation Date: With respect to any Liquidated Mortgage Loan, the date on
which the related Servicer has certified that such Mortgage Loan has become a
Liquidated Mortgage Loan.
Liquidation Expenses: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the Master
Servicer or the related Servicer in connection with the liquidation of such
Mortgage Loan and the related Mortgaged Property, such expenses including (a)
property protection expenses, (b) property sales expenses, (c) foreclosure and
sale costs, including court costs and reasonable attorneys' fees, and (d)
similar expenses reasonably paid or incurred in connection with liquidation.
Liquidation Proceeds: With respect to any Mortgage Loan, cash received in
connection with the liquidation of a defaulted Mortgage Loan, whether through
trustee's sale, foreclosure sale or otherwise, and amounts received through
Insurance Proceeds and condemnation proceeds.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the fraction,
expressed as a percentage, the numerator of which is the original principal
balance of the related Mortgage Loan and the denominator of which is the
Original Value of the related Mortgaged Property.
Loan Group: Loan Group I or Loan Group II, as applicable.
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Loan Group I: The group of Mortgage Loans designated as belonging to Loan
Group I on the Mortgage Loan Schedule.
Loan Group I Net WAC: The weighted average of the Net Mortgage Rates on the
Group I Mortgage Loans weighted on the basis of the respective Stated Principal
Balance of each such Mortgage Loan as of the beginning of the Due Period
immediately preceding such Distribution Date.
Loan Group I Two Times Test: The meaning specified in the definition of
Group I Senior Principal Distribution Amount.
Loan Group II: The group of Mortgage Loans designated as belonging to Loan
Group II on the Mortgage Loan Schedule.
Loan Group II Net WAC: The weighted average of the Net Mortgage Rates on
the Group II Mortgage Loans weighted on the basis of the respective Stated
Principal Balance of each such Mortgage Loan as of the beginning of the Due
Period immediately preceding such Distribution Date.
Loan Group II Two Times Test: The meaning specified in the definition of
Group II Senior Principal Distribution Amount.
Lower Priority: As of any date of determination and with respect to any
Class of Subordinate Certificates, any other Class of Subordinate Certificates
then outstanding with a later priority for payments pursuant to Section 6.01.
Lower Tier Regular Interests: Any of the REMIC 1 Regular Interests.
Lower Tier REMIC Interests: Any of the REMIC 1 Interests.
Lowest Priority: As of any date of determination, the Class of Subordinate
Certificates then outstanding with the latest priority for payments pursuant to
Section 6.01, in the following order: Class B-3, Class B-2, Class B-1, Class
M-3, Class M-2 and Class M-1 Certificates.
Lost Notes: The original Mortgage Notes that have been lost, as indicated
on the Mortgage Loan Schedule.
LPMI Rate: Any mortgage insurance premium payable monthly at a per annum
rate on the Outstanding Principal Balance of the related Mortgage Loan.
Majority Certificateholders: The Holders of Certificates evidencing at
least 51% of the Voting Rights.
Master Servicer: Xxxxx Fargo Bank, N.A. including its respective successors
in interest who meet the qualifications of the Servicing Agreements and this
Agreement.
Master Servicer Collection Account: The trust account or accounts created
and maintained pursuant to Section 4.02, which shall be denominated "Xxxxx Fargo
Bank, National
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Association as Master Servicer for HSBC Bank USA, National Association, as
Trustee f/b/o holders of Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, MLMI Series 2006-A1 - Master Servicer Collection
Account." The Master Servicer Collection Account shall be an Eligible Account.
Master Servicing Compensation: The meaning specified in Section 3.14.
Maximum Lifetime Mortgage Rate: The maximum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes in
the applicable Index.
Minimum Lifetime Mortgage Rate: The minimum level to which a Mortgage
Interest Rate can adjust in accordance with its terms, regardless of changes in
the applicable Index.
MLBUSA: Xxxxxxx Xxxxx Bank, USA.
MLMLI: Xxxxxxx Xxxxx Mortgage Lending, Inc., a Delaware corporation, or any
successor in interest.
Monthly Advance: An advance of principal or interest required to be made by
the applicable Servicer pursuant to the related Servicing Agreement or the
Master Servicer pursuant to Section 6.05.
Monthly Payment: With respect to any Mortgage Loan, the scheduled monthly
payment of principal and interest on such Mortgage Loan which is payable by the
related Mortgagor from time to time under the related Mortgage Note, determined:
(a) after giving effect to (i) any Deficient Valuation and/or Debt Service
Reduction with respect to such Mortgage Loan and (ii) any reduction in the
amount of interest collectible from the related Mortgagor pursuant to the Relief
Act; (b) without giving effect to any extension granted or agreed to by the
related Servicer pursuant to related Servicing Agreement; and (c) on the
assumption that all other amounts, if any, due under such Mortgage Loan are paid
when due.
Monthly Principal: The principal portion of any Monthly Payment.
Monthly Statement: The statement distributed to Certificateholders pursuant
to Section 6.04.
Moody's: Xxxxx'x Investors Service, Inc. or its successor in interest.
Mortgage: The mortgage, deed of trust or other instrument creating a first
lien on, or first priority security interest in, a Mortgaged Property securing a
Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01(b) pertaining
to a particular Mortgage Loan and any additional documents required to be added
to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate at which interest accrues from time
to time on any Mortgage Loan pursuant to the related Mortgage Note, which rate
is equal to the "Mortgage Interest Rate" set forth with respect thereto on the
Mortgage Loan Schedule.
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Mortgage Loan: A mortgage loan transferred and assigned to the Trustee
pursuant to Section 2.01 or Section 2.04 and held as a part of the Trust Fund,
as identified in the Mortgage Loan Schedule, including a mortgage loan the
property securing which has become an REO Property.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase Agreement
dated as of March 31, 2006, between the Seller and the Depositor, as purchaser,
and all amendments thereof and supplements thereto, attached hereto as Exhibit
J.
Mortgage Loan Schedule: The schedule, attached hereto as Exhibit B with
respect to the Mortgage Loans and as amended from time to time to reflect the
repurchase or substitution of Mortgage Loans pursuant to this Agreement.
MortgageIt: MortgageIt, Inc. or any successor thereto.
MortgageIt Loans: Shall mean those loans originated by MortgageIt and
serviced by Washington Mutual pursuant to the Washington Mutual Servicing
Agreement.
Mortgage Note: The originally executed note or other evidence of the
indebtedness of a Mortgagor under the related Mortgage Loan.
Mortgage Pool: The pool of Mortgage Loans, identified on Exhibit B from
time to time, and any REO Properties acquired in respect thereof.
Mortgaged Property: Land and improvements securing the indebtedness of a
Mortgagor under the related Mortgage Loan or, in the case of REO Property, such
REO Property.
Mortgagor: The obligor on a Mortgage Note.
Net Liquidation Proceeds: As to any Liquidated Mortgage Loan, Liquidation
Proceeds net of (i) Liquidation Expenses which are payable therefrom by the
related Servicer or the Master Servicer in accordance with the related Servicing
Agreement or this Agreement and (ii) unreimbursed advances by the related
Servicer or the Master Servicer and Monthly Advances.
Net Mortgage Rate: With respect to each Mortgage Loan, the Mortgage
Interest Rate in effect from time to time less the Servicing Fee Rate (expressed
as a per annum rate) and any related LPMI Rate.
Net WAC: The weighted average of the Net Mortgage Rates on the Mortgage
Loans weighted on the basis of the respective Stated Principal Balance of each
such Mortgage Loan as of the beginning of the Due Period immediately preceding
such Distribution Date.
Nonrecoverable Advance: With respect to any Mortgage Loan any advance or
Monthly Advance (i) which was previously made or is proposed to be made by the
applicable Servicer, or the Master Servicer as successor Servicer, or the
Trustee as successor Master Servicer and (ii) which, in the good faith judgment
of the Master Servicer, the Trustee or applicable Servicer, will not or, in the
case of a proposed advance or Monthly Advance, would not, be ultimately
recoverable by the Master Servicer, the Trustee (as successor Master Servicer)
or applicable
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Servicer from Liquidation Proceeds, Insurance Proceeds or future payments on the
Mortgage Loan for which such advance or Monthly Advance was made.
Offered Certificate: Any Senior Certificate or Offered Subordinate
Certificate.
Offered Subordinate Certificates: The Class M-l, Class M-2 and Class M-3
Certificates.
Officer's Certificate: A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President or Assistant
Vice President or other authorized officer of the Master Servicer or the
Depositor, as applicable, and delivered to the Trustee, as required by this
Agreement.
Opinion of Counsel: A written opinion of counsel who is or are acceptable
to the Trustee and who, unless required to be Independent (an "Opinion of
Independent Counsel"), may be internal counsel for the Master Servicer or the
Depositor.
Optional Termination: The termination of the Trust Fund hereunder pursuant
to Section 10.01(a) hereof.
Optional Termination Amount: The amount received by the Securities
Administrator in connection with any purchase of all of the Mortgage Loans and
REO Properties pursuant to Section 10.01(b) hereof.
Optional Termination Price: On any date after the Initial Optional
Termination Date, an amount equal to the sum of (A) the aggregate Stated
Principal Balance of each Mortgage Loan (other than any Mortgage Loan that has
become an REO Property) as of the Distribution Date on which the proceeds of the
Optional Termination are distributed to the Certificateholders, plus accrued
interest thereon at the applicable Mortgage Rate as of the Due Date preceding
the Distribution Date on which the proceeds of the Optional Termination are
distributed to Certificateholders and the fair market value of any REO Property,
plus accrued interest thereon as of the Distribution Date on which the proceeds
of the Optional Termination are distributed to Certificateholders, (B) any
unreimbursed out-of-pocket costs and expenses owed to the Master Servicer, the
Trustee or the Securities Administrator (including any amounts incurred by the
Securities Administrator in connection with conducting the Auction), a Servicer
or the Master Servicer and any unpaid or unreimbursed Servicing Fees, Monthly
Advances and Servicing Advances, (C) any unreimbursed costs, penalties and/or
damages incurred by the Trust Fund in connection with any violation relating to
any of the Mortgage Loans of any predatory or abusive lending law and (D) in the
event an Auction has been conducted, all reasonable fees and expenses incurred
by the Securities Administrator to conduct the Auction.
Original Class Certificate Balance: With respect to each Class of the
Certificates (other than the Class P Certificates), the Class Certificate
Balance thereof on the Closing Date, as set forth opposite such Class above in
the Preliminary Statement.
Original Subordinate Principal Balance: The sum of the aggregate Class
Certificate Balances of each Class of Subordinate Certificates as of the Closing
Date.
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Original Value: The lesser of (i) the Appraised Value or (ii) the sales
price of a Mortgaged Property at the time of origination of a Mortgage Loan,
except in instances where either clauses (i) or (ii) is unavailable, the other
may be used to determine the Original Value, or if both clauses (i) and (ii) are
unavailable, Original Value may be determined from other sources reasonably
acceptable to the Depositor.
Outstanding Mortgage Loan: With respect to any Due Date, a Mortgage Loan
which, prior to such Due Date, was not the subject of a Principal Prepayment in
Full, did not become a Liquidated Mortgage Loan and was not purchased or
replaced.
Outstanding Principal Balance: As of the time of any determination, the
principal balance of a Mortgage Loan remaining to be paid by the Mortgagor, or,
in the case of an REO Property, the principal balance of the related Mortgage
Loan remaining to be paid by the Mortgagor at the time such property was
acquired by the Trust Fund less any Net Liquidation Proceeds with respect
thereto to the extent applied to principal.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: With respect to the Certificates and any Distribution
Date, the following:
(i) For the Class I-A1 Certificates, the Class I-A2 Certificates
and the Class A-R Certificates on each Distribution Date, a per annum
rate equal to the Loan Group I Net WAC for such Distribution Date.
(ii) For the Class II-A1 Certificates and the Class II-A2
Certificates on each Distribution Date, a per annum rate equal to the
Loan Group II Net WAC for such Distribution Date.
(iii) For each class of Class M Certificates and Class B
Certificates on each Distribution Date a per annum rate equal to the
Subordinate Net WAC.
(iv) The Class P Certificates do not have a Pass-Through Rate.
Paying Agent: The Securities Administrator or any successor Paying Agent
appointed by the Securities Administrator.
Percentage Interest: With respect to any Certificate (other than the Class
A-R and Class P Certificates), a fraction, expressed as a percentage, the
numerator of which is the Initial Class Certificate Balance represented by such
Certificate and the denominator of which is the Original Class Certificate
Balance of the related Class. With respect to the Class A-R and Class P
Certificates, the Percentage Interest evidenced thereby shall be as specified on
the face thereof, or otherwise, be equal to 100%.
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Periodic Rate Cap: With respect to each Mortgage Loan, the maximum
adjustment that can be made to the Mortgage Interest Rate on each Interest
Adjustment Date in accordance with its terms, regardless of changes in the
applicable Index.
Permitted Investments: Any one or more of the following obligations or
securities held in the name of the Trustee for the benefit of the
Certificateholders (provided that such obligation or security must be a
"permitted investment" within the meaning of such term as provided for in
Section 860G(a)(5) of the Code):
(i) direct obligations of, and obligations the timely payment of which
are fully guaranteed by the United States of America or any agency or
instrumentality of the United States of America the obligations of which
are backed by the full faith and credit of the United States of America;
(ii) (a) demand or time deposits, federal funds or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States of America or any state
thereof (including the Trustee or the Master Servicer or its Affiliates
acting in its commercial banking capacity) and subject to supervision and
examination by federal and/or state banking authorities, provided that the
commercial paper and/or the short-term debt rating and/or the long-term
unsecured debt obligations of such depository institution or trust company
at the time of such investment or contractual commitment providing for such
investment have the Applicable Credit Rating or better from each Rating
Agency and (b) any other demand or time deposit or certificate of deposit
that is fully insured by the Federal Deposit Insurance Corporation;
(iii) repurchase obligations with respect to (a) any security
described in clause (i) above or (b) any other security issued or
guaranteed by an agency or instrumentality of the United States of America,
the obligations of which are backed by the full faith and credit of the
United States of America, in either case entered into with a depository
institution or trust company (acting as principal) described in clause
(ii)(a) above where the Trustee holds the security therefor;
(iv) securities bearing interest or sold at a discount issued by any
corporation (including the Trustee or the Master Servicer or its
Affiliates) incorporated under the laws of the United States of America or
any state thereof that have the Applicable Credit Rating or better from
each Rating Agency at the time of such investment or contractual commitment
providing for such investment; provided, however, that securities issued by
any particular corporation will not be Permitted Investments to the extent
that investments therein will cause the then outstanding principal amount
of securities issued by such corporation and held as part of the Issuing
Entity to exceed 10% of the aggregate Outstanding Principal Balances of all
the Mortgage Loans and Permitted Investments held as part of the Issuing
Entity;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
having the Applicable Credit Rating or better from each Rating Agency at
the time of such investment;
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(vi) a Reinvestment Agreement issued by any bank, insurance company or
other corporation or entity;
(vii) any other demand, money market or time deposit, obligation,
security or investment as may be acceptable to either Rating Agency as
evidenced in writing by each Rating Agency to the Trustee or Master
Servicer;
(viii) any money market or common trust fund having the Applicable
Credit Rating or better from each Rating Agency (if such fund is rated by
each Rating Agency), including any such fund for which the Trustee or
Master Servicer or any affiliate of the Trustee or Master Servicer acts as
a manager or an advisor; provided, however, that no instrument or security
shall be a Permitted Investment if such instrument or security evidences a
right to receive only interest payments with respect to the obligations
underlying such instrument or if such security provides for payment of both
principal and interest with a yield to maturity in excess of 120% of the
yield to maturity at par or if such instrument or security is purchased at
a price greater than par; and
(ix) units of a taxable money-market portfolio having the highest
rating assigned by each Rating Agency (except if S&P is a Rating Agency,
"AAAm" or "AAAM-G" by S&P) and restricted to obligations issued or
guaranteed by the United States of America or entities whose obligations
are backed by the full faith and credit of the United States of America and
repurchase agreements collateralized by such obligations.
Permitted Transferee: Any Person other than a Disqualified Organization or
an "electing large partnership" (as defined by Section 775 of the Code).
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Physical Certificate: The Residual Certificate.
Prepayment Assumption: A rate or rates of prepayment, as described in the
Prospectus Supplement related to the Offered Certificates.
Prepayment Distribution Trigger: With respect to any Distribution Date and
any Class of Subordinate Certificates (other than the Class M-1 Certificates), a
test that shall be satisfied if the fraction (expressed as a percentage) equal
to the sum of the Class Certificate Balances of such Class and each Class of
Subordinate Certificates with a Lower Priority than such Class immediately prior
to such Distribution Date divided by the aggregate Stated Principal Balance of
all of the Mortgage Loans (or related REO Properties) immediately prior to such
Distribution Date is greater than or equal to the sum of the related Initial
Subordinate Class Percentages of such Classes of Subordinate Certificates.
Prepayment Interest Shortfall: As to any Distribution Date and any Mortgage
Loan (other than a Mortgage Loan relating to an REO Property) that was the
subject of (a) a Principal Prepayment in Full during the related Prepayment
Period, an amount equal to the excess of one
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month's interest at the Net Mortgage Rate on the Stated Principal Balance of
such Mortgage Loan over the amount of interest (adjusted to the Net Mortgage
Rate) paid by the Mortgagor for such Prepayment Period to the date of such
Principal Prepayment in Full or (b) a Curtailment during the prior calendar
month, an amount equal to one month's interest at the Net Mortgage Rate on the
amount of such Curtailment. The obligations of the Master Servicer in respect of
any Prepayment Interest Shortfall are set forth in Section 6.06.
Prepayment Penalty: With respect to any Prepayment Period, any prepayment
premium, charge or penalty payable by a Mortgagor in connection with any
Principal Prepayment on a GreenPoint Mortgage Loan pursuant to the terms of the
related Mortgage Note.
Prepayment Period: With respect to any Mortgage Loan and any Distribution
Date, the calendar month preceding the month in which such Distribution Date
occurs.
Primary Mortgage Insurance Policy: Any primary mortgage guaranty insurance
policy issued in connection with a Mortgage Loan which provides compensation to
a Mortgage Note holder in the event of default by the obligor under such
Mortgage Note or the related Security Instrument, if any or any replacement
policy therefor through the related Interest Accrual Period for such Class
relating to a Distribution Date.
Principal Prepayment: Any Principal Prepayment in full or Curtailment or
other recovery of principal on a Mortgage Loan which is received in advance of
its scheduled Due Date to the extent that it is not accompanied by an amount as
to interest representing scheduled interest due on any date or dates in any
month or months subsequent to the month of prepayment, including Insurance
Proceeds and Repurchase Proceeds, but excluding the principal portion of Net
Liquidation Proceeds.
Principal Prepayment in Full: Any Principal Prepayment made by a Mortgagor
of the entire unpaid principal balance of the Mortgage Loan.
Private Certificates: Any of the Class B-1, Class B-2, Class B-3 and Class
P Certificates.
Prospectus Supplement: The Prospectus Supplement dated March 29, 2006,
relating to the public offering of the Offered Certificates.
Protected Account: An account established and maintained for the benefit of
Certificateholders by each Servicer with respect to the related Mortgage Loans
and with respect to REO Property pursuant to the respective Servicing Agreement.
The Protected Account shall be an Eligible Account.
Purchase Price: With respect to any Mortgage Loan or REO Property to be
purchased pursuant to or as contemplated by Section 2.03 or 10.01, and as
confirmed by an Officers' Certificate from the Master Servicer to the Trustee,
an amount equal to the sum of (i) 100% of the Stated Principal Balance thereof
as of the date of purchase (or such other price as provided in Section 10.01),
(ii) accrued interest on such Stated Principal Balance at the applicable
Mortgage Interest Rate in effect from time to time from the Due Date as to which
interest was last covered by a payment by the Mortgagor or an advance by the
related Servicer or Master Servicer, which
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payment or advance had as of the date of purchase been distributed to
Certificateholders, through the end of the calendar month in which the purchase
is to be effected less any unreimbursed Monthly Advances and any unpaid
Servicing Fees payable to the purchaser of the Mortgage Loan and (iii) any costs
and damages incurred by the Issuing Entity in connection with any violation by
such Mortgage Loan or REO Property of any predatory or abusive-lending law.
Qualified Insurer: Any insurance company duly qualified as such under the
laws of the state or states in which the related Mortgaged Property or Mortgaged
Properties is or are located, duly authorized and licensed in such state or
states to transact the type of insurance business in which it is engaged and
approved as an insurer by the Master Servicer, so long as the claims paying
ability of which is acceptable to the Rating Agencies for pass-through
certificates having the same rating as the Certificates rated by the Rating
Agencies as of the Closing Date.
Rating Agencies: Xxxxx'x and S&P.
Realized Loss: With respect to a Liquidated Mortgage Loan, the amount by
which the remaining unpaid principal balance of the Mortgage Loan exceeds the
amount of Liquidation Proceeds applied to the principal balance of the related
Mortgage Loan. To the extent the Master Servicer receives Subsequent Recoveries
with respect to any Mortgage Loan, the amount of the Realized Loss with respect
to that Mortgage Loan will be reduced to the extent such recoveries are applied
to reduce the Class Certificate Balance of any Class of Certificates on any
Distribution Date.
Record Date: With respect to each Distribution Date and each class of
Offered Certificates, the close of business on the last Business Day of the
month immediately preceding the month in which the related Distribution Date
occurs.
Refinanced Mortgage Loan: Any Mortgage Loan the proceeds of which were not
used to purchase the related Mortgaged Property.
Regular Certificates: Any of the Class I-A1, Class I-A2, Class II-A1, Class
II-A2, Class M-1, Class M-2, Class M-3, Class B-1, Class B-2 or Class B-3
Certificates.
Regulation AB: Subpart 22.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. Sections 229.1100-229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed Reg. 1,506, 1,531 (Jan. 7, 2005) or by the staff of
the Commission, or as may be provided by the Commission or its staff from time
to time.
Reinvestment Agreements: One or more reinvestment agreements, acceptable to
each of the Rating Agencies, from a bank, insurance company or other corporation
or entity (including the Trustee).
Related Class of Upper Tier REMIC Interest: With respect to any Class of
Certificates, the interest in the Upper Tier REMIC appearing opposite such Class
in the Preliminary Statement hereto.
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Relevant Servicing Criteria: The Servicing Criteria applicable to the
various parties, as set forth on Exhibit K hereto. For clarification purposes,
multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the Master
Servicer, the Securities Administrator, the Trustee, the Custodian or a
Servicer, the term "Relevant Servicing Criteria" may refer to one or more
discrete functions specified in the Relevant Servicing Criteria applicable to
such parties.
Relief Act: The Servicemembers Civil Relief Act, as amended.
Relief Act Mortgage Loan: Any Mortgage Loan as to which the Monthly Payment
thereof has been reduced due to the application of the Relief Act.
REMIC: Each pool of assets in the Trust Fund designated as a REMIC as
described in the Preliminary Statement.
REMIC Interests: Any regular or residual interest in any of REMIC 1 or the
Upper Tier REMIC, as described in the Preliminary Statement.
REMIC Opinion: An Opinion of Counsel to the effect that a contemplated
action will neither adversely affect the status as a REMIC of any REMIC created
hereunder nor subject any such REMIC to any tax under the REMIC Provisions.
REMIC Provisions: The provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations, including proposed regulations and rulings, and administrative
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
REMIC 1: As described in the Preliminary Statement.
REMIC 1 Interest: Each class of interest in REMIC 1 as described in the
Preliminary Statement.
REMIC 1 Regular Interest: Each of the REMIC 1 Interests other than the
Class LT1-R Interest.
REMIC 1 Subordinate Balance Ratio: The ratio among the uncertificated
principal balances of each of the REMIC 1 Interests ending with the designation
"A" that is equal to the ratio among, with respect to each such REMIC 1
Interest, the excess of (x) the aggregate Stated Principal Balance of the
Mortgage Loans in the related Loan Group over (y) the aggregate Class
Certificate Balance of the Certificates in the Certificate Group related to such
Loan Group.
REO Property: A Mortgaged Property acquired by the Servicer or Master
Servicer on behalf of the Trust Fund through foreclosure or deed-in-lieu of
foreclosure, as described in Section 3.15 in connection with a defaulted
Mortgage Loan.
Reportable Event: As defined in Section 3.18(a)
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Reporting Servicer: has the meaning set forth in Section 3.18(h).
Repurchase Proceeds: The Repurchase Price in connection with any repurchase
of a Mortgage Loan by the Seller and any cash deposit in connection with the
substitution of a Mortgage Loan.
Request for Release: A request for release in the form attached hereto as
Exhibit D.
Required Insurance Policy: With respect to any Mortgage Loan, any insurance
policy which is required to be maintained from time to time under this Agreement
with respect to such Mortgage Loan.
Residual Certificate: The Class A-R Certificate.
Residual Interest: The Residual Certificate, other than the portion thereof
representing the right to payments in respect of the Class LT1-R Interest.
Responsible Officer: Any officer assigned to the Corporate Trust Office (or
any successor thereto), including any Vice President, Assistant Vice President,
Trust Officer, any Assistant Secretary, any trust officer or any other officer
of the Trustee or Securities Administrator customarily performing functions
similar to those performed by any of the above designated officers and having
direct responsibility for the administration of this Agreement, and any other
officer of the Trustee or Securities Administrator to whom a matter arising
hereunder may be referred because of such officers familiarity with the subject
matter thereof.
Rule 144A Letter: The certificate to be furnished by each purchaser of a
Private Certificate (which is also a Physical Certificate) which is a Qualified
Institutional Buyer as defined under Rule 144A promulgated under the Securities
Act, substantially in the form set forth as Exhibit F-3 hereto.
Xxxxxxxx-Xxxxx Act: The Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
Xxxxxxxx-Xxxxx Certification: A written certification signed by an officer
of the Master Servicer that complies with (i) the Xxxxxxxx-Xxxxx Act, and (ii)
Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect from time to time;
provided that if, after the Closing Date (a) the Xxxxxxxx-Xxxxx Act is amended,
(b) the Rules referred to in clause (ii) are modified or superseded by any
subsequent statement, rule or regulation of the Commission or any statement of a
division thereof, or (c) any future releases, rules and regulations are
published by the Commission from time to time pursuant to the Xxxxxxxx-Xxxxx
Act, which in any such case affects the form or substance of the required
certification and results in the required certification being, in the reasonable
judgment of the Master Servicer, materially more onerous that then form of the
required certification as of the Closing Date, the Xxxxxxxx-Xxxxx Certification
shall be as agreed to by the Master Servicer and the Depositor following a
negotiation in good faith to determine how to comply with any such new
requirements.
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S&P: Standard and Poor's, a division of The XxXxxx-Xxxx Companies, Inc. or
its successor in interest.
Scheduled Payment: With respect to any Mortgage Loan and any month, the
scheduled payment or payments of principal and interest due during such month on
such Mortgage Loan which either is payable by a Mortgagor in such month under
the related Mortgage Note or, in the case of REO Property, would otherwise have
been payable under the related Mortgage Note.
Scheduled Principal: The principal portion of any Scheduled Payment.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: Xxxxx Fargo Bank, N.A., or any successor in
interest, or any successor securities administrator appointed as herein
provided.
Security Agreement: With respect to a Cooperative Loan, the agreement
creating a security interest in favor of the originator in the related
Cooperative Stock.
Security Instrument: A written instrument creating a valid first lien on a
Mortgaged Property securing a Mortgage Note, which may be any applicable form of
mortgage, deed of trust, deed to secure debt or security deed, including any
riders or addenda thereto.
Seller: Xxxxxxx Xxxxx Mortgage Lending, Inc., a Delaware corporation, or
any successor in interest.
Senior Accelerated Distribution Percentage: The Group I or Group II Senior
Accelerated Distribution Percentage, as applicable.
Senior Certificates: The Class I-A Certificates and Class II-A
Certificates.
Senior Percentage: The Group I Senior Percentage or Group II Senior
Percentage, as applicable.
Senior Principal Distribution Amount: The Group I Senior Principal
Distribution Amount or Group II Senior Principal Distribution Amount, as
applicable.
Servicer: With respect to each Mortgage Loan, Countrywide, GreenPoint or
Washington Mutual, as applicable and as specified on the Mortgage Loan Schedule.
Servicer Remittance Date: With respect to each Mortgage Loan, the date set
forth in the related Servicing Agreement.
Servicing Advances: With respect to any Mortgage Loan, all customary,
reasonable and necessary "out-of-pocket" costs and expenses incurred by the
Servicer in the performance of its servicing obligations, including, but not
limited to, the cost of (i) preservation, restoration, protection and repair of
a Mortgaged Property or Cooperative Unit, as applicable, (ii) any enforcement or
judicial proceedings with respect to a Mortgage Loan, including foreclosure
actions and (iii) the management and liquidation of REO Property.
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Servicing Agreements: The Countrywide Servicing Agreement, GreenPoint
Servicing Agreement and Washington Mutual Servicing Agreement.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
Servicing Fee: As to any Mortgage Loan and Distribution Date, an amount
equal to the product of (i) the Stated Principal Balance of such Mortgage Loan
as of the Due Date in the preceding calendar month and (ii) the applicable
Servicing Fee Rate. Such fee shall be payable monthly, computed on the basis of
the same principal amount and period respectively which any related interest
payment on a Mortgage Loan is computed. If the Index and/or Gross Margin are
adjusted as provided in the related Mortgage Note, the Servicing Fee shall be
the rate per annum in effect immediately prior to such adjustment.
Servicing Fee Rate: As to any Mortgage Loan, a per annum rate as set forth
in the Mortgage Loan Schedule.
Servicing Function Participant: Any Sub-Servicer, Subcontractor or any
other Person, other than a Servicer, the Custodian, the Master Servicer, the
Paying Agent, the Securities Administrator and the Trustee, that is
participating in the servicing function within the meaning of Regulation AB.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
names and specimen signatures appear on a list of servicing officers furnished
to the Trustee by the Master Servicer, as such list may be amended from time to
time.
Stated Principal Balance: With respect to any Mortgage Loan and Due Date,
the unpaid principal balance of such Mortgage Loan as of such Due Date, as
specified in the amortization schedule at the time relating thereto (before any
adjustment to such amortization schedule by reason of any moratorium or similar
waiver or grace period), after giving effect to any previous partial prepayments
and Liquidation Proceeds received and to the payment of principal due on such
Due date and irrespective of any delinquency in payment by the related
Mortgagor.
Startup Day: March 31, 2006.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect to
Mortgage Loans under the direction or authority of any Servicer (or a
Sub-Servicer of any Servicer), the Master Servicer, the Trustee, the Custodian
or the Securities Administrator.
Subordinate Certificates: The Class M-1, Class M-2, Class M-3, Class B-1,
Class B-2 and Class B-3 Certificates.
Subordinate Net WAC: For any Distribution Date, a per annum rate equal to
the weighted average of the Loan Group I Net WAC and the Loan Group II Net WAC,
weighted in proportion to the results of subtracting from the aggregate Stated
Principal Balance of the
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Mortgage Loans of each Loan Group as of the beginning of the Due Period
immediately preceding such Distribution Date, the aggregate Class Certificate
Balance of the Senior Certificates related to each such Loan Group.
Subordinate Percentage: For any Distribution Date, the difference between
100% and the Senior Percentage for such date.
Subordinate Prepayment Percentage: With respect to any Distribution Date
and each Class of Subordinate Certificates, under the applicable circumstances
set forth below, the respective percentages set forth below:
(i) For any Distribution Date prior to the Distribution Date in April
2013 (unless the Class Certificate Balances of the Senior Certificates have
been reduced to zero), 0%.
(ii) For any Distribution Date for which clause (i) does not apply,
and on which any Class of Subordinate Certificates are outstanding:
(a) in the case of the Class of Subordinate Certificates then
outstanding with the Highest Priority and each other Class of
Subordinate Certificates for which the related Prepayment Distribution
Trigger has been satisfied, a fraction, expressed as a percentage, the
numerator of which is the Class Certificate Balance of such Class
immediately prior to such date and the denominator of which is the sum
of the Class Certificate Balances immediately prior to such date of
(1) the Class of Subordinate Certificates then outstanding with the
Highest Priority and (2) all other Classes of Subordinate Certificates
for which the respective Prepayment Distribution Triggers have been
satisfied; and
(b) in the case of each other Class of Subordinate Certificates
for which the Prepayment Distribution Triggers have not been
satisfied, 0%; and
(iii) Notwithstanding the foregoing, if the application of the
foregoing percentages on any Distribution Date as provided in Section 6.01
of this Agreement (determined without regard to the proviso in the
definition of "Subordinate Principal Distribution Amount") would result in
a distribution in respect of principal of any Class or Classes of
Subordinate Certificates in an amount greater than the remaining Class
Certificate Balance thereof (any such class, a "Maturing Class"), then: (a)
the Subordinate Prepayment Percentage of each Maturing Class shall be
reduced to a level that, when applied as described above, would exactly
reduce the Class Certificate Balance of such Class to zero; (b) the
Subordinate Prepayment Percentage of each other Class of Subordinate
Certificates (any such Class, a "Non-Maturing Class") shall be recalculated
in accordance with the provisions in paragraph (ii) above, as if the Class
Certificate Balance of each Maturing Class had been reduced to zero (such
percentage as recalculated, the "Recalculated Percentage"); (c) the total
amount of the reductions in the Subordinate Prepayment Percentages of the
Maturing Class or Classes pursuant to clause (a) of this sentence,
expressed as an aggregate percentage, shall be allocated among the
Non-Maturing Classes in proportion to their respective Recalculated
Percentages (the
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portion of such aggregate reduction so allocated to any Non-Maturing Class,
the "Adjustment Percentage"); and (d) for purposes of such Distribution
Date, the Subordinate Prepayment Percentage of each Non-Maturing Class
shall be equal to the sum of (1) the Subordinate Prepayment Percentage
thereof, calculated in accordance with the provisions in paragraph (ii)
above as if the Class Certificate Balance of each Maturing Class had not
been reduced to zero, plus (2) the related Adjustment Percentage.
Subordinate Principal Distribution Amount: With respect to any Distribution
Date and each Class of Class M Certificates and Class B Certificates, the sum of
the following:
(i) the product of (x) the related Class M Percentage or Class B
Percentage for such Class and (y) the aggregate of the following amounts:
(1) the principal portion of each Monthly Payment due during
the related Due Period on each Outstanding Mortgage Loan, whether or
not received on or prior to the related Determination Date, minus the
principal portion of any Debt Service Reduction;
(2) the Stated Principal Balance of any Mortgage Loan
repurchased during the related Prepayment Period pursuant to Section
2.02 or 2.03; and
(3) the principal portion of all other unscheduled
collections (other than Principal Prepayments in Full and Curtailments
and amounts received in connection with the liquidation or other
disposition of a Mortgage Loan, including without limitation Insurance
Proceeds, Liquidation Proceeds and REO Proceeds) received during the
related Prepayment Period to the extent applied by the related
Servicer as recoveries of principal of the related Mortgage Loan
pursuant to the related Servicing Agreement;
(ii) such Class's pro rata share, based on the Class Certificate
Balance of each Class of Class M Certificates and Class B Certificates then
outstanding, of, with respect to each Mortgage Loan for which a liquidation
or other disposition occurred during the related Prepayment Period and did
not result in any Extraordinary Losses, an amount equal to the related
unscheduled collections (including without limitation Insurance Proceeds,
Liquidation Proceeds and REO Proceeds) to the extent applied by the related
Servicer as recoveries of principal of the related Mortgage Loan pursuant
to the related Servicing Agreement, to the extent such collections are not
otherwise distributed to the Senior Certificates;
(iii) the product of (x) the related Subordinate Prepayment
Percentage for such Distribution Date and (y) the aggregate of all
Principal Prepayments in Full and Curtailments of the Mortgage Loans
received in the related Prepayment Period, to the extent not payable to the
Senior Certificates; and
(iv) any amounts described in clauses (i), (ii) and (iii) as
determined for any previous Distribution Date, that remain undistributed to
the extent that such amounts
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are not attributable to Realized Losses which have been allocated to a
Class of Subordinate Certificates;
provided, however, that such amount shall in no event exceed the outstanding
Class Certificate Balance of such Class of Certificates immediately prior to
such date.
Subsequent Recoveries: Any amount recovered by a Servicer or the Master
Servicer (net of reimbursable expenses) with respect to a Liquidated Mortgage
Loan with respect to which a Realized Loss was incurred after the liquidation or
disposition of such Mortgage Loan.
Sub-Servicer: Any Person that services Mortgage Loans on behalf of a
Servicer, and is responsible for the performance (whether directly or through
sub-servicers or Subcontractors) of servicing functions required to be performed
under this Agreement, any related Servicing Agreement or any sub-servicing
agreement that are identified in Item 1122(d) of Regulation AB.
Substitute Mortgage Loan: With respect to any Mortgage Loan, which is
tendered to the Trustee pursuant to the related Servicing Agreement, the
Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, in each case, (i) which has an Outstanding Principal Balance not
greater nor materially less than the Mortgage Loan for which it is to be
substituted; (ii) which has a Mortgage Interest Rate and Net Rate not less than,
and not materially greater than, such Mortgage Loan; (iii) which has a maturity
date not materially earlier or later than such Mortgage Loan and not later than
the latest maturity date of any Mortgage Loan; (iv) which is of the same
property type and occupancy type as such Mortgage Loan; (v) which has a
Loan-to-Value Ratio not greater than the Loan-to-Value Ratio of such Mortgage
Loan; (vi) which is current in payment of principal and interest as of the date
of substitution; (vii) as to which the payment terms do not vary in any material
respect from the payment terms of the Mortgage Loan for which it is to be
substituted and (viii) which has a Gross Margin, Periodic Rate Cap and Maximum
Lifetime Mortgage Rate no less than those of such Mortgage Loan, has the same
Index and interval between Interest Adjustment Dates as such Mortgage Loan, and
a Minimum Lifetime Mortgage Rate no lower than that of such Mortgage Loan.
Tax Matters Person: The Securities Administrator or any successor thereto
or assignee thereof shall serve as tax administrator hereunder and as agent for
the Tax Matters Person. The Holder of the Residual Certificates shall be the Tax
Matters Person for the related REMIC, as more particularly set forth in Section
9.12 hereof.
Transfer: Any direct or indirect transfer or sale of any Ownership Interest
in a certificate.
Transferor Representation Letter: As defined in Section 5.02(b).
Trustee: HSBC Bank USA, National Association, or its successor in interest,
or any successor trustee appointed as herein provided.
Trust Fund: The corpus of the Issuing Entity created pursuant to this
Agreement, consisting of (i) the Mortgage Loans, including the right to all
payments of principal and interest received on or with respect to the Mortgage
Loans on and after the Cut-off Date (other than Scheduled Payments due on or
before such date), and all such payments due after such date but
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received prior to such date and intended by the related Mortgagors to be applied
after such date; (ii) all of the Depositor's right, title and interest in and to
all amounts from time to time credited to and the proceeds of the Protected
Accounts, the Master Servicer Collection Account and the Distribution Account
established with respect to the Mortgage Loans; (iii) all of the Depositor's
rights under the Mortgage Loan Purchase Agreement, the Assignment Agreements and
the Servicing Agreements; (iv) all of the Depositor's right, title or interest
in REO Property and the proceeds thereof; (v) all of the Depositor's rights
under any Insurance Policies relating to the Mortgage Loans; and (vi) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing
into cash or other liquid assets, including without limitation, all Insurance
Proceeds, Liquidation Proceeds and condemnation awards and any proceeds of the
foregoing.
Undercollateralized Amount: On any Distribution Date, the excess of (x) the
aggregate Class Certificate Balance of any Class or Classes of Senior
Certificates related to a Loan Group immediately prior to such Distribution Date
over (y) the aggregate Stated Principal Balance of the Mortgage Loans in its
related Loan Group as of the beginning of the related Due Period.
Undercollateralized Senior Certificates: As defined in Section 6.01(E).
Underlying Seller: With respect to each Mortgage Loan, Countrywide,
GreenPoint, MortgageIt or Washington Mutual, as indicated on the Mortgage Loan
Schedule.
Uninsured Cause: Any cause of damage to a Mortgaged Property or related REO
Property such that the complete restoration of such Mortgaged Property or
related REO Property is not fully reimbursable by the hazard insurance policies
required to be maintained pursuant the related Servicing Agreement, without
regard to whether or not such policy is maintained.
United States Person: A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for 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
(except, in the case of a partnership, to the extent provided in regulations),
provided that, for purposes solely of the Class A-R Certificate, no partnership
or other entity treated as a partnership for United States federal income tax
purposes shall be treated as a United States Person unless all persons that own
an interest in such partnership either directly or through any entity that is
not a corporation for United States federal income tax purposes are United
States Persons, or an estate whose income is subject to United States federal
income tax regardless of its source, or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more such United States Persons have the authority to control
all substantial decisions of the trust. To the extent prescribed in regulations
by the Secretary of the Treasury, which have not yet been issued, a trust which
was in existence on August 20, 1996 (other than a trust treated as owned by the
grantor under subpart E of part I of subchapter J of chapter 1 of the Code), and
which was treated as a United States person on August 20, 1996 may elect to
continue to be treated as a United States person notwithstanding the previous
sentence.
Upper Tier REMIC: As described in the Preliminary Statement.
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Upper Tier REMIC Regular Interest: Each of the Class I-A1 Certificates, the
Class I-A2 Certificates, the Class II-A-1 Certificates, the Class II-A-2
Certificates, the Class M-1 Certificates, the Class M-2 Certificates, the Class
M-3 Certificates, the Class B-1 Certificates, the Class B-2 Certificates and the
Class B-3 Certificates.
Voting Rights: The portion of the voting rights of all of the Certificates
which is allocated to any Certificate. The Voting Rights allocated among Holders
of such Certificates outstanding shall be the fraction, expressed as a
percentage, the numerator of which is the aggregate Class Certificate Balance of
all the Certificates of such Class then outstanding and the denominator of which
is the aggregate Class Certificate Balance of all the Certificates then
outstanding (other than the Class A-R Certificate). 99.00% of all Voting Rights
will be allocated among all holders of the Certificates (other than the Class
A-R Certificate) in proportion to their then outstanding Class Certificate
Balances, and 1.00% of the Voting Rights shall be allocated to the Class A-R
Certificate; provided, however, that any Certificate registered in the name of
the Master Servicer, the Depositor or the Securities Administrator or any of
their respective affiliates shall not be included in the calculation of Voting
Rights. The Class P Certificates shall have no voting rights.
Washington Mutual: Washington Mutual Bank (formerly known as Washington
Mutual Bank, FA).
Washington Mutual Assignment Agreement: Shall mean the Assignment,
Assumption and Recognition Agreement, dated as of March 31, 2006, among
Washington Mutual (as seller and servicer), the Depositor and the Seller
pursuant to which the Washington Mutual Servicing Agreement and the rights of
the Seller thereunder (other than the rights to enforce the representations and
warranties with respect to the Washington Mutual Loans) were assigned to the
Depositor for the benefit of the Certificateholders.
Washington Mutual Loans: Shall mean those Mortgage Loans serviced by
Washington Mutual pursuant to the Washington Mutual Servicing Agreement.
Washington Mutual Servicing Agreement: Shall mean the Servicing Agreement,
dated as of November 1, 2005 between the Seller and Washington Mutual, as any
time amended by Regulation AB.
Section 1.02 Accounting.
Unless otherwise specified herein, for the purpose of any definition or
calculation, whenever amounts are required to be netted, subtracted or added or
any distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication of
such functions.
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ARTICLE II
CONVEYANCE OF MORTGAGE
LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans to Trustee. (a) The Depositor
concurrently with the execution and delivery of this Agreement, sells, transfers
and assigns to the Issuing Entity without recourse all its right, title and
interest in and to (i) the Mortgage Loans identified in the Mortgage Loan
Schedule, including all interest and principal due with respect to the Mortgage
Loans after the Cut-off Date, but excluding any payments of principal and
interest due on or prior to the Cut-off Date; (ii) such assets as shall from
time to time be credited or are required by the terms of this Agreement to be
credited to the Master Servicer Collection Account, (iii) such assets relating
to the Mortgage Loans as from time to time may be held by the Servicers in
Protected Accounts, the Master Servicer in the Master Servicer Collection
Account and the Securities Administrator in the Distribution Account for the
benefit of the Trustee on behalf of the Certificateholders, (iv) any REO
Property, (v) the Required Insurance Policies and any amounts paid or payable by
the insurer under any Insurance Policy (to the extent the mortgagee has a claim
thereto), (vi) the Mortgage Loan Purchase Agreement to the extent provided in
Subsection 2.03(a), (vii) the rights with respect to the Servicing Agreements as
assigned to the Depositor on behalf of the Certificateholders by the Assignment
Agreements and (viii) any proceeds of the foregoing. Although it is the intent
of the parties to this Agreement that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans and other assets in the Trust
Fund pursuant to this Agreement shall constitute a purchase and sale and not a
loan, in the event that such conveyance is deemed to be a loan, it is the intent
of the parties to this Agreement that the Depositor shall be deemed to have
granted to the Trustee a first priority perfected security interest in all of
the Depositor's right, title and interest in, to and under the Mortgage Loans
and other assets in the Trust Fund, and that this Agreement shall constitute a
security agreement under applicable law.
(b) In connection with the above transfer and assignment, the
Depositor hereby deposits with the Trustee or the Custodian, as its agent,
the following documents or instruments (I) with respect to each Mortgage
Loan, other than a Cooperative Loan:
(i) the original Mortgage Note, endorsed in the following form:
"Pay to the order of HSBC Bank USA, National Association, as Trustee
for the registered holders of the Xxxxxxx Xxxxx Mortgage Investors,
Inc., Mortgage Pass-Through Certificates, Series 2006-A1, without
recourse," with all prior and intervening endorsements showing a
complete chain of endorsement from the originator to the Person so
endorsing to the Trustee;
(ii) the original recorded Mortgage or a copy of the Mortgage
certified by the public recording office in which such Mortgage has
been recorded;
(iii) an original Assignment of the Mortgage executed in the
following form: "HSBC Bank USA, National Association, as Trustee for
the registered holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 2006-A1.
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(iv) the original recorded Assignment or Assignments of the
Mortgage showing a complete chain of assignment from the originator to
the Person assigning the Mortgage to the Trustee as contemplated by
the immediately preceding clause (iii), if applicable and only to the
extent available to the Depositor with evidence of recording thereon;
(v) the originals of all assumption, modification, consolidation
or extension agreements, with evidence of recording thereon, if any;
(vi) the original of any guarantee executed in connection with
the Mortgage Note;
(vii) the original mortgagee title insurance policy;
(viii) the original of any security agreement, chattel mortgage
or equivalent document executed in connection with the Mortgage; and
(ix) the original power of attorney, if applicable.
and (II) with respect to each Mortgage Loan that is a Cooperative Loan:
(i) the original Mortgage Note, endorsed in the following form:
"Pay to the order of HSBC Bank USA, National Association, as Trustee
for the registered holders of the Xxxxxxx Xxxxx Mortgage Investors,
Inc., Mortgage Pass-Through Certificates, Series 2006-A1, without
recourse," with all prior and intervening endorsements showing a
complete chain of endorsement from the originator to the Person so
endorsing to the Trustee;
(ii) the original duly executed assignment of Security Agreement
to the Trustee;
(iii) the acknowledgment copy of the original executed Form UCC-1
(or certified copy thereof) with respect to the Security Agreement,
and any required continuation statements;
(iv) the acknowledgment copy of the original executed Form UCC-3
with respect to the Security Agreement, indicating the Trustee as the
assignee of the secured party;
(v) the stock certificate representing the Cooperative Assets
allocated to the cooperative unit, with a stock power in blank
attached;
(vi) the original collateral assignment of the proprietary lease
by Mortgagor to the originator;
(vii) a copy of the recognition agreement;
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(viii) if applicable and to the extent available, the original
intervening assignments, including warehousing assignments, if any,
showing, to the extent available, an unbroken chain of the related
Mortgage Loan to the Trustee, together with a copy of the related Form
UCC-3 with evidence of filing thereon; and
(ix) the originals of each assumption, modification or
substitution agreement, if any, relating to the Mortgage Loan;
provided, however, that in lieu of the foregoing, the Depositor may deliver the
following documents, under the circumstances set forth below: (w) the Depositor
may deliver a Mortgage Note pursuant to (a)(i) and (b)(i) endorsed in blank,
provided that the endorsement is completed within 60 days of the Closing Date;
(x) in lieu of the original Mortgage, assignments to the Trustee or its
Custodian, as applicable, or intervening assignments thereof which have been
delivered, are being delivered or will, upon receipt of recording information
relating to the Mortgage required to be included thereon, be delivered to
recording offices for recording and have not been returned to the Depositor in
time to permit their delivery as specified above, the Depositor may deliver a
true copy thereof with a certification by the Depositor on the face of such
copy, substantially as follows: "Certified to be a true and correct copy of the
original, which has been transmitted for recording"; and (y) in lieu of the
Mortgage, assignment to the Trustee or intervening assignments thereof, if the
applicable jurisdiction retains the originals of such documents (as evidenced by
a certification from the Depositor or the Master Servicer, to such effect) the
Depositor may deliver photocopies of such documents containing an original
certification by the judicial or other governmental authority of the
jurisdiction where such documents were recorded; and provided, further, however,
that in the case of Mortgage Loans which have been prepaid in full after the
Cut-off Date and prior to the Closing Date, the Depositor, in lieu of delivering
the above documents, may deliver to the Trustee or its Custodian, as applicable,
a certification to such effect and shall deposit all amounts paid in respect of
such Mortgage Loans in the Distribution Account on the Closing Date. The
Depositor shall deliver such original documents (including any original
documents as to which certified copies had previously been delivered) to the
Trustee or its Custodian, as applicable, promptly after they are received. The
Depositor shall cause, at its expense, the assignment of the Mortgage to the
Trustee or its Custodian, as applicable, to be recorded not later than 180 days
after the Closing Date, unless such recordation is not required by the Rating
Agencies or an Opinion of Counsel has been provided as set forth below in this
Section 2.01. With respect to the Cooperative Loans, the Depositor will,
promptly after the Closing Date, cause the related financing statements (if not
yet filed) and an assignment thereof from the Depositor to the Trustee to be
filed in the appropriate offices. The Depositor need not cause to be recorded
any assignment in any jurisdiction under the laws of which, as evidenced by an
Opinion of Counsel delivered by the Depositor to the Trustee and the Rating
Agencies, the recordation of such assignment is not necessary to protect the
Trustee's interest in the related Mortgage Loan; provided, however,
notwithstanding the delivery of any Opinion of Counsel, each assignment shall be
submitted for recording by the Depositor in the manner described above, at no
expense to the Issuing Entity, the Trustee or the Custodian, upon the earliest
to occur of: (i) reasonable direction by the Holders of Certificates evidencing
Percentage Interests aggregating not less than 25% of the Issuing Entity, (ii)
the occurrence of an Event of Default, (iii) the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Depositor, (iv) the occurrence of a
servicing transfer as described in Section 8.02 hereof and (v) with respect to
any one assignment, the occurrence of a bankruptcy,
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insolvency or foreclosure relating to the Mortgagor under the related Mortgage.
Notwithstanding the foregoing, if the Depositor fails to pay the cost of
recording the assignments, such expense will be paid by the Trust Fund.
If any original Mortgage Note referred to in Section 2.01(b)(I)(i) or
2.01(b)(II)(i) above cannot be located, the obligations of the Depositor to
deliver such documents shall be deemed to be satisfied upon delivery to the
Trustee or its Custodian, as applicable, of a photocopy of such Mortgage Note,
if available, with a lost note affidavit. If any of the original Mortgage Notes
for which a lost note affidavit was delivered to the Trustee or its Custodian,
as applicable, is subsequently located, such original Mortgage Note shall be
delivered to the Trustee or its Custodian, as applicable, within three Business
Days.
