XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
Depositor
XXXXX FARGO BANK, N.A.
Master Servicer and Securities Administrator
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2005
---------------------------------
Mortgage Pass-Through Certificates, MLMI Series 2005-A2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Definitions..................................................................................2
Section 1.02 Accounting..................................................................................32
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans to Trustee.....................................................33
Section 2.02 Acceptance of Mortgage Loans by Trustee.....................................................36
Section 2.03 Assignment of Interest in the Assignment, Assumption and Recognition Agreement..............39
Section 2.04 Substitution of Mortgage Loans..............................................................40
Section 2.05 Issuance of Certificates....................................................................41
Section 2.06 Representations and Warranties Concerning the Depositor.....................................41
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicer.............................................................................43
Section 3.02 REMIC-Related Covenants.....................................................................44
Section 3.03 Monitoring of Servicer......................................................................44
Section 3.04 Fidelity Bond...............................................................................45
Section 3.05 Power to Act; Procedures....................................................................45
Section 3.06 Due-on-Sale Clauses; Assumption Agreements..................................................46
Section 3.07 Release of Mortgage Files...................................................................46
Section 3.08 Documents, Records and Funds in Possession of Master Servicer To Be Held for Trustee........47
Section 3.09 Standard Hazard Insurance and Flood Insurance Policies......................................48
Section 3.10 Presentment of Claims and Collection of Proceeds............................................48
Section 3.11 Maintenance of the Primary Mortgage Insurance Policies......................................49
Section 3.12 Trustee to Retain Possession of Certain Insurance Policies and Documents....................49
Section 3.13 Realization Upon Defaulted Mortgage Loans...................................................49
Section 3.14 Compensation for the Master Servicer........................................................50
Section 3.15 REO Property................................................................................50
Section 3.16 Annual Officer's Certificate as to Compliance...............................................50
Section 3.17 Annual Independent Accountant's Servicing Report............................................51
Section 3.18 Reports Filed with Securities and Exchange Commission.......................................52
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ARTICLE IV
ACCOUNTS
Section 4.01 Protected Accounts..........................................................................54
Section 4.02 Master Servicer Collection Account..........................................................55
Section 4.03 Permitted Withdrawals and Transfers from the Master Servicer Collection Account.............56
Section 4.04 Distribution Account........................................................................57
Section 4.05 Permitted Withdrawals and Transfers from the Distribution Account...........................57
ARTICLE V
CERTIFICATES
Section 5.01 The Certificates............................................................................60
Section 5.02 Registration of Transfer and Exchange of Certificates.......................................60
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates...........................................66
Section 5.04 Persons Deemed Owners.......................................................................66
ARTICLE VI
Payments to Certificateholders
Section 6.01 Distributions on the Certificates...........................................................68
Section 6.02 Allocation of Losses........................................................................69
Section 6.03 Payments....................................................................................71
Section 6.04 Statements to Certificateholders............................................................71
Section 6.05 Monthly Advances............................................................................73
Section 6.06 Compensating Interest Payments..............................................................74
ARTICLE VII
THE MASTER SERVICER AND THE DEPOSITOR
Section 7.01 Liabilities of the Master Servicer..........................................................75
Section 7.02 Merger or Consolidation of the Master Servicer..............................................75
Section 7.03 Indemnification from the Master Servicer and the Depositor..................................75
Section 7.04 Limitations on Liability of the Master Servicer and Others..................................75
Section 7.05 Master Servicer Not to Resign...............................................................77
Section 7.06 Successor Master Servicer...................................................................77
Section 7.07 Sale and Assignment of Master Servicing.....................................................77
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default...........................................................................78
Section 8.02 Trustee to Act; Appointment of Successor....................................................79
Section 8.03 Notification to Certificateholders..........................................................80
Section 8.04 Waiver of Defaults..........................................................................80
Section 8.05 List of Certificateholders..................................................................81
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ARTICLE IX
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee...........................................................................82
Section 9.02 Certain Matters Affecting the Trustee and the Securities Administrator......................84
Section 9.03 Trustee and Securities Administrator Not Liable for Certificates or Mortgage Loans..........85
Section 9.04 Trustee and Securities Administrator May Own Certificates...................................86
Section 9.05 Trustee's and Securities Administrator's Fees and Expenses..................................86
Section 9.06 Eligibility Requirements for Trustee and Securities Administrator...........................87
Section 9.07 Insurance...................................................................................87
Section 9.08 Resignation and Removal of the Trustee and Securities Administrator.........................88
Section 9.09 Successor Trustee and Successor Securities Administrator....................................88
Section 9.10 Merger or Consolidation of Trustee or Securities Administrator..............................89
Section 9.11 Appointment of Co-Trustee or Separate Trustee...............................................89
Section 9.12 Federal Information Returns and Reports to Certificateholders; REMIC Administration.........90
ARTICLE X
TERMINATION
Section 10.01 Termination.................................................................................93
Section 10.02 Additional Termination Requirements.........................................................94
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Intent of Parties...........................................................................96
Section 11.02 Amendment...................................................................................96
Section 11.03 Recordation of Agreement....................................................................97
Section 11.04 Limitation on Rights of Certificateholders..................................................97
Section 11.05 Acts of Certificateholders..................................................................98
Section 11.06 Governing Law...............................................................................99
Section 11.07 Notices.....................................................................................99
Section 11.08 Severability of Provisions.................................................................100
Section 11.09 Successors and Assigns.....................................................................100
Section 11.10 Article and Section Headings...............................................................100
Section 11.11 Counterparts...............................................................................100
Section 11.12 Notice to Rating Agencies..................................................................100
Section 11.13 Third Party Beneficiary....................................................................100
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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 R Certificates
Exhibit B - Mortgage Loan Schedule
Exhibit C - [Reserved]
Exhibit D - Request for Release of Documents
Exhibit E-1 - Form of Transfer Affidavit pursuant to Section 860E(e)(4)
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 - Servicing Agreement
Exhibit I - Assignment, Assumption and Recognition Agreement
Exhibit J - [Reserved]
Exhibit K - Form Certification to be Provided by the Master Servicer
with Form 10-K
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POOLING AND SERVICING AGREEMENT
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This Pooling and Servicing Agreement is dated as of February 1, 2005
(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 WACHOVIA BANK, NATIONAL ASSOCIATION, as trustee
(the "Trustee").
PRELIMINARY STATEMENT
The Depositor intends to sell mortgage pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple Classes,
which in the aggregate will evidence the entire beneficial ownership interest in
the Mortgage Loans (as defined herein). As provided herein, the Trustee will
make, in accordance with Section 9.12, an election to treat the entire
segregated pool of assets described in the definition of REMIC Trust (as defined
herein), and subject to this Agreement, as a real estate mortgage investment
conduit (a "REMIC") for federal income tax purposes. The Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class A-6, Class X-0, Xxxxx X-0, Class M-1,
Class M-2, Class M-3, Class B-1, Class B-2 and Class B-3 Certificates will be
"regular interests" in the REMIC Trust, and the Class R Certificates will be the
sole class of "residual interests" therein for purposes of the REMIC Provisions
(as defined herein) under federal income tax law.
The following table sets forth (or describes) the Class designation,
the initial Pass-Through Rate, Original Class Certificate Balance, and the
Assumed Final Maturity Date for each Class of Certificates comprising the
interests in the Trust Fund created hereunder:
ORIGINAL
CLASS CERTIFICATE ASSUMED FINAL
CLASS BALANCE(1) INITIAL PASS-THROUGH RATE MATURITY DATES
----- ---------- ------------------------- --------------
A-1 $ 230,000,000.00 Variable(2) January 25, 2035
A-2 $ 533,717,000.00 Variable(2) January 25, 2035
A-3 $ 19,931,000.00 Variable(2) January 25, 2035
A-4 $ 88,258,000.00 Variable(2) January 25, 2035
A-5 $ 41,048,000.00 Variable(2) January 25, 2035
A-6 $ 25,000,000.00 Variable(2) January 25, 2035
A-7 $ 13,813,000.00 Variable(2) January 25, 2035
A-8 $ 1,533,000.00 Variable(2) January 25, 2035
M-1 $ 18,295,000.00 Variable(2) January 25, 2035
M-2 $ 6,427,000.00 Variable(2) January 25, 2035
M-3 $ 3,461,000.00 Variable(2) January 25, 2035
B-1 $ 3,461,000.00 Variable(2) January 25, 2035
B-2 $ 2,472,000.00 Variable(2) January 25, 2035
B-3 $ 1,484,952.41 Variable(2) January 25, 2035
R N/A N/A January 25, 2035
(1) These balances are approximate and are subject to an increase or decrease
of up to 5%.
(2) Interest will accrue on the Class X-0, Xxxxx X-0, Class A-3, Class A-4,
Class A-5, Class A-6, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class
M-3, Class B-1, Class B-2 and Class B-3 Certificates based upon the
weighted average of the net mortgage rates on the Mortgage Loans.
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ARTICLE I
DEFINITIONS
Section 1.01 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 Servicing Agreement, to the extent applicable to the
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.
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 Servicer or Master Servicer with a payment of
Compensating Interest as provided in Section 6.06), (ii) the interest portion of
Excess 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.
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 Trustee may
conclusively presume that a Person is not an Affiliate of another Person unless
a Responsible Officer of the Trustee has actual knowledge to the contrary.
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 Fitch or S&P. For any short-term deposit or
security, or a rating of F-l+ in the case of Fitch or A-1+ in the case of S&P.
APPLICABLE CREDIT SUPPORT PERCENTAGE: With respect to any Class of
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.
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APPLICABLE STATE LAW: For purposes of Section 9.12(d), the Applicable
State Law shall be (a) the law of the State of New York and (b) such other state
law whose applicability shall have been brought to the attention of the
Securities Administrator and the Trustee by either (i) an Opinion of Counsel
reasonably acceptable to the Securities Administrator and the Trustee delivered
to it by the Master Servicer or the Depositor, or (ii) written notice from the
appropriate taxing authority as to the applicability of such state law.
APPRAISED VALUE: With respect to any Mortgaged Property or Cooperative
Unit, as applicable, the lesser of (i) the value thereof as determined by an
appraisal made for the originator of the Mortgage Loan at the time of
origination of the Mortgage Loan by an appraiser who met the minimum
requirements of the Originator's Underwriting Guidelines, and (ii) the purchase
price paid for the related Mortgaged Property or Cooperative Unit, as
applicable, by the Mortgagor with the proceeds of the Mortgage Loan, provided,
however, in the case of a Refinanced Mortgage Loan, such value of the Mortgaged
Property or Cooperative Unit, as applicable, is based solely upon the value
determined by an appraisal made for the originator of such Refinanced Mortgage
Loan at the time of origination of such Refinanced Mortgage Loan by an appraiser
who met the minimum requirements under the Originator's Underwriting Guidelines.
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, ASSUMPTION AND RECOGNITION AGREEMENT: Shall mean the
Assignment, Assumption and Recognition Agreement (attached hereto as Exhibit I),
dated as of February 28, 2005, among the Seller, the Depositor, the Originator
and Xxxxxxx Xxxxx Bank USA pursuant to which (i) the Mortgage Loans were sold to
the Depositor and (ii) the Washington Mutual Servicing Agreement and the
modifications thereto in the Warranty Xxxx of Sale and the rights of the Seller
thereunder were assigned to the Depositor for the benefit of the
Certificateholders.
ASSUMED FINAL DISTRIBUTION DATE: For all Classes of Certificates,
February 25, 2035, or if such day is not a Business Day, the next succeeding
Business Day.
AVAILABLE FUNDS: With respect to any Distribution Date and the 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 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 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 Servicer
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or the Master Servicer for such Distribution Date, over (ii) the sum of (a)
related amounts reimbursable or payable to the Servicer or the Master Servicer
pursuant to Sections 4.03 and 4.05, (b) related Stayed Funds, (c) related
amounts deposited in the Master Servicer Collection Account or the Distribution
Account, as the case may be, in error and (d) any Extraordinary Trust Fund
Expenses.
AVERAGE LOSS SEVERITY: With respect to any period, the fraction
obtained by dividing (x) the aggregate amount of Realized Losses for the
Mortgage Loans for such period by (y) the number of related Mortgage Loans which
had Realized Losses for such period.
BANKRUPTCY CODE: The United States Bankruptcy Code, as amended as
codified in 11 U.S.C. xx.xx. 101-1330.
BANKRUPTCY LOSS COVERAGE AMOUNT: As of any date of determination prior
to the first anniversary of the Cut-off Date, an amount equal to the excess, if
any, of (A) $146,454 over (B) the aggregate amount of Bankruptcy Losses
allocated solely to one or more specific Classes of Certificates in accordance
with Section 6.02. As of any date of determination on or after the first
anniversary of the Cut-off Date, an amount equal to the excess, if any, of (1)
the lesser of (a) the Bankruptcy Loss Coverage Amount calculated as of the close
of business on the Business Day immediately preceding the most recent
anniversary of the Cut-off Date coinciding with or preceding such date of
determination (or, if such date of determination is an anniversary of the
Cut-off Date, the Business Day immediately preceding such date of determination)
(for purposes of this definition, the "Relevant Anniversary") and (b) the
greater of
(A) the greater of (i) 0.0006 times the aggregate
principal balance of all the Mortgage Loans in the Mortgage Pool as of
the Relevant Anniversary having a Loan-to-Value Ratio at origination
which exceeds 75% and (ii) $100,000; and (B) the greater of (i) the
product of (x) an amount equal to the largest difference in the related
Monthly Payment for any Non-Primary Residence Loan remaining in the
Mortgage Pool which had an original Loan-to-Value Ratio greater than
80% that would result if the Net Mortgage Rate thereof was equal to the
greater of (I) 5% or (II) the weighted average (based on the principal
balance of the Mortgage Loans as of the Relevant Anniversary) of the
Net Mortgage Rates of all Mortgage Loans as of the Relevant Anniversary
less 1.25% per annum, (y) a number equal to the weighted average
remaining term to maturity, in months, of all Mortgage Loans with a
Loan-to-Value Ratio of greater than 80% remaining in the Mortgage Pool
as of the Relevant Anniversary, and (z) one plus the quotient of the
number of all Non-Primary Residence Loans with a Loan-to-Value Ratio of
greater than 80% remaining in the Mortgage Pool divided by the total
number of outstanding Mortgage Loans in the Mortgage Pool as of the
Relevant Anniversary, and (ii) $50,000,
over (2) the aggregate amount of Bankruptcy Losses allocated solely to
one or more specific Classes of Certificates in accordance with Section
6.02 since the Relevant Anniversary.
The Bankruptcy Loss Coverage Amount may be further reduced by
the Depositor (including accelerating the manner in which such coverage is
reduced) provided that prior to any
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such reduction, the Depositor shall (i) obtain written confirmation from each
Rating Agency that such reduction shall not reduce the rating assigned to any
Class of Certificates by such Rating Agency below the lower of the then-current
rating or the rating assigned to such Certificates as of the Closing Date by
such Rating Agency and (ii) provide a copy of such written confirmation to the
Trustee.
BANKRUPTCY LOSS: With respect to any Mortgage Loan, any Deficient
Valuation or Debt Service Reduction related to such Mortgage Loan as reported by
the Servicer to the Master Servicer.
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 R Certificates 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, the 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
Trustee.
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 a Class R
Certificate for any purpose hereof.
CERTIFICATE OWNER: With respect to each Book-Entry Certificate, any
beneficial owner thereof.
CERTIFICATE REGISTER AND CERTIFICATE REGISTRAR: The register maintained
and registrar appointed pursuant to Section 5.02 hereof.
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 A CERTIFICATE: Any of the Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class A-6, Class A-7 and Class A-8 Certificates as designated on
the face thereof substantially in the form annexed hereto as Exhibit A-1,
executed by the Trustee and authenticated and delivered by the Trustee,
representing the right to distributions as set forth herein and therein.
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
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by the Trustee and authenticated and delivered by the Trustee, 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, in the
case of a Subordinate Certificate, 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 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. The
Class R Certificates shall not have Class Certificate Balances.
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
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by the Trustee and authenticated and delivered by the Trustee, 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 R CERTIFICATES: The Class R Certificates executed, authenticated
and delivered by the Trustee substantially in the form annexed hereto as Exhibit
A-3 and evidencing the ownership of an interest designated as a Residual
Interest.
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: February 28, 2005.
CODE: The Internal Revenue Code of 1986, as amended.
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.
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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 PROJECT: All real property owned by a Cooperative including
the land, separate dwelling units and all common elements.
COOPERATIVE UNIT: Means a specific unit in a Cooperative Project.
CORPORATE TRUST OFFICE: 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 Wachovia Bank, National
Association, 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, XX 00000-0000,
Attention: Corporate Trust Group - Xxxxxxx Xxxxx Mortgage Investors, Inc., MLMI
Series 2005-A2, 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.
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 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: February 1, 2005.
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.
-8-
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 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 Servicing Agreement.
DISQUALIFIED ORGANIZATION: Any of the following: (i) the United States,
any State or political subdivision thereof, any possession of the United States,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for Xxxxxxx Mac or any successor thereto, a majority of its
board of directors is not selected by such governmental unit), (ii) any foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of the Code or (v) any
other Person so designated by the Trustee based upon an Opinion of Counsel that
the holding of an ownership interest in a Residual Certificate by such Person
may cause the REMIC Trust contained in the Trust or any Person having an
ownership interest in the Residual Certificate (other than such Person) to incur
a liability for any federal tax imposed under the Code that would not otherwise
be imposed but for the transfer of an ownership interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
DISTRIBUTION ACCOUNT: The trust account or accounts created and
maintained pursuant to Section 4.04, which shall be denominated "Wachovia Bank,
National Association, as Trustee f/b/o holders of Xxxxxxx Xxxxx Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, MLMI Series 2005-A2 -
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 the month
immediately following the month of the Closing Date, or, if such 25th day is not
a Business Day, the Business Day immediately following.
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DTC CUSTODIAN: Wachovia Bank, National Association, or its successors
in interest as custodian for the Depository.
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 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) an account or accounts maintained with
Servicer, unless and until the Servicer's ratings for short-term unsecured debt
obligations are less than A-2 by S&P or A- by Moody's, (ii) 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
Moody's 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 Trustee 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, (iii) 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 (iv) 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 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-RESTRICTED CERTIFICATES: Any of the Class B-1, Class B-2, Class
B-3 and Class R Certificates.
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.
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EXCESS LOSSES: (i) Special Hazard Losses in excess of the Special
Hazard Loss Coverage Amount, (ii) Bankruptcy Losses in excess of the Bankruptcy
Loss Coverage Amount, (iii) Fraud Losses in excess of the Fraud Loss Amount and
(iv) Extraordinary Losses.
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 or be in whole or in part caused by, contributed to or
aggravated by a peril covered by the definition of the term "Special
Hazard Loss";
(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 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
Trustee, 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.
FRAUD LOSS AMOUNT: Initially, approximately $989,010. As of any date of
determination after the Cut-off Date, the Fraud Loss Amount shall equal: (X)
prior to the second anniversary of the Cut-off Date, (1) the lesser of (a) the
Fraud Loss Amount as of the Cut-off Date and (b)
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1.00% of the aggregate principal balance of all of the Mortgage Loans as of the
Cut-off Date minus (2) the aggregate amounts allocated through Subordination
with respect to Fraud Losses as of the Cut-off Date up to such date of
determination and (Y) from the third to the fifth anniversary of the Cut-off
Date, (1) the lesser of (a) the Fraud Loss Amount as of the most recent
anniversary of the Cut-off Date and (b) 0.50% of the aggregate principal balance
of all of the Mortgage Loans as of the most recent anniversary of the Cut-off
Date minus (2) the aggregate amounts allocated through Subordination with
respect to Fraud Losses since the most recent anniversary of the Cut-off Date up
to such date of determination. On and after the fifth anniversary of the Cut-off
Date, the Fraud Loss Amount shall be zero and Fraud Losses shall not be
allocated through Subordination.
The Fraud Loss Amount may be further reduced by the Depositor
(including accelerating the manner in which such coverage is reduced) provided
that prior to any such reduction, the Depositor shall (i) obtain written
confirmation from each Rating Agency that such reduction shall not reduce the
rating assigned to any Class of Certificates by such Rating Agency below the
lower of the then-current rating or the rating assigned to such Certificates as
of the Closing Date by such Rating Agency and (ii) provide a copy of such
written confirmation to the Trustee.
FRAUD LOSSES: Losses sustained on a Liquidated Mortgage Loan by reason
of a default arising from fraud, dishonesty or misrepresentation as reported by
the Servicer to the Master Servicer.
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).
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.
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
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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 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: 1.85% Class B-1: 0.35%
Class M-2: 0.65% Class B-2: 0.25%
Class M-3: 0.35% Class B-3: 0.15%
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.
LIQUIDATED MORTGAGE LOAN: Any defaulted Mortgage Loan as to which the
Servicer has determined that all amounts it expects to recover from or on
account of such Mortgage Loan have been recovered.
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LIQUIDATION DATE: With respect to any Liquidated Mortgage Loan, the
date on which the 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 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: Amounts, other than Insurance Proceeds and
condemnation proceeds, received in connection with the liquidation of a
defaulted Mortgage Loan, whether through trustee's sale, foreclosure sale or
otherwise.
LOAN-TO-VALUE RATIO: With respect to any Mortgage Loan as of any date
of determination, the ratio on such date of the Outstanding Principal Balance of
the Mortgage Loan, to the Appraised Value of the Mortgaged Property.
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.
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.
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 this Agreement.
MASTER SERVICER COLLECTION ACCOUNT: The trust account or accounts
created and maintained pursuant to Section 4.02, which shall be denominated
"Wachovia Bank, National Association, as Trustee f/b/o holders of Xxxxxxx Xxxxx
Mortgage Investors, Inc., Mortgage Pass-Through Certificates, MLMI Series
2005-A2 - 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.
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MLBUSA: Xxxxxxx Xxxxx Bank USA.
MLCC: Xxxxxxx Xxxxx Credit Corporation.
MLMLI: Xxxxxxx Xxxxx Mortgage Lending, Inc.
MONTHLY ADVANCE: An advance of principal or interest required to be
made by the Servicer pursuant to the 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 Servicer pursuant to 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.
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.
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 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.
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.
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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 Servicer or the Master Servicer in accordance with the Servicing
Agreement or this Agreement and (ii) unreimbursed advances by the 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).
NONRECOVERABLE ADVANCE: Any Monthly Advance or Servicing Advance
previously made or proposed to be made in respect of a Mortgage Loan or REO
Property that, in the good faith business judgment of the Servicer, will not,
or, in the case of a proposed Monthly Advance or Servicing Advance, would not
be, ultimately recoverable from related late payments, condemnation proceeds,
Insurance Proceeds or Liquidation Proceeds on such Mortgage Loan or REO Property
as provided herein.
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 DATE: The first Distribution Date on which the
Master Servicer may opt to terminate the Trust Fund pursuant to Section 10.01.
ORIGINAL CLASS CERTIFICATE BALANCE: With respect to each Class of the
Certificates (other than the Class R 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.
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.
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ORIGINATOR: Washington Mutual Bank, FA.
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 Class A, Class M and Class B
Certificates and any Distribution Date, the weighted average of the Net Mortgage
Rates on the Mortgage Loans as of the close of business on the first day of the
calendar month preceding the month in which such Distribution Date occurs,
weighted on the basis of the Stated Principal Balances thereof as of the close
of business on the last day of the calendar month preceding the month in which
such Distribution Date occurs. The Pass-Through Rate with respect to the first
Interest Accrual Period is expected to be approximately 4.509% per annum.
PAYING AGENT: The Trustee or any successor Paying Agent appointed by
the Trustee.
PERCENTAGE INTEREST: With respect to any Certificate (other than a
Class R Certificate), 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 any Class of Class R Certificates, the portion of
such Class evidenced thereby, expressed as a percentage, as stated on the face
of such Certificate; provided, however, that the sum of all such percentages for
each such Class totals 100%.
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:
(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;
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(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 Trust to exceed 10% of the aggregate Outstanding Principal
Balances of all the Mortgage Loans and Permitted Investments held as part of the
Trust;
(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;
(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
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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 (i) if Fitch is a Rating Agency
and has not rated the portfolio, the highest rating assigned by Xxxxx'x and (ii)
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 CERTIFICATES: The Residual Certificates and the Private
Certificates.
PRELIMINARY SERVICING PERIOD: With respect to any Mortgage Loans, the
period commencing on the related Closing Date and ending on the date the
Servicer enters into Reconstitution Agreements which amend or restate the
servicing provisions of this Agreement.
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 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 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
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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 payment (whether partial or full) 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 and Class B-3
Certificates.
PROTECTED ACCOUNT: An account established and maintained for the
benefit of Certificateholders by the Servicer with respect to the related
Mortgage Loans and with respect to REO Property pursuant to the 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
Servicer or Master Servicer, which 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 Trust 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: Fitch 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
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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.
RECONSTITUTION AGREEMENTS: The agreement or agreements entered into by
the Servicer and MLBUSA and/or certain third parties on the Reconstitution Date
or Dates with respect to any or all of the Mortgage Loans serviced under the
Servicing Agreement, in connection with a whole loan transfer or a pass-through
transfer as provided in Section 12 thereof.
RECONSTITUTION DATE: The date or dates on which any or all of the
Mortgage Loans shall be removed from the Servicing Agreement and reconstituted
as part of a Whole Loan Transfer or Pass-Through Transfer pursuant to Section 12
thereof.
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: A Mortgage Loan the proceeds of which were
not used to purchase the related Mortgaged Property.
REGULAR CERTIFICATES: Any of the Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class A-6, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class
M-3, Class B-1, Class B-2 and Class B-3 Certificates.
REINVESTMENT AGREEMENTS: One or more reinvestment agreements,
acceptable to the Rating Agencies, from a bank, insurance company or other
corporation or entity (including the Trustee).
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: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
REMIC TRUST: The segregated pool of assets, with respect to which a
REMIC election is to be made, consisting of: (i) each Mortgage Loan (exclusive
of payments of principal and interest due on or before the Cut-off Date, if any,
received by the Master Servicer which shall not constitute an asset of the Trust
Fund) as from time to time are subject to this Agreement and all payments under
and proceeds of such Mortgage Loans (exclusive of any prepayment fees and late
payment charges received on the Mortgage Loans), together with all documents
included in the related Mortgage File, subject to Section 2.01; (ii) such funds
or assets as from time to time are deposited in the Master Servicer Collection
Account or the Distribution Account and belonging to the Trust Fund; (iii) any
REO Property; (iv) the primary hazard insurance policies, if any, the Primary
Mortgage Insurance Policies, if any, and all other Insurance Policies with
respect to the Mortgage Loans; and (v) the Depositor's interest in respect of
the representations
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and warranties made by the Seller and the Originator in the Assignment,
Assumption and Recognition Agreement as assigned to the Trustee pursuant to
Section 2.04 hereof.
REMIC OPINION: An Opinion of Counsel stating that, under the REMIC
Provisions, any contemplated action will not cause the REMIC Trust to fail to
qualify as a REMIC or result in the imposition of a tax upon the Trust Fund
(including but not limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code and the tax on contributions to the REMIC Trust
set forth in Section 860G(d) of the Code).
REMIC PROVISIONS: Provisions of the federal income tax law relating to
real estate mortgage investment conduits which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations and rulings promulgated thereunder, as the foregoing may be in
effect from time to time.
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 3.23 in connection with a defaulted
Mortgage Loan.
REPURCHASE PROCEEDS: The Repurchase Price in connection with any
repurchase of a Mortgage Loan by the Originator 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 CERTIFICATES: Any of the Class R Certificates.
RESIDUAL INTEREST: The sole class of "residual interests" in a REMIC
within the meaning of Section 860G(a)(2) of the Code.
RESPONSIBLE OFFICER: 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 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 to whom a matter arising hereunder may be referred.
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.
S&P: Standard and Poor's, a division of The XxXxxx-Xxxx Companies, Inc.
or its successor in interest.
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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: With respect to any
Distribution Date, the percentage indicated below:
Senior Accelerated
Distribution Date Distribution Percentage
----------------- -----------------------
March 2005 through February 2010 100%
March 2010 through February 2011 Senior Percentage, plus 70% of the Subordinate
Percentage
March 2011 through February 2012 Senior Percentage, plus 60% of the Subordinate
Percentage
March 2012 through February 2013 Senior Percentage, plus 40% of the Subordinate
Percentage
March 2013 through February 2014 Senior Percentage, plus 20% of the Subordinate
Percentage
March 2014 and thereafter Senior Percentage
provided, however, that any scheduled reduction to the Senior Accelerated
Distribution Percentage described above shall not occur as of any Distribution
Date unless either (a)(i)(X) the outstanding principal balance of 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 aggregate outstanding Class Certificate
Balance of the
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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
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 (ii) Realized Losses on the Mortgage Loans to date for such
Distribution Date, if occurring during the sixth, seventh, eighth, ninth, or
tenth 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 Subordinate Certificates; or (b) (i) the outstanding principal
balance of 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 aggregate
outstanding principal balance of all Mortgage Loans averaged over the last six
months, does not exceed 4%, and (ii) Realized Losses on the Mortgage Loans to
date for such Distribution Date, if occurring during the sixth, seventh, eighth,
ninth or tenth 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 Subordinate Certificates.
In addition, on any Distribution Date on or after the Distribution Date
occurring in March 2008, if the Subordinate Percentage is equal to or greater
than two times the initial Subordinate Percentage, 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 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 Senior Accelerated Distribution
Percentage for such Distribution Date will equal the Senior Percentage.
SENIOR CERTIFICATES: The Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7 and Class A-8 Certificates.
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 A 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.
SENIOR PRINCIPAL DISTRIBUTION AMOUNT: As to any Distribution Date, the
lesser of (a) the balance of the Available Distribution Amount 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 Senior Percentage for such Distribution Date
times the sum of the following:
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(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 which together with other Bankruptcy
Losses exceeds the Bankruptcy Loss Coverage Amount;
(2) the Stated Principal Balance of any
Mortgage Loan repurchased during the related Prepayment Period
pursuant to Section 2.02 or 2.03 hereof or pursuant to the
Servicing Agreement; 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 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 Servicer as recoveries of
principal of the related Mortgage Loan pursuant to Servicing
Agreement;
(B) with respect to the liquidation or other
disposition of a Mortgage Loan which occurred during the related
Prepayment Period and did not result in any Excess Special Hazard
Losses, Excess Fraud Losses, Excess Bankruptcy Losses or Extraordinary
Losses, an amount equal to the lesser of (a) the Senior Percentage for
such Distribution Date times the Stated Principal Balance of such
Mortgage Loan and (b) the 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 Servicer or the Master
Servicer as recoveries of principal of the related Mortgage Loan
pursuant to the Servicing Agreement or this Agreement;
(C) the 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 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;
SERVICER: With respect to each Mortgage Loan, Washington Mutual Bank,
FA.
SERVICER REMITTANCE DATE: With respect to each Mortgage Loan, the date
set forth in the Servicing Agreement as the Remittance Date (as such term is
defined in the Servicing Agreement).
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SERVICING ADVANCES: 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.
SERVICING AGREEMENT: The Master Mortgage Loan Purchase and Servicing
Agreement dated as of June 1, 2001 among MLBUSA, as purchaser, Washington Mutual
Bank, FA, as seller, Washington Mutual Bank fsb, as seller, Washington Mutual
Bank, as seller and Washington Mutual Bank, FA, as servicer, and the
modifications thereto provided in Annex A to the Warranty Xxxx of Sale dated
April 26, 2004, among MLBUSA, as purchaser, Washington Mutual Bank, FA, as
seller, Washington Mutual Bank, as seller, and Washington Mutual Bank, FA, as
servicer.
SERVICING FEE: With respect to each Mortgage Loan, the amount of the
annual servicing fee the Purchaser shall pay to the Servicer, which shall, for
each month, be equal to one-twelfth of the product of (a) the related Servicing
Fee Rate and (b) the unpaid principal balance of the Mortgage Loan. 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. The obligation of the Trust Fund to pay the Servicing Fee is limited
to, and payable solely from, the interest portion (including recoveries with
respect to interest from Liquidation Proceeds, Insurance Proceeds, condemnation
proceeds and other proceeds, to the extent permitted by this Agreement) of
related Monthly Payment collected by the Servicer, or as otherwise proved under
Section 11.05. If the Preliminary Servicing Period includes any partial month,
the Servicing Fee for such month shall be pro rated at a per diem rate based
upon a 30-day month. 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: The per annum rate at which the Servicing Fee
accrues, which rate shall be as calculated or set forth in the related final
Mortgage Loan Schedule.
SERVICING OFFICER: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and specimen signature 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.
SPECIAL HAZARD LOSS COVERAGE AMOUNT: As of any Distribution Date, an
amount equal to $10,925,146 minus the sum of (i) the aggregate amount of Special
Hazard Losses allocated solely to one or more specific Classes of Certificates
in accordance with Section 6.02 and (ii) the Adjustment Amount (as defined
below) as most recently calculated. For each anniversary of the Cut-off Date,
the Adjustment Amount shall be equal to the amount, if any, by which the amount
calculated in accordance with the preceding sentence (without giving effect to
the deduction of the Adjustment Amount for such anniversary) exceeds the greater
of (A) the greatest of (i) twice the outstanding principal balance of the
Mortgage Loan in the Trust Fund which has the largest
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outstanding principal balance on the Distribution Date immediately preceding
such anniversary, (ii) the product of 1.00% multiplied by the outstanding
principal balance of all Mortgage Loans on the Distribution Date immediately
preceding such anniversary and (iii) the aggregate outstanding principal balance
(as of the immediately preceding Distribution Date) of the Mortgage Loans in any
single five-digit California zip code area with the largest amount of Mortgage
Loans by aggregate principal balance as of such anniversary and (B) the greater
of (i) the product of 0.50% multiplied by the outstanding principal balance of
all Mortgage Loans on the Distribution Date immediately preceding such
anniversary multiplied by a fraction, the numerator of which is equal to the
aggregate outstanding principal balance (as of the immediately preceding
Distribution Date) of all of the Mortgage Loans secured by Mortgaged Properties
located in the State of California divided by the aggregate outstanding
principal balance (as of the immediately preceding Distribution Date) of all of
the Mortgage Loans, expressed as a percentage, and the denominator of which is
equal to 70.51% (which percentage is equal to the percentage of Mortgage Loans
initially secured by Mortgaged Properties located in the State of California)
and (ii) the aggregate outstanding principal balance (as of the immediately
preceding Distribution Date) of the largest Mortgage Loan secured by a Mortgaged
Property located in the State of California.
The Special Hazard Amount may be further reduced by the Depositor
(including accelerating the manner in which coverage is reduced) provided that
prior to any such reduction, the Depositor shall (i) obtain written confirmation
from each Rating Agency that such reduction shall not reduce the rating assigned
to any Class of Certificates by such Rating Agency below the lower of the
then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency and (ii) provide a copy of such written
confirmation to the Trustee.
SPECIAL HAZARD LOSSES: Realized Losses in respect of Special Hazard
Mortgage Loans as reported by the Servicer to the Master Servicer.
SPECIAL HAZARD MORTGAGE LOAN: A Liquidated Mortgage Loan as to which
the ability to recover the full amount due thereunder was substantially impaired
by a hazard not insured against under a standard hazard insurance policy.
STARTUP DAY: February 28, 2005.
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.
STAYED FUNDS: If the Master Servicer is the subject of a proceeding
under the federal Bankruptcy Code and the making of a remittance by the Master
Servicer pursuant to this Agreement is prohibited by Section 362 of the federal
Bankruptcy Code, funds which are in the custody of the Master Servicer, a
trustee in bankruptcy or a federal bankruptcy court and should have been the
subject of such remittance absent such prohibition.
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SUBORDINATE CERTIFICATES: The Class M-1, Class M-2, Class M-3, Class
B-1, Class B-2 and Class B-3 Certificates.
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 March 2010 (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 to 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 portion of
such aggregate reduction so allocated to any Non- Maturing Class, the
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"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 which together with other Bankruptcy
Losses exceeds the Bankruptcy Loss Coverage Amount;
(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 Servicer as
recoveries of principal of the related Mortgage Loan pursuant
to the 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 Excess 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 Servicer as recoveries of principal of the
related Mortgage Loan pursuant to the 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.
SUBORDINATION: As defined in Section 6.02(c).
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.
SUBSTITUTE MORTGAGE LOAN: A mortgage loan tendered to the Trustee
pursuant to the Servicing Agreement, the Assignment, Assumption and Recognition
Agreement or Section 2.04 of this Agreement, as applicable, in each case, (i)
which has an Outstanding Principal Balance, after application of all scheduled
payments of principal and interest due during or prior to the month of
substitution, not in excess of the Stated Principal Balance of the Mortgage Loan
for which it is to be substituted as of the Due Date in the calendar month
during which the substitution occurs, (ii) which has a Mortgage Interest Rate
not less than (and not more than one percentage point in excess of) the Mortgage
Interest Rate of such Mortgage Loan, (iii) which has a Net Mortgage Rate equal
to or greater than the Net Mortgage Rate of such Mortgage Loan, (iv) which has a
remaining term to maturity not greater than (and not more than one year less
than) that of such Mortgage Loan, (v) which has the same Due Date as the Due
Date on such Mortgage Loan, (vi) which has a Loan-to-Value Ratio as of the date
of substitution equal to or lower than the Loan-to-Value Ratio of such Mortgage
Loan as of such date, (vii) be covered under a Primary Insurance Policy if such
Substitute Mortgage Loan has a Loan-to-Value Ratio in excess of 80%, (viii)
conform to each non-statistical representation and warranty set forth in Section
7.02 of the Servicing Agreement and (ix) be the same type of mortgage loan (i.e.
adjustable rate with the same Gross Margin and Index as the Deleted Mortgage
Loan). In the event that one or more mortgage loans are substituted for one or
more Mortgage Loans, the amounts described in clause (i) hereof shall be
determined on the basis of aggregate principal balances, the Mortgage Interest
Rates described in clause (ii) hereof shall be determined on the basis of
weighted average Mortgage Interest Rates, the Net Mortgage Rates described in
clause (iii) hereof shall be determined on the basis of weighted average Net
Mortgage Rates, the terms described in clause (iv) shall be determined on the
basis of weighted average remaining terms to maturity, the Loan-to-Value Ratios
described in clause (vi) hereof shall be satisfied as to each such mortgage loan
and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (viii) hereof must be
satisfied as to each Substitute Mortgage Loan or in the aggregate, as the case
may be.
TAX ADMINISTRATION AND 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 each Class of
Residual Certificates shall be the Tax Matters Person for the REMIC Trust, as
more particularly set forth in Section 9.12 hereof.
TRUSTEE: Wachovia Bank, National Association, or its successor in
interest, or any successor trustee appointed as herein provided.
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TRUST FUND: The REMIC Trust.
UNDERCOLLATERALIZED AMOUNT: On any Distribution Date, the excess of (x)
the aggregate Class Certificate Balance of any Class or Classes of Senior
Certificates immediately prior to such Distribution Date over (y) the aggregate
Stated Principal Balance of the Mortgage Loans as of the beginning of the
related Due Period.
UNDERCOLLATERALIZED SENIOR CERTIFICATES: As defined in Section 6.01(D).
UNDERWRITING GUIDELINES: The Underwriting Guidelines of the Originator,
attached to the Servicing Agreement as Exhibit 10, as amended from time to time.
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 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 R Certificates, 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.
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 R Certificates). 99.50% of
all Voting Rights will be allocated among all holders of the Certificates (other
than the Class R Certificates) in proportion to their then outstanding Class
Certificate Balances, and 0.5% of all Voting Rights will be allocated among the
holders of the Class R Certificates in proportion to the Percentage Interests
evidenced by their Certificates; provided, however, that any Certificate
registered in the name of the Master Servicer, the Depositor or the Trustee or
any of their respective affiliates shall not be included in the calculation of
Voting Rights.
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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 Trust 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 Servicer in Protected Accounts,
the Master Servicer in the Master Servicer Collection Account and the Trustee in
the Distribution Account for the benefit of the Trustee on behalf of the Regular
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 Assignment, Assumption
and Recognition Agreement to the extent provided in Subsection 2.03(a), (vii)
the rights with respect to the Servicing Agreement as assigned to the Depositor
on behalf of the Certificateholders by the Assignment, Assumption and
Recognition Agreement 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 Wachovia Bank, National Association, as
Trustee for the registered holders of the Xxxxxxx Xxxxx Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series 2005-A2,
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: "Wachovia Bank, National Association, as Trustee for
the registered holders of the Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 2005-A2.
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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 Wachovia Bank, National Association, as
Trustee for the registered holders of the Xxxxxxx Xxxxx Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series 2005-A2,
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 clauses (b)(I)(i) and (b)(II)(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 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 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 promptly after they are received. The Depositor shall
cause, at its expense, the assignment of the Mortgage to the Trustee 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 Trust Fund, 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 Trust Fund, (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, insolvency or foreclosure relating to the
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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 Trustee and the Trustee shall be reimbursed for such expenses by
the Trust Fund in accordance with Section 9.05.
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 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 is subsequently located, such original Mortgage
Note shall be delivered to the Trustee within three Business Days.
(c) The parties hereto agree that it is not intended that any mortgage
loan be included in the Trust that is either (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 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 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
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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 and the lifetime
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 representation made by the
Seller in the Assignment, Assumption and Recognition Agreement that the Seller
has delivered to the Depositor all documents required to be delivered in
accordance with Section 6.03 of the Servicing 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 representation made by the Seller in the Assignment, Assumption
and Recognition 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 Loan
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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 representation made by
the Seller in the Assignment, Assumption and Recognition Agreement to deliver
the mortgage loans in accordance with Section 6.03 of the Servicing 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 Assignment, Assumption
and Recognition 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 notify 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
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Seller the related Mortgage File and the Trustee shall execute and deliver all
instruments of transfer or assignment, without recourse, furnished 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
Trustee shall amend the Mortgage Loan Schedule, which was previously delivered
to it by Depositor in a form agreed to between the Depositor and the Trustee, 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 ASSIGNMENT, ASSUMPTION AND
RECOGNITION AGREEMENT.
(a) The Depositor hereby assigns to the Trustee, on behalf of the
Certificateholders, all of its right, title and interest in the Assignment,
Assumption and Recognition Agreement, including but not limited to Depositor's
rights and obligations pursuant to the Servicing Agreement. The obligations of
the Seller or the Originator pursuant to the Assignment, Assumption and
Recognition Agreement or the Servicing Agreement, as applicable, to substitute
or repurchase 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.
(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 Section 7.03 of the Servicing 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 or the
Originator pursuant to the Assignment, Assumption and Recognition Agreement or
the Servicing Agreement, as applicable, 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 Assignment,
Assumption and Recognition Agreement, Servicing 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. The Depositor shall notify the
Trustee 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 such Seller or Originator, as applicable, the related Mortgage
File and the Trustee shall execute and deliver all instruments of transfer or
assignment furnished to it by such Seller or Originator, without recourse, as
are necessary to vest in such Seller or Originator 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 Trustee. The Trustee 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 or Originator to purchase (or substitute a
Substitute Mortgage Loan
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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 Section 7.03 of the Servicing Agreement or Sections 2.02 or 2.03 of
this Agreement, the Seller or Originator may, no later than the date by which
such purchase by such Seller or Originator would otherwise be required, tender
to the Trustee a Substitute Mortgage Loan; provided, however, that substitution
pursuant to Section 7.03 of the Servicing 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
such Seller or Originator, 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 one
Business Day of receipt, such Seller or Originator shall provide to the Trustee
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 or the Originator of the
Purchase Price for the purchase of a Mortgage Loan by such Seller or Originator.
After such notification to such Seller or Originator 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 Trust
Fund and accrued interest for such month on the Mortgage Loan for which the
substitution is made and any Principal Prepayments made thereon during such
month shall be the property of the Originator. The Scheduled Principal on a
Substitute Mortgage Loan due on the Due Date in the month of substitution shall
be the property of such Originator 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 Trust Fund. 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 Originator the related Mortgage File
related to any Mortgage Loan released pursuant to the Assignment, Assumption and
Recognition 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 Originator
title to and rights under any Mortgage Loan released pursuant to the Servicing
Agreement or Section 2.04 of this Agreement, as applicable. The Originator shall
deliver the documents related to the Substitute Mortgage Loan in accordance with
the provisions of the Servicing Agreement or Subsections
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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 Servicing Agreement shall be deemed to have been
made by the Originator 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.
Section 2.05 ISSUANCE OF CERTIFICATES.