(c) The parties hereto agree that it is not intended that any mortgage
loan be included in the Trust Fund that is, without limitation, a "High
Cost Loan" as defined by the Home Ownership and Equity Protection Act of
1994 or any other applicable anti-predatory lending laws, including but not
limited to (i) a "High-Cost Home Loan" as defined in the New Jersey Home
Ownership Act effective November 27, 2003, (ii) a "High-Cost Home Loan" as
defined in the New Mexico Home Loan Protection Act effective January 1,
2004, (iii) a "High Cost Home Mortgage Loan" as defined in the
Massachusetts Predatory Home Loan Practices Act effective November 7, 2004
or (iv) a "High-Cost Home Loan" as defined by the Indiana High Cost Home
Loan Law effective January 1, 2005.
Section 2.02 Acceptance of Mortgage Loans by Trustee.
(a) The Trustee acknowledges the sale, transfer and assignment of the
Trust Fund to it by the Depositor and its receipt thereof, subject to
further review and the exceptions which may be noted pursuant to the
procedures described below, and declares that it, or the Custodian on its
behalf, holds the documents (or certified copies thereof) delivered to it
pursuant to Section 2.01, and declares that it will continue to hold those
documents and any amendments, replacements or supplements thereto and all
other assets of the Trust Fund delivered to it as Trustee in trust for the
use and benefit of all present and future Holders of the Certificates. On
or before the Closing Date (or, with respect to any Substitute Mortgage
Loan, within five Business Days after the receipt by the Trustee or
Custodian thereof), the Trustee agrees, for the benefit of the
Certificateholders, to review or cause to be reviewed by the Custodian on
its behalf (under the Custodial Agreement), each Mortgage File delivered to
it and to execute and deliver, or cause to be executed and delivered, to
the Depositor on the Closing Date an Initial Certification. In conducting
such review, the Trustee or Custodian will certify as to each Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or any Mortgage Loan specifically identified in the exception report
annexed thereto as not being covered by such certification), (i) all
documents constituting part of such Mortgage File (other than such
documents described in Section 2.01(b)(I)(iii)) required to be delivered to
it pursuant to this Agreement are in its possession, provided that with
respect to the documents described in Section 2.01(b)(I)(v), (vi), (viii)
and (ix) and 2.01(b)(II)(viii) and (ix) to the extent the Trustee or the
Custodian on its behalf has actual knowledge that such documents exist,
(ii) such documents have been reviewed by it and are not torn, mutilated,
defaced or otherwise altered (except if initialed by the obligor) and
appear to relate on their face to such Mortgage Loan, (iii) based on its
examination and only as
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to the foregoing, the information set forth in the Mortgage Loan Schedule
corresponding to the loan number for the Mortgage Loan, the Mortgagor's
name, including the street address but excluding the zip code, the Mortgage
Interest Rate and the original principal balance of the Mortgage Loan
accurately reflects information set forth in the Mortgage File and (iv)
with respect to Mortgage Loans with a Mortgage Interest Rate subject to
adjustment, the Gross Margin, the lifetime cap and the periodic cap for
such Mortgage Loan. In performing any such review, the Trustee, or the
Custodian, as its agent, may conclusively rely on the purported due
execution and genuineness of any such document and on the purported
genuineness of any signature thereon. Notwithstanding anything to the
contrary in this Agreement, it is herein acknowledged that, in conducting
such review, the Trustee or the Custodian on its behalf is under no duty or
obligation to inspect, review or examine any such documents, instruments,
certificates or other papers to determine whether they are genuine,
enforceable, or appropriate for the represented purpose or whether they
have actually been recorded or that they are other than what they purport
to be on their face, or to determine whether any Person executing any
documents is authorized to do so or whether any signature is genuine. If
the Trustee or the Custodian, as its agent, finds any document constituting
part of the Mortgage File not to have been executed or received, or to be
unrelated to the Mortgage Loans identified in Exhibit B or to appear to be
defective on its face, the Trustee or the Custodian, as its agent, shall
promptly notify the Seller. In accordance with the Mortgage Loan Purchase
Agreement, the Seller shall correct or cure any such defect within ninety
(90) days from the date of notice from the Trustee or the Custodian, as its
agent, of the defect and if the Seller fails to correct or cure the defect
within such period, and such defect materially and adversely affects the
interests of the Certificateholders in the related Mortgage Loan, the
Trustee, shall enforce the Seller's obligation pursuant to the Mortgage
Loan Purchase Agreement, within 90 days from the Trustee's or the
Custodian's notification, to purchase such Mortgage Loan at the Purchase
Price; provided that, if such defect would cause the Mortgage Loan to be
other than a "qualified mortgage" as defined in Section 860G(a)(3) of the
Code, any such cure or repurchase must occur within 90 days from the date
such breach was discovered; provided, however, that if such defect relates
solely to the inability of the Seller to deliver the original Security
Instrument or intervening assignments thereof, or a certified copy because
the originals of such documents, or a certified copy have not been returned
by the applicable jurisdiction, the Seller shall not be required to
purchase such Mortgage Loan if the Seller delivers such original documents
or certified copy promptly upon receipt, but in no event later than 360
days after the Closing Date. The foregoing repurchase obligation shall not
apply in the event that the Seller cannot deliver such original or copy of
any document submitted for recording to the appropriate recording office in
the applicable jurisdiction because such document has not been returned by
such office; provided that the Seller shall instead deliver a recording
receipt of such recording office or, if such receipt is not available, a
certificate confirming that such documents have been accepted for
recording, and delivery to the Trustee or the Custodian, as its agent,
shall be effected by the Seller within thirty days of its receipt of the
original recorded document.
(b) No later than 180 days after the Closing Date, the Trustee or the
Custodian, as its agent, will review, for the benefit of the
Certificateholders, the Mortgage Files delivered to it and will execute and
deliver or cause to be executed and delivered to the Depositor a Final
Certification. In conducting such review, the Trustee or the Custodian, as
its agent, will certify as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage
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Loan paid in full or any Mortgage Loan specifically identified in the
exception report annexed thereto as not being covered by such
certification), that (i) all documents constituting part of such Mortgage
File (other than such documents described in Section 2.01(b)(I)(v) and
(ix)) required to be delivered to it pursuant to this Agreement are in its
possession, provided that with respect to the documents described in
Section 2.01(b)(I)(v), (vi), (viii) and (ix) and 2.01(b)(II)(viii) and (ix)
to the extent the Trustee or the Custodian on its behalf has actual
knowledge that such documents exist, (ii) such documents have been reviewed
by it and are not torn, mutilated, defaced or otherwise altered (except if
initialed by the obligor) and appear regular on their face and relate to
such Mortgage Loan, (iii) based on its examination and only as to the
foregoing, the information set forth in the Mortgage Loan Schedule
corresponding to the loan number for the Mortgage Loan, the Mortgagor's
name, including the street address but excluding the zip code, the Mortgage
Interest Rate and the original principal balance of the Mortgage Loan
accurately reflects information set forth in the Mortgage File. In
performing any such review, the Trustee, or the Custodian, as its agent,
may conclusively rely on the purported due execution and genuineness of any
such document and on the purported genuineness of any signature thereon.
Notwithstanding anything to the contrary in this Agreement, it is herein
acknowledged that, in conducting such review, the Trustee or the Custodian
on its behalf is under no duty or obligation (i) to inspect, review or
examine any such documents, instruments, certificates or other papers to
determine whether they are genuine, enforceable, or appropriate for the
represented purpose or whether they have actually been recorded or that
they are other than what they purport to be on their face, or to determine
whether any Person executing any documents is authorized to do so or
whether any signature is genuine. If the Trustee or the Custodian, as its
agent, finds any document constituting part of the Mortgage File not to
have been executed or received, or to be unrelated to the Mortgage Loans
identified in Exhibit B or to appear to be defective on its face, the
Trustee or the Custodian, as its agent, shall promptly notify the Seller.
In accordance with the Mortgage Loan Purchase Agreement, the Seller shall
correct or cure any such defect within 90 days from the date of notice from
the Trustee of the defect and if the Seller is unable to cure such defect
within such period, and if such defect materially and adversely affects the
interests of the Certificateholders in the related Mortgage Loan, the
Trustee shall enforce the Seller's obligation under the Mortgage Loan
Purchase Agreement to purchase such Mortgage Loan at the Purchase Price,
provided, however, that if such defect relates solely to the inability of
the Seller to deliver the original Security Instrument or intervening
assignments thereof, or a certified copy, because the originals of such
documents, or a certified copy, have not been returned by the applicable
jurisdiction, the Seller shall not be required to purchase such Mortgage
Loan, if the Seller delivers such original documents or certified copy
promptly upon receipt, but in no event later than 360 days after the
Closing Date.
(c) In the event that a Mortgage Loan is purchased by the Seller in
accordance with Subsections 2.02(a) or (b) above, the Seller shall remit to
the Master Servicer the Purchase Price for deposit in the Master Servicer
Collection Account and the Seller shall provide to the Trustee written
notification detailing the components of the Purchase Price. Upon deposit
of the Purchase Price in the Master Servicer Collection Account, the
Depositor shall give written notice thereof to the Trustee and the
Custodian and the Trustee or the Custodian, as its agent (upon receipt of a
Request for Release in the form of Exhibit D attached hereto with respect
to such Mortgage Loan), shall release to the Seller the related Mortgage
File and the Trustee shall execute and deliver all instruments of transfer
or assignment, without recourse, furnished
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to it by the Seller as are necessary to vest in the Seller title to and
rights under the Mortgage Loan. Such purchase shall be deemed to have
occurred on the date on which the Purchase Price in available funds is
received by the Trustee. The Depositor or Master Servicer shall amend the
Mortgage Loan Schedule, to reflect such repurchase and shall promptly
notify the Rating Agencies and the Master Servicer of such amendment. The
obligation of the Seller to repurchase any Mortgage Loan as to which such a
defect in a constituent document exists shall be the sole remedy respecting
such defect available to the Certificateholders or to the Trustee on their
behalf.
Section 2.03 Assignment of Interest in the Mortgage Loan Purchase
Agreement.
(a) The Depositor hereby assigns to the Trustee, on behalf of the
Certificateholders, all of its right, title and interest in the Mortgage
Loan Purchase Agreement, including but not limited to Depositor's rights
and obligations pursuant to the Servicing Agreements (noting that the
Seller has retained the right in the event of breach of the
representations, warranties and covenants, if any, with respect to the
related Mortgage Loans of the related Servicer under the related Servicing
Agreement to enforce the provisions thereof and to seek all or any
available remedies). The obligations of the Seller to substitute or
repurchase, as applicable, a Mortgage Loan shall be the Trustee's and the
Certificateholders' sole remedy for any breach thereof. At the request of
the Trustee, the Depositor shall take such actions as may be necessary to
enforce the above right, title and interest on behalf of the Trustee and
the Certificateholders or shall execute such further documents as the
Trustee may reasonably require in order to enable the Trustee to carry out
such enforcement. With respect to the representations and warranties
described in the Mortgage Loan Purchase Agreement that are made to the best
of the Seller's knowledge, if it is discovered by any of the Depositor, the
Seller, the Master Servicer, the Securities Administrator or the Trustee
that the substance of such representation and warranty is inaccurate and
such inaccuracy materially and adversely affects the value of the related
Mortgage Loan, then notwithstanding the Seller's lack of knowledge with
respect to the substance of such representation and warranty, such
inaccuracy shall be deemed a breach of the applicable representation or
warranty.
(b) If the Depositor, the Master Servicer, Securities Administrator or
the Trustee discovers a breach of any of the representations and warranties
set forth in the Mortgage Loan Purchase Agreement, which breach materially
and adversely affects the value of the interests of Certificateholders or
the Trustee in the related Mortgage Loan, the party discovering the breach
shall give prompt written notice of the breach to the other parties. The
Seller, within 90 days of its discovery or receipt of notice that such
breach has occurred (whichever occurs earlier), shall cure the breach in
all material respects or, subject to the Mortgage Loan Purchase Agreement
or Section 2.04 of this Agreement, as applicable, shall purchase the
Mortgage Loan or any property acquired with respect thereto from the
Trustee; provided, however, that if there is a breach of any representation
set forth in the Mortgage Loan Purchase Agreement or Section 2.04 of this
Agreement, as applicable, and the Mortgage Loan or the related property
acquired with respect thereto has been sold, then the Seller shall pay, in
lieu of the Purchase Price, any excess of the Purchase Price over the Net
Liquidation Proceeds received upon such sale. (If the Net Liquidation
Proceeds exceed the Purchase Price, any excess shall be paid to the Seller
to the extent not required by law to be paid to the borrower.) Any such
purchase by the Seller shall be made by providing an amount equal to the
Purchase
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Price to the Master Servicer for deposit in the Master Servicer Collection
Account and written notification detailing the components of such Purchase
Price. The Depositor shall notify the Trustee in writing of the deposit of
the Purchase Price and submit to the Trustee or the Custodian, as its
agent, a Request for Release, and the Trustee shall release, or the Trustee
shall cause the Custodian to release, to the Seller the related Mortgage
File and the Trustee shall execute and deliver all instruments of transfer
or assignment furnished to it by the Seller, without recourse, as are
necessary to vest in the Seller title to and rights under the Mortgage Loan
or any property acquired with respect thereto. Such purchase shall be
deemed to have occurred on the date on which the Purchase Price in
available funds is received by the Master Servicer. The Depositor or the
Master Servicer shall amend the Mortgage Loan Schedule to reflect such
repurchase and shall promptly notify the Master Servicer and the Rating
Agencies of such amendment. Enforcement of the obligation of the Seller to
purchase (or substitute a Substitute Mortgage Loan for) any Mortgage Loan
or any property acquired with respect thereto (or pay the Purchase Price as
set forth in the above proviso) as to which a breach has occurred and is
continuing shall constitute the sole remedy respecting such breach
available to the Certificateholders or the Trustee on their behalf.
Section 2.04 Substitution of Mortgage Loans. Notwithstanding anything to
the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant
to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this
Agreement, the Seller may, no later than the date by which such purchase by the
Seller would otherwise be required, tender to the Trustee a Substitute Mortgage
Loan accompanied by a certificate of an authorized officer of the Seller that
such Substitute Mortgage Loan conforms to the requirements set forth in the
definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement
or this Agreement, as applicable; provided, however, that substitution pursuant
to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable, in lieu of purchase shall not be permitted after the termination of
the two-year period beginning on the Startup Day; provided, further, that if the
breach would cause the Mortgage Loan to be other than a "qualified mortgage" as
defined in Section 860G(a)(3) of the Code, any such cure or substitution must
occur within 90 days from the date the breach was discovered. The Trustee or the
Custodian, as its agent, shall examine the Mortgage File for any Substitute
Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the
Custodian, as its agent, shall notify the Seller, in writing, within five
Business Days after receipt, whether or not the documents relating to the
Substitute Mortgage Loan satisfy the requirements of the fourth sentence of
Subsection 2.02(a). Within two Business Days after such notification, the Seller
shall provide to the Securities Administrator for deposit in the Distribution
Account the amount, if any, by which the Outstanding Principal Balance as of the
next preceding Due Date of the Mortgage Loan for which substitution is being
made, after giving effect to Scheduled Principal due on such date, exceeds the
Outstanding Principal Balance as of such date of the Substitute Mortgage Loan,
after giving effect to Scheduled Principal due on such date, which amount shall
be treated for the purposes of this Agreement as if it were the payment by the
Seller of the Purchase Price for the purchase of a Mortgage Loan by the Seller.
After such notification to the Seller and, if any such excess exists, upon
receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan
which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event
of such a substitution, accrued interest on the Substitute Mortgage Loan for the
month in which the substitution occurs and any Principal Prepayments made
thereon during such month shall be the property of the Issuing Entity and
accrued interest for such month on the Mortgage Loan for which the substitution
is made and any Principal Prepayments made
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thereon during such month shall be the property of the Seller. The Scheduled
Principal on a Substitute Mortgage Loan due on the Due Date in the month of
substitution shall be the property of the Seller and the Scheduled Principal on
the Mortgage Loan for which the substitution is made due on such Due Date shall
be the property of the Issuing Entity. Upon acceptance of the Substitute
Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release
for such Mortgage Loan), the Trustee shall release to the Seller the related
Mortgage File related to any Mortgage Loan released pursuant to the Mortgage
Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and
shall execute and deliver all instruments of transfer or assignment, without
recourse, in form as provided to it as are necessary to vest in the Seller title
to and rights under any Mortgage Loan released pursuant to the Mortgage Loan
Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller
shall deliver the documents related to the Substitute Mortgage Loan in
accordance with the provisions of the Mortgage Loan Purchase Agreement or
Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date
of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for
purposes of the time periods set forth in those Subsections. The representations
and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed
to have been made by the Seller with respect to each Substitute Mortgage Loan as
of the date of acceptance of such Mortgage Loan by the Trustee. The Master
Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and
shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and
the Rating Agencies.
Notwithstanding any other provision of this Agreement, the right to
substitute Mortgage Loans pursuant to this Article II shall be subject to the
additional limitations that no substitution of a Mortgage Loan shall be made
unless the Securities Administrator and the Trustee shall have received an
Opinion of Counsel (at the expense of the party seeking to make the
substitution) that, under current law, such substitution will not (A) affect
adversely the status of any REMIC established hereunder as a REMIC, or of the
related "regular interests" as "regular interests" in any such REMIC, or (B)
cause any such REMIC to engage in a "prohibited transaction" or prohibited
contribution pursuant to the REMIC provisions.
Section 2.05 Issuance of Certificates. The Trustee acknowledges the
assignment to it on behalf of the Issuing Entity of the Mortgage Loans and the
other assets comprising the Trust Fund and, concurrently therewith, the
Securities Administrator has signed, and countersigned and delivered to the
Depositor, in exchange therefor, Certificates in such authorized denominations
representing such Percentage Interests as the Depositor has requested. The
Trustee agrees that it will hold the Mortgage Loans and such other assets as may
from time to time be delivered to it segregated on the books of the Trustee in
trust for the benefit of the Certificateholders.
Section 2.06 Representations and Warranties Concerning the Depositor. The
Depositor hereby represents and warrants to the Trustee, the Master Servicer and
the Securities Administrator as follows:
(i) the Depositor (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
(b) is qualified and in good standing as a foreign corporation to do
business in each jurisdiction where such qualification is necessary, except
where the failure so to qualify would not reasonably be expected to have a
material adverse effect on the Depositor's business as presently
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conducted or on the Depositor's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(ii) the Depositor has full corporate power to own its property, to
carry on its business as presently conducted and to enter into and perform
its obligations under this Agreement;
(iii) the execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of
the Depositor; and neither the execution and delivery of this Agreement,
nor the consummation of the transactions herein contemplated, nor
compliance with the provisions hereof, will conflict with or result in a
breach of, or constitute a default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the
Depositor or its properties or the articles of incorporation or by-laws of
the Depositor, except those conflicts, breaches or defaults which would not
reasonably be expected to have a material adverse effect on the Depositor's
ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(iv) the execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except those
consents, approvals, notices, registrations or other actions as have
already been obtained, given or made;
(v) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the
Depositor enforceable against it in accordance with its terms (subject to
applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally);
(vi) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened against the Depositor, before or by
any court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement or (ii)
with respect to any other matter which in the judgment of the Depositor
will be determined adversely to the Depositor and will if determined
adversely to the Depositor materially and adversely affect the Depositor's
ability to enter into this Agreement or perform its obligations under this
Agreement; and the Depositor is not in default with respect to any order of
any court, administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this
Agreement; and
(vii) immediately prior to the transfer and assignment to the Trustee,
each Mortgage Note and each Mortgage were not subject to an assignment or
pledge, and the Depositor had good and marketable title to and was the sole
owner thereof and had full right to transfer and sell such Mortgage Loan to
the Trustee free and clear of any encumbrance, equity, lien, pledge,
charge, claim or security interest.
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Section 2.07 Representations and Warranties Concerning the Master Servicer
and Securities Administrator. Xxxxx Fargo Bank, Bank, National Association, in
its capacity as Master Servicer and Securities Administrator hereby represents
and warrants to the Seller, the Depositor and the Trustee as follows, as of the
Closing Date:
(i) It is a national banking association duly formed, validly existing
and in good standing under the laws of the United States of America and is
duly authorized and qualified to transact any and all business contemplated
by this Agreement to be conducted by the Master Servicer and the Securities
Administrator, to the extent necessary to ensure its ability to master
service the Mortgage Loans in accordance with the terms of this Agreement
and to perform any of its other obligations under this Agreement in
accordance with the terms hereof;
(ii) It has the full corporate power and authority to execute, deliver
and perform, and to enter into and consummate the transactions contemplated
by this Agreement and has duly authorized by all necessary corporate action
on its part the execution, delivery and performance of this Agreement; and
this Agreement, assuming the due authorization, execution and delivery
hereof by the other parties hereto, constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms,
except that (a) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
(iii) The execution and delivery of this Agreement by it, the
consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms hereof are
in its ordinary course of business and will not (A) result in a material
breach of any term or provision of its charter or by-laws or (B) materially
conflict with, result in a material breach, violation or acceleration of,
or result in a material default under, the terms of any other material
agreement or instrument to which it is a party or by which it may be bound,
or (C) constitute a material violation of any statute, order or regulation
applicable to it of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it; and it is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair its
ability to perform or meet any of its obligations under this Agreement.
(iv) No litigation is pending or, to the best of its knowledge,
threatened, against it that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or its ability to
perform any of its other obligations under this Agreement in accordance
with the terms hereof.
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for its execution, delivery and
performance of, or compliance
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with, this Agreement or the consummation of the transactions contemplated
hereby, or if any such consent, approval, authorization or order is
required, it has obtained the same.
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ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicer. The Master Servicer shall supervise, monitor
and oversee the obligation of the Servicers to service and administer their
respective Mortgage Loans in accordance with the terms of the applicable
Servicing Agreement and shall have full power and authority to do any and all
things which it may deem necessary or desirable in connection with such master
servicing and administration. In performing its obligations hereunder, the
Master Servicer shall act in a manner consistent with Accepted Master Servicing
Practices. Furthermore, the Master Servicer shall oversee and consult with each
Servicer as necessary from time-to-time to carry out the Master Servicer's
obligations hereunder, shall receive, review and evaluate all reports,
information and other data provided to the Master Servicer by each Servicer and
shall cause each Servicer to perform and observe the covenants, obligations and
conditions to be performed or observed by such Servicer under the applicable
Servicing Agreement. The Master Servicer shall independently and separately
monitor each Servicer's servicing activities with respect to each related
Mortgage Loan, reconcile the results of such monitoring with such information
provided in the previous sentence on a monthly basis and coordinate corrective
adjustments to the Servicers' and Master Servicer's records, and based on such
reconciled and corrected information, the Master Servicer shall provide such
information to the Securities Administrator as shall be necessary in order for
it to prepare the statements specified in Section 6.04, and prepare any other
information and statements required to be forwarded by the Master Servicer
hereunder. The Master Servicer shall reconcile the results of its monitoring
with the actual remittances of the Servicers to the Master Servicer Collection
Account pursuant to the applicable Servicing Agreements.
If the Master Servicer and the Securities Administrator are the same
entity, then at any time the Master Servicer is terminated as Master Servicer,
the Securities Administrator shall likewise be removed as securities
administrator.
The Trustee shall furnish the Servicers and the Master Servicer with any
limited powers of attorney and other documents in form acceptable to it
necessary or appropriate to enable the Servicers and the Master Servicer to
service and administer the related Mortgage Loans and REO Property. The Trustee
shall have no liability with respect to the use of any such limited power of
attorney.
The Trustee or the Custodian shall provide access to the records and
documentation in possession of the Trustee or the Custodian regarding the
related Mortgage Loans and REO Property and the servicing thereof to the
Certificateholders, the FDIC, and the supervisory agents and examiners of the
FDIC, such access being afforded only upon reasonable prior written request and
during normal business hours at the office of the Trustee or the Custodian;
provided, however, that, unless otherwise required by law, the Trustee or the
Custodian shall not be required to provide access to such records and
documentation if the provision thereof would violate the legal right to privacy
of any Mortgagor. The Trustee or the Custodian shall allow representatives of
the above entities to photocopy any of the records and documentation and shall
provide equipment for that purpose at a charge that covers the Trustee's or the
Custodian's actual costs.
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The Trustee shall execute and deliver to the related Servicer and the
Master Servicer upon request any court pleadings, requests for trustee's sale or
other documents necessary or desirable to (i) the foreclosure or trustee's sale
with respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Security Instrument;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or Security Instrument or
otherwise available at law or equity.
Section 3.02 REMIC-Related Covenants. For as long as each REMIC shall
exist, the Trustee and the Securities Administrator shall act in accordance
herewith to assure continuing treatment of such REMIC as a REMIC, and the
Trustee and the Securities Administrator shall comply with any directions of the
Depositor, the related Servicer or the Master Servicer to assure such continuing
treatment. In particular, the Trustee shall not (a) sell or permit the sale of
all or any portion of the Mortgage Loans or of any investment of deposits in an
Account unless such sale is as a result of a repurchase of the Mortgage Loans
pursuant to this Agreement or the Trustee has received a REMIC Opinion prepared
at the expense of the Issuing Entity; and (b) other than with respect to a
substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of
this Agreement, as applicable, accept any contribution to any REMIC after the
Startup Day without receipt of a REMIC Opinion.
Section 3.03 Monitoring of Servicers. (a) The Master Servicer shall be
responsible for reporting to the Trustee and the Depositor the compliance by
each Servicer with its duties under the related Servicing Agreement. In the
review of each Servicer's activities, the Master Servicer may rely upon an
officer's certificate of the Servicer with regard to such Servicer's compliance
with the terms of its Servicing Agreement. In the event that the Master
Servicer, in its judgment, determines that a Servicer should be terminated in
accordance with its Servicing Agreement, or that a notice should be sent
pursuant to such Servicing Agreement with respect to the occurrence of an event
that, unless cured, would constitute grounds for such termination, the Master
Servicer shall notify the Depositor and the Trustee thereof and the Master
Servicer shall issue such notice or take such other action as it deems
appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under
the related Servicing Agreement, and shall, in the event that a Servicer
fails to perform its obligations in accordance with the related Servicing
Agreement, subject to the preceding paragraph, terminate the rights and
obligations of such Servicer thereunder and act as servicer of the related
Mortgage Loans or, if the Master Servicer is unwilling or unable to act as
a Servicer, the Master Servicer shall cause the Trustee to enter in to a
new Servicing Agreement with a successor Servicer selected by the Master
Servicer that is eligible in accordance with the criteria specified in this
Agreement; provided, however, it is understood and acknowledged by the
parties hereto that there will be a period of transition (not to exceed 90
days) before the actual servicing functions can be fully transferred to
such successor servicer. In either event, such enforcement, including,
without limitation, the legal prosecution of claims, termination of the
Servicing Agreements and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the
Master Servicer, in its good faith business judgment, would require were it
the owner of the related Mortgage Loans. The Master Servicer shall pay the
costs of such enforcement at its own expense subject to Section 3.03(c),
provided that the Master Servicer
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shall not be required to prosecute or defend any legal action except to the
extent that the Master Servicer shall have received reasonable indemnity
for its costs and expenses in pursuing such action.
(c) To the extent that the costs and expenses of the Master Servicer
related to any termination of a Servicer, appointment of a successor
Servicer or the transfer and assumption of servicing by the Master Servicer
with respect to any Servicing Agreement (including, without limitation, (i)
all legal costs and expenses and all due diligence costs and expenses
associated with an evaluation of the potential termination of a Servicer as
a result of an event of default by such Servicer and (ii) all costs and
expenses associated with the complete transfer of servicing, including all
servicing files and all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the successor
servicer to correct any errors or insufficiencies in the servicing data or
otherwise to enable the successor service to service the Mortgage Loans in
accordance with the related Servicing Agreement) are not fully and timely
reimbursed by the terminated Servicer, the Master Servicer shall be
entitled to reimbursement of such costs and expenses from the Master
Servicer Collection Account pursuant to Section 4.03(b).
(d) The Master Servicer shall require each Servicer to comply with the
remittance requirements and other obligations set forth in the related
Servicing Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of such Servicer, if any,
that it replaces.
Section 3.04 Fidelity Bond. The Master Servicer, at its expense, shall
maintain in effect a blanket fidelity bond and an errors and omissions insurance
policy, affording coverage with respect to all directors, officers, employees
and other Persons acting on such Master Servicer's behalf, and covering errors
and omissions in the performance of the Master Servicer's obligations hereunder.
The errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
Section 3.05 Power to Act; Procedures. The Master Servicer shall master
service the Mortgage Loans and shall have full power and authority, subject to
the REMIC Provisions and the provisions of Article X hereof, to do any and all
things that it may deem necessary or desirable in connection with the master
servicing and administration of the Mortgage Loans, including but not limited to
the power and authority (i) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages, (iii) to
collect any Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan, in each case, in accordance with the provisions of
this Agreement and the related Servicing Agreement, as applicable; provided,
however, that the Master Servicer shall not (and, consistent with its
responsibilities under Section 3.03, shall not permit any Servicer to) knowingly
or intentionally take any action, or fail to take (or fail to cause to be taken)
any action reasonably within its control and the scope of duties more
specifically set forth herein, that, under the REMIC Provisions, if taken or not
taken, as the case may be, would cause any REMIC created hereunder to fail to
qualify as a REMIC or result in the imposition of a tax upon the Issuing Entity
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(including but not limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth
in Section 860G(d) of the Code) unless the Master Servicer has received an
Opinion of Counsel (but not at the expense of the Master Servicer) to the effect
that the contemplated action will not would cause any REMIC created hereunder to
fail to qualify as a REMIC or result in the imposition of a tax upon any REMIC
created hereunder. The Trustee shall furnish the Master Servicer, upon written
request from a Servicing Officer, with any limited powers of attorney (in form
acceptable to the Trustee) empowering the Master Servicer or any Servicer to
execute and deliver instruments of satisfaction or cancellation, or of partial
or full release or discharge, and to foreclose upon or otherwise liquidate
Mortgaged Property, and to appeal, prosecute or defend in any court action
relating to the Mortgage Loans or the Mortgaged Property, in accordance with the
applicable Servicing Agreement and this Agreement, and the Trustee shall execute
and deliver such other documents, as the Master Servicer may request, to enable
the Master Servicer to master service and administer the Mortgage Loans and
carry out its duties hereunder, in each case in accordance with Accepted Master
Servicing Practices (and the Trustee shall have no liability for misuse of any
such powers of attorney by the Master Servicer or any Servicer). If the Master
Servicer or the Trustee has been advised that it is likely that the laws of the
state in which action is to be taken prohibit such action if taken in the name
of the Trustee or that the Trustee would be adversely affected under the "doing
business" or tax laws of such state if such action is taken in its name, the
Master Servicer shall join with the Trustee in the appointment of a co-trustee
pursuant to Section 9.11 hereof. In the performance of its duties hereunder, the
Master Servicer shall be an independent contractor and shall not, except in
those instances where it is taking action in the name of the Trustee, be deemed
to be the agent of the Trustee.
Section 3.06 Due-on-Sale Clauses; Assumption Agreements. To the extent
provided in the applicable Servicing Agreement, to the extent Mortgage Loans
contain enforceable due-on-sale clauses, the Master Servicer shall cause the
Servicers to enforce such clauses in accordance with the applicable Servicing
Agreement. If applicable law prohibits the enforcement of a due-on-sale clause
or such clause is otherwise not enforced in accordance with the applicable
Servicing Agreement, and, as a consequence, a Mortgage Loan is assumed, the
original Mortgagor may be released from liability in accordance with the
applicable Servicing Agreement.
Section 3.07 Release of Mortgage Files. (a) Upon becoming aware of the
payment in full of any Mortgage Loan, or the receipt by any Servicer of a
notification that payment in full has been escrowed in a manner customary for
such purposes for payment to Certificateholders on the next Distribution Date,
the Servicers or the Master Servicer will, if required under the applicable
Servicing Agreement, promptly furnish to the Custodian, on behalf of the
Trustee, two copies of a certification substantially in the form of Exhibit D
hereto signed by a Servicing Officer or in a mutually agreeable electronic
format which will, in lieu of a signature on its face, originate from a
Servicing Officer (which certification shall include a statement to the effect
that all amounts received in connection with such payment that are required to
be deposited in the Protected Account maintained by the applicable Servicer
pursuant to its Servicing Agreement have been or will be so deposited) and shall
request that the Custodian, on behalf of the Trustee, deliver to the applicable
Servicer the related Mortgage File. Upon receipt of such certification and
request, the Custodian, on behalf of the Trustee, shall no later than five
Business Days (or, to the extent that the applicable Servicer notifies the
Seller that a document is not in the Servicer's possession as part of the
Servicing File which is needed for purposes of the Servicer complying with any
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applicable law, within such shorter period as may be necessary to enable the
Servicer to comply with such law), release the related Mortgage File to the
applicable Servicer and the Trustee and Custodian shall have no further
responsibility with regard to such Mortgage File. Upon any such payment in full,
each Servicer is authorized, to give, as agent for the Trustee, as the mortgagee
under the Mortgage that secured the Mortgage Loan, an instrument of satisfaction
(or assignment of mortgage without recourse) regarding the Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or assignment, as the
case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of such payment, it being understood and agreed that no
expenses incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the Protected Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan and in accordance with the applicable
Servicing Agreement, the Trustee shall execute such documents as requested
and as shall be prepared and furnished to the Trustee by a Servicer or the
Master Servicer and as are necessary to the prosecution of any such
proceedings. In connection with the foregoing, the Custodian, on behalf of
the Trustee, shall, upon the request of a Servicer or the Master Servicer,
and delivery to the Custodian, on behalf of the Trustee, of two copies of a
Request for Release signed by a Servicing Officer substantially in the form
of Exhibit D (or in a mutually agreeable electronic format which will, in
lieu of a signature on its face, originate from a Servicing Officer),
release the related Mortgage File held in its possession or control to the
related Servicer or the Master Servicer, as applicable. Such trust receipt
shall obligate the related Servicer or the Master Servicer to return the
Mortgage File to the Custodian on behalf of the Trustee, when the need
therefor by the Servicer or the Master Servicer no longer exists unless the
Mortgage Loan shall be liquidated, in which case, upon receipt of a
certificate of a Servicing Officer similar to that hereinabove specified,
the Mortgage File shall be released by the Custodian, on behalf of the
Trustee, to the related Servicer or the Master Servicer.
Section 3.08 Documents, Records and Funds in Possession of Master Servicer
To Be Held for Trustee.
(a) The Master Servicer shall transmit and each Servicer (to the
extent required by the related Servicing Agreement) shall transmit to the
Trustee or Custodian such documents and instruments coming into the
possession of the Master Servicer or such Servicer from time to time as are
required by the terms hereof, or in the case of the Servicers, the
applicable Servicing Agreement, to be delivered to the Trustee or
Custodian. Any funds received by the Master Servicer or by a Servicer in
respect of any Mortgage Loan or which otherwise are collected by the Master
Servicer or by a Servicer as Liquidation Proceeds or Insurance Proceeds in
respect of any Mortgage Loan shall be held for the benefit of the Trustee
and the Certificateholders subject to the Master Servicer's right to retain
or withdraw from the Master Servicer Collection Account the Master
Servicing Compensation and other amounts provided in this Agreement, and to
the right of each Servicer to retain its Servicing Fee and other amounts as
provided in the applicable Servicing Agreement. The Master Servicer shall,
and (to the extent provided in the applicable Servicing Agreement) shall
cause each Servicer to, provide access to information and documentation
regarding the Mortgage Loans to the Trustee, its agents and accountants at
any time upon reasonable request and during normal business hours, and to
Certificateholders that are savings and loan associations, banks or
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insurance companies, the Office of Thrift Supervision, the FDIC and the
supervisory agents and examiners of such Office and Corporation or
examiners of any other federal or state banking or insurance regulatory
authority if so required by applicable regulations of the Office of Thrift
Supervision or other regulatory authority, such access to be afforded
without charge but only upon reasonable request in writing and during
normal business hours at the offices of the Master Servicer designated by
it. In fulfilling such a request the Master Servicer shall not be
responsible for determining the sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer, in respect of any Mortgage Loans, whether
from the collection of principal and interest payments or from Liquidation
Proceeds or Insurance Proceeds, shall be held by the Master Servicer for
and on behalf of the Trustee and the Certificateholders and shall be and
remain the sole and exclusive property of the Trustee; provided, however,
that the Master Servicer and each Servicer shall be entitled to setoff
against, and deduct from, any such funds any amounts that are properly due
and payable to the Master Servicer or such Servicer under this Agreement or
the applicable Servicing Agreement.
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the related Servicing Agreements to
maintain or cause to be maintained standard fire and casualty insurance
and, where applicable, flood insurance, all in accordance with the
provisions of the related Servicing Agreements. It is understood and agreed
that such insurance shall be with insurers meeting the eligibility
requirements set forth in the applicable Servicing Agreement and that no
earthquake or other additional insurance is to be required of any Mortgagor
or to be maintained on property acquired in respect of a defaulted loan,
other than pursuant to such applicable laws and regulations as shall at any
time be in force and as shall require such additional insurance.
(b) Pursuant to Section 4.01 and 4.02, any amounts collected by the
Servicers or the Master Servicer, under any insurance policies (other than
amounts to be applied to the restoration or repair of the property subject
to the related Mortgage or released to the Mortgagor in accordance with the
applicable Servicing Agreement) shall be deposited into the Master Servicer
Collection Account, subject to withdrawal pursuant to Section 4.02 and 4.03
in accordance with the terms and conditions of the related Servicing
Agreement. Any cost incurred by the Master Servicer or any Servicer in
maintaining any such insurance if the Mortgagor defaults in its obligation
to do so shall be added to the amount owing under the Mortgage Loan where
the terms of the Mortgage Loan so permit; provided, however, that the
addition of any such cost shall not be taken into account for purposes of
calculating the distributions to be made to Certificateholders and shall be
recoverable by the Master Servicer or such Servicer pursuant to Section
4.02 and 4.03.
Section 3.10 Presentment of Claims and Collection of Proceeds. The Master
Servicer shall (to the extent provided in the applicable Servicing Agreement)
cause the related Servicer to, prepare and present on behalf of the Trustee and
the Certificateholders all claims under the Insurance Policies and take such
actions (including the negotiation, settlement, compromise or enforcement of the
insured's claim) as shall be necessary to realize recovery under such policies.
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Any proceeds disbursed to the Master Servicer (or disbursed to a Servicer and
remitted to the Master Servicer) in respect of such policies, bonds or contracts
shall be promptly deposited in the Master Servicer Collection Account upon
receipt, except that any amounts realized that are to be applied to the repair
or restoration of the related Mortgaged Property as a condition precedent to the
presentation of claims on the related Mortgage Loan to the insurer under any
applicable Insurance Policy need not be so deposited (or remitted).
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies.
(a) The Master Servicer shall not take, or permit any Servicer (to the
extent such action is prohibited under the applicable Servicing Agreement)
to take, any action that would result in noncoverage under any applicable
Primary Mortgage Insurance Policy of any loss which, but for the actions of
such Master Servicer or Servicer, would have been covered thereunder. The
Master Servicer shall use its best reasonable efforts to cause each
Servicer (to the extent required under the related Servicing Agreement) to
keep in force and effect (to the extent that the Mortgage Loan requires the
Mortgagor to maintain such insurance), primary mortgage insurance
applicable to each Mortgage Loan in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable. The Master
Servicer shall not, and shall not permit any Servicer (to the extent
required under the related Servicing Agreement) to, cancel or refuse to
renew any such Primary Mortgage Insurance Policy that is in effect at the
date of the initial issuance of the Mortgage Note and is required to be
kept in force hereunder except in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer
(to the extent required under the related Servicing Agreement) to present,
on behalf of the Trustee and the Certificateholders, claims to the insurer
under any Primary Mortgage Insurance Policies and, in this regard, to take
such reasonable action as shall be necessary to permit recovery under any
Primary Mortgage Insurance Policies respecting defaulted Mortgage Loans.
Pursuant to Section 4.01 and 4.02, any amounts collected by the Master
Servicer or any Servicer under any Primary Mortgage Insurance Policies
shall be deposited in the Master Servicer Collection Account, subject to
withdrawal pursuant to Section 4.03.
Section 3.12 Trustee to Retain Possession of Certain Insurance Policies and
Documents.
The Trustee or the Custodian shall retain possession and custody of the
originals (to the extent available) of any Primary Mortgage Insurance Policies,
or certificate of insurance if applicable, and any certificates of renewal as to
the foregoing as may be issued from time to time as contemplated by this
Agreement. Until all amounts distributable in respect of the Certificates have
been distributed in full and the Master Servicer otherwise has fulfilled its
obligations under this Agreement, the Trustee or its Custodian shall also retain
possession and custody of each Mortgage File in accordance with and subject to
the terms and conditions of this Agreement. The Master Servicer shall promptly
deliver or cause to be delivered to the Trustee or the Custodian upon the
execution or receipt thereof the originals of any Primary Mortgage Insurance
Policies, any certificates of renewal, and such other documents or instruments
that constitute portions of the Mortgage File that come into the possession of
the Master Servicer from time to time.
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Section 3.13 Realization Upon Defaulted Mortgage Loans. The Master Servicer
shall cause each Servicer (to the extent required under the related Servicing
Agreement) to foreclose upon, repossess or otherwise comparably convert the
ownership of Mortgaged Properties securing such of the Mortgage Loans as come
into and continue in default and as to which no satisfactory arrangements can be
made for collection of delinquent payments, all in accordance with the terms and
conditions of the applicable Servicing Agreement.
Section 3.14 Compensation for the Master Servicer.
The Master Servicer will be entitled to all income and gain realized from
any investment of funds in the Master Servicer Collection Account, pursuant to
Article IV, for the performance of its activities hereunder. Servicing
compensation in the form of assumption fees, if any, late payment charges, as
collected, if any, or otherwise (but not including any prepayment premium or
penalty) shall be retained by the applicable Servicer and shall not be deposited
in the Protected Account. The Master Servicer shall be required to pay all
expenses incurred by it in connection with its activities hereunder and shall
not be entitled to reimbursement therefor except as provided in this Agreement.
Section 3.15 REO Property.
(a) In the event the Issuing Entity acquires ownership of any REO Property
in respect of any related Mortgage Loan, the deed or certificate of sale shall
be issued to the Trustee, or to its nominee, on behalf of the related
Certificateholders. The Master Servicer shall, to the extent provided in the
applicable Servicing Agreement, cause the applicable Servicer to sell, any REO
Property as expeditiously as possible and in accordance with the provisions of
this Agreement and the related Servicing Agreement, as applicable. Pursuant to
its efforts to sell such REO Property, the Master Servicer shall cause the
applicable Servicer to protect and conserve, such REO Property in the manner and
to the extent required by the applicable Servicing Agreement, in accordance with
the REMIC Provisions and in a manner that does not result in a tax on "net
income from foreclosure property" or cause such REO Property to fail to qualify
as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code.
(b) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Protected Account.
(c) The Master Servicer and the applicable Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Monthly Advances and other unreimbursed advances as well as
any unpaid Servicing Fees from Liquidation Proceeds received in connection with
the final disposition of such REO Property; provided, that any such unreimbursed
Monthly Advances as well as any unpaid Servicing Fees may be reimbursed or paid,
as the case may be, prior to final disposition, out of any net rental income or
other net amounts derived from such REO Property.
(d) To the extent provided in the related Servicing Agreement, the
Liquidation Proceeds from the final disposition of the REO Property, net of any
payment to the Master Servicer and the applicable Servicer as provided above
shall be deposited in the Protected
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Account on or prior to the Determination Date in the month following receipt
thereof and be remitted by wire transfer in immediately available funds to the
Master Servicer for deposit into the related Master Servicer Collection Account
on the next succeeding Servicer Remittance Date.
Section 3.16 Annual Statement as to Compliance.
Not later than the date specified in the related Servicing Agreement (or
related Assignment Agreement) for each calendar year (other than the calendar
year during which the Closing Date occurs), each Servicer shall deliver (or
otherwise make available) and each Servicer shall cause any Servicing Function
Participant engaged by it to deliver to the Master Servicer, the Securities
Administrator and the Depositor, an Officer's Certificate in the form attached
hereto as Exhibit P stating, as to each signatory thereof, that (i) a review of
the activities of such signatory during the preceding calendar year, or portion
thereof, and of the performance of such signatory under the related Servicing
Agreement or such other applicable agreement in the case of a Servicing Function
Participant has been made under such officer's supervision, and (ii) to the best
of such officer's knowledge, based on such review, such signatory has fulfilled
all its obligations under this Agreement, the related Servicing Agreement or
such other applicable agreement in all material respects throughout such year or
a portion thereof, or, if there has been a failure to fulfill any such
obligation in any material respect, specifying each such failure known to such
officer and the nature and status thereof.
The Master Servicer and the Securities Administrator shall deliver (or
otherwise make available) (and the Trustee, the Master Servicer and Securities
Administrator shall cause any Servicing Function Participant engaged by it to
deliver) to the Depositor and the Securities Administrator on or before March 1
(with a ten-calendar day cure period) of each year, commencing in March 2007, an
Officer's Certificate stating, as to the signer thereof, that (A) a review of
such party's activities during the preceding calendar year or portion thereof
and of such party's performance under this Agreement, or such other applicable
agreement in the case of a Servicing Function Participant, has been made under
such officer's supervision and (B) to the best of such officer's knowledge,
based on such review, such party has fulfilled all its obligations under this
Agreement, or such other applicable agreement in the case of a Servicing
Function Participant, in all material respects throughout such year or portion
thereof, or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each such failure known to such officer and the
nature and status thereof.
The Master Servicer shall include all annual statements of compliance
received by it from each Servicer with its own annual statement of compliance to
be submitted to the Securities Administrator pursuant to this Section.
In the event the Master Servicer, the Securities Administrator or any
Servicing Function Participant engaged by any such party or the Trustee is
terminated, assigns its rights and obligations under or resigns pursuant to the
terms of this Agreement, or such other applicable agreement in the case of a
Servicing Function Participant, as the case may be, such party shall provide, an
annual statement of compliance pursuant to this Section 3.16 or to such
applicable agreement, as the case may be, notwithstanding any such termination,
assignment or resignation.
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Section 3.17 Reports on Assessment of Compliance and Attestation.
(a) Not later than the date specified in the related Servicing Agreement
(or related Assignment Agreement) for each calendar year (other than the
calendar year during which the Closing Date occurs) each Servicer at its own
expense, shall furnish, and shall cause any Servicing Function Participant
engaged by it to furnish (unless in the case of a Subcontractor, such Servicer
has notified the Depositor and the Master Servicer in writing that such
compliance statement is not required for the Subcontractor) to the Master
Servicer, the Securities Administrator and the Depositor an officer's assessment
of its compliance with the Relevant Servicing Criteria during the preceding
calendar year as required by Rules 13a-18 and 15d-18 of the Exchange Act and
Item 1122 of Regulation AB (the "Assessment of Compliance"), which assessment
shall contain (A) a statement by such party of its responsibility for assessing
compliance with the Relevant Servicing Criteria, (B) a statement that such party
used the Relevant Servicing Criteria to assess compliance with the Relevant
Servicing Criteria, (C) such party's assessment of compliance with the Relevant
Servicing Criteria as of and for the fiscal year covered by the Form 10-K
required to be filed pursuant to Section 3.18, including, if there has been any
material instance of noncompliance with the Relevant Servicing Criteria, a
discussion of each such failure and the nature and status thereof, which
assessment shall be based on the activities it performs with respect to
asset-backed securities transactions taken as a whole involving such party that
are backed by the same asset type as the Mortgage Loans, and (D) a statement
that a registered public accounting firm has issued an attestation report on
such party's assessment of compliance with the Relevant Servicing Criteria as of
and for such period.
By March 1 (with a ten-calendar day cure period) of each year, commencing
in March 2007, the Master Servicer, the Securities Administrator and the
Custodian each at its own expense, shall furnish or otherwise make available,
and each such party and the Trustee shall cause any Servicing Function
Participant engaged by it to furnish, each at its own expense, to the Securities
Administrator and the Depositor, a report on an assessment of compliance with
the Relevant Servicing Criteria that contains (A) a statement by such party of
its responsibility for assessing compliance with the Relevant Servicing
Criteria, (B) a statement that such party used the Relevant Servicing Criteria
to assess compliance with the Relevant Servicing Criteria, (C) such party's
assessment of compliance with the Relevant Servicing Criteria as of and for the
fiscal year covered by the Form 10-K required to be filed pursuant to Sections
3.18(h), (i), (j) and (k), including, if there has been any material instance of
noncompliance with the Relevant Servicing Criteria, a discussion of each such
failure and the nature and status thereof, and (D) a statement that a registered
public accounting firm has issued an attestation report on such party's
assessment of compliance with the Relevant Servicing Criteria as of and for such
period.
No later than the end of each fiscal year for the Trust for which a 10-K is
required to be filed, the Master Servicer, the Custodian and the Trustee shall
each forward to the Securities Administrator and the Depositor the name of each
Servicing Function Participant engaged by it and what Relevant Servicing
Criteria will be addressed in the report on assessment of compliance prepared by
such Servicing Function Participant (provided, however, that the Master Servicer
need not provide such information to the Securities Administrator so long as the
Master Servicer and the Securities Administrator are the same Person). When the
Master Servicer, and the Securities Administrator (or any Servicing Function
Participant engaged by them or the
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Trustee) submit their assessments to the Securities Administrator, such parties
will also at such time include the assessment and attestation pursuant to this
Section 3.17 of each Servicing Function Participant engaged by it.
Promptly after receipt of each report on assessment of compliance, (i) the
Depositor shall review each such report and, if applicable, consult with such
Servicer, the Master Servicer, the Securities Administrator and any Servicing
Function Participant engaged by any such party as to the nature of any material
instance of noncompliance with the Relevant Servicing Criteria by such Servicer
by each such party, and (ii) the Securities Administrator shall confirm that the
assessments individually address the Relevant Servicing Criteria for each party
as set forth on Exhibit K or any similar exhibit set forth in each Servicing
Agreement in respect of each Servicer and notify the Depositor of any
exceptions.
The Master Servicer shall include all annual reports on assessment of
compliance received by it from the Servicers with its own assessment of
compliance to be submitted to the Securities Administrator pursuant to this
Section.
In the event the Master Servicer, the Securities Administrator or any
Servicing Function Participant engaged by any such party or the Trustee is
terminated, assigns its rights and obligations under or resigns pursuant to the
terms of this Agreement, or any other applicable agreement, as the case may be,
such party shall provide, an assessment of compliance pursuant to this Section
3.17, coupled with an attestation as required in this Section 3.17, or such
applicable agreement notwithstanding any such termination, assignment or
resignation.
(b) Not later than the date specified in the related Servicing Agreement
(or related Assignment Agreement) for each calendar year (other than the
calendar year during which the Closing Date occurs) each Servicer at its own
expense, shall cause, and shall cause any Servicing Function Participant engaged
by it to cause (unless in the case of a Subcontractor, such Servicer has
notified the Depositor and the Master Servicer in writing that such report is
not required for the Subcontractor) a nationally or regionally recognized firm
of independent registered public accountants (who may also render other services
to such Servicer, the Master Servicer or any affiliate thereof) which is a
member of the American Institute of Certified Public Accountants to furnish a
report (the "Accountant's Attestation") to the Master Servicer, the Securities
Administrator and the Depositor to the effect that (i) it has obtained a
representation regarding certain matters from the management of such party,
which includes an assertion that such party has complied with the Relevant
Servicing Criteria, and (ii) on the basis of an examination conducted by such
firm in accordance with standards for attestation engagements issued or adopted
by the Public Company Accounting Oversight Board, it is expressing an opinion as
to whether such party's compliance with the Relevant Servicing Criteria was
fairly stated in all material respects, or it cannot express an overall opinion
regarding such party's assessment of compliance with the Relevant Servicing
Criteria. In the event that an overall opinion cannot be expressed, such
registered public accounting firm shall state in such report why it was unable
to express such an opinion. Such report must be available for general use and
not contain restricted use language. Such Accountant's Attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act.