The Trustee acknowledges the assignment to it on behalf of the
Trust Fund of the Mortgage Loans and the other assets comprising the Trust Fund
and, concurrently therewith, 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 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
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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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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 Servicer to service and administer
their respective Mortgage Loans in accordance with the terms of the 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 the 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 the Servicer and shall cause the
Servicer to perform and observe the covenants, obligations and conditions to be
performed or observed by such Servicer under the Servicing Agreement. The Master
Servicer shall independently and separately monitor the 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 Servicer's 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. Neither of the Master Servicer or
Securities Administrator shall have any responsibility for reviewing or
reconciling the Protected Account or for any expenses or other consequences
resulting from any failure of such Protected Account to be so reconciled.
The Trustee shall furnish the Servicer and the Master Servicer with any
limited powers of attorney and other documents in form as provided to it
necessary or appropriate to enable the Servicer 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.
The Trustee shall execute and deliver to the 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;
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(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 the REMIC Trust
shall exist, the Trustee and the Securities Administrator shall act in
accordance herewith to assure continuing treatment of such REMIC Trust as a
REMIC, and the Trustee and the Securities Administrator shall comply with any
directions of the Depositor, the Servicer or the Master Servicer to assure such
continuing treatment. In particular, the Trustee shall not (a) sell or permit
the sale of all or any portion of the Mortgage Loans or of any investment of
deposits in an Account unless such sale is as a result of a repurchase of the
Mortgage Loans pursuant to this Agreement or the Trustee has received a REMIC
Opinion prepared at the expense of the Trust Fund; and (b) other than with
respect to a substitution pursuant to the Assignment, Assumption and Recognition
Agreement or Section 2.04 of this Agreement, as applicable, accept any
contribution to the REMIC Trust after the Startup Day without receipt of a REMIC
Opinion.
Section 3.03 MONITORING OF SERVICER. (a) The Master Servicer shall be
responsible for reporting to the Trustee and the Depositor the compliance by the
Servicer with its duties under the Servicing Agreement. In the review of the
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 the Servicer under the
Servicing Agreement, and shall, in the event that a Servicer fails to perform
its obligations in accordance with the 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 cause the
Trustee to enter into a new Servicing Agreement with a successor Servicer
selected by the Master Servicer; provided, however, it is understood and
acknowledged by the parties hereto that there will be a period of transition
(not to exceed 90 days) before the actual servicing functions can be fully
transferred to such successor Servicer. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of the Servicing
Agreement 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
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
the Servicing Agreement (including, without
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limitation, (i) all legal costs and expenses and all due diligence costs and
expenses associated with an evaluation of the potential termination of the
Servicer as a result of an event of default by such Servicer and (ii) all costs
and expenses associated with the complete transfer of servicing, including all
servicing files and all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the successor servicer
to correct any errors or insufficiencies in the servicing data or otherwise to
enable the successor service to service the Mortgage Loans in accordance with
the 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 the Servicer to comply with the
remittance requirements and other obligations set forth in the Servicing
Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer, if any, that
it replaces.
Section 3.04 FIDELITY BOND. The Master Servicer, at its expense, shall
maintain in effect a blanket fidelity bond and an errors and omissions insurance
policy, affording coverage with respect to all directors, officers, employees
and other Persons acting on such Master Servicer's behalf, and covering errors
and omissions in the performance of the Master Servicer's obligations hereunder.
The errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
Section 3.05 POWER TO ACT; PROCEDURES. The Master Servicer shall master
service the Mortgage Loans and shall have full power and authority, subject to
the REMIC Provisions and the provisions of Article X hereof, to do any and all
things that it may deem necessary or desirable in connection with the master
servicing and administration of the Mortgage Loans, including but not limited to
the power and authority (i) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages, (iii) to
collect any Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan, in each case, in accordance with the provisions of
this Agreement and the Servicing Agreement, as applicable; provided, however,
that the Master Servicer shall not (and, consistent with its responsibilities
under Section 3.03, shall not permit the 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 the REMIC Trust to fail to qualify as a REMIC or result
in the imposition of a tax upon the Trust Fund (including but not limited to the
tax on prohibited transactions as defined in Section 860F(a)(2) of the Code and
the tax on contributions to a REMIC set forth in Section 860G(d) of the Code)
unless the Master Servicer has received an Opinion of Counsel (but not at the
expense of the Master Servicer) to the effect that the contemplated action will
not would cause the REMIC Trust to fail to qualify as a REMIC or result in the
imposition of a tax upon the REMIC Trust. The Trustee shall furnish the Master
Servicer, upon written request from a Servicing Officer, with any limited powers
of attorney empowering the Master Servicer or the
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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 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 the 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 Servicing Agreement, and to the extent Mortgage Loans contain
enforceable due-on-sale clauses, the Master Servicer shall cause the Servicer to
enforce such clauses in accordance with the 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 Servicing Agreement, and, as a
consequence, a Mortgage Loan is assumed, the original Mortgagor may be released
from liability in accordance with the 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 the Servicer of a
notification that payment in full has been escrowed in a manner customary for
such purposes for payment to Certificateholders on the next Distribution Date,
the Servicer or the Master Servicer will 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 Servicer pursuant to
Section 4.01 or by the 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 Servicer the related Mortgage File. Upon receipt of such
certification and request, the Custodian, on behalf of the Trustee, shall
promptly and no later than five Business Days (or, to the extent that the
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 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 Servicer and the Trustee and Custodian shall have no
further responsibility with regard to such Mortgage File. Upon any such payment
in full, the 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
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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 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 (in form
reasonably acceptable to the Trustee) 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 Servicer or the Master
Servicer, as applicable. Such trust receipt shall obligate the Servicer or the
Master Servicer to return the Mortgage File to the Custodian on behalf of the
Trustee, when the need therefor by the Servicer or the Master Servicer no longer
exists unless the Mortgage Loan shall be liquidated, in which case, upon receipt
of a certificate of a Servicing Officer similar to that hereinabove specified,
the Mortgage File shall be released by the Custodian, on behalf of the Trustee,
to the Servicer or the Master Servicer.
Section 3.08 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER
SERVICER TO BE HELD FOR TRUSTEE.
(a) The Master Servicer shall transmit and the Servicer (to the extent
required by the 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 Servicer, the 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
the Servicer to retain its Servicing Fee and other amounts as provided in the
Servicing Agreement. The Master Servicer shall, and (to the extent provided in
the Servicing Agreement) shall cause the 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 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
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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 the 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 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 Servicer under the Servicing Agreement 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 Servicing Agreement. It
is understood and agreed that such insurance shall be with insurers meeting the
eligibility requirements set forth in the 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
Servicer or the Master Servicer, or by the 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 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 Servicing Agreement. Any
cost incurred by the Master Servicer or the 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 Servicing Agreement) cause
the Servicer to, prepare and present on behalf of the Trustee and the
Certificateholders all claims under the Insurance Policies and take such actions
(including the negotiation, settlement, compromise or enforcement of the
insured's claim) as shall be necessary to realize recovery under such policies.
Any proceeds disbursed to the Master 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).
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Section 3.11 MAINTENANCE OF THE PRIMARY MORTGAGE INSURANCE POLICIES.
(a) The Master Servicer shall not take, or permit the Servicer (to the
extent such action is prohibited under the 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 the Servicer (to the extent required under
the 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 Servicing Agreement, as applicable. The
Master Servicer shall not, and shall not permit the Servicer (to the extent
required under the 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 Servicing
Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause the Servicer (to
the extent required under the 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 the 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.
Section 3.13 REALIZATION UPON DEFAULTED MORTGAGE LOANS. The Master
Servicer shall cause the Servicer (to the extent required under the 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 Servicing Agreement.
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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 Distribution Account and 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 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 Trust Fund acquires ownership of any REO Property
in respect of any related Mortgage Loan, the deed or certificate of sale shall
be issued to the Trustee, or to its nominee, on behalf of the related
Certificateholders. The Master Servicer shall, to the extent provided in the
Servicing Agreement, cause the Servicer to sell, any REO Property as
expeditiously as possible and in accordance with the provisions of this
Agreement and the Servicing Agreement, as applicable. Pursuant to its efforts to
sell such REO Property, the Master Servicer shall cause the Servicer to protect
and conserve, such REO Property in the manner and to the extent required by the
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 Servicing
Agreement, cause the 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 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 Servicing Agreement, the Liquidation
Proceeds from the final disposition of the REO Property, net of any payment to
the Master Servicer and the Servicer as provided above shall be deposited in the
Protected Account on or prior to the Determination Date in the month following
receipt thereof and be remitted by wire transfer in immediately available funds
to the Master Servicer for deposit into the related Master Servicer Collection
Account on the next succeeding Servicer Remittance Date.
Section 3.16 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
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(a) The Master Servicer shall deliver to the Trustee and the Rating
Agencies on or before February 28 of each year, commencing on February 28, 2006,
an Officer's Certificate, certifying that with respect to the period ending
December 31 of the prior year: (i) such Servicing Officer has reviewed the
activities of such Master Servicer during the preceding calendar year or portion
thereof and its performance under this Agreement, (ii) to the best of such
Servicing Officer's knowledge, based on such review, such Master Servicer has
performed and fulfilled its duties, responsibilities and obligations under this
Agreement in all material respects throughout such year, or, if there has been a
default in the fulfillment of any such duties, responsibilities or obligations,
specifying each such default known to such Servicing Officer and the nature and
status thereof, (iii) nothing has come to the attention of such Servicing
Officer to lead such Servicing Officer to believe that the Servicer has failed
to perform any of its duties, responsibilities and obligations under its
Servicing Agreement in all material respects throughout such year, or, if there
has been a material default in the performance or fulfillment of any such
duties, responsibilities or obligations, specifying each such default known to
such Servicing Officer and the nature and status thereof.
(b) Copies of such statements shall be provided to any
Certificateholder upon request, by the Master Servicer or by the Trustee at the
Master Servicer's expense if the Master Servicer failed to provide such copies
(unless (i) the Master Servicer shall have failed to provide the Trustee with
such statement or (ii) the Trustee shall be unaware of the Master Servicer's
failure to provide such statement).
Section 3.17 ANNUAL INDEPENDENT ACCOUNTANT'S SERVICING REPORT. If the
Master Servicer has, during the course of any fiscal year, directly serviced any
of the Mortgage Loans, then the Master Servicer at its expense shall cause a
nationally recognized firm of independent certified public accountants to
furnish a statement to the Trustee, the Rating Agencies and the Depositor on or
before February 28 of each year, commencing on February 28, 2006 to the effect
that, with respect to the most recently ended fiscal year, such firm has
examined certain records and documents relating to the Master Servicer's
performance of its servicing obligations under this Agreement and pooling and
servicing and trust agreements in material respects similar to this Agreement
and to each other and that, on the basis of such examination conducted
substantially in compliance with the audit program for mortgages serviced for
Xxxxxxx Mac or the Uniform Single Attestation Program for Mortgage Bankers, such
firm is of the opinion that the Master Servicer's activities have been conducted
in compliance with this Agreement, or that such examination has disclosed no
material items of noncompliance except for (i) such exceptions as such firm
believes to be immaterial, (ii) such other exceptions as are set forth in such
statement and (iii) such exceptions that the Uniform Single Attestation Program
for Mortgage Bankers or the Audit Program for Mortgages Serviced by Xxxxxxx Mac
requires it to report. Copies of such statements shall be provided to any
Certificateholder upon request by the Master Servicer, or by the Trustee at the
expense of the Master Servicer if the Master Servicer shall fail to provide such
copies. If such report discloses exceptions that are material, the Master
Servicer shall advise the Trustee whether such exceptions have been or are
susceptible of cure, and will take prompt action to do so.
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Section 3.18 REPORTS FILED WITH SECURITIES AND EXCHANGE COMMISSION.
(a) Within 15 days after each Distribution Date, the Master Servicer
shall, in accordance with industry standards, file with the Commission via the
Electronic Data Gathering and Retrieval System ("XXXXX"), a Form 8-K (or other
comparable form containing the same or comparable information or other
information mutually agreed upon) with a copy of the statement to the Trustee
who shall make available on its website a copy of the statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior to
March 30, 2006 (and each year thereafter unless a Form 15D Suspension
Notification has been filed pursuant to Section 3.18(d) below), the Master
Servicer shall prepare and file a Form 10-K, in substance conforming to industry
standards, with respect to the Trust Fund. Each such Form 10-K shall include as
exhibits the Servicer's annual statement of compliance and annual accountant's
report as described in the Servicing Agreement, in each case to the extent
timely delivered to the Master Servicer. If they are not so timely delivered,
the Master Servicer shall file an amended Form 10-K including such documents as
exhibits reasonably promptly after they are delivered to the Master Servicer.
The Form 10-K shall also include a certification in the form attached hereto as
Exhibit K, in compliance with Rules 13a-14 and 15d-14 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and any additional
directives of the Commission, which shall be signed by a Servicing Officer of
the Master Servicer. The Depositor hereby grants to the Master Servicer a
limited power of attorney to execute and file the Form 8-K and Form 10-K on
behalf of the Depositor. Such power of attorney shall continue until either the
earlier of (i) receipt by the Master Servicer from the Depositor of written
termination of such power of attorney and (ii) the termination of the Trust
Fund. The Depositor agrees to promptly furnish to the Master Servicer, from time
to time upon request, such further information, reports and financial statements
within its control related to this Agreement and the Mortgage Loans as the
Master Servicer reasonably deems appropriate to prepare and file all necessary
reports with the Commission. Notwithstanding the foregoing sentence, the Master
Servicer shall have no responsibility to file any items other than those
specified in this Section 3.18; provided, however, the Master Servicer will
cooperate with the Depositor in connection with any additional filings with
respect to the Trust Fund as the Depositor deems necessary under the Exchange
Act. Copies of all reports filed by the Master Servicer under the Exchange Act
shall be sent to: the Depositor c/o Merrill Xxxxx & Co. Inc. Attn: Managing
Director-Analysis and Control. Fees and expenses incurred by the Master Servicer
in connection with this Section 3.18 shall not be reimbursable from the Trust
Fund except as pursuant to Sections 7.04(c) hereof.
(b) The Master Servicer shall indemnify and hold harmless the Trustee,
the Depositor and their respective officers, directors and Affiliates from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach of the Master Servicer's obligations under
this Section 3.18 or the Master Servicer's negligence, bad faith or willful
misconduct in connection therewith.
(c) If, after the Closing Date (a) the Xxxxxxxx-Xxxxx Act of 2002 is
amended, (b) Rules 13a-14 and 15d-14 under the Exchange Act and any related
directives of the Commission are modified or superseded by any subsequent
statement, rule, directive or regulation of the Commission or any division
thereof, or (c) any future releases, rules and regulations are
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published by the Commission from time to time pursuant to the Xxxxxxxx-Xxxxx Act
of 2002, which in any such case affect the form or substance of the required
certification under Rule 13a-14 and 15d-14 of the Exchange Act such that, in the
reasonable judgment of the Master Servicer, the required certification is
materially more onerous than the form of the requirement attached hereto as
Exhibit K as of the Closing Date, the Master Servicer, the Depositor and the
Mortgage Loan Seller shall negotiate in good faith to determine how to amend the
certification attached hereto as Exhibit K or any of the provisions in this
Section 3.18 to comply with any such new requirements. Notwithstanding any other
provision of this Agreement, the provisions of this Section 3.18 may be amended
by the Depositor, the Master Servicer and the Trustee without the consent of the
Certificateholders.
(d) Prior to January 30th of the first year in which the Master
Servicer is able to do so under applicable law, the Master Servicer shall file
with the Commission a Form 15D Suspension Notification with respect to the Trust
Fund.
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ARTICLE IV
ACCOUNTS
Section 4.01 PROTECTED ACCOUNTS. (a) The Master Servicer shall enforce
the obligation of the Servicer to establish and maintain a Protected Account in
accordance with the Servicing Agreement, with records to be kept with respect
thereto on a Mortgage Loan by Mortgage Loan basis, into which accounts shall be
deposited within 48 hours (or as of such other time specified in the 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 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 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 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 Servicer under the 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 Servicer, as set forth in the Servicing Agreement. The Servicer (to
the extent provided in the Servicing Agreement) shall deposit the amount of any
such loss in the Protected Account within two Business Days of receipt of
notification of such loss but not later than the second 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 Servicing Agreement and subject to
this Article IV, on or before each Servicer Remittance Date, the Servicer shall
withdraw or shall cause to be withdrawn from the Protected Accounts and shall
immediately deposit or cause to be deposited in the Master Servicer Collection
Account amounts representing the following collections and payments (other than
with respect to principal of or interest on the Mortgage Loans due on or before
the Cut-off Date):
(i) Monthly Payments on the Mortgage Loans received or any
related portion thereof advanced by the Servicer pursuant to the
Servicing Agreement which were due on or before the related Due Date,
net of the amount thereof comprising the Servicing Fees;
(ii) Principal Prepayments in Full and any Liquidation
Proceeds received by the Servicer with respect to such Mortgage Loans
in the related Prepayment Period, with
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interest to the date of prepayment or liquidation, net of the amount
thereof comprising the Servicing Fees;
(iii) Curtailments received by the 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 Servicer may be retained by them as
set forth in the Servicing Agreement 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 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.
(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
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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
Servicer to the Distribution Account or the Master Servicer Collection Account,
as applicable. In the event that the Master Servicer shall deposit or cause to
be deposited to the Distribution Account any amount not required to be credited
thereto, the Trustee, upon receipt of a written request therefor signed by a
Servicing Officer of the Master Servicer, shall promptly transfer such amount to
the Master Servicer 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 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 Agreement. 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
Trustee for deposit therein) any Monthly Advances required to be made by the
Master Servicer with respect to the Mortgage Loans.
(d) No later than 3:00 p.m. New York time on each Distribution Account
Deposit Date, the Master Servicer will transfer all Available Funds on deposit
in the Master Servicer
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Collection Account with respect to the related Distribution Date to the Trustee
for deposit in the Distribution Account.
Section 4.04 DISTRIBUTION ACCOUNT. (a) The Trustee shall establish and
maintain in the name of the Trustee, for the benefit of the Certificateholders,
the Distribution Account as a segregated trust account or accounts.
(b) All amounts deposited to the Distribution Account shall be held by
the Trustee in the name of the Trustee in trust for the benefit of the
Certificateholders in accordance with the terms and provisions of this
Agreement.
(c) The Distribution Account shall constitute a trust account of the
Trust Fund segregated on the books of the Trustee and held by the Trustee in
trust in its Corporate Trust Office, and the Distribution Account and the funds
deposited therein shall not be subject to, and shall be protected to the maximum
extent permitted by applicable law from, all claims, liens, and encumbrances of
any creditors or depositors of the Trustee or the Master Servicer (whether made
directly, or indirectly through a liquidator or receiver of 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 Trustee or, if such obligor is any other Person, the Business
Day preceding such Distribution Date. All investment earnings on amounts on
deposit in the Distribution Account or benefit from funds uninvested therein
from time to time shall be for the account of the Master Servicer. The Master
Servicer 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 Master
Servicer shall remit the amount of the loss to the Trustee who shall deposit
such amount in the Distribution Account. With respect to the Distribution
Account and the funds deposited therein, the Master Servicer shall take such
action as may be necessary to ensure that the Certificateholders shall be
entitled to the priorities afforded to such a trust account (in addition to a
claim against the estate of the Trustee) as provided by 12 U.S.C. ss. 92a(e),
and applicable regulations pursuant thereto, if applicable, or any applicable
comparable state statute applicable to state chartered banking corporations.
Section 4.05 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE DISTRIBUTION
ACCOUNT. (a) The Trustee will, from time to time on demand of the Master
Servicer or the Securities Administrator, make or cause to be made such
withdrawals or transfers from the Distribution Account as the Master Servicer or
the Securities Administrator has designated for such transfer or withdrawal
pursuant to the Servicing Agreement or as the Securities Administrator has
instructed hereunder 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):
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(i) to reimburse the Master Servicer or the 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 the Servicer from
Insurance Proceeds or Liquidation Proceeds relating to a particular
Mortgage Loan for amounts expended by the Master Servicer or such
Servicer in good faith in connection with the restoration of the
related Mortgaged Property which was damaged by an Uninsured Cause or
in connection with the liquidation of such Mortgage Loan;
(iii) to reimburse the Master Servicer or the 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 the 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 the 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 the 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;
(vii) to reimburse the Master Servicer or the 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);
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(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 Servicer;
(xi) to reimburse or pay the Servicer any such amounts as are
due thereto under the Servicing Agreement and have not been retained by
or paid to the Servicer, to the extent provided in the 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 10.01.
(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 Trustee shall distribute the
Available Funds to the Holders of the Certificates as instructed by the Master
Servicer or the Securities Administrator in accordance with Section 6.01.
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ARTICLE V
CERTIFICATES
Section 5.01 THE CERTIFICATES.
Each of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5,
Class A-6, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class M-3, Class B-1,
Class B-2, Class B-3 and Class R Certificates shall be substantially in the
forms annexed hereto as exhibits, and shall, on original issue, be executed,
authenticated and delivered by the Trustee to or upon the receipt of a written
order to Authenticate from the Depositor concurrently with the sale and
assignment to the Trustee of the Trust Fund. Each Class of the Certificates
(other than the Residual Certificates) shall be initially evidenced by one or
more Certificates representing a Percentage Interest with a minimum dollar
denomination of $50,000 and integral dollar multiples of $1 in excess thereof.
The Residual Certificates will be issued in registered, certificated form in
minimum denominations of a 25% Percentage Interest. Provided however, that one
Certificate of each such Class of Certificates may be in a different
denomination so that the sum of the denominations of all outstanding
Certificates of such Class shall equal the Class Certificate Balance of such
Class on the Closing Date.
The Certificates shall be executed on behalf of the Trust Fund by
manual or facsimile signature on behalf of the Trustee by a Responsible Officer.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Trustee shall bind the Trust Fund, 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
Certificate. No Certificate shall be entitled to any benefit under this
Agreement or be valid for any purpose, unless such Certificate shall have been
manually authenticated by the Trustee substantially in the form provided for
herein, and such 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. Subject to Section 5.02(c), the Certificates, other
than the Class B-1, Class B-2, Class B-3 and Residual Certificates
(collectively, the "Private Certificates"), shall be Book-Entry Certificates.
Section 5.02 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Certificate Registrar shall cause to be kept at the Corporate
Trust Office a Certificate Register in which, subject to such reasonable
regulations as it may prescribe, the Certificate Registrar shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. The Trustee shall initially serve as Certificate Registrar for
the purpose of registering Certificates and transfers and exchanges of
Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate at any
office or agency of the Certificate Registrar maintained for such purpose
pursuant to the foregoing paragraph and, in the case of a Class R Certificate,
upon satisfaction of the conditions set forth below, the Trustee on behalf of
the Trust shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same aggregate
Percentage Interest.
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At the option of the Certificateholders, Certificates may be exchanged
for other Certificates in authorized denominations and the same aggregate
Percentage Interests, upon surrender of the Certificates to be exchanged at any
such office or agency. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute on behalf of the Trust and authenticate and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for registration
of transfer or exchange shall (if so required by the Trustee or the Certificate
Registrar) be duly endorsed by, or be accompanied by a written instrument of
transfer satisfactory to the Trustee and the Certificate Registrar duly executed
by, the Holder thereof or his attorney duly authorized in writing.
(b) Except as provided in paragraph (c) below, the Book-Entry
Certificates shall at all times remain registered in the name of the Depository
or its nominee and at all times: (i) registration of such Certificates may not
be transferred by the Trustee except to another Depository; (ii) the Depository
shall maintain book-entry records with respect to the Certificate Owners and
with respect to ownership and transfers of such Certificates; (iii) ownership
and transfers of registration of such Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall for all
purposes deal with the Depository as representative of the Certificate Owners
for purposes of exercising the rights of Holders under this Agreement, and
requests and directions for and votes of such representative shall not be deemed
to be inconsistent if they are made with respect to different Certificate
Owners; (vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and Persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners; and (vii) the
direct participants of the Depository shall have no rights under this Agreement
under or with respect to any of the Certificates held on their behalf by the
Depository, and the Depository may be treated by the Trustee and its agents,
employees, officers and directors as the absolute owner of the Certificates for
all purposes whatsoever.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owners. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners
that it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures. The parties hereto are
hereby authorized to execute a representation letter with the Depository or take
such other action as may be necessary or desirable to register a Book-Entry
Certificate to the Depository. In the event of any conflict between the terms of
any such representation letter and this Agreement, the terms of this Agreement
shall control.
(c) If (i)(x) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to discharge properly
its responsibilities as Depository and (y) the Trustee or the Depositor is
unable to locate a qualified successor, (ii) the Depositor, at its sole option,
with the consent of the Trustee, elects to terminate the book-entry system
through the Depository or (iii) after the occurrence of a Servicer Event of
Termination, the Certificate Owners of each Class of Book-Entry Certificates
representing Percentage Interests of
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such Classes aggregating not less than 51% advises the Trustee and the
Depository Participants in writing that the continuation of a book-entry system
through the Depository to the exclusion of definitive, fully registered
certificates (the "Definitive Certificates") to Certificate Owners is no longer
in the best interests of the Certificate Owners. Upon surrender to the
Certificate Registrar of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Trustee shall, at the Depositor's expense, execute on behalf of the Trust
and authenticate the Definitive Certificates. Neither the Depositor nor the
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates, the Trustee, the Certificate
Registrar, the Servicer, any Paying Agent and the Depositor shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder.
(d) Except with respect to the initial transfer of the Private
Certificates by the Depositor, no transfer, sale, pledge or other disposition of
any Private Certificate shall be made unless such disposition is exempt from the
registration requirements of the Securities Act of 1933, as amended (the "1933
Act"), and any applicable state securities laws or is made in accordance with
the 1933 Act and laws. In the event of any such transfer, made in reliance upon
an exemption from the 1933 Act, (i) the Trustee and the Depositor shall require
(a) the transferor to execute a representation letter (in substantially the form
attached hereto as Exhibit F-1) and the transferee to execute an investor
representation letter (in substantially the form attached hereto as Exhibit F-2)
and (b) a written Opinion of Counsel (which may be in-house counsel) acceptable
to and in form and substance reasonably satisfactory to the Trustee and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act or is being
made pursuant to the 1933 Act, which Opinion of Counsel shall not be an expense
of the Trustee or the Depositor or (ii) the Trustee shall require the transferee
to execute a Rule 144A Letter (in substantially the form attached hereto as
Exhibit F-3) acceptable to and in form and substance reasonably satisfactory to
the Depositor and the Trustee certifying to the Depositor and the Trustee the
facts surrounding such transfer, which certificate shall not be an expense of
the Trustee or the Depositor. The Holder of a Private Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee 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.
Notwithstanding the foregoing, no certification or Opinion of Counsel
described in this Section 5.02(d) will be required in connection with the first
transfer by the Depositor or an Affiliate thereof of any Class R Certificate,
and the Depositor or such Affiliate hereby agree only to make such a transfer
to, to an "accredited investor" within the meaning of Rule 501(d) of the 1933
Act.
No transfer of an ERISA-Restricted Certificate shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee and the Depositor, (such requirement is satisfied only by the Trustee's
receipt of a representation letter from the transferee substantially in the form
of Exhibit F-2 or F-3 hereto, as appropriate on which the Trustee and Depositor
is authorized to rely), to the effect that either (A) such transferee is not an
employee benefit plan or
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arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of
the Code (collectively, a "Plan"), nor a person acting on behalf of any such
Plan or arrangement nor using the assets of any such Plan or arrangement to
effect such transfer (a "Plan Investor"), or (B) the proposed transfer and
holding of such a Certificate and the servicing, management and operation of the
Trust: (I) will not result in a prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code which is not covered under an individual or
class prohibited transaction exemption including but not limited to Department
of Labor Prohibited Transaction Class Exemption ("PTCE") 84-14 (Class Exemption
for Plan Asset Transactions Determined by Independent Qualified Professional
Asset Managers); PTCE 91-38 (Class Exemption for Certain Transactions Involving
Bank Collective Investment Funds); PTCE 90-1 (Class Exemption for Certain
Transactions Involving Insurance Company Pooled Separate Accounts), PTCE 95-60
(Class Exemption for Certain Transactions Involving Insurance Company General
Accounts), and PTCE 96-23 (Class Exemption for Plan Asset Transactions
Determined by In-House Asset Managers) and (II) will not subject the Depositor,
the Securities Administrator, the Servicer or the Trustee to any obligation in
addition to those undertaken in the Agreement or (ii) in the case of any such
ERISA-Restricted Certificate presented for registration in the name of a Plan or
a Plan Investor, an Opinion of Counsel satisfactory to the Trustee which Opinion
of Counsel shall not be an expense of either the Trustee or the Trust, addressed
to the Trustee, to the effect that the purchase or holding of such Certificate
will not result in the assets of the Trust being deemed to be "Plan assets" and
subject to the prohibited transaction provisions of ERISA and the Code, will not
result in such a prohibited transaction, and will not subject the Trustee, the
Securities Administrator, the Servicer or the Depositor to any obligation in
addition to those expressly undertaken in this Agreement or to any liability.
For purposes of clause (i) of the preceding sentence, such representations shall
be deemed to have been made to the Trustee by the transferee's acceptance of an
ERISA-Restricted Certificate (or the acceptance by a Certificate Owner of the
beneficial interest in any such Class of Certificates) unless the Trustee shall
have received from the transferee an alternative representation acceptable in
form and substance to the Depositor. Notwithstanding anything else to the
contrary herein, any purported transfer of a ERISA-Restricted Certificate to or
on behalf of a Plan or Plan Investor in violation of this paragraph shall be
void and of no effect.
Any transferee of an ERISA-Restricted Certificate which is a Book-Entry
Certificate will be deemed to have represented by virtue of its purchase or
holding of such Certificate (or interest therein) that either (a) such
transferee is not a Plan Investor or (b) such transferee meets the requirements
in (i)(B) of the immediately preceding paragraph.
Each beneficial owner of a Class M Certificate or any interest therein
shall be deemed to have represented, by virtue of its acquisition or holding of
that certificate or interest therein, that either (i) it is not a Plan or a Plan
Investor or investing with Plan assets, (ii) it has acquired and is holding such
certificate in reliance on the Prohibited Transaction Exemption 90-29 issued by
the Department of Labor, as amended ("Exemption"), and that it understands that
there are certain conditions to the availability of the Exemption, including
that the certificate must be rated, at the time of purchase, not lower than
"BBB-" (or its equivalent) by Fitch, Xxxxx'x or S&P, or (iii) (1) it is an
insurance company, (2) the source of funds used to acquire or hold the
certificate or interest therein is an "insurance company general account," as
such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III
of PTCE 95-60 have been satisfied.
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If any Book-Entry Certificate (or any interest therein) is acquired or
held in violation of the provisions of Section 5.02(d) above, 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. The Trustee shall be under no 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 this Section 5.02(d) shall indemnify and hold harmless the
Depositor, the Trustee, the 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.
Each Person who has or who acquires any Ownership Interest in a Class 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 to have
irrevocably appointed the Depositor or its designee as its attorney-in-fact to
negotiate the terms of any mandatory sale under clause (v) below and to execute
all instruments of transfer and to do all other things necessary in connection
with any such sale, and the rights of each Person acquiring any Ownership
Interest in a Class R Certificate are expressly subject to the following
provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a Class R Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Class
R Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any
Ownership Interest in a Class R Certificate, the Trustee shall as a
condition to registration of the transfer, require delivery to it, in
form and substance satisfactory to it, of each of the following:
(A) an affidavit in the form of Exhibit E-1 hereto
from the proposed transferee to the effect that such
transferee is a Permitted Transferee and that it is not
acquiring its Ownership Interest in the Class R Certificate
that is the subject of the proposed transfer as a nominee,
trustee or agent for any Person who is not a Permitted
Transferee, and an affidavit in the form of Exhibit E-2 hereto
from the proposed transferor, representing and warranting,
among other things, that no proposed transfer is to impede the
assessment or collection of tax;
(B) a covenant of the proposed transferee to the
effect that the proposed transferee agrees to be bound by and
to abide by the transfer restrictions applicable to the Class
R Certificates.
(C) Any attempted or purported transfer of any
Ownership Interest in a Class R Certificate in violation of
the provisions of this Section shall be absolutely null and
void and shall vest no rights in the purported transferee. If
any
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purported transferee shall, in violation of the provisions of
this Section, become a Holder of a Class R Certificate, then
the prior Holder of such Class R Certificate that is a
Permitted Transferee shall, upon discovery that the
registration of transfer of such Class R Certificate was not
in fact permitted by this Section, be restored to all rights
as Holder thereof retroactive to the date of registration of
transfer of such Class R Certificate. The Trustee shall be
under no liability to any Person for any registration of
transfer of a Class R Certificate that is in fact not
permitted by this Section or for making any distributions due
on such Class R 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 Trustee received
the documents specified in this clause (iii). The Trustee
shall be entitled to recover from any Holder of a Class R
Certificate that was in fact not a Permitted Transferee at the
time such distributions were made all distributions made on
such Class R Certificate. Any such distributions so recovered
by the Trustee shall be distributed and delivered by the
Trustee to the prior Holder of such Class R Certificate that
is a Permitted Transferee.
(iv) If any Person other than a Permitted Transferee acquires
any Ownership Interest in a Class R Certificate in violation of the
restrictions in this Section, then the Trustee shall have the right but
not the obligation, without notice to the Holder of such Class R
Certificate or any other Person having an Ownership Interest therein,
to notify the Depositor to arrange for the sale of such Class R
Certificate. The proceeds of such sale, net of commissions (which may
include commissions payable to the Depositor or its affiliates in
connection with such sale), expenses and taxes due, if any, will be
remitted by the Trustee to the previous Holder of such Class R
Certificate that is a Permitted Transferee, except that in the event
that the Trustee determines that the Holder of such Class R Certificate
may be liable for any amount due under this Section or any other
provisions of this Agreement, the Trustee may withhold a corresponding
amount from such remittance as security for such claim. The terms and
conditions of any sale under this clause (iv) shall be determined in
the sole discretion of the Trustee and it shall not be liable to any
Person having an Ownership Interest in a Class R Certificate as a
result of its exercise of such discretion.
(v) If any Person other than a Permitted Transferee acquires
any Ownership Interest in a Class R Certificate in violation of the
restrictions in this Section, then the Securities Administrator upon
receipt of reasonable compensation will provide to the Internal Revenue
Service, and to the persons specified in Sections 860E(e)(3) and (6) of
the Code, information needed to compute the tax imposed under Section
860E(e)(5) of the Code on transfers of residual interests to
disqualified organizations.
The foregoing provisions of this Section shall cease to apply to transfers
occurring on or after the date on which there shall have been delivered to the
Trustee, in form and substance satisfactory to the Trustee, (i) written
notification from each Rating Agency that the removal of the restrictions on
Transfer set forth in this Section will not cause such Rating Agency to
downgrade its rating of the Certificates and (ii) an Opinion of Counsel to the
effect that such removal will not cause the REMIC Trust hereunder to fail to
qualify as a REMIC.
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(e) No service charge shall be made for any registration of transfer or
exchange of Certificates of any Class, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled by the Certificate Registrar and disposed of pursuant to its
standard procedures.
Section 5.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (ii) there is delivered to
the Trustee, the Depositor and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute on behalf of the Trust, authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and Percentage Interest. Upon the issuance of any new
Certificate under this Section, the Trustee or the Certificate Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee and the Certificate Registrar) in
connection therewith. Any duplicate Certificate issued pursuant to this Section,
shall constitute complete and indefeasible evidence of ownership in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 5.04 PERSONS DEEMED OWNERS.
The Servicer, the Master Servicer, the Depositor, the Trustee, the
Certificate Registrar, any Paying Agent and any agent of the Servicer, the
Master Servicer, the Depositor, the Certificate Registrar, any Paying Agent or
the Trustee may treat the Person, including a Depository, in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.01 and for all other purposes
whatsoever, and none of the Servicer, the Master Servicer, the Trust, the
Trustee nor any agent of any of them shall be affected by notice to the
contrary.
To the extent the Trustee, Certificate Registrar or any Paying Agent is
required pursuant to this Agreement to determine the identity of the beneficial
owner of a Book-Entry Certificate, any costs assessed by the Depository in
making such determination shall be an expense of the party making such request,
but in no event shall such cost be an expense of the Trust Fund. Section 5.05
Appointment of Paying Agent.
The Paying Agent shall make distributions to Certificateholders from
the Distribution Account pursuant to Section 4.01 and shall report the amounts
of such distributions to the Trustee. The duties of the Paying Agent may include
the obligation (i) to withdraw funds from the Distribution Account pursuant to
Section 3.11 and for the purpose of making the distributions referred to above
and (ii) to distribute statements and provide information to Certificateholders
as required hereunder. The Paying Agent hereunder shall at all times be an
entity duly
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incorporated and validly existing under the laws of the United States of America
or any state thereof, authorized under such laws to exercise corporate trust
powers and subject to supervision or examination by federal or state
authorities. The Paying Agent shall initially be the Trustee. The Trustee may
appoint a successor to act as Paying Agent, which appointment shall be
reasonably satisfactory to the Depositor and the Rating Agencies.
The Trustee shall cause the Paying Agent (if other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee that such Paying Agent shall hold all sums, if any,
held by it for payment to the Certificateholders in trust the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders and shall agree that it shall comply with all requirements of
the Code regarding the withholding of payments in respect of federal income
taxes due from Certificate Owners and otherwise comply with the provisions of
this Agreement applicable to it.
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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 Trustee monthly on each
Distribution Date, commencing in March 2005, as instructed by the Master
Servicer or the Securities Administrator, 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:
(b) On each Distribution Date, the Available Funds will be distributed
in the following order of priority among the Senior Certificates except as
otherwise noted:
FIRST, to the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7 and Class A-8 Certificates, pro rata,
based on the entitlement of each such Class, the Accrued Certificate
Interest on each Class of Senior Certificates for such Distribution
Date. As described below, Accrued Certificate Interest on each Class of
Senior Certificates is subject to reduction in the event of certain
interest shortfalls allocable thereto. Any interest shortfalls shall be
allocated among the Senior Certificates as described below;
SECOND, to the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class A-7 and Class A-8 Certificates, pro rata,
based on the entitlement of each such Class, any Accrued Certificate
Interest thereon remaining undistributed from previous Distribution
Dates, to the extent of remaining Available Funds, any shortfall in
available amounts being allocated among the Senior Certificates in
proportion to the amount of such Accrued Certificate Interest remaining
undistributed for each of the Senior Certificates for such Distribution
Date; and
THIRD, the Senior Principal Distribution Amount for such
Distribution Date to the extent of remaining Available Funds,
concurrently as follows:
(i) approximately 82.2037134166% to the Class A-1, Class A-2
and Class A-3 Certificates, pro rata, based on the Class Certificate
Balances thereof, in reduction of the Class Certificate Balances
thereof, until the Class Certificate Balances of such Classes have been
reduced to zero; and
(ii) approximately 17.7962865834% to the following Classes of
Class A Certificates in the following order of priority:
(A) FIRST, concurrently as follows: (X) approximately
69.0000000000% of the amount available under clause (ii) above
to the Class A-4 Certificates in reduction of the Class
Certificate Balance thereof, until the Class Certificate
Balance of such Class has been reduced to zero, (Y)
approximately 30.5443413525% of the amount available under
clause (ii) above, sequentially, to the Class A-6 Certificates
and Class A-7 Certificates, in that order, in reduction of the
Class Certificate Balances thereof, in each case, until the
Class Certificate Balance of such Class has been reduced to
zero, and
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(B) SECOND, to the Class A-5 Certificates and Class
A-8 Certificates, pro rata, based on the Class Certificate
Balances of such Classes, in reduction of the Class
Certificate Balances thereof, until the Class Certificate
Balances of such Classes have been reduced to zero.
(c) On each Distribution Date on or prior to the Distribution Date on
which the Class Certificate Balances of the Subordinate Certificates are reduced
to zero (the "Credit Support Depletion Date"), an amount equal to the remaining
Available Funds after the distributions in clause (b) above 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: (i) the Accrued Certificate Interest
thereon for such Distribution Date, (ii) any Accrued Certificate Interest
thereon remaining undistributed from previous Distribution Dates and (iii) 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, 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 R Certificates. It
is not anticipated that there will be any significant amounts remaining for such
distribution.
(e) In addition to the foregoing distributions, with respect to any
Subsequent Recoveries, the Master Servicer shall deposit such amounts into the
Protected 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, but not by more than the
amount of Realized Losses previously allocated to that Class of Certificates
pursuant to Section 6.02(a). 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(a), and so on. Holders of such Certificates will not be entitled to
any payment in respect of Current 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 Class Certificate
Balance of each Certificate of such Class in accordance with its respective
Percentage Interest.
Section 6.02 ALLOCATION OF LOSSES. (a) On or prior to each
Determination Date, the Master Servicer shall determine the amount of any
Realized Loss in respect of each Mortgage Loan that occurred during the
immediately preceding calendar month.
(b) With respect to any 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;
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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; and
SEVENTH, to the Senior Certificates until the Class
Certificate Balances thereof have been reduced to zero; provided,
however, that Realized Losses that would otherwise be allocable to the
Class A-2 Certificates will first be allocated to the Class A-3
Certificates until the Class Certificate Balance thereof has been
reduced to zero, and the Realized Losses that would otherwise be
allocable to the Class A-5 Certificates will first be allocated to the
Class A-8 Certificates until the Class Certificate Balance thereof has
been reduced to zero.
(c) Any allocation of a Realized Loss (other than a Debt Service
Reduction) to a Certificate will be made by reducing the Class Certificate
Balance thereof, in the case of the principal portion of such Realized Loss, in
each case until the Class Certificate Balance of such Class has been reduced to
zero, and the Accrued Certificate Interest thereon, in the case of the interest
portion of such Realized Loss, by the amount so allocated as of the Distribution
Date occurring in the month following the calendar month in which such Realized
Loss was incurred. In addition, any such allocation of a Realized Loss to a
Subordinate Certificate may also be made by operation of the payment priority to
the Senior Certificates set forth under "--Principal Distributions on the Senior
Certificates" and any Class of Subordinate Certificates with a higher payment
priority. As used herein, "Debt Service Reduction" means a reduction in the
amount of the monthly payment due to certain bankruptcy proceedings, but does
not include any permanent forgiveness of principal. As used herein,
"Subordination" refers to the provisions discussed above for the sequential
allocation of Realized Losses among the various Classes, as well as all
provisions effecting such allocations including the priorities for distribution
of cash flows in the amounts described herein.
(d) Allocations of the principal portion of Debt Service Reductions to
the Class M Certificates and Class B Certificates will result from the priority
of distributions of the Available Funds as described herein, which distributions
shall be made first to the Senior Certificates, second to the Class M
Certificates in the order of their payment priority and third to the Class B
Certificates in the order of their payment priority. An allocation of the
interest portion of a Realized Loss as well as the principal portion of Debt
Service Reductions will not reduce the level of Subordination, as such term is
defined herein, until an amount in respect thereof has been actually disbursed
to the Senior Certificateholders, the Class M Certificateholders or the
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Class B Certificateholders, as applicable. The holders of the Offered
Certificates will not be entitled to any additional payments with respect to
Realized Losses from amounts otherwise distributable on any Classes of
Certificates subordinate thereto. Accordingly, the Subordination provided to the
Senior Certificates and to each Class of Class M Certificates and Class B
Certificates by the respective Classes of Certificates subordinate thereto with
respect to Realized Losses allocated on any Distribution Date will be effected
primarily by increasing the Senior Percentage, or the respective Class M
Percentage, of future distributions of principal of the remaining Mortgage
Loans. Thus, the Senior Certificates will bear the entire amount of losses that
are not allocated to the Class M Certificates and Class B Certificates, which
losses will be allocated among all Classes of Senior Certificates as described
herein.
(e) Any Excess Losses or other losses on the Mortgage Loans of a type
not covered by Subordination will be allocated on a pro rata basis among the
Certificates (any such Realized Losses so allocated to the Certificates will be
allocated without priority among the various Classes of Certificates). An
allocation of a Realized Loss on a "pro rata basis" among two or more Classes of
Certificates means an allocation to each such Class of Certificates on the basis
of its then outstanding Class Certificate Balance prior to giving effect to
distributions to be made on such Distribution Date in the case of an allocation
of the principal portion of a Realized Loss, or based on the Accrued Certificate
Interest thereon in respect of such Distribution Date in the case of an
allocation of the interest portion of a Realized Loss.