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By March 1 (with a ten-calendar day cure period) of each year, commencing
in March 2007, the Master Servicer, the Securities Administrator and the
Custodian, each at its own expense, shall cause, and each such party and the
Trustee shall cause any Servicing Function Participant engaged by it to cause,
each at its own expense, a registered public accounting firm (which may also
render other services to the Master Servicer, the Trustee, the Securities
Administrator, or such other Servicing Function Participants, as the case may
be) and that is a member of the American Institute of Certified Public
Accountants to furnish an attestation report to the Securities Administrator and
the Depositor, to the effect that (i) it has obtained a representation regarding
certain matters from the management of such party, which includes an assertion
that such party has complied with the Relevant Servicing Criteria, and (ii) on
the basis of an examination conducted by such firm in accordance with standards
for attestation engagements issued or adopted by the Public Company Accounting
Oversight Board, it is expressing an opinion as to whether such party's
compliance with the Relevant Servicing Criteria was fairly stated in all
material respects, or it cannot express an overall opinion regarding such
party's assessment of compliance with the Relevant Servicing Criteria. In the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express such an
opinion. Such report must be available for general use and not contain
restricted use language.
(c) Promptly after receipt of each assessment of compliance and attestation
report, the Securities Administrator shall confirm that each assessment
submitted pursuant to Section 3.17(a) is coupled with an attestation meeting the
requirements of Section 3.17(b) and notify the Depositor of any exceptions.
The Master Servicer shall include each such attestation furnished to it by
the Servicers with its own attestation to be submitted to the Securities
Administrator pursuant to this Section.
In the event the Master Servicer, the Securities Administrator, the
Custodian, any Servicer or any Servicing Function Participant engaged by any
such party, is terminated, assigns its rights and duties under, or resigns
pursuant to the terms of, this Agreement, or any applicable Custodial Agreement,
Servicing Agreement or sub-servicing agreement, as the case may be, such party
shall cause a registered public accounting firm to provide an attestation
pursuant to this Section 3.17, or such other applicable agreement,
notwithstanding any such termination, assignment or resignation.
Section 3.18 Periodic Filings.
(a) Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and if
requested by the Depositor, the Securities Administrator shall prepare and file
on behalf of the Issuing Entity a Form 8-K, as required by the Exchange Act,
provided that the Depositor shall file the initial Form 8-K in connection with
the issuance of the Certificates. Any disclosure or information related to a
Reportable Event or that is otherwise required to be included on Form 8-K (other
than the initial Form 8-K) ("Form 8-K Disclosure Information") shall be reported
by the parties set forth on Exhibit Q-3 to the Depositor and the Securities
Administrator and directed and approved by the Depositor, and the Securities
Administrator will have no duty or liability
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for any failure hereunder to determine or prepare any Form 8-K Disclosure
Information or any Form 8-K except as set forth in the next paragraph.
(b) For so long as the Issuing Entity is subject to the reporting
requirements of the Exchange Act, following the occurrence of a Reportable Event
(A) each party listed on Exhibit Q-3 hereto shall use commercially reasonable
best efforts to provide immediate notice to the Master Servicer, the Securities
Administrator and the Depositor, by fax and by phone or by e-mail and by phone,
(B) each such party shall be required to provide to the Securities Administrator
and the Depositor, to the extent known, in XXXXX-compatible format or in such
other format as agreed upon by the Securities Administrator and such party, the
form and substance of any Form 8-K Disclosure Information if applicable,
together with the form set forth on Exhibit O (the "Additional Disclosure
Notification") by the close of business New York City time on the 2nd Business
Day following the occurrence of such Reportable Event and (C) the Depositor,
shall approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Form 8-K Disclosure Information on Form 8-K. The Securities
Administrator has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit Q-3 of their duties under this
paragraph or proactively solicit or procure from such parties any Form 8-K
Disclosure Information. The Depositor will be responsible for any reasonable
fees and expenses assessed or incurred by the Securities Administrator in
connection with including any Form 8-K Disclosure Information on Form 8-K
pursuant to this paragraph.
(c) After preparing the Form 8-K, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 8-K to the Depositor for
review. Promptly, but no later than the close of business on the third Business
Day after the Reportable Event, the Depositor shall notify the Securities
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 8-K. In the absence of receipt of any written
changes or approval, or if the Depositor does not request a copy of a Form 8-K,
the Securities Administrator shall be entitled to assume that such Form 8-K is
in final form and the Securities Administrator may proceed with the execution
and filing of the Form 8-K. A duly authorized representative of the Master
Servicer shall sign each Form 8-K. If a Form 8-K cannot be filed on time or if a
previously filed Form 8-K needs to be amended, the Securities Administrator will
follow the procedures set forth in Section 3.18(n).
(d) Promptly (but no later than one Business Day) after filing with the
Commission, the Securities Administrator will make available on its internet
website a final executed copy of each Form 8-K prepared by the Securities
Administrator. The parties to this Agreement acknowledge that the performance by
the Master Servicer and the Securities Administrator of its duties under this
Section 3.18 related to the timely preparation, execution and filing of Form 8-K
is contingent upon the other parties hereto strictly observing all applicable
deadlines in the performance of their duties under this Section 3.18. The
Depositor acknowledges that the performance by the Master Servicer and the
Securities Administrator of its duties under this Section 3.18 related to the
timely preparation, execution and filing of Form 8-K is also contingent upon the
Servicers, the Custodian and any Servicing Function Participant strictly
observing deadlines no later than those set forth in this paragraph that are
applicable to the parties to this Agreement in the delivery to the Securities
Administrator of any necessary Form 8-K Disclosure Information pursuant to the
related Servicing Agreements, the Custodial
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Agreement or any other applicable agreement. Neither the Master Servicer nor the
Securities Administrator shall have any liability for any loss, expense, damage
or claim arising out of or with respect to any failure to properly prepare,
execute and/or timely file such Form 8-K, where such failure results from the
Securities Administrator's inability or failure to receive, on a timely basis,
any information from any other party hereto or any Servicer, Custodian or
Servicing Function Participant needed to prepare, arrange for execution or file
such Form 8-K.
(e) Within fifteen days after each Distribution Date (subject to permitted
extensions under the Exchange Act), the Securities Administrator shall, on
behalf of the Issuing Entity and in accordance with industry standards, prepare
and file with the Commission via the Electronic Data Gathering and Retrieval
System (XXXXX), a Form 10-D with (1) a copy of the Monthly Statement for such
Distribution Date as an exhibit thereto. Any disclosure in addition to the
Monthly Statement that is required to be included on Form 10-D ("Additional Form
10-D Disclosure") shall be reported by the parties set forth on Exhibit Q-1 to
the Depositor and the Securities Administrator and directed and approved by the
Depositor pursuant to the following paragraph, and the Securities Administrator
will have no duty or liability for any failure hereunder to determine or prepare
any Additional Form 10-D Disclosure except as set forth in the next paragraph.
(f) As set forth in Exhibit Q-1 hereto, for so long as the Issuing Entity
is subject to the reporting requirements of the Exchange Act, within five (5)
calendar days after the related Distribution Date (i) each party listed on
Exhibit Q-1 hereto shall be required to provide to the Depositor and the
Securities Administrator, to the extent known, in XXXXX-compatible format or in
such other format as agreed upon by the Securities Administrator and such party,
the form and substance of any Additional Form 10-D Disclosure if applicable
together with the Additional Disclosure Notification, and (ii) the Depositor
will approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Securities
Administrator has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit Q-1 of their duties under this
paragraph or proactively solicit or procure from such parties any Additional
Form 10-D Disclosure Information. The Depositor will be responsible for any
reasonable fees and expenses incurred by the Securities Administrator in
connection with including any Additional Form 10-D Disclosure on Form 10-D
pursuant to this paragraph.
(g) After preparing the Form 10-D, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 10-D to the Depositor for
review (provided that such Form 10-D includes any Additional Form 10-D
Disclosure). Within two Business Days after receipt of such copy, but no later
than the 12th calendar day after the Distribution Date, the Depositor shall
notify the Securities Administrator in writing (which may be furnished
electronically) of any changes to or approval of such Form 10-D. In the absence
of receipt of any written changes or approval, or if the Depositor does not
request a copy of a Form 10-D, the Securities Administrator shall be entitled to
assume that such Form 10-D is in final form and the Securities Administrator may
proceed with the execution and filing of the Form 10-D. A duly authorized
representative of the Master Servicer shall sign each Form 10-D. If a Form 10-D
cannot be filed on time or if a previously filed Form 10-D needs to be amended,
the Securities Administrator will follow the procedures set forth in Section
3.18(n). Promptly (but not later than one Business Day) after filing with the
Commission, the Securities
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Administrator will make available on its internet website a final executed copy
of each Form 10-D prepared and filed by the Securities Administrator. The
parties to this Agreement acknowledge that the performance by the Master
Servicer and the Securities Administrator of its respective duties under this
Section 3.18 related to the timely preparation, execution and filing of Form
10-D is contingent upon the other parties hereto strictly observing all
applicable deadlines in the performance of their duties under this Section 3.18.
The Depositor acknowledges that the performance by the Master Servicer and the
Securities Administrator of its duties under this Section 3.18 related to the
timely preparation, execution and filing of Form 10-D is also contingent upon
the Servicers, the Custodian and any Servicing Function Participant strictly
observing deadlines no later than those set forth in this paragraph that are
applicable to the parties to this Agreement in the delivery to the Securities
Administrator of any necessary Additional Form 10-D Disclosure pursuant to the
related Servicing Agreements, the Custodial Agreement or any other applicable
agreement. Neither the Master Servicer nor the Securities Administrator will
have any liability for any loss, expense, damage or claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such Form
10-D resulting from the Securities Administrator's inability or failure to
receive any information needed to prepare, arrange for execution or file such
Form 10-D on a timely basis.
(h) On or prior to the 90th calendar day after the end of the fiscal year
for the Issuing Entity or such earlier date as may be required by the Exchange
Act (the "10-K Filing Deadline") (it being understood that the fiscal year for
the Issuing Entity ends on December 31st of each year) commencing in March 2007,
the Securities Administrator shall, on behalf of the Issuing Entity and in
accordance with industry standards, prepare and file with the Commission via
XXXXX a Form 10 -K with respect to the Issuing Entity. Such Form 10-K shall
include the following items, in each case, as applicable, to the extent they
have been delivered to the Securities Administrator within the applicable time
frames set forth in this Agreement, the related Servicing Agreements and
Custodial Agreement (i) an annual compliance statement for the Master Servicer,
each Servicer, the Securities Administrator and any Servicing Function
Participant engaged by such parties or the Trustee (together with the Custodian,
each a "Reporting Servicer"), as described in Section 3.16 of this Agreement,
the related Servicing Agreement and Custodial Agreement; provided, however, that
the Securities Administrator, at its discretion, may omit from the Form 10-K any
annual compliance statement that is not required to be filed with such Form 10-K
pursuant to Regulation AB; (ii)(A) the annual reports on assessment of
compliance with Servicing Criteria for each Reporting Servicer (unless the
Depositor has determined that such compliance statement is not required by
Regulation AB), as described in Section 3.17 of this Agreement the related
Servicing Agreement and the Custodial Agreement, and (B) if any Reporting
Servicer's report on assessment of compliance with Servicing Criteria described
in Section 3.17 identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any Reporting Servicer's
report on assessment of compliance with Servicing Criteria described in Section
3.17 of this Agreement is not included as an exhibit to such Form 10-K,
disclosure that such report is not included and an explanation why such report
is not included; provided, however, that the Securities Administrator, at its
discretion, may omit from the Form 10-K any assessment of compliance or
attestation report described in clause (iii) below that is not required to be
filed with such Form 10-K pursuant to Regulation AB; (iii)(A) the registered
public accounting firm attestation report for each Reporting Servicer, as
described in Section 3.17 of this Agreement, the related Servicing Agreement and
Custodial Agreement,
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and (B) if any registered public accounting firm attestation report described
under Section 3.17 of this Agreement identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or if any
such registered public accounting firm attestation report is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and an
explanation why such report is not included, and (iv) a Xxxxxxxx-Xxxxx
Certification in the form attached hereto as Exhibit L, executed by the senior
officer in charge of securitizations of the Master Servicer. Any disclosure or
information in addition to (i) through (iv) above that is required to be
included on Form 10-K ("Additional Form 10-K Disclosure") shall be reported by
the parties as set forth in Exhibit Q-2 to the Depositor and the Securities
Administrator and directed and approved by the Depositor pursuant to the
following paragraph and the Securities Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Additional Form
10-K Disclosure except or set forth in the next paragraph.
(i) As set forth in Exhibit Q-2 hereto, no later than March 1 (with a ten
calendar day cure period) of each year that the Issuing Entity is subject to the
Exchange Act reporting requirements, commencing in March 2007, (i) the parties
listed on Exhibit Q-2 hereto shall be required to provide to the Depositor and
the Securities Administrator, to the extent known, in XXXXX-compatible format or
in such other format as agreed upon by the Securities Administrator and such
party, the form and substance of any Additional Form 10-K Disclosure, if
applicable together with the Additional Disclosure Notification, and (ii) the
Depositor will approve, as to form and substance, or disapprove, as the case may
be, the inclusion of the Additional Form 10-K Disclosure and shall forward such
Additional Form 10-K Disclosure. The Securities Administrator has no duty under
this Agreement to monitor or enforce the performance by the parties listed on
Exhibit Q-2 of their duties under this paragraph or proactively solicit or
procure from such parties any Additional Form 10-K Disclosure Information. The
Depositor will be responsible for any reasonable fees and expenses incurred by
the Securities Administrator in connection with including any Additional Form
10-K Disclosure on Form 10-K pursuant to this paragraph.
(j) After preparing the Form 10-K, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 10-K to the Depositor for
review. Within three Business Days after receipt of such copy, but no later than
March 25th, the Depositor shall notify the Securities Administrator in writing
(which may be furnished electronically) of any changes to or approval of such
Form 10-K. In the absence of receipt of any written changes or approval, or if
the Depositor does not request a copy of a Form 10-K, the Securities
Administrator shall be entitled to assume that such Form 10-K is in final form
and the Securities Administrator may proceed with the execution and filing of
the Form 10-K. A senior officer of the Master Servicer in charge of the master
servicing function shall sign the Form 10-K. If a Form 10-K cannot be filed on
time or if a previously filed Form 10-K needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 3.18(n). Promptly
(but no later than one Business Day) after filing with the Commission, the
Securities Administrator will make available on its internet website a final
executed copy of each Form 10-K prepared and filed by the Securities
Administrator. The parties to this Agreement acknowledge that the performance by
the Master Servicer and the Securities Administrator of its duties under this
Section 3.18 related to the timely preparation, execution and filing of Form
10-K is contingent upon such parties (and any Servicing Function
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Participant) strictly observing all applicable deadlines in the performance of
their duties under this Section 3.18, Section 3.16 and Section 3.17. The
Depositor acknowledges that the performance by the Master Servicer and the
Securities Administrator of its duties under this Section 3.18 related to the
timely preparation, execution and filing of Form 10-K is also contingent upon
the Servicers, the Custodian and any Servicing Function Participant strictly
observing deadlines no later than those set forth in this paragraph that are
applicable to the parties to this Agreement in the delivery to the Securities
Administrator of any necessary Additional Form 10-K Disclosure, any annual
statement of compliance and any assessment of compliance and attestation
pursuant to the related Servicing Agreement, the Custodial Agreement or any
other applicable agreement. Neither the Master Servicer nor the Securities
Administrator shall have any liability for any loss, expense, damage or claim
arising out of or with respect to any failure to properly prepare, execute
and/or timely file such Form 10-K resulting from the Securities Administrator's
inability or failure to receive any information from any other party hereto or
any Servicer, Custodian or Servicing Function Participant needed to prepare,
execute or file such Form 10-K.
(k) Each Form 10-K shall include a Xxxxxxxx-Xxxxx Certification, which
shall be in the form attached hereto as Exhibit L. Each Servicer shall sign and
provide, and each of the Servicers, the Master Servicer and the Securities
Administrator shall cause any Servicing Function Participant engaged by it to
sign and provide, to the person who signs the Xxxxxxxx-Xxxxx Certification (the
"Certifying Person") by March 1 (with a ten day cure period) of each year in
which the Issuing Entity is subject to the reporting requirements of the
Exchange Act and otherwise within a reasonable period of time upon request, a
certification (a "Back-Up Certification") (in the form attached hereto as
Exhibit M) upon which the Certifying Person, the entity for which the Certifying
Person acts as an officer and such entity's officers, directors and affiliates
(collectively, with the Certifying Person, the "Certification Parties") can
reasonably rely. The senior officer of the Master Servicer in charge of the
master servicing function shall serve as the Certifying Person on behalf of the
Trust. Such officer of the Certifying Person can be contacted by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile at 000-000-0000. In the
event any such party or Servicing Function Participant engaged by any such party
is terminated or resigns pursuant to the terms of this Agreement, or any other
applicable agreement, as the case may be, such party shall provide a Back-Up
Certification to the Master Servicer pursuant to this Section 3.18 with respect
to the period of time it was subject to this Agreement or any other applicable
agreement, as the case may be. Notwithstanding the foregoing, (i) the Master
Servicer and the Securities Administrator shall not be required to deliver a
Back-Up Certification to each other if both are the same Person and the Master
Servicer is the Certifying Person and (ii) the Master Servicer shall not be
obligated to sign the Xxxxxxxx-Xxxxx Certification in the event that it does not
receive any Back-Up Certification required to be furnished to it pursuant to
this section or any Servicing Agreement or Custodial Agreement.
(l) The Securities Administrator shall have no responsibility to file any
items with the Commission other than those specified in this section and the
Master Servicer shall execute any and all Form 10-Ds, 8-Ks and 10-Ks required
hereunder.
(m) On or prior to January 30 of the first year in which the Securities
Administrator is able to do so under applicable law, the Securities
Administrator shall prepare and file a Form
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15 Suspension Notification relating to the automatic suspension of reporting in
respect of the Issuing Entity under the Exchange Act.
(n) In the event that the Securities Administrator is unable to timely file
with the Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed by this Agreement because required disclosure information
was either not delivered to it or delivered to it after the delivery deadlines
set forth in this Agreement or for any other reason, the Securities
Administrator will promptly notify electronically the Depositor of such
inability to make a timely filing with the Commission. In the case of Form 10-D
and 10-K, the parties to this Agreement will cooperate to prepare and file a
Form 12b-25 and a 10-D/A and 10K/A, as applicable, pursuant to Rule 12b-25 of
the Exchange Act. In the case of Form 8-K, the Securities Administrator will,
upon receipt of all required Form 8-K Disclosure Information and upon the
approval and direction of the Depositor, include such disclosure information on
the next succeeding Form 10-D to be filed for the Issuing Entity. In the event
that any previously filed Form 8-K, 10-D or 10-K needs to be amended, in
connection with any Additional Form 10-D Disclosure (other than, in the case of
Form 10-D, for the purpose of restating any Monthly Statement), Additional Form
10-K Disclosure or Form 8-K Disclosure Information, the Securities Administrator
will electronically notify the Depositor and such other parties to the
transaction as are affected by such amendment, and such parties will cooperate
to prepare any necessary 8-K/A, 10-D/A or 10-K/A. Any Form 15, Form 12b-25 or
any amendment to Form 8-K, 10-D or 10-K shall be signed by duly authorized
representative or a senior officer in charge of master servicing, as applicable,
of the Master Servicer. The parties to this Agreement acknowledge that the
performance by the Master Servicer of its duties under this Section 3.18 related
to the timely preparation, execution and filing of Form 15, a Form 12b-25 or any
amendment to Form 8-K, 10-D or 10-K is contingent upon each such party
performing its duties under this Section. Neither the Master Servicer nor the
Securities Administrator shall have any liability for any loss, expense, damage
or claim arising out of or with respect to any failure to properly prepare,
execute and/or timely file any such Form 15, Form 12b-25 or any amendments to
Forms 8-K, 10-D or 10-K, where such failure results from the Securities
Administrator's inability or failure to receive, on a timely basis, any
information from any other party hereto or any Servicer, any Custodian or any
Servicing Function Participant needed to prepare, arrange for execution or file
such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K.
(o) If the Commission issues additional interpretative guidance or
promulgates additional rules or regulations with respect to Regulation AB or
otherwise, or if other changes in applicable law occur, that would require the
reporting arrangements, or the allocation of responsibilities with respect
thereto, described in this Section 3.18, to be conducted differently than as
described, the Depositor, and the Securities Administrator will reasonably
cooperate to amend the provisions of this Section 3.18 in order to comply with
such amended reporting requirements and such amendment of this Section 3.18. Any
such amendment shall be made in accordance with Section 11.02 without the
consent of the Certificateholders, and may result in a change in the reports
filed by the Securities Administrator on behalf of the Issuing Entity under the
Exchange Act. Notwithstanding the foregoing, the Depositor, and the Securities
Administrator shall not be obligated to enter into any amendment pursuant to
this Section 3.18 that adversely affects its obligations and immunities under
this Agreement.
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(p) The Depositor and the Securities Administrator agree to use their good
faith efforts to cooperate in complying with the requirements of this Section
3.18.
(q) Each of the parties agrees to provide to the Securities Administrator
such additional information related to such party as the Securities
Administrator may reasonably request, including evidence of the authorization of
the person signing any certificate or statement, financial information and
reports, and such other information related to such party or its performance
hereunder.
(r) Any notice or notification required to be delivered by the Securities
Administrator or Master Servicer to the Depositor pursuant to this Section 3.18,
may be delivered via facsimile to (000) 000.0000, via email to xxxx_xxxx@xx.xxx
or telephonically by calling Xxxx Park at (000) 000-0000.
Section 3.19 Compliance with Regulation AB.
Each of the parties hereto acknowledges and agrees that the purpose of
Sections 3.16, 3.17 and 3.18 is to facilitate compliance by the Depositor with
the provisions of Regulation AB, as such may be amended or clarified from time
to time. Therefore, each of the parties agrees that the parties' obligations
hereunder will be supplemented and modified as necessary to be consistent with
any such amendments, interpretive advice or guidance, convention or consensus
among active participants in the asset-backed securities markets, advice of
counsel, or otherwise in respect of the requirements of Regulation AB and the
parties shall comply with requests made by the Depositor for delivery of
additional or different information as the Depositor may determine in good faith
is necessary to comply with the provisions of Regulation AB. Any such
supplementation or modification shall be made in accordance with Section 11.02
without the consent of the Certificateholders, and may result in a change in the
reports filed by the Securities Administrator on behalf of the Issuing Entity
under the Exchange Act.
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ARTICLE IV
ACCOUNTS
Section 4.01 Protected Accounts. (a) The Master Servicer shall enforce the
obligation of each Servicer to establish and maintain a Protected Account in
accordance with the applicable Servicing Agreement, with records to be kept with
respect thereto on a Mortgage Loan by Mortgage Loan basis, into which accounts
shall be deposited within two Business Days (or as of such other time specified
in the related Servicing Agreement) of receipt all collections of principal and
interest on any Mortgage Loan and with respect to any REO Property received by a
Servicer, including Principal Prepayments, Insurance Proceeds, Liquidation
Proceeds, Subsequent Recoveries and advances made from the Servicer's own funds
(less servicing compensation as permitted by the applicable Servicing Agreement
in the case of the Servicer) and all other amounts to be deposited in the
Protected Account. The Servicer is hereby authorized to make withdrawals from
and deposits to the related Protected Account for purposes required or permitted
by this Agreement. To the extent provided in the related Servicing Agreement,
the Protected Account shall be held in a Designated Depository Institution and
segregated on the books of such institution in the name of the Trustee for the
benefit of Certificateholders.
(b) To the extent provided in the related Servicing Agreement, amounts on
deposit in a Protected Account may be invested in Permitted Investments in the
name of the Trustee for the benefit of Certificateholders and, except as
provided in the preceding paragraph, not commingled with any other funds, such
Permitted Investments to mature, or to be subject to redemption or withdrawal,
no later than the date on which such funds are required to be withdrawn for
deposit in the Master Servicer Collection Account, and shall be held until
required for such deposit. The income earned from Permitted Investments made
pursuant to this Section 4.01 shall be paid to the related Servicer under the
applicable Servicing Agreement, and the risk of loss of moneys required to be
distributed to the Certificateholders resulting from such investments shall be
borne by and be the risk of the related Servicer, as set forth in the applicable
Servicing Agreement. The related Servicer (to the extent provided in the related
Servicing Agreement) shall deposit the amount of any such loss in the Protected
Account within two Business Days of receipt of notification of such loss but not
later than the second Business Day prior to the Distribution Date on which the
moneys so invested are required to be distributed to the Certificateholders.
(c) To the extent provided in the related Servicing Agreement and subject
to this Article IV, on or before each Servicer Remittance Date, the related
Servicer shall withdraw or shall cause to be withdrawn from the Protected
Accounts and shall immediately deposit or cause to be deposited in the Master
Servicer Collection Account amounts representing the following collections and
payments (other than with respect to principal of or interest on the Mortgage
Loans due on or before the Cut-off Date) with respect to each Loan Group:
(i) Monthly Payments on the Mortgage Loans received or any related
portion thereof advanced by such Servicer pursuant to the related Servicing
Agreement which were due on or before the related Due Date, net of the
amount thereof comprising the Servicing Fees;
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(ii) Principal Prepayments in Full and any Liquidation Proceeds
received by such Servicer with respect to such Mortgage Loans in the
related Prepayment Period, with interest to the date of prepayment or
liquidation, net of the amount thereof comprising the Servicing Fees;
(iii) Curtailments received by such Servicer for such Mortgage Loans
in the related Prepayment Period; and
(iv) Any amount to be used as a Monthly Advance.
(d) Withdrawals by the Master Servicer may be made from an Account only to
make remittances as provided in Section 4.01(c), 4.02 and 4.03; to reimburse the
Master Servicer or a Servicer for Monthly Advances which have been recovered by
subsequent collection from the related Mortgagor; to remove amounts deposited in
error; to remove fees, charges or other such amounts deposited on a temporary
basis; or to clear and terminate the account at the termination of this
Agreement in accordance with Section 10.01. As provided in Sections 4.01(c) and
4.02(b) certain amounts otherwise due to the Servicers may be retained by them
as set forth in the related Servicing Agreements and need not be deposited in
the Master Servicer Collection Account.
Section 4.02 Master Servicer Collection Account. (a) The Master Servicer
shall establish and maintain in the name of the Trustee, for the benefit of the
Certificateholders, the Master Servicer Collection Account as a segregated trust
account or accounts. The Master Servicer Collection Account may be a sub-account
of the Distribution Account. The Master Servicer will deposit in the Master
Servicer Collection Account as identified by the Master Servicer and as received
by the Master Servicer, the following amounts:
(i) Any amounts withdrawn from a Protected Account or other permitted
account;
(ii) Any Monthly Advance and any Compensating Interest Payments;
(iii) Any Insurance Proceeds, Liquidation Proceeds or Subsequent
Recoveries received by or on behalf of the Master Servicer or which were
not deposited in a Protected Account or other permitted account;
(iv) The repurchase price with respect to any Mortgage Loans
repurchased and all proceeds of any Mortgage Loans or property acquired in
connection with the optional termination of the trust;
(v) Any amounts required to be deposited with respect to losses on
investments of deposits in an Account; and
(vi) Any other amounts received by or on behalf of the Master Servicer
and required to be deposited in the Master Servicer Collection Account
pursuant to this Agreement.
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(b) All amounts deposited to the Master Servicer Collection Account shall
be held by the Master Servicer in the name of the Trustee in trust for the
benefit of the Certificateholders in accordance with the terms and provisions of
this Agreement. The requirements for crediting the Master Servicer Collection
Account or the Distribution Account shall be exclusive, it being understood and
agreed that, without limiting the generality of the foregoing, payments in the
nature of (i) prepayment or late payment charges or assumption, tax service,
statement account or payoff, substitution, satisfaction, release and other like
fees and charges and (ii) the items enumerated in Subsections 4.05(a)(i), (ii),
(iii), (iv), (vi), (vii), (viii), (ix), (xi) and (xii) with respect to the
Securities Administrator, need not be credited by the Master Servicer or the
related Servicer to the Distribution Account or the Master Servicer Collection
Account, as applicable. In the event that the Master Servicer shall deposit or
cause to be deposited to the Distribution Account any amount not required to be
credited thereto, the Securities Administrator, upon receipt of a written
request therefor signed by a Servicing Officer of the Master Servicer, shall
promptly transfer such amount to the Master Servicer from the Distribution
Account, any provision herein to the contrary notwithstanding.
(c) The amount at any time credited to the Master Servicer Collection
Account shall be invested, in the name of the Trustee, or its nominee, for the
benefit of the Certificateholders, in Permitted Investments as directed by
Master Servicer. All Permitted Investments shall mature or be subject to
redemption or withdrawal on or before, and shall be held until, the next
succeeding Distribution Account Deposit Date. Any and all investment earnings on
amounts on deposit in the Master Servicer Collection Account from time to time
shall be for the account of the Master Servicer. The Master Servicer from time
to time shall be permitted to withdraw or receive distribution of any and all
investment earnings from the Master Servicer Collection Account. The risk of
loss of moneys required to be distributed to the Certificateholders resulting
from such investments shall be borne by and be the risk of the Master Servicer.
The Master Servicer shall deposit the amount of any such loss in the Master
Servicer Collection Account within two Business Days of receipt of notification
of such loss but not later than the second Business Day prior to the
Distribution Date on which the moneys so invested are required to be distributed
to the Certificateholders.
Section 4.03 Permitted Withdrawals and Transfers from the Master Servicer
Collection Account. (a) The Master Servicer will, from time to time on demand of
the Master Servicer, the Trustee or the Securities Administrator, make or cause
to be made such withdrawals or transfers from the Master Servicer Collection
Account as the Master Servicer has designated for such transfer or withdrawal
pursuant to the Servicing Agreements. The Master Servicer may clear and
terminate the Master Servicer Collection Account pursuant to Section 10.01 and
remove amounts from time to time deposited in error.
(b) On an ongoing basis, the Master Servicer shall withdraw from the Master
Servicer Collection Account (i) any expenses recoverable by the Trustee, the
Master Servicer or the Securities Administrator pursuant to this Agreement,
including but not limited to Sections 2.01(b), 3.03, 7.04 and 9.05 and (ii) any
amounts payable to the Master Servicer as set forth in Section 3.14.
(c) In addition, on or before each Distribution Account Deposit Date, the
Master Servicer shall deposit in the Distribution Account (or remit to the
Securities Administrator for
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deposit therein) any Monthly Advances required to be made by the Master Servicer
with respect to the Mortgage Loans.
(d) No later than 3:00 p.m. New York time on each Distribution Account
Deposit Date, the Master Servicer will transfer all Available Funds on deposit
in the Master Servicer Collection Account with respect to the related
Distribution Date to the Securities Administrator for deposit in the
Distribution Account.
Section 4.04 Distribution Account. (a) The Securities Administrator shall
establish and maintain in the name of the Trustee, for the benefit of the
Certificateholders, the Distribution Account as a segregated trust account or
accounts.
(b) All amounts deposited to the Distribution Account shall be held by the
Securities Administrator in the name of the Trustee in trust for the benefit of
the Certificateholders in accordance with the terms and provisions of this
Agreement.
(c) The Distribution Account shall constitute a trust account of the Trust
Fund segregated on the books of the Securities Administrator and held by the
Securities Administrator in trust in its Corporate Trust Office, and the
Distribution Account and the funds deposited therein shall not be subject to,
and shall be protected to the maximum extent permitted by applicable law from,
all claims, liens, and encumbrances of any creditors or depositors of the
Securities Administrator, the Trustee or the Master Servicer (whether made
directly, or indirectly through a liquidator or receiver of the Securities
Administrator, the Trustee or the Master Servicer). The Distribution Account
shall be an Eligible Account. The amount at any time credited to the
Distribution Account shall be (i) fully insured by the FDIC to the maximum
coverage provided thereby or (ii) invested in the name of the Trustee, in such
Permitted Investments selected by the Master Servicer or deposited in demand
deposits with such depository institutions as selected by the Master Servicer,
provided that time deposits of such depository institutions would be a Permitted
Investment. All Permitted Investments shall mature or be subject to redemption
or withdrawal on or before, and shall be held until, the next succeeding
Distribution Date if the obligor for such Permitted Investment is the Master
Servicer or, if such obligor is any other Person, the Business Day preceding
such Distribution Date. All investment earnings on amounts on deposit in the
Distribution Account or benefit from funds uninvested therein from time to time
shall be for the account of the Securities Administrator. The Securities
Administrator shall be permitted to withdraw or receive distribution of any and
all investment earnings from the Distribution Account on each Distribution Date.
If there is any loss on a Permitted Investment or demand deposit, the Securities
Administrator shall deposit such amount in the Distribution Account. With
respect to the Distribution Account and the funds deposited therein, the
Securities Administrator shall take such action as may be necessary to ensure
that the Certificateholders shall be entitled to the priorities afforded to such
a trust account (in addition to a claim against the estate of the Trust) as
provided by 12 U.S.C. Section 92a(e), and applicable regulations pursuant
thereto, if applicable, or any applicable comparable state statute applicable to
state chartered banking corporations.
Section 4.05 Permitted Withdrawals and Transfers from the Distribution
Account. (a) The Securities Administrator will, from time to time on demand of
the Master Servicer, make or
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cause to be made such withdrawals or transfers from the Distribution Account as
the Master Servicer has designated for such transfer or withdrawal pursuant to
the Servicing Agreements for the following purposes (limited in the case of
amounts due the Master Servicer to those not withdrawn from the Master Servicer
Collection Account in accordance with the terms of this Agreement):
(i) to reimburse the Master Servicer or any Servicer for any Monthly
Advance of its own funds or any advance of such Servicer's own funds, the
right of the Master Servicer or a Servicer to reimbursement pursuant to
this subclause (i) being limited to amounts received on a particular
Mortgage Loan (including, for this purpose, the Purchase Price therefor,
Insurance Proceeds and Liquidation Proceeds) which represent late payments
or recoveries of the principal of or interest on such Mortgage Loan
respecting which such Monthly Advance or advance was made;
(ii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds or Liquidation Proceeds relating to a particular Mortgage Loan for
amounts expended by the Master Servicer or such Servicer in good faith as a
Servicing Advance in connection with the restoration of the related
Mortgaged Property which was damaged by an Uninsured Cause or in connection
with the liquidation of such Mortgage Loan;
(iii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds relating to a particular Mortgage Loan for insured expenses
incurred with respect to such Mortgage Loan and to reimburse the Master
Servicer or such Servicer from Liquidation Proceeds from a particular
Mortgage Loan for Liquidation Expenses incurred with respect to such
Mortgage Loan; provided that the Master Servicer shall not be entitled to
reimbursement for Liquidation Expenses with respect to a Mortgage Loan to
the extent that (i) any amounts with respect to such Mortgage Loan were
paid as Excess Liquidation Proceeds pursuant to clause (xi) of this
Subsection 4.03 (a) to the Master Servicer; and (ii) such Liquidation
Expenses were not included in the computation of such Excess Liquidation
Proceeds;
(iv) to pay the Master Servicer or any Servicer, as appropriate, from
Liquidation Proceeds or Insurance Proceeds received in connection with the
liquidation of any Mortgage Loan, the amount which it or such Servicer
would have been entitled to receive under subclause (ix) of this Subsection
4.03(a) as servicing compensation on account of each defaulted scheduled
payment on such Mortgage Loan if paid in a timely manner by the related
Mortgagor;
(v) to pay the Master Servicer or any Servicer from the Purchase Price
for any Mortgage Loan, the amount which it or such Servicer would have been
entitled to receive under subclause (ix) of this Subsection 4.03 (a) as
servicing compensation;
(vi) to reimburse the Master Servicer or any Servicer for advances of
funds pursuant to Sections, and the right to reimbursement pursuant to this
subclause being limited to amounts received on the related Mortgage Loan
(including, for this purpose, the Purchase Price therefor, Insurance
Proceeds and Liquidation Proceeds) which represent late recoveries of the
payments for which such advances were made;
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(vii) to reimburse the Master Servicer or any Servicer for any Monthly
Advance or advance, after a Realized Loss has been allocated with respect
to the related Mortgage Loan if the Monthly Advance or advance has not been
reimbursed pursuant to clauses (i) and (vi);
(viii) to pay the Master Servicer as set forth in Section 3.14;
(ix) to reimburse the Master Servicer for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to this Agreement,
including but not limited to Sections 3.03, 7.04(c) and (d);
(x) to pay to the Master Servicer, as additional servicing
compensation, any Excess Liquidation Proceeds to the extent not retained by
the related Servicer;
(xi) to reimburse or pay any Servicer any such amounts as are due
thereto under the applicable Servicing Agreement and have not been retained
by or paid to the Servicer, to the extent provided in the related Servicing
Agreement;
(xii) to reimburse the Trustee or the Securities Administrator for
expenses, costs and liabilities incurred by or reimbursable to it pursuant
to this Agreement;
(xiii) to remove amounts deposited in error; and
(xiv) to clear and terminate the Distribution Account pursuant to
Section 9.01.
(b) The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Distribution Account pursuant to subclauses (i) through
(vi), inclusive, and (viii) or with respect to any such amounts which would have
been covered by such subclauses had the amounts not been retained by the Master
Servicer without being deposited in the Distribution Account under Section
4.02(b).
(c) On each Distribution Date, the Securities Administrator shall
distribute the Available Funds for each Loan Group to the Holders of the
Certificates in accordance with Section 6.01.
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ARTICLE V
CERTIFICATES
Section 5.01 The Certificates.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Securities Administrator by an authorized officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures were affixed, authorized to sign on behalf of the
Securities Administrator shall bind the Issuing Entity, notwithstanding that
such individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices at
the date of such authentication and delivery. No Certificate shall be entitled
to any benefit under this Agreement, or be valid for any purpose, unless there
appears on such Certificate a certificate of authentication substantially in the
form set forth as attached hereto executed by the Securities Administrator by
manual signature, and such certificate of authentication upon any Certificate
shall be conclusive evidence, and the only evidence, that such Certificate has
been duly authenticated and delivered hereunder. All Certificates shall be dated
the date of their authentication. On the Closing Date, the Securities
Administrator shall authenticate the Certificates to be issued at the written
direction of the Depositor, or any Affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and Exchange of
Certificates.
(a) The Securities Administrator shall maintain, or cause to be maintained
in accordance with the provisions of Section 5.09 hereof, a Certificate Register
for the Trust Fund in which, subject to the provisions of subsections (b) and
(c) below and to such reasonable regulations as it may prescribe, the Securities
Administrator shall provide for the registration of Certificates and of
Transfers and exchanges of Certificates as herein provided. Upon surrender for
registration of Transfer of any Certificate, the Securities Administrator shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class and of like
aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Securities Administrator. Whenever any
Certificates are so surrendered for exchange, the Securities Administrator shall
execute, authenticate and deliver the Certificates that the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of Transfer or exchange shall be accompanied by a
written instrument of Transfer in form satisfactory to the Securities
Administrator duly executed by the holder thereof or his attorney duly
authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of Transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any Transfer or exchange of Certificates may be required. All
Certificates surrendered for registration of Transfer or exchange shall be
canceled and subsequently destroyed by the Securities Administrator in
accordance with such Securities Administrator's customary procedures.
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(b) No Transfer of a Class B, Class P or Class A-R Certificate shall be
made unless such Transfer is made pursuant to an effective registration
statement under the Securities Act and any applicable state securities laws or
is exempt from the registration requirements under the Securities Act and such
state securities laws. In the event that a Transfer is to be made in reliance
upon an exemption from the Securities Act and such laws, in order to assure
compliance with the Securities Act and such laws, the Certificateholder desiring
to effect such Transfer and such Certificateholder's prospective transferee
shall (except with respect to the initial transfer of a Class B, Class P or
Class A-R Certificate by Xxxxxxx Xxxxx & Co.) each certify to each Securities
Administrator in writing the facts surrounding the Transfer in substantially the
form set forth in Exhibit F-1 (the "Transferor Representation Letter") and (i)
deliver a letter in substantially the form of either Exhibit F-2 (the "Investor
Representation Letter") or Exhibit F-3 (the "Rule 144A Letter") or (ii) there
shall be delivered to the Securities Administrator an Opinion of Counsel that
such Transfer may be made pursuant to an exemption from the Securities Act,
which Opinion of Counsel shall not be an expense of the Depositor or the
Securities Administrator. The Depositor shall provide to any Holder of a Class
B, Class P or Class A-R Certificate and any prospective transferee designated by
any such Holder, information regarding the related Certificates and the Mortgage
Loans and such other information as shall be necessary to satisfy the condition
to eligibility set forth in Rule 144A(d)(4) for Transfer of any such Certificate
without registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A. The Securities Administrator shall
cooperate with the Depositor in providing the Rule 144A information referenced
in the preceding sentence, including providing to the Depositor such information
in the possession of the Securities Administrator regarding the Certificates,
the Mortgage Loans and other matters regarding the Trust Fund as the Depositor
shall reasonably request to meet its obligation under the preceding sentence.
Each Holder of a Class B, Class P or Class A-R Certificate desiring to effect
such Transfer shall, and does hereby agree to, indemnify the Depositor and the
Securities Administrator against any liability that may result if the Transfer
is not so exempt or is not made in accordance with such federal and state laws.
No transfer of an ERISA Restricted Certificate or a Class A-R Certificate
will be registered unless the Securities Administrator has received (A) a
representation to the effect that such transferee is not an employee benefit
plan subject to Title I of ERISA, a plan subject to Section 4975 of the Code or
a plan subject to any state, local, federal, non-U.S. or other law substantively
similar to the foregoing provisions of ERISA or the Code ("Similar Law")
(collectively, a "Plan"), and is not directly or indirectly acquiring such
Certificate for, on behalf of, or with any assets of any such Plan, or (B)
solely in the case of an ERISA Restricted Certificate (I) if the Certificate has
been the subject of an ERISA-Qualifying Underwriting, a representation to the
effect that such transferee is an insurance company that is acquiring the
Certificate with assets contained in an "insurance company general account," as
defined in Section V(e) of Prohibited Transaction Class Exemption ("PTCE")
95-60, and the acquisition and holding of the Certificate are covered and exempt
under Sections I and III of PTCE 95-60, or (II) solely in the case of a
Definitive Certificate, an Opinion of Counsel satisfactory to the Securities
Administrator, and upon which the Securities Administrator shall be entitled to
rely, to the effect that the acquisition and holding of such Certificate will
not constitute or result in a nonexempt prohibited transaction under Title I of
ERISA or Section 4975 of the Code, or a violation of Similar Law, and will not
subject the Securities Administrator, the Master Servicer, the Trustee or the
Depositor to any obligation in addition to those expressly undertaken in this
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Agreement, which Opinion of Counsel shall not be an expense of the Securities
Administrator, the Master Servicer, the Trustee or the Depositor.
Except in the case of a Definitive Certificate, the representations set
forth in the immediately preceding paragraph of this Subsection 5.02(b), other
than clause (B)(II) in the immediately preceding paragraph, shall be deemed to
have been made to the Securities Administrator by the transferee's acceptance of
an ERISA Restricted Certificate or a Class A-R Certificate (or the acceptance by
a Certificate Owner of the beneficial interest in any Class of ERISA Restricted
Certificates or a Class A-R Certificate).
Notwithstanding any other provision herein to the contrary, any purported
transfer of an ERISA Restricted Certificate or a Class A-R Certificate to or on
behalf of a Plan without the delivery to the Securities Administrator of a
representation or an Opinion of Counsel satisfactory to the Securities
Administrator as described above shall be void and of no effect. The Securities
Administrator shall not be under any liability to any Person for any
registration or transfer of any ERISA Restricted Certificate or Class A-R
Certificate that is in fact not permitted by this Section 5.02(b), nor shall the
Trustee or the Securities Administrator be under any liability for making any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the transfer was registered by the Securities Administrator in
accordance with the foregoing requirements. The Trustee or the Securities
Administrator shall be entitled, but not obligated, to recover from any Holder
of any ERISA Restricted Certificate or Class A-R Certificate that was in fact a
Plan and that held such Certificate in violation of this Section 5.02(b) all
payments made on such ERISA Restricted Certificate or a Class A-R Certificate at
and after the time it commenced such holding. Any such payments so recovered
shall be paid and delivered to the last preceding Holder of such Certificate
that is not a Plan.
(c) Each Person who has or who acquires any Ownership Interest in a Class
A-R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Class A-R
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class
A-R Certificate shall be a Permitted Transferee and shall promptly notify
the Securities Administrator of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in a Class A-R Certificate may be
purchased, transferred or sold, directly or indirectly, except in
accordance with the provisions hereof. No Ownership Interest in a Class A-R
Certificate may be registered on the Closing Date or thereafter
transferred, and the Securities Administrator shall not register the
Transfer of any Class A-R Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
subparagraph (b) above, the Securities Administrator shall have been
furnished with an affidavit (a "Transferee's Letter") of the initial owner
or the proposed transferee in the form attached hereto as Exhibit E-1 and
an affidavit (a "Transferor Certificate") of the proposed transferor in the
form attached hereto as Exhibit E-2. In the absence of a contrary
instruction from the transferor of a
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Class A-R Certificate, declaration (11) in Appendix A of the Transferee's
Letter may be left blank. If the transferor requests by written notice to
the Securities Administrator prior to the date of the proposed transfer
that one of the two other forms of declaration (11) in Appendix A of the
Transferee's Letter be used, then the requirements of this Section
5.02(c)(ii) shall not have been satisfied unless the Transferee's Letter
includes such other form of declaration.
(iii) Each Person holding or acquiring any Ownership Interest in a
Class A-R Certificate shall agree (A) to obtain a Transferee's Letter from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Class A-R Certificate, (B) to obtain a Transferee's Letter
from any Person for whom such Person is acting as nominee, trustee or agent
in connection with any Transfer of a Class A-R Certificate and (C) not to
Transfer its Ownership Interest in a Class A-R Certificate or to cause the
Transfer of an Ownership Interest in a Class A-R Certificate to any other
Person if it has actual knowledge that such Person is not a Permitted
Transferee. Further, no transfer, sale or other disposition of any
Ownership Interest in a Class A-R Certificate may be made to a person who
is not a U.S. Person (within the meaning of Section 7701 of the Code)
unless such person furnishes the transferor and the Securities
Administrator with a duly completed and effective Internal Revenue Service
Form W-8ECI (or any successor thereto) and the Securities Administrator
consents to such transfer, sale or other disposition in writing.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Class A-R Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Class A-R Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Class A-R Certificate. The Securities Administrator shall
be under no liability to any Person for any registration of Transfer of a
Class A-R Certificate that is in fact not permitted by Section 5.02(b) and
this Section 5.02(c) or for making any payments due on such Certificate to
the Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transferee's Letter. The Securities
Administrator shall be entitled but not obligated to recover from any
Holder of a Class A-R Certificate that was in fact not a Permitted
Transferee at the time it became a Holder or, at such subsequent time as it
became other than a Permitted Transferee, all payments made on such Class
A-R Certificate at and after either such time. Any such payments so
recovered by the Securities Administrator shall be paid and delivered by
the Securities Administrator to the last preceding Permitted Transferee of
such Certificate.
(v) At the option of the Holder of the Class A-R Certificate, the
Class LT1-R Interest and the Residual Interest may be severed and
represented by separate certificates; provided, however, that such separate
certification may not occur until the Securities Administrator receives a
REMIC Opinion to the effect that separate certification in the form and
manner proposed would not result in the imposition of federal tax upon the
Issuing Entity or any of the REMICs provided for herein or cause any of the
REMICs
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provided for herein to fail to qualify as a REMIC; and provided further,
that the provisions of Sections 5.02(b) and (c) will apply to each such
separate certificate as if the separate certificate were a Class A-R
Certificate. If, as evidenced by a REMIC Opinion, it is necessary to
preserve the REMIC status of any of the REMICs provided for herein, the
Class LT1-R Interest and the Residual Interest shall be severed and
represented by separate Certificates.
The restrictions on Transfers of a Class A-R Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the legend
on a Class A-R Certificate may be deleted) with respect to Transfers occurring
after delivery to the Securities Administrator of an Opinion of Counsel, which
Opinion of Counsel shall not be an expense of the Securities Administrator or
the Depositor, to the effect that the elimination of such restrictions will not
cause any of the REMICs provided for herein to fail to qualify as a REMIC at any
time that the Certificates are outstanding or result in the imposition of any
tax on the Issuing Entity, any REMIC provided for herein, a Certificateholder or
another Person. Each Person holding or acquiring any Ownership Interest in a
Class A-R Certificate hereby consents to any amendment of this Agreement that,
based on an Opinion of Counsel furnished to the Securities Administrator, is
reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Class A-R Certificate is not transferred, directly or
indirectly, to a Person that is not a Permitted Transferee and (b) to provide
for a means to compel the Transfer of a Class A-R Certificate that is held by a
Person that is not a Permitted Transferee to a Holder that is a Permitted
Transferee.
(d) The transferor of the Class A-R Certificate shall notify the Securities
Administrator in writing upon the transfer of the Class A-R Certificate.
(e) The preparation and delivery of all certificates, opinions and other
writings referred to above in this Section 5.02 shall not be an expense of the
Issuing Entity, the Depositor or the Securities Administrator.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Securities
Administrator or the Securities Administrator receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and of the
ownership thereof and (b) there is delivered to the Securities Administrator
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Securities Administrator that
such Certificate has been acquired by a bona fide purchaser, the Securities
Administrator shall execute, authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like Class, tenor and Percentage Interest. In connection with the
issuance of any new Certificate under this Section 5.03, the Securities
Administrator 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 Securities Administrator)
connected therewith. Any replacement Certificate issued pursuant to this Section
5.03 shall constitute complete and indefeasible evidence of ownership in the
Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time. All Certificates surrendered
to the Securities Administrator under the terms of this Section
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5.03 shall be canceled and destroyed by the Securities Administrator in
accordance with its standard procedures without liability on its part.
Section 5.04 Persons Deemed Owners.
The Securities Administrator and any agent of the Securities Administrator
may treat the Person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and neither the Securities
Administrator, nor any agent of the Securities Administrator shall be affected
by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders (a) request such information in writing
from the Securities Administrator, (b) state that such Certificateholders desire
to communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication that such Certificateholders propose to transmit or if the
Depositor shall request such information in writing from the Securities
Administrator, then the Securities Administrator shall, within ten Business Days
after the receipt of such request, provide the Depositor or such
Certificateholders at such recipients' expense the most recent list of the
Certificateholders of the Trust Fund held by the Securities Administrator, if
any. The Depositor and every Certificateholder, by receiving and holding a
Certificate, agree that the Securities Administrator shall not be held
accountable by reason of the disclosure of any such information as to the list
of the Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 5.06 Book-Entry Certificates.
The Regular Certificates, upon original issuance, shall be issued in the
form of one or more typewritten Certificates representing the Book-Entry
Certificates, to be delivered to the Depository by or on behalf of the
Depositor. The Book-Entry Certificates shall initially be registered on the
Certificate Register in the name of the Depository or its nominee, and no
Certificate Owner of a Book-Entry Certificate will receive a definitive
certificate representing such Certificate Owner's interest in such Certificates,
except as provided in Section 5.08. Unless and until definitive, fully
registered Certificates ("Definitive Certificates") have been issued to the
Certificate Owners of the Book-Entry Certificates pursuant to Section 5.08:
(a) the provisions of this Section shall be in full force and effect;
(b) the Depositor and the Securities Administrator may deal with the
Depository and the Depository Participants for all purposes (including the
making of distributions) as the authorized representative of the respective
Certificate Owners of the Book-Entry Certificates;
(c) registration of the Book-Entry Certificates may not be transferred
by the Securities Administrator except to another Depository;
(d) the rights of the respective Certificate Owners of the Book-Entry
Certificates shall be exercised only through the Depository and the
Depository Participants and shall be limited
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to those established by law and agreements between the Owners of the
Book-Entry Certificates and the Depository and/or the Depository
Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 5.08, the Depository
will make book-entry transfers among the Depository Participants and
receive and transmit distributions of principal and interest on the related
Certificates to such Depository Participants;
(e) the Depository may collect its usual and customary fees, charges
and expenses from its Depository Participants;
(f) the Securities Administrator may rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
Depository Participants; and
(g) to the extent that the provisions of this Section conflict with
any other provisions of this Agreement, the provisions of this Section
shall control.