Section 6.03 PAYMENTS. (a) On each Distribution Date, other than the
final Distribution Date, the Trustee 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
Trustee by the Master Servicer or the Securities Administrator. 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 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
Trustee 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 Trustee 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
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each Certificateholder via the Securities Administrator's internet website as
set forth below, the following information:
(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 Mortgage
Loans at the close of business at the end of the related Due Period;
(vi) the number, weighted average remaining term to maturity
and weighted average Loan Rate of the Mortgage Loans as of the related
Due Date;
(vii) the number and aggregate unpaid principal balance of
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;
(viii) with respect to any Mortgage Loan that became an REO
Property during the preceding calendar month, the Stated Principal
Balance of such 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 Realized Losses incurred during
the related Due Period and the cumulative amount of Realized Losses;
(xii) the aggregate amount of Extraordinary Trust Fund
Expenses withdrawn from the Master Servicer Collection Account for such
Distribution Date;
(xiii) the Class Certificate Balance of each Class of
Certificates, after giving effect to the distributions made on such
Distribution Date;
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(xiv) 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;
(xv) the aggregate amount of any Prepayment Interest
Shortfalls for such Distribution Date, to the extent not covered by
Compensating Interest Payments by the Servicer or the Master Servicer
pursuant to the Servicing Agreement or Section 6.06;
(xvi) the Available Funds;
(xvii) the Pass-Through Rate for each Class of Certificates
for such Distribution Date; and
(xviii) the aggregate Stated Principal Balance of 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 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 2006, the Trustee 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 and advises
the Trustee 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 or the
Trustee 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
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and for which the Servicer was required to make an advance pursuant to the
Servicing Agreement exceeds the amount deposited in the Master Servicer
Collection Account which 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 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 Servicer is required to do so under
its Servicing Agreement. If applicable, on the Distribution Account Deposit
Date, the Master Servicer shall present an Officer's Certificate to the Trustee
(i) stating that the Master Servicer elects not to make a Monthly Advance in a
stated amount and (ii) detailing the reason it deems the advance to be
nonrecoverable.
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 Servicer under the Servicing Agreement 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
Servicer (such amount, the "Compensating Interest Payment"). The Master Servicer
shall not be entitled to any reimbursement of any Compensating Interest Payment.
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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 shall have
given the Master Servicer and the Depositor written notice of such claim or
legal action promptly after the Trustee 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.
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:
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(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 Trust Fund 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 Trust 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 the Servicing Agreement
(except to the extent that the Master Servicer is indemnified by the 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 Trust Fund, 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).
(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 Trust Fund 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.
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(f) The Master Servicer shall not be liable for any acts or omissions
of the 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 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
Trust or which thereafter become part of the Trust; 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
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Loan, (ii) for any 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, 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; provided, that the Trustee shall obtain a letter
from each Rating Agency that the ratings, if any, on each of the Certificates
will not be lowered as a result of the selection of the successor to the Master
Servicer. 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, 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
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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 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 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.
(c) On each Distribution Date, the Trustee 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 Securities Administrator.
(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 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
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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, the 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 performance of, any of the
obligations of the Master Servicer hereunder or under the Servicing Agreement,
except during such time, if any, as the Trustee shall be the successor to, and
be vested with the rights, duties, powers and privileges of, the Master Servicer
in accordance with the terms of this Agreement.
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(e) All funds received by the Master Servicer and the Trustee 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 Trustee.
(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 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
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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 Master Servicer, 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
Master Servicer;
(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 repurchase of any Mortgage
Loan by the Seller pursuant to this Agreement or the Assignment,
Assumption and Recognition Agreement, or by the Originator pursuant to
this Agreement or the Servicing Agreement, as applicable, or the
eligibility of any Mortgage Loan for purposes of this Agreement.
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
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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 other than any continuation statements
filed by the Trustee pursuant to Section 3.20.
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 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
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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 Fitch with respect to their
long-term rating and rated "BBB" or higher by S&P and Fitch 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 the
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/F1" by Fitch, if Fitch is a Rating Agency, or the
equivalent rating by S&P or Moody's, or such other rating as is acceptable to
Fitch as provided in an Rating Agency Confirmation. 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. The Trustee shall notify
the Rating Agencies of any change of Securities Administrator.
Section 9.07 INSURANCE. The Trustee and the Securities Administrator,
at their 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
Trustee or the Securities Administrator as to the
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Trustee's or the Securities Administrator's, respectively, 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 Master
Servicer, 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.
(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
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execute, acknowledge and deliver to the Depositor and to 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.
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
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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-trustee 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 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) For federal income tax purposes,
the taxable year of the REMIC Trust shall
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be a calendar year and the Securities Administrator shall maintain or cause the
maintenance of the books of such REMIC Trust on the accrual method of
accounting.
(b) The Securities Administrator shall prepare and file or cause to be
filed with the Internal Revenue Service, and the Trustee shall sign, federal tax
information returns or elections required to be made hereunder with respect to
the REMIC Trust, the Trust Fund, if applicable, and the Certificates containing
such information and at the times and in the manner as may be required by the
Code or applicable Treasury regulations, and shall furnish to each Holder of
Certificates at any time during the calendar year for which such returns or
reports are made such statements or information at the times and in the manner
as may be required thereby, including, without limitation, reports relating to
interest, original issue discount and market discount or premium (using a
constant prepayment assumption of 25% CPR for the Mortgage Loans). The
Securities Administrator will apply for an Employee Identification Number from
the IRS under Form SS-4 or any other acceptable method for all tax entities. In
connection with the foregoing, the Securities Administrator shall timely prepare
and file, and the Trustee shall sign, IRS Form 8811, which shall provide the
name and address of the person who can be contacted to obtain information
required to be reported to the holders of regular interests in the REMIC Trust
(the "REMIC Reporting Agent"). The Trustee shall make an election to treat the
REMIC Trust as a REMIC (which elections shall apply to the taxable period ending
December 31, 2005 and each calendar year thereafter) in such manner as the Code
or applicable Treasury regulations may prescribe, and as described by the
Securities Administrator. The Trustee shall sign all tax information returns
filed pursuant to this Section and any other returns as may be required by the
Code. The Holder of the Class R Certificate is hereby designated as the "Tax
Matters Person" (within the meaning of Treas. Reg. ss.ss.1.860F-4(d)) for the
REMIC Trust. The Securities Administrator is hereby designated and appointed as
the agent of each such Tax Matters Person. Any Holder of a Residual Certificate
will by acceptance thereof appoint the Securities Administrator as agent and
attorney-in-fact for the purpose of acting as Tax Matters Person for the REMIC
Trust during such time as the Securities Administrator does not own any such
Residual Certificate. In the event that the Code or applicable Treasury
regulations prohibit the Trustee from signing tax or information returns or
other statements, or the Securities Administrator from acting as agent for the
Tax Matters Person, the Trustee and the Securities Administrator shall take
whatever action that in its sole good faith judgment is necessary for the proper
filing of such information returns or for the provision of a tax matters person,
including designation of the Holder of a Residual Certificate to sign such
returns or act as tax matters person. Each Holder of a Residual Certificate
shall be bound by this Section.
(c) The Securities Administrator shall provide upon request and receipt
of reasonable compensation, such information as required in Section
860D(a)(6)(B) of the Code to the Internal Revenue Service, to any Person
purporting to transfer a Residual Certificate to a Person other than a
transferee permitted by Section 5.05(b), and to any regulated investment
company, real estate investment trust, common trust fund, partnership, trust,
estate, organization described in Section 1381 of the Code, or nominee holding
an interest in a pass-through entity described in Section 860E(e)(6) of the
Code, any record holder of which is not a transferee permitted by Section
5.05(b) (or which is deemed by statute to be an entity with a disqualified
member).
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(d) The Securities Administrator shall prepare and file or cause to be
filed, and the Trustee shall sign, any state income tax returns required under
Applicable State Law with respect to the REMIC Trust or the Trust Fund.
(e) 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
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.
(f) 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 Master Servicer, 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.
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ARTICLE X
TERMINATION
Section 10.01 TERMINATION.
(a) The respective obligations and responsibilities of the Master
Servicer, the Depositor and the Trustee created hereby (other than the
obligation of the Trustee to make certain payments to Certificateholders after
the final Distribution Date and the obligation of the Master Servicer to send
certain notices as hereinafter set forth) shall terminate upon notice to the
Trustee upon the earliest of (i) the Distribution Date on which the Class
Certificate Balance of each Class of Certificates has been reduced to zero, (ii)
the final payment or other liquidation of the last Mortgage Loan in the Trust,
and (iii) the optional purchase by the Master Servicer of the Mortgage Loans as
described below. Notwithstanding the foregoing, in no event shall the trust
created hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of
the United States to the Court of St. James's, living on the date hereof.
The Master Servicer may, at its option, terminate this
Agreement on any date on which the aggregate Stated Principal Balance of the
Mortgage Loans is 10% or less of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date, or by purchasing, on the next succeeding
Distribution Date, all of the outstanding Mortgage Loans and REO Properties at a
price equal to the sum of the outstanding Stated Principal Balance of the
Mortgage Loans and accrued and unpaid interest thereon at the weighted average
of the Mortgage Interest Rates through the end of the Due Period preceding the
final Distribution Date plus unreimbursed Monthly Advances and any unpaid
Servicing Fees allocable to such Mortgage Loans and REO Properties (the
"Termination Price").
In connection with any such purchase pursuant to the preceding
paragraph, the Master Servicer shall deposit in the Distribution Account all
amounts then on deposit in the Master Servicer Collection Account (less amounts
permitted to be withdrawn by the Master Servicer pursuant to Section 4.03),
which deposit shall be deemed to have occurred immediately preceding such
purchase.
Any such purchase shall be accomplished by deposit into the
Distribution Account on the Business Day before such Distribution Date of the
Termination Price and the delivery of an opinion of counsel that such
termination is a "qualified liquidation" under Section 860F of the Code.
(b) Notice of any termination, specifying the Distribution Date (which
shall be a date that would otherwise be a Distribution Date) upon which the
Certificateholders may surrender their Certificates to the Trustee for payment
of the final distribution and cancellation, shall be given promptly by the
Trustee upon the Trustee receiving notice of such date from the Master Servicer,
by letter to the Certificateholders mailed not earlier than the 15th day and not
later than the 25th day of the month next preceding the month of such final
distribution specifying (1) the Distribution Date upon which final distribution
of the Certificates will be made upon presentation and surrender of such
Certificates at the office or agency of the Trustee therein
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designated, (2) the amount of any such final distribution and (3) 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 or agency of the Trustee therein specified.
(c) Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Holders of the Certificates on the
Distribution Date for such final distribution, in proportion to the Percentage
Interests of their respective Class and to the extent that funds are available
for such purpose, an amount equal to the amount required to be distributed to
such Holders in accordance with the provisions of Section 6.01 for such
Distribution Date.
(d) In the event that all Certificateholders shall not surrender their
Certificates for final payment and cancellation on or before such final
Distribution Date, the Trustee shall promptly following such date cause all
funds in the Distribution Account not distributed in final distribution to
Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate servicing account for
the benefit of such Certificateholders, and the Master Servicer (if the Master
Servicer has exercised its right to purchase the Mortgage Loans) or the Trustee
(in any other case) 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 nine months after the
second notice all the Certificates shall not have been surrendered for
cancellation, the Class R Certificateholders shall be entitled to all unclaimed
funds and other assets which remain subject hereto, and the Trustee upon
transfer of such funds shall be discharged of any responsibility for such funds,
and the Certificateholders shall look to the Class R Certificateholders for
payment.
Section 10.02 ADDITIONAL TERMINATION REQUIREMENTS. (a) In the event
that 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 Trustee shall have been furnished with an
Opinion of Counsel to the effect that the failure of the Trust to comply with
the requirements of this Section will not (i) result in the imposition of taxes
on "prohibited transactions" of the Trust as defined in Section 860F of the Code
or (ii) cause the 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
Trustee shall adopt and sign a plan of complete liquidation of the
Trust Fund as provided to it by the Master Servicer, 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 Trustee shall sell all of the assets of the Trust to the Master
Servicer 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 Trustee as their attorney in fact to: (i) adopt such a plan
of complete liquidation (and the Certificateholders hereby appoint the Trustee
as their attorney in fact to sign such plan) as
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appropriate and (ii) to take such other action in 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 the REMIC
Trust 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 the Assignment, Assumption and Recognition Agreement may be amended
from time to time by MLMLI, the Master Servicer and the Trustee, without notice
to or the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions herein or therein, to comply with any
changes in the Code or to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be inconsistent with the
provisions of this Agreement; provided, however, that such action shall not, as
evidenced by an Opinion of Independent Counsel, addressed to the Trustee,
adversely affect in any material respect the interests of any Certificateholder
or adversely affect the status of the REMIC Trust created hereunder as a REMIC.
(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, Assumption and Recognition Agreement may also be amended from time
to time by the Master Servicer and the Trustee, with the 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, (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, or (iii) cause the
REMIC Trust to fail to qualify as a REMIC for federal income tax purposes, as
evidenced by an Opinion of Independent Counsel which shall be provided to the
Trustee other than at the Trustee's expense. Notwithstanding any other provision
of this Agreement, for purposes of the giving or withholding of consents
pursuant to Section 11.02(b), Certificates registered in the name of or held for
the benefit of the Depositor, the Securities Administrator, the Master Servicer,
or the Trustee or any Affiliate thereof shall be entitled to vote their
Percentage Interests with respect to matters affecting such Certificates.
(c) Promptly after the execution of any such amendment, the Trustee
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.
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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 the REMIC Trust 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.
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 Trust 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
Trust, nor entitle such Certificateholder's legal representatives or heirs to
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of the Trust, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
(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 Trust, 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,
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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 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.
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(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 Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Certificates which 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 Trustee 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.
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 MLMLI, 4 World Financial Center, New York, New York 10281,
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; (iv) 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 2005-A2, or, in the case of overnight deliveries, 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: MLMI series 2005-A2, facsimile
no.: (000) 000-0000, or such other address as may hereafter be furnished to the
other parties hereto in writing; (v) in the case of the Custodian, Xxxxx Fargo
Bank, National Association, 0000 00xx Xxxxxx Xxxxxxxxx, XX 0031, Xxxxxxxxxxx,
Xxxxxxxxx 00000 Attention: MLMI Series 2005-A2; or such other address as may
hereafter be furnished to the other parties hereto in writing; or (vi) in the
case of the Rating Agencies, Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and Fitch, Inc., Xxx
Xxxxx Xxxxxx Xxxxx - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any notice delivered
to the Depositor, the Master Servicer, the Securities Administrator or the
Trustee 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
Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer, 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.
Section 11.13 THIRD PARTY BENEFICIARY. For purposes of Sections 3.07,
3.08, 3.15(c), 4.01 and 4.05 of this Agreement, Washington Mutual Bank, FA shall
be considered a third party beneficiary entitled to all the rights and benefits
accruing to any servicer herein as if it were a direct party to this agreement.
-100-
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: /s/ Xxxx Park
--------------------------------
Name: Xxxx Park
Title: Managing Director
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Trustee
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, N.A., as Master
Servicer
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A., as Securities
Administrator
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 25th day of February, 2005 before me, a notary public in and for
said State, personally appeared Xxxx Park, known to me to be a Managing Director
of Xxxxxxx Xxxxx Mortgage Investors, Inc., the corporation that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxx
----------------
Notary Public
[Notarial Seal]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 25th day of February 2005 before me, a notary public in and for
said State, personally appeared Xxxxx X. Xxxxxx, known to me to be an Assistant
Vice President of Wachovia Bank, National Association, the entity that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxx
----------------
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 25th day of February 2005 before me, a notary public in and for
said State, personally appeared Xxxxxx Xxxxxx, known to me to be a Vice
President of Xxxxx Fargo Bank, National Association, the entity that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
-------------------
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 25th day of February 2005 before me, a notary public in and for
said State, personally appeared Xxxxxx Xxxxxx, known to me to be a Vice
President of Xxxxx Fargo Bank, National Association, the entity that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
-------------------
Notary Public
[Notarial Seal]
EXHIBIT A-1
FORM OF CLASS [A-_][M-_] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS 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 (THE "CODE").
[THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES
[THE CLASS M-1 CERTIFICATES AND THE CLASS M-2 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.
[EACH BENEFICIAL OWNER OF A CLASS M CERTIFICATE OR ANY
INTEREST THEREIN SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS
ACQUISITION OR HOLDING OF THAT CERTIFICATE OR INTEREST THEREIN, THAT EITHER (I)
IT IS NOT A PLAN OR A PLAN INVESTOR OR INVESTING WITH PLAN ASSETS, (II) IT HAS
ACQUIRED AND IS HOLDING SUCH CERTIFICATE IN RELIANCE ON THE PROHIBITED
TRANSACTION EXEMPTION 90-29 ISSUED BY THE DEPARTMENT OF LABOR, AS AMENDED
("EXEMPTION"), AND THAT IT UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE
AVAILABILITY OF THE EXEMPTION, INCLUDING THAT THE CERTIFICATE MUST BE RATED, AT
THE TIME OF PURCHASE, NOT LOWER THAN "BBB-" (OR ITS EQUIVALENT) BY FITCH,
XXXXX'X OR S&P, OR (III) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE OF FUNDS
USED TO ACQUIRE OR HOLD THE CERTIFICATE OR INTEREST THEREIN IS AN "INSURANCE
COMPANY GENERAL ACCOUNT," AS SUCH TERM IS DEFINED IN PTCE 95-60, AND (3) THE
CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN SATISFIED.]
[IF ANY BOOK-ENTRY CERTIFICATE (OR ANY INTEREST THEREIN) IS
ACQUIRED OR HELD IN VIOLATION OF THE PROVISIONS OF SECTION 5.02(D) 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. THE TRUSTEE SHALL BE
UNDER NO 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(D) OF THE AGREEMENT SHALL INDEMNIFY AND HOLD
HARMLESS THE DEPOSITOR, THE TRUSTEE, THE 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 2005-A2, Class [A-_][M-_] Aggregate [Class Certificate Balance] of the
Class [A-_][M-_] Certificates as of the Issue Date:
$_______________
Pass-Through Rate: __________ Initial [Class Certificate Balance] of this Class
[A-_][M-_] Certificate as of the Issue Date
$__________
Date of Agreement and Cut-off Date: Master Servicer:
February 1, 2005 Xxxxx Fargo Bank, N.A.
First Distribution Date: March 25, 2005 Trustee: Wachovia Bank, National Association
No. __ Issue Date: February 28, 2005
CUSIP: ___________
DISTRIBUTIONS IN REDUCTION OF THE [CLASS CERTIFICATE
BALANCE] OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING [CLASS
CERTIFICATE 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 2005-A2
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of one- to four-family, fixed-rate and
adjustable-rate 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 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 Cede & Co. is the registered owner of a
Percentage Interest obtained by dividing the denomination of this Certificate by
the aggregate [Class Certificate Balance] of the Class [A-_][M-_] Certificates
as of the Issue Date in that certain beneficial
A-1-3
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.
(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 Wachovia Bank, National Association (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 [Class Certificate Balance] hereof at a per
annum rate equal to the Pass-Through Rate set forth above and as further
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 or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Trustee in writing at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of 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 Trustee of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trustee for that purpose as provided in
the Agreement.
[As described above, each any transferee of a Class M
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of that certificate or interest therein,
that either (i) it is not a Plan or a Plan Investor or investing with Plan
assets, (ii) it has acquired and is holding such certificate in reliance on the
Prohibited Transaction Exemption 90-29 issued by the Department of Labor, as
amended ("Exemption"), and that it understands that there are certain conditions
to the availability of the Exemption, including that the certificate must be
rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by
Fitch, Xxxxx'x or S&P, or (iii) (1) it is an insurance company, (2) the source
of funds used to acquire or hold the certificate or interest therein is an
"insurance company general account," as such term is defined in PTCE 95-60, and
(3) the conditions in Sections I and III of PTCE 95-60 have been satisfied.]
A-1-4
[If any Book-Entry Certificate (or any interest therein) is
acquired or held in violation of the provisions of Section 5.02(d) 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. The Trustee shall be under no 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(d) of the Agreement shall indemnify and hold
harmless the Depositor, the Trustee, the 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 (hereinafter 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 [Class Certificate 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 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 Master Servicer and the Trustee and the rights
of the Holders of the Certificates under the Agreement at any time by the
Depositor, the Master Servicer and the Trustee, with the 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. 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 Trustee 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
Trustee 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
A-1-5
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 or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Master Servicer, the Trustee and the
Certificate Registrar and any agent of the Depositor, 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 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 or on behalf of the Trustee
and required to be paid to them pursuant to the Agreement following the earlier
of (i) the final payment (or any advance with respect thereto) on or other
liquidation of the last Mortgage Loan remaining in the Trust Fund and (ii) the
optional purchase by the party designated in the Agreement at a price determined
as provided in the Agreement from the Trust Fund of all the Mortgage Loans and
all property acquired in respect of such Mortgage Loans remaining therein. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all the Mortgage Loans and all property acquired
in respect of any Mortgage Loan remaining therein at a price determined as
provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Loan Balance of the Mortgage Loans at the time of purchase being
10% or less 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 Trustee 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 Trustee has caused this Certificate to
be duly executed.
Dated: _____________, 2005
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: ________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class [A-_][M-_] Certificates referred to
in the within-mentioned Agreement.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: _________________________________
Authorized Signatory
EXHIBITS TO POOLING & SERVICING AGREEMENT
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)
under Uniform Gifts
to Minors Act
------------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
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
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.
EXHIBIT A-2
FORM OF CLASS [B-_] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND THE
CLASS M CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE CODE WILL BE REGISTERED
EXCEPT IN ACCORDANCE WITH SECTION 5.02(d) OF THE AGREEMENT.
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.
MLMI Series 2005-A2, Class [B-_] Aggregate Certificate Principal Balance
of Class [B-_] Certificates as of the Issue Date:
$__________
Pass Through Rate: __________ Denomination: $__________
Date of Agreement and Cut-off Date: Master Servicer:
February 1, 2005 Xxxxx Fargo Bank, N.A.
First Distribution Date: March 25, 2005 Trustee: Wachovia Bank, National Association
[ ], 2005 Issue Date: February 28, 2005
No. __ 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
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of conventional, one- to four-family, fixed-rate
and adjustable-rate mortgage loans secured by first liens on residential
property (the "Mortgage Loans") formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
MLMI SERIES 2005-A2
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST
IN XXXXXXX XXXXX MORTGAGE INVESTORS, INC., THE MASTER SERVICER,
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 (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
A-2-2
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc. (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 Wachovia Bank, National Association (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 or on behalf of the Trustee by
wire transfer in immediately available funds to the account of the Person
entitled thereto if such Person shall have so notified the Trustee in writing at
least five Business Days prior to the Record Date immediately prior to such
Distribution Date and is the registered owner of 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 Trustee of the pendency of such
distribution and only upon the presentation and surrender of this Certificate at
the office or agency appointed by the Trustee 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 (hereinafter 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 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 Master Servicer and the Trustee and the rights
of the Holders of the Certificates under the Agreement at any time by the
Depositor, the Master Servicer and the Trustee, with the consent of
A-2-3
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. 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 Trustee 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
Trustee 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 an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, (i) unless such transfer is made in reliance upon
Rule 144A (as evidenced by the investment letter delivered to the Trustee, in
substantially the form attached to the Agreement as Exhibit F-3) under the 1933
Act, the Trustee and the Depositor shall require a written Opinion of Counsel
(which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act,
which Opinion of Counsel shall not be an expense of the Trustee or the Depositor
or (ii) the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Agreement as Exhibit F-2)
and the transferee to execute an investment letter (in substantially the form
attached to the Agreement as Exhibit F-2) acceptable to and in form and
substance reasonably satisfactory to the Depositor and the Trustee certifying to
the Depositor and the Trustee the facts surrounding such transfer, which
investment letter shall not be an expense of the Trustee or the Depositor. None
of the Depositor, the Certificate Registrar or the Trustee is obligated to
register or qualify the Class of Certificates specified on the face hereof under
the 1933 Act or any other securities law or to take any action not otherwise
A-2-4
required under the Agreement to permit the transfer of such Certificates without
registration or qualification. Any Holder desiring to effect a transfer of this
Certificate shall be required to indemnify the Trustee, the Depositor, the
Certificate Registrar and the Master Servicer against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any person using Plan Assets to acquire this Certificate
shall be made except in accordance with Section 5.02(d) of the Agreement. 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 Master Servicer, the Trustee and the
Certificate Registrar and any agent of the Depositor, 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 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 or on behalf of the Trustee
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 purchase by the party
designated in the Agreement at a price determined as provided in the Agreement
from the Trust Fund of all the Mortgage Loans and all property acquired in
respect of such Mortgage Loans remaining therein. The Agreement permits, but
does not require, the party designated in the Agreement to purchase from the
Trust Fund all the Mortgage Loans and all property acquired in respect of any
Mortgage Loan remaining therein at a price determined as provided in the
Agreement. The exercise of such right will effect early retirement of the
Certificates; however, such right to purchase is subject to the aggregate Loan
Balance of the Mortgage Loans at the time of purchase being 10% or less 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 Trustee 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-2-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated: ______________, 2005
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: ________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class [B-_] Certificates referred to in the
within-mentioned Agreement.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ________________________________
Authorized Signatory
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)
under Uniform Gifts
to Minors Act
------------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
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
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.
EXHIBIT A-3
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" ("REMIC"), AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
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.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE CODE WILL BE REGISTERED
EXCEPT IN ACCORDANCE WITH SECTION 5.02(d) OF THE AGREEMENT.
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 (I) AN AFFIDAVIT TO THE TRUSTEE
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 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, AND (II) SUCH TRANSFEREE SATISFIES CERTAIN
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE
PROPOSED TRANSFEREE. 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(d) 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 2005-A2, Class R Percentage Interest: 100%
Date of Agreement and Cut-off Date: Master Servicer: Xxxxx Fargo Bank, N.A.
February 1, 2005
First Distribution Date: March 25, 2005 Trustee: Wachovia Bank, National Association
No. __ Issue Date: February 28, 2005
CUSIP: __________
MORTGAGE PASS-THROUGH CERTIFICATE
MLMI SERIES 2005-A2
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund")
consisting primarily of a pool of one-to four-family, fixed-rate and
adjustable-rate 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 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 100% Percentage Interest specified above in that certain beneficial
ownership interest evidenced by all the Class 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. (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 Wachovia Bank, National Association (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 (each, a "Distribution Date"), commencing
on the First Distribution Date specified
A-3-3
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 R Certificates on such Distribution Date pursuant to the Agreement.
This Certificate does not have a Class Certificate Balance or
Pass-Through Rate and will be entitled to distributions only to the extent set
forth 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 (hereinafter 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 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 Master Servicer and the Trustee and the rights
of the Holders of the Certificates under the Agreement at any time by the
Depositor, the Master Servicer and the Trustee, with the 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. 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 Trustee 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
Trustee 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.
A-3-4
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, sale, pledge or other disposition of this Class R
Certificate shall be made unless such disposition is exempt from the
registration requirements of the Securities Act of 1933, as amended (the "1933
Act"), and any applicable state securities laws or is made in accordance with
the 1933 Act and laws. In the event of any such transfer, made in reliance upon
an exemption from the 1933 Act, (i) the Trustee and the Depositor shall require
(a) the transferor to certify in writing the facts surrounding the transfer (in
substantially the form attached to the Agreement as Exhibit E-2), and the
transferee to execute an investment letter (in substantially the form attached
to the Agreement as Exhibit E-1) and (b) a written Opinion of Counsel (which may
be in-house counsel) acceptable to and in form and substance reasonably
satisfactory to the Trustee and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall not be an expense of the Trustee or the Depositor. The
Holder of this Class R Certificate desiring to effect such transfer shall, and
does hereby agree to, indemnify the Trustee 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 transfer of this Certificate to a Plan subject to ERISA or
Section 4975 of the Code, any Person acting, directly or indirectly, on behalf
of any such Plan or any person using Plan Assets to acquire this Certificate
shall be made except in accordance with Section 5.02(d) of the Agreement.
Prior to registration of any transfer, sale or other
disposition of this Certificate, the proposed transferee shall provide to the
Trustee (i) an affidavit to the effect that such transferee is any Person other
than a Disqualified Organization or the agent (including a broker, nominee or
middleman) of a Disqualified Organization, and (ii) a certificate that
acknowledges that (A) the Class R Certificates have been designated as a
residual interest in a REMIC, (B) it will include in its income a pro rata share
of the net income of the Trust Fund and that such income may be an "excess
inclusion," as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects to
have the financial means to satisfy all of its tax obligations including those
relating to holding the Class R Certificates. Notwithstanding the registration
in the Certificate Register of any transfer, sale or other disposition of this
Certificate to a Disqualified Organization or an agent (including a broker,
nominee or middleman) 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, including, but not limited to,
the receipt of distributions in respect of this Certificate.
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 Master Servicer, the Trustee and the
Certificate Registrar and any agent of the Depositor, 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 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 or on behalf of the Trustee
and required to be paid to them pursuant to the Agreement following the earlier
of (i) the final payment (or any advance with respect thereto) on or other
liquidation of the last Mortgage Loan remaining in the Trust Fund and (ii) the
optional purchase by the party designated in the Agreement at a price determined
as provided in the Agreement from the Trust Fund of all the Mortgage Loans and
all property acquired in respect of such Mortgage Loans remaining therein. The
Agreement permits, but does not require, the party designated in the Agreement
to purchase from the Trust Fund all the Mortgage Loans and all property acquired
in respect of any Mortgage Loan remaining therein at a price determined as
provided in the Agreement. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Loan Balance of the Mortgage Loans at the time of purchase being
10% or less 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 Trustee 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 Trustee has caused this Certificate to
be duly executed.
Dated: _____________, 2005
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By:_________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Class R Certificates referred to in the within-mentioned
Agreement.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:_________________________________
Authorized Signatory
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)
under Uniform Gifts
to Minors Act
------------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
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
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.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
[Provided Upon Request]
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 _________, among _______________,
_____, and Xxxxx Fargo Bank, N.A., as Custodian
In connection with the administration of the Mortgage Loans held by you
as Custodian for the Owner pursuant to the above-captioned Custody 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 TRANSFER AFFIDAVIT
Affidavit pursuant to Section
860E(e)(4) of the Internal
Revenue Code of 1986, as
amended, and for other purposes
STATE OF )
)ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Investor] (the
"Investor"), a [savings institution] [corporation] duly organized and existing
under the laws of [the State of _____] [the United States], on behalf of which
he makes this affidavit.
2. That (i) the Investor is not a "disqualified organization" as
defined in Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the "Code"), and will not be a disqualified organization as of [Closing Date]
[date of purchase]; (ii) it is not acquiring the Xxxxxxx Xxxxx Mortgage
Investors, Inc. Mortgage Pass-Through Certificates, MLMI Series 2005-A2, Class R
Certificates (the "Residual Certificates") for the account of a disqualified
organization; (iii) it consents to any amendment of the Pooling and Servicing
Agreement that shall be deemed necessary by Xxxxxxx Xxxxx Mortgage Investors,
Inc. (upon advice of counsel) to constitute a reasonable arrangement to ensure
that the Residual Certificates will not be owned directly or indirectly by a
disqualified organization; and (iv) it will not transfer such Residual
Certificates unless (a) it has received from the transferee an affidavit in
substantially the same form as this affidavit containing these same four
representations and (b) as of the time of the transfer, it does not have actual
knowledge that such affidavit is false.
3. That the Investor is one of the following: (i) a citizen or resident
of the United States, (ii) 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 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, (iii) an
estate whose income is subject to United States federal income tax regardless of
its source, or (iv) a trust other than a "foreign trust," as defined in Section
7701 (a)(31) of the Code.
4. That the Investor's taxpayer identification number is ____________.
E-1-1
5. That no purpose of the acquisition of the Residual Certificates is
to avoid or impede the assessment or collection of tax.
6. That the Investor understands that, as the holder of the Residual
Certificates, the Investor may incur tax liabilities in excess of any cash flows
generated by such Residual Certificates.
7. That the Investor intends to pay taxes associated with holding the
Residual Certificates as they become due.
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
[Title of Officer] this ____ day of _________, 20__.
[NAME OF INVESTOR]
By: ____________________________________
[Name of Officer]
[Title of Officer]
[Address of Investor for receipt of
distributions]
Address of Investor for
receipt of tax
information:
E-1-2
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE
__________ , 20__
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Trustee]
Attention: Xxxxxxx Xxxxx Mortgage Investors, Inc, Series _______
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, MLMI Series 2005-A2, Class [___]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Seller") to _____________________(the "Purchaser")
of $______________ Initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, MLMI Series ________, Class R (the "Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement, dated as of
February 1, 2005 among Xxxxxxx Xxxxx Mortgage Investors, Inc., (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 Wachovia Bank, National Association, as trustee
(the "Trustee"). All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Seller hereby
certifies, represents and warrants to, and covenants with, the Company and the
Trustee that:
1. No purpose of the Seller relating to the transfer of the Certificate
by the Seller to the Purchaser is or will be to impede the assessment or
collection of any tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee and the Master Servicer a transfer affidavit and agreement in the form
attached to the Pooling and Servicing Agreement as Exhibit E-1. The Seller does
not know or believe that any representation contained therein is false.
3. The Seller has at the time of the transfer conducted a reasonable
investigation of the financial condition of the Purchaser as contemplated by
Treasury Regulations Section 1.860E- 1(c)(4)(i) and, as a result of that
investigation, the Seller has determined that the Purchaser has historically
paid its debts as they become due and has found no significant evidence to
indicate that the Purchaser will not continue to pay its debts as they become
due in the future. The Seller understands that the transfer of a Class R
Certificate may not be respected for United States income tax purposes (and the
Seller may continue to be liable for United States income taxes Associated
therewith) unless the Seller has conducted such an investigation.
E-2-1
4. The Seller has no actual knowledge that the proposed Transferee is
not both a United States Person and a Permitted Transferee.
Very truly yours,
______________________________________
(Seller)
By:___________________________________
Name:
Title:
E-2-2
EXHIBIT F-1
FORM OF TRANSFEROR REPRESENTATION LETTER
______________,200___
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, MLMI Series 2005-A2, 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 2005-A2, Class _____ (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of February 1, 2005 among Xxxxxxx
Xxxxx Mortgage Investors, Inc., (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 Wachovia
Bank, National Association, as trustee (the "Trustee"). The Seller hereby
certifies, represents and warrants to, and covenants with, the Depositor and the
Trustee 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
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.
F-1-1
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
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, MLMI Series 2005-A2, Class R
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) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or a plan or arrangement that is subject to Section
4975 of the Internal Revenue Code of 1986, as amended ("Code"), nor are we
acting on behalf of any such plan or arrangement nor are we using the assets of
any such plan or arrangement to effect such acquisition or (ii) the proposed
transfer and holding of such a Certificate and the servicing, management and
operation of the Trust: (I) will not result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code which is not covered under an
individual or class prohibited transaction exemption including but not limited
to Department of Labor Prohibited Transaction Class Exemption ("PTCE") 84-14
(Class Exemption for Plan Asset Transactions Determined by Independent Qualified
Professional Asset Managers); PTCE 91-38 (Class Exemption for Certain
Transactions Involving Bank Collective Investment Funds); PTCE 90-1 (Class
Exemption for Certain Transactions Involving Insurance Company Pooled Separate
Accounts), PTCE 95-60 (Class Exemption for Certain Transactions Involving
Insurance Company General Accounts), and PTCE 96-23 (Class Exemption for Plan
Asset Transactions Determined by In-House Asset Managers) and (II) will not
subject the Depositor, the Servicer, the Master Servicer, the Securities
Administrator or the Trustee to any obligation in addition to those undertaken
in the Agreement, (e) we are acquiring the Certificates for investment for our
own account and not with a view to any distribution of
F-2-1
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
____________, 2005
Xxxxxxx Xxxxx Mortgage Investors, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, MLMI Series 2005-A2, Class R
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) either we are not an employee benefit plan that
is subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended ("Code"), nor are we acting on behalf
of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such acquisition or the proposed transfer and holding of
such a Certificate and the servicing, management and operation of the Trust: (I)
will not result in a prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code which is not covered under an individual or class
prohibited transaction exemption including but not limited to Department of
Labor Prohibited Transaction Class Exemption ("PTCE") 84-14 (Class Exemption for
Plan Asset Transactions Determined by Independent Qualified Professional Asset
Managers); PTCE 91-38 (Class Exemption for Certain Transactions Involving Bank
Collective Investment Funds); PTCE 90-1 (Class Exemption for Certain
Transactions Involving Insurance Company Pooled Separate Accounts), PTCE 95-60
(Class Exemption for Certain Transactions Involving Insurance Company General
Accounts), and PTCE 96-23 (Class Exemption for Plan Asset Transactions
Determined by In-House Asset Managers) and (II) will not subject the Depositor,
the Servicer, the Master Servicer, the Securities Administrator or the Trustee
to any obligation in addition to those undertaken in the Agreement, (e) we have
not, nor has anyone acting on 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
F-3-1
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-2
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-2-1
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-2-2
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-2-3
ANNEX II TO EXHIBIT F-2
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-2-1
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-2-2
EXHIBIT G
CUSTODIAL AGREEMENT
-------------------
THIS CUSTODIAL AGREEMENT (as amended and supplemented from
time to time, the "Agreement"), dated as of February 28, 2005, by and among
WACHOVIA BANK, 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 master servicer and securities
administrator (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 February 1, 2005,
relating to the issuance of Mortgage Pass-Through Certificates, MLMI Series
2005-A2 (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 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:
ARTICLE I
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.
ARTICLE II
CUSTODY OF MORTGAGE DOCUMENTS
Section 2.1 CUSTODIAN TO ACT AS AGENT: ACCEPTANCE OF MORTGAGE
FILES. 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 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.
G-1
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 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.
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.
G-2
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 therefore 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 the related 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 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 the related 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 the related 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 the related 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, the Servicer shall deliver two copies of the
Request for Release if delivered in hard copy or the 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 Serviced 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 Serviced shall send to the Trustee a
certificate of satisfaction or
G-3
other similar instrument to be executed by or on behalf of the Trustee and
returned to the related 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.
ARTICLE III
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 Servicers
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 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
G-4
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.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.1 NOTICES. All notices, requests, consents and
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.
G-5
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 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-6
IN WITNESS WHEREOF, this Agreement is executed as of the date
first above written.
Address: WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000 By: __________________________________
Name:
Attention: Title:
Telecopy:
Confirmation:
Address: XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 By: __________________________________
Name: Xxxx Park
Title: Managing Director
Address: XXXXX FARGO BANK, N.A.,
as Master Servicer
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
By: __________________________________
Name:
Title:
Address: XXXXX FARGO BANK, N.A.,
as Custodian
0000 00xx Xxxxxx Xxxxxxxxx, XX 0031
Xxxxxxxxxxx, XX 00000
By: __________________________________
Name:
Title:
X-0
XXXXX XX XXXXX XXXXXXXX )
) ss:
COUNTY OF MECKLENBURG )
On the 28th day of February 2005 before me, a notary public in
and for said State, personally appeared ___________________________, known to me
to be an _____________________ of Wachovia Bank, National Association, a
national banking association that executed the within instrument, and also known
to me to be the person who executed it on behalf of said national banking
association, and acknowledged to me that such national banking association
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
__________________________________
Notary Public
[SEAL]
X-0
XXXXX XX XXX XXXX )
)ss:
COUNTY OF NEW YORK )
On the 28th day of February 2005 before me, a notary public in
and for said State, personally appeared Xxxx Park, known to me to be a Managing
Director of Xxxxxxx Xxxxx Mortgage Investors, Inc., one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
__________________________________
Notary Public
[Notarial Seal]
X-0
XXXXX XX XXXXXXXX )
) ss:
COUNTY OF XXXXXX )
On the 28th day of February 2005 before me, a notary public in
and for said State, personally appeared ________________, known to me to be an
_________________________ of Xxxxx Fargo Bank, N.A., a national banking
association that executed the within instrument, and also known to me to be the
person who executed it on behalf of said national banking association, and
acknowledged to me that such national banking association executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
__________________________________
Notary Public
[SEAL]
X-00
XXXXX XX XXXXXXXXX )
)ss:
COUNTY OF HENNEPIN )
On the 28th day of February 2005 before me, a notary public in
and for said State, personally appeared ___________________, known to me to be
an ____________________ of Xxxxx Fargo Bank, N.A., a national banking
association that executed the within instrument, and also known to me to be the
person who executed it on behalf of said national banking association, and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
__________________________________
Notary Public
[Notarial Seal]
G-11
EXHIBIT ONE
FORM OF CUSTODIAN INITIAL CERTIFICATION
February __, 2005
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Re: Pooling and Servicing Agreement, dated as of February 1, 2005,
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor,
Xxxxx Fargo Bank, N.A., as master servicer and securities
administrator, and Wachovia Bank, National Association, as
trustee, Mortgage Pass-through Certificates, Series 2005-A2
--------------------------------------------------------------
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-12
EXHIBIT TWO
FORM OF CUSTODIAN FINAL CERTIFICATION
____________, 2005
Xxxxxxx Xxxxx Mortgage Investors, Inc.
World Financial Center--North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Re: Pooling and Servicing Agreement, dated as of February 1, 2005,
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor,
Xxxxx Fargo Bank, N.A., as master servicer and securities
administrator and Wachovia Bank, National Association, as
trustee, Mortgage Pass-through Certificates, Series 2005-A2
--------------------------------------------------------------
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-13
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-14
REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx Fargo Bank, N.A.
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: MLMI 2005-A2
Re: Custodial Agreement dated as of February 28, 2005, among
Wachovia Bank, National Association, as Trustee, Xxxxxxx Xxxxx
Mortgage Investors, Inc., as Company, Xxxxx Fargo Bank, N.A.,
as Master Servicer and Securities Administrator, and Xxxxx
Fargo Bank, N.A., as Custodian
In connection with the administration of the Mortgage Loans held by you
as Custodian for the Owner pursuant to the above-captioned Custody 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 singer)
Issuer:_______________________
Address:______________________
______________________
Date: ______________________
CUSTODIAN
G-15
Xxxxx Fargo Bank, N.A.
Please acknowledge the execution of the above request by your signature and date
below:
_____________________________________ ____________________________
Signature Date
Documents returned to Custodian:
_____________________________________ ____________________________
Custodian Date
G-16
EXHIBIT H
SERVICING AGREEMENT
WASHINGTON MUTUAL BANK, FA
(PROVIDED UPON REQUEST)
H-1
EXHIBIT I
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is an Assignment, Assumption and Recognition Agreement
(this "AAR Agreement") made as of February 28, 2005, among Xxxxxxx Xxxxx
Mortgage Lending, Inc., having an address at World Financial Center, Xxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Assignor"), Xxxxxxx Xxxxx Mortgage
Investors, Inc., having an address at 4 World Financial Center, 10th Floor, New
York, New York 10281 (the "Assignee"), Washington Mutual Bank, FA (the
"Company") and Xxxxxxx Xxxxx Bank USA ("MLBUSA").
In consideration of the mutual promises contained herein the
parties hereto agree that the residential mortgage loans (the "Assigned Loans")
listed on Attachment 1 annexed hereto (the "Assigned Loan Schedule") purchased
by MLBUSA from Company pursuant to the Master Mortgage Loan Purchase and
Servicing Agreement, dated as of June 1, 2001, among MLBUSA, Company, Washington
Mutual Bank fsb, as seller and Washington Mutual Bank, FA, as servicer, (the
"Purchase and Servicing Agreement"), and the modifications thereto provided in
Annex A to the Warranty Xxxx of Sale dated April 26, 2004, among MLBUSA,
Company, Washington Mutual Bank fsb, as seller, Washington Mutual Bank, as
seller, and Washington Mutual Bank, FA, as servicer (the "Warranty Xxxx of
Sale"; together with the Purchase and Servicing Agreement, the "Servicing
Agreement"), shall be subject to the terms of this AAR Agreement. MLBUSA
assigned all of its right, title and interest in, to and under the Purchase and
Servicing Agreement to Assignor pursuant to the Assignment and Assumption
Agreement, dated September 10, 2004 between MLBUSA and Assignor (the "Assignment
and Assumption Agreement"; together with the Servicing Agreement, the
"Agreements"). Capitalized terms used herein but not defined shall have the
meanings ascribed to them in the Agreement.
ASSIGNMENT AND ASSUMPTION
1. For purposes of this AAR Agreement only, MLBUSA assigns its right,
title and interest in, to and under the Warranty Xxxx of Sale to Assignor.
Assignor hereby grants, sells, transfers and assigns to Assignee all of the
right, title and interest of Assignor in the Assigned Loans and, as they relate
to the Assigned Loans, all of its right, title and interest in, to and under the
Agreements. Assignor specifically reserves and does not assign to Assignee any
right, title and interest in, to or under any Mortgage Loans subject to the
Agreements other than those set forth on Attachment l.