For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Certificateholders
evidencing a specified percentage of the aggregate unpaid principal amount of
any Class of Certificates, such direction or consent may be given by Certificate
Owners (acting through the Depository and the Depository Participants) owning
Book-Entry Certificates evidencing the requisite percentage of principal amount
of such Class of Certificates.
Section 5.07 Notices to Depository.
Whenever any notice or other communication is required to be given to
Certificateholders of the Class with respect to which Book-Entry Certificates
have been issued, unless and until Definitive Certificates shall have been
issued to the related Certificate Owners, the Securities Administrator shall
give all such notices and communications to the Depository.
Section 5.08 Definitive Certificates.
If, after Book-Entry Certificates have been issued with respect to any
Certificates, (a) the Depository or the Depositor advises the Securities
Administrator that the Depository is no longer willing, qualified or able to
discharge properly its responsibilities under the Depository Agreement with
respect to such Certificates and the Securities Administrator or the Depositor
is unable to locate a qualified successor, (b) the Depositor notifies the
Securities Administrator and the Depository of its intent to terminate the
book-entry system through the Depository and, upon receipt of notice of such
intent from the Depository, the Certificate Owners of the Book-Entry
Certificates agree to initiate such termination or (c) after the occurrence and
continuation of an Event of Default, Certificate Owners of such Book-Entry
Certificates having not less than 51% of the Voting Rights evidenced by any
Class of Book-Entry Certificates advise the Securities Administrator and the
Depository in writing through the Depository Participants that the continuation
of a book-entry system with respect to Certificates of such Class through the
Depository (or its successor) is no longer in the best interests of the
Certificate Owners of such Class, then the Securities Administrator shall notify
all Certificate Owners of such Book-Entry Certificates, through the Depository,
of the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners of such Class requesting the same. The
Depositor
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shall provide the Securities Administrator with an adequate inventory of
certificates to facilitate the issuance and transfer of Definitive Certificates.
Upon surrender to the Securities Administrator of any such Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration, the Securities Administrator shall authenticate and deliver such
Definitive Certificates. Neither the Depositor nor the Securities Administrator
shall be liable for any delay in delivery of such instructions and each may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of such Definitive Certificates, all references herein to
obligations imposed upon or to be performed by the Depository shall be deemed to
be imposed upon and performed by the Securities Administrator, to the extent
applicable with respect to such Definitive Certificates and the Securities
Administrator shall recognize the Holders of such Definitive Certificates as
Certificateholders hereunder.
Section 5.09 Maintenance of Office or Agency.
The Securities Administrator will maintain or cause to be maintained at its
expense an office or offices or agency or agencies where Certificates may be
surrendered for registration of transfer or exchange. The Securities
Administrator initially designates its offices at Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services -
Xxxxxxx Xxxxx Mortgage Investors Trust, Series 2006-A1 as offices for such
purposes. The Securities Administrator will give prompt written notice to the
Certificateholders of any change in such location of any such office or agency.
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ARTICLE VI
PAYMENTS TO CERTIFICATEHOLDERS
Section 6.01 Distributions on the Certificates. (a) Interest and principal
on the Certificates will be distributed by the Securities Administrator monthly
on each Distribution Date, commencing in April 2006, as instructed by the Master
Servicer, in an aggregate amount equal to the sum of the Available Funds for
such Distribution Date. On each Distribution Date, the Available Funds shall be
distributed as follows:
(A) On each Distribution Date, the Group I Available Funds will be
distributed in the following order of priority among the Group I
Certificates except as otherwise noted:
first, to the Class I-A1 Certificates, Class I-A2 Certificates
and Class A-R Certificates, pro rata, the Accrued Certificate
Interest on each Class of Class I-A Certificates for such
Distribution Date. As described below, Accrued Certificate
Interest on the Group I Certificates is subject to reduction in
the event of certain interest shortfalls allocable thereto. Any
interest shortfalls shall be allocated to the Group I
Certificates as described below;
second, to the Class I-A1 Certificates, Class I-A2 Certificates
and Class A-R Certificates, pro rata, any Accrued Certificate
Interest thereon remaining undistributed from previous
Distribution Dates, to the extent of remaining Group I Available
Funds, any shortfall in available amounts being allocated to the
Group I Certificates in proportion to the amount of such Accrued
Certificate Interest remaining undistributed for each Class of
Group I Certificates for such Distribution Date; and
third, to the Class I-A1 Certificates, Class I-A2 Certificates
and Class A-R Certificates, pro rata, in reduction of the Class
Certificate Balances thereof, the Group I Senior Principal
Distribution Amount for such Distribution Date to the extent of
remaining Group I Available Funds, until the Class Certificate
Balances of such Classes have been reduced to zero.
(B) On each Distribution Date, the Group II Available Funds will be
distributed in the following order of priority among the Group II
Certificates except as otherwise noted:
first, to the Class II-A1 Certificates and Class II-A2
Certificates, pro rata, the Accrued Certificate Interest on each
Class of Class II-A Certificates for such Distribution Date. As
described below, Accrued Certificate Interest on each class of
Group II-A Certificates is subject to reduction in the event of
certain interest shortfalls allocable thereto. Any interest
shortfalls shall be allocated to the Group II Certificates as
described below;
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second, to the Class II-A1 Certificates and Class II-A2
Certificates, pro rata, any Accrued Certificate Interest thereon
remaining undistributed from previous Distribution Dates, to the
extent of remaining Group II Available Funds, any shortfall in
available amounts being allocated to the Class II Senior
Certificates in proportion to the amount of such Accrued
Certificate Interest remaining undistributed for each class of
Group II Certificates for such Distribution Date; and
third, to the Class II-A1 Certificates and Class II-A2
Certificates, pro rata, in reduction of the Class Certificate
Balances thereof, the Group II Senior Principal Distribution
Amount for such Distribution Date to the extent of remaining
Group II Available Funds, until the Class Certificate Balances of
such Classes have been reduced to zero.
(C) On each Distribution Date on or prior to the Credit Support
Depletion Date, an amount equal to the sum of the remaining Group I
Available Funds and Group II Available Funds after the distributions
in clauses (A) and (B) above and after any distributions required to
be made pursuant to clauses (D) and (E) below, will be distributed
sequentially, in the following order, to the Class M-1, Class M-2,
Class M-3, Class B-1, Class B-2 and Class B-3 Certificates, in each
case up to an amount equal to and in the following order: (a) the
Accrued Certificate Interest thereon for such Distribution Date, (b)
any Accrued Certificate Interest thereon remaining undistributed from
previous Distribution Dates and (c) such Class's Subordinate Principal
Distribution Amount for such Distribution Date, in each case to the
extent of the remaining Available Funds.
(D) On each Distribution Date prior to the Credit Support Depletion
Date but after the reduction of the aggregate Class Certificate
Balance of the related Senior Certificates of a related Loan Group to
zero, the remaining Class or Classes of related Senior Certificates
will be entitled to receive in reduction of their Class Certificate
Balances, pro rata, based upon their respective Class Certificate
Balances immediately prior to such Distribution Date, in addition to
any Principal Prepayments related to such remaining Senior
Certificates' respective Loan Group allocated to such Senior
Certificates, 100% of the Principal Prepayments on any Mortgage Loan
in the Loan Group relating to the fully repaid Class or Classes of
Senior Certificates; provided, however, that if both (a) the weighted
average of the Subordinate Percentage equals or exceeds 200% of the
original weighted average of the Subordinate Percentage as of the
Closing Date on or after the Distribution Date in April 2009 and (b)
the aggregate Stated Principal Balance of the Mortgage Loans
delinquent 60 days or more, averaged over the last six months, as a
percentage of the aggregate Class Certificate Balance of the Class M
Certificates and Class B Certificates, does not exceed 100%, then the
additional allocation of Principal Prepayments to the Senior
Certificates in accordance with this clause (D) will not be made and
100% of the Principal Prepayments on any Mortgage Loan in the Loan
Group relating to the fully repaid class or classes of Senior
Certificates will be allocated to the Subordinate Certificates.
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(E) If on any Distribution Date on which the aggregate Class
Certificate Balance of any Class or Classes of Senior Certificates
would be greater than the aggregate Stated Principal Balance of the
Mortgage Loans in its related Loan Group (the amount of such excess,
the "Undercollateralized Amount," and any such Class or Classes of
Senior Certificates, the "Undercollateralized Senior Certificates")
and any Subordinate Certificates are still outstanding in each case
after giving effect to distributions to be made on such Distribution
Date, (i) 100% of amounts otherwise allocable to the Subordinate
Certificates in respect of principal will be distributed to the
Undercollateralized Senior Certificates in reduction of the Class
Certificate Balances thereof, until the aggregate Class Certificate
Balance of such Class or Classes of Undercollateralized Senior
Certificates is equal to the aggregate Stated Principal Balance of the
Mortgage Loans in its related Loan Group, and (ii) the Accrued
Certificate Interest otherwise allocable to the Subordinate
Certificates on such Distribution Date will be reduced, if necessary,
and distributed to such Class or Classes of Undercollateralized Senior
Certificates pursuant to clause first of clauses (A) or (B) above, as
applicable, in an amount equal to the Accrued Certificate Interest at
the Pass-Through Rate for such Class or Classes of Undercollateralized
Senior Certificates for such Distribution Date on a balance equal to
the related Undercollateralized Amount. Any such reduction in the
Accrued Certificate Interest on the Subordinate Certificates will be
allocated to the Class B-3, Class B-2, Class B-1, Class M-3, Class M-2
and Class M-1 Certificates, in that order.
On each Distribution Date, any Available Funds remaining after payment of
interest and principal to the Classes of Certificates entitled thereto, as
described above, will be distributed to the Class A-R Certificates; provided
that if on any Distribution Date on and after the Credit Support Depletion Date
there are any Group I or Group II Available Funds remaining after payment of
interest and principal to a Class or Classes of Senior Certificates entitled
thereto, such amounts will be distributed to the other Classes of Senior
Certificates, pro rata, based upon their Class Certificate Balances, until all
amounts due to all Classes of Senior Certificates have been paid in full, before
any amounts are distributed to the Class A-R Certificates.
In addition to the foregoing distributions, with respect to any Subsequent
Recoveries, the Master Servicer shall deposit such amounts into the Master
Servicer Collection Account pursuant to Section 4.01(a). If, after taking into
account such Subsequent Recoveries, the amount of a Realized Loss is reduced,
the amount of such Subsequent Recoveries will be applied to increase the Class
Certificate Balance of the Class of Subordinate Certificates with the highest
payment priority to which Realized Losses have been allocated, including any
Class of Subordinate Certificates to which a Realized Loss was previously
allocated and whose Class Certificate Balance has been reduced to zero, but not
by more than the amount of Realized Losses previously allocated to that Class of
Certificates pursuant to Section 6.02. The amount of any remaining Subsequent
Recoveries will be applied to increase the Class Certificate Balance of the
Class of Certificates with the next highest payment priority, up to the amount
of such Realized Losses previously allocated to that Class of Certificates
pursuant to Section 6.02, and so on. Holders of such Certificates will not be
entitled to any payment in respect of Accrued Certificate Interest on the amount
of such increases for any Interest Accrual Period preceding the Distribution
Date on which such increase occurs. Any such increases shall be applied to the
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Class Certificate Balance of each Certificate of such Class in accordance with
its respective Percentage Interest.
(F) Any Prepayment Penalties shall be distributed to the Class P
Certificates.
Section 6.02 Allocation of Losses. (a) On or prior to each Determination
Date, the Securities Administrator shall determine the amount of any Realized
Loss in respect of each Mortgage Loan that occurred during the immediately
preceding calendar month.
(b) With respect to any Certificates on any Distribution Date, the
principal portion of each Realized Loss on a Mortgage Loan shall be
allocated as follows:
first, to the Class B-3 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
second, to the Class B-2 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
third, to the Class B-1 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
fourth, to the Class M-3 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
fifth, to the Class M-2 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
sixth, to the Class M-1 Certificates until the Class Certificate
Balance thereof has been reduced to zero;
seventh, if the Realized Loss occurs on a Mortgage Loan in a Loan
Group where the aggregate Stated Principal Balance of the Mortgage
Loans in such Loan Group is greater than the aggregate Class
Certificate Balance of the related Senior Certificates, the Realized
Loss will be allocated to any Senior Certificates related to a Loan
Group where the aggregate Stated Principal Balance of the Mortgage
Loans in such Loan Group is less than the aggregate Class Certificate
Balance of the related Senior Certificates (any such amount, the
"Deficiency Amount"), pro rata, based on the respective Deficiency
Amount, in each case until the amount by which the aggregate Stated
Principal Balance of the Mortgage Loans in the Loan Group in which the
Realized Loss occurs exceeds the aggregate Class Certificate Balance
of the related Senior Certificates until the Class Certificate
Balances of such Senior Certificates have been reduced to zero; and
eighth, to the Senior Certificates related to the Loan Group in
which the Realized Loss occurred, until the Class Certificate Balances
thereof have been reduced to zero.
Notwithstanding the foregoing, any portion of any Realized Loss that would
otherwise be allocated to the Class I-A1 Certificates will instead be allocated
first to the Class I-A2 Certificates until the Class Certificate Balance thereof
has been reduced to zero, and any portion
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of any Realized Loss that would otherwise be allocated to the Class II-A1
Certificates will instead be allocated first to the Class II-A2 Certificates
until the Class Certificate Balance thereof has been reduced to zero.
Section 6.03 Payments. (a) On each Distribution Date, other than the final
Distribution Date, the Securities Administrator shall distribute to each
Certificateholder of record on the directly preceding Record Date the
Certificateholder's pro rata share of its Class (based on the aggregate
Percentage Interest represented by such Holder's Certificates) of all amounts
required to be distributed on such Distribution Date to such Class, based solely
on information provided to the Securities Administrator by the Master Servicer.
The Securities Administrator shall calculate the amount to be distributed to
each Class and, based on such amounts, the Securities Administrator shall
determine the amount to be distributed to each Certificateholder. All of the
Securities Administrator's calculations of payments shall be based solely on
information provided to the Securities Administrator by the Master Servicer or
the applicable Servicer. The Securities Administrator shall not be required to
confirm, verify or recompute any such information but shall be entitled to rely
conclusively on such information.
(b) Payment of the above amounts to each Certificateholder shall be
made (i) by check mailed to each Certificateholder entitled thereto at the
address appearing in the Certificate Register or (ii) upon receipt by the
Securities Administrator on or before the fifth Business Day preceding the
Record Date of written instructions from a Certificateholder by wire
transfer to a United States dollar account maintained by the payee at any
United States depository institution with appropriate facilities for
receiving such a wire transfer; provided, however, that the final payment
in respect of each Class of Certificates will be made only upon
presentation and surrender of such respective Certificates at the office or
agency of the Securities Administrator specified in the notice to
Certificateholders of such final payment.
Section 6.04 Statements to Certificateholders. (a) Concurrently with each
distribution to Certificateholders, the Securities Administrator shall make
available to the parties hereto and each Certificateholder via the Securities
Administrator's internet website as set forth below, the following information
(such information the "Monthly Statement"):
(i) the amount of the distribution made on such Distribution Date to
the Holders of each Class of Certificates, separately identified, allocable
to principal;
(ii) the amount of the distribution made on such Distribution Date to
the Holders of each Class of Certificates allocable to interest, separately
identified;
(iii) the aggregate amount the Servicing Fee during the related Due
Period and such other customary information as the Trustee deems necessary
or desirable, or which a Certificateholder reasonably requests, to enable
Certificateholders to prepare their tax returns;
(iv) the aggregate amount of Monthly Advances for the related Due
Period;
(v) the aggregate Stated Principal Balance of the Group I Mortgage
Loans and Group II Mortgage Loans at the close of business at the end of
the related Due Period;
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(vi) the number, weighted average remaining term to maturity and
weighted average Mortgage Interest Rate of the Group I Mortgage Loans and
Group II Mortgage Loans as of the related Due Date;
(vii) the number and aggregate unpaid principal balance of Group I
Mortgage Loans and Group II Mortgage Loans (a) one month, two months or
three months delinquent on a contractual basis, (b) as to which foreclosure
proceedings have been commenced and (c) in bankruptcy as of the close of
business on the last day of the calendar month preceding such Distribution
Date determined in accordance with the MBA method;
(viii) with respect to any Group I Mortgage Loan or Group II Mortgage
Loan that became an REO Property during the preceding calendar month, the
Stated Principal Balance of such Group I Mortgage Loan and Group II
Mortgage Loan as of the date it became an REO Property;
(ix) the book value of any REO Property as of the close of business on
the last Business Day of the calendar month preceding the Distribution
Date, and, cumulatively, the total number and cumulative principal balance
of all REO Properties as of the close of business of the last day of the
preceding due period;
(x) the aggregate amount of Principal Prepayments made during the
related Prepayment Period;
(xi) the aggregate amount of Prepayment Penalties collected during the
related Prepayment Period;
(xii) the aggregate amount of Realized Losses incurred during the
related Due Period and the cumulative amount of Realized Losses;
(xiii) the aggregate amount of Extraordinary Trust Fund Expenses
withdrawn from the Master Servicer Collection Account for such Distribution
Date;
(xiv) the Class Certificate Balance of each Class of Certificates,
after giving effect to the distributions made on such Distribution Date;
(xv) the aggregate amount of interest accrued at the related
Pass-Through Rate with respect to each Class during the related Interest
Accrual Period and the respective portions thereof, if any, remaining
unpaid following the distributions made in respect of such Certificates on
such Distribution Date;
(xvi) the aggregate amount of any Prepayment Interest Shortfalls for
such Distribution Date as determined separately for each Loan Group, to the
extent not covered by Compensating Interest Payments by the related
Servicer or the Master Servicer pursuant to the related Servicing Agreement
or Section 6.06;
(xvii) the Group I Available Funds and Group II Available Funds;
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(xviii) the Pass-Through Rate for each Class of Certificates for such
Distribution Date; and
(xix) the aggregate Stated Principal Balance of Group I Mortgage Loans
and Group II Mortgage Loans purchased by the Seller during the related Due
Period and indicating the Section of this Agreement requiring or allowing
the purchase of each such Group I Mortgage Loan and Group II Mortgage Loan.
The information set forth above shall be calculated or reported, as the
case may be, by the Securities Administrator, based solely on, and to the extent
of, information provided to the Securities Administrator by the Master Servicer.
The Securities Administrator may conclusively rely on such information and shall
not be required to confirm, verify or recalculate any such information.
The Securities Administrator may make available each month, to any
interested party, the Monthly Statement to Certificateholders via the Securities
Administrator's website initially located at "xxx.xxxxxxx.xxx." Assistance in
using the website can be obtained by calling the Securities Administrator's
customer service desk at (000) 000-0000. Parties that are unable to use the
above distribution option are entitled to have a paper copy mailed to them via
first class mail by calling the customer service desk and indicating such. The
Securities Administrator shall have the right to change the way such reports are
distributed in order to make such distribution more convenient and/or more
accessible to the parties, and the Securities Administrator shall provide timely
and adequate notification to all parties regarding any such change.
(b) By January 30 of each year beginning in 2007, if so requested in
writing, the Securities Administrator will furnish such report to each
Holder of the Certificates of record at any time during the prior calendar
year as to the aggregate of amounts reported pursuant to subclauses (a)(ii)
and (a)(v) above with respect to the Certificates, plus information with
respect to the amount of servicing compensation and such other customary
information as the Securities Administrator may determine to be necessary
and/or to be required by the Internal Revenue Service or by a federal or
state law or rules or regulations to enable such Holders to prepare their
tax returns for such calendar year. Such obligations shall be deemed to
have been satisfied to the extent that substantially comparable information
shall be provided by the Securities Administrator pursuant to the
requirements of the Code.
Section 6.05 Monthly Advances. If the Monthly Payment on a Mortgage Loan
that was due on a related Due Date and is delinquent other than as a result of
application of the Relief Act and for which the related Servicer was required to
make an advance pursuant to the related Servicing Agreement exceeds the amount
deposited in the Master Servicer Collection Account that will be used for a
Monthly Advance with respect to such Mortgage Loan, the Master Servicer will
deposit in the Master Servicer Collection Account not later than the
Distribution Account Deposit Date immediately preceding the related Distribution
Date an amount equal to such deficiency, net of the Servicing Fee for such
Mortgage Loan, except to the extent the Master Servicer determines any such
Monthly Advance to be nonrecoverable from Liquidation Proceeds, Insurance
Proceeds or future payments on the Mortgage Loan for which such Monthly Advance
was made. If the Master Servicer has not deposited the amount described above as
of the related Distribution Account Deposit Date, the Trustee will deposit in
the Master Servicer Collection
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Account not later than the related Distribution Date, an amount equal to the
remaining deficiency as of the Distribution Account Deposit Date. Subject to the
foregoing, the Master Servicer shall continue to make such Monthly Advances
through the date that the related Servicer is required to do so under its
Servicing Agreement. If applicable, on the Distribution Account Deposit Date,
the Master Servicer shall present an Officer's Certificate to the Securities
Administrator (i) stating that the Master Servicer elects not to make a Monthly
Advance in a stated amount and (ii) detailing the reason it deems the advance to
be nonrecoverable.
Section 6.06 Compensating Interest Payments. The Master Servicer shall
deposit in the Master Servicer Collection Account not later than each
Distribution Account Deposit Date an amount equal to the aggregate amounts
required to be paid by the Servicers under the Servicing Agreements with respect
to subclause (a) of the definition of Prepayment Interest Shortfall with respect
to the Mortgage Loans for the related Distribution Date, and not so paid by the
related Servicers (such amount, the "Compensating Interest Payment"). The Master
Servicer shall not be entitled to any reimbursement of any Compensating Interest
Payment; provided, however, the aggregate compensating interest payments made by
the Master Servicer shall not exceed the Master Servicing Compensation.
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ARTICLE VII
THE MASTER SERVICER AND THE DEPOSITOR
Section 7.01 Liabilities of the Master Servicer. The Master Servicer shall
be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by the Master Servicer, as the case may
be, herein. The Depositor shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by the
Depositor.
Section 7.02 Merger or Consolidation of the Master Servicer.
(a) The Master Servicer and the Depositor will keep in full force and
effect its existence, rights and franchises as a corporation under the laws
of the state of its incorporation, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction
in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of
the Mortgage Loans and to perform its duties under this Agreement.
(b) Any Person into which the Master Servicer or the Depositor may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor
of the Master Servicer hereunder, without the execution or filing of any
paper or further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section 7.03 Indemnification from the Master Servicer and the Depositor.
(a) The Master Servicer agrees to indemnify the Indemnified Persons for, and to
hold them harmless against, any loss, liability or expense (including reasonable
legal fees and disbursements of counsel) incurred on their part that may be
sustained in connection with, arising out of, or relating to, any claim or legal
action (including any pending or threatened claim or legal action) relating to
this Agreement or the Certificates (i) related to the Master Servicer's failure
to perform its duties in compliance with this Agreement (except as any such
loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement) or (ii) incurred by reason of the Master Servicer's willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder, provided, in each case, that with respect to any such claim or legal
action (or pending or threatened claim or legal action), the Trustee or the
Securities Administrator shall have given the Master Servicer and the Depositor
written notice of such claim or legal action promptly after the Trustee or the
Securities Administrator shall have received knowledge thereof. This indemnity
shall survive the resignation or removal of the Trustee, Master Servicer or the
Securities Administrator and the termination of this Agreement.
(b) The Depositor will indemnify any Indemnified Person for any loss,
liability or expense of any Indemnified Person not otherwise referred to in
Subsection (a) above.
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Section 7.04 Limitations on Liability of the Master Servicer and Others.
Subject to the obligation of the Master Servicer to indemnify the Indemnified
Persons pursuant to Section 7.03:
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to
the Indemnified Persons, the Depositor, the Issuing Entity or the
Certificateholders for taking any action or for refraining from taking any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Master
Servicer or any such Person against any breach of warranties or
representations made herein or any liability which would otherwise be
imposed by reason of such Person's willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder.
(b) The Master Servicer and any director, officer, employee or agent
of the Master Servicer may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any
matters arising hereunder.
(c) The Master Servicer, the Custodian and any director, officer,
employee or agent of the Master Servicer or the Custodian shall be
indemnified by the Issuing Entity and held harmless thereby against any
loss, liability or expense (including reasonable legal fees and
disbursements of counsel) incurred on their part that may be sustained in
connection with, arising out of, or related to, any claim or legal action
(including any pending or threatened claim or legal action) relating to
this Agreement, the Certificates or any Servicing Agreement (except to the
extent that the Master Servicer or the Custodian, as the case may be, is
indemnified by a Servicer thereunder), other than (i) any such loss,
liability or expense related to the Master Servicer's failure to perform
its duties in compliance with this Agreement (except as any such loss,
liability or expense shall be otherwise reimbursable pursuant to this
Agreement), or to the Custodian's failure to perform its duties under the
Custodial Agreement, respectively, or (ii) any such loss, liability or
expense incurred by reason of the Master Servicer's or the Custodian's
willful misfeasance, bad faith or gross negligence in the performance of
duties hereunder or under the Custodial Agreement, as applicable, or by
reason of reckless disregard of obligations and duties hereunder or under
the Custodial Agreement, as applicable.
(d) The Master Servicer shall not be under any obligation to appear
in, prosecute or defend any legal action that is not incidental to its
duties under this Agreement and that in its opinion may involve it in any
expense or liability; provided, however, the Master Servicer may in its
discretion, undertake any such action which it may deem necessary or
desirable with respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In
such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Issuing
Entity, and the Master Servicer shall be entitled to be reimbursed therefor
out of the Master Servicer Collection Account as provided by Section 4.03.
Nothing in this Subsection 7.04(d) shall affect the Master Servicer's
obligation to supervise, or to take such actions as are necessary to
ensure, the servicing and administration of the Mortgage Loans pursuant to
Subsection 3.01(a).
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(e) In taking or recommending any course of action pursuant to this
Agreement, unless specifically required to do so pursuant to this
Agreement, the Master Servicer shall not be required to investigate or make
recommendations concerning potential liabilities which the Issuing Entity
might incur as a result of such course of action by reason of the condition
of the Mortgaged Properties but shall give notice to the Trustee if it has
notice of such potential liabilities.
(f) The Master Servicer shall not be liable for any acts or omissions
of any Servicer, except as otherwise expressly provided herein.
Section 7.05 Master Servicer Not to Resign. Except as provided in Section
7.07, the Master Servicer shall not resign from the obligations and duties
hereby imposed on it except upon a determination that any such duties hereunder
are no longer permissible under applicable law and such impermissibility cannot
be cured. Any such determination permitting the resignation of the Master
Servicer shall be evidenced by an Opinion of Independent Counsel to such effect
delivered to the Trustee. No such resignation by the Master Servicer shall
become effective until MLMLI or the Trustee or a successor to the Master
Servicer reasonably satisfactory to the Trustee shall have assumed the
responsibilities and obligations of the Master Servicer in accordance with
Section 8.02 hereof. The Trustee shall notify the Rating Agencies of the
resignation of the Master Servicer. If the Master Servicer and the Securities
Administrator are the same entity, then at any time the Master Servicer is
terminated as master servicer, the Securities Administrator shall likewise be
removed as securities administrator.
Section 7.06 Successor Master Servicer. In connection with the appointment
of any successor Master Servicer or the assumption of the duties of the Master
Servicer, MLMLI or the Trustee may make such arrangements for the compensation
of such successor master servicer out of payments on the Mortgage Loans as MLMLI
or the Trustee and such successor master servicer shall agree. If the successor
master servicer does not agree that such market value is a fair price, such
successor master servicer shall obtain two quotations of market value from third
parties actively engaged in the servicing of single-family mortgage loans.
Section 7.07 Sale and Assignment of Master Servicing. The Master Servicer
may sell and assign its rights and delegate its duties and obligations in its
entirety as Master Servicer under this Agreement; provided, however, that: (i)
the purchaser or transferee accepting such assignment and delegation (a) shall
be a Person which shall be qualified to service mortgage loans for Xxxxxx Xxx or
Xxxxxxx Mac; (b) shall have a net worth of not less than $10,000,000 (unless
otherwise approved by each Rating Agency pursuant to clause (ii) below); (c)
shall be reasonably satisfactory to the Trustee (as evidenced in a writing
signed by the Trustee); and (d) shall execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by it as
master servicer under this Agreement, any custodial agreement from and after the
effective date of such agreement; (ii) each Rating Agency shall be given prior
written notice of the identity of the proposed successor to the Master Servicer
and each Rating Agency's rating of the Certificates in effect immediately prior
to such assignment, sale and delegation will not be downgraded, qualified or
withdrawn as a result of such assignment, sale and delegation, as evidenced by a
letter to such effect delivered to the Master Servicer and the Trustee; and
(iii) the Master Servicer assigning and
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selling the master servicing shall deliver to the Trustee an Officer's
Certificate and an Opinion of Independent Counsel, each stating that all
conditions precedent to such action under this Agreement have been completed and
such action is permitted by and complies with the terms of this Agreement. No
such assignment or delegation shall affect any liability of the Master Servicer
arising prior to the effective date thereof.
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ARTICLE VIII
DEFAULT
Section 8.01 Events of Default. "Event of Default," wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) and
only with respect to the defaulting Master Servicer:
(i) The Master Servicer fails to cause to be deposited in the
Distribution Account any amount so required to be deposited pursuant to
this Agreement, and such failure continues unremedied for a period of three
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; or
(ii) The Master Servicer fails to observe or perform in any material
respect any other material covenants and agreements set forth in this
Agreement to be performed by it, which covenants and agreements materially
affect the rights of Certificateholders, and such failure continues
unremedied for a period of 60 days after the date on which written notice
of such failure, properly 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 the Trust Fund; or
(iii) There is entered against the Master Servicer a decree or order
by a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or liquidator in
any insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding up or liquidation of its
affairs, and the continuance of any such decree or order is unstayed and in
effect for a period of 60 consecutive days, or an involuntary case is
commenced against the Master Servicer under any applicable insolvency or
reorganization statute and the petition is not dismissed within 60 days
after the commencement of the case; or
(iv) The Master Servicer consents to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating
to the Master Servicer or substantially all of its property; or the Master
Servicer admits in writing its inability to pay its debts generally as they
become due, files a petition to take advantage of any applicable insolvency
or reorganization statute, makes an assignment for the benefit of its
creditors, or voluntarily suspends payment of its obligations; or
(v) The Master Servicer assigns or delegates its duties or rights
under this Agreement in contravention of the provisions permitting such
assignment or delegation under Sections 7.05 or 7.07.
In each and every such case, so long as such Event of Default with respect to
the Master Servicer shall not have been remedied, either the Trustee or the
Holders of Certificates evidencing
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Percentage Interests aggregating not less than 51% of the principal of the Trust
Fund, by notice in writing to the Master Servicer (and to the Trustee if given
by such Certificateholders), with a copy to the Rating Agencies, and with the
consent of MLMLI, may terminate all of the rights and obligations (but not the
liabilities) of the Master Servicer under this Agreement and in and to the
Mortgage Loans and/or the REO Property serviced by the Master Servicer and the
proceeds thereof. Upon the receipt by the Master Servicer of the written notice,
all authority and power of the Master Servicer under this Agreement, whether
with respect to the Certificates, the Mortgage Loans, REO Property or under any
other related agreements (but only to the extent that such other agreements
relate to the Mortgage Loans or related REO Property) shall, subject to Section
8.02, automatically and without further action pass to and be vested in the
Trustee pursuant to this Section 8.01; 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 rights and
obligations hereunder, including, without limitation, the transfer to the
Trustee of (i) the property and amounts which are then or should be part of the
Issuing Entity or which thereafter become part of the Issuing Entity; and (ii)
originals or copies of all documents of the Master Servicer reasonably requested
by the Trustee to enable it to assume the Master Servicer's duties thereunder.
In addition to any other amounts which are then, or, notwithstanding the
termination of its activities under this Agreement, may become payable to the
Master Servicer under this Agreement, the Master Servicer shall be entitled to
receive, out of any amount received on account of a Mortgage Loan or related REO
Property, that portion of such payments which it would have received as
reimbursement under this Agreement if notice of termination had not been given.
The termination of the rights and obligations of the Master Servicer shall not
affect any obligations incurred by the Master Servicer prior to such
termination.
Section 8.02 Trustee to Act; Appointment of Successor. (a) Upon the receipt
by the Master Servicer of a notice of termination pursuant to Section 8.01 or an
Opinion of Independent Counsel pursuant to Section 7.05 to the effect that the
Master Servicer is legally unable to act or to delegate its duties to a Person
which is legally able to act, the Trustee shall automatically become the
successor in all respects to the Master Servicer in its capacity under this
Agreement and the transactions set forth or provided for herein and shall
thereafter be subject to all the responsibilities, duties, liabilities and
limitations on liabilities relating thereto placed on the Master Servicer by the
terms and provisions hereof; provided, however, that MLMLI shall have the right
to either (a) immediately assume the duties of the Master Servicer or (b) select
a successor master servicer; provided further, however, that the Trustee shall
have no obligation whatsoever with respect to any liability (other than advances
deemed recoverable and not previously made) incurred by the Master Servicer at
or prior to the time of termination. 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 if the Master Servicer had continued
to act hereunder, except for those amounts due the Master Servicer as
reimbursement permitted under this Agreement for advances previously made or
expenses previously incurred. Notwithstanding the above, or anything herein to
the contrary, the Trustee, if it becomes Master Servicer, shall have no
responsibility or obligation (i) to repurchase or substitute any Mortgage Loan,
(ii) for any
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representation or warranty of the Master Servicer hereunder, and (iii) for any
act or omission of either a predecessor or successor Master Servicer other than
the Trustee. The Trustee may conduct any activity required of it as Master
Servicer hereunder through an Affiliate or through an agent. Neither the Trustee
nor any other successor Master Servicer shall be deemed to be in default
hereunder due to any act or omission of a predecessor Master Servicer, including
but not limited to failure to timely deliver to the Trustee distribution
instructions, any funds required to be deposited to the Trust Fund, or any
breach of its duty to cooperate with a transfer of master servicing.
Notwithstanding the above, the Trustee may, if it shall be unwilling so to act,
or shall, if it is legally unable so to act, appoint or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution which is a Xxxxxx Mae- or Xxxxxxx Mac-approved servicer, and with
respect to a successor to the Master Servicer only, having a net worth of not
less than $10,000,000 and meeting such other standards for a successor Master
Servicer as are set forth in this Agreement, 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 appointment of a
successor to the Master Servicer hereunder, the Trustee shall act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on the Mortgage Loans as it and such successor shall
agree; provided, however, in the event that the provisions of Section 7.06 shall
apply, no such compensation shall be in excess of that permitted the Trustee
under this Subsection 8.02(a), and that such successor shall undertake and
assume the obligations of the Trustee to pay compensation to any third Person
acting as an agent or independent contractor in the performance of master
servicing responsibilities hereunder. The Trustee and such successor shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession.
(b) If the Trustee shall succeed to any duties of the Master Servicer
respecting the Mortgage Loans as provided herein, it shall do so in a
separate capacity and not in its capacity as Trustee and, accordingly, the
provisions of Article IX shall be inapplicable to the Trustee in its duties
as the successor to the Master Servicer in the servicing of the Mortgage
Loans (although such provisions shall continue to apply to the Trustee in
its capacity as Trustee); the provisions of Article VII, however, shall
apply to it in its capacity as successor master servicer.
Section 8.03 Notification to Certificateholders. Upon any termination or
appointment of a successor to the Master Servicer, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register and to the Rating Agencies.
Section 8.04 Waiver of Defaults. The Trustee shall transmit by mail to all
Certificateholders, within 60 days after the occurrence of any Event of Default
known to the Trustee, unless such Event of Default shall have been cured, notice
of each such Event of Default hereunder known to the Trustee. The Holders of
Certificates evidencing Percentage Interests aggregating not less than 51% of
the Trust Fund may, on behalf of all Certificateholders, waive any default by
the Master Servicer in the performance of its obligations hereunder and the
consequences thereof, except a default in the making of or the causing to be
made any required distribution on the Certificates. Upon any such waiver of a
past default, such default shall be deemed to cease to exist, and any Event of
Default arising therefrom shall be deemed to have been
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timely remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon except
to the extent expressly so waived. The Trustee shall give notice of any such
waiver to the Rating Agencies.
Section 8.05 List of Certificateholders. Upon reasonable, prior written
request of three or more Certificateholders of record, for purposes of
communicating with other Certificateholders with respect to their rights under
this Agreement, the Trustee will afford such Certificateholders access during
business hours to the most recent list of Certificateholders held by the
Trustee.
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ARTICLE IX
CONCERNING THE TRUSTEE AND
THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee. (a) The Trustee, prior to the occurrence of
an Event of Default and after the curing or waiver of all Events of Default
which may have occurred, and the Securities Administrator each undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement as duties of the Trustee and the Securities Administrator,
respectively. If an Event of Default has occurred and has not been cured or
waived, the Trustee shall exercise such of the rights and powers vested in it by
this Agreement, and subject to Section 8.02(b) use the same degree of care and
skill in their exercise, as a prudent person would exercise under the
circumstances in the conduct of his own affairs.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments which are
specifically required to be furnished to the Trustee and the Securities
Administrator pursuant to any provision of this Agreement, the Trustee and
the Securities Administrator, respectively, shall examine them to determine
whether they are in the form required by this Agreement; provided, however,
that neither the Trustee nor the Securities Administrator shall be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished
by the Master Servicer; provided, further, that neither the Trustee nor the
Securities Administrator shall be responsible for the accuracy or
verification of any calculation provided to it pursuant to this Agreement.
If any such instrument is found not to conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it
deems appropriate to have the instrument corrected and if the instrument is
not corrected to its satisfaction, the Trustee will provide notice thereof
to the Certificateholders and take such further action as directed by the
Certificateholders.
(c) On each Distribution Date, the Securities Administrator shall make
monthly distributions and the final distribution to the Certificateholders
from funds in the Distribution Account as provided in Sections 6.01 and
10.01 herein based solely on the report of the Master Servicer or the
Servicers.
(d) No provision of this Agreement shall be construed to relieve the
Trustee or the Securities Administrator 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 or waiver of all such Events of Default which may have
occurred, the duties and obligations of the Trustee and the Securities
Administrator shall be determined solely by the express provisions of
this Agreement, neither the Trustee nor the Securities Administrator
shall be liable except for the performance of their respective 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 Securities Administrator and, in the
absence of bad faith on the part of the Trustee or the Securities
Administrator, respectively, the Trustee or the Securities
Administrator, respectively, may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
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therein, upon any certificates or opinions furnished to the Trustee or
the Securities Administrator, respectively, and conforming to the
requirements of this Agreement;
(ii) Neither the Trustee nor the Securities Administrator shall
be liable in its individual capacity for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the
Trustee or an officer of the Securities Administrator, respectively,
unless it shall be proved that the Trustee or the Securities
Administrator, respectively, was negligent in ascertaining the
pertinent facts;
(iii) Neither the Trustee nor the Securities Administrator shall
be liable with respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with the directions of the
Holders of Certificates evidencing Percentage Interests aggregating
not less than 25% of the Trust Fund, if such action or non-action
relates to the time, method and place of conducting any proceeding for
any remedy available to the Trustee or the Securities Administrator,
respectively, or exercising any trust or other power conferred upon
the Trustee or the Securities Administrator, respectively, under this
Agreement;
(iv) The Trustee shall not be required to take notice or be
deemed to have notice or knowledge of any default or Event of Default
unless a Responsible Officer of the Trustee's Corporate Trust Office
shall have actual knowledge thereof. In the absence of such notice,
the Trustee may conclusively assume there is no such default or Event
of Default;
(v) The Trustee shall not in any way be liable by reason of any
insufficiency in any Account held by or in the name of Trustee unless
it is determined by a court of competent jurisdiction that the
Trustee's gross negligence or willful misconduct was the primary cause
of such insufficiency (except to the extent that the Trustee is
obligor and has defaulted thereon);
(vi) Anything in this Agreement to the contrary notwithstanding,
in no event shall the Trustee or the Securities Administrator be
liable for special, indirect or consequential loss or damage of any
kind whatsoever (including but not limited to lost profits), even if
the Trustee or the Securities Administrator, respectively, has been
advised of the likelihood of such loss or damage and regardless of the
form of action; and
(vii) None of the Securities Administrator, the Depositor, the
Master Servicer, any Servicer or the Trustee shall be responsible for
the acts or omissions of the other, it being understood that this
Agreement shall not be construed to render them partners, joint
venturers or agents of one another.
Neither the Trustee nor the Securities Administrator shall be required to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there is reasonable ground for believing that the repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in this Agreement
shall in any event require the Trustee or the Securities Administrator to
perform, or be responsible for the manner of
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performance of, any of the obligations of the Master Servicer hereunder or under
the Servicing Agreements, except during such time, if any, as the Trustee shall
be the successor to, and be vested with the rights, duties, powers and
privileges of, the Master Servicer in accordance with the terms of this
Agreement.
(e) All funds received by the Master Servicer and the Securities
Administrator and required to be deposited in the Master Servicer
Collection Account or Distribution Account pursuant to this Agreement will
be promptly so deposited by the Master Servicer and the Securities
Administrator.
(f) Except for those actions that the Trustee or the Securities
Administrator is required to take hereunder, neither the Trustee nor the
Securities Administrator shall have any obligation or liability to take any
action or to refrain from taking any action hereunder in the absence of
written direction as provided hereunder.
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator. Except as otherwise provided in Section 9.01:
(i) The Trustee and the Securities Administrator may rely and
shall be protected in acting or refraining from acting in reliance on
any resolution, certificate of a Depositor, Master Servicer or
Servicer, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee and the Securities Administrator may consult
with counsel and any advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection with respect
to any action taken or suffered or omitted by it hereunder in good
faith and in accordance with such advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator shall
be under any obligation to exercise any of the trusts or powers vested
in it by this Agreement, other than its obligation to give notices
pursuant to this Agreement, or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or
direction of any of the Certificateholders pursuant to the provisions
of this Agreement, unless such Certificateholders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby.
Nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default of which a
Responsible Officer of the Trustee's Corporate Trust Office has actual
knowledge (which has not been cured or waived), subject to Section
8.02(b), to exercise such of the rights and powers vested in it by
this Agreement, and to use the same degree of care and skill in their
exercise, as a prudent person would exercise under the circumstances
in the conduct of his own affairs;
(iv) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiver of all Events of Default which may have
occurred, neither the Trustee nor the Securities Administrator shall
be liable in its individual capacity for any action
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taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) Neither the Trustee nor the Securities Administrator 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 Holders of
Certificates evidencing Percentage Interests aggregating not less than
25% of the Trust Fund and provided that the payment within a
reasonable time to the Trustee or the Securities Administrator, as
applicable, of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion
of the Trustee or the Securities Administrator, as applicable,
reasonably assured to the Trustee or the Securities Administrator, as
applicable, by the security afforded to it by the terms of this
Agreement. The Trustee or the Securities Administrator may require
reasonable indemnity against such expense or liability as a condition
to taking any such action. The reasonable expense of every such
examination shall be paid by the Certificateholders requesting the
investigation;
(vi) The Trustee and the Securities Administrator may execute any
of the trusts or powers hereunder or perform any duties hereunder
either directly or through Affiliates, agents or attorneys; provided,
however, that the Trustee may not appoint any agent to perform its
custodial functions with respect to the Mortgage Files or paying agent
functions under this Agreement without the express written consent of
the Securities Administrator, which consent will not be unreasonably
withheld. Neither the Trustee nor the Securities Administrator shall
be liable or responsible for the misconduct or negligence of any of
the Trustee's or the Securities Administrator's agents or attorneys or
a custodian or paying agent appointed hereunder by the Trustee or the
Securities Administrator with due care and, when required, with the
consent of the Securities Administrator;
(vii) Should the Trustee or the Securities Administrator deem the
nature of any action required on its part, other than a payment or
transfer under Subsection 4.01(b) or Section 4.02, to be unclear, the
Trustee or the Securities Administrator, respectively, may require
prior to such action that it be provided by the Depositor with
reasonable further instructions;
(viii) The right of the Trustee or the Securities Administrator
to perform any discretionary act enumerated in this Agreement shall
not be construed as a duty, and neither the Trustee nor the Securities
Administrator shall be accountable for other than its negligence or
willful misconduct in the performance of any such act;
(ix) Neither the Trustee nor the Securities Administrator shall
be required to give any bond or surety with respect to the execution
of the trust created hereby or the powers granted hereunder, except as
provided in Subsection 9.07; and
(x) Neither the Trustee nor the Securities Administrator shall
have any duty to conduct any affirmative investigation as to the
occurrence of any condition requiring the
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repurchase of any Mortgage Loan by the Seller pursuant to this
Agreement or the Mortgage Loan Purchase Agreement, as applicable, or
the eligibility of any Mortgage Loan for purposes of this Agreement.
(xi) Any permissive right of the Trustee hereunder shall not be
construed as a duty.
Section 9.03 Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans. The recitals contained herein and in the
Certificates (other than the signature and countersignature of the Trustee on
the Certificates) shall be taken as the statements of the Depositor, and neither
the Trustee nor the Securities Administrator shall have any responsibility for
their correctness. Neither the Trustee nor the Securities Administrator makes
any representation as to the validity or sufficiency of the Certificates (other
than the signature and countersignature of the Trustee on the Certificates) or
of any Mortgage Loan except as expressly provided in Sections 2.02 and 2.05
hereof; provided, however, that the foregoing shall not relieve the Trustee or
the Custodian of the obligation to review the Mortgage Files pursuant to
Sections 2.02 and 2.04. The Trustee's signature and countersignature (or
countersignature of its agent) on the Certificates shall be solely in its
capacity as Trustee of the Trust Fund and shall not constitute the Certificates
an obligation of the Trustee in any other capacity. Neither the Trustee or the
Securities Administrator shall be accountable for the use or application by the
Depositor of any of the Certificates or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Depositor with respect to
the Mortgage Loans. Subject to the provisions of Section 2.05, neither the
Trustee nor the Securities Administrator shall not be responsible for the
legality or validity of this Agreement or any document or instrument relating to
this Agreement, the validity of the execution of this Agreement or of any
supplement hereto or instrument of further assurance, or the validity, priority,
perfection or sufficiency of the security for the Certificates issued hereunder
or intended to be issued hereunder. Neither the Trustee nor the Securities
Administrator shall at any time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Mortgage or any
Mortgage Loan, or the perfection and priority of any Mortgage or the maintenance
of any such perfection and priority, or for or with respect to the sufficiency
of the Trust Fund or its ability to generate the payments to be distributed to
Certificateholders, under this Agreement. Neither the Trustee nor the Securities
Administrator shall have any responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to record this Agreement.
Section 9.04 Trustee and Securities Administrator May Own Certificates. The
Trustee and the Securities Administrator in its individual capacity or in any
capacity other than as Trustee hereunder may become the owner or pledgee of any
Certificates with the same rights it would have if it were not Trustee or the
Securities Administrator, as applicable, and may otherwise deal with the parties
hereto.
Section 9.05 Trustee's and Securities Administrator's Fees and Expenses.
The fees and expenses of the Trustee and the Securities Administrator shall be
paid by the Master Servicer in accordance with a side letter agreement. In
addition, the Trustee and the Securities Administrator will be entitled to
recover from the Master Servicer Collection Account pursuant to Section 4.03(b)
all reasonable out-of-pocket expenses, disbursements and advances and the
expenses of
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the Trustee and the Securities Administrator, respectively, in connection with
any Event of Default, any breach of this Agreement or any claim or legal action
(including any pending or threatened claim or legal action) incurred or made by
the Trustee or the Securities Administrator, respectively, in the administration
of the trusts hereunder (including the reasonable compensation, expenses and
disbursements of its counsel) except any such expense, disbursement or advance
as may arise from its negligence or intentional misconduct or which is the
responsibility of the Certificateholders or the Trust Fund hereunder. If funds
in the Master Servicer Collection Account are insufficient therefor, the Trustee
and the Securities Administrator shall recover such expenses from the Depositor.
Such compensation and reimbursement obligation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust.
Section 9.06 Eligibility Requirements for Trustee and Securities
Administrator.
(a) The Trustee and any successor Trustee and the Securities
Administrator and any successor Securities Administrator shall during the
entire duration of this Agreement be a state bank or trust company or a
national banking association organized and doing business under the laws of
such state or the United States of America, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus and
undivided profits of at least $40,000,000 or, in the case of a successor
Trustee, $50,000,000, subject to supervision or examination by federal or
state authority and, in the case of the Trustee, rated "BBB" or higher by
S&P and "Aaa1" or higher by Moody's with respect to their long-term rating
and rated "BBB" or higher by S&P and "Baa1" or higher by Moody's with
respect to any outstanding long-term unsecured unsubordinated debt, and, in
the case of a successor Trustee or successor Securities Administrator other
than pursuant to Section 9.10, rated in one of the two highest long-term
debt categories of, or otherwise acceptable to, each of the Rating
Agencies. If the Trustee publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 9.06 the
combined capital and surplus of such corporation shall be deemed to be its
total equity capital (combined capital and surplus) as set forth in its
most recent report of condition so published. In case at any time the
Trustee or the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 9.06, the Trustee or the
Securities Administrator shall resign immediately in the manner and with
the effect specified in Section 9.08.
(b) In addition, the Securities Administrator (i) may not be an
Originator, Master Servicer, Servicer, the Depositor or an affiliate of the
Depositor unless the Securities Administrator is in an institutional trust
department of the relevant entity, (ii) must be authorized to exercise
corporate trust powers under the laws of its jurisdiction of organization,
and (iii) must be rated at least "A" by S&P or "A" Moody's. If no successor
Securities Administrator shall have been appointed and shall have accepted
appointment within 60 days after the Securities Administrator ceases to be
the Securities Administrator pursuant to Section 9.08, then the Trustee
shall perform the duties of the Securities Administrator pursuant to this
Agreement until such time as a new Securities Administrator is appointed;
provided, however, the Trustee shall have the same right to appoint, or
petition a court of competent jurisdiction to appoint, a successor
securities administrator as it has with respect to appointing or
petitioning a court of competent jurisdiction to appoint a successor master
servicer under section 8.02. The Trustee shall notify the Rating Agencies
of any change of Securities Administrator.
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Section 9.07 Insurance. The Securities Administrator, at its own expense,
shall at all times maintain and keep in full force and effect: (i) fidelity
insurance, (ii) theft of documents insurance and (iii) forgery insurance (which
may be collectively satisfied by a "Financial Institution Bond" and/or a
"Bankers' Blanket Bond"). All such insurance shall be in amounts, with standard
coverage and subject to deductibles, as are customary for insurance typically
maintained by banks or their affiliates which act as custodians for
investor-owned mortgage pools. A certificate of an officer of the Securities
Administrator as to the Securities Administrator's compliance with this Section
9.07 shall be furnished to any Certificateholder upon reasonable written
request.