REPRESENTATIONS, WARRANTIES AND COVENANTS
2. Assignor warrants and represents to, and covenants with, Assignee
and Company that as of the date hereof:
a. Attached hereto as Attachment 2 are true and accurate
copies of the Agreements, which agreements are in
full force and effect as of the date hereof and the
respective provisions of which have not been waived,
amended or modified in any respect, nor has any
notice of termination been given thereunder;
I-1
b. Assignor was the lawful owner of the Assigned Loans
with full right to transfer the Assigned Loans and
any and all of its interests, rights and obligations
under the Agreements as it relates to the Assigned
Loans, free and clear of any and all liens, claims
and encumbrances; and upon the transfer of the
Assigned Loans to Assignee as contemplated herein,
Assignee shall have good title to each and every
Assigned Loan, as well as any and all of Assignor's
interests, rights and obligations under the
Agreements as it relates to the Assigned Loans, free
and clear of any and all liens, claims and
encumbrances;
c. Assignor has not received notice of, and has no
knowledge of, any offsets, counterclaims or other
defenses available to Company with respect to the
Assigned Loans or the Agreements;
d. Assignor has not waived or agreed to any waiver
under, or agreed to any amendment or other
modifications of, the Agreements. Assignor has no
knowledge of, and has not received notice of, any
waivers under or any amendments or other
modifications of, or assignment of rights or
obligations under the Agreements;
e. Assignor is a corporation duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its formation, and has all requisite
power and authority to acquire, own and sell the
Assigned Loans;
f. Assignor has full power and authority to execute,
deliver and perform its obligations under this AAR
Agreement, and to consummate the transactions set
forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary
course of Assignor's business and will not conflict
with, or result in a breach of, any of the terms,
conditions or provisions of Assignor's charter or
by-laws or any legal restriction, or any material
agreement or instrument to which Assignor is now a
party or by which it is bound, or result in the
violation of any law, rule, regulation, order,
judgment or decree to which Assignor or its property
is subject. The execution, delivery and performance
by Assignor of this AAR Agreement and the
consummation by it of the transactions contemplated
hereby, have been duly authorized by all necessary
action on the part of Assignor. This AAR Agreement
has been duly executed and delivered by Assignor and,
upon the due authorization, execution and delivery by
Assignee, MLBUSA and Company, will constitute the
valid and legally binding obligation of Assignor
enforceable against Assignor in accordance with its
terms except as enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium or
other similar laws now or hereafter in effect
relating to creditors' rights generally, and by
general principles of equity regardless of whether
enforceability is considered in a proceeding in
equity or at law;
I-2
g. No material consent, approval, order or authorization
of, or declaration, filing or registration with, any
governmental entity is required to be obtained or
made by Assignor in connection with the execution,
delivery or performance by Assignor of this AAR
Agreement, or the consummation by it of the
transactions contemplated hereby. Neither Assignor
nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of
the Assigned Loans or any interest in the Assigned
Loans, or solicited any offer to buy or accept
transfer, pledge or other disposition of the Assigned
Loans, or any interest in the Assigned Loans, or
otherwise approached or negotiated with respect to
the Assigned Loans, or any interest in the Assigned
Loans, 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
which would constitute a distribution of the Assigned
Loans under the Securities Act of 1933, as amended
(the "1993 Act") or which would render the
disposition of the Assigned Loans a violation of
Section 5 of the 1933 Act or require registration
pursuant thereto;
h. Assignor has received from Company, and has delivered
to Assignee, all documents required to be delivered
to Assignor by Company prior to the date hereof
pursuant to Section 6.03 of the Purchase and
Servicing Agreement with respect to the Assigned
Loans; and
i. No Mortgage Loan is a High Cost loan or Covered Loan,
as applicable, as such terms are defined in Appendix
E of the Standard and Poor's Glossary For File Format
for LEVELS(R) Version 5.6b Revised (attached hereto
as Attachment 4).
j. No Mortgage Loan was originated on or after October
1, 2002 and before March 7, 2003, which is secured by
property located in the State of Georgia.
It is understood and agreed that the representations and
warranties set forth in this Section 2 will inure to the benefit of the
Assignee, 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 made
by the Assignor pursuant to this AAR Agreement, the representations and
warranties set forth above shall be deemed to be made by the Assignor as to any
Substitute Mortgage Loan as of the date of substitution.
Upon discovery or receipt of notice by the Assignor, the
Purchaser or the Trustee of a breach of any representation or warranty of the
Assignor set forth in this Section 2 which materially and adversely affects the
value of the interests of the Assignee, the Certificateholders or the Trustee in
any of the Mortgage Loans delivered to the Assignee pursuant to this AAR
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 2, within 90 days from the
date of discovery by the Assignor, or the date the Assignor is notified by the
party discovering or receiving notice of such breach (whichever
I-3
occurs earlier), the Assignor 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 Assignor to cure, purchase or substitute a qualifying Substitute Mortgage
Loan shall constitute the Assignee's, the Trustee's and the Certificateholder's
sole and exclusive remedy under this AAR Agreement or otherwise respecting a
breach of representations or warranties hereunder with respect to the Mortgage
Loans.
Any cause of action against the Assignor or relating to or
arising out of a breach by the Assignor of any representations and warranties
made in this Section 2 shall accrue as to any Mortgage Loan upon (i) discovery
of such breach by the Assignor or notice thereof by the party discovering such
breach and (ii) failure by the Assignor to cure such breach, purchase such
Mortgage Loan or substitute a qualifying Substitute Mortgage Loan pursuant to
the terms hereof.
3. Assignee warrants and represents to, and covenants with, Assignor
and Company that as of the date hereof:
a. Assignee is a corporation duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its formation and has all requisite
power and authority to acquire, own and purchase the
Assigned Loans;
b. Assignee has full power and authority to execute,
deliver and perform its obligations under this AAR
Agreement, and to consummate the transactions set
forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary
course of Assignee's business and will not conflict
with, or result in a breach of, any of the terms,
conditions or provisions of Assignee's charter or
by-laws or any legal restriction, or any material
agreement or instrument to which Assignee is now a
party or by which it is bound, or result in the
violation of any law, rule, regulation, order,
judgment or decree to which Assignee or its property
is subject. The execution, delivery and performance
by Assignee of this AAR Agreement and the
consummation by it of the transactions contemplated
hereby, have been duly authorized by all necessary
action on the part of Assignee. This AAR Agreement
has been duly executed and delivered by Assignee and,
upon the due authorization, execution and delivery by
Assignor, MLBUSA and Company, will constitute the
valid and legally binding obligation of Assignee
enforceable against Assignee in accordance with its
terms except as enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium or
other similar laws now or hereafter in effect
relating to creditors' rights generally, and by
general principles of equity regardless of whether
enforceability is considered in a proceeding in
equity or at law;
c. No material consent, approval, order or authorization
of, or declaration, filing or registration with, any
governmental entity is required to be obtained or
made by Assignee in connection with the execution,
delivery
I-4
or performance by Assignee of this AAR Agreement, or
the consummation by it of the transactions
contemplated hereby;
d. There is no action, suit, proceeding, investigation
or litigation pending or, to Assignee's knowledge,
threatened, which either in any instance or in the
aggregate, if determined adversely to Assignee, would
adversely affect Assignee's execution or delivery of,
or the enforceability of, this AAR Agreement, or
Assignee's ability to perform its obligations under
this AAR Agreement;
e. Assignee understands that the Assigned Loans have not
been registered under the Securities Act of 1934 (the
"Securities Act") or the securities laws of any
state; and
f. Assignee is either (i) not an employee benefit plan
that is subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986
(the "Code")(a "Plan") and not a Person acting,
directly or indirectly, on behalf of or investing
with "plan assets" of any such Plan or (ii) an
employee benefit plan that is subject to ERISA and
the assignment contemplated herein does not
constitute and will not result in non-exempt
prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code.
g. Assignee assumes all of the rights of the Assignor
under the Agreements with respect to the Assigned
Loans including the right to enforce the
representations and warranties of the Company
contained in the Agreements.
h. A registration statement on Form S-3 (File No.
333-112231), including the Base Prospectus (the
"Registration Statement") has been filed with the
Securities and Exchange Commission (the "Commission")
and has become effective under the Securities Act of
1933, as amended (the "Securities Act") and no stop
order suspending the effectiveness of the
Registration Statement has been issued and no
proceedings for that purpose have been initiated, or
to the Assignee's knowledge, threatened, by the
Commission.
4. Company warrants and represents to, and covenants with, Assignor and
Assignee that as of the date hereof:
a. Attached hereto as Attachment 2 are true and accurate
copies of the Agreements, which agreements are in
full force and effect as of the date hereof and the
respective provisions of which have not been waived,
amended or modified in any respect, nor has any
notice of termination been given thereunder;
I-5
b. Company is duly organized, validly existing and in
good standing under the laws of the jurisdiction of
its incorporation, and has all requisite power and
authority to service the Assigned Loans;
c. Company has full corporate power and authority to
execute, deliver and perform its obligations under
this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of
the transactions contemplated by this AAR Agreement
is in the ordinary course of Company's business and
will not conflict with, or result in a breach of, any
of the terms, conditions or provisions of Company's
charter or by-laws or any legal restriction, or any
material agreement or instrument to which Company is
now a party or by which it is bound, or result in the
violation of any law, rule, regulation, order,
judgment or decree to which Company or its property
is subject. The execution, delivery and performance
by Company of this AAR Agreement and the consummation
by it of the transactions contemplated hereby, have
been duly authorized by all necessary corporate
action on the part of Company. This AAR Agreement has
been duly executed and delivered by Company, and,
upon the due authorization, execution and delivery by
Assignor, MLBUSA and Assignee, will constitute the
valid and legally binding obligation of Company,
enforceable against Company in accordance with its
terms except as enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium or
other similar laws now or hereafter in effect
relating to creditors' rights generally, and by
general principles of equity regardless of whether
enforceability is considered in a proceeding in
equity or at law;
d. No consent, approval, order or authorization of, or
declaration, filing or registration with, any
governmental entity is required to be obtained or
made by Company in connection with the execution,
delivery or performance by Company of this AAR
Agreement, or the consummation by it of the
transactions contemplated hereby;
e. Company shall establish a Custodial Account (entitled
"Washington Mutual Bank, FA, as Servicer, in trust
for Wachovia Bank, National Association as trustee
for Xxxxxxx Xxxxx Mortgage Investors Trust MLMI
Series 2005-A2 Mortgage Pass-Through Certificates")
and an Escrow Account (entitled "Washington Mutual
Bank, FA, as Servicer, in trust for Wachovia Bank,
National Association, as trustee for Xxxxxxx Xxxxx
Mortgage Investors Trust MLMI Series 2005-A2 Mortgage
Pass-Through Certificates") with respect to the
Assigned Loans, which accounts shall be separate from
the Custodial Account and Escrow Account previously
established under the Servicing Agreement in favor of
the Assignor; and
f. Each of the representations and warranties made by
Company in Section 7.01(b) and Section 7.02 of the
Purchase and Servicing Agreement, as modified by the
Warranty Xxxx of Sale, are true and correct in all
material
I-6
respects as of the date hereof; provided, that the
Company makes no representation, warranty or covenant
with respect to Section 7.02(b) of the Purchase and
Servicing Agreement.
RECOGNITION OF ASSIGNEE
5. From and after the date hereof, Company shall recognize Assignee as
owner of the Assigned Loans and will service the Assigned Loans for Assignee in
accordance with the Servicing Agreement (as modified herein), the terms of which
are incorporated herein by reference. In addition, Company hereby acknowledges
that from and after the date hereof, the Assigned Loans will be subject to the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of February 1, 2005, by and among Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Xxxxx Fargo Bank, N.A. (the "Master Servicer") and Wachovia Bank, National
Association. Pursuant to the Pooling and Servicing Agreement, Xxxxx Fargo Bank,
N.A., has been appointed as Master Servicer of the Assigned Loans. The Master
Servicer shall have rights as designee of Assignor to enforce the
representations and warranties and all other covenants and conditions set forth
in the Servicing Agreement that relate to the Servicer's obligations as Servicer
under Sections 11-16 of the Servicing Agreement (and not any of the obligations
of the Seller under such Servicing Agreement). The Servicer shall be entitled to
rely on the instructions of the Master Servicer under the Servicing Agreement as
if such instructions were the instructions of Assignor. The Master Servicer has
the right to monitor Company's performance of its servicing obligations under
Sections 11-16 of the Servicing Agreement and shall have the rights as designee
of the Assignor to inspect the Company's books and records pursuant to Section
6.02 of the Servicing Agreement. Such right will include, without limitation,
the right to terminate Company under the Servicing Agreement upon the occurrence
of an event of default thereunder, the right to receive all remittances required
to be made by Company under the Agreement, the right to receive all monthly
reports and other data required to be delivered by Company under the Servicing
Agreement. The Master Servicer shall have the right to give any waivers or
consents required or allowed under Sections 11-16 of the Servicing Agreement on
behalf of the Assignor, and the Servicer shall be entitled to rely on such
waivers and consents as if such waivers or consents were the waivers or consents
of the Assignor. The Master Servicer is empowered to enter into and execute and
deliver any amendments or modifications to Sections 11-16 of the Servicing
Agreement as the Assignor's designee under the Servicing Agreement, and such
amendments or modifications shall be binding upon the Assignor as if the
Assignor had executed and delivered the same. Upon receipt of notice of
termination of the Master Servicer, the Servicer shall no longer deal with the
Master Servicer and shall instead deal directly with the Assignor.
6. In connection therewith, Company hereby agrees that all remittances
required to be made with respect to the Assigned Loans pursuant to the Agreement
will be made in accordance with the following wire transfer instructions:
Bank: Xxxxx Fargo Bank, N.A.
ABA Routing Number: 000-000-000
Account Name: Corporate Trust Clearing
Account Number: 0000000000
For Credit to: MLMI Series 2005-A2, acct# 17146300
I-7
and Company shall deliver all reports required to be delivered under the
Agreement to Assignee and to the Master Servicer at:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: MLMI 2005-A2
The Company, as seller (the "Seller"), and Company, as
servicer (the "Servicer") pursuant to the Servicing Agreement, shall indemnify
and hold harmless the Assignor, the Assignee and any person who "controls" the
Assignor or the Assignee within the meaning of Section 15 of the Securities Act
of 1933, as amended, or any director or officer of the Assignor or the Assignee
(each an "Assignor Indemnified Party"), against any and all losses, claims,
damages, liabilities or actions in respect thereof (including reasonable counsel
fees incurred in connection thereof) to which such Assignor Indemnified Party
may become subject under the Securities Act of 1933, or otherwise, insofar as
such losses, claims, damages, liabilities or actions arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the case of the Company, the "Seller's Information" (as defined
below) (insofar as it relates to the Company) and the "Servicer's Information"
(as defined below) of the Prospectus Supplement.
The Assignor and Assignee shall each indemnify and hold
harmless Company and its affiliates, and any person who "controls" Company and
its affiliates within the meaning of Section 15 of the Securities Act of 1933,
as amended or any director or officer of Company or its affiliates (each, a "WM
Indemnified Party") against any and all losses, claims, expenses, damages or
liabilities or actions in respect thereof (including reasonable counsel fees
incurred in connection therewith) to which such WM Indemnified Party may become
subject, under the Securities Act of 1933 or otherwise, including, without
limitation, with respect to disputes between the parties, insofar as such
losses, claims, expenses, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Base
Prospectus or the Prospectus Supplement, or the omission or the alleged omission
to state in the Registration Statement, the Base Prospectus or the Prospectus
Supplement a material fact necessary in order to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission is other
than a statement or omission arising out of, resulting from or based upon the
Seller's Information or Servicer's Information.
The Company, the Assignor and the Assignee agree that the
"Seller's Information" shall mean the information contained under the captions
"Description of the Mortgage Pool - The Originator - Washington Mutual Bank,
FA", "Description of the Mortgage Pool - Underwriting Guidelines - Washington
Mutual's Underwriting Standards" and the "Servicer's Information" shall mean the
information contained under the caption "Servicing of the Mortgage Loans - The
Servicer - Washington Mutual" in the Prospectus Supplement.
It is the intention of Assignor, Company and Assignee that
this AAR Agreement shall be binding upon and for the benefit of the respective
successors and assigns of the parties
I-8
hereto. Neither Company nor Assignor shall amend or agree to amend, modify,
waive, or otherwise alter any of the terms or provisions of the Agreement which
amendment, modification, waiver or other alteration would in any way affect the
Assigned Loans without the prior written consent of Assignee.
The indemnities set forth above will be in addition to any
liability which Company, Assignor or Assignee may otherwise have.
MODIFICATION OF THE AGREEMENT
7. The Assignor, Assignee and Company hereby amend Section 1 of the
Servicing Agreement by adding the definition of "Business Day" as follows:
"BUSINESS DAY: Any day other than a Saturday or Sunday, or a
day on which banking and savings and loan institutions in the State of New York,
State of Maryland, State of Minnesota, State of California, State of Illinois or
State of Washington are authorized or obligated by law or executive order to be
closed."
The Assignor, Assignee and Company hereby amend Section 1 of
the Servicing Agreement by adding the definition of "Certification Cure
Deadline" as follows:
"CERTIFICATION CURE DEADLINE: The date occurring fifteen (15)
days after the date on which written notice of the Servicer's failure to duly
perform its obligations under Sections 11.25 and 11.26 shall have been given to
the Servicer by the Purchaser, or if the related Mortgage Loans are subject to a
securitization and the registrant (or its agent) has obtained an extension to
the Securities and Exchange Commission filing deadline for the related 10-K, the
date occurring five (5) days prior to the extended filing deadline."
The Assignor, Assignee and Company hereby amend Section 1 of
the Servicing Agreement by adding the definition of "Master Servicer" as
follows:
"MASTER SERVICER: Xxxxx Fargo Bank, N.A."
The Assignor, the Assignee and the Company hereby amend the
third paragraph of Section 11.14 of the Servicing Agreement, by deleting the
last paragraph in its entirety and replacing it with the following:
"With respect to any remittance received by the Purchaser
after the Business Day following the Business Day on which such remittance was
due, the Purchaser will send written notice thereof to the Servicer. The
Servicer shall pay to the Purchaser interest on any such late remittance at an
annual rate equal to the rate of interest as is publicly announced from time to
time at its principal office by The Chase Manhattan Bank, New York, New York, as
its prime lending rate, adjusted as of the date of each change, but in no event
greater than the maximum amount permitted by applicable law. Such interest shall
be paid by the Servicer to the Purchaser on the date such late remittance is
made and shall cover the period commencing with the day following the Business
Day on which such payment was due and ending with the Business Day on which such
late remittance to the Purchaser is made, both inclusive; provided, however,
that if the Servicer is unable to effect a wire transfer due to the fact that
the Federal
I-9
Reserve wire system is not operating, the interest rate will equal the U.S.
Federal Funds Effective Rate for each day that the Federal Reserve wire system
is inoperable. The payment by the Servicer of any such interest shall not be
deemed an extension of time for payment or a waiver of any Event of Default by
the Servicer."
The Assignor, Assignee and Company hereby amend Section 11.15
of the Servicing Agreement, by adding the following paragraph:
"The information in this report will be (i) the information
set forth in Attachment 5 to this AAR Agreement and (ii) any other information
the Master Servicer reasonably requires (provided, that, Servicer shall have no
obligation to provide to the Master Servicer any information pursuant to this
clause (ii) which is unduly burdensome or costly for the Servicer to provide to
the Master Servicer), in each case in such form as the Master Servicer shall
reasonably request as necessary for the performance of its reporting obligations
under the Pooling and Servicing Agreement, or in such form as may be mutually
agreed upon between the Servicer and the Master Servicer; provided, further that
to the extent that any information required to be provided pursuant to this
clause (ii) is due to the implementation of new laws, rules or regulations, the
Master Servicer and the Servicer shall negotiate in good faith the type of
information required to be provided by the Servicer, as well as the format and
time frame in providing such information."
The Assignor, Assignee and Company hereby amend Section 11.25
of the Servicing Agreement, by deleting such section in its entirety and
replacing it with the following:
"(a) Not later than March 15 of each year (if such day is not a
Business Day, the next succeeding Business Day), the Servicer shall deliver to
the Master Servicer an Officer's Certificate for the prior calendar year,
beginning with the calendar year ending December 31, 2005, stating that (i) a
review of the activities of the Servicer during the preceding year and of
performance under the Servicing Agreement has been made under such officer's
supervision, and (ii) to the best of such officer's knowledge, based on such
review, the Servicer has fulfilled all of its obligations under the Servicing
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof.
(b) Not later than March 15 of each year (or if such day is not a
Business Day, the next succeeding Business Day), with respect to any Mortgage
Loans subject to a Pass-Through Transfer, the Servicer will deliver to the
Master Servicer, an Officer's Certificate for the prior calendar year, beginning
with the calendar year ending December 31, 2005, in substantially the form of
Attachment 3 to this AAR Agreement.
(c) The Servicer agrees to indemnify and hold harmless the Master
Servicer and each Person, if any, who "controls" the Master Servicer within the
meaning of the Securities Act of 1933, as amended, and their respective
officers, directors and employees (collectively, the "INDEMNITEES") against any
and all losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, fees and expenses that such Indemnitee may
sustain in direct connection with, or arising out of, third party claims based
on (i) the failure of the Servicer to deliver or cause to be delivered when
required any Officer's Certificate required pursuant to
I-10
Section 11.25(a) or Section 11.25(b) or the accountants' statement and copy of
the Management Assertion required pursuant to Section 11.26, (ii) any material
misstatement or omission in any certification pursuant to Section 302(a) of the
Xxxxxxxx-Xxxxx Act of 2002 and Rules 13a-14 and 15d-14 promulgated thereunder by
the Securities and Exchange Commission and made in reliance on any material
misstatement or omission contained in any Officer's Certificate provided
pursuant to Section 11.25(a) or Section 11.25(b), or (iii) any material
misstatement or omission contained in the Management Assertion delivered in
accordance with Section 11.26. If the indemnification provided for herein is
unavailable or insufficient to hold harmless any Indemnitee, then the Servicer
agrees that it shall contribute to the amount paid or payable by the Indemnitee
as a result of the losses, claims, damages or liabilities of the Indemnitee
arising out of clauses (i), (ii) or (iii) of the preceding sentence in such
proportion as is appropriate to reflect the relative fault of the Indemnitee on
the one hand and the Servicer on the other.