Section 9.08 Resignation and Removal of the Trustee and Securities
Administrator. (a) The Trustee and the Securities Administrator may at any time
resign and be discharged from the trust hereby created by giving written notice
thereof to the Depositor and the Master Servicer, with a copy to the Rating
Agencies. Upon receiving such notice of resignation, the Depositor shall
promptly appoint a successor Trustee or successor Securities Administrator, as
applicable, by written instrument, in triplicate, one copy of which instrument
shall be delivered to each of the resigning Trustee or Securities Administrator,
as applicable, the successor Trustee or Securities Administrator, as applicable.
If no successor Trustee or Securities Administrator shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or Securities Administrator may petition any
court of competent jurisdiction for the appointment of a successor Trustee or
Securities Administrator. If the Securities Administrator and the Master
Servicer are the same entity, then at any time the Securities Administrator
resigns or is removed as Securities Administrator, the Master Servicer shall
likewise be terminated as Master Servicer.
(b) If at any time the Trustee or the Securities Administrator shall
cease to be eligible in accordance with the provisions of Section 9.06 and
shall fail to resign after written request therefor by the Depositor or if
at any time the Trustee or the Securities Administrator shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or the Securities Administrator, as applicable, or
of its property shall be appointed, or any public officer shall take charge
or control of the Trustee or the Securities Administrator, as applicable,
or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Depositor shall promptly remove the
Trustee, or shall be entitled to remove the Securities Administrator, as
applicable, and appoint a successor Trustee or Securities Administrator, as
applicable, by written instrument, in triplicate, one copy of which
instrument shall be delivered to each of the Trustee or Securities
Administrator, as applicable, so removed, the successor Trustee or
Securities Administrator, as applicable.
(c) The Holders of Certificates evidencing Percentage Interests
aggregating not less than 51% of the Trust Fund may at any time remove the
Trustee or the Securities Administrator and appoint a successor Trustee or
Securities Administrator by written instrument or instruments, in
quadruplicate, signed by such Holders or their attorneys-in-fact duly
authorized, one complete set of which instruments shall be delivered to the
Depositor, the Trustee, the Securities Administrator (if the Trustee is
removed), the Trustee (if the Securities Administrator is removed), and the
Trustee or Securities Administrator so removed and the successor so
appointed.
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(d) No resignation or removal of the Trustee or the Securities
Administrator and appointment of a successor Trustee or Securities
Administrator pursuant to any of the provisions of this Section 9.08 shall
become effective except upon appointment of and acceptance of such
appointment by the successor Trustee or Securities Administrator as
provided in Section 9.09.
Section 9.09 Successor Trustee and Successor Securities Administrator. (a)
Any successor Trustee or Securities Administrator appointed as provided in
Section 9.08 shall execute, acknowledge and deliver to the Depositor, the Master
Servicer and its predecessor Trustee or Securities Administrator an instrument
accepting such appointment hereunder. The resignation or removal of the
predecessor Trustee or Securities Administrator shall then become effective and
such successor Trustee or Securities Administrator, 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 Securities Administrator herein. The predecessor
Trustee or Securities Administrator shall after payment of its outstanding fees
and expenses promptly deliver to the successor Trustee or Securities
Administrator, as applicable, all assets and records of the Trust held by it
hereunder, and the Depositor and the predecessor Trustee or Securities
Administrator, as applicable, 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 or Securities Administrator, as
applicable, all such rights, powers, duties and obligations.
(b) No successor Trustee or Securities Administrator shall accept
appointment as provided in this Section 9.09 unless at the time of such
acceptance such successor Trustee or Securities Administrator shall be
eligible under the provisions of Section 9.06.
(c) Upon acceptance of appointment by a successor Trustee or
Securities Administrator as provided in this Section 9.09, the successor
Trustee or Securities Administrator shall mail notice of the succession of
such Trustee or Securities Administrator hereunder to all
Certificateholders at their addresses as shown in the Certificate Register
and to the Rating Agencies. The Depositor shall pay the cost of any mailing
by the successor Trustee or Securities Administrator.
Section 9.10 Merger or Consolidation of Trustee or Securities
Administrator. Any state bank or trust company or national banking association
into which the Trustee or the Securities Administrator may be merged or
converted or with which it may be consolidated or any state bank or trust
company or national banking association resulting from any merger, conversion or
consolidation to which the Trustee or the Securities Administrator,
respectively, shall be a party, or any state bank or trust company or national
banking association succeeding to all or substantially all of the corporate
trust business of the Trustee or the Securities Administrator, respectively,
shall be the successor of the Trustee or the Securities Administrator,
respectively, hereunder, provided such state bank or trust company or national
banking association shall be eligible under the provisions of Section 9.06. Such
succession shall be valid 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.
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Section 9.11 Appointment of Co-Trustee or Separate Trustee. (a)
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
Trust or property constituting the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee and the Depositor to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section 9.11, such powers, duties, obligations, rights and trusts as the
Depositor and the Trustee may consider necessary or desirable.
(b) If the Depositor shall not have joined in such appointment within
15 days after the receipt by it of a written request so to do, the Trustee
shall have the power to make such appointment without the Depositor.
(c) No co-Master Servicer or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under
Section 9.06 hereunder and no notice to Certificateholders of the
appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 9.08 hereof.
(d) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.11, all rights, powers, duties and obligations
conferred or imposed upon the Trustee and required to be conferred on such
co-trustee shall be conferred or imposed upon and exercised or performed by
the Trustee and such separate trustee or co-trustee jointly, except to the
extent that under any law of any jurisdiction in which any particular act
or acts are to be performed (whether as Trustee hereunder or as successor
to the Master Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
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.
(e) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article IX. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested
with the estates or property specified in its instrument of appointment,
either jointly with the Trustee or separately, as may be provided therein,
subject to all the provisions of this Agreement, specifically including
every provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Every such
instrument shall be filed with the Trustee.
(f) To the extent not prohibited by law, any separate trustee or
co-trustee may, at any time, request the Trustee, its agent or
attorney-in-fact, with full power and authority, to do any lawful act under
or with respect to this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties rights, remedies and
trusts shall vest in and be exercised by the
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Trustee, to the extent permitted by law, without the appointment of a new
or successor Trustee.
(g) No Trustee under this Agreement shall be personally liable by
reason of any act or omission of another Trustee under this Agreement. The
Depositor and the Trustee acting jointly may at any time accept the
resignation of or remove any separate trustee or co-trustee.
Section 9.12 Federal Information Returns and Reports to Certificateholders;
REMIC Administration. (a) REMIC elections as set forth in the Preliminary
Statement shall be made on Forms 1066 or other appropriate federal tax or
information return for the taxable year ending on the last day of the calendar
year in which the Certificates are issued. The regular interests and residual
interest in each REMIC shall be as designated in the Preliminary Statement..
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 860G(a)(9) of the Code. The latest
possible maturity date for purposes of Treasury Regulation 1.860G-1(a)(4)
will be the Latest Possible Maturity Date.
(c) The Securities Administrator shall, for federal income tax
purposes, maintain books and records with respect to each REMIC on a
calendar year and on an accrual basis.
(d) The Securities Administrator shall represent the Trust Fund in any
administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority with respect thereto. The Securities
Administrator shall pay any and all tax-related expenses (not including
taxes) of each REMIC, including but not limited to any professional fees or
expenses related to audits or any administrative or judicial proceedings
with respect to such REMIC that involve the Internal Revenue Service or
state tax authorities, but only to the extent that (i) such expenses are
ordinary or routine expenses, including expenses of a routine audit but not
expenses of litigation (except as described in (ii)); or (ii) such expenses
or liabilities (including taxes and penalties) are attributable to the
negligence or willful misconduct of the Securities Administrator in
fulfilling its duties hereunder (including its duties as tax return
preparer). The Securities Administrator shall be entitled to reimbursement
of expenses to the extent provided in clause (i) above from the
Distribution Account, provided, however, the Securities Administrator shall
not be entitled to reimbursement for expenses incurred in connection with
the preparation of tax returns and other reports as required by this
Section.
(e) The Securities Administrator shall prepare and file, and the
Trustee shall sign, all of each REMIC's and the Trust Fund's federal and
appropriate state tax and information returns as such REMIC's direct
representative. The expenses of preparing and filing such returns shall be
borne by the Securities Administrator.
(f) The Securities Administrator or its designee shall perform on
behalf of each REMIC all reporting and other tax compliance duties that are
the responsibility of such REMIC under the Code, the REMIC Provisions, or
other compliance guidance issued by the Internal Revenue Service or any
state or local taxing authority. Among its other duties, if required by the
Code, the REMIC Provisions, or other such guidance, the Securities
Administrator shall provide, upon receipt of additional reasonable
compensation, to the
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Treasury or other governmental authority such information as is necessary
for the application of any tax relating to the transfer of a Residual
Certificate to any disqualified person or organization pursuant to Treasury
Regulation 1.860E-2(a)(5) and any person designated in Section 860E(e)(3)
of the Code.
(g) The Securities Administrator and the Holders of Certificates shall
take any action or cause any REMIC to take any action necessary to create
or maintain the status of any REMIC as a REMIC under the REMIC Provisions
and shall assist each other as necessary to create or maintain such status.
Neither the Securities Administrator nor the Holder of any Residual
Certificate shall knowingly take any action, cause any REMIC to take any
action or fail to take (or fail to cause to be taken) any action that,
under the REMIC Provisions, if taken or not taken, as the case may be,
could (i) endanger the status of any REMIC as a REMIC or (ii) result in the
imposition of a tax upon any REMIC (including but not limited to the tax on
prohibited transactions as defined in Code Section 860F(a)(2) and the tax
on prohibited contributions set forth on Section 860G(d) of the Code)
(either such event, an "Adverse REMIC Event") unless the Securities
Administrator has received a REMIC Opinion (at the expense of the party
seeking to take such action) to the effect that the contemplated action
will not endanger such status or result in the imposition of such a tax. In
addition, prior to taking any action with respect to any REMIC or the
assets therein, or causing any REMIC to take any action, which is not
expressly permitted under the terms of this Agreement, any Holder of a
Residual Certificate will consult with the Securities Administrator, in
writing, with respect to whether such action could cause an Adverse REMIC
Event to occur with respect to any REMIC, and no such Person shall take any
such action or cause any REMIC to take any such action as to which the
Securities Administrator has advised it in writing that an Adverse REMIC
Event could occur; provided, however, that if no Adverse REMIC Event would
occur but such action could result in the imposition of additional taxes on
the Residual Certificateholders, no such Person shall take any such action,
or cause any REMIC to take any such action without the written consent of
the Residual Certificateholders.
(h) Each Holder of a Residual Certificate shall pay when due any and
all taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such taxes are not paid by a Residual
Certificateholder, the Securities Administrator shall pay any remaining
REMIC taxes out of current or future amounts otherwise distributable to the
Holder of the Residual Certificate in any such REMIC or, if no such amounts
are available, out of other amounts held in the Distribution Account, and
shall reduce amounts otherwise payable to holders of regular interests in
any such REMIC, as the case may be.
(i) The Securities Administrator shall prepare and file with the
Internal Revenue Service ("IRS"), on behalf of each of REMIC 1 and the
Upper Tier REMIC, an application for an employer identification number on
IRS Form SS-4 or by any other acceptable method. The Securities
Administrator shall also file a Form 8811 as required. The Securities
Administrator, upon receipt from the IRS of the Notice of Taxpayer
Identification Number Assigned, shall upon request promptly forward a copy
of such notice to the Depositor. The Securities Administrator shall furnish
any other information that is required by the Code and regulations
thereunder to be made available to Certificateholders. The Depositor shall
cause each Servicer to provide the Securities Administrator with such
information as is necessary for the Securities Administrator to prepare
such reports.
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(j) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement.
(k) The Securities Administrator shall not enter into any arrangement
by which any REMIC will receive a fee or other compensation for services.
(l) The Class A-R Holder shall act as "tax matters person" with
respect to each REMIC and irrevocably appoints the Securities Administrator
to act as its agent in such roles.
(m) None of the Securities Administrator, the Trustee or the
Depositor, as assignees under this Agreement, shall provide any consent
pursuant to this Agreement or knowingly take any action under this
Agreement that would conflict with or violate the provisions of this
Section 9.12.
(n) The Securities Administrator shall prepare or cause to be prepared
on behalf of the Trust Fund, based upon information calculated in
accordance with this Agreement pursuant to instructions given by the
Depositor, the Trustee shall sign, and the Securities Administrator shall
file federal tax returns, all in accordance with Section 9.12 hereof. The
Securities Administrator shall prepare and file, and the Trustee shall
sign, such state income tax returns and such other returns as may be
required by applicable law relating to the Trust Fund, and, if required by
state law, and shall file any other documents to the extent required by
applicable state tax law (to the extent such documents are in the
Securities Administrator's possession). The Securities Administrator shall
forward copies to the Depositor of all such returns and Form 1099
supplemental tax information and such other information within the control
of the Securities Administrator as the Depositor may reasonably request in
writing, and shall distribute to each Certificateholder such forms and
furnish such information within the control of the Securities Administrator
as are required by the Code and the REMIC Provisions to be furnished to
them, and will prepare and distribute to Certificateholders Form 1099
(supplemental tax information) (or otherwise furnish information within the
control of the Securities Administrator) to the extent required by
applicable law.
(o) The parties intend that the portion of the Trust Fund consisting
of the right to receive the payments distributable to the Class P
Certificates shall be treated as a "grantor trust" under the Code, for the
benefit of the holders of the Class P Certificates, and the provisions
hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Securities Administrator shall (i)
furnish or cause to be furnished to the holders of the Class P Certificates
information regarding their allocable share of the income with respect to
such grantor trust and (ii) file or cause to be filed with the Internal
Revenue Service, and the Trustee shall sign, Form 1041 (together with any
necessary attachments) and such other forms as may be applicable.
(p) Notwithstanding any other provision of this Agreement, the Trustee
and the Securities Administrator shall comply with all federal withholding
requirements respecting payments to Certificateholders of interest or
original issue discount on the Mortgage Loans, that the Trustee or the
Securities Administrator reasonably believes are applicable under the Code.
The consent of Certificateholders shall not be required for such
withholding. In the event the Trustee or the Securities Administrator
withholds any amount from interest or
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original issue discount payments or advances thereof to any
Certificateholder pursuant to federal withholding requirements, the Trustee
or the Securities Administrator shall, together with its monthly report to
such Certificateholders, indicate such amount withheld.
(q) The Trustee and the Securities Administrator agree to indemnify
the Trust Fund and the Depositor for any taxes and costs including, without
limitation, any reasonable attorneys fees imposed on or incurred by the
Trust Fund, the Depositor or the Trustee, as a result of a breach of the
Trustee's covenants and the Securities Administrator's covenants,
respectively, set forth in this Section 9.12; provided, however, such
liability and obligation to indemnify in this paragraph shall not be joint
and several and neither the Trustee nor the Securities Administrator shall
be liable or be obligated to indemnify the Trust Fund for the failure by
the other to perform any duty under this Agreement or the breach by the
other of any covenant in this Agreement.
(r) The Securities Administrator covenants and agrees that it shall
act as agent (and the Securities Administrator is hereby appointed to act
as agent) of the Tax Matters Person on behalf of each of the REMICs
provided for herein and that in such capacity it shall: (a) to the extent
that they are under its control conduct the affairs of each of the REMICs
provided for herein at all times that any Certificates are outstanding so
as to maintain the status of each of the REMICs provided for herein as a
REMIC under the REMIC Provisions; (b) not knowingly or intentionally take
any action or omit to take any action that would cause the termination of
the REMIC status of any of the REMICs provided for herein or result in the
imposition of tax upon any such REMIC; (c) not knowingly or intentionally
take any action or omit to take any action that would cause the termination
of the grantor trust status under Subpart E, Part I of Subchapter J of the
Code of any of the grantor trusts provided for herein or result in the
imposition of tax upon any such grantor trust; and (d) as and when
necessary and appropriate, represent each of the REMICs provided for herein
in any administrative or judicial proceedings relating to an examination or
audit by any governmental taxing authority, request an administrative
adjustment as to any taxable year of any of the REMICs provided for herein,
enter into settlement agreements with any governmental taxing agency,
extend any statute of limitations relating to any tax item of any of the
REMICs provided for herein, and otherwise act on behalf of each of the
REMICs provided for herein in relation to any tax matter involving any of
such REMICs or any controversy involving the Trust Fund.
(s) Each of the Depositor, the Master Servicer, the Securities
Administrator and the Trustee agrees not to take or omit to take knowingly
or intentionally, any action or omit to take any action that would cause
the termination of the REMIC status of any of the REMICs provided for
herein or result in the imposition of a tax upon any of the REMICs provided
for herein.
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ARTICLE X
TERMINATION
Section 10.01 Termination upon Liquidation or Repurchase of all Mortgage
Loans.
(a) Subject to Section 10.03, the obligations and responsibilities of
the Depositor, the Master Servicer, the Securities Administrator and the
Trustee created hereby with respect to the Trust Fund shall terminate upon
the earlier of (a) an Optional Termination and (b) the later of (i) the
maturity or other liquidation of the last Mortgage Loan remaining in the
Trust Fund (or any Monthly Advance with respect thereto) and the
disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them
pursuant to this Agreement, as applicable. In no event shall the trusts
created hereby continue beyond the earlier of (i) the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof and (ii) the Latest Possible Maturity
Date.
(b) On or before the Determination Date following the Initial Optional
Termination Date, the Securities Administrator shall attempt to terminate
the Trust Fund by conducting an auction of all of the Mortgage Loans and
REO Properties via a solicitation of bids from at least three (3) bidders,
each of which shall be a nationally recognized participant in mortgage
finance (the "Auction"). The Depositor and the Securities Administrator
agree to work in good faith to develop bid procedures in advance of the
Initial Optional Termination Date to govern the operation of the Auction.
The Securities Administrator shall be entitled to retain an investment
banking firm and/or other agents in connection with the Auction, the cost
of which shall be included in the Optional Termination Price (unless an
Optional Termination does not occur in which case such costs shall be an
expense of the Trust Fund). The Securities Administrator shall accept the
highest bid received at the Auction; provided that the amount of such bid
equals or exceeds the Optional Termination Price. The Securities
Administrator shall determine the Optional Termination Price based upon
information provided by (i) the Master Servicer with respect to the amounts
described in clauses (A) and (B) of the definition of "Optional Termination
Price" (other than Securities Administrator's expenses) and (ii) the
Depositor with respect to the information described in clause (C) of the
definition of "Optional Termination Price." The Securities Administrator
may conclusively rely upon the information provided to it in accordance
with the immediately preceding sentence and shall not have any liability
for the failure of any party to provide such information.
If an Optional Termination does not occur as a result of the Auction's
failure to achieve the Optional Termination Price, the Master Servicer may, on
any Distribution Date following such Auction, at its option, terminate the Trust
Fund by purchasing all of the Mortgage Loans and REO Properties at a price equal
to the Optional Termination Price. In connection with such termination, the
Optional Termination Price shall be delivered to the Securities Administrator no
later than the Business Day immediately preceding the related Distribution Date.
Notwithstanding anything to the contrary herein, the Optional Termination Amount
paid to the Securities Administrator by the winning bidder at the Auction or by
the Master Servicer shall be deposited by the Securities Administrator directly
into the Distribution Account immediately upon receipt. Upon any termination as
a result of an Auction, the Securities Administrator shall, out of the Optional
Termination Amount deposited into the Distribution Account, (x) pay the
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Securities Administrator its costs and expenses necessary to conduct the Auction
and any other unreimbursed amounts owing to it and (y) pay to the Master
Servicer or Servicer, the aggregate amount of any unreimbursed out-of-pocket
costs and expenses owed to the Master Servicer or Servicer and any unpaid or
unreimbursed Servicing Fees, Monthly Advances and Servicing Advances.
(c) Notwithstanding anything to the contrary in clause (b) above, in
the event that the Securities Administrator and the Trustee receive the
written opinion of a nationally recognized participant in mortgage finance
acceptable to the Seller that the Mortgage Loans and REO Properties to be
included in the Auction will not be saleable at a price sufficient to
achieve the Optional Termination Price, the Securities Administrator need
not conduct the Auction. In such event, the Master Servicer shall have the
option to purchase the Mortgage Loans and REO Properties at the Optional
Termination Price as of the Initial Optional Termination Date.
Section 10.02 Final Distribution on the Certificates.
If on any Determination Date, (i) the Securities Administrator determines
that there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund other than the funds in the Master Servicer Collection Account, the
Securities Administrator shall send a final distribution notice promptly to each
Certificateholder or (ii) the Securities Administrator determines that a Class
of Certificates shall be retired after a final distribution on such Class, the
Securities Administrator shall notify the Certificateholders within seven (7)
Business Days after such Determination Date that the final distribution in
retirement of such Class of Certificates is scheduled to be made on the
immediately following Distribution Date. Any final distribution made pursuant to
the immediately preceding sentence will be made only upon presentation and
surrender of the Certificates at the office of the Securities Administrator.
Notice of any termination of the Trust Fund, specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment of
the final distribution and cancellation, shall be given promptly by the
Securities Administrator by letter to Certificateholders mailed no later than
the last calendar day of the month immediately preceding the month of such final
distribution (or with respect to an Auction, mailed no later than one Business
Day following completion of such Auction). Any such notice shall specify (a) the
Distribution Date upon which final distribution on the Certificates will be made
upon presentation and surrender of Certificates at the office therein
designated, (b) the location of the office or agency at which such presentation
and surrender must be made, and (c) that the Record Date otherwise applicable to
such Distribution Date is not applicable, distributions being made only upon
presentation and surrender of the Certificates at the office therein specified.
The Securities Administrator will give such notice to each Rating Agency at the
time such notice is given to Certificateholders.
In the event such notice is given, the Master Servicer shall cause all
funds in the Master Servicer Collection Account to be deposited in the
Distribution Account on the Business Day prior to the applicable Distribution
Date in an amount equal to the final distribution in respect of the
Certificates. Upon such final deposit with respect to the Trust Fund and the
receipt by the Trustee, or its Custodian, of a Request for Release therefor, the
Trustee, or its Custodian, shall
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promptly release to the Securities Administrator or the Master Servicer, as
applicable, the Mortgage Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to Certificateholders of each Class
the amounts allocable to such Certificates held in the Distribution Account in
the order and priority set forth in Section 6.01 hereof on the final
Distribution Date and in proportion to their respective Percentage Interests.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Securities Administrator shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Securities
Administrator may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that remain a part of the Trust Fund. If within one year
after the second notice all Certificates shall not have been surrendered for
cancellation, the Class A-R Certificateholders shall be entitled to all
unclaimed funds and other assets of the Trust Fund that remain subject hereto.
Upon payment to the Class A-R Certificateholders of such funds and assets, the
Securities Administrator shall have no further duties or obligations with
respect thereto.
Section 10.03 Additional Termination Requirements.
(a) In the event the Securities Administrator or the Master Servicer
exercises its purchase option as provided in Section 10.01, the Trust Fund
shall be terminated in accordance with the following additional
requirements, unless the Securities Administrator shall have been furnished
with an Opinion of Counsel to the effect that the failure of the Trust Fund
to comply with the requirements of this Section will not (i) result in the
imposition of taxes on "prohibited transactions" of the Trust Fund as
defined in Section 860F of the Code or (ii) cause any REMIC constituting
part of the Trust Fund 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, the
Securities Administrator shall adopt and sign a plan of complete
liquidation of the Trust Fund as provided to it by the terminating
purchaser, meeting the requirements of a "qualified liquidation" under
Section 860F of the Code and any regulations thereunder; 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
Securities Administrator shall sell all of the assets of the Trust
Fund for cash pursuant to the terms of the plan of complete
liquidation.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to appoint the Securities Administrator as their attorney in fact to:
(i) adopt such a plan of complete liquidation (and the Certificateholders
hereby appoint the Securities Administrator as their attorney in fact to
sign such plan) as appropriate and (ii) to take such other action in
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connection therewith as may be reasonably required to carry out such plan
of complete liquidation all in accordance with the terms hereof.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Intent of Parties. The parties intend that each REMIC shall
be treated as a REMIC for federal income tax purposes and that the provisions of
this Agreement should be construed in furtherance of this intent.
Section 11.02 Amendment. (a) This Agreement may be amended from time to
time by the Depositor, the Master Servicer, the Securities Administrator and the
Trustee, and without the consent of any of the Certificateholders to:
(i) to cure any ambiguity or correct any mistake,
(ii) to correct, modify or supplement any provision herein which
may be inconsistent with any other provision herein,
(iii) to add any other provisions with respect to matters or
questions arising under this Agreement, or
(iv) to modify, alter, amend, add to or rescind any of the terms
or provisions contained in this Agreement, provided, however, that, in the case
of clauses (iii) and (iv), such amendment will not, as evidenced by an Opinion
of Counsel addressed to the Securities Administrator to such effect, adversely
affect in any material respect the interests of any Certificateholder; provided,
further, however, that such amendment will be deemed to not adversely affect in
any material respect the interest of any Holder if the Person requesting such
amendment obtains a letter from each Rating Agency stating that such amendment
will not result in a reduction or withdrawal of its rating of any Class of the
Certificates, it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating.
Notwithstanding the foregoing, without the consent of the
Certificateholders, the Depositor, the Master Servicer, the Securities
Administrator and the Trustee may at any time and from time to time amend this
Agreement to modify, eliminate or add to any of its provisions to such extent as
shall be necessary or appropriate to maintain the qualification of any of the
REMICs provided for herein as REMICs under the Code or to avoid or minimize the
risk of the imposition of any tax on the Trust Fund or any of the REMICs
provided for herein pursuant to the Code that would be a claim against the Trust
Fund at any time prior to the final redemption of the Certificates, provided
that the Trustee and the Securities Administrator shall have been provided an
Opinion of Counsel addressed to the Trustee and the Securities Administrator,
which opinion shall be an expense of the party requesting such amendment but in
any case shall not be an expense of the Trustee and the Securities
Administrator, to the effect that such action is necessary or appropriate to
maintain such qualification or to avoid or minimize the risk of the imposition
of such a tax.
(b) This Agreement may also be amended from time to time by the Master
Servicer, the Depositor, the Securities Administrator and the Trustee, and
the Assignment Agreements may also be amended from time to time by the
Master Servicer and the Trustee, with the
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consent of the Holders of Certificates evidencing Percentage Interests
aggregating not less than 51% of the Trust Fund or of the applicable Class
or Classes, if such amendment affects only such Class or Classes, 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 (i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which are required to be
distributed on any Regular Certificate without the consent of the Holder of
such Regular Certificate, or (ii) reduce the aforesaid percentage of
Certificates the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates then
outstanding. Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it
shall have first received an Opinion of Counsel addressed to the Trustee,
which opinion shall be an expense of the party requesting such amendment
but in any case shall not be an expense of the Trustee, to the effect that
such amendment is permitted hereunder and will not cause the imposition of
any tax on the Trust Fund, any of the REMICs provided for herein or the
Certificateholders or cause any of the REMICs provided for herein to fail
to qualify as a REMIC at any time that any Certificates are outstanding.
(c) Promptly after the execution of any such amendment, the Securities
Administrator shall furnish a copy of such amendment or written
notification of the substance of such amendment to each Certificateholder,
with a copy to the Rating Agencies.
(d) In the case of an amendment under Subsection 11.02(b) above, it
shall not be necessary for the Certificateholders to approve the particular
form of such an amendment. Rather, it shall be sufficient if the
Certificateholders approve the substance of the amendment. 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.
(e) Prior to the execution of any amendment to this Agreement, the
Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by
this Agreement and will not adversely affect the status of any REMIC
created hereunder. The Trustee and the Securities Administrator may, but
shall not be obligated to, enter into any such amendment which affects the
Trustee's or the Securities Administrator's own respective rights, duties
or immunities under this Agreement.
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Section 11.03 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 other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere. The Depositor
shall effect such recordation, at the expense of the Issuing Entity upon the
request in writing of a Certificateholder, but only if such direction is
accompanied by an Opinion of Counsel (provided at the expense of the
Certificateholder requesting recordation) to the effect that such recordation
would materially and beneficially affect the interests of the Certificateholders
or is required by law.
Section 11.04 Limitation on Rights of Certificateholders. (a) The death or
incapacity of any Certificateholder shall not terminate this Agreement or the
Issuing Entity, 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 Issuing Entity, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any of them.
(b) Except as expressly provided in this Agreement, no
Certificateholders shall have any right to vote or in any manner otherwise
control the operation and management of the Issuing Entity, or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to establish
the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholders 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.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon, under or with respect to this Agreement against the
Depositor, the Securities Administrator, the Master Servicer or any
successor to any such parties unless (i) such Certificateholder previously
shall have given to the Trustee a written notice of a continuing default,
as herein provided, (ii) the Holders of Certificates evidencing Percentage
Interests aggregating not less than 51% of the Trust Fund 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
and expenses and liabilities to be incurred therein or thereby, and (iii)
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.
(d) No one or more Certificateholders shall have any right by virtue
of any provision of this Agreement to affect the rights of any other
Certificateholders or to obtain or seek to obtain priority or preference
over any other such Certificateholder, 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 11.04, each and every
Certificateholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
Section 11.05 Acts of Certificateholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken
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by Certificateholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Certificateholders in
person or by an agent duly appointed in writing. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is expressly required, to
the Depositor. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Agreement
and conclusive in favor of the Trustee and the Depositor, if made in the manner
provided in this Section 11.05.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his or her individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his or her authority. The fact
and date of the execution of any such instrument or writing, or the
authority of the individual executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing on such Certificates, except an endorsement in
accordance with Section 5.02 made on a Regular Certificate presented in
accordance with Section 5.04) shall be proved by the Certificate Register,
and neither the Trustee, the Securities Administrator, the Depositor, the
Master Servicer nor any successor to any such parties shall be affected by
any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action of the holder of any Regular Certificate shall bind
every future holder of the same Regular Certificate and the holder of every
Regular Certificate issued upon the registration of transfer or exchange
thereof, if applicable, or in lieu thereof with respect to anything done,
omitted or suffered to be done by the Trustee, the Securities
Administrator, the Depositor, the Master Servicer or any successor to any
such party in reliance thereon, whether or not notation of such action is
made upon such Certificates.
(e) In determining whether the Holders of the requisite percentage of
Certificates evidencing Percentage Interests have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Certificates owned by the Trustee, the Securities Administrator, the
Depositor, the Master Servicer or any Affiliate thereof shall be
disregarded, except as otherwise provided in Section 11.02(b) and except
that, in determining whether the Securities Administrator or the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Certificates which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded.
Certificates which have been pledged in good faith to the Trustee, the
Securities Administrator, the Depositor, the Master Servicer or any
Affiliate thereof may be regarded as outstanding if the pledgor establishes
to the satisfaction of the Securities Administrator the pledgor's right to
act with respect to such Certificates and that the pledgor is not an
Affiliate of the Trustee, the Securities Administrator, the Depositor, or
the Master Servicer, as the case may be.
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Section 11.06 Governing Law. THIS AGREEMENT AND THE CERTIFICATES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ITS CONFLICT OF LAWS RULES AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.07 Notices. All demands and notices hereunder shall be in
writing and shall be deemed given when delivered at (including delivery by
facsimile) or mailed by registered mail, return receipt requested, postage
prepaid, or by recognized overnight courier, to (i) in the case of the
Depositor, 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Vice
President-Servicing, telecopier number: (000) 000-0000, or to such other address
as may hereafter be furnished to the other parties hereto in writing; (ii) in
the case of the Trustee, at its Corporate Trust Office, or such other address as
may hereafter be furnished to the other parties hereto in writing; (iii) in the
case of the Master Servicer or Securities Administrator, Xxxxx Fargo Bank, N.A.,
X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention MLMI Series 2006-A1, or, in the
case of overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000-0000, Attention: MLMI Series 2006-A1, facsimile no.: (000) 000-0000, or
such other address as may hereafter be furnished to the other parties hereto in
writing; (iv) in the case of the Custodian, Xxxxx Fargo Bank, N.A., 0000 00xx
Xxxxxx Xxxxxxxxx, XX 0031, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: MLMI Series
2006-A1; or such other address as may hereafter be furnished to the other
parties hereto in writing; or (v) in the case of the Rating Agencies, Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
and Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any notice delivered to the Depositor, the
Trustee, the Securities Administrator or the Master Servicer under this
Agreement shall be effective only upon receipt. Any notice required or permitted
to be mailed to a Certificateholder, unless otherwise provided herein, shall be
given by first-class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register. Any notice so mailed
within the time prescribed in this Agreement shall be conclusively presumed to
have been duly given when mailed, whether or not the Certificateholder receives
such notice.
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Section 11.08 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severed from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the holders thereof.
Section 11.09 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto.
Section 11.10 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 11.11 Counterparts. This Agreement may be executed in two or more
counterparts each of which when so executed and delivered shall be an original
but all of which together shall constitute one and the same instrument.
Section 11.12 Notice to Rating Agencies. The article and section headings
herein are for convenience of reference only, and shall not limited or otherwise
affect the meaning hereof. The Trustee shall promptly provide notice to each
Rating Agency with respect to each of the following of which it has actual
knowledge:
1. Any material change or amendment to this Agreement or the Servicing
Agreements;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Trustee, the Trustee or the
Securities Administrator;
4. The repurchase or substitution of Mortgage Loans;
5. The final payment to Certificateholders; and
6. Any change in the location of the Master Servicer Collection Account or
the Distribution Account.
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ARTICLE XII
REMIC ADMINISTRATION
Section 12.01 REMIC Administration.
(a) REMIC elections as set forth in the Preliminary Statement shall be
made on Forms 1066 or other appropriate federal tax or information return
for the taxable year ending on the last day of the calendar year in which
the Certificates are issued. The regular interests and residual interest in
each REMIC shall be as designated in the Preliminary Statement and Section
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC within the meaning of section 860G(a)(9) of the Code. The latest
possible maturity date for purposes of Treasury Regulation 1.860G-1(a)(4)
will be the Latest Possible Maturity Date.
(c) The Securities Administrator shall represent the Trust Fund in any
administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority with respect thereto. The Securities
Administrator shall pay any and all tax-related expenses (not including
taxes) of each REMIC, including but not limited to any professional fees or
expenses related to audits or any administrative or judicial proceedings
with respect to such REMIC that involve the Internal Revenue Service or
state tax authorities, but only to the extent that (i) such expenses are
ordinary or routine expenses, including expenses of a routine audit but not
expenses of litigation (except as described in (ii)); or (ii) such expenses
or liabilities (including taxes and penalties) are attributable to the
negligence or willful misconduct of the Securities Administrator in
fulfilling its duties hereunder (including its duties as tax return
preparer). The Securities Administrator shall be entitled to reimbursement
of expenses to the extent provided in clause (i) above from the
Distribution Account, provided, however, the Securities Administrator shall
not be entitled to reimbursement for expenses incurred in connection with
the preparation of tax returns and other reports as required by this
Section.
(d) The Securities Administrator shall prepare, sign and file all of
each REMIC's federal and appropriate state tax and information returns as
such REMIC's direct representative. The expenses of preparing and filing
such returns shall be borne by the Securities Administrator.
(e) The Securities Administrator or its designee shall perform on
behalf of each REMIC all reporting and other tax compliance duties that are
the responsibility of such REMIC under the Code, the REMIC Provisions, or
other compliance guidance issued by the Internal Revenue Service or any
state or local taxing authority. Among its other duties, if required by the
Code, the REMIC Provisions, or other such guidance, the Securities
Administrator shall provide, upon receipt of additional reasonable
compensation, to the Treasury or other governmental authority such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any disqualified person or
organization pursuant to Treasury Regulation 1.860E-2(a)(5) and any person
designated in Section 860E(e)(3) of the Code.
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(f) The Securities Administrator and the Holders of Certificates shall
take any action or cause any REMIC to take any action necessary to create
or maintain the status of any REMIC as a REMIC under the REMIC Provisions
and shall assist each other as necessary to create or maintain such status.
Neither the Securities Administrator nor the Holder of any Residual
Certificate shall knowingly take any action, cause any REMIC to take any
action or fail to take (or fail to cause to be taken) any action that,
under the REMIC Provisions, if taken or not taken, as the case may be,
could (i) endanger the status of any REMIC as a REMIC or (ii) result in the
imposition of a tax upon any REMIC (including but not limited to the tax on
prohibited transactions as defined in Code Section 860F(a)(2) and the tax
on prohibited contributions set forth on Section 860G(d) of the Code)
(either such event, an "Adverse REMIC Event") unless the Securities
Administrator has received an Opinion of Counsel (at the expense of the
party seeking to take such action) to the effect that the contemplated
action will not endanger such status or result in the imposition of such a
tax. In addition, prior to taking any action with respect to any REMIC or
the assets therein, or causing any REMIC to take any action, which is not
expressly permitted under the terms of this Agreement, any Holder of a
Residual Certificate will consult with the Securities Administrator, in
writing, with respect to whether such action could cause an Adverse REMIC
Event to occur with respect to any REMIC, and no such Person shall take any
such action or cause any REMIC to take any such action as to which the
Securities Administrator has advised it in writing that an Adverse REMIC
Event could occur; provided, however, that if no Adverse REMIC Event would
occur but such action could result in the imposition of additional taxes on
the Residual Certificateholders, no such Person shall take any such action,
or cause any REMIC to take any such action without the written consent of
the Residual Certificateholders.
(g) Each Holder of a Residual Certificate shall pay when due any and
all taxes imposed on the related REMIC by federal or state governmental
authorities. To the extent that such taxes are not paid by a Residual
Certificateholder, the Securities Administrator or the Paying Agent shall
pay any remaining REMIC taxes out of current or future amounts otherwise
distributable to the Holder of the Residual Certificate in any such REMIC
or, if no such amounts are available, out of other amounts held in the
Master Servicer Collection Account, and shall reduce amounts otherwise
payable to holders of regular interests in any such REMIC, as the case may
be.
(h) The Securities Administrator shall, for federal income tax
purposes, maintain books and records with respect to each REMIC on a
calendar year and on an accrual basis.
(i) No additional contributions of assets shall be made to any REMIC,
except as expressly provided in this Agreement.
(j) The Securities Administrator shall not enter into any arrangement
by which any REMIC will receive a fee or other compensation for services.
(k) Reserved.
(l) The Class A-R Holder shall act as "tax matters person" with
respect to each REMIC and irrevocably appoints the Securities Administrator
to act as its agent in such roles.
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(m) Neither the Securities Administrator nor the Depositor, as
assignees under this Agreement, shall provide any consent pursuant to this
Agreement or knowingly take any action under this Agreement that would
conflict with or violate the provisions of this Article XII.
Section 12.02 Prohibited Transactions and Activities.
Neither the Depositor nor the Securities Administrator shall sell, dispose
of, or substitute for any of the Mortgage Loans, except in a disposition
pursuant to (i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the
Trust Fund, (iii) the termination of each REMIC pursuant to Article X of this
Agreement, (iv) a substitution pursuant to Article II of this Agreement or (v) a
repurchase of Mortgage Loans pursuant to Article II of this Agreement, nor
acquire any assets for any REMIC, nor sell or dispose of any investments in the
Distribution Account for gain, nor accept any contributions to any REMIC after
the Closing Date, unless it has received an Opinion of Counsel (at the expense
of the party causing such sale, disposition, or substitution) that such
disposition, acquisition, substitution, or acceptance will not (a) affect
adversely the status of any such REMIC as a REMIC or of the interests therein
other than the Residual Certificate as the regular interests therein, (b) affect
the distribution of interest or principal on the Certificates, (c) result in the
encumbrance of the assets transferred or assigned to the Trust Fund (except
pursuant to the provisions of this Agreement) or (d) cause any such REMIC to be
subject to any tax including a tax on prohibited transactions or prohibited
contributions pursuant to the REMIC Provisions.
Section 12.03 Indemnification with Respect to Prohibited Transactions or
Loss of REMIC Status.
In the event that a REMIC fails to qualify as a REMIC, loses its status as
a REMIC, or incurs federal, state or local taxes as a result of a prohibited
transaction or prohibited contribution under the REMIC Provisions due to the
negligent performance by the Securities Administrator of its duties and
obligations set forth herein, the Securities Administrator shall indemnify the
Certificateholders of the related Residual Certificate against any and all
losses, claims, damages, liabilities or expenses ("Losses") resulting from such
negligence; provided, however, that the Securities Administrator shall not be
liable for any such Losses attributable to the action or inaction of the
Depositor or the Holder of the Residual Certificate, nor for any such Losses
resulting from misinformation provided by any of the foregoing parties on which
the Securities Administrator has relied. Notwithstanding the foregoing, however,
in no event shall the Trustee or the Securities Administrator have any liability
(1) for any action or omission that is taken in accordance with and in
compliance with the express terms of, or which is expressly permitted by the
terms of, this Agreement or the Mortgage Loan Purchase Agreement, (2) for any
Losses other than arising out of malfeasance, willful misconduct or negligent
performance by the Securities Administrator with respect to its duties and
obligations set forth herein, and (3) for any special or consequential damages
to Certificateholders of the related Residual Certificate (in addition to
payment of principal and interest on the Certificates).
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Section 12.04 REO Property.
(a) Notwithstanding any other provision of this Agreement, the
Securities Administrator shall not, except to the extent provided in this
Agreement for which the Securities Administrator is obligated to perform,
knowingly permit any Servicer to rent, lease, otherwise earn income or take
any other action on behalf of any REMIC with respect to any REO Property
which might cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of section 860G(a)(8) of the Code or result in
the receipt by any REMIC of any "income from non-permitted assets" within
the meaning of section 860F(a)(2) of the Code or any "net income from
foreclosure property" which is subject to tax under the REMIC Provisions
unless the Servicer has provided to the Securities Administrator an Opinion
of Counsel concluding that, under the REMIC Provisions, such action would
not adversely affect the status of any REMIC as a REMIC and any income
generated for any REMIC by the REO Property would not result in the
imposition of a tax upon such REMIC.
(b) The Depositor shall cause each Servicer (to the extent provided in
the applicable Servicing Agreement) to make reasonable efforts to sell any
REO Property for its fair market value. In any event, however, the
Depositor shall, or shall cause the Servicer (to the extent provided in
this Agreement) to, dispose of any REO Property within three years of its
acquisition by the Trust Fund unless the Depositor or such Servicer (on
behalf of the Trust Fund) has received a grant of extension from the
Internal Revenue Service to the effect that, under the REMIC Provisions and
any relevant proposed legislation and under applicable state law, the REMIC
may hold REO Property for a longer period without adversely affecting the
REMIC status of such REMIC or causing the imposition of a Federal or state
tax upon such REMIC. If such an extension has been received, then the
Depositor, acting on behalf of the Trustee hereunder, shall, or shall cause
the Servicer to, continue to attempt to sell the REO Property for its fair
market value for such period longer than three years as such extension
permits (the "Extended Period"). If such an extension has not been received
and the Depositor or the Servicer, acting on behalf of the Trust Fund
hereunder, is unable to sell the REO Property within 33 months after its
acquisition by the Trust Fund or if such an extension, has been received
and the Depositor or the Servicer is unable to sell the REO Property within
the period ending three months before the close of the Extended Period, the
Depositor shall cause the Servicer, before the end of the three year period
or the Extended Period, as applicable, to (i) purchase such REO Property at
a price equal to the REO Property's fair market value or (ii) auction the
REO Property to the highest bidder (which may be the Servicer) in an
auction reasonably designed to produce a fair price prior to the expiration
of the three-year period or the Extended Period, as the case may be.
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IN WITNESS WHEREOF, the Depositor, the Trustee, the Master Servicer and the
Securities Administrator have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first above
written.
XXXXXXX XXXXX MORTGAGE
INVESTORS, INC.,
as Depositor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXX FARGO BANK, N.A.,
as Master Servicer
By:
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Vice President
EXHIBIT A-1
FORM OF CLASS [_-A_][M-_] CERTIFICATE
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER OR THE SECURITIES ADMINISTRATOR
REFERRED TO BELOW OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE, THE
REMIC REGULAR INTEREST REPRESENTED HEREBY NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED OR INSURED BY THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER, THE
SECURITIES ADMINISTRATOR OR BY ANY OF THEIR AFFILIATES OR BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL BALANCE BY
INQUIRY OF THE SECURITIES ADMINISTRATOR.
[THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND THE RESIDUAL
CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE DEPOSITOR 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 REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
IF ANY BOOK-ENTRY CERTIFICATE (OR ANY INTEREST THEREIN) IS ACQUIRED OR HELD IN
VIOLATION OF THE PROVISIONS OF SECTION 5.02(B) OF THE POOLING AND SERVICING
AGREEMENT, THEN THE LAST PRECEDING TRANSFEREE THAT IS IN COMPLIANCE WITH SUCH
PROVISIONS SHALL BE RESTORED, TO THE EXTENT PERMITTED BY LAW, TO ALL RIGHTS AND
OBLIGATIONS AS CERTIFICATE OWNER THEREOF RETROACTIVE TO THE DATE OF SUCH
TRANSFER OF SUCH CERTIFICATE. NEITHER THE TRUSTEE NOR THE SECURITIES
ADMINISTRATOR SHALL BE UNDER ANY LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS
DUE ON SUCH CERTIFICATE TO SUCH PRECEDING TRANSFEREE.
A-1-1
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF ANY BOOK-ENTRY
CERTIFICATE (OR INTEREST THEREIN) WAS EFFECTED IN VIOLATION OF THE RESTRICTIONS
IN SECTION 5.02(B) OF THE AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS THE
DEPOSITOR, THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER AND
THE TRUST FUND FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR
EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.
A-1-2
MLMI Series 2006-A1, Class [_-A_][M-_] Aggregate Certificate Principal Balance
of the Class [_-A_][M-_] Certificates as
of the Issue Date: $____________
Pass-Through Rate: Variable(1) Initial Certificate Principal Balance of
this Class [_-A_][M-_] Certificate as of
the Issue Date $____________
Date of Agreement and Cut-off Date: Master Servicer and Securities
March 1, 2006 Administrator: Xxxxx Fargo Bank, N.A.
First Distribution Date: April 25, 2006 Trustee: HSBC Bank USA, National
Association
No. __ Issue Date: March 31, 2006
CUSIP: ___________
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE PASS-THROUGH CERTIFICATE
MLMI SERIES 2006-A1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust
Fund") consisting primarily of two pools of conventional, one- to four-family,
adjustable-rate, fully amortizing mortgage loans secured by first liens on
residential property (the "Mortgage Loans") formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
----------
(1) As described in the Pooling and Servicing Agreement referenced herein.
A-1-3
This certifies that CEDE & CO. is the registered owner of a Percentage
Interest obtained by dividing the denomination of this Certificate by the
aggregate Certificate Principal Balance of the Class [_-A_][M-_] Certificates as
of the Issue Date in that certain beneficial ownership interest evidenced by all
the Class [_-A_][M-_] Certificates in the Trust Fund created pursuant to a
Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (hereinafter called
the "Depositor," which term includes any successor entity under the Agreement),
Xxxxx Fargo Bank, N.A., as master servicer (in such capacity, the "Master
Servicer") and securities administrator (in such capacity, the "Securities
Administrator") and HSBC Bank USA, National Association, as trustee (the
"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 Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the period specified
in the Agreement on the Certificate Principal Balance hereof at a per annum rate
equal to the variable Pass-Through Rate described in the Agreement.
Pursuant to the terms of the Agreement, distributions will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class [_-A_][M-_] Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered owner of Class
[_-A_][M-_] Certificates, or otherwise by check mailed by first class mail 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 Securities
Administrator of the pendency of such distribution and only upon the
presentation and surrender of this Certificate at the office or agency appointed
by the Securities Administrator for that purpose as provided in the Agreement.
If any Book-Entry Certificate (or any interest therein) is acquired or
held in violation of the provisions of Section 5.02(b) of the Agreement, then
the last preceding Transferee that is in compliance with such provisions shall
be restored, to the extent permitted by law, to all rights and obligations as
Certificate Owner thereof retroactive to the date of such Transfer of such
Certificate. Neither the Trustee nor the Securities Administrator shall be under
any liability to any Person for making any payments due on such Certificate to
such preceding Transferee.
Any purported Certificate Owner whose acquisition or holding of any
Book-Entry Certificate (or interest therein) was effected in violation of the
restrictions in Section 5.02(b) of the Agreement shall indemnify and hold
harmless the Depositor, the Trustee, the Securities
A-1-4
Administrator, the Master Servicer and the Trust Fund from and against any and
all liabilities, claims, costs or expenses incurred by such parties as a result
of such acquisition or holding.
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Pass-Through Certificates of the Series specified on the
face hereof (herein called the "Certificates") and representing a Percentage
Interest in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face hereof.
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 Agreement. As provided in the
Agreement, withdrawals from the Master Servicer Collection Account and the
Distribution Account may be made from time to time for purposes other than
distributions to Holders of the Certificates, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions provided
therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Securities Administrator, the Master Servicer
and the Trustee and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Securities Administrator, the Master
Servicer and the Trustee, with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 66 2/3% of the Trust
Fund or of the applicable Class or Classes, if such amendment affects only such
Class or Classes, 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. 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 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 Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Securities Administrator as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Securities Administrator and the Certificate Registrar duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange of Certificates, but the Certificate Registrar may require payment
of a sum sufficient to cover any tax
A-1-5
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Depositor, the Securities Administrator, the Master Servicer, the
Trustee and the Certificate Registrar and any agent of the Depositor, the
Securities Administrator, the Master Servicer, 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 none of the Depositor, the Securities
Administrator, the Master Servicer, the Trustee, the Certificate Registrar nor
any such agent shall be affected by notice to the contrary.
This certificate shall be governed by and construed in accordance with
the laws of the state of New York.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment (or provision for payment) to the Holders
of the Certificates of all amounts held by the Securities Administrator and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the Distribution Date on which the Certificate Principal Balance of each
Class of Certificates has been reduced to zero, (ii) the final payment (or any
advance with respect thereto) on or other liquidation of the last Mortgage Loan
remaining in the Trust Fund and (iii) the Optional Termination of the trust fund
according to the procedures described in the Agreement, which can occur on any
date after the first Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than 5% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of the
Depositor and the Securities Administrator assumes no responsibility for their
correctness.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-1-6
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2006
SECURITIES ADMINISTRATOR'S CERTIFICATE AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Pooling and
Servicing Agreement.
XXXXX FARGO BANK, N.A.,
as Authenticating Agent
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2006
A-1-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
Minors Act
JT TEN - as joint tenants with right of ______________
survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
_______________________________________________________________________________.
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the Mortgage Pass-Through Certificate and
hereby authorize(s) the registration of transfer of such interest to assignee on
the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated: ______________________________
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
A-1-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds
to ____________________________________________________________________________,
for the account of ____________________________________________________________,
account number ___________, or, if mailed by check, to ________________________,
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or __________________________________________________,
as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS [B-_] [RULE 144A] [REG S] CERTIFICATE
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT", AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER OR THE SECURITIES ADMINISTRATOR
REFERRED TO BELOW OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE, THE
REMIC REGULAR INTEREST REPRESENTED HEREBY NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED OR INSURED BY THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER, THE
SECURITIES ADMINISTRATOR OR BY ANY OF THEIR AFFILIATES OR BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE PRINCIPAL BALANCE OF
THIS CERTIFICATE MAY BE DIFFERENT FROM THE ORIGINAL DENOMINATION SHOWN BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL BALANCE BY
INQUIRY OF THE SECURITIES ADMINISTRATOR.
THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES, THE CLASS M
CERTIFICATES AND THE RESIDUAL CERTIFICATES TO THE EXTENT DESCRIBED IN THE
AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE DEPOSITOR 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 REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
IF ANY BOOK-ENTRY CERTIFICATE (OR ANY INTEREST THEREIN) IS ACQUIRED OR HELD IN
VIOLATION OF THE PROVISIONS OF SECTION 5.02(B) OF THE POOLING AND SERVICING
AGREEMENT, THEN THE LAST PRECEDING TRANSFEREE THAT IS IN COMPLIANCE WITH SUCH
PROVISIONS SHALL BE RESTORED, TO THE EXTENT PERMITTED BY LAW, TO ALL RIGHTS AND
OBLIGATIONS AS CERTIFICATE OWNER THEREOF RETROACTIVE TO THE DATE OF SUCH
TRANSFER OF SUCH CERTIFICATE. NEITHER THE TRUSTEE NOR THE SECURITIES
ADMINISTRATOR SHALL BE UNDER ANY LIABILITY TO ANY PERSON FOR MAKING ANY PAYMENTS
DUE ON SUCH CERTIFICATE TO SUCH PRECEDING TRANSFEREE.
A-2-1
ANY PURPORTED CERTIFICATE OWNER WHOSE ACQUISITION OR HOLDING OF ANY BOOK-ENTRY
CERTIFICATE (OR INTEREST THEREIN) WAS EFFECTED IN VIOLATION OF THE RESTRICTIONS
IN SECTION 5.02(B) OF THE AGREEMENT SHALL INDEMNIFY AND HOLD HARMLESS THE
DEPOSITOR, THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER AND
THE TRUST FUND FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS OR
EXPENSES INCURRED BY SUCH PARTIES AS A RESULT OF SUCH ACQUISITION OR HOLDING.
NO TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE SECURITIES ADMINISTRATOR WITH (A) A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER ARRANGEMENT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE") OR A PLAN SUBJECT TO ANY PROVISION UNDER ANY FEDERAL,
STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIVELY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW")
(COLLECTIVELY, A "PLAN"), AND IS NOT DIRECTLY OR INDIRECTLY ACQUIRING THIS
CERTIFICATE FOR, ON BEHALF OF, OR WITH ANY ASSETS OF ANY SUCH PLAN, (B) IF THIS
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A
REPRESENTATION THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY THAT IS ACQUIRING
THIS CERTIFICATE WITH ASSETS OF AN "INSURANCE COMPANY GENERAL ACCOUNT" AS
DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60
AND THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE COVERED AND EXEMPT UNDER
SECTIONS I AND III OF PTCE 95-60 OR (C) SOLELY IN THE CASE OF A DEFINITIVE
CERTIFICATE, AN OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR,
AND UPON WHICH THE SECURITIES ADMINISTRATOR SHALL BE ENTITLED TO RELY, TO THE
EFFECT THAT THE ACQUISITION AND HOLDING OF THIS CERTIFICATE BY THE PROSPECTIVE
TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A NONEXEMPT PROHIBITED TRANSACTION
UNDER ERISA OR THE CODE, OR A VIOLATION OF SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE SECURITIES ADMINISTRATOR, THE CERTIFICATE REGISTRAR, THE MASTER
SERVICER, ANY SERVICER OR THE DEPOSITOR TO ANY OBLIGATION IN ADDITION TO THOSE
UNDERTAKEN BY SUCH ENTITIES IN THE POOLING AND SERVICING AGREEMENT, WHICH
OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE SECURITIES
ADMINISTRATOR, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, ANY SERVICER OR
THE DEPOSITOR. IF THE CERTIFICATE IS NOT A DEFINITIVE CERTIFICATE, THE
TRANSFEREE IS DEEMED TO HAVE MADE THE REPRESENTATION IN (A) OR (B) ABOVE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE RESOLD OR TRANSFERRED [WITHIN THE UNITED STATES (AS DEFINED IN
RULES 901
X-0-0
XXXXXXX 000 XX XXX 0000 XXX ("REGULATION S")) OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S),] UNLESS IT IS REGISTERED
PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE
EXEMPT FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS
TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
A-2-3
MLMI Series 2006-A1, Class [B-_] Aggregate Certificate Principal Balance of
[(RULE 144A)] [REGULATION S] Class [B-_] Certificates as of the Issue Date:
$__________
Pass Through Rate: Variable(1) Initial Class Certificate Principal Balance of this
Class [B-_] Certificate as of the Issue Date:
$__________
Date of Agreement and Cut-off Date: Master Servicer and Securities Administrator:
March 1, 2006 Xxxxx Fargo Bank, N.A.
First Distribution Date: April 25, 2006 Trustee: HSBC Bank USA, National Association
No. __ Issue Date: March 31, 2006
CUSIP: ___________
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
MORTGAGE PASS-THROUGH CERTIFICATE
MLMI SERIES 2006-A1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of two pools of conventional, one- to four-family,
adjustable-rate, fully amortizing mortgage loans secured by first liens on
residential property (the "Mortgage Loans") formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
----------
(1) As described in the Pooling and Servicing Agreement referenced herein.
A-2-4
This certifies that CEDE & CO. is the registered owner of a Percentage
Interest (obtained by dividing the denomination of this Certificate by the
aggregate Certificate Principal Balance of the Class [B-_] Certificates as of
the Issue Date) in that certain beneficial ownership interest evidenced by all
the Class [B-_] Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as depositor (hereinafter called the
"Depositor," which term includes any successor entity under the Agreement),
Xxxxx Fargo Bank, N.A., as master servicer (in such capacity, the "Master
Servicer") and securities administrator (in such capacity, the "Securities
Administrator") and HSBC Bank USA, National Association, as trustee (the
"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 Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class [B-_] Certificates on such
Distribution Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered owner of Class
[B-_] Certificates, or otherwise by check mailed by first class mail 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 Securities Administrator
of the pendency of such distribution and only upon the presentation and
surrender of this Certificate at the office or agency appointed by the
Securities Administrator for that purpose as provided in the Agreement.
If any Book-Entry Certificate (or any interest therein) is acquired or
held in violation of the provisions of Section 5.02(b) of the Agreement, then
the last preceding Transferee that is in compliance with such provisions shall
be restored, to the extent permitted by law, to all rights and obligations as
Certificate Owner thereof retroactive to the date of such Transfer of such
Certificate. Neither the Trustee nor the Securities Administrator shall be under
any liability to any Person for making any payments due on such Certificate to
such preceding Transferee.
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Pass-Through Certificates of the Series specified on the
face hereof (herein called the "Certificates") and representing a Percentage
Interest in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face hereof.
A-2-5
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 Agreement. As provided in the
Agreement, withdrawals from the Master Servicer Collection Account and the
Distribution Account may be made from time to time for purposes other than
distributions to Holders of the Certificates, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions provided
therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Securities Administrator, the Master Servicer
and the Trustee and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Securities Administrator, the Master
Servicer and the Trustee, with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 66 2/3% of the Trust
Fund or of the applicable Class or Classes, if such amendment affects only such
Class or Classes, 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. 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 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 Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Securities Administrator as
provided in the Agreement, duly endorsed by, or accompanied by an assignment in
the form below or other written instrument of transfer in form satisfactory to
the Securities Administrator and the Certificate Registrar duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate shall be made unless the transfer is
made pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is exempt from the registration requirements under the 1933 Act and such state
securities laws. .In the event that a transfer is to be made in reliance upon an
exemption from the 1933 Act and such laws, the Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee shall
each certify to the Securities Administrator in writing the facts surrounding
the transfer in a Transferor Certificate as described in the Agreement and (i)
deliver to the Securities Administrator an Investment Letter or Rule 144A Letter
as described in the Agreement or (ii) have delivered to the Securities
Administrator an Opinion of Counsel that such transfer may be made pursuant to
an exemption from the Securities Act, which Opinion of Counsel shall not be an
expense of the Depositor or
A-2-6
the Securities Administrator. Any Certificateholder desiring to effect a
transfer of this Certificate shall indemnify the Securities Administrator and
the Depositor 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 Depositor, the Securities Administrator, the Master Servicer, the
Trustee and the Certificate Registrar and any agent of the Depositor, the
Securities Administrator, the Master Servicer, 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 none of the Depositor, the Securities
Administrator, the Master Servicer, the Trustee, the Certificate Registrar nor
any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment (or provision for payment) to the Holders
of the Certificates of all amounts held by the Securities Administrator and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the Distribution Date on which the Certificate Principal Balance of each
Class of Certificates has been reduced to zero, (ii) the final payment (or any
advance with respect thereto) on or other liquidation of the last Mortgage Loan
remaining in the Trust Fund and (iii) the Optional Termination of the trust fund
according to the procedures described in the Agreement, which can occur on any
date after the first Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than 5% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of the
Depositor and the Securities Administrator assumes no responsibility for their
correctness.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-2-7
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2006
SECURITIES ADMINISTRATOR'S CERTIFICATE AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Pooling and
Servicing Agreement.
XXXXX FARGO BANK, N.A.,
as Authenticating Agent
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2006
A-2-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
Minors Act
JT TEN - as joint tenants with right ______________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
_______________________________________________________________________________.
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the Mortgage Pass-Through Certificate and
hereby authorize(s) the registration of transfer of such interest to assignee on
the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
A-2-9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________,
for the account of ____________________________________________________________,
account number___________, or, if mailed by check, to _________________________,
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or __________________________________________________,
as its agent. __________________________________________________________________
X-0-00
XXXXXXX X-0
FORM OF CLASS A-R CERTIFICATE
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "RESIDUAL
INTEREST" IN ONE OR MORE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS", AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER OR THE SECURITIES ADMINISTRATOR
REFERRED TO BELOW OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE, THE
REMIC RESIDUAL INTERESTS REPRESENTED HEREBY NOR THE UNDERLYING MORTGAGE LOANS
ARE GUARANTEED OR INSURED BY THE DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER,
THE SECURITIES ADMINISTRATOR OR BY ANY OF THEIR AFFILIATES OR BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
NO TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE SECURITIES ADMINISTRATOR AND THE DEPOSITOR WITH A
REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO ANY
FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE
SUBSTANTIVELY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, AND IS
NOT DIRECTLY OR INDIRECTLY ACQUIRING THIS CERTIFICATE FOR, ON BEHALF OF, OR WITH
ANY ASSETS OF ANY SUCH PLAN. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE MAY BE MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF THE PROPOSED TRANSFEREE PROVIDES AN AFFIDAVIT TO THE SECURITIES ADMINISTRATOR
THAT (A) SUCH TRANSFEREE IS NOT (1) THE UNITED STATES OR ANY POSSESSION THEREOF,
ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY
INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING, (2) ANY ORGANIZATION (OTHER THAN A
A-3-1
COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE) THAT 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, (3) ANY ORGANIZATION DESCRIBED IN SECTION
1381(A)(2)(C) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(1), (2) OR (3) SHALL HEREINAFTER BE REFERRED TO AS A "DISQUALIFIED
ORGANIZATION") OR (4) AN AGENT OF A DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE
OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS 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 THIS
CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE CONSENTED TO THE
PROVISIONS OF THIS PARAGRAPH AND THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT
REFERRED TO HEREIN. ANY PERSON THAT IS A DISQUALIFIED ORGANIZATION IS PROHIBITED
FROM ACQUIRING BENEFICIAL OWNERSHIP OF THIS CERTIFICATE.
A-3-2
MLMI Series 2006-A1, Class A-R Aggregate Certificate Principal Balance of the
Class A-R Certificates as of the Issue Date:
$100
Pass-Through Rate: Variable(1) Master Servicer and Securities Administrator:
Xxxxx Fargo Bank, N.A.
Date of Agreement and Cut-off Date: Trustee: HSBC Bank USA, National Association
March 1, 2006
First Distribution Date: April 25, 2006 Issue Date: March 31, 2006
No. __ CUSIP: ___________
MORTGAGE PASS-THROUGH CERTIFICATE
MLMI SERIES 2006-A1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of two pools of conventional, one- to four-family,
adjustable-rate, fully amortizing mortgage loans secured by first liens on
residential property (the "Mortgage Loans") formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that _____________________________ is a registered
owner of a ___% Percentage Interest specified above in that certain beneficial
ownership interest evidenced by all the Class A-R Certificates in the Trust Fund
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor
(hereinafter called the "Depositor," which term includes any successor entity
under the Agreement), Xxxxx Fargo Bank, N.A., as master servicer (in such
capacity, the "Master Servicer") and securities administrator (in such capacity,
the "Securities Administrator") and HSBC Bank USA, National Association, as
trustee (the "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 Agreement.
----------
(3) As described in the Pooling and Servicing Agreement referenced herein.
A-3-3
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class A-R Certificates on such Distribution
Date pursuant to the Agreement.
Interest on this Certificate will accrue during the period specified
in the Agreement on the Certificate Principal Balance hereof at a at a per annum
rate equal to the variable Pass-Through Rate described in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
Corporate Trust Office.
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Pass-Through Certificates of the Series specified on the
face hereof (herein called the "Certificates") and representing a Percentage
Interest in the Class of Certificates specified on the face hereof.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the related Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Master Servicer Collection Account and the
Distribution Account may be made from time to time for purposes other than
distributions to Holders of the Certificates, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect to
the related Mortgage Loans.
The Agreement permits, with certain exceptions and conditions provided
therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Securities Administrator, the Master Servicer
and the Trustee and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Securities Administrator, the Master
Servicer and the Trustee, with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 66 2/3% of the Trust
Fund or of the applicable Class or Classes, if such amendment affects only such
Class or Classes, 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. 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 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 Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies appointed by the Securities Administrator as
provided in the Agreement, duly endorsed by, or accompanied by an
A-3-4
assignment in the form below or other written instrument of transfer in form
satisfactory to the Securities Administrator and the Certificate Registrar duly
executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate shall be made unless the transfer is
made pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is exempt from the registration requirements under the 1933 Act and such state
securities laws. .In the event that a transfer is to be made in reliance upon an
exemption from the 1933 Act and such laws, the Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee shall
each certify to the Securities Administrator in writing the facts surrounding
the transfer in a Transferor Certificate as described in the Agreement and (i)
deliver to the Securities Administrator an Investment Letter or Rule 144A Letter
as described in the Agreement or (ii) have delivered to the Securities
Administrator an Opinion of Counsel that such transfer may be made pursuant to
an exemption from the Securities Act, which Opinion of Counsel shall not be an
expense of the Depositor or the Securities Administrator. Any Certificateholder
desiring to effect a transfer of this Certificate shall indemnify the Securities
Administrator and the Depositor 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.
Each Person holding or acquiring any Ownership Interest in a Class A-R
Certificate shall be a Permitted Transferee, as described in the Agreement, and
shall promptly notify the Securities Administrator of any change or impending
change in its status as a Permitted Transferee.
Prior to registration of any transfer, sale or other disposition of
this Certificate, the proposed transferee shall provide to the Securities
Administrator the affidavits described in Section 5.02(c) of the Agreement. Each
Person holding or acquiring any Ownership Interest in a Class A-R Certificate
shall agree to comply with the requirements of Section 5.02(c) of the Agreement
in connection with any transfer thereof. Any attempted or purported transfer of
any Ownership Interest in a Class A-R Certificate in violation of the provisions
of Section 5.02(c) of the Agreement shall be absolutely null and void and shall
vest no rights in the purported transferee. If any purported transferee shall
become a Holder of a Class A-R Certificate in violation of the provisions of
Section 5.02(c) of the Agreement, then the last preceding Permitted Transferee
shall be restored to all rights as Holder thereof retroactive to the date of
registration of Transfer of such Class A-R Certificate, as described more fully
in the Agreement.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have consented to the provisions of Section 5.02 of the Agreement and
to any amendment of the Agreement deemed necessary by counsel of the Depositor
to ensure that the transfer of this
A-3-5
Certificate to any Person other than a Permitted Transferee or any other Person
will not cause the REMIC to cease to qualify as a REMIC or cause the imposition
of a tax upon the REMIC.
No service charge will be made for any such registration of transfer
or exchange of Certificates, but the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Securities Administrator, the Master Servicer, the
Trustee and the Certificate Registrar and any agent of the Depositor, the
Securities Administrator, the Master Servicer, 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 none of the Depositor, the Securities
Administrator, the Master Servicer, the Trustee, the Certificate Registrar nor
any such agent shall be affected by notice to the contrary.
This certificate shall be governed by and construed in accordance with
the laws of the state of New York.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment (or provision for payment) to the Holders
of the Certificates of all amounts held by the Securities Administrator and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the Distribution Date on which the Certificate Principal Balance of each
Class of Certificates has been reduced to zero, (ii) the final payment (or any
advance with respect thereto) on or other liquidation of the last Mortgage Loan
remaining in the Trust Fund and (iii) the Optional Termination of the trust fund
according to the procedures described in the Agreement, which can occur on any
date after the first Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than 5% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of the
Depositor and the Securities Administrator assumes no responsibility for their
correctness.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-3-6
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2006
SECURITIES ADMINISTRATOR'S CERTIFICATE AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Pooling and
Servicing Agreement.
XXXXX FARGO BANK, N.A.,
as Authenticating Agent
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2006
A-3-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to
Minors Act
JT TEN - as joint tenants with right ______________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the Mortgage Pass-Through Certificate and
hereby authorize(s) the registration of transfer of such interest to assignee on
the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
Dated:
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
A-3-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds ________________________________________________________________
to ____________________________________________________________________________,
for the account of ____________________________________________________________,
account number___________, or, if mailed by check, to _________________________,
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or __________________________________________________,
as its agent. __________________________________________________________________
X-0-0
XXXXXXX X-0
FORM OF CLASS P CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE TRUSTEE, THE MASTER SERVICER OR THE SECURITIES ADMINISTRATOR
REFERRED TO BELOW OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED OR INSURED BY THE DEPOSITOR, THE
TRUSTEE, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR OR BY ANY OF THEIR
AFFILIATES OR BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
NO TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE PROSPECTIVE
TRANSFEREE PROVIDES THE SECURITIES ADMINISTRATOR WITH (A) A REPRESENTATION THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER ARRANGEMENT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE") OR A PLAN SUBJECT TO ANY PROVISION UNDER ANY FEDERAL,
STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIVELY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAW")
(COLLECTIVELY, A "PLAN"), AND IS NOT DIRECTLY OR INDIRECTLY ACQUIRING THIS
CERTIFICATE FOR, ON BEHALF OF, OR WITH ANY ASSETS OF ANY SUCH PLAN, (B) IF THIS
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A
REPRESENTATION THAT SUCH TRANSFEREE IS AN INSURANCE COMPANY THAT IS ACQUIRING
THIS CERTIFICATE WITH ASSETS OF AN "INSURANCE COMPANY GENERAL ACCOUNT" AS
DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 95-60
AND THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE COVERED AND EXEMPT UNDER
SECTIONS I AND III OF PTCE 95-60 OR (C) SOLELY IN THE CASE OF A DEFINITIVE
CERTIFICATE, AN OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR,
AND UPON WHICH THE SECURITIES ADMINISTRATOR SHALL BE ENTITLED TO RELY, TO THE
EFFECT THAT THE ACQUISITION AND HOLDING OF THIS CERTIFICATE BY THE PROSPECTIVE
TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A NONEXEMPT PROHIBITED TRANSACTION
UNDER ERISA OR THE CODE, OR A VIOLATION OF SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE SECURITIES ADMINISTRATOR, THE CERTIFICATE REGISTRAR, THE MASTER
SERVICER, ANY SERVICER OR THE DEPOSITOR TO ANY OBLIGATION IN ADDITION TO THOSE
UNDERTAKEN BY SUCH ENTITIES IN THE POOLING AND SERVICING AGREEMENT, WHICH
OPINION OF COUNSEL SHALL NOT BE AN EXPENSE OF THE TRUSTEE, THE SECURITIES
ADMINISTRATOR, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, ANY SERVICER OR
THE DEPOSITOR. IF THE CERTIFICATE IS NOT A DEFINITIVE CERTIFICATE, THE
TRANSFEREE IS DEEMED TO HAVE MADE THE REPRESENTATION IN (A) OR (B) ABOVE.
A-4-1
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR
IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER
SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE AGREEMENT.
A-4-2
MLMI Series 2006-A1, Class P Percentage Interest: ___%
Date of Agreement and Cut-off Date: Master Servicer and Securities Administrator:
March 1, 2006 Xxxxx Fargo Bank, N.A.
First Distribution Date: April 25, 2006 Trustee: HSBC Bank USA, National Association
No. __ Issue Date: March 31, 2006
CUSIP: _____________
MORTGAGE PASS-THROUGH CERTIFICATE
MLMI SERIES 2006-A1
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of two pools of conventional, one- to four-family,
adjustable-rate, fully amortizing mortgage loans secured by first liens on
residential property (the "Mortgage Loans") formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., THE MASTER SERVICER, THE SECURITIES
ADMINISTRATOR, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that _________________________ is the registered owner
of a ___% Percentage Interest in that certain beneficial ownership interest
evidenced by all the Class P Certificates in the Trust Fund created pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (hereinafter called
the "Depositor," which term includes any successor entity under the Agreement),
Xxxxx Fargo Bank, N.A., as master servicer (in such capacity, the "Master
Servicer") and securities administrator (in such capacity, the "Securities
Administrator") and HSBC Bank USA, National Association, as trustee (the
"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 Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
A-4-3
Pursuant to the terms of the Agreement, distributions will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (a "Distribution Date"), commencing on the
First Distribution Date specified above, to the Person in whose name this
Certificate is registered on the Record Date, in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class P Certificates on such Distribution
Date pursuant to the Agreement.
All distributions to the Holder of this Certificate under the
Agreement will be made or caused to be made by the Securities Administrator by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Securities
Administrator in writing at least five Business Days prior to the Record Date
immediately prior to such Distribution Date and is the registered owner of Class
P Certificates, or otherwise by check mailed by first class mail 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 Securities Administrator of the
pendency of such distribution and only upon the presentation and surrender of
this Certificate at the office or agency appointed by the Securities
Administrator for that purpose as provided in the Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Mortgage Pass-Through Certificates of the Series specified on the
face hereof (herein called the "Certificates") and representing a Percentage
Interest in the Class of Certificates specified on the face hereof.
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 Agreement. As provided in the
Agreement, withdrawals from the Master Servicer Collection Account and the
Distribution Account may be made from time to time for purposes other than
distributions to Holders of the Certificates, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans.
The Agreement permits, with certain exceptions and conditions provided
therein, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Securities Administrator, the Master Servicer
and the Trustee and the rights of the Holders of the Certificates under the
Agreement at any time by the Depositor, the Securities Administrator, the Master
Servicer and the Trustee, with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 66 2/3% of the Trust
Fund or of the applicable Class or Classes, if such amendment affects only such
Class or Classes, 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. 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 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 Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this
A-4-4
Certificate for registration of transfer at the offices or agencies appointed by
the Securities Administrator as provided in the Agreement, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Securities Administrator and the
Certificate Registrar duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
The Certificates are issuable in fully registered form only without
coupons in Classes and denominations representing Percentage Interests specified
in the Agreement. As provided in the Agreement and subject to certain
limitations set forth therein, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Certificateholder
surrendering the same.
No transfer of this Certificate shall be made unless the transfer is
made pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is exempt from the registration requirements under the 1933 Act and such state
securities laws. .In the event that a transfer is to be made in reliance upon an
exemption from the 1933 Act and such laws, the Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee shall
each certify to the Securities Administrator in writing the facts surrounding
the transfer in a Transferor Certificate as described in the Agreement and (i)
deliver to the Securities Administrator an Investment Letter or Rule 144A Letter
as described in the Agreement or (ii) have delivered to the Securities
Administrator an Opinion of Counsel that such transfer may be made pursuant to
an exemption from the Securities Act, which Opinion of Counsel shall not be an
expense of the Depositor or the Securities Administrator. Any Certificateholder
desiring to effect a transfer of this Certificate shall indemnify the Securities
Administrator and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be made for any such registration of transfer
or exchange of Certificates, but the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
The Depositor, Securities Administrator, the Master Servicer, the
Trustee and the Certificate Registrar and any agent of the Depositor, the
Securities Administrator, the Master Servicer, 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 none of the Depositor, the Securities
Administrator, the Master Servicer, the Trustee, the Certificate Registrar nor
any such agent shall be affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund created
thereby shall terminate upon payment (or provision for payment) to the Holders
of the Certificates of all amounts held by the Securities Administrator and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the Distribution Date on which the Certificate Principal Balance of each
Class of Certificates has been reduced to zero, (ii) the final payment (or any
advance with respect thereto) on or other liquidation of the last Mortgage Loan
remaining in the Trust Fund and (iii) the Optional Termination of the trust fund
according to the procedures
A-4-5
described in the Agreement, which can occur on any date after the first
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans is less than 5% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
The recitals contained herein shall be taken as statements of the
Depositor and the Securities Administrator assumes no responsibility for their
correctness.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
A-4-6
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2006
SECURITIES ADMINISTRATOR'S CERTIFICATE AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Pooling and
Servicing Agreement.
XXXXX FARGO BANK, N.A.,
as Authenticating Agent
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2006
A-4-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to Minors Act
JT TEN - as joint tenants with right ____________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
the Percentage Interest evidenced by the within Mortgage Pass-Through
Certificate and hereby authorize(s) the registration of transfer of such
interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Certificate
of a like Percentage Interest and Class to the above named assignee and deliver
such Certificate to the following address: ____________________________________.
Dated:
------------------------------
----------------------------------------
Signature by or on behalf of assignor
----------------------------------------
Signature Guaranteed
A-4-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _____________________________________________________________
for the account of _______________________, account number _____________, or, if
mailed by check, to _____________________________________. Applicable statements
should be mailed to ____________________________________________________________
This information is provided by _______________________________ _______________,
the assignee named above, or ____________________________, as its agent.
A-4-9
EXHIBIT B
MORTGAGE LOAN SCHEDULE
[Intentionally Omitted]
B-1
EXHIBIT C
[RESERVED]
C-1
EXHIBIT D
REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx Fargo Bank, N.A.
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx Xxxxxxxxx 00000
Attn: ______________________
Re: Custodial Agreement dated as of March 31, 2006 among HSBC Bank USA,
National Association, Xxxxxxx Xxxxx Mortgage Investors, Inc. and Xxxxx
Fargo Bank, N.A.
In connection with the administration of the Mortgage Loans held by you as
Custodian for the Owner pursuant to the above-captioned Custodial Agreement, we
request the release, and hereby acknowledge receipt, of the Custodian's Mortgage
File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
__________ 1. Mortgage Paid in full
__________ 2. Foreclosure
__________ 3. Substitution
__________ 4. Other Liquidation
(Repurchases, etc.)
__________ 5. Nonliquidation Reason:_________________________________
By:
------------------------------------
(authorized signer)
Issuer:
--------------------------------
Address:
-------------------------------
-------------------------------
Date:
----------------------------------
D-1
Custodian
Xxxxx Fargo Bank, N.A.
Please acknowledge the execution of the above request by your signature and date
below:
Please acknowledge the execution of the above request by your signature and date
below:
------------------------------------- ----------------------------------------
Signature Date
Documents returned to Custodian:
------------------------------------- ----------------------------------------
Custodian Date
D-2
EXHIBIT E-1
FORM OF TRANSFEREE'S LETTER AND AFFIDAVIT
[DATE]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services - Xxxxxxx Xxxxx Mortgage Investors Trust,
Series 2006-A1
Ladies and Gentlemen:
We propose to purchase Xxxxxxx Xxxxx Mortgage Investors Trust, Series 2006-A1
Mortgage Pass-Through Certificates, Class A-R, described in the Prospectus
Supplement, dated March 29, 2006, and the Prospectus, dated January 18, 2006.
Capitalized terms used but not defined herein shall have the meanings assigned
to them in the Pooling and Servicing Agreement dated March 1, 2006 relating to
this issuance of the Xxxxxxx Xxxxx Mortgage Investors Trust, Series 2006-A1
Mortgage Pass-Through Certificates (the "Pooling and servicing Agreement").
1. We certify that (a) we are not a disqualified organization and (b) we are not
purchasing such Class A-R Certificate on behalf of a disqualified organization;
for this purpose the term "disqualified organization" means the United States,
any state or political subdivision thereof, any foreign government, any
international organization, any agency or instrumentality of any of the
foregoing (except any entity treated as other than an instrumentality of the
foregoing for purposes of Section 168(h)(2)(D) of the Internal Revenue Code of
1986, as amended (the "Code")), any organization (other than a cooperative
described in Section 521 of the Code) that is exempt from taxation under the
Code (unless such organization is subject to tax on excess inclusions) and any
organization that is described in Section 1381(a)(2)(C) of the Code. We
understand that any breach by us of this certification may cause us to be liable
for an excise tax imposed upon transfers to disqualified organizations.
2. We certify that (a) we have historically paid our debts as they became due,
(b) we intend, and believe that we will be able, to continue to pay our debts as
they become due in the future, (c) we understand that, as beneficial owner of
the Class A-R Certificate, we may incur tax liabilities in excess of any cash
flows generated by the Class A-R Certificate, and (d) we intend to pay any taxes
associated with holding the Class A-R Certificate as they become due and (e) we
will not cause income from the Class A-R Certificate to be attributable to a
foreign permanent establishment or fixed base (within the meaning of an
applicable income tax treaty) of ours or another U.S. taxpayer.
E-1-1
3. We acknowledge that we will be the beneficial owner of the Class A-R
Certificate and:(1)
__________ The Class A-R Certificate will be registered in our name.
__________ The Class A-R Certificate will be held in the name of our
nominee, _________________, which is not a disqualified
organization.
4. We certify that we are not an employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), a plan
subject to Section 4975 of the Code or a plan subject to federal, state, local,
non-U.S. or other law substantively similar to the foregoing provisions of ERISA
or the Code (each, a "Plan"), and are not directly or indirectly acquiring the
Class A-R Certificate on behalf of or with any assets of a Plan.
5. We certify that (i) we are a U.S. person or (ii) we will hold the Class A-R
Certificate in connection with the conduct of a trade or business within the
United States and have furnished the transferor and the Securities Administrator
with a duly completed and effective Internal Revenue Service Form W-8ECI or
successor form at the time and in the manner required by the Code; for this
purpose the term "U.S. person" means a citizen or resident of the United States,
a corporation, or partnership (unless, in the case of a partnership, Treasury
regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any State thereof or the District of Columbia,
including an entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of the source of its income, or a trust if a court within the
United States is able to exercise primary supervision over the administration of
the trust and one or more such U.S. persons have the authority to control all
substantial decisions of the trust (or, to the extent provided in applicable
Treasury regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as U.S. Persons. We agree that any breach by us
of this certification shall render the transfer of any interest in the Class A-R
Certificate to us absolutely null and void and shall cause no rights in the
Class A-R Certificate to vest in us.
6. We agree that in the event that at some future time we wish to transfer any
interest in the Class A-R Certificate, we will transfer such interest in the
Class A-R Certificate only (a) to a transferee that (i) is not a disqualified
organization and is not purchasing such interest in the Class A-R Certificate on
behalf of a disqualified organization, (ii) is a U.S. person or will hold the
Class A-R Certificate in connection with the conduct of a trade or business
within the United States and will furnish us and the Securities Administrator
with a duly completed and effective Internal Revenue Service Form W-8ECI or
successor form at the time and in the manner required by the Code and (iii) has
delivered to the Securities Administrator a letter in the form of this letter
(including the affidavit appended hereto) and, we will provide the Securities
Administrator a written statement substantially in the form of Exhibit E-2 to
the Pooling and Servicing Agreement.
7. We hereby designate _______________________ as our fiduciary to act as the
tax matters person for each of the REMICs provided for in the Pooling and
Servicing Agreement in which the Class A-R Certificate represents the residual
interest.
----------
(1) Check appropriate box and if necessary fill in the name of the Transferee's
nominee.
E-1-2
Very truly yours,
[Purchaser]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted as of __________ __, 200__
XXXXXXX XXXXX MORTGAGE INVESTORS,
INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
E-1-3
APPENDIX A
Affidavit pursuant to (i) Section
860E(e)(4) of the Internal Revenue Code
of 1986, as amended, and (ii) certain
provisions of the Pooling and Servicing
Agreement
Under penalties of perjury, the undersigned declares that the following is true:
1. He or she is an officer of _________________________ (the
"Investor"),
2. the Investor's Employer Identification number is __________,
3. the Investor is not a "disqualified organization" (as defined
below), has no plan or intention of becoming a disqualified
organization, and is not acquiring any of its interest in the
Xxxxxxx Xxxxx Mortgage Investors Trust, Series 2006-A1 Mortgage
Pass-Through Certificates, Class A-R Certificate on behalf of a
disqualified organization or any other entity,
4. unless Xxxxxxx Xxxxx Mortgage Investors, Inc.("MLMI") has
consented to the transfer to the Investor, the Investor is a
"U.S. person" (as defined below),
5. that no purpose of the transfer is to avoid or impede the
assessment or collection of tax,
6. the Investor has historically paid its debts as they became due,
7. the Investor intends, and believes that it will be able, to
continue to pay its debts as they become due in the future,
8. the Investor understands that, as beneficial owner of the Class
A-R Certificate, it may incur tax liabilities in excess of any
cash flows generated by the Class A-R Certificate,
9. the Investor intends to pay any taxes associated with holding the
Class A-R Certificate as they become due,
10. the Investor consents to any amendment of the Pooling and
Servicing Agreement that shall be deemed necessary by MLMI (upon
advice of counsel) to constitute a reasonable arrangement to
ensure that the Class A-R Certificate will not be owned directly
or indirectly by a disqualified organization, and
11. IF BRACKETED, THE FOLLOWING CERTIFICATIONS ARE INAPPLICABLE [the
transfer is not a direct or indirect transfer of the Class A-R
Certificate to a foreign permanent establishment or fixed base
(within the meaning of an applicable income tax treaty) of the
Investor, and as to each of the residual interests represented by
the Class A-R Certificate, the present value of the anticipated
tax liabilities associated with holding such residual interest
does not exceed the sum of:
E-1-4
A. the present value of any consideration given to the Investor
to acquire such residual interest;
B. the present value of the expected future distributions on
such residual interest; and
C. the present value of the anticipated tax savings associated
with holding such residual interest as the related REMIC
generates losses.
For purposes of this declaration, (i) the Investor is assumed to pay tax at
a rate equal to the highest rate of tax specified in Section 11(b)(1) of
the Code, but the tax rate specified in Section 55(b)(1)(B) of the Code may
be used in lieu of the highest rate specified in Section 11(b)(1) of the
Code if the Investor has been subject to the alternative minimum tax under
Section 55 of the Code in the preceding two years and will compute its
taxable income in the current taxable year using the alternative minimum
tax rate, and (ii) present values are computed using a discount rate equal
to the Federal short-term rate prescribed by Section 1274(d) of the Code
for the month of the transfer and the compounding period used by the
Investor;]
[(11)(A) at the time of the transfer, and at the close of each of the
Investor's two fiscal years preceding the Investor's fiscal year of
transfer, the Investor's gross assets for financial reporting purposes
exceed $100 million and its net assets for financial reporting
purposes exceed $10 million; and
(B) the Investor is an eligible corporation as defined in Treasury
regulations Section 1.860E-1(c)(6)(i) and has agreed in writing that
any subsequent transfer of the Class A-R Certificate will be to
another eligible corporation in a transaction that satisfies Treasury
regulation Sections 1.860E-1(c)(4)(i), 1.860E-1(c)(4)(ii),
1.860E-1(c)(4)(iii) and 1.860E-1(c)(5) and such transfer will not be a
direct or indirect transfer to a foreign permanent establishment
(within the meaning of an applicable income tax treaty) of a domestic
corporation.
For purposes of this declaration, the gross and net assets of the Investor do
not include any obligation of any related person as defined in Treasury
regulation Section 1.860E-1(c)(6)(ii) or any other asset if a principal purpose
for holding or acquiring the other asset is to permit the Investor to make this
declaration or to satisfy the requirements of Treasury regulation Section
1.860E-1(c)(5)(i).]
(12) The Investor will not cause income from the Class A-R Certificate to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Investor or another U.S.
taxpayer.
E-1-5
For purpose of this affidavit, the term "disqualified organization" means the
United States, any state or political subdivision thereof, any foreign
government, any international organization, any agency or instrumentality of any
of the foregoing (except any entity treated as other than an instrumentality of
the foregoing for purposes of Section 168(h)(2)(D) of the Internal Revenue Code
of 1986, as amended (the "Code")), any organization (other than a cooperative
described in Section 521 of the Code) that is exempt from taxation under the
Code (unless such organization is subject to tax on excess inclusions) and any
organization that is described in Section 1381(a)(2)(C) of the Code and the term
"U.S. Person" means a citizen or resident of the United States, a corporation or
partnership (unless, in the case of a partnership, Treasury regulations are
adopted that provide otherwise) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, including an
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to Unites States federal income tax regardless
of its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of such trust, and one or
more such U.S. Persons have the authority to control all substantial decisions
of such trust, (or, to the extent provided in applicable Treasury regulations,
certain trusts in existence on August 20, 1996 which are eligible to elect to be
treated as U.S. Persons).
E-1-6
IN WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its behalf, pursuant to authority of its Board of Directors, by its
_____________ this ___ day of ______________, 20__.
[INVESTOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Personally appeared before me the above-named _______________________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ____________________________of the Investor, and acknowledged to me that
he executed the same as his free act and deed and the free act and deed of the
Investor.
Subscribed and sworn before me this ___ day of ______________, 20__.
NOTARY PUBLIC
-------------------------------------
COUNTY OF
---------------------------
STATE OF
----------------------------
My commission expires the _____ day of __________ 20__.
E-1-7
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE
[DATE]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Services - Xxxxxxx Xxxxx Mortgage Investors Trust,
Series 2006-A1
Re: Xxxxxxx Xxxxx Mortgage Investors Trust, Series 2006-A1
_______________________ (the "Transferor") has reviewed the attached affidavit
of _____________________________ (the "Transferee"), and has no actual knowledge
that such affidavit is not true, and has no reason to believe that the
Transferee has the intention to impede the assessment or collection of any
federal, state or local taxes legally required to be paid with respect to the
Class A-R Certificate referred to in the attached affidavit. In addition, the
Transferor has conducted a reasonable investigation at the time of the transfer
and found that the Transferee had historically paid its debts as they came due
and found no significant evidence to indicate that the Transferee will not
continue to pay its debts as they become due.
Very truly yours,
[Transferor]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-2-1
EXHIBIT F-1
FORM OF TRANSFEROR REPRESENTATION LETTER
______________, 200___
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 2006-A1, Class [____]
Ladies and Gentlemen:
In connection with the sale by ___________ (the "Seller") to ________ (the
"Purchaser") of $_________ Initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, Series 2006-A1, Class _____ (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of March 1, 2006 among Xxxxxxx Xxxxx Mortgage
Investors, Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank, N.A. as
master servicer (in such capacity, the "Master Servicer") and securities
administrator (in such capacity, the "Securities Administrator"), and HSBC Bank
USA, National Association, as trustee (the "Trustee"). The Seller hereby
certifies, represents and warrants to, and covenants with, the Depositor and the
Securities Administrator that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act in any
manner set forth in the foregoing sentence with respect to any Certificate. The
F-1-1
Seller has not and will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Pooling and Servicing Agreement.
Very truly yours,
----------------------------------------
(Seller)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-1-2
EXHIBIT F-2
FORM OF INVESTOR REPRESENTATION LETTER (NON-RULE 144A)
__________, 200__
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 2006-A1, Class [____]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (The "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
institutional "accredited investor," as defined in Regulation D under the Act,
and have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) we (i) are not an employee benefit
plan or arrangement subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), a plan subject to Section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code") or a plan subject to
any provisions under any federal, state, local, non-U.S. or other laws or
regulations that are substantively similar to foregoing provisions of ERISA or
the Code ("Similar Law") (collectively, a "Plan"), and are not directly or
indirectly acquiring this Certificate for, on behalf of or with any assets of
any such Plan, (ii) if the Certificate has been the subject of an
ERISA-Qualifying Underwriting, are an insurance company that is acquiring the
Certificate with assets of an "insurance company general account" as defined in
Section V(E) of Prohibited Transaction Class Exemption ("PTCE") 95-60, and the
acquisition and holding of the Certificate are covered and exempt under Sections
I and III of PTCE 95-60, or (iii) solely in the case of a Definitive
Certificate, shall deliver herewith an Opinion of Counsel satisfactory to the
Securities Administrator, and upon which the Securities Administrator shall be
entitled to rely, to the effect that the acquisition and holding of this
certificate by the transferee will not result in a nonexempt prohibited
transaction under ERISA or the Code, or a violation of Similar Law, and will not
subject the Depositor, the Master
F-2-1
Servicer, the Securities Administrator or the Trustee to any obligation in
addition to those undertaken by such entities in the Pooling and Servicing
Agreement, which Opinion of Counsel shall not be an expense of the Depositor,
the Master Servicer, the Securities Administrator or the Trustee, (e) we are
acquiring the Certificates for investment for our own account and not with a
view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action which would result in a violation of Section 5 of the
Act, and (g) we will not sell, transfer or otherwise dispose of any Certificates
unless (1) such sale, transfer or other disposition is made pursuant to an
effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide an
opinion of counsel satisfactory to the addressees of this Certificate that such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) The purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate, and (3) The purchaser or transferee has otherwise complied with any
conditions for transfer set forth in the Pooling and Servicing Agreement.
Very truly yours,
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Authorized Officer
F-2-2
EXHIBIT F-3
FORM OF RULE 144A LETTER
____________, 2006
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 2006-A1, Class [____]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (The "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we (i) are not an employee benefit plan or
arrangement subject to Title I of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), a plan subject to Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code") or a plan subject to any
provisions under any federal, state, local, non-U.S. or other laws or
regulations that are substantively similar to foregoing provisions of ERISA or
the Code ("Similar Law") (collectively, a "Plan"), and are not directly or
indirectly acquiring this Certificate for, on behalf of or with any assets of
any such Plan, (ii) if the Certificate has been the subject of an
ERISA-Qualifying Underwriting, are an insurance company that is acquiring the
Certificate with assets of an "insurance company general account" as defined in
Section V(E) of Prohibited Transaction Class Exemption ("PTCE") 95-60, and the
acquisition and holding of the Certificate are covered and exempt under Sections
I and III of PTCE 95-60, or (iii) solely in the case of a Definitive
Certificate, shall deliver herewith an Opinion of Counsel satisfactory to the
Securities Administrator, and upon which the Securities Administrator shall be
entitled to rely, to the effect that the acquisition and holding of this
certificate by the transferee will not result in a nonexempt prohibited
transaction under ERISA or the Code, or a violation of Similar Law, and will not
subject the Depositor, the Master Servicer, the Securities Administrator or the
Trustee to any obligation in addition to those undertaken by such entities in
the Pooling and Servicing Agreement, which Opinion of Counsel shall not be an
expense of the Depositor, the Master Servicer, the Securities Administrator or
the Trustee, (e) we have not, nor has anyone acting on
F-3-1
our behalf offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the Certificates or any other similar security to,
or solicited any offer to buy or accept a transfer, pledge or other disposition
of the Certificates, any interest in the Certificates or any other similar
security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Act or that would
render the disposition of the Certificates a violation of Section 5 of the Act
or require registration pursuant thereto, nor will act, nor has authorized or
will authorize any person to act, in such manner with respect to the
Certificates, (f) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Act ("Rule 144A") and have completed either of
the forms of certification to that effect attached hereto as Annex 1 or Annex 2,
(g) we are aware that the sale to us is being made in reliance on Rule 144A, and
(h) we are acquiring the Certificates for our own account or for resale pursuant
to Rule 144A and further, understand that such Certificates may be resold,
pledged or transferred only (A) 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 (B)
pursuant to another exemption from registration under the Act.
Very truly yours,
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Authorized Officer
F-3-2
ANNEX I TO EXHIBIT F-3
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (The "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
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, as amended ("Rule 144A") because (i) The Buyer owned and/or
invested on a discretionary basis $___________(1) in securities (except for the
1 excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) The Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization described
in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, The
business of which is substantially confined to banking and is supervised by
the State or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited net worth of
at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring
of risks
----------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
Ax.I to F-3
underwritten by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of a State,
territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality of
the State or its political subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor registered under
the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small business investment
company licensed by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of 1958.
___ Business Development Company. Buyer is a business development company
as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
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) securities issued or guaranteed by the U.S. or any instrumentality
thereof, (iv) bank deposit notes and certificates of deposit, (v) loan
participations, (vi) repurchase agreements, (vii) securities owned but subject
to a repurchase agreement and (viii) currency, interest rate and commodity
swaps.
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, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
The securities may be valued at market. Further, in determining such aggregate
amount, The Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
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.
Ax.I to F-3
6. Until the date of purchase of the Rule 144A Securities, The Buyer will
notify each of the parties to which this certification is made of any changes in
the information and conclusions herein. Until such notice is given, The Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, The Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
----------------------------------------
Print Name of Buyer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
Ax.I to F-3
ANNEX II TO EXHIBIT F-3
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (The "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, The undersigned is the President, Chief Financial Officer
or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
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, as
amended and (ii) as marked below, The Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, The cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, The securities may be valued at market.
___ The Buyer owned $ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year
(such amount being calculated in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $ in securities (other than the excluded securities referred
to below) as of the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
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) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
Ax.II to F-3
5. The Buyer is familiar with Rule 144A and understands that the parties listed
in the Rule 144A Transferee Certificate to which this certification relates are
relying and will continue to rely on the statements made herein because one or
more sales to the Buyer will be in reliance on Rule 144A. In addition, The Buyer
will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, The undersigned will notify
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in the information and conclusions herein.
Until such notice is given, The Buyer's purchase of the Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
----------------------------------------
Print Name of Buyer or Adviser
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IF AN ADVISER:
----------------------------------------
Print Name of Buyer
Date:
----------------------------------
Ax.II to F-3
EXHIBIT G
FORM OF CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (as amended and supplemented from time to
time, the "Agreement"), dated as of March 31, 2006, by and among HSBC BANK USA,
NATIONAL ASSOCIATION, as trustee (including its successors under the Pooling and
Servicing Agreement defined below, the "Trustee"), XXXXXXX XXXXX MORTGAGE
INVESTORS, INC., as company (together with any successor in interest, the
"Company"), XXXXX FARGO BANK, N.A., as securities administrator and master
servicer (together with any successor in interest or successor under the Pooling
and Servicing Agreement referred to below, the "Master Servicer") and XXXXX
FARGO BANK, N.A., as custodian (together with any successor in interest or any
successor appointed hereunder, the "Custodian").
WITNESSETH THAT:
WHEREAS, the Company, the Master Servicer and the Trustee have entered
into a Pooling and Servicing Agreement, dated as of March 1, 2006, relating to
the issuance of Xxxxxxx Xxxxx Mortgage Investors Trust., Series 2006-A1 Mortgage
Pass-Through Certificates, (as in effect on the date of this agreement, the
"Original Pooling and Servicing Agreement," and as amended and supplemented from
time to time, the "Pooling and Servicing Agreement"); and
WHEREAS, the Custodian has agreed to act as agent for the Trustee for
the purposes of receiving and holding certain documents and other instruments
delivered by the Company or the Master Servicer under the Pooling and Servicing
Agreement and the Servicers under the their respective Servicing Agreements, all
upon the terms and conditions and subject to the limitations hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Trustee, the Company, the
Master Servicer and the Custodian hereby agree as follows:
Section 1
DEFINITIONS
Capitalized terms used in this Agreement and not defined herein shall
have the meanings assigned in the Original Pooling and Servicing Agreement,
unless otherwise required by the context herein.
Section 2
CUSTODY OF MORTGAGE DOCUMENTS
Section 2.1 Custodian to Act as Agent: Acceptance of Mortgage Files,
Attestations and Assessments of Compliance.
(a) The Custodian, as the duly appointed agent of the Trustee for
these purposes, acknowledges (subject to any exceptions noted in the Initial
Certification referred to in
G-1
Section 2.3(a)) receipt of the Mortgage Files relating to the Mortgage Loans
identified on the schedule attached hereto (the "Mortgage Files") and declares
that it holds and will hold such Mortgage Files as agent for the Trustee, in
trust, for the use and benefit of all present and future Certificateholders.
(b) On or before March 1st of each calendar year, beginning with March
1, 2007, the Custodian shall, at its own expense, cause a firm of independent
public accountants (who may also render other services to Custodian), which is a
member of the American Institute of Certified Public Accountants, to furnish to
the Company and the Master Servicer a report to the effect that such firm
attests to, and reports on, the assessment made by such asserting party pursuant
to Section 2.01(c) below, which report shall be made in accordance with
standards for attestation engagements issued or adopted by the Public Company
Accounting Oversight Board.
(c) On or before March 1st of each calendar year, beginning with March
1, 2007, the Custodian shall deliver to the Company and the Master Servicer a
report regarding its assessment of compliance with the servicing criteria
identified in Exhibit Three attached hereto, as of and for the period ending the
end of the fiscal year ending no later than December 31 of the year prior to the
year of delivery of the report, with respect to asset-backed security
transactions taken as a whole in which the Custodian is performing any of the
servicing criteria specified in Exhibit Three and that are backed by the same
asset type backing such asset-backed securities. Each such report shall include
(a) a statement of the party's responsibility for assessing compliance with the
servicing criteria applicable to such party, (b) a statement that such party
used the criteria identified in Item 1122(d) of Regulation AB (Section
229.1122(d)) to assess the compliance with the applicable servicing criteria,
(c) disclosure of any material instance of noncompliance identified by such
party, and (d) a statement that a registered public accounting firm has issued
an attestation report on such party's assessment of compliance with the
applicable servicing criteria, which report shall be delivered by the Custodian
as provided in this Section 2.01(c). However, the Custodian's obligation to
provide a report on assessment of compliance or an attestation with respect to
itself and with respect to any Subcontractor shall be suspended in any year in
which the Issuing Entity's reporting obligations under the Exchange Act are
suspended.
(d) The Custodian has not and shall not engage any Subcontractor which
is "participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, unless such Subcontractor agrees to provide in any year in which
a Form 10-K will be filed by the Trust., no later than March 1st of such year,
an assessment and a statement of registered public accounting firm certifying
its compliance with the applicable servicing criteria in Item 1122(d) of
Regulation AB as of and for the period ending the end of the fiscal year ending
no later than December 31 of the year prior to the year of delivery of the
report. "Subcontractor" as used herein means any vendor, subcontractor or other
Person that is not responsible for the overall servicing (as "servicing" is
commonly understood by participants in the mortgage-backed securities market) of
the Mortgage Loans but performs one or more discrete functions identified in
Item 1122(d) of Regulation AB with respect to the Mortgage Loans under the
direction or authority of the Custodian.
G-2
(e) The Custodian agrees to indemnify the Company, the Master
Servicer, the Trust Fund and each of their respective directors, officers,
employees and agents and hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that any of them may
sustain arising out of or based upon the engagement of any Subcontractor in
violation of Section 2.01(d) or any failure by the Custodian to deliver any
information, report, certification, accountants' letter or other material when
and as required under this Agreement, including any report under Sections
2.01(b) or 2.01(c).
Section 2.2 Recordation of Assignments. If any Mortgage File includes
one or more assignments of Mortgage to the Trustee in a state which is
specifically excluded from the Opinion of Counsel delivered by the Mortgage Loan
Seller to the Trustee (with a copy to the Custodian) pursuant to the provisions
of Section 2.01 of the Pooling and Servicing Agreement, the Custodian shall
deliver each such assignment to the Company for the purpose of recording it in
the appropriate public office for real property records, and the Company, at no
expense to the Custodian, shall promptly cause to be recorded in the appropriate
public office for real property records each such assignment of Mortgage and,
upon receipt thereof from such public office, shall return each such assignment
of Mortgage to the Custodian.
Section 2.3 Review of Mortgage Files.
(a) On or prior to the Closing Date, the Custodian agrees, for the
benefit of Certificateholders, to review, in accordance with the provisions of
Section 2.02 of the Pooling and Servicing Agreement, each such document, and
shall deliver to the Trustee an Initial Certification in the form annexed hereto
as Exhibit One evidencing receipt (subject to any exceptions noted therein) of a
Mortgage File for each of the Mortgage Loans listed on the Schedule attached
hereto (the "Mortgage Loan Schedule") and certifying that all such documents
have been executed and received and that such documents relate to the Mortgage
Loans identified on the Mortgage Loan Schedule, except for any exceptions listed
on Schedule A attached to such Initial Certification. The Custodian shall be
under no duty or obligation to inspect, review or examine said documents,
instruments, certificates or other papers to determine that the same are
genuine, enforceable, or appropriate for the represented purpose or that they
have actually been recorded or that they are other than what they purport to be
on their face.