(d) For purposes of paragraph (c), "third party claims" shall include
claims brought against an Indemnitee by any agent or affiliate of such
Indemnitee where such claims arise out of, or are based on, (A) the failure of
the Servicer to deliver or cause to be delivered when required any Officer's
Certificate required pursuant to Section 11.25(a) or Section 11.25(b) or the
accountant's statement and Management Assertion when required pursuant to
Section 11.26 or (B) any material misstatement or omission in any certification
pursuant to Section 302(a) of the Xxxxxxxx-Xxxxx Act of 2002 and Rules 13a-14
and 15d-14 promulgated by the Securities and Exchange Commission thereunder made
in reliance on any material misstatement or omission contained in any Officer's
Certificate provided pursuant to Section 11.25(a) or Section 11.25(b), or (C)
any material misstatement or omission contained in the Management Assertion
delivered in accordance with Section 11.26.
The Assignor, Assignee and Company hereby amend Section 11.26
of the Servicing Agreement, by deleting such section in its entirety and
replacing it with the following:
"Not later than March 15 of each year (or if such day is not a
Business Day, the next succeeding Business Day), the Servicer shall (i) at its
expense, cause a firm of independent public accountants that is a member of the
American Institute of Certified Public Accountants to furnish to the Master
Servicer a statement to the effect that, based on an examination conducted by
such firm in compliance with the Uniform Single Attestation Program for Mortgage
Bankers ("USAP"), the assertion of the management of the Servicer regarding
compliance with the minimum servicing standards identified in the USAP (the
"Management Assertion") is fairly stated in all material respects, except for
(A) such exceptions as such firm believes to be immaterial, and (B) such other
exceptions as are set forth in such statement or such Management Assertion, and
(ii) furnish to the Master Servicer a separate copy of the related Management
Assertion, which shall be in the same form as provided to the firm of
independent public accountants referred to in clause (i) of this paragraph."
The Assignor, Assignee and Company hereby amend Section 14.01
of the Servicing Agreement, by adding an "or" at the end of clause (x) and
adding the following clause (xi):
"(xi) failure by the Servicer to duly perform, within the
required time period, its obligations under Sections 11.25 or 11.26
which failure continues unremedied after the Certification Cure
Deadline."
I-11
MISCELLANEOUS
8. All demands, notices and communications related to the Assigned
Loans, the Agreement and this AAR Agreement shall be in writing and shall be
deemed to have been duly given if personally delivered or mailed by registered
mail, postage prepaid, as follows:
a. In the case of Company,
Washington Mutual Bank, FA
00000 Xxxxxxx Xx. (Mail Stop N070205)
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attn: Vice President of Investor Reporting
With a copy to:
Washington Mutual Bank, FA
0000 Xxxxx Xxxxxx, XXX0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
b. In the case of Assignor,
Xxxxxxx Xxxxx Mortgage Lending, Inc.
World Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MLMI 2005-A2
c. In the case of Assignee,
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MLMI 2005-A2
d. In the case of MLBSA,
Xxxxxxx Xxxxx Bank USA
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MLMI 2005-A2
e. In the case of Master Servicer,
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
X-00
Xxxxxxxx, Xxxxxxxx 00000
Attention: MLMI 2005-A2
9. This AAR Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
10. No term or provision of this AAR Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
11. This AAR Agreement shall inure to the benefit of the successors and
assigns of the parties hereto. Any entity into which Assignor, Assignee, MLBUSA
or Company may be merged or consolidated shall without the requirement for any
further writing, be deemed Assignor, Assignee, MLBUSA or Company, respectively
hereunder.
12. This AAR Agreement shall survive the conveyance of the Assigned
Loans as contemplated in this AAR Agreement.
13. This AAR Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
14. In the event that any provision of this AAR Agreement conflicts
with any provision of the Agreements with respect to the Assigned Loans, the
terms of this AAR Agreement shall control.
15. The parties hereto hereby acknowledge and agree that the Company,
as Servicer pursuant to the Servicing Agreement shall be entitled to payment of
its servicing compensation (including, without limitation, its Servicing Fee)
and reimbursement of Monthly Advances and Servicing Advances with respect to the
Assigned Loans as specified in the Servicing Agreement, in each case in
accordance with Sections 3.08, 3.15, 4.01 and 4.05 of the Pooling and Servicing
Agreement. In addition, the parties hereto hereby acknowledge and agree that the
provisions of Section 3.07 of the Pooling and Servicing Agreement shall govern
the release to, and if applicable, return by, the Company of the Mortgage Files
related to the Assigned Loans. The parties hereto hereby acknowledge and agree
that the Company shall be a third party beneficiary with respect to Sections
3.07, 3.08, 3.15(c), 4.01 and 4.05 of the Pooling and Servicing Agreement.
16. Each party will pay any commissions it has incurred and the
Assignor shall pay the fees of its attorneys and reimburse the Company for all
out-of-pocket expenses, including attorney's fees, incurred by the Company in
connection with the negotiations for, documenting of and closing of the
transactions contemplated by this AAR Agreement.
17. For purposes of this AAR Agreement only, the Master Servicer shall
be considered a third party beneficiary, entitled to all the rights and benefits
accruing to any Master Servicer as set forth in Sections 6 and 8 herein as if it
were a direct party to this agreement.
I-13
IN WITNESS WHEREOF, the parties hereto have executed this AAR Agreement
as of the day and year first above written.
XXXXXXX XXXXX MORTGAGE LENDING, INC.
Assignor
By: ___________________________________________
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Assignee
By: ___________________________________________
Name: Xxxx Park
Title: Managing Director
WASHINGTON MUTUAL BANK, FA
Company
By: ___________________________________________
Name:
Title:
Only with respect to Section 1:
XXXXXXX XXXXX BANK USA
By: ___________________________________________
Name: Xxx Xxxx
Title: Authorized Signatory
ACKNOWLEDGED AND AGREED:
XXXXX FARGO BANK, N.A.
Master Servicer
By: ___________________________________________
Name:
Title:
ASSIGNMENT, ASSUMPTION & RECOGNITION AGREEMENT
ATTACHMENT l
ASSIGNED LOAN SCHEDULE
(Provided Upon Request)
I-1-1
ATTACHMENT 2
MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT,
WARRANTY XXXX OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT
(Provided Upon Request)
I-2-1
ATTACHMENT 3
FORM OF OFFICER'S CERTIFICATE
I, _________________, a duly elected and acting officer of Washington
Mutual Bank, FA (the "Servicer"), in connection with that certain Master
Mortgage Loan Purchase and Servicing Agreement dated as of June 1, 2001 and its
modifications thereto provided in the Warranty Xxxx of Sale dated as of April
26, 2004 (together, the "Servicing Agreement") certify to Xxxxx Fargo Bank, N.A.
(the "Master Servicer"), and each Person, if any, who "controls" the Master
Servicer within the meaning of the Securities Act of 1933, as amended, and their
respective officers and directors, with respect to the calendar year immediately
preceding the date of this Certificate (the "Relevant Year"), as follows:
(i) For purposes of this Certificate, "Relevant Information" means the
information in the certificate provided pursuant to Section 11.25(a) of the
Servicing Agreement (the "Annual Compliance Certificate") for the Relevant Year
and the information in all servicing reports provided to the Master Servicer
pursuant to the Servicing Agreement (the "Servicing Reports") provided by the
Servicer during the Relevant Year. Based on my knowledge, the Relevant
Information, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein
which is necessary to make the statements made therein, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the Relevant Year.
(ii) The Relevant Information has been provided to those persons entitled to
receive it.
(iii) I am responsible for reviewing the activities performed by the Servicer
pursuant to the Servicing Agreement during the Relevant Year. Based upon the
review required by the Servicing Agreement and except as disclosed in the Annual
Compliance Certificate or the accountants' statement provided pursuant to
Sections 11.25 and 11.26, to the best of my knowledge, the Servicer has
fulfilled its obligations under the Servicing Agreement throughout the Relevant
Year.
WASHINGTON MUTUAL BANK, FA
as Servicer
By: _____________________________________
Name:
Title:
Date:
I-3-1
ATTACHMENT 4
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
-----------------------------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING CATEGORY UNDER APPLICABLE
LAW/EFFECTIVE DATE ANTI-PREDATORY LENDING LAW
-----------------------------------------------------------------------------------------------------------------
Arkansas Arkansas Home Loan Protection Act, Ark. Code High Cost Home Loan
Xxx. xx.xx. 00-00-000 ET SEQ.
Effective July 16, 2003
-----------------------------------------------------------------------------------------------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Code xx.xx. Covered Loan
757.01 ET SEQ.
Effective June 2, 2003
-----------------------------------------------------------------------------------------------------------------
Colorado Consumer Equity Protection, Colo. Stat. Xxx. xx.xx. Covered Loan
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, 2002
-----------------------------------------------------------------------------------------------------------------
Connecticut Connecticut Abusive Home Loan Lending Practices High Cost Home Loan
Act, Conn. Gen. Stat. xx.xx. 36a-746 ET SEQ.
Effective October 1, 2001
-----------------------------------------------------------------------------------------------------------------
District of Columbia Home Loan Protection Act, D.C. Code xx.xx. Covered Loan
26-1151.01 ET SEQ.
Effective for loans closed on or after January
28, 2003
-----------------------------------------------------------------------------------------------------------------
Florida Fair Lending Act, Fla. Stat. Xxx. xx.xx. 494.0078 High Cost Home Loan
ET SEQ.
Effective October 2, 2002
-----------------------------------------------------------------------------------------------------------------
I-4-1
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
-----------------------------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING CATEGORY UNDER APPLICABLE
LAW/EFFECTIVE DATE ANTI-PREDATORY LENDING LAW
-----------------------------------------------------------------------------------------------------------------
Georgia (Oct. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. xx.xx. High Cost Home Loan
2002 - Mar. 6, 2003) 7-6A-1 ET SEQ.
Effective October 1, 2002 - March 6, 2003
-----------------------------------------------------------------------------------------------------------------
Georgia as amended Georgia Fair Lending Act, Ga. Code Xxx. xx.xx. High Cost Home Loan
(Mar. 7, 2003 - current) 7-6A-1 ET SEQ.
Effective for loans closed on or after March 7, 2003
-----------------------------------------------------------------------------------------------------------------
HOEPA Section 32 Home Ownership and Equity Protection Act of High Cost Loan
1994, 15 U.S.C. ss. 1639, 12 C.F.R. xx.xx.
226.32 and 226.34
Effective October 1, 1995, amendments
October 1, 2002
-----------------------------------------------------------------------------------------------------------------
Illinois High Risk Home Loan Act, Ill. Comp. Stat. tit. High Risk Home Loan
815, xx.xx. 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, Ind. Code Xxx. High Cost Home Loan
xx.xx. 24-9-1-1 ET SEQ.
Effective for loans originated on or after
January 1, 2005.
-----------------------------------------------------------------------------------------------------------------
Kansas Consumer Credit Code, Kan. Stat. Xxx. High Loan to Value
xx.xx. 16a-1-101 ET SEQ. Consumer Loan (ID.
ss. 16a-3-207) and;
Sections 16a-1-301 and 16a-3-207 became High APR Consumer Loan
effective April 14, 1999; Section 16a-3-308a (ID. ss. 16a-3-308a)
became effective July 1, 1999
-----------------------------------------------------------------------------------------------------------------
Kentucky 2003 KY H.B. 000 - Xxxx Xxxx Xxxx Xxxx Xxx, Xx. High Cost Home Loan
Rev. Stat. xx.xx. 360.100 ET SEQ.
Effective June 24, 2003
-----------------------------------------------------------------------------------------------------------------
Maine Truth in Lending, Me. Rev. Stat. tit. 9-A, High Rate High
xx.xx. 8-101 ET SEQ. Fee Mortgage
Effective September 29, 1995 and as amended
from time to time
-----------------------------------------------------------------------------------------------------------------
I-4-2
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
-----------------------------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING CATEGORY UNDER APPLICABLE
LAW/EFFECTIVE DATE ANTI-PREDATORY LENDING LAW
-----------------------------------------------------------------------------------------------------------------
Massachusetts Part 40 and Part 32, 209 C.M.R. xx.xx. 32.00 High Cost Home Loan
ET SEQ. and 209 C.M.R. xx.xx. 40.01 ET SEQ.
Effective March 22, 2001 and amended from time
to time
-----------------------------------------------------------------------------------------------------------------
Massachusetts Predatory Home Loan Practices Act High Cost Home
Mass. Gen. Laws ch. 183C, xx.xx. 1 ET SEQ. Mortgage Loan
Effective November 7, 2004
-----------------------------------------------------------------------------------------------------------------
Nevada Assembly Xxxx No. 284, Nev. Rev. Stat. xx.xx. Home Loan
598D.010 ET SEQ.
Effective October 1, 2003
-----------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Act of 2002, High Cost Home Loan
N.J. Rev. Stat. xx.xx. 46:10B-22 ET SEQ.
Effective for loans closed on or after November
27, 2003
-----------------------------------------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Rev. Stat. xx.xx. High Cost Home Loan
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 High Cost Home Loan
Loans, N.C. Gen. Stat. xx.xx. 24-1.1E ET SEQ.
Effective July 1, 2000; amended October 1,
2003 (adding open-end lines of credit)
-----------------------------------------------------------------------------------------------------------------
Ohio H.B. 386 (codified in various sections of the Covered Loan
Ohio Code), Ohio Rev. Code Xxx. xx.xx. 1349.25
ET SEQ.
I-4-3
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
-----------------------------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING CATEGORY UNDER APPLICABLE
LAW/EFFECTIVE DATE ANTI-PREDATORY LENDING LAW
-----------------------------------------------------------------------------------------------------------------
Effective May 24, 2002
-----------------------------------------------------------------------------------------------------------------
Oklahoma Consumer Credit Code (codified in various Subsection 10 Mortgage
sections of Title 14A)
Effective July 1, 2000; amended effective
January 1, 2004
-----------------------------------------------------------------------------------------------------------------
South Carolina South Carolina High Cost and Consumer Home High Cost Home Loan
Loans Act, S.C. Code Xxx. xx.xx. 37-23-10 ET SEQ.
Effective for loans taken on or after
January 1, 2004
-----------------------------------------------------------------------------------------------------------------
West Virginia West Virginia Residential Mortgage Lender, West Virginia Mortgage
Broker and Servicer Act, W. Va. Code Xxx. xx.xx. Loan Act Loan
31-17-1 ET SEQ.
Effective June 5, 2002
-----------------------------------------------------------------------------------------------------------------
STANDARD & POOR'S COVERED LOAN CATEGORIZATION
---------------------------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING CATEGORY UNDER APPLICABLE
LAW/EFFECTIVE DATE ANTI-PREDATORY LENDING LAW
----------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Mar. 0, Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. Covered Loan
2003) xx.xx. 7-6A-1 ET SEQ.
Effective October 1, 2002 - March 6, 2003
----------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Act of 2002, Covered Home Loan
N.J. Rev. Stat. xx.xx. 46:10B-22 ET SEQ.
Effective November 27, 2003 - July 5, 2004
----------------------------------------------------------------------------------------------------------------
I-4-4
STANDARD & POOR'S HOME LOAN CATEGORIZATION
------------------------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING CATEGORY UNDER APPLICABLE
LAW/EFFECTIVE DATE ANTI-PREDATORY LENDING LAW
------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Georgia Fair Lending Act, Ga. Code Xxx. Home Loan
Mar. 6, 2003) xx.xx. 7-6A-1 ET SEQ.
Effective October 1, 2002 - March 6, 2003
------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Act of 2002, Home Loan
N.J. Rev. Stat. xx.xx. 46:10B-22 ET SEQ.
Effective for loans closed on or after November
27, 2003
------------------------------------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Rev. Stat. xx.xx. Home Loan
58-21A-1 ET SEQ.
Effective as of January 1, 2004; Revised as of
February 26, 2004
------------------------------------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on High Cost Home Consumer Home Loan
Loans, N.C. Gen. Stat. xx.xx. 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 Consumer Home Loan
Loans Act, S.C. Code Xxx. xx.xx. 37-23-10 ET SEQ.
Effective for loans taken on or after January
1, 2004
------------------------------------------------------------------------------------------------------------
I-4-5
ATTACHMENT 5
REALIZED LOSS CALCULATION INFORMATION
XXXXX FARGO BANK, N.A.
Form 332
--------------------------------------------------------------------------------
CALCULATION OF REALIZED LOSS
PURPOSE
To provide the Servicer with a form for the calculation of any Realized Loss (or
gain) as a result of a Mortgage Loan having been foreclosed and Liquidated.
DISTRIBUTION
The Servicer will prepare the form in duplicate and send the original together
with evidence of conveyance of title and appropriate supporting documentation to
the Master Servicer with the Monthly Accounting Reports which supports the
Mortgage Loan's removal from the Mortgage Loan Activity Report. The Servicer
will retain the duplicate for its own records.
DUE DATE
With respect to any liquidated Mortgage Loan, the form will be submitted to the
Master Servicer no later than the date on which statements are due to the Master
Servicer under Section 4.02 of this Agreement (the "Statement Date") in the
month following receipt of final liquidation proceeds and supporting
documentation relating to such liquidated Mortgage Loan; provided, that if such
Statement Date is not at least 30 days after receipt of final liquidation
proceeds and supporting documentation relating to such liquidated Mortgage Loan,
then the form will be submitted on the first Statement Date occurring after the
30th day following receipt of final liquidation proceeds and supporting
documentation.
PREPARATION INSTRUCTIONS
The numbers on the form correspond with the numbers listed below.
1. The actual Unpaid Principal Balance of the Mortgage Loan.
2. The Total Interest Due less the aggregate amount of servicing fee that
would have been earned if all delinquent payments had been made as
agreed.
3-7. Complete as necessary. All line entries must be supported by copies of
appropriate statements, vouchers, receipts, canceled checks, etc., to
document the expense. Entries not properly documented will not be
reimbursed to the Servicer.
8. Accrued Servicing Fees based upon the Scheduled Principal Balance of
the Mortgage Loan as calculated on a monthly basis.
10. The total of lines 1 through 9.
CREDITS
11-17. Complete as necessary. All line entries must be supported by copies of
the appropriate claims forms, statements, payment checks, etc. to
document the credit. If the Mortgage Loan is subject to a Bankruptcy
Deficiency, the difference between the Unpaid Principal Balance of the
Note prior to the Bankruptcy Deficiency and the Unpaid Principal
Balance as reduced by the Bankruptcy Deficiency should be input on line
16.
18. The total of lines 11 through 17.
I-5-1
TOTAL REALIZED LOSS (OR AMOUNT OF ANY GAIN)
19. The total derived from subtracting line 18 from 10. If the amount
represents a realized gain, show the amount in parenthesis ( ).
I-5-2
XXXXX FARGO BANK, N.A.
CALCULATION OF REALIZED LOSS
--------------------------------------------------------------------------------
XXXXX FARGO BANK, N.A. Trust: ___________________________
Prepared by: __________________ Date: _______________
Phone: ________________________
------------------- ----------------- ---------------------
Servicer Loan No. Servicer Name Servicer Address
------------------- ----------------- ---------------------
XXXXX FARGO BANK, N.A.
Loan No._____________________________
Borrower's Name:_______________________________________________________
Property
Address:_______________________________________________________________
LIQUIDATION AND ACQUISITION EXPENSES:
Actual Unpaid Principal Balance of Mortgage Loan $___________(1)
Interest accrued at Net Rate ___________(2)
Attorney's Fees ___________(3)
Taxes ___________(4)
Property Maintenance ___________(5)
MI/Hazard Insurance Premiums ___________(6)
Hazard Loss Expenses ___________(7)
Accrued Servicing Fees ___________(8)
Other (itemize) ___________(9)
_________________________________________ $___________
_________________________________________ ______________
_________________________________________ ______________
_________________________________________ ______________
TOTAL EXPENSES $__________(10)
CREDITS:
Escrow Balance $__________(11)
HIP Refund ___________(12)
Rental Receipts ___________(13)
Hazard Loss Proceeds ___________(14)
Primary Mortgage Insurance Proceeds ___________(15)
Proceeds from Sale of Acquired Property ___________(16)
Other (itemize) ___________(17)
_________________________________________ ______________
_________________________________________ ______________
TOTAL CREDITS $__________(18)
TOTAL REALIZED LOSS (OR Amount OF GAIN) $__________(19)
I-5-3
FORM OF SERVICER INFORMATION - WMBFA
The following information will be e-mailed to the Master Servicer by WMBFA:
LOAN NUMBER
INTEREST RATE
PENDING RATE
SCHED P&I PMT
SCHEDULED PRINCIPAL
GROSS INTEREST
CURTAILMENT COLL
PIF PRINCIPAL
PIF INTEREST DIFF
ARM INDEX
PEND INDEX
ENDING SCHED BAL
INVESTOR LOAN NUM
SERVICE FEE RATE
DUE DATE
YIELD RATE
BEGINNING BALANCE
ENDING BALANCE
BEGINNING SCHED BAL
PRINCIPAL COLLECTED
SCHEDULED NET INT
SCHEDULED BUYDOWN
SERVICE FEE COLL
REMITTANCE AMOUNT
In addition, a hard copy of the following information will be sent to the Master
Servicer by WMBFA:
DELINQUENCIES:
1-30
31-60
61-90
91 +
Foreclosures
REO Properties
I-5-4
EXHIBIT J
[RESERVED]
J-1
EXHIBIT K
FORM CERTIFICATION TO BE PROVIDED BY THE MASTER SERVICER
WITH FORM 10-K
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc.
Mortgage Pass-Through Certificates, Series 2005-A2
I, [identify the certifying individual], certify that:
l. I have reviewed this annual report on Form 10-K, and all
reports on Form 8-K containing distribution or servicing reports filed in
respect of periods included in the year covered by this annual report, of
Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Registrant");
2. Based on my knowledge, the information in these reports,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required
to be provided to the Trustee by the Master Servicer under the Pooling and
Servicing Agreement for inclusion in these reports is included in these reports;
4. I am responsible for reviewing the activities performed by
the Servicer under the Servicing Agreement and based upon my knowledge and the
annual compliance review required under the Servicing Agreement, and except as
disclosed in the reports, the Servicer has fulfilled its obligations under the
Servicing Agreement; and
5. The reports disclose all significant deficiencies relating
to the Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
or similar standard as set forth in the Servicing Agreement that is included in
these reports.
In giving the certifications above, I have reasonably relied
on information provided to me by the following unaffiliated parties:
______________________________
______________________________
______________________________
K-1
Capitalized terms used but not defined herein have the
meanings ascribed to them in Pooling and Servicing Agreement, dated February 1,
2005, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Xxxxx Fargo
Bank, N.A., as master servicer and securities administrator and Wachovia Bank,
National Association, as trustee.
XXXXX FARGO BANK, N.A.
By:____________________________
Name:
Title:
Date:
K-2