(b) Not later than 180 days after the Closing Date, the Custodian
shall review the Mortgage Files as provided in Section 2.02 of the Pooling and
Servicing Agreement and deliver to the Trustee a Final Certification in the form
annexed hereto as Exhibit Two evidencing the completeness of the Mortgage Files
(subject to any exceptions noted therein).
(c) In reviewing the Mortgage Files as provided herein and in the
Pooling and Servicing Agreement, the Custodian shall make no representation as
to and shall not be responsible to verify (i) the validity, legality,
enforceability, due authorization, recordability, sufficiency or genuineness of
any of the documents included in any Mortgage File or (ii) the collectibility,
insurability, effectiveness or suitability of any of the documents in any
Mortgage File.
G-3
Upon receipt of written request from the Trustee, the Custodian shall
as soon as practicable supply the Trustee with a list of all of the documents
relating to the Mortgage Loans then contained in the Mortgage Files.
Section 2.4 Notification of Breaches of Representations and
Warranties. Upon discovery by the Custodian of a breach of any representation or
warranty made by the Company as set forth in the Pooling and Servicing Agreement
with respect to a Mortgage Loan relating to a Mortgage File, the Custodian shall
give prompt written notice to the Company, the related Servicer and the Trustee.
Section 2.5 Custodian to Cooperate: Release of Mortgage Files. Upon
receipt of written notice from the Master Servicer that the Mortgage Loan Seller
has repurchased a Mortgage Loan pursuant to Article II of the Pooling and
Servicing Agreement, and that the purchase price therefor has been deposited in
the Master Servicer Collection Account or the Distribution Account, then the
Custodian agrees to promptly release to the Mortgage Loan Seller the related
Mortgage File.
Upon the Custodian's receipt of a request for release (a "Request for
Release") substantially in the form of Exhibit D to the Pooling and Servicing
Agreement signed by a Servicing Officer of the related Servicer stating that it
has received payment in full of a Mortgage Loan or that payment in full will be
escrowed in a manner customary for such purposes, the Custodian agrees promptly
to release to such Servicer the related Mortgage File. The Company shall deliver
to the Custodian and the Custodian agrees to accept the Mortgage Note and other
documents constituting the Mortgage File with respect to any Substitute Mortgage
Loan.
From time to time as is appropriate for the servicing or foreclosure
of any Mortgage Loan, including, for this purpose, collection under any Primary
Mortgage Insurance Policy, the related Servicer shall deliver to the Custodian a
Request for Release signed by a Servicing Officer requesting that possession of
all of the Mortgage File be released to such Servicer and certifying as to the
reason for such release and that such release will not invalidate any insurance
coverage provided in respect of the Mortgage Loan under any of the Insurance
Policies. Upon receipt of the foregoing, the Custodian shall deliver the
Mortgage File to such Servicer. The related Servicer shall cause each Mortgage
File or any document therein so released to be returned to the Custodian when
the need therefore by such Servicer no longer exists, unless (i) the Mortgage
Loan has been liquidated and the Liquidation Proceeds relating to the Mortgage
Loan have been deposited in the Master Servicer Collection Account or the
Distribution Account or (ii) the Mortgage File or such document has been
delivered to an attorney, or to a public trustee or other public official as
required by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially or
non-judicially, and the related Servicer has delivered to the Custodian a
certificate of a Servicing Officer certifying as to the name and address of the
Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery.
At any time that a Servicer is required to deliver to the Custodian a
Request for Release, such Servicer shall deliver two copies of the Request for
Release if delivered in hard
G-4
copy or such Servicer may furnish such Request for Release electronically to the
Custodian, in which event the Servicing Officer transmitting the same shall be
deemed to have signed the Request for Release. In connection with any Request
for Release of a Mortgage File because of a repurchase of a Mortgage Loan, the
related Servicer shall send to the Trustee an assignment of mortgage, without
recourse, representation or warranty from the Trustee to the Mortgage Loan
Seller and the related Mortgage Note which shall be endorsed without recourse,
representation or warranty by the Trustee and the Trustee shall forward such
documents to the Mortgage Loan Seller. In connection with any Request for
Release of a Mortgage File because of the payment in full of a Mortgage Loan,
the related Servicer shall send to the Trustee a certificate of satisfaction or
other similar instrument to be executed by or on behalf of the Trustee and
returned to such Servicer.
Section 2.6 Assumption Agreements. In the event that any assumption
agreement or substitution of liability agreement is entered into with respect to
any Mortgage Loan subject to this Agreement in accordance with the terms and
provisions of the Pooling and Servicing Agreement, the Master Servicer, to the
extent provided in the related Servicing Agreement, shall cause the related
Servicer to notify the Custodian that such assumption or substitution agreement
has been completed by forwarding to the Custodian the original of such
assumption or substitution agreement, which shall be added to the related
Mortgage File and, for all purposes, shall be considered a part of such Mortgage
File to the same extent as all other documents and instruments constituting
parts thereof.
Section 3
CONCERNING THE CUSTODIAN
Section 3.1 Custodian a Bailee and Agent of the Trustee. With respect
to each Mortgage Note, Mortgage and other documents constituting each Mortgage
File which are delivered to the Custodian, the Custodian is exclusively the
bailee and agent of the Trustee and has no instructions to hold any Mortgage
Note or Mortgage for the benefit of any person other than the Trustee and the
Certificateholders and undertakes to perform such duties and only such duties as
are specifically set forth in this Agreement. Except upon compliance with the
provisions of Section 2.5 of this Agreement, no Mortgage Note, Mortgage or
Mortgage File shall be delivered by the Custodian to the Company, the Servicer
or the Master Servicer or otherwise released from the possession of the
Custodian.
Section 3.2 Reserved.
Section 3.3 Custodian May Own Certificates. The Custodian 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 Custodian.
Section 3.4 Master Servicer to Pay Custodian's Fees and Expenses. The
Master Servicer covenants and agrees to pay to the Custodian from time to time,
and the Custodian shall be entitled to, reasonable compensation for all services
rendered by it in the exercise and performance of any of the powers and duties
hereunder of the Custodian, and the Master Servicer will pay or reimburse the
Custodian upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Custodian in accordance with any of the
G-5
provisions of this Agreement (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ), except any such expense, disbursement or advance as may arise from
its negligence or bad faith or to the extent that such cost or expense is
indemnified by the Company pursuant to the Pooling and Servicing Agreement.
Section 3.5 Custodian May Resign; Trustee May Remove Custodian. The
Custodian may resign from the obligations and duties hereby imposed upon it as
such obligations and duties relate to its acting as Custodian of the Mortgage
Loans. Upon receiving such notice of resignation, the Trustee shall either take
custody of the Mortgage Files itself and give prompt notice thereof to the
Company, the Master Servicer and the Custodian, or promptly appoint a successor
Custodian by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Custodian and one copy to the successor
Custodian. If the Trustee shall not have taken custody of the Mortgage Files and
no successor Custodian shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Custodian may petition any court of competent jurisdiction for the
appointment of a successor Custodian.
The Trustee may remove the Custodian at any time with the consent of
the Master Servicer. In such event, the Trustee shall appoint, or petition a
court of competent jurisdiction to appoint, a successor Custodian hereunder. Any
successor Custodian shall be a depository institution subject to supervision or
examination by federal or state authority, shall be able to satisfy the other
requirements contained in Section 3.7 and shall be unaffiliated with the
Servicer or the Company.
Any resignation or removal of the Custodian and appointment of a
successor Custodian pursuant to any of the provisions of this Section 3.5 shall
become effective upon acceptance of appointment by the successor Custodian. The
Trustee shall give prompt notice to the Company and the Master Servicer of the
appointment of any successor Custodian. No successor Custodian shall be
appointed by the Trustee without the prior approval of the Company and the
Master Servicer.
Section 3.6 Merger or Consolidation of Custodian. Any Person into
which the Custodian may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any Person succeeding
to the business of the Custodian, shall be the successor of the Custodian
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 3.7 Representations of the Custodian. The Custodian hereby
represents that it is a depository institution subject to supervision or
examination by a federal or state authority, has a combined capital and surplus
of at least $15,000,000 and is qualified to do business in the jurisdictions in
which it will hold any Mortgage File.
G-6
Section 4
MISCELLANEOUS PROVISIONS
Section 4.1 Notices. All notices, requests, consents, demands and
other communications required under this Agreement or pursuant to any other
instrument or document delivered hereunder shall be in writing and, unless
otherwise specifically provided, may be delivered personally, by telegram or
telex, or by registered or certified mail, postage prepaid, return receipt
requested, at the addresses specified on the signature page hereof (unless
changed by the particular party whose address is stated herein by similar notice
in writing), in which case the notice will be deemed delivered when received.
Section 4.2 Amendments. No modification or amendment of or supplement
to this Agreement shall be valid or effective unless the same is in writing and
signed by all parties hereto, and neither the Company, the Master Servicer nor
the Trustee shall enter into any amendment hereof except as permitted by the
Pooling and Servicing Agreement. The Trustee shall give prompt notice to the
Custodian of any amendment or supplement to the Pooling and Servicing Agreement
and furnish the Custodian with written copies thereof.
Section 4.3 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 4.4 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 other comparable
jurisdictions in which any or all of the properties subject to the Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Company and at the Trust's expense on
direction by the Trustee, but only upon direction accompanied by an Opinion of
Counsel (which shall be at the expense of the party requesting such recordation
and in no event at the expense of the Trustee) reasonably satisfactory to the
Company to the effect that the failure to effect such recordation is likely to
materially and adversely affect the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 4.5 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.
G-7
IN WITNESS WHEREOF, this Agreement is executed as of the date first
above written.
Address: HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: XXXXX FARGO BANK, N.A.,
as Master Servicer
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
Address: XXXXX FARGO BANK, N.A.,
as Custodian
0000 00xx Xxxxxx Xxxxxxxxx, XX 0031
Xxxxxxxxxxx, XX 00000
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
G-8
EXHIBIT ONE TO THE CUSTODIAL AGREEMENT
FORM OF CUSTODIAN INITIAL CERTIFICATION
March __, 2006
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Pooling and Servicing Agreement, dated as of March 1, 2006, among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Xxxxx Fargo
Bank, N.A., as master servicer and securities administrator, and HSBC
Bank USA, National Association, as trustee,
Mortgage Pass-Through Certificates, Series 2006-A1
Ladies and Gentlemen:
Attached is the Custodian's preliminary exception report delivered in
accordance with Section 2.02 of the referenced Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"). Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Custodian makes no representations as to
(i) the validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) the existence of
any assumption, modification, written assurance, or substitution agreement, with
respect to any Mortgage File if no such documents appear in the Mortgage File
delivered to the Custodian.
XXXXX FARGO BANK, N.A.,
as Custodian
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
G-9
EXHIBIT TWO TO THE CUSTODIAL AGREEMENT
FORM OF CUSTODIAN FINAL CERTIFICATION
____________, 2005
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ____________________
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Pooling and Servicing Agreement, dated as of March 1, 2006, among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Xxxxx Fargo
Bank, N.A., as master servicer and securities administrator and HSBC
Bank USA, National Association, as trustee,
Mortgage Pass-Through Certificates, Series 2006-A1
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, hereby certifies that, except as noted on
the Schedule of Exceptions attached hereto, for each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attachment hereto), it has received a complete Mortgage File which includes
the documents required to be included in the Mortgage File as set forth in the
Pooling and Servicing Agreement.
The undersigned has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The undersigned makes no
representation as to: (i) the validity, legality, sufficiency, enforceability or
genuineness of any documents contained in any Mortgage File for any of the
Mortgage Loans listed on the Mortgage Loan Schedule to the Pooling and Servicing
Agreement, (ii) the collectability, insurability, effectiveness or suitability
of any such Mortgage Loan or (iii) whether any Mortgage File should include any
flood insurance policy, any rider, addends, surety or guaranty agreement, power
of attorney, buy down agreement, assumption agreement, modification agreement,
written assurance or substitution agreement.
G-10
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
XXXXX FARGO BANK, N.A.,
as Custodian
By:
------------------------------------
Name:
----------------------------------
G-11
EXHIBIT THREE TO THE CUSTODIAL AGREEMENT
FORM OF CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED
IN REPORT ON ASSESSMENT COMPLIANCE
The assessment of compliance to be delivered by Xxxxx
Fargo Bank shall address, at a minimum, the criteria identified below as
"Applicable Servicing Criteria":
SERVICING CRITERIA APPLICABLE
-------------------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
--------- -------- ----------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
accordance with the transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third
parties, policies and procedures are instituted to monitor
the third party's performance and compliance with such
servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a
back-up servicer for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect
on the party participating in the servicing function
throughout the reporting period in the amount of coverage
required by and otherwise in accordance with the terms of the
transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate
custodial bank accounts and related bank clearing accounts no
more than two business days following receipt, or such other
number of days specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor
or to an investor are made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash
flows or distributions, and any interest or other fees
charged for such advances, are made, reviewed and approved as
specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the
transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign
financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized
access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts. These
reconciliations are (A) mathematically accurate; (B) prepared
within 30 calendar days after the bank statement cutoff date,
or such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than
the person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items
are resolved within 90 calendar days of their original
identification, or such other number of days specified in the
transaction agreements.
G-12
SERVICING CRITERIA APPLICABLE
-------------------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
--------- -------- ----------
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements.
Specifically, such reports (A) are prepared in accordance
with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the terms specified in the transaction agreements; (C)
are filed with the Commission as required by its rules and
regulations; and (D) agree with investors' or the trustee's
records as to the total unpaid principal balance and number
of mortgage loans serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and other
terms set forth in the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or such
other number of days specified in the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree
with cancelled checks, or other form of payment, or custodial
bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as X
required by the transaction agreements or related mortgage
loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as X
required by the transaction agreements.
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any
conditions or requirements in the transaction agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan documents are
posted to the Servicer's obligor records maintained no more
than two business days after receipt, or such other number of
days specified in the transaction agreements, and allocated
to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree
with the Servicer's records with respect to an obligor's
unpaid principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's
mortgage loans (e.g., loan modifications or re-agings) are
made, reviewed and approved by authorized personnel in
accordance with the transaction agreements and related pool
asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans,
modifications and deeds in lieu of foreclosure, foreclosures
and repossessions, as applicable) are initiated, conducted
and concluded in accordance with the timeframes or other
requirements established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during
the period a mortgage loan is delinquent in accordance with
the transaction agreements. Such records are maintained on at
least a monthly basis, or such other period specified in the
transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment rescheduling plans
in cases where delinquency is deemed temporary (e.g., illness
or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage
loans with variable rates are computed based on the related
mortgage loan documents.
G-13
SERVICING CRITERIA APPLICABLE
-------------------------------------------------------------------------------- SERVICING
REFERENCE CRITERIA CRITERIA
--------- -------- ----------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in accordance
with the obligor's mortgage loan documents, on at least an
annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid,
or credited, to obligors in accordance with applicable
mortgage loan documents and state laws; and (C) such funds
are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number
of days specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related penalty
or expiration dates, as indicated on the appropriate bills or
notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior
to these dates, or such other number of days specified in the
transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to
be made on behalf of an obligor are paid from the servicer's
funds and not charged to the obligor, unless the late payment
was due to the obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within
two business days to the obligor's records maintained by the
servicer, or such other number of days specified in the
transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is
maintained as set forth in the transaction agreements.
G-14
EXHIBIT H-1
SERVICING AGREEMENT
GREENPOINT MORTGAGE FUNDING, INC.
See Exhibit 99.7
X-0-0
XXXXXXX X-0
SERVICING AGREEMENT
COUNTRYWIDE HOME LOANS, INC.
See Exhibit 99.4
X-0-0
XXXXXXX X-0
SERVICING AGREEMENT
WASHINGTON MUTUAL BANK
See Exhibit 99.9
H-3-1
EXHIBIT I-1
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
GREENPOINT MORTGAGE FUNDING, INC.
See Exhibit 99.5
I-1-1
EXHIBIT I-2
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
COUNTRYWIDE HOME LOANS, INC.
See Exhibit 99.2
I-2-1
EXHIBIT I-3
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
WASHINGTON MUTUAL BANK
See Exhibit 99.8
I-3-1
EXHIBIT J
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of March 31, 2006, as
amended and supplemented by any and all amendments hereto (collectively, the
"Agreement"), by and between XXXXXXX XXXXX MORTGAGE LENDING, INC., a Delaware
corporation (the "Seller"), and XXXXXXX XXXXX MORTGAGE INVESTORS, INC., a
Delaware corporation (the "Purchaser").
Upon the terms and subject to the conditions of this Agreement, the
Seller agrees to sell, and the Purchaser agrees to purchase, certain first lien,
fixed-rate and adjustable-rate mortgage loans secured by one- to four-family
residences, individual condominiums, co-op units and units in planned unit
developments (collectively, the "Mortgage Loans") as described herein. The
Purchaser intends to deposit the Mortgage Loans into a trust fund (the "Trust
Fund") and create Mortgage Pass-Through Certificates, MLMI Series 2006-A1 (the
"Certificates"), under a pooling and servicing agreement, to be dated as of
March 1, 2006 (the "Pooling and Servicing Agreement"), by and among the
Purchaser, as depositor, HSBC Bank USA, National Association, as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A., as master servicer and securities
administrator (the "Master Servicer" and "Securities Administrator").
The Purchaser has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (Number 333-127233)
relating to its Mortgage Pass-Through Certificates and the offering of certain
series thereof (including certain classes of the Certificates) from time to time
in accordance with Rule 415 under the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder (the
"Securities Act"). Such registration statement, when it became effective under
the Securities Act, and the prospectus relating to the public offering of
certain classes of the Certificates by the Purchaser (the "Public Offering"), as
from time to time each is amended or supplemented pursuant to the Securities Act
or otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus," respectively. The "Prospectus Supplement" shall mean that
supplement, dated March 29, 2006 to the Prospectus, dated January 18, 2006,
relating to certain classes of the Certificates. With respect to the Public
Offering of certain classes of the Certificates, the Purchaser and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") have entered into a
terms agreement dated as of March 28, 2006 to an underwriting agreement dated
February 28, 2003, between the Purchaser and Xxxxxxx Xxxxx (together, the
"Underwriting Agreement").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties hereto agree as follows:
Section 1. Definitions.
Certain terms are defined herein. Capitalized terms used herein but not
defined herein shall have the meanings specified in the Pooling and Servicing
Agreement. The following other terms are defined as follows:
Closing Date: March 31, 2006.
J-1
Cut-off Date: March 1, 2006.
Cut-off Date Balance: $668,566,213.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced by a
Substitute Mortgage Loan.
Due Date: With respect to each Mortgage Loan, the first day in each
month.
Master Servicer: Xxxxx Fargo Bank, X.X.
Xxxxxxx Xxxxx: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
Moody's: Xxxxx'x Investors Service, Inc., or its successors in
interest.
Mortgage: The mortgage or deed of trust creating a first lien on an
interest in real property securing a Mortgage Note.
Mortgage File: The items referred to in Exhibit 1 and Exhibit 2
pertaining to a particular Mortgage Loan and any additional documents required
to be added to such documents pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne by a
Mortgage Note as stated therein.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Rate: For each Mortgage Loan, the Mortgage Interest Rate for such
Mortgage Loan less the Master Servicing Fee Rate.
Offered Certificates: Shall mean the Class I-A1, Class I-A2, Class
II-A1, Class II-A2, Class A-R, Class M-1, Class M-2 and Class M-3 Certificates
issued pursuant to the Pooling and Servicing Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Seller or the Purchaser, reasonably acceptable to the Trustee.
Person: Any legal person, including any individual, corporation,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by the Seller pursuant to the applicable provisions of this Agreement,
an amount equal to the sum of (i) 100% of the principal remaining unpaid on such
Mortgage Loan as of the date of purchase (including if a foreclosure has already
occurred, the principal balance of the related Mortgage Loan at the time the
Mortgaged Property was acquired), (ii) accrued and unpaid interest thereon at
the Mortgage Interest Rate through and including the last day of the month of
purchase and
J-2
(iii) any costs and damages incurred by the Issuing Entity in connection with
any violation by such Mortgage Loan of any predatory or abusive-lending law.
Rating Agencies: S&P and Moody's, each a "Rating Agency."
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.,
or its successors in interest.
Securities Act: The Securities Act of 1933, as amended.
Substitute Mortgage Loan: A mortgage loan substituted for a Deleted
Mortgage Loan which must meet on the date of such substitution the requirements
stated herein and in the Pooling and Servicing Agreement; upon such
substitution, such mortgage loan shall be a "Mortgage Loan" hereunder.
Value: The value of the Mortgaged Property at the time of origination
of the related Mortgage Loan, such value being the lesser of (i) the value of
such property set forth in an appraisal accepted by the Originator or (ii) the
sales price of such property at the time of origination.
Section 2. Purchase and Sale of the Mortgage Loans and Related Rights.
(a) Upon satisfaction of the conditions set forth in Section 10
hereof, the Seller agrees to sell, and the Purchaser agrees to purchase Mortgage
Loans having an aggregate Cut-off Date Balance of $668,566,213.
(b) The closing for the purchase and sale of the Mortgage Loans and
the closing for the issuance of the Certificates will take place on the Closing
Date at the office of the Purchaser's counsel in New York, New York or such
other place as the parties shall agree.
(c) Upon the satisfaction of the conditions set forth in Section 10
hereof, on the Closing Date, in consideration of the purchase of the Mortgage
Loans, the Purchaser shall (i) pay to the Seller an amount equal to the net sale
proceeds of the Offered Certificates plus accrued interest (the "Purchase
Price") in immediately available funds by wire transfer to such account or
accounts as shall be designated by the Seller and (ii) deliver to the Seller the
Class B and Class P Certificates.
(d) In addition to the foregoing, on the Closing Date the Seller
assigns to the Purchaser without recourse all of its right, title and interest
in (1) the Master Mortgage Loan Purchase and Servicing Agreement, dated as of
April 1, 2003, between Xxxxxxx Xxxxx Mortgages Holdings Inc. ("MLMH"), Terwin
Advisors LLC ("Terwin") and GreenPoint Mortgage Funding, Inc. ("GreenPoint"), as
amended by Amendment No. 1, dated as of August 20, 2003 among MLMH, Terwin and
GreenPoint, and the Bring-Down Letter related thereto, (2) the Assignment,
Assumption and Recognition Agreement, dated as of March 31, 2006, among the
Seller, the Purchaser and GreenPoint, (3) the Master Mortgage Loan Purchase and
Servicing Agreement, dated as of November 1,2004, by and between Xxxxxxx Xxxxx
Bank USA ("MLBUSA") and
J-3
Countrywide Home Loans, Inc. ("CWHL"), as amended, (4) the Assignment,
Assumption and Recognition Agreement, dated as of March 31, 2006, among the
Seller, the Purchaser, CWHL and Countrywide Home Loans Servicing LP, (5) the
Mortgage Loan Purchase Agreement, dated as of November 1, 2005, between the
Seller and Washington Mutual Mortgage Securities Corp. ("WMMSC"), as amended,
(6) the Servicing Agreement, dated as of November 1, 2005, by and between the
Seller and Washington Mutual Bank ("WMB"), as amended, (7) the Assignment,
Assumption and Recognition Agreement, dated as of March 31, 2006, by and among
the Seller, the Purchaser, WMMSC and WMB, (8) the Bulk Sale and Transfer
Addendum to the Master Loan Purchase and Sale Agreement, dated as of May 11,
2004, by and between Xxxxxxx Xxxxx Credit Corporation ("MLCC") and MortgageIT,
Inc. ("MortgageIT"), and (9) the Assignment and Assumption Agreement, dated as
of March 31, 2006, by and between MLCC and the Seller.
Section 3. Mortgage Loan Schedules.
The Seller agrees to provide to the Purchaser as of the date hereof a
preliminary listing of the Mortgage Loans (the "Preliminary Mortgage Loan
Schedule") setting forth the information listed on Exhibit 3 to this Agreement
with respect to each of the Mortgage Loans being sold by the Seller. If there
are changes to the Preliminary Mortgage Loan Schedule, the Seller shall provide
to the Purchaser as of the Closing Date a final schedule (the "Final Mortgage
Loan Schedule") setting forth the information listed on Exhibit 3 to this
Agreement with respect to each of the Mortgage Loans being sold by the Seller to
the Purchaser. The Final Mortgage Loan Schedule shall be delivered to the
Purchaser on the Closing Date, shall be attached to an amendment to this
Agreement to be executed on the Closing Date by the parties hereto and shall be
in form and substance mutually agreed to by the Seller and the Purchaser (the
"Amendment"). If there are no changes to the Preliminary Mortgage Loan Schedule,
the Preliminary Mortgage Loan Schedule shall be the Final Mortgage Loan Schedule
for all purposes hereof.
Section 4 Mortgage Loan Transfer.
The Purchaser will be entitled to all scheduled payments of principal
and interest on the Mortgage Loans due after the Cut-off Date (regardless of
when actually collected) and all payments thereof other than scheduled principal
and interest received after the Cut-off Date. The Seller will be entitled to all
scheduled payments of principal and interest on the Mortgage Loans due on or
before the Cut-off Date (including payments collected after the Cut-off Date)
and all payments thereof other than scheduled principal and interest on the
Mortgage Loans received on or before the Cut-off Date. Such principal amounts
and any interest thereon belonging to the Seller as described above will not be
included in the aggregate outstanding principal balance of the Mortgage Loans as
of the Cut-off Date as set forth on the Final Mortgage Loan Schedule.
Pursuant to various conveyancing documents to be executed on the
Closing Date and pursuant to the Pooling and Servicing Agreement, the Purchaser
will assign on the Closing Date all of its right, title and interest in and to
the Mortgage Loans to the Trustee for the benefit of the Certificateholders. In
connection with the transfer and assignment of the Mortgage Loans, the Seller
has delivered or will deliver or cause to be delivered to the Trustee by the
Closing Date or such later date as is agreed to by the Purchaser and the Seller
(each of the Closing Date and such later date is referred to as a "Mortgage File
Delivery Date"), the items of each Mortgage
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File, provided, however, that in lieu of the foregoing, the Seller may deliver
the following documents, under the circumstances set forth below: (x) in lieu of
the original Mortgage, assignments to the Trustee or intervening assignments
thereof which have been delivered, are being delivered or will upon receipt of
recording information relating to the Mortgage required to be included thereon,
be delivered to recording offices for recording and have not been returned in
time to permit their delivery as specified above, the Seller may deliver a true
copy thereof with a certification by the Seller or the Originator, on the face
of such copy, substantially as follows: "Certified to be a true and correct copy
of the original, which has been transmitted for recording;" (y) in lieu of the
Mortgage, assignments to the Trustee or intervening assignments thereof, if the
applicable jurisdiction retains the originals of such documents or if the
originals are lost (in each case, as evidenced by a certification from the
Seller to such effect), the Seller may deliver photocopies of such documents
containing an original certification by the judicial or other governmental
authority of the jurisdiction where such documents were recorded; and (z) in
lieu of the Mortgage Notes relating to the Mortgage Loans, each identified in
the list delivered by the Purchaser to the Trustee on the Closing Date and
attached hereto as Exhibit 6 the Seller may deliver lost note affidavits and
indemnities of the Seller; and provided further, however, that in the case of
Mortgage Loans which have been prepaid in full after the Cut-off Date and prior
to the Closing Date, the Seller, in lieu of delivering the above documents, may
deliver to the Trustee a certification by the Seller to such effect. The Seller
shall deliver such original documents (including any original documents as to
which certified copies had previously been delivered) or such certified copies
to the Trustee promptly after they are received. The Seller shall cause the
Mortgage and intervening assignments, if any, and the assignment of the Mortgage
to be recorded not later than 180 days after the Closing Date, or, in lieu of
such assignments, shall provide an Opinion of Counsel pursuant to Section 6(a)
hereof to the effect that the recordation of such assignment is not necessary to
protect the Trustee's interest in the related Mortgage Loan. Upon the request of
the Purchaser, the Seller will assist the Purchaser in effecting the assignment
referred to above.
The Seller and the Purchaser acknowledge hereunder that all of the
Mortgage Loans and the related servicing will ultimately be assigned to HSBC
Bank USA, National Association, as Trustee for the Certificateholders, on the
date hereof.
Section 5. Examination of Mortgage Files.
(a) On or before the Mortgage File Delivery Date, the Seller will have
made the Mortgage Files available to the Purchaser or its agent for examination
which may be at the offices of the Trustee or the Seller and/or the Seller's
custodian. The fact that the Purchaser or its agent has conducted or has failed
to conduct any partial or complete examination of the Mortgage Files shall not
affect the Purchaser's rights to demand cure, repurchase, substitution or other
relief as provided in this Agreement. In furtherance of the foregoing, the
Seller shall make the Mortgage Files available to the Purchaser or its agent
from time to time so as to permit the Purchaser to confirm the Seller's
compliance with the delivery and recordation requirements of this Agreement and
the Pooling and Servicing Agreement. In addition, upon request of the Purchaser,
the Seller agrees to provide to the Purchaser, Xxxxxxx Xxxxx and to any
investors or prospective investors in the Certificates information regarding the
Mortgage Loans and their
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servicing, to make the Mortgage Files available to the Purchaser, Xxxxxxx Xxxxx
and to such investors or prospective investors (which may be at the offices of
the Seller and/or the Seller's custodian) and to make available personnel
knowledgeable about the Mortgage Loans for discussions with the Purchaser,
Xxxxxxx Xxxxx and such investors or prospective investors, upon reasonable
request during regular business hours, sufficient to permit the Purchaser,
Xxxxxxx Xxxxx and such investors or potential investors to conduct such due
diligence as any such party reasonably believes is appropriate.
(b) Pursuant to the Pooling and Servicing Agreement, on the Closing
Date the Trustee (or the Custodian), for the benefit of the Certificateholders,
will review items of the Mortgage Files as set forth on Exhibit 1 and will
deliver to the Seller a certification in the form attached as Exhibit One to the
Custodial Agreement.
(c) Pursuant to the Pooling and Servicing Agreement, the Trustee or
the Custodian, as its agent, will review the Mortgage Files within 180 days of
the Closing Date and will deliver to the Purchaser a final certification
substantially in the form of Exhibit Two to the Custodial Agreement. If the
Trustee or the Custodian, as its agent, is unable to deliver a final
certification with respect to the items listed in Exhibit 2 due to any document
that is missing, has not been executed, is unrelated, determined on the basis of
the Mortgagor name, original principal balance and loan number, to the Mortgage
Loans identified in the Final Mortgage Loan Schedule (a "Material Defect"), the
Trustee or the Custodian, as its agent, shall notify the Seller of such Material
Defect. The Seller shall correct or cure any such Material Defect within 90 days
from the date of notice from the Trustee or the Custodian, as applicable, of the
Material Defect and if the Seller does not correct or cure such Material Defect
within such period and such defect materially and adversely affects the
interests of the Certificateholders in the related Mortgage Loan, the Seller
will, in accordance with the terms of the Pooling and Servicing Agreement,
within 90 days of the date of notice, provide the Trustee with a Substitute
Mortgage Loan (if within two years of the Closing Date) or purchase the related
Mortgage Loan at the applicable Purchase Price; provided, however, that if such
defect relates solely to the inability of the Seller to deliver the original
security instrument or intervening assignments thereof, or a certified copy
because the originals of such documents, or a certified copy, have not been
returned by the applicable jurisdiction, the Seller shall not be required to
purchase such Mortgage Loan if the Seller delivers such original documents or
certified copy promptly upon receipt, but in no event later than 360 days after
the Closing Date. The foregoing repurchase obligation shall not apply in the
event that the Seller cannot deliver such original or copy of any document
submitted for recording to the appropriate recording office in the applicable
jurisdiction because such document has not been returned by such office;
provided that the Seller shall instead deliver a recording receipt of such
recording office or, if such receipt is not available, a certificate of the
Seller confirming that such documents have been accepted for recording, and
delivery to the Trustee or the Custodian, as its agent, shall be effected by the
Seller within thirty days of its receipt of the original recorded document.
(d) At the time of any substitution, the Seller shall deliver or cause
to be delivered the Substitute Mortgage Loan, the related Mortgage File and any
other documents and payments required to be delivered in connection with a
substitution pursuant to the Pooling and Servicing Agreement. At the time of any
purchase or substitution, the Trustee shall (i) assign to
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the Seller and release or cause the Custodian, as its agent, to release the
documents (including, but not limited to, the Mortgage, Mortgage Note and other
contents of the Mortgage File) in the possession of the Trustee or the Custodian
relating to the Deleted Mortgage Loan and (ii) execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest in the Seller title to such Deleted Mortgage Loan.
Section 6. Recordation of Assignments of Mortgage.
(a) The Seller need not cause to be recorded any assignment which
relates to a Mortgage Loan in any jurisdiction; provided, however, each
assignment of Mortgage shall be submitted for recording by the Seller, at no
expense to the Issuing Entity or Trustee, upon the earliest to occur of (i)
reasonable direction by the Holders of Certificates evidencing, in the
aggregate, not less than 25% of the Voting Rights, (ii) the occurrence of an
Event of Default with respect to the Master Servicer (upon instruction of the
Seller), (iii) the occurrence of a bankruptcy, insolvency or foreclosure
relating to the Seller or (iv) with respect to any one assignment of Mortgage,
the occurrence of a bankruptcy, insolvency or foreclosure relating to the
Mortgagor under the related Mortgage.
While each such Mortgage or assignment is being recorded, if
necessary, the Seller shall leave or cause to be left with the Trustee a
certified copy of such Mortgage or assignment. All customary recording fees and
reasonable expenses relating to the recordation of the assignments of mortgage
to the Trustee shall be borne by the Seller.
It is the express intent of the parties hereto that the conveyance of
the Mortgage Loans by the Seller to the Purchaser, as contemplated by this
Agreement be, and be treated as, a sale. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Seller to the Purchaser to secure a debt or other obligation of the Seller.
However, in the event that, notwithstanding the intent of the parties, the
Mortgage Loans are held by a court of competent jurisdiction to continue to be
property of the Seller, then (i) this Agreement shall also be deemed to be a
security agreement within the meaning of Articles 8 and 9 of the applicable
Uniform Commercial Code; (ii) the transfer of the Mortgage Loans provided for
herein shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans and all amounts payable to the holders of the Mortgage Loans in
accordance with the terms thereof and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, to the extent the Purchaser would otherwise be entitled to own such
Mortgage Loans and proceeds pursuant to Section 4 hereof, including all amounts,
other than investment earnings, from time to time held or invested in any
accounts created pursuant to the Pooling and Servicing Agreement, whether in the
form of cash, instruments, securities or other property; (iii) the possession by
the Purchaser or the Trustee of Mortgage Notes and such other items of property
as constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 (or comparable provision) of the
applicable Uniform Commercial Code; and (iv) notifications to persons holding
such property, and acknowledgments, receipts or confirmations from persons
holding such property, shall be deemed notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or agents (as
applicable) of the
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Purchaser for the purpose of perfecting such security interest under applicable
law. Any assignment of the interest of the Purchaser pursuant to any provision
hereof or pursuant to the Pooling and Servicing Agreement shall also be deemed
to be an assignment of any security interest created hereby. The Seller and the
Purchaser shall, to the extent consistent with this Agreement, take such actions
as may be reasonably necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of the Pooling and
Servicing Agreement.
Section 7. Representations and Warranties of Seller Concerning the Mortgage
Loans.
The Seller hereby represents and warrants to the Purchaser as of the
Closing Date or such other date as may be specified below with respect to each
Mortgage Loan being sold by it:
(a) the information set forth in the Mortgage Loan Schedule hereto is
true and correct in all material respects;
(b) immediately prior to the transfer to the Purchaser, the Seller was
the sole owner of beneficial title and holder of each Mortgage and Mortgage
Note relating to the Mortgage Loans and is conveying the same free and
clear of any and all liens, claims, encumbrances, participation interests,
equities, pledges, charges or security interests of any nature and the
Seller has full right and authority to sell or assign the same pursuant to
this Agreement;
(c) no selection procedure reasonably believed by the Seller to be
adverse to the interests of the Certificateholders was utilized in
selecting the Mortgage Loans;
(d) each Mortgage Loan constitutes a "qualified mortgage" under
Section 860G(a)(3)(A) of the Code and Treasury Regulation Section
1.860G-2(a)(1);
(e) no Mortgage Loan is in foreclosure;
(f) no Mortgage Loan provides for interest other than at either (i) a
single fixed rate in effect throughout the term of the Mortgage Loan or
(ii) a "variable rate" (within the meaning of Treas. Reg. Section
1.860G-1(a)(3)) in effect throughout the term of the Mortgage Loan;
(g) the Seller would not, based on the delinquency status of the
Mortgage Loans, institute foreclosure proceedings with respect to any of
the Mortgage Loans prior to the next scheduled payment for such Mortgage
Loan;
(h) the information set forth under the caption "The Mortgage
Pool--General" and "--Tabular Characteristics of the Mortgage Pool" in the
Prospectus Supplement is true and correct in all material respects;
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(i) as of the Cut-off Date, no Mortgage Loan is more than 30 days past
due. The Seller has not advanced funds, or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the
related Mortgaged Property, directly or indirectly, for the payment of any
amount required by the Mortgage Note or Mortgage;
(j) to the best of the Seller's knowledge, there are no delinquent
taxes, ground rents, water charges, sewer rents, assessments, insurance
premiums, leasehold payments, including assessments payable in future
installments or other outstanding charges affecting the related Mortgaged
Property;
(k) to the best of the Seller's knowledge, there is no default,
breach, violation or event of acceleration existing under the Mortgage or
the Mortgage Note and no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration, and the Seller has not
waived any default, breach, violation or event of acceleration;
(l) to the best of the Seller's knowledge, the Mortgaged Property is
free of damage and waste and there is no proceeding pending for the total
or partial condemnation thereof;
(m) to the best of the Seller's knowledge, the Mortgaged Property is
lawfully occupied under applicable law at time of origination; all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited to
certificates of occupancy, have been made or obtained from the appropriate
authorities;
(n) all requirements of any federal, state or local law (including
usury, truth in lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity, disclosure or recording, predatory
and abusive lending laws) applicable to the origination and servicing of
such Mortgage Loan have been complied with in all material respects;
(o) to the best of the Seller's knowledge, as of the date of transfer
of the Mortgage Loans, there is no mechanics' lien or claim for work, labor
or material affecting the Mortgaged Property except those which are insured
against by the title insurance policy;
(p) to the best of the Seller's knowledge, as of the date of the
transfer of the Mortgage Loans to the Purchaser, there is no valid offset,
defense or counterclaim to any Mortgage Note or Mortgage;
(q) to the best of the Seller's knowledge, as of the date of closing,
the physical property subject to any mortgage is free of material damage
and is in good repair;
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(r) at the time of origination, no improvement located on or being
part of the Mortgaged Property was in violation of any applicable zoning
and subdivision laws or ordinances;
(s) each Mortgage Loan is and will be a mortgage loan arising out of
the originator's practice in accordance with the seller/originator's
underwriting guidelines. The seller has no knowledge of any fact that
should have led it to expect at the time of the initial creation of an
interest in the mortgage loan that such mortgage loan would not be paid in
full when due;
(t) each original mortgage has been recorded or is in the process of
being recorded in the appropriate jurisdictions wherein such recordation is
required to perfect the lien thereof for the benefit of the trust;
(u) the related mortgage file contains each of the documents and
instruments specified;
(v) loans originated are being serviced according to the
seller/servicer guidelines;
(w) the mortgage note and the mortgage have not been impaired, altered
or modified in any material respect, except by a written instrument which
has been recorded or is in the process of being recorded;
(x) a lender's title policy or binder, or other assurance of title
insurance customary in a form acceptable to FNMA or FHLMC was issued at
origination and each policy or binder is valid and remains in full force
and effect;
(y) none of the Mortgage Loans are secured by a leasehold interest;
(z) none of the Mortgage Loans are subject to the Georgia Fair Lending Act,
as amended;
(aa) none of the Mortgage Loans is subject to the Home Ownership and
Equity Protection Act of 1994 or is a "high cost" or "predatory" loan as
defined by applicable local, state and federal predatory and abusive
lending laws; and
(bb) no Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in Appendix E of the then current
Standard & Poor's Glossary For File Format For LEVELS(R) Version 5.6c
Revised (attached hereto as Exhibit 7).
It is understood and agreed that the representations and warranties
set forth in this Section 7 will inure to the benefit of the Purchaser, its
successors and assigns, notwithstanding any restrictive or qualified endorsement
on any Mortgage Note or assignment of Mortgage or the examination of any
Mortgage File. Upon any substitution for a Mortgage Loan, the representations
and warranties set forth above shall be deemed to be made by the Seller as to
any Substitute Mortgage Loan as of the date of substitution.
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Upon discovery or receipt of notice by the Seller, the Purchaser or
the Trustee of a breach of any representation or warranty of the Seller set
forth in this Section 7 which materially and adversely affects the value of the
interests of the Purchaser, the Certificateholders or the Trustee in any of the
Mortgage Loans delivered to the Purchaser pursuant to this Agreement, the party
discovering or receiving notice of such breach shall give prompt written notice
to the others. In the case of any such breach of a representation or warranty
set forth in this Section 7, within 90 days from the date of discovery by the
Seller, or the date the Seller is notified by the party discovering or receiving
notice of such breach (whichever occurs earlier), the Seller will (i) cure such
breach in all material respects, (ii) purchase the affected Mortgage Loan at the
applicable Purchase Price or (iii) if within two years of the Closing Date,
substitute a qualifying Substitute Mortgage Loan in exchange for such Mortgage
Loan. The obligations of the Seller to cure, purchase or substitute a qualifying
Substitute Mortgage Loan shall constitute the Purchaser's, the Trustee's and the
Certificateholder's sole and exclusive remedy under this Agreement or otherwise
respecting a breach of representations or warranties hereunder with respect to
the Mortgage Loans, except for the obligation of the Seller to indemnify the
Purchaser for such breach as set forth in and limited by Section 14 hereof. With
respect to the representations and warranties described in the Agreement which
are made to the best of the Seller's knowledge, if it is discovered by any of
the Depositor, the Seller or the Trustee that the substance of such
representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of the related Mortgage Loan, then notwithstanding
the seller's lack of knowledge with respect to the substance of such
representation and warranty, such inaccuracy shall be deemed a breach of the
applicable representation or warranty.
Any cause of action against the Seller or relating to or arising out
of a breach by the Seller of any representations and warranties made in this
Section 7 shall accrue as to any Mortgage Loan upon (i) discovery of such breach
by the Seller or notice thereof by the party discovering such breach and (ii)
failure by the Seller to cure such breach, purchase such Mortgage Loan or
substitute a qualifying Substitute Mortgage Loan pursuant to the terms hereof.
Section 8. Representations and Warranties Concerning the Seller.
As of the date hereof and as of the Closing Date, the Seller represents and
warrants to the Purchaser as to itself in the capacity indicated as follows:
the Seller (i) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and (ii) is
qualified and in good standing to do business in each jurisdiction where
such qualification is necessary, except where the failure so to qualify
would not reasonably be expected to have a material adverse effect on the
Seller's business as presently conducted or on the Seller's ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
the Seller has full power to own its property, to carry on its
business as presently conducted and to enter into and perform its
obligations under this Agreement;
the execution and delivery by the Seller of this Agreement have been
duly authorized by all necessary action on the part of the Seller; and
neither the execution and
J-11
delivery of this Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will conflict with
or result in a breach of, or constitute a default under, any of the
provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Seller or its properties or the charter or by-laws of
the Seller, except those conflicts, breaches or defaults which would not
reasonably be expected to have a material adverse effect on the Seller's
ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
the execution, delivery and performance by the Seller of this
Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except those
consents, approvals, notices, registrations or other actions as have
already been obtained, given or made and, in connection with the
recordation of the Mortgages, powers of attorney or assignments of
Mortgages not yet completed;
this Agreement has been duly executed and delivered by the Seller and,
assuming due authorization, execution and delivery by the Purchaser,
constitutes a valid and binding obligation of the Seller enforceable
against it in accordance with its terms (subject to applicable bankruptcy
and insolvency laws and other similar laws affecting the enforcement of the
rights of creditors generally);
there are no actions, suits or proceedings pending or, to the
knowledge of the Seller, threatened against the Seller, before or by any
court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement or (ii)
with respect to any other matter which in the judgment of the Seller will
be determined adversely to the Seller and will if determined adversely to
the Seller materially and adversely affect the Seller's ability to perform
its obligations under this Agreement; and the Seller is not in default with
respect to any order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the transactions
contemplated by this Agreement; and
the Seller's Information (as defined in Section 13(a) hereof) does not
include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading.
Section 9. Representations and Warranties Concerning the Purchaser.
As of the date hereof and as of the Closing Date, the Purchaser
represents and warrants to the Seller as follows:
(a) the Purchaser (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
(ii) is qualified and in good standing as a foreign corporation to do
business in each jurisdiction where such qualification is necessary, except
where the failure so to qualify would not reasonably be
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expected to have a material adverse effect on the Purchaser's business as
presently conducted or on the Purchaser's ability to enter into this
Agreement and to consummate the transactions contemplated hereby;
the Purchaser has full corporate power to own its property, to carry
on its business as presently conducted and to enter into and perform its
obligations under this Agreement;
the execution and delivery by the Purchaser of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Purchaser; and neither the execution and delivery of this Agreement, nor
the consummation of the transactions herein contemplated, nor compliance
with the provisions hereof, will conflict with or result in a breach of, or
constitute a default under, any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Purchaser or its
properties or the articles of incorporation or by-laws of the Purchaser,
except those conflicts, breaches or defaults which would not reasonably be
expected to have a material adverse effect on the Purchaser's ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
the execution, delivery and performance by the Purchaser of this
Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except those
consents, approvals, notices, registrations or other actions as have
already been obtained, given or made;
this Agreement has been duly executed and delivered by the Purchaser
and, assuming due authorization, execution and delivery by the Seller,
constitutes a valid and binding obligation of the Purchaser enforceable
against it in accordance with its terms (subject to applicable bankruptcy
and insolvency laws and other similar laws affecting the enforcement of the
rights of creditors generally);
there are no actions, suits or proceedings pending or, to the
knowledge of the Purchaser, threatened against the Purchaser, before or by
any court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement or (ii)
with respect to any other matter which in the judgment of the Purchaser
will be determined adversely to the Purchaser and will if determined
adversely to the Purchaser materially and adversely affect the Purchaser's
ability to perform its obligations under this Agreement; and the Purchaser
is not in default with respect to any order of any court, administrative
agency, arbitrator or governmental body so as to materially and adversely
affect the transactions contemplated by this Agreement; and
the Purchaser's Information (as defined in Section 13(b) hereof) does
not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made, in light of
the circumstances under which they were made,
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not misleading.
Section 10. Conditions to Closing.
(a) The obligations of the Purchaser under this Agreement will be
subject to the satisfaction, on or prior to the Closing Date, of the
following conditions:
(i) Each of the obligations of the Seller required to be
performed at or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with in all material
respects; all of the representations and warranties of the Seller under this
Agreement shall be true and correct as of the date or dates specified in all
material respects; and no event shall have occurred which, with notice or the
passage of time, would constitute a default under this Agreement, or the Pooling
and Servicing Agreement; and the Purchaser shall have received certificates to
that effect signed by authorized officers of the Seller.
(ii) The Purchaser shall have received all of the following
closing documents, in such forms as are agreed upon and reasonably acceptable to
the Purchaser, duly executed by all signatories other than the Purchaser as
required pursuant to the respective terms thereof:
(A) If required pursuant to Section 3 hereof, the Amendment
dated as of the Closing Date and any documents referred to therein;
(B) If required pursuant to Section 3 hereof, the Final
Mortgage Loan Schedule containing the information set forth on Exhibit 3 hereto,
one copy to be attached to each counterpart of the Amendment;
(C) The Pooling and Servicing Agreement, in form and
substance reasonably satisfactory to the Trustee and the Purchaser, and all
documents required thereby duly executed by all signatories;
(D) A certificate of an officer of the Seller dated as of
the Closing Date, in a form reasonably acceptable to the Purchaser, and attached
thereto the resolutions of the Seller's authorizing the transactions
contemplated by this Agreement, together with copies of the charter and by-laws
of the Seller;
(E) One or more opinions of counsel from the Seller's
counsel otherwise in form and substance reasonably satisfactory to the
Purchaser, the Trustee and each Rating Agency;
(F) A letter from each of the Rating Agencies giving each
Class of Certificates set forth on Schedule A the rating set forth on Schedule
A; and
(G) Such other documents, certificates (including additional
representations and warranties) and opinions as may be reasonably necessary to
secure the intended ratings from each Rating Agency for the Certificates.
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(iii) The Certificates to be sold to Xxxxxxx Xxxxx pursuant to
the Underwriting Agreement shall have been issued and sold to Xxxxxxx Xxxxx.
(iv) The Seller shall have furnished to the Purchaser such other
certificates of its officers or others and such other documents and opinions of
counsel to evidence fulfillment of the conditions set forth in this Agreement
and the transactions contemplated hereby as the Purchaser and its counsel may
reasonably request.
The obligations of the Seller under this Agreement shall be subject to
the satisfaction, on or prior to the Closing Date, of the following
conditions:
(i) The obligations of the Purchaser required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects, and all of
the representations and warranties of the Purchaser under this Agreement shall
be true and correct in all material respects as of the date hereof and as of the
Closing Date, and no event shall have occurred which would constitute a breach
by it of the terms of this Agreement, and the Seller shall have received a
certificate to that effect signed by an authorized officer of the Purchaser.
(ii) The Seller shall have received copies of all of the
following closing documents, in such forms as are agreed upon and reasonably
acceptable to the Seller, duly executed by all signatories other than the Seller
as required pursuant to the respective terms thereof:
(A) If required pursuant to Section 3 hereof, the Amendment
dated as of the Closing Date and any documents referred to therein;
(B) The Pooling and Servicing Agreement, in form and
substance reasonably satisfactory to the Seller, and all documents required
thereby duly executed by all signatories;
(C) A certificate of an officer of the Purchaser dated as of
the Closing Date, in a form reasonably acceptable to the Seller, and attached
thereto the resolutions of the Purchaser authorizing the transactions
contemplated by this Agreement and the Pooling and Servicing Agreement, together
with copies of the Purchaser's articles of incorporation, and evidence as to the
good standing of the Purchaser dated as of a recent date;
(D) One or more opinions of counsel from the Purchaser's
counsel in form and substance reasonably satisfactory to the Seller; and
(E) Such other documents, certificates (including additional
representations and warranties) and opinions as may be reasonably necessary to
secure the intended rating from each Rating Agency for the Certificates;
Section 11. Fees and Expenses.
J-15
Subject to Section 17 hereof, the Seller shall pay on the Closing Date or
such later date as may be agreed to by the Purchaser (i) the fees and expenses
of the Seller's attorneys and the reasonable fees and expenses of the
Purchaser's attorneys, (ii) the fees and expenses of Deloitte & Touche LLP,
(iii) the filing fee charged by the Commission for the registration of the
Certificates, (iv) the fees and expenses including counsel's fees and expenses
in connection with any "blue sky" and legal investment matters, (v) the fees and
expenses of the Trustee which shall include without limitation the fees and
expenses of the Trustee (and the fees and disbursements of its counsel) with
respect to (A) legal and document review of this Agreement, the Pooling and
Servicing Agreement, the Certificates and related agreements, (B) attendance at
the Closing and (C) review of the Mortgage Loans to be performed by the Trustee,
(vi) the expenses for printing or otherwise reproducing the Certificates, the
Prospectus and the Prospectus Supplement, (vii) the fees and expenses of each
Rating Agency (both initial and ongoing), (viii) the fees and expenses relating
to the preparation and recordation of mortgage assignments (including
intervening assignments, if any and if available, to evidence a complete chain
of title from the originator to the Trustee) from the Seller to the Trustee or
the expenses relating to the Opinion of Counsel referred to in Section 6(a)
hereof, as the case may be, and (ix) Mortgage File due diligence expenses and
other out-of-pocket expenses incurred by the Purchaser in connection with the
purchase of the Mortgage Loans and by Xxxxxxx Xxxxx in connection with the sale
of the Offered Certificates. The Seller additionally agrees to pay directly to
any third party on a timely basis the fees provided for above which are charged
by such third party and which are billed periodically.
Section 12. Accountants' Letters
(a) Deloitte & Touche LLP will review the characteristics of a sample
of the Mortgage Loans described in the Final Mortgage Loan Schedule and
will compare those characteristics to the description of the Mortgage Loans
contained in the Prospectus Supplement under the captions "Summary--The
Mortgage Loans", "Description of the Mortgage Pool--General" and "--Tabular
Characteristics of the Mortgage Loans" and "Annex II--The Mortgage Pool".
The Seller will cooperate with the Purchaser in making available all
information and taking all steps reasonably necessary to permit such
accountants to complete the review and to deliver the letters required of
them under the Underwriting Agreement. Deloitte & Touche LLP will also
confirm certain calculations as set forth under the caption "Yield,
Prepayment and Maturity Considerations" in the Prospectus Supplement.
To the extent statistical information with respect to the Master
Servicer's servicing portfolio is included in the Prospectus Supplement
under the caption "Servicing of the Mortgage Loans--The Master Servicer," a
letter from the certified public accountant for the Master Servicer will be
delivered to the Purchaser dated the date of the Prospectus Supplement, in
the form previously agreed to by the Seller and the Purchaser, with respect
to such statistical information.
Section 13. Indemnification.
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(a) The Seller shall indemnify and hold harmless the Purchaser and its
directors, officers and controlling persons (as defined in Section 15 of
the Securities Act) from and against any loss, claim, damage or liability
or action in respect thereof, to which they or any of them may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon (i) any
untrue statement of a material fact contained in the Seller's Information
as identified in Exhibit 4, the omission to state in the Prospectus
Supplement or Prospectus (or any amendment thereof or supplement thereto
approved by the Seller and in which additional Seller's Information is
identified), in reliance upon and in conformity with Seller's Information a
material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances in which they were made,
not misleading, (ii) any representation or warranty assigned or made by the
Seller in Section 7 or Section 8 hereof being, or alleged to be, untrue or
incorrect, or (iii) any failure by the Seller to perform its obligations
under this Agreement; and the Seller shall reimburse the Purchaser and each
other indemnified party for any legal and other expenses reasonably
incurred by them in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action.
The Seller shall indemnify and hold harmless the Purchaser, the Trust
Fund and the Trustee against any documented out-of-pocket losses,
penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and other costs and expenses resulting from any
claim, demand, defense or assertion by any third party that results from, a
material breach of the representations and warranties set forth in Section
7 of this Agreement; provided, however, indemnification shall not be
available for any economic losses of the Purchaser due to reinvestment
losses, loss of investment income or any other special, indirect or
consequential losses. The Seller shall indemnify and hold harmless the
Purchaser, the Trust Fund and the Trustee against any losses, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion by any third party in connection with the Georgia Fair
Lending Act; provided, however, indemnification shall not be available for
any economic losses of the Purchaser due to reinvestment losses, loss of
investment income or any other special, indirect or consequential losses.
The foregoing indemnity agreement is in addition to any liability which the
Seller otherwise may have to the Purchaser or any other such indemnified party.
The Purchaser shall indemnify and hold harmless the Seller and its
respective directors, officers and controlling persons (as defined in
Section 15 of the Securities Act) from and against any loss, claim, damage
or liability or action in respect thereof, to which they or any of them may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon
(i) any untrue statement of a material fact contained in the Purchaser's
Information as identified in Exhibit 5, the omission to state in the
Prospectus Supplement or Prospectus (or any amendment thereof or supplement
thereto approved by the Purchaser and in which
J-17
additional Purchaser's Information is identified), in reliance upon and in
conformity with the Purchaser's Information, a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances in which they were made, not misleading, (ii) any
representation or warranty made by the Purchaser in Section 9 hereof being,
or alleged to be, untrue or incorrect, or (iii) any failure by the
Purchaser to perform its obligations under this Agreement; and the
Purchaser shall reimburse the Seller, and each other indemnified party for
any legal and other expenses reasonably incurred by them in connection with
investigating or defending or preparing to defend any such loss, claim,
damage, liability or action. The foregoing indemnity agreement is in
addition to any liability which the Purchaser otherwise may have to the
Seller, or any other such indemnified party,
Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but
the failure so to notify an indemnifying party shall not relieve it from
any liability which it may have under this Section 13 except to the extent
that it has been prejudiced in any material respect by such failure or from
any liability which it may have otherwise). In case any such action is
brought against any indemnified party, and it notifies an indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein and, to the extent it may elect by written notice
delivered to the indemnified party promptly (but, in any event, within 30
days) after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of
such indemnified party or parties unless (i) the employment of such counsel
shall have been authorized in writing by one of the indemnifying parties in
connection with the defense of such action, (ii) the indemnifying parties
shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action,
or (iii) such indemnified party or parties shall have reasonably concluded
that there is a conflict of interest between itself or themselves and the
indemnifying party in the conduct of the defense of any claim or that the
interests of the indemnified party or parties are not substantially
co-extensive with those of the indemnifying party (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which
events such fees and expenses shall be borne by the indemnifying parties
(provided, however, that the indemnifying party shall be liable only for
the fees and expenses of one counsel in addition to one local counsel in
the jurisdiction involved. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any
settlement or any claim or action effected without its written consent;
provided, however, that such consent was not unreasonably withheld.
If the indemnification provided for in paragraphs (a) and (b) of this
Section 13
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shall for any reason be unavailable to an indemnified party in respect of
any loss, claim, damage or liability, or any action in respect thereof,
referred to in Section 13, then the indemnifying party shall in lieu of
indemnifying the indemnified party contribute to the amount paid or payable
by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, in such proportion as shall be
appropriate to reflect the relative benefits received by the Seller on the
one hand and the Purchaser on the other from the purchase and sale of the
Mortgage Loans, the offering of the Certificates and the other transactions
contemplated hereunder. No person found liable for a fraudulent
misrepresentation shall be entitled to contribution from any person who is
not also found liable for such fraudulent misrepresentation.
The parties hereto agree that reliance by an indemnified party on any
publicly available information or any information or directions furnished
by an indemnifying party shall not constitute negligence, bad faith or
willful misconduct by such indemnified party.
Section 14. Notices.
All demands, notices and communications hereunder shall be in writing but
may be delivered by facsimile transmission subsequently confirmed in writing.
Notices to the Seller shall be directed to Xxxxxxx Xxxxx Mortgage Lending Inc.,
0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (Telecopy: 212-449-6710),
and notices to the Purchaser shall be directed to Xxxxxxx Xxxxx Mortgage
Investors, Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (Telecopy:
212-449-6710), Attention: Xxxxx Xxxxxxx; or to any other address as may
hereafter be furnished by one party to the other party by like notice. Any such
demand, notice or communication hereunder shall be deemed to have been received
on the date received at the premises of the addressee (as evidenced, in the case
of registered or certified mail, by the date noted on the return receipt)
provided that it is received on a business day during normal business hours and,
if received after normal business hours, then it shall be deemed to be received
on the next business day.
Section 15. Transfer of Mortgage Loans.
The Purchaser retains the right to assign the Mortgage Loans and any or all
of its interest under this Agreement to the Trustee without the consent of the
Seller, and, upon such assignment, the Trustee shall succeed to the applicable
rights and obligations of the Purchaser hereunder; provided, however, the
Purchaser shall remain entitled to the benefits set forth in Sections 11, 13 and
17 hereto and as provided in Section 2(a). Notwithstanding the foregoing, the
sole and exclusive right and remedy of the Trustee with respect to a breach of
representation or warranty of the Seller shall be the purchase or substitution
obligations of the Seller contained in Sections 5 and 7 hereof.
Section 16. Termination.
This Agreement may be terminated (a) by the mutual consent of the parties
hereto prior to the Closing Date, (b) by the Purchaser, if the conditions to the
Purchaser's obligation to
J-19
close set forth under Section 10(a) hereof are not fulfilled as and when
required to be fulfilled or (c) by the Seller, if the conditions to the Seller's
obligation to close set forth under Section 10(b) hereof are not fulfilled as
and when required to be fulfilled. In the event of termination pursuant to
clause (b), the Seller shall pay, and in the event of termination pursuant to
clause (c), the Purchaser shall pay, all reasonable out-of-pocket expenses
incurred by the other in connection with the transactions contemplated by this
Agreement. In the event of a termination pursuant to clause (a), each party
shall be responsible for its own expenses.
Section 17. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Seller submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive delivery of the Mortgage Loans to the Purchaser (and by the Purchaser to
the Trustee). Subsequent to the delivery of the Mortgage Loans to the Purchaser,
the Seller's representations and warranties contained herein with respect to the
Mortgage Loans shall be deemed to relate to the Mortgage Loans actually
delivered to the Purchaser and included in the Final Mortgage Loan Schedule and
any Substitute Mortgage Loan and not to those Mortgage Loans deleted from the
Preliminary Mortgage Loan Schedule pursuant to Section 3 hereof prior to the
Closing.
Section 18. Mandatory Delivery; Grant of Security Interest.
The sale and delivery on the Closing Date of the Mortgage Loans
described on the Mortgage Loan Schedule in accordance with the terms and
conditions of this Agreement is mandatory. It is specifically understood and
agreed that each Mortgage Loan is unique and identifiable on the date hereof and
that an award of money damages would be insufficient to compensate the Purchaser
for the losses and damages incurred by the Purchaser in the event of the
Seller's failure to deliver the Mortgage Loans on or before the Closing Date.
The Seller hereby grants to the Purchaser a lien on and a continuing security
interest in the Seller's interest in each Mortgage Loan and each document and
instrument evidencing each such Mortgage Loan to secure the performance by the
Seller of its obligation hereunder, and the Seller agrees that it holds such
Mortgage Loans in custody for the Purchaser, subject to the Purchaser's
obligation to deliver or cause to be delivered the consideration for the
Mortgage Loans pursuant to Section 2 hereof. The Seller agrees that, upon
acceptance of the Mortgage Loans by the Purchaser or its designee and delivery
of payment to the Seller, that its security interest in the Mortgage Loans shall
be released. All rights and remedies of the Purchaser under this Agreement are
distinct from, and cumulative with, any other rights or remedies under this
Agreement or afforded by law or equity and all such rights and remedies may be
exercised concurrently, independently or successively.
Notwithstanding the foregoing, if on the Closing Date, each of the
conditions set forth in Section 10 hereof shall have been satisfied and the
Purchaser shall not have paid or caused to be paid the purchase price as
described in Section 2 hereof, or any such condition shall not have been waived
or satisfied and the Purchaser determines not to pay or cause to be paid the
purchase price, the Purchaser shall immediately effect the redelivery of the
Mortgage Loans, if
J-20
delivery to the Purchaser has occurred and the security interest created by this
Section 18 shall be deemed to have been released.
Section 19. Severability.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof.
Section 20. Counterparts.
This Agreement may be executed in counterparts, each of which will be
an original, but which together shall constitute one and the same agreement.
Section 21. Amendment.
This Agreement cannot be amended or modified in any manner without the
prior written consent of each party.
Section 22. GOVERNING LAW.
THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE AND PERFORMED IN THE
STATE OF NEW YORK AND SHALL BE INTERPRETED IN ACCORDANCE WITH THE LAWS OF SUCH
STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES OF SUCH STATE.
Section 23. Further Assurances.
Each of the parties agrees to execute and deliver such instruments and
take such actions as another party may, from time to time, reasonably request in
order to effectuate the purpose and to carry out the terms of this Agreement
including any amendments hereto which may be required by either Rating Agency.
Section 24. Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and their permitted successors and
assigns and, to the extent specified in Section 13 hereof, Xxxxxxx Xxxxx, and
their directors, officers and controlling persons (within the meaning of federal
securities laws). The Seller acknowledges and agrees that the Purchaser may
assign its rights under this Agreement (including, without limitation, with
respect to the Seller's
J-21
representations and warranties respecting the Mortgage Loans) to the Trustee.
Any person into which the Seller may be merged or consolidated (or any person
resulting from any merger or consolidation involving the Seller), any person
resulting from a change in form of the Seller or any person succeeding to the
business of the Seller, shall be considered the "successor" of the Seller
hereunder and shall be considered a party hereto without the execution or filing
of any paper or any further act or consent on the part of any party hereto.
Except as provided in the two preceding sentences, this Agreement cannot be
assigned, pledged or hypothecated by either party hereto without the written
consent of the other parties to this Agreement and any such assignment or
purported assignment shall be deemed null and void.
Section 25. The Seller.
The Seller will keep in full effect all rights as are necessary to
perform their respective obligations under this Agreement.
Section 26. Entire Agreement.
This Agreement contains the entire agreement and understanding between
the parties with respect to the subject matter hereof, and supersedes all prior
and contemporaneous agreements, understandings, inducements and conditions,
express or implied, oral or written, of any nature whatsoever with respect to
the subject matter hereof.
Section 27. No Partnership.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto by their respective duly authorized officers as of the date first above
written.
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX XXXXX MORTGAGE
INVESTORS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
J-23
- EXHIBIT 1 TO MORTGAGE LOAN PURCHASE AGREEMENT
- CONTENTS OF MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include each of
the following items, which shall be available for inspection by the Purchaser or
its designee, and which shall be delivered to the Purchaser or its designee
pursuant to the terms of the Agreement.
A. With respect to each Mortgage Loan (other than a Cooperative Loan):
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2006-A1, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(ii) the original recorded Mortgage or a copy of the Mortgage
certified by the public recording office in which such Mortgage has been
recorded;
(iii) an original Assignment of the Mortgage executed in the following
form: "HSBC Bank USA, National Association, as Trustee for the registered
holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2006-A1.
(iv) the original recorded Assignment or Assignments of the Mortgage
showing a complete chain of assignment from the originator to the Person
assigning the Mortgage to the Trustee as contemplated by the immediately
preceding clause (iii), if applicable and only to the extent available to
the Depositor with evidence of recording thereon;
(v) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, if any;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) the original mortgagee title insurance policy;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) the original power of attorney, if applicable.
B. With respect to each Mortgage Loan that is a Cooperative Loan:
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the
J-24
Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through Certificates,
Series 2006-A1, without recourse," with all prior and intervening
endorsements showing a complete chain of endorsement from the originator to
the Person so endorsing to the Trustee;
(ii) the original duly executed assignment of Security Agreement to
the Trustee;
(iii) the acknowledgment copy of the original executed Form UCC-1 (or
certified copy thereof) with respect to the Security Agreement, and any
required continuation statements;
(iv) the acknowledgment copy of the original executed Form UCC-3 with
respect to the Security Agreement, indicating the Trustee as the assignee
of the secured party;
(v) the stock certificate representing the Cooperative Assets
allocated to the cooperative unit, with a stock power in blank attached;
(vi) the original collateral assignment of the proprietary lease by
Mortgagor to the originator;
(vii) a copy of the recognition agreement;
(viii) if applicable and to the extent available, the original
intervening assignments, including warehousing assignments, if any,
showing, to the extent available, an unbroken chain of the related Mortgage
Loan to the Trustee, together with a copy of the related Form UCC-3 with
evidence of filing thereon; and
(ix) the originals of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loan.
J-25
- EXHIBIT 2 TO MORTGAGE LOAN PURCHASE AGREEMENT
- CONTENTS OF FINAL MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser or its agent, and which shall be delivered to the Purchaser
pursuant to the terms of the Agreement.
A. With respect to each Mortgage Loan (other than a Cooperative Loan):
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the order of HSBC Bank USA, National Association, as Trustee for the
registered holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2006-A1, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(ii) the original recorded Mortgage or a copy of the Mortgage
certified by the public recording office in which such Mortgage has been
recorded;
(iii) an original Assignment of the Mortgage executed in the following
form: "HSBC Bank USA, National Association, as Trustee for the registered
holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2006-A1.
(iv) the original recorded Assignment or Assignments of the Mortgage
showing a complete chain of assignment from the originator to the Person
assigning the Mortgage to the Trustee as contemplated by the immediately
preceding clause (iii), if applicable and only to the extent available to
the Depositor with evidence of recording thereon;
(v) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, if any;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) the original mortgagee title insurance policy;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) the original power of attorney, if applicable.
B. With respect to each Mortgage Loan that is a Cooperative Loan:
(i) the original Mortgage Note, endorsed in the following form: "Pay
to the
J-26
order of HSBC Bank USA, National Association, as Trustee for the registered
holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 2006-A1, without recourse," with all
prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(ii) the original duly executed assignment of Security Agreement to
the Trustee;
(iii) the acknowledgment copy of the original executed Form UCC-1 (or
certified copy thereof) with respect to the Security Agreement, and any
required continuation statements;
(iv) the acknowledgment copy of the original executed Form UCC-3 with
respect to the Security Agreement, indicating the Trustee as the assignee
of the secured party;
(v) the stock certificate representing the Cooperative Assets
allocated to the cooperative unit, with a stock power in blank attached;
(vi) the original collateral assignment of the proprietary lease by
Mortgagor to the originator;
(vii) a copy of the recognition agreement;
(viii) if applicable and to the extent available, the original
intervening assignments, including warehousing assignments, if any,
showing, to the extent available, an unbroken chain of the related Mortgage
Loan to the Trustee, together with a copy of the related Form UCC-3 with
evidence of filing thereon; and
(ix) the originals of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loan.
J-27
- EXHIBIT 3 TO MORTGAGE LOAN PURCHASE AGREEMENT
- MORTGAGE LOAN SCHEDULE INFORMATION
The Preliminary and Final Mortgage Loan Schedules shall set forth the
following information with respect to each Mortgage Loan:
the loan number of the mortgage loan;
the city, state and zip code of the Mortgage Property;
a code indicating whether the Mortgaged Property is owner-occupied;
the type of Residential Dwelling constituting the Mortgaged Property;
the original months to maturity;
the original date of the mortgage;
the Loan-to-Value Ratio at origination;
the Mortgage Rate;
the date on which the first Monthly Payment was due on the Mortgage
Loan;
the stated maturity date;
the amount of the Monthly Payment at origination;
the amount of the Monthly Payment as of the Cut-off Date;
the last Due Date on which a Monthly Payment was actually applied to
the unpaid Stated Principal Balance;
the original principal amount of the Mortgage Loan;
the Stated Principal Balance of the Mortgage Loan as of the close of
business on the Cut-off Date;
a code indicating the purpose of the Mortgage Loan (i.e., purchase
financing, Rate/Term Refinancing, Cash-Out Refinancing);
a code indicating the documentation style (i.e., full, alternative or
reduced);
[reserved];
the Value of the Mortgaged Property;
J-28
the sale price of the Mortgaged Property, if applicable;
the actual unpaid principal balance of the Mortgage Loan as of the
Cut-off Date;
the Servicing Fee;
[reserved];
with respect to each adjustable-rate Mortgage Loan, the next Interest
Rate Adjustment Date;
with respect to each adjustable-rate Mortgage Loan, the Gross Margin;
with respect to each adjustable-rate Mortgage Loan, the Minimum and
Maximum Mortgage Rate under the terms of the Mortgage Note;
with respect to each adjustable-rate Mortgage Loan, the First Rate
Cap;
with respect to each adjustable-rate Mortgage Loan, the related
Periodic Rate Cap;
with respect to each adjustable-rate Mortgage Loan, whether additional
collateral exists;
with respect to each adjustable-rate Mortgage Loan, whether it is
interest-only; and
with respect to each adjustable-rate Mortgage Loan, the Seller.
Such schedule shall set forth the following information with respect
to the Mortgage Loans in the aggregate as of the Cut-off Date: (1) the number of
Mortgage Loans; (2) the current principal balance of the Mortgage Loans; (3) the
weighted average Mortgage Rate of the Mortgage Loans; and (4) the weighted
average maturity of the Mortgage Loans.
J-29
- EXHIBIT 4 TO MORTGAGE LOAN PURCHASE AGREEMENT
- SELLER'S INFORMATION
All information in the Prospectus Supplement described under the
following Sections: "Summary -- The Mortgage Loans," "Description of the
Mortgage Pool" and "Annex II -- The Mortgage Pool".
J-30
- EXHIBIT 5 TO MORTGAGE LOAN PURCHASE AGREEMENT
- PURCHASER'S INFORMATION
All information in the Prospectus Supplement and the Prospectus,
except the Seller's Information.
J-31
- EXHIBIT 6 TO MORTGAGE LOAN PURCHASE AGREEMENT
- SCHEDULE OF LOST NOTES
[Intentionally Omitted]
J-32
- EXHIBIT 7 TO MORTGAGE LOAN PURCHASE AGREEMENT
REVISED February 07, 0000
XXXXXXXX X - Standard & Poor's Anti-Predatory Lending Categorization
Standard & Poor's has categorized loans governed by anti-predatory lending laws
in the Jurisdictions listed below into three categories based upon a combination
of factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note that
certain loans classified by the relevant statute as Covered are included in
Standard & Poor's High Cost Loan Category because they included thresholds and
tests that are typical of what is generally considered High Cost by the
industry.
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------ --------------------------
Arkansas Arkansas Home Loan Protection Act, High Cost Home Loan
Ark. Code Xxx. Sections 00-00-000
et seq.
Effective July 16, 0000
Xxxxxxxxx Xxxxxxx, XX Ordinance No. 72-2003 (PSH), Mun. Covered Loan
Code Sections 757.01 et seq.
Effective June 2, 2003
Colorado Consumer Equity Protection, Colo. Covered Loan
Stat. Xxx. Sections 5-3.5-101 et
seq.
Effective for covered loans offered
or entered into on or after January
1, 2003. Other provisions of the
Act took effect on June 7, 0000
Xxxxxxxxxxx Xxxxxxxxxxx Abusive Home Loan High Cost Home Loan
Lending Practices Act, Conn. Gen.
Stat. Sections 36a-746 et seq.
Effective October 1, 0000
Xxxxxxxx xx Xxxxxxxx Home Loan Protection Act, D.C. Code Covered Loan
Sections 26-1151.01 et seq.
Effective for loans closed on or
after January 28, 2003
Florida Fair Lending Act, Fla. Stat. Xxx. High Cost Home Loan
Sections
J-33
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------ --------------------------
494.0078 et seq.
Effective October 2, 2002
Georgia (Oct. 1, 0000 Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code High Cost Home Loan
- Mar. 6, 2003) Xxx. Sections 7-6A-1 et seq.
Effective October 1, 2002 - March
6, 2003
Georgia as amended Georgia Fair Lending Act, Ga. Code High Cost Home Loan
(Mar. 7, 2003 - Xxx. Sections 7-6A-1 et seq.
current)
Effective for loans closed on or
after Xxxxx 0, 0000
XXXXX Section 32 Home Ownership and Equity High Cost Loan
Protection Act of 1994, 15 U.S.C.
Section 1639, 12 C.F.R. Sections
226.32 and 226.34
Effective October 1, 1995,
amendments October 1, 2002
Illinois High Risk Home Loan Act, Ill. Comp. High Risk Home Loan
Stat. tit. 815, Sections 137/5 et
seq.
Effective January 1, 2004 (prior to
this date, regulations under
Residential Mortgage License Act
effective from May 14, 2001)
Indiana Indiana Home Loan Practices Act, High Cost Home Loan
Ind. Code Xxx. Sections 24-9-1-1 et
seq.
Effective for loans originated on
or after January 1, 2005.
Kansas Consumer Credit Code, Kan. Stat. High Loan to Value
Xxx. Sections 16a-1-101 et seq. Consumer Loan (id. Section
16a-3-207) and;
Sections 16a-1-301 and 16a-3-207 High APR Consumer Loan
became effective April 14, 1999; (id. Section 16a-3-308a)
Section 16a-3-308a became effective
July 1, 1999
Kentucky 2003 KY H.B. 287 - High Cost Home High Cost Home Loan
Loan Act, Ky. Rev. Stat. Sections
360.100 et
J-34
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------ --------------------------
seq.
Effective June 24, 2003
Maine Truth in Lending, Me. Rev. Stat. High Rate High Fee
tit. 9-A, Sections 8-101 et seq. Mortgage
Effective September 29, 1995 and as
amended from time to time
Massachusetts Part 40 and Part 32, 209 C.M.R. High Cost Home Loan
Sections 32.00 et seq. and 209
C.M.R. Sections 40.01 et seq.
Effective March 22, 2001 and
amended from time to time
Massachusetts Predatory Home Loan High Cost Home Mortgage
Practices Act Mass. Gen. Laws ch. Loan
183C, Sections 1 et seq.
Effective November 7, 2004
Nevada Assembly Xxxx No. 284, Nev. Rev. Home Loan
Stat. Sections 598D.010 et seq.
Effective October 1, 2003
New Jersey New Jersey Home Ownership Security High Cost Home Loan
Act of 2002, N.J. Rev. Stat.
Sections 46:10B-22 et seq.
Effective for loans closed on or
after November 27, 2003
New Mexico Home Loan Protection Act, N.M. Rev. High Cost Home Loan
Stat. Sections 58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of February 26, 2004
New York N.Y. Banking Law Article 6-l High Cost Home Loan
Effective for applications made on
or after April 1, 2003
North Carolina Restrictions and Limitations on High Cost Home Loan
High Cost Home Loans, N.C. Gen.
Stat. Sections 24-1.1E et seq.
J-35
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------ --------------------------
Effective July 1, 2000; amended
October 1, 2003 (adding open-end
lines of credit)
Ohio H.B. 386 (codified in various Covered Loan
sections of the Ohio Code), Ohio
Rev. Code Xxx. Sections 1349.25 et
seq.
Effective May 24, 2002
Oklahoma Consumer Credit Code (codified in Subsection 10 Mortgage
various sections of Title 14A)
Effective July 1, 2000; amended
effective January 1, 2004
South Carolina South Carolina High Cost and High Cost Home Loan
Consumer Home Loans Act, S.C. Code
Xxx. Sections 37-23-10 et seq.
Effective for loans taken on or
after January 1, 0000
Xxxx Xxxxxxxx Xxxx Xxxxxxxx Residential Mortgage West Virginia Mortgage
Lender, Broker and Servicer Act, W. Loan Act Loan
Va. Code Xxx. Sections 31-17-1 et
seq.
Effective June 5, 2002
STANDARD & POOR'S COVERED LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------ --------------------------
Georgia (Oct. 1, 0000 Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Covered Loan
- Mar. 6, 2003) Xxx. Sections 7-6A-1 et seq.
Effective October 1, 2002 - March
6, 0000
Xxx Xxxxxx Xxx Xxxxxx Home Ownership Security Covered Home Loan
Act of 2002, N.J. Rev. Stat.
Sections 46:10B-22 et seq.
J-36
Effective November 27, 2003 - July
5, 2004
STANDARD & POOR'S HOME LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------------------ --------------------------
Georgia (Oct. 1, 0000 Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Home Loan
- Mar. 6, 2003) Xxx. Sections 7-6A-1 et seq.
Effective October 1, 2002 - March
6, 0000
Xxx Xxxxxx Xxx Xxxxxx Home Ownership Security Home Loan
Act of 2002, N.J. Rev. Stat.
Sections 46:10B-22 et seq.
Effective for loans closed on or
after November 27, 2003
New Mexico Home Loan Protection Act, N.M. Rev. Home Loan
Stat. Sections 58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of February 26, 2004
North Carolina Restrictions and Limitations on Consumer Home Loan
High Cost Home Loans, N.C. Gen.
Stat. Sections 24-1.1E et seq.
Effective July 1, 2000; amended
October 1, 2003 (adding open-end
lines of credit)
South Carolina South Carolina High Cost and Consumer Home Loan
Consumer Home Loans Act, S.C. Code
Xxx. Sections 37-23-10 et seq.
Effective for loans taken on or
after January 1, 2004
J-37
- SCHEDULE A TO MORTGAGE LOAN PURCHASE AGREEMENT
- REQUIRED 39RATINGS FOR EACH CLASS OF CERTIFICATES
Offered Certificates
Class Xxxxx'x S&P
----- ------- ---
Class I-A1 Aaa AAA
Class I-A2 Aaa AAA
Class II-A1 Aaa AAA
Class II-A2 Aaa AAA
Class A-R N/R AAA
Class M-1 N/R AA
Class M-2 N/R A
Class M-3 N/R BBB
None of the above ratings has been lowered since the respective dates of such
letters.
J-38
EXHIBIT K
SERVICING CRITERIA TO BE ADDRESSED
IN ASSESSMENT OF COMPLIANCE
(RMBS UNLESS OTHERWISE NOTED)
KEY: X - obligation
WHERE THERE ARE MULTIPLE CHECKS FOR CRITERIA THE ATTESTING PARTY WILL IDENTIFY
IN THEIR MANAGEMENT ASSERTION THAT THEY ARE ATTESTING ONLY TO THE PORTION OF THE
DISTRIBUTION CHAIN THEY ARE RESPONSIBLE FOR IN THE RELATED TRANSACTION
AGREEMENTS. CAPITALIZED TERMS USED HEREIN BUT NOT DEFINED HEREIN SHALL HAVE THE
MEANINGS ASSIGNED TO THEM IN THE POOLING AND SERVICING AGREEMENT, DATED AS OF
MARCH 1, 2006, AMONG XXXXXXX XXXXX MORTGAGE INVESTORS, INC., AS DEPOSITOR, XXXXX
FARGO BANK, N.A., AS MASTER SERVICER AND SECURITIES ADMINISTRATOR AND HSBC BANK
USA, NATIONAL ASSOCIATION, AS TRUSTEE.
REG AB REFERENCE SERVICING CRITERIA SECURITIES ADMINISTRATOR MASTER SERVICER
---------------- ----------------------------------------------------------- ------------------------ ---------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any X X
performance or other triggers and events of default in
accordance with the transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to X X
third parties, policies and procedures are instituted to
monitor the third party's performance and compliance with
such servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain N/A N/A
a back-up servicer for the Pool Assets are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in X
effect on the party participating in the servicing function
throughout the reporting period in the amount of coverage
required by and otherwise in accordance with the terms of
the transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on pool assets are deposited into the appropriate X X
custodial bank accounts and related bank clearing accounts
no more than two business days following receipt, or such
other number of days specified in the transaction
agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an X X
obligor or to an investor are made only by authorized
personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash X
flows or distributions, and any interest or other fees
charged for such advances, are made, reviewed and approved
as specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash X X
reserve accounts or accounts established as a form of over
collateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the
transaction agreements.
K-1
REG AB REFERENCE SERVICING CRITERIA SECURITIES ADMINISTRATOR MASTER SERVICER
---------------- ----------------------------------------------------------- ------------------------ ---------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured X X
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign
financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all X X
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts.
These reconciliations are (A) mathematically accurate; (B)
prepared within 30 calendar days after the bank statement
cutoff date, or such other number of days specified in the
transaction agreements; (C) reviewed and approved by
someone other than the person who prepared the
reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are resolved
within 90 calendar days of their original identification,
or such other number of days specified in the transaction
agreements.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be filed with the X X
Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared
in accordance with timeframes and other terms set forth in
the transaction agreements; (B) provide information
calculated in accordance with the terms specified in the
transaction agreements; (C) are filed with the Commission
as required by its rules and regulations; and (D) agree
with investors' or the trustee's records as to the total
unpaid principal balance and number of Pool Assets serviced
by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in X X
accordance with timeframes, distribution priority and other
terms set forth in the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two X X
business days to the Servicer's investor records, or such
other number of days specified in the transaction
agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports X X
agree with cancelled checks, or other form of payment, or
custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on pool assets is maintained as
required by the transaction agreements or related pool
asset documents.
1122(d)(4)(ii) Pool assets and related documents are safeguarded as
required by the transaction agreements
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any
conditions or requirements in the transaction agreements.
K-2
REG AB REFERENCE SERVICING CRITERIA SECURITIES ADMINISTRATOR MASTER SERVICER
---------------- ----------------------------------------------------------- ------------------------ ---------------
1122(d)(4)(iv) Payments on pool assets, including any payoffs, made in
accordance with the related pool asset documents are posted
to the Servicer's obligor records maintained no more than
two business days after receipt, or such other number of
days specified in the transaction agreements, and allocated
to principal, interest or other items (e.g., escrow) in
accordance with the related pool asset documents.
1122(d)(4)(v) The Servicer's records regarding the pool assets agree with
the Servicer's records with respect to an obligor's unpaid
principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's
pool assets (e.g., loan modifications or re-agings) are
made, reviewed and approved by authorized personnel in
accordance with the transaction agreements and related pool
asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the
transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained
during the period a pool asset is delinquent in accordance
with the transaction agreements. Such records are
maintained on at least a monthly basis, or such other
period specified in the transaction agreements, and
describe the entity's activities in monitoring delinquent
pool assets including, for example, phone calls, letters
and payment rescheduling plans in cases where delinquency
is deemed temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for pool
assets with variable rates are computed based on the
related pool asset documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's pool asset documents, on at
least an annual basis, or such other period specified in
the transaction agreements; (B) interest on such funds is
paid, or credited, to obligors in accordance with
applicable pool asset documents and state laws; and (C)
such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such
other number of days specified in the transaction
agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided
that such support has been received by the servicer at
least 30 calendar days prior to these dates, or such other
number of days specified in the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment
to be made on behalf of an obligor are paid from the
Servicer's funds and not charged to the obligor, unless the
late payment was due to the obligor's error or omission.
K-3
REG AB REFERENCE SERVICING CRITERIA SECURITIES ADMINISTRATOR MASTER SERVICER
---------------- ----------------------------------------------------------- ------------------------ ---------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of days
specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are X
recognized and recorded in accordance with the transaction
agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB,
is maintained as set forth in the transaction agreements.
K-4
EXHIBIT L
XXXXXXXX-XXXXX CERTIFICATION
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Mortgage Investors Trust, Series 2006-A1
I, [identify the certifying individual], certify that:
1. I have reviewed the report on Form 10-K and all reports on Form 10-D required
to be filed in respect of the period covered by this report on Form 10-K of
Xxxxxxx Xxxxx Mortgage Investors Trust, Series 0000-X0 (xxx "Xxxxxxxx Xxx
periodic reports");
2. Based on my knowledge, the Exchange Act periodic reports, taken as a whole,
do not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act periodic reports;
4. [I am responsible for reviewing the activities performed by the servicer(s)
and based on my knowledge and the compliance review(s) conducted in preparing
the servicer compliance statement(s) required in this report under Item 1123 of
Regulation AB, and except as disclosed in the Exchange Act periodic reports, the
servicer(s) [has/have] fulfilled [its/their] obligations under the servicing
agreement(s) in all material respects; and]
5. All of the reports on assessment of compliance with servicing criteria for
ABS and their related attestation reports on assessment of compliance with
servicing criteria for asset-backed securities required to be included in this
report in accordance with Item 1122 of Regulation AB and Exchange Act Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form 10-K.
L-1
[In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties [name of servicer,
sub-servicer, co-servicer, depositor or trustee].]
Date:
-------------------------------
----------------------------------------
[Signature]
----------------------------------------
[Title]
L-2
EXHIBIT M
FORM OF BACK-UP XXXXXXXX-XXXXX CERTIFICATION
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Mortgage Investors Trust, Series 2006-A1
[_______], the [_______] of [_______] (the "Company") hereby certifies to the
Depositor, the Master Servicer and the Securities Administrator, and each of
their officers, directors and affiliates that:
(1) I have reviewed [the servicer compliance statement of the Company provided
in accordance with Item 1123 of Regulation AB (the "Compliance Statement"),] the
report on assessment of the Company's compliance with the Servicing Criteria set
forth in Item 1122(d) of Regulation AB (the "Servicing Criteria"), provided in
accordance with Rules 13a-18 and 15d-18 under the Securities Exchange Act of
1934, as amended (the "Exchange Act") and Item 1122 of Regulation AB (the
"Servicing Assessment"), the registered public accounting firm's attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the "Attestation Report"), and all
servicing reports, officer's certificates and other information relating to the
servicing of the Mortgage Loans by the Company during 200[ ] that were delivered
by the Company to any of the Depositor, the Master Servicer and the Trustee
pursuant to the Agreement (collectively, the "Company Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Company Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information required to
be provided by the Company under the Agreement has been provided to the
Depositor, the Master Servicer and the Securities Administrator;
(4) I am responsible for reviewing the activities performed by [_______] as
[_______] under the [_______] (the "Agreement"), and based on my knowledge [and
the compliance review conducted in preparing the Compliance Statement] and
except as disclosed in [the Compliance Statement,] the Servicing Assessment or
the Attestation Report, the Company has fulfilled its obligations under the
Agreement in all material respects; and
M-1
(5) [The Compliance Statement required to be delivered by the Company pursuant
to the Agreement, and] [The] [the] Servicing Assessment and Attestation Report
required to be provided by the Company and [by any Subservicer or Subcontractor]
pursuant to the Agreement, have been provided to the Depositor, the Master
Servicer and the Securities Administrator. Any material instances of
noncompliance described in such reports have been disclosed to the Depositor,
the Master Servicer and the Securities Administrator. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such reports.
Capitalized terms used but not defined herein have the meanings ascribed to them
in the Pooling and Servicing Agreement, dated as of March 1, 2006, among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor"), Xxxxx Fargo
Bank, N.A., as master servicer (in such capacity, the "Master Servicer") and
securities administrator (in such capacity, the "Securities Administrator") and
HSBC Bank USA, National Association, as trustee (the "Trustee").
[_________]
as [_______]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
M-2
EXHIBIT N
[RESERVED]
N-1
EXHIBIT O
ADDITIONAL DISCLOSURE NOTIFICATION
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
RE: Xxxxxxx Xxxxx Mortgage Investors Trust, Series 2006-A1
**Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section 3.18(b) of the Pooling and Servicing Agreement, dated
as of March 1, 2006, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor,
Xxxxx Fargo Bank, N.A., as master servicer and securities administrator and HSBC
Bank USA, National Association, as trustee, the undersigned, as [ ], hereby
notifies you that certain events have come to our attention that [will] [may]
need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to [_______],
phone number: [_______]; email address: [_______].
[NAME OF PARTY],
as [role]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
O-1
EXHIBIT P
FORM OF ITEM 1123 CERTIFICATION OF SERVICER
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Mortgage Investors Trust, Series 2006-A1 Mortgage Pass-Through
Certificates
I, [identify name of certifying individual], [title of certifying individual] of
[name of servicing company] (the "Servicer"), hereby certify that:
(1) A review of the activities of the Servicer during the preceding calendar
year and of the performance of the Servicer under the [related servicing
agreement] (the "Servicing Agreement") has been made under my supervision; and
(2) To the best of my knowledge, based on such review, the Servicer has
fulfilled all its obligations under the related Servicing Agreement in all
material respects throughout such year or a portion thereof[, or, if there has
been a failure to fulfill any such obligation in any material respect, I have
specified below each such failure known to me and the nature and status
thereof].
Date:
-------------------------------
[Servicer]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
P-1
EXHIBIT Q-1
ADDITIONAL FORM 10-D DISCLOSURE
ADDITIONAL FORM 10-D DISCLOSURE
ITEM ON FORM 10-D PARTY RESPONSIBLE
----------------- -----------------
ITEM 1: DISTRIBUTION AND POOL PERFORMANCE INFORMATION
Information included in the [Monthly Statement] Master Servicer
Servicer
Securities Administrator
Any information required by 1121 which is NOT Depositor
included on the [Monthly Statement]
ITEM 2: LEGAL PROCEEDINGS
Any legal proceeding pending against the following
entities or their respective property, that is
material to Certificateholders, including any
proceeding known to be contemplated by governmental
authorities:
- Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities Administrator and
Depositor
- Sponsor (Seller) Seller (if a party to the Pooling and Servicing
Agreement) or Depositor
- Depositor Depositor
- Trustee Trustee
- Securities Administrator Securities Administrator
- Master Servicer Master Servicer
- Custodian Custodian
- 1110(b) Originator Depositor
- Any 1108(a)(2) Servicer (other than the Master Servicer
Servicer or Securities Administrator)
- Any other party contemplated by 1100(d)(1) Depositor
ITEM 3: SALE OF SECURITIES AND USE OF PROCEEDS Depositor
Information from Item 2(a) of Part II of Form 10-Q:
With respect to any sale of securities by the
sponsor, depositor or issuing entity, that are backed
by the same asset pool or are otherwise issued by the
issuing entity, whether or not registered, provide
the sales and use of proceeds information in Item 701
of Regulation S-K. Pricing information can be omitted
if securities were not registered.
Q-1-1
ADDITIONAL FORM 10-D DISCLOSURE
ITEM ON FORM 10-D PARTY RESPONSIBLE
----------------- -----------------
ITEM 4: DEFAULTS UPON SENIOR SECURITIES Securities Administrator
Trustee
Information from Item 3 of Part II of Form 10-Q:
Report the occurrence of any Event of Default (after
expiration of any grace period and provision of any
required notice)
ITEM 5: SUBMISSION OF MATTERS TO A VOTE OF SECURITY Securities Administrator
HOLDERS Trustee
Information from Item 4 of Part II of Form 10-Q
ITEM 6: SIGNIFICANT OBLIGORS OF POOL ASSETS Depositor
Item 1112(b) - Significant Obligor Financial
Information*
* This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Item.
ITEM 7: SIGNIFICANT ENHANCEMENT PROVIDER INFORMATION
Item 1114(b)(2) - Credit Enhancement Provider
Financial Information*
- Determining applicable disclosure threshold Depositor
- Requesting required financial information Depositor
(including any required accountants' consent to
the use thereof) or effecting incorporation by
reference
Item 1115(b) - Derivative Counterparty Financial
Information*
- Determining current maximum probable exposure Depositor
- Determining current significance percentage Depositor
- Requesting required financial information Depositor
(including any required accountants' consent to
the use thereof) or effecting incorporation by
reference
* This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Items.
Q-1-2
ADDITIONAL FORM 10-D DISCLOSURE
ITEM ON FORM 10-D PARTY RESPONSIBLE
----------------- -----------------
ITEM 8: OTHER INFORMATION Any party responsible for the applicable Form 8-K
Disclosure item
Disclose any information required to be reported on
Form 8-K during the period covered by the Form 10-D
but not reported
ITEM 9: EXHIBITS
Monthly Statement to Certificateholders Securities Administrator
Exhibits required by Item 601 of Regulation S-K, such Depositor
as material agreements
Q-1-3
EXHIBIT Q-2
ADDITIONAL FORM 10-K DISCLOSURE
ADDITIONAL FORM 10-K DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-K PARTY RESPONSIBLE
---------------------------------------- -------------------------------------
ITEM 1B: UNRESOLVED STAFF COMMENTS Depositor
ITEM 9B: OTHER INFORMATION Any party responsible for
Disclose any information required to be disclosure items on Form 8-K
reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not
reported
ITEM 15: EXHIBITS, FINANCIAL STATEMENT Securities Administrator
SCHEDULES Depositor
REG AB ITEM 1112(B): SIGNIFICANT
OBLIGORS OF POOL ASSETS
Significant Obligor Financial Depositor
Information*
* This information need only be
reported on the Form 10-K if
updated information is required
pursuant to the Item.
REG AB ITEM 1114(B)(2): CREDIT
ENHANCEMENT PROVIDER FINANCIAL
INFORMATION
- Determining applicable disclosure
threshold Depositor
- Requesting required financial
information (including Depositor
any required accountants' consent
to the use thereof) or effecting
incorporation by reference
* This information need only be
reported on the Form 10-K if
updated information is required
pursuant to the Item.
REG AB ITEM 1115(B): DERIVATIVE
COUNTERPARTY FINANCIAL INFORMATION
- Determining current maximum Depositor
probable exposure
- Determining current significance Depositor
percentage
- Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation
by reference
* This information need only be
reported on the Form 10-K if
updated information is required
pursuant to the Item.
REG AB ITEM 1117: LEGAL PROCEEDINGS
Any legal proceeding pending against the
following entities or their respective
property, that is material to
Certificateholders, including any
proceeding known to be contemplated by
Q-2-1
ADDITIONAL FORM 10-K DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-K PARTY RESPONSIBLE
---------------------------------------- -------------------------------------
governmental authorities:
- Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities
Administrator and Depositor
- Sponsor (Seller) Seller (if a party to the Pooling and
Servicing Agreement) or Depositor
- Depositor Depositor
- Trustee Trustee
- Securities Administrator Securities Administrator
- Master Servicer Master Servicer
- Custodian Custodian
- 1110(b) Originator Depositor
- Any 1108(a)(2) Servicer (other than Servicer
the Master Servicer or Securities
Administrator)
- Any other party contemplated by Depositor
1100(d)(1)
REG AB ITEM 1119: AFFILIATIONS AND
RELATIONSHIPS
Whether (a) the Sponsor (Seller),
Depositor or Issuing Depositor as to (a)
Entity is an affiliate of the following
parties, and (b) Sponsor/Seller as to
(a) to the extent known and material,
any of the following parties are
affiliated with one another:
- Master Servicer Master Servicer
- Securities Administrator Securities Administrator
- Trustee Trustee
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
- Any 1114 Credit Enhancement Depositor/Sponsor
Provider
- Any 1115 Derivate Counterparty Depositor/Sponsor
Provider
- Any other 1101(d)(1) material party Depositor/Sponsor
Whether there are any "outside the Depositor as to (a)
ordinary course business arrangements" Sponsor/Seller as to (a)
other than would be obtained in an arm's
length transaction between (a) the
Sponsor (Seller), Depositor or Issuing
Entity on the one hand, and (b) any of
the following parties (or their
affiliates) on the other hand, that
exist currently or within the past two
years and that are material to a
Certificateholder's understanding of the
Certificates:
- Master Servicer Master Servicer
- Securities Administrator Securities Administrator
- Trustee Depositor
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
Q-2-2
ADDITIONAL FORM 10-K DISCLOSURE
--------------------------------------------------------------------------------
ITEM ON FORM 10-K PARTY RESPONSIBLE
---------------------------------------- -------------------------------------
- Any 1114 Credit Enhancement Depositor/Sponsor
Provider
- Any 1115 Derivate Counterparty Depositor/Sponsor
Provider
- Any other 1101(d)(1) material party Depositor/Sponsor
Whether there are any specific Depositor as to (a)
relationships involving the transaction Sponsor/Seller as to (a)
or the pool assets between (a) the
Sponsor (Seller), Depositor or Issuing
Entity on the one hand, and (b) any of
the following parties (or their
affiliates) on the other hand, that
exist currently or within the past two
years and that are material:
- Master Servicer Master Servicer
- Securities Administrator Securities Administrator
- Trustee Depositor
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
- Any 1114 Credit Enhancement Depositor/Sponsor
Provider
- Any 1115 Derivate Counterparty Depositor/Sponsor
Provider
- Any other 1101(d)(1) material party Depositor/Sponsor
Q-2-3
EXHIBIT Q-3
FORM 8-K DISCLOSURE INFORMATION
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
---------------------------------------- -------------------------------------
ITEM 1.01- ENTRY INTO A MATERIAL All parties
DEFINITIVE AGREEMENT
Disclosure is required regarding entry
into or amendment of any definitive
agreement that is material to the
securitization, even if depositor is not
a party.
Examples: servicing agreement, custodial
agreement.
Note: disclosure not required as to
definitive agreements that are fully
disclosed in the prospectus
ITEM 1.02- TERMINATION OF A MATERIAL All parties
DEFINITIVE AGREEMENT
Disclosure is required regarding
termination of any definitive agreement
that is material to the securitization
(other than expiration in accordance
with its terms), even if depositor is
not a party.
Examples: servicing agreement, custodial
agreement.
ITEM 1.03- BANKRUPTCY OR RECEIVERSHIP Depositor
Disclosure is required regarding the
bankruptcy or receivership, with respect
to any of the following:
- Sponsor (Seller) Depositor/Sponsor (Seller)
- Depositor Depositor
- Master Servicer Master Servicer
- Affiliated Servicer Servicer
- Other Servicer servicing 20% or Servicer
more of the pool assets at the time
of the report
- Other material servicers Servicer
- Trustee Trustee
- Securities Administrator Securities Administrator
- Significant Obligor Depositor
- Credit Enhancer (10% or more) Depositor
- Derivative Counterparty Depositor
- Custodian Custodian
Q-3-1
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
---------------------------------------- -------------------------------------
ITEM 2.04- TRIGGERING EVENTS THAT Depositor
ACCELERATE OR INCREASE A DIRECT Master Servicer
FINANCIAL OBLIGATION OR AN Securities Administrator
OBLIGATION UNDER AN
OFF-BALANCE SHEET ARRANGEMENT
Includes an early amortization,
performance trigger or other event,
including event of default, that would
materially alter the payment
priority/distribution of cash
flows/amortization schedule.
Disclosure will be made of events other
than waterfall triggers which are
disclosed in the monthly statements to
the certificateholders.
ITEM 3.03- MATERIAL MODIFICATION TO Securities Administrator
RIGHTS OF SECURITY HOLDERS Trustee
Depositor
Disclosure is required of any material
modification to documents defining the
rights of Certificateholders, including
the Pooling and Servicing Agreement.
ITEM 5.03- AMENDMENTS OF ARTICLES OF Depositor
INCORPORATION OR BYLAWS; CHANGE
OF FISCAL YEAR
Disclosure is required of any amendment
"to the governing documents of the
issuing entity".
ITEM 6.01- ABS INFORMATIONAL AND Depositor
COMPUTATIONAL MATERIAL
ITEM 6.02- CHANGE OF SERVICER OR Master Servicer/Securities
SECURITIES ADMINISTRATOR Administrator/Depositor/
Servicer/Trustee
Requires disclosure of any removal,
replacement, substitution or addition of
any master servicer, affiliated
servicer, other servicer servicing 10%
or more of pool assets at time of
report, other material servicers or
trustee.
Reg AB disclosure about any new servicer Servicer/Master Servicer/Depositor
or master servicer is also required.
Reg AB disclosure about any new Trustee Trustee
is also required.
ITEM 6.03- CHANGE IN CREDIT Depositor/Securities Administrator
ENHANCEMENT OR EXTERNAL SUPPORT
Covers termination of any enhancement in
manner other than by its terms, the
addition of an enhancement, or a
material change in the enhancement
provided. Applies to external credit
enhancements as well as derivatives.
Q-3-2
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------
ITEM ON FORM 8-K PARTY RESPONSIBLE
---------------------------------------- -------------------------------------
Reg AB disclosure about any new Depositor
enhancement provider is also
required.
ITEM 6.04- FAILURE TO MAKE A Securities Administrator
REQUIRED DISTRIBUTION Trustee
ITEM 6.05- SECURITIES ACT Depositor
UPDATING DISCLOSURE
If any material pool characteristic
differs by 5% or more at the time of
issuance of the securities from the
description in the final prospectus,
provide updated Reg AB disclosure about
the actual asset pool.
If there are any new servicers or Depositor
originators required to be
disclosed under Regulation AB as a
result of the foregoing, provide the
information called for in Items 1108 and
1110 respectively.
ITEM 7.01- REG FD DISCLOSURE All parties
ITEM 8.01- OTHER EVENTS Depositor
Any event, with respect to which
information is not otherwise called for
in Form 8-K, that the registrant deems
of importance to certificateholders.
ITEM 9.01- FINANCIAL STATEMENTS Responsible party for reporting/
AND EXHIBITS disclosing the financial
statement or exhibit
Q-3-3
